Employer failed to prove conflict of interest from employee's shareholding in competitor or insubordination from refusing premature handover instructions; dismissal unjust warranting full backwages and compensation in lieu of reinstatement.

AWARD

Reference

This is an order of reference dated 28.01.2022 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 WONG YII FEN (the claimant) by HOMELITE DEVELOPMENT SDN BHD (the respondent) on 04.06.2021.

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 11.08.2022;

b) Statement in Reply dated 27.09.2022;

c) Rejoinder dated 05.12.2022;

d) The Company’s Bundle of Documents – COB1;

e) The Company’s Supplementary Bundle of Documents – COB2;

f) The Claimant’s Bundle of Documents – CLB1;

g) The Transcript of Board Meeting – Exh CL1;

h) Witness statement of Kiu Kok Ik (COWS1);

i) Witness statement of Kiu Kok Ik (COWS1(A));

j) Witness statement of Wong Yii Feng (CLWS1); and

k) Witness statement of Wong Shin Kah (CLWS2).

[3] The company has called one witness i.e. Kiu Kok Ik (COW1).

[4] The claimant called two (2) witnesses to testify in court and they are:

a) Wong Yii Feng (CLW1); and

b) Wong Shin Kah (CLW2).

Brief facts of the case

[5] On 01.06.2005, the claimant started her employment with the company as a clerk with a gross salary of RM1,000.00.

[6] The company was incorporated sometime on 20.02.2004 and it involves in the business of projects/housing development and contract works for the past 20 years and is reputable in pioneering development and construction projects and has diverse range of properties including semi-detached houses, terraces, townhouses and condominiums.

[7] The company is part of Homelite Group (“the Group”), whereby the Group consists of a total of 16 companies which includes its subsidiary, associate and related companies.

[8] The claimant has become a permanent employee with the company with the designation of a Marketing Executive on 05.01.2009. Her salary was adjusted to RM2,500.00.

[9] On 22.02.2011, she was promoted to a position as a Human Resource Manager of the company with a monthly salary of RM5,000.00.

[10] Later she was promoted to the position of director of the company with effect from 01.10.2016 with a new salary of RM7,000.00 plus a director fee of RM1, 500.00. Her new scope of work was as the Head of Operations in the Developer’s Division (Miri). At the same times she was appointed as directors for sixteen (16) sister companies related to the company.

[11] The claimant’s brother CLW2 used to work with the company. However, he resigned from the company in 2020 before the dismissal happened.

[12] On 31.03. 2021, the company received an email from Messrs. Vincent Wong & Co. enclosing a stamped shareholders’ agreement dated 19.03.2021 (“Shelltown SA”) with respect to a company known as Shelltown Development Sdn. Bhd (“Shelltown company”).

[13] Based on Shelltown SA, there are seven (7) shareholders, and they are as follows:

Shareholder	Number of ordinary share	Equity Proportion (%)
Shareholder A	350,000	20.495
Shareholder B	450,000	19.775
Shareholder C	300,000	14.852
Shareholder D	100,000	6.290
Shareholder E	100,000	8.288
Shareholder F	50,000	4.644
Shareholder G	400,000	16.67

[14] The shareholders’ names are as follows:

a. Wong Shin Kah (Shareholder A).

b. Khow Wei Haw (Shareholder B).

c. Wong Yii Fen (Shareholder C).

d. Felicia Jee Siew Fung (Shareholder D).

e. Adeline Pui Geok Mei (Shareholder E).

f. Lim Siaw Vun (Shareholder F).

g. Lau Lik Sing (Shareholder G).

[15] Due to this issue, the Board of Directors (“the Board”), convened a meeting on 06.04.2021, attended by the claimant, seeking explanation from the claimant regarding Shelltown SA.

[16] On 13.04.2021, the company issued a show cause letter highlighting some acts of misconduct allegedly perpetrated by the claimant. At the same time, the company issued a suspensi

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