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2025 MarsdenLR 693
INDUSTRIAL COURT KOTA KINABALU
SYLVIA BENJAMIN – Appellant
Versus
CELCOM MOBILE SDN BHD – Respondent
Award No: 387 of 2025 [Case No: 17/4-95/22]
An employer must prove just cause for dismissal and adherence to procedural fairness; dismissal must be proportional to the misconduct effectively established.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee for misconduct - The Claimant was dismissed for processing registrations without customer presence using MyKad images, violating company policies - The Company argued the dismissal was lawful; the Claimant contended wrongful termination without cause. (Paras 1-2, 9, 31-32)
(B) Burden of Proof - It is incumbent on the employer to prove just cause for dismissal; an employer must discharge this burden convincingly. (Paras 15-18)
(C) Procedural Fairness - Failure to conduct a Domestic Inquiry or issue a show cause letter is a significant factor but may be rectified by a hearing before the Industrial Court. The absence of these does not automatically void the dismissal. (Paras 31-34)
(D) Misconduct Established - The Court found the Claimant had committed misconduct as defined in industrial jurisprudence, breaching company policies leading to dismissal. (Paras 49-51) (E) Proportionality of Punishment - Dismissal was deemed too severe; alternative disciplinary actions should have been considered given the Claimant's long service and clean record. (Paras 53-60) (F)
Result: The dismissal was without just cause or excuse; the Claimant awarded total compensation of RM128,040.00 with 8% interest. (Paras 66, 74)
| Table of Content |
|---|
| 1. reference and background of dismissal (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. claims of fair/unfair termination (Para 9 , 10) |
| 3. burden of proof and procedure for dismissal (Para 11 , 12 , 13 , 14 , 15) |
| 4. claimant’s perspective on termination (Para 28 , 29 , 30) |
| 5. requirement for domestic inquiry (Para 31 , 32 , 45) |
| 6. court's findings of misconduct (Para 48 , 49 , 52) |
| 7. monetary award distribution and rationale (Para 74) |
A. Reference
[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of Sylvia Benjamin (hereinafter referred to as "the Claimant") by Celcom Mobile Sdn Bhd (herein referred to as "the Company").
B. Preface
[2] This Ministerial reference required this Court to hear and determine the Claimant's complaint of dismissal by the Company with effect from 23 June 2021.
[3] The Claimant commenced her employment effective 19 June 2000 with the Company under a letter of appointment dated 13 June 2000 as a Kerani Am. The Claimant's last post in the Company was as a Retail Associate at Bluecube, 1Borneo Kota Kinabalu. At the time of dismissal, the Claimant's last drawn salary was RM3,880.00, including monthly fixed allowances.
[4] At all material times, the Claimant's duties and responsibilities as a Retail Associate were as follows:
(a) Conducting product demonstrations. Execution of retail operations activities and application of effective sales techniques to understand customer needs and promote relevant products and services ie sales, servicing and administration at outlets and comply with the guidelines, policies, procedures and Service Level Agreements (SLAs).
(b) Create conversations and engage with the customers to convert into sales opportunities (postpaid/prepaid registrations, devices, VAS and accessories, etc).
(c) Result-driven and stay up-to-date with the product features and maintain retail outlet visual appearance in high standards.
(d) Professionally and accurately handle customers' enquiries and requests by applying good knowledge of modern tools. Policies and processes. Execute and adhere to retail outlet and service impression as well as service mannerism guidelines as per company's direction.
(e) Achieve desirable Net Promoter Score (NPS) by providing exceptional service to the customers. Providing customers with advisory. Product ownership experience and good after sales support.
(f) Resolve and update customers' enquiries and complaints and the service is quick and efficient to ensure maximum customer satisfaction by taking ownership of customers' issues.
(g) Involve in special events or outside sales and servicing initiatives ie device launching as set by the management and execute departmental improvement initiatives at the outlet level.
(h) Provide continuous and positive feedback to Retail Manager/ Retail Senior Manager on operations and other relevant matters for improvement purposes.
(i) To maintain accuracy of transactions, inquiries and complaints to meet required Key Performance Indicators (KPIs) thereby increasing customers' trust and satisfaction.
(j) Execute departmental improvement initiatives at the outlet level and perform any other duties as directed by the superior.
[5] This present case relates specifically to the alleged misconduct by the Claimant during her employment as a Retail Associate of the Company. The allegations of misconduct against the Claimant are as follows:
1. Between 11 October 2020 and 13 January 2021, the Claimant had processed 19 Postpaid registrations via Celcom Pulse Optical Character Recognition ("OCR") without the customers' presence by using MyKad images captured from photocopied paper and/ or images displayed on another device or smartphone screen.
2. Between 11 October 2020 and 13 January 2021, the Claimant had registered the same customers multiple times using the same MyKad images captured via Celcom Pulse OCR for the Family
