Misconduct requiring dismissal must be proven with clear evidence, focusing on the breach of fiduciary responsibility by the employee.

Amrik Singh:

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 ("the IRA ") arising out of the dismissal of Mohd Takhiyuddin bin Radzi (hereinafter referred to as "the Claimant") by Papago Sdn Bhd (Resort World Langkawi) (hereinafter referred to as "the Company") on 9 April 2020.

[2] This is a reference from The Honourable Minister of Human Resources to the Industrial Court of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 (" IRA ") in respect of the dismissal of Mohd Takhiyuddin Bin Radzi ("the Claimant") by his employer Papago Sdn Bhd (the Company) on 9 April 2020.

[3] This case came up for hearing on 3 August 2022 at Industrial Court of Pulau Langkawi and was completed on the same date after four (4) witnesses for the Company gave their testimonies whilst the Claimant alone testified for his case.

[4] The following cause papers had been filed by the parties to the proceedings and were referred to as such:

(i) the Claimant's Statement of Case dated 2 February 2021

(ii) the Company's Statement in Reply dated 12 April 2021

(iii) The Claimant's Bundle of Document marked as CLB 1

(iv) The Company's Bundle of Document marked as COW 1

(v) The Claimant's Written Submission dated 1 September 2022 (vii) The Company's Written Submission dated 31 October 2022 (viii) The Claimant's submission in Reply dated 7 November 2022

[5] The Company produced four (4) witnesses in the following sequence:

a. Mohd Bunyamin Bin Abd Rahman (COW 1)

b. Zainab Bintu Suib (COW 2)

c. Hooi Yeng Fong (COW 3)

d. Ishak Bin Yunus (COW 4)

Salient Facts

[6] Langkawi Island, is where the Company operates a vacation resort with a boarding jetty for cruise ships known as Resort World Langkawi.

[7] The Claimant was employed with the Company effective 17 February 1998 as a Purchasing Executive with a monthly salary of RM2,500.00 and thereafter was promoted to Special Project Executive on 1 October 2000. Pursuant to a Promotion of Employment letter dated 15 October 2010, he was then promoted to Safety & Security Manager which he held as his last position in the Company at the time of his dismissal with last drawn salary being RM5,743.00.

[8] Sometime on 6 December 2019, based on the tip off by two officials of Langkawi Taxi Association (the Association), one Encik Mohd Bunyamin Bin Abd Rahman (COW 1) and one Encik Luqman Bin Adzahar ("Luqman"), it was brought to the Company's attention that the Claimant had been receiving monies from the Association for services rendered by the Resort security personnel in taking over the duties of the personnel from Jabatan Sukarelawan Malaysia (RELA). The Company then made enquires to probe into these unauthorised payments allegedly made by the Association to the Claimant and this culminated into a full scale investigation pertained to the allegations levelled against the Claimant. As the investigation progressed, a show cause letter dated 17 February 2020 was issued to the Claimant requiring him to render his written explanation on ten (10) allegations made out against him pertaining to the unauthorized collection of monies from the Association. Dissatisfied with the Claimant's reply, the Company suspended the Claimant vide letter dated 4 March 2020 pending inquiry of the allegations of misconduct against him. Pursuant to a notice of domestic inquiry dated 5 March 2020, a domestic inquiry ('DI') was convened on 11 March 2020 in which the DI panel found the Claimant guilty of the allegations made against him and on the basis of that finding, the company terminated his service vide dismissal letter dated 9 April 2020 with immediate effect.

[9] The Claimant however, in his Statement of Case, denies any breach of express and/or i