In dismissal cases, the employer carries the burden of proving misconduct on a balance of probabilities. The court conducts a de novo hearing, unbound by internal disciplinary findings, and a failure to substantiate allegations with consistent, cogent evidence renders a dismissal without just cause or excuse.

Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Termination of employment - Misconduct - Burden of proof. It is an established principle that in a dismissal case, the employer must produce convincing evidence that the employee committed the alleged offence. The burden of proof lies squarely on the employer to establish, on a balance of probabilities, that the dismissal was with just cause or excuse. (Paras 10, 12, 13)

(B) Domestic Inquiry - Findings of - Not binding on court. The role of the court is to conduct a hearing de novo. Findings of an internal domestic inquiry are not binding upon the court, which is tasked with the vindication of an employee's rights based on evidence presented before it. (Paras 16, 17, 54)

(C) Evidence - Requirement for consistency. Allegations of document fabrication and non-compliance with operational procedures must be supported by cogent evidence. The employer’s failure to call material witnesses, combined with significant inconsistencies in evidence regarding the timeline of events, renders the allegations unsubstantiated. (Paras 40, 53, 54)

Facts of the case:
The claimant was terminated from his position following allegations of document fabrication, improper handling of cash collections, and providing false declarations during the recruitment process. The employer relied on findings from an internal disciplinary proceeding to justify the dismissal. The claimant disputed the allegations, and the matter was referred to the court to determine the validity of the termination.

Findings of Court:
The employer failed to discharge the burden of proving that the claimant committed the stated acts of misconduct. The court found that the employer’s witnesses provided inconsistent testimony, and no documentation was produced to verify the alleged financial mismanagement or procedural breaches. The internal inquiry findings were deemed inconclusive.

Issues: The main issues were whether the claimant’s dismissal was justified by the allegations of misconduct and whether the findings of the internal disciplinary proceedings were binding upon the court.

Ratio Decidendi: The dismissal was without just cause or excuse because the employer failed to adduce sufficient, credible evidence to prove the alleged misconduct on a balance of probabilities. The court, as a tribunal of first instance, is not bound by the employer's internal findings and must reach its own determination based on the totality of evidence presented during the hearing.

Result: The dismissal was found to be without just cause; the employer was ordered to pay compensation to the claimant.

REFERENCE :

This is a reference by the Director General of Industrial Relation made
under subsection 20(3) of the Industrial Relations Act 1967 arising out of the
dismissal of JAMAL SHAHID GURDIAL BIN ABDULLAH (hereinafter
referred to as “the Claimant”) by TRANSPACC PROPERTY
MANAGEMENT SDN BHD (hereinafter referred to as “the Company”) on
31.03.2023.

AWARD

1) The Claimant was offered the position of Building Manager by
the Company vide a letter of offer dated 13.04.2022 on a
three (3) months’ fixed term employment contract effective from
05.05.2022 and expiring on 06.08.2022.

2) Pursuant to a Staff Performance Appraisal conducted on the
Claimant on 03.08.2022, the Claimant was confirmed in his
position as Building Manager effective 04.08.2022 and was
given an increment of RM500.00, thereby increasing his monthly
salary to RM5,500.00.

3) As the Building Manager of the Company, the Claimant’s job
functions includes, but not limited to :

(i) To ensure all cash collections are banked in on daily basis;

(ii) To ensure daily collections are updated daily and accurately
according to management format;

(iii) To ensure all collections are banked in within 24 hours from
date of collection;

(iv) To ensure administrative clerks update the daily collection into
property butler system on daily basis;

(v) To ensure monthly reports are ready 1 week before the
monthly meeting;

(vi) To reply to all WhatsApp messages posted by committee
members within 10 minutes;

(vii) To attend and reply to all emails on same business day. If
unsure of reply, to check with management;

(viii) To update daily on WhatsApp the status of project based on
format determined by management;

(ix) To update all tasks regularly on a daily basis into property
butler system;

(x) To be responsible for onsite staff’s work conduct, attendance
and performance;

(xi) To be in control of all issues affecting the project managed by
the manager;

(xii) To ensure working relationship with committee members are
smooth and cordial at all times;

(xiii) To ensure all quotations must be referred to operations
director before submitting to committee members;

(xiv) To ensure site duties are not affected due to absence or leave
application of any site staff; and

(xv) To inform management of any absentees or emergency leave
taken by any site staff.

4) On 07.12.2022, the Claimant was instructed to be posted to
Case Idaman Condominium (CIC) to be in charge of day to
day operational requirements for the Management of CIC.

5) Sometime in February 2023, the Company contends that the
Area Manager of CIC had received complaints from the
Management Committee that the Claimant had violated the
Company’s Standard Operating Procedure ( SOP) relating to
cash collection policies and missing properties from CIC
management office.

6) The complaints led to the Claimant’s suspension from his
duties on 03.03.2023 for two (2) weeks with full pay to facilitate
an investigation into the complaints. The Company contends
that during a counselling session held on 07.03.2023, the
Claimant admitted to improper handling of the cash received
from the CIC residents and agreed that his salary for February
2023 be deducted.

7) This was followed by the issuance of a show cause letter to
the Claimant by the Company dated 10.03.2023 which
contained the following three (3) charges :

1) Improper processes applied, in the course of selecting and
recommending third party contractors.

1.1. Quotations received from third party contractors were
re-drafted and presented to the MC concerned, which was
not accepted, and upon following the SOP to present the
same to Transpacc’s Operations Director later, the re-drafted quotations were found to contain discrepancies that
tantamount to gross negligence on your part as Building
Manager:

a. One of the re-drafted quotations contains full details of
the contractor, whilst the rest were submitted without full
details, e.g. Company Addr

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2026 MarsdenLR 1297

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