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2018 MarsdenLR 2671
INDUSTRIAL COURT KUALA LUMPUR
MOHAMAD ALI PIAH ABU GHAYAM – Appellant
Versus
PERUSAHAAN OTOMOBIL NASIONAL SDN BHD – Respondent
Award No: 617 Of 2018 [Case No: 3/4-684/15]
Chronic absenteeism without sufficient justification constitutes just cause for dismissal, especially when the employer has provided opportunities for improvement.
Headnote:The function of the Industrial Court under s 20 of the Act is to establish whether the misconduct by the employer has been proved and if so, whether it justifies dismissal. The Claimant, employed for 20 years, was dismissed for chronic absenteeism without just cause. The evidence indicated the Claimant had not complied with the necessary attendance policy, including the absence of supporting documentation for medical leave. The Court concluded that dismissal was warranted based on established misconduct and failure to improve attendance despite being given multiple opportunities to do so. Consequently, the verdict was that the Claimant's dismissal was justifiable, resulting in a dismissal of the claim.
| Table of Content |
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| 1. the court evaluated the claimant’s history of attendance and allegations of misconduct. (Para 1 , 2 , 3 , 4 , 5) |
| 2. the company’s internal inquiry process and findings are detailed. (Para 6 , 9 , 10 , 11 , 12 , 13) |
| 3. explores the role of the industrial court in dismissal cases. (Para 7 , 8) |
| 4. the claimant provided explanations for his absenteeism. (Para 15 , 16 , 17) |
| 5. evidence was evaluated regarding the justifications for the claimant’s absences. (Para 18 , 19 , 20 , 23 , 24 , 25 , 26) |
| 6. evidence evaluation regarding attendance and misconduct. (Para 21) |
| 7. the court concluded the dismissal was justified, considering circumstances and company policies. (Para 27 , 28 , 29 , 30) |
[1] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 20 October 2014.
Facts
[2] The Company was established in 1983 and is Malaysia's national automotive manufacturer The Claimant commenced employment with the Company on 17 November 1994 as an operator At the time of his dismissal, he was a production worker in the Engine and Transmission Department. His last drawn salary was RM1,827.00 a month.
[3] Vide a show cause letter dated 9 July 2014 (pp 31 and 32 of the Company's Bundle of Documents (COB)), the Claimant was required to explain among others, his absence from work without the permission of his supervising officer The Claimant vide his letter dated 14 July 2014 (p 33 of COB) replied to the show cause letter on the two (2) allegations. The Claimant alleged, amongst others, that there were communication issues which had led to a delay in informing his supervisor of his absence, there was no credit in his mobile phone and his child was suffering from Down Syndrome.
[4] The Company did not find the Claimant's explanations satisfactory and acceptable. Vide a letter dated 23 July 2014 (pp 37 and 38 of COB), the Company gave him notice of a domestic inquiry to be held. There were two (2) charges in the notice and the Company requested the Claimant to attend the domestic inquiry on 12 August 2014 to answer to the allegations. The domestic inquiry was later postponed to 14 August 2014 due to the unavailability of the Claimant.
[5] On 14 August 2014, the Claimant failed to attend the domestic inquiry without giving any explanation to the Company. The domestic inquiry panel proceeded with the inquiry in his absence but with the Claimant's Union representative in attendance. The DI panel found the Claimant guilty of the two charges after the inquiry was conducted. Pursuant to the proceedings of the domestic inquiry and after the report of the DI panel was prepared, the Company dismissed the Claimant with immediate effect on 20 October 2014.
[6] The two charges preferred against the Claimant which he was found guilty of are as follows:
"Tuduhan 1
Pada 23 Jun 2014, 26 Jun 2014, 27 Jun 2014, 3 Julai 2014 dan 4 Julai 2014 anda telah gagal melapor diri bertugas tanpa terlebih dahulu mendapat kelulusan daripada Penyelia anda.
Juga tiada dokumen untuk ketidakhadiran pada 18 Jun 2014.
Tindakan anda seperti di atas telah melanggar Peraturan Kerja PROTON Kategori 1, Perkara 15: Ponteng kerja tanpa sebarang alasan/sebab yang munasabah.
...
Tuduhan 2
Pada 19 Jun 2014 sehingga 2 Julai 2014 anda telah mendapatkan rawatan di klinik-klinik berdaftar Syarikat yang berlainan sebagai alasan ketidakhadiran bertugas anda pada 19 Jun 2014 sehingga 2 Julai 2014. Rekod sijil-sijil cuti sakit anda adalah seperti berikut:-
Berdasarkan paten atau "trending" cuti sakit (MC) anda, kami merumuskan bahawa anda telah melawat tiga (3) panel klilik yang berlainan sebanyak dua (2) kali tiap satu klinik dalam jangka masa tersebut.
Tindakan anda seperti di atas dianggap dengan sengaja tidak hadir bertugas dengan mendapatkan sijil cuti sakit daripada klinik-klinik yang berlainan. Tindakan anda itu turut telah melanggar etika dan gagal menjalankan tugas serta tanggungjawab anda.".
The FunctiOn Of The Industrial
