Termination of employment upheld for unauthorized computer access under Industrial Relations Act 1967.

[1] This reference emanates from a complaint made by WONG SAI CHOONG ("the Claimant") who was terminated from his employment with SOUTH ISLAND GARMENT SDN BHD ("the Respondent ") with effect from the 21st of May 2015.

[2] The Claimant being dissatisfied with the circumstances under which he was terminated from his services with his then employer made representations to the Director General for Industrial Relations, Malaysia; under s 20(1) of the Industrial Relations Act 1967 ('the Act').

[3] Flowing from the complaint, the Honorable Minister for Human Resources made a Ministerial Reference dated the 15th of September 2015 directing this Court to inquire into to complaint.

The Hearing

[4] The hearing of this matter commenced on the 25th of October 2017 and the matter was completed on the 7th of May 2018 after several postponements. The solicitors for both parties were then directed by this Court to file written submissions; to which they duly adhered to. The Court wishes to place on record its appreciation to the learned representative and counsel for their assistance to this Court.

Brief Facts Of The Case The Claimant's Pleaded Case

[5] The Claimant pleaded that he commenced employment with the Respondent on the 6th of November 2008 as a Production Officer On or about the 5th of May 2015, the Claimant was issued with a letter to show cause why disciplinary action should not be taken against him on various charges of misconduct. The Claimant duly replied the letter by way of his letter dated the 6th of May 2015 denying the accusations. The Respondent then convened a Domestic Inquiry on the 20th of May 2015 and the Claimant was dismissed from employment with effect from the 21st of May 2015.

The Respondents' Pleaded Case

[6] The Respondent took the position that the Claimant had in fact joined the company as an IT Officer initially and was later appointed as a Production Officer on the 4th of February 2014. In or around the 23rd of April 2015 the management of the Respondent suspected that there was an unauthorized access in the computer system pertaining to some quality data from someone within the organization. The Respondent then conducted an internal investigation to determine the source of the breach. Whilst investigating, the Respondent found that the Claimant was the person to be responsible. It then proceeded to take the necessary disciplinary action against the Claimant resulting in the latter's dismissal.

The Issue

[7] It is common ground that the Claimant was terminated of his services vide the Letter dated the 21st of May 2015. As such, it is now for the Court to determine if the termination was with just cause or excuse.

The Law

[8] It is trite law that function of the Industrial Court in dealing with a reference under s 20 of the Industrial Relations Act, 1967 is to determine if the misconduct complained of resulting in the dismissal of an employee has been established and that such a dismissal was with just cause or excuse. In Milan Auto Sdn Bhd v. Wong Seh Yen , 1995 MarsdenLR 293 the Federal Court had stated the following:

"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s 20 is two-fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal. Failure to determine these issues on the merits would be a jurisdictional error.."

The Burden

[9] Where a party is called upon to