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2026 MarsdenLR 1303
INDUSTRIAL COURT OF MALAYSIA
CASE NO.: 8/4-323/25
BETWEEN
LEO GUYANG ANAK METHEW DANA
(CLAIMANT)
AND
AXION SOLUTION SDN BHD
(RESPONDENT)
AWARD NO.: 287 OF 2026
Before : Y.A. TUAN MOHD TAUFIK BIN MOHD@MOHD YUSOFF
Venue : Magistrate Court 2 Bintulu, Sarawak
Date of order of Reference : 04.02.2025
Date of receipt of order of reference : 17.02.2025
Dates of mention : 21.03.2025,12.06.2025,02.07.2025
Dates of hearing : 13.11.2025
For the Appellants/Petitioners: Jenn Kiew Sui Ning
For the Respondents: Arthur Lee Cheng Chuan, Hii Yew Hing
Employer must prove dismissal of probationary employee for misconduct with convincing contemporaneous evidence on balance of probabilities; absence thereof, plus denial of right to be heard without show cause or inquiry, renders dismissal unfair.
Headnote:(A) Industrial Relations Act 1967 - subsections 20(3), 20, 30(5) - Unlawful dismissal - Probationary employee on fixed-term contract - Allegations of threatening behaviour, unfounded accusations, insulting remarks towards superiors - Employer failed to prove misconduct on balance of probabilities due to lack of contemporaneous documentary evidence, contradictions in witness testimony, no record in personnel file - No show cause letter or domestic inquiry - Right to be heard not afforded - Dismissal without just cause or excuse - Backwages for unexpired contract period calculated from dismissal date. (Paras 11-15, 41-90)
(B) Role of court - Determine if misconduct established and constitutes just cause - Burden on employer to produce convincing evidence - Standard of proof balance of probabilities - Reasonable test: what reasonable person considers fair and proper. (Paras 11-15)
(C) Employer-employee relationship - Fiduciary in nature - Implied term not to destroy trust and confidence - Employee must act faithfully in employer’s interest. (Paras 17-19)
(D) Probationary employees - Protected against unjust dismissal - Same principles as permanent employees apply. (Paras 42-43) (E) Abusive language - Serious insubordination warranting dismissal if proven - But requires good and convincing proof. (Paras 44-46)
Facts of the case:
Employee commenced employment on fixed-term contract as QA/QC engineer at monthly salary of RM13,000, with 3-month probation. Deployed to client project. Dismissed after approximately 1.5 months via letter citing threats, accusations, insults to colleagues, client, company. Employee alleged dismissal due to mistaken identity over employee complaints referendum on issues like PPE, transportation, allowances.
Findings of Court:
Backwages: RM143,000 (RM13,000 x 11 months from November 2024 to September 2025) plus RM4,500 balance for October 2024, total RM147,500 payable through advocates.
Issues: Whether employer proved just cause for dismissal; adequacy of evidence for alleged threats; compliance with right to be heard; connection to employee complaints.
Ratio Decidendi: Employer bears burden to prove misconduct with convincing, contemporaneous evidence; oral testimony unsupported by documents or records insufficient; witness contradictions fatal to credibility; failure to issue show cause letter or conduct domestic inquiry breaches procedural fairness; probable true reason for dismissal was resentment over complaints, not proven misconduct.
Result: Claim allowed.
Representation
For Claimant : Jenn Kiew Sui Ning of Messrs Kiew & Partners
Advocates
For Respondent : Arthur Lee Cheng Chuan & Hii Yew Hing of Messrs
Arthur Lee, Lin & Co Advocates.
AWARD
Reference
This is an order of reference dated 03.02.2025 by the Director General of Industrial Relations Department pursuant to subsection 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of LEO GUYANG ANAK METHEW DANA (the claimant) by AXION SOLUTION SDN BHD (the respondent) on 19.10.2024.
Introduction
[1] This is a claim for unlawful dismissal of the claimant against the respondent (“the company”) without just cause or excuse.
The documents
[2] The pleadings, documents and witness statements that have been relied on by the parties are as follows:
a) Statement of Case dated 17.04.2025;
b) Statement in Reply dated 20.05.2025;
c) Rejoinder dated 17.06.2025;
d) The Company’s Bundle of Documents - COB1;
e) The Claimant’s Bundle of Documents – CLB1;
f) The Claimant’s Bundle of Documents – CLB2;
g) Witness statement of Lee Han Siang (COWS1);
h) Witness statement of Yvone Sia Ai Chen (COWS2); and
i) Witness statement of Leo Guyang anak Methew Dana (CLWS1).
[3] The company has called the following witnesses:
a) Lee Han Siang (COW1); and
b) Yvone Sia Ai Chen (COW2).
[4] The claimant was the sole witness who testified in court to prove his case.
Brief facts of the case
[5] Pursuant to a Letter of Employment dated 26.08.2024, on 02.09.2024, the claimant started his employment, on fixed-term contract, with the company, as QA/QC Mechanical/Piping Engineer with a salary of RM13,000.00 per month.
[6] In this case, the claimant was employed with the company after COW1 became aware of the condition of the claimant who was unemployed.
[7] The company has a client, SGC E&C (M) Sdn Bhd (“SGC”), a reputable EPCC contractor, whereby, the company’s task is to supply manpower to SGC. Under the agreement, the company is to recruit and deploy qualified personnel for SGC’s projects.
[8] The company then sent the claimant to serve at SGC’s Bintulu project after SGC found that the claimant was suitable for the position required by the SGC. The claimant’s employment came with a condition of three (3) months probationary period.
[9] On 19.10.2024, the claimant was issued with a letter from the company terminating him from his employment. The content of the letter showed that the termination was made based on several incidents involving threatening behaviour, unfounded accusations and insulting remarks directed to his colleagues, client and company.
[10] The claimant was still on probationary period when he was dismissed.
Roles and functions of the court
[11] It is a trite law that the role of the court 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: see Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd [1988] 1 CLJ Rep 298; Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449; K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ 347.
[12] The burden of proof lies with the employer in proving that he has just cause or excuse for making the decision and not for the employee to prove otherwise: see Ireka Construction Berhad v Chantiravathan Subramaniam James [1995] 2 ILR 11 (Award No. 245 of 1995). The employer must prove the employee guilty, by producing convincing evidence that the employee committed the offence or offences the employee is alleged to have committed for which he has been dismissed, and it is not the employee who must prove himself not guilty (see Stamford Executive Centre v. Dharsini Ganesan [1986] 1 ILR 101 (Award No. 263 of 1985).
[13] As regards the standard of proof to prove the case is on a balance of probabilities that is the civil standard, as decided by the Court of Appeal in the case of Menara Panglobal Sdn Bhd v Arokianathan Sivapiragasan [2006] 2 CLJ 501 and
