AWARD

Indra Ayub:

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 Grace Yong Yee Fui and Ha Shzau Fah (hereinafter referred to as "the claimants") by Hock Sheng Resources Sdn Bhd (herein referred to as "the company").

B. Preface

[2] This reference required this court to hear and determine the claimants' complaint of dismissal by the company with effect on 1 March 2022.

[3] The claimants vide a letter dated 11 March 2024 applied for these cases [17/4-1299/22 — Grace Yong Yee Fui v. Hock Sheng Resources Sdn Bhd and 17/4-1300/22 — Ha Shzau Fah v. Hock Sheng Resources Sdn Bhd] to be consolidated and tried jointly as these cases involve the same company, witnesses, documents and have similar facts and issues. As there was no objection by the Representative for the company, the application by the claimants was granted by this court vide an Interim Award No 563/2024 [Grace Yong Yee Fui v. Hock Sheng Resources Sdn Bhd] and Interim Award No 564/2024 [Ha Shzau Fah v. Hock Sheng Resources Sdn Bhd] dated 23 April 2024.

[4] The company is a sub-subcontractor that manages construction and project management with operation in Kota Kinabalu Sabah.

[5] Grace Yong Yee Fui ("the 1st claimant") commenced her employment effective 1 September 2017 with the company as a Finance cum Account Manager. The 1st claimant's last post in the company was as an Assistant General Manager. At the time of dismissal, the claimant's last drawn salary was RM5,500.00.

[6] Ha Shzau Fah ("the 2nd claimant") commenced his employment effective 1 September 2017 as an Account Executive with the company. The 2nd claimant's last post in the company was as an Account Executive. At the time of dismissal, the 2nd claimant's last drawn salary was RM3,500.00.

[7] This present case relates specifically to the alleged misconducts by the claimants during their employment with the company.

[8] The allegation of misconducts against the 1st claimant that leads to her summary dismissal are as per the Show Cause Letter dated 7 February 2022 as follows:

a. She purportedly has other employment with Oriental Richsmart Sdn Bhd.;

b. She purportedly has other employment with Dato' Sri Loh Ho Joo;

c. She purportedly has represented Dato' Sri Loh Ho Joo in dealing with other agents or associates of Hock Sheng Resources Sdn Bhd via WhatsApp;

d. That her actions at (a) to (c) have gone against cl 7 of the Employment Letter dated 1 September 2017

e. She purportedly has divulged company confidential business information to other employment with Oriental Richsmart Sdn Bhd; and

f. She purportedly has failed to declare and notify to Hock Sheng Resources Sdn Bhd that her other employment would have conflict of interest.

[9] The company's second Show Cause Letter dated 17 February 2022 signed by one Chong Pui Ting addressed only to the 1st claimant mirrors the same allegations as the first letter dated 7 February 2022. There was no show cause letter ever issued against the 2nd claimant.

[10] The company decided to terminate the claimants' employment with immediate effect vide a Letter of Termination dated 1 March 2022 with the following reasons:

a. impersonating as another company's staff;

b. Thieving information through impersonating identity;

c. Make police reports to defile Chong Pui Ting position as director in Hock Sheng Resources Sdn Bhd.

[11] The claimants contended that they were unlawfully terminated and that the termination of their services by the company was without just cause or excuse.

[12] The company however denies that the termination of the claimants' employment were unlawful. The company prays for the dismissal of the claimants to be upheld and for the claimants' claim to be dismissed.

C. Duty Of The Industrial court

[13] The Federal court in Milan Auto Sdn Bhd v. Wong Seh Yen; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 49 held that the function of the Industri