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2025 MarsdenLR 2356
INDUSTRIAL COURT MALAYSIA
Abdul Hadee Bin Ahmad – Appellant
Versus
Tenaga Nasional Berhad – Respondent
10/4-1504/22
An employer bears the burden of proving misconduct on a balance of probabilities. Hearsay evidence is inadmissible without cross-examination of the witness, and the failure to call a material witness warrants an adverse inference, invalidating a dismissal if the misconduct remains unproven.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal from employment - Just cause or excuse - Burden of proof upon employer - Standard of proof on balance of probabilities.
(B) Evidence Act 1950 - Section 114(g) - Adverse inference - Failure to produce material witness - Effect on employer's case.
(C) Evidence - Hearsay - Inadmissibility of evidence where maker not available for cross-examination - Weight of evidence - Principles of natural justice in domestic inquiries.
(D) Remedies - Compensation in lieu of reinstatement - Factors to consider - Loss of industrial harmony and acrimonious relationship. (Paras 26, 27, 31, 33, 41, 65, 67, 72)
Facts of the case:
The claimant was dismissed from employment following internal disciplinary proceedings alleging serious misconduct involving soliciting money from a contractor. The claimant contended that the dismissal was without just cause or excuse, asserting that the evidence relied upon by the employer, including witness statements from an individual who did not attend the inquiry, was hearsay and unsubstantiated. The employer maintained that the evidence was sufficient to justify termination for a breach of professional integrity.
Findings of Court:
The court found that the employer failed to prove the alleged misconduct on a balance of probabilities. The reliance on hearsay and the failure to call the material witness who was the primary source of the allegations necessitated the drawing of an adverse inference. The employer failed to establish the allegation, rendering the dismissal without just cause or excuse.
Issues: The main issues were whether the employer had established the alleged misconduct to justify the dismissal and whether the failure to call a material witness rendered the domestic inquiry process and subsequent termination procedurally and substantively unfair.
Ratio Decidendi: The employer bears the legal and evidential burden of proving misconduct on a balance of probabilities. Hearsay evidence is inadmissible to prove the truth of the allegations if the witness is not produced for cross-examination. Since the primary witness to the alleged misconduct was not called without sufficient justification, an adverse inference was drawn against the employer, confirming that the grounds for dismissal were not proven.
Result: Claim allowed. The court ordered the payment of compensation in lieu of reinstatement.
| Table of Content |
|---|
| 1. establishing the factual background and procedural history of the employment termination. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 23 , 24 , 25) |
| 2. parties' conflicting contentions regarding allegations of misconduct, procedural fairness, and wrongful dismissal. (Para 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 3. defining the legal test and employer's burden of proof in industrial dismissal cases. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34) |
| 4. evaluating evidence sufficiency, hearsay, and adverse inferences in proving misconduct. (Para 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64) |
| 5. determining appropriate remedies including compensation and backwages for unfair dismissal. (Para 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76) |
This is a reference by the Director General of Industrial Relations Malaysia dated 07/11/2022 which was received by the Industrial Court of Malaysia on 10/11/2022 pursuant to Section 20(3) of the Industrial Relations Act 1967 in relation to a dispute of alleged unfair dismissal of ABDUL HADEE BIN AHMAD (hereinafter to be referred as “the Claimant”) by TENAGA NASIONAL BERHAD (hereinafter to be referred as “the Company”) on 22/02/2022.
AWARD
Factual Backgrounds:
[1] The Claimant was offered a position in Tenaga Nasional Berhad (TNB) as a “Juruteknik Tingkatan Biasa “B” Gred TT09” which was effective from 24/09/2012 (pages 4-11 of COB-1). Thereafter, the Claimant accepted the Company’s offer and commenced work on 24/09/2012 (page 12 of COB-1) with basic salary of RM1,400.00/ and in addition he also received an allowance of RM85.00 for electricity and RM225.00 for transport. The Claimant was confirmed in his role in the Company pursuant to a letter of confirmation dated 28/10/2013 (page 13 of COB-1) from the Company.
[2] Subsequently, the Claimant was placed in Unit Meter, Jabatan Distribution Network, Bahagian Pembahagian vide a letter dated 19/01/2017 (page 14 of COB-1) and he reported to Engineer (Metering LV – Ipoh/Ulu Kinta/Batu Gajah). Thereafter, the Claimant was placed in the Distribution Network Department in Bidor, Perak as a “Juruteknik Tingkatan Biasa (Meter OPC & Service)” affective 02/10/2017. Pursuant to a letter dated 06/11/2017 he was promoted to “Juruteknik Tingkatan Biasa “A” Gred TT10” effective from 24/09/2017.
[3] The Claimant was terminated affective from 22/02/2022 by the Company following a domestic inquiry that was convened in dealing with the charges levelled against him (pages 81-82 of COB-1) with his last monthly salary of RM2,870.00.
The Sequence of Event Led to The Claimant’s Termination:
[4] On 16/11/2020, through the Whistle Blowing Information System (WBIS) the Company received a complaint that the Claimant has been demanding money every month from a contractor namely ZG Engineering Sdn. Bhd. (hereinafter to be referred as “ZG Engineering”) through Abdul Bari bin Abdul Khadir to approve a Worksheets for Completed Work (Lembaran Kerja Siap), Worksheet for Small Works (Lembaran Kerja-Kerja Kecil) and to use the Live Line Certificate belonging to one Muhammad Zawahir bin Abdul Rahim (COW-3) who was then “Juruteknik Tingkatan Kanan” with the Company.
[5] Hence, an internal investigation was conducted to investigate the veracity of the complaint against the Claimant. The Internal Investigation Report dated 14/04/2021 (pages 21-27 of COB-1) revealed evidence supporting the allegations that the Claimant had solicited money from ZG Engineering. As a result, a Show Cause Letter dated 16/06/2021 (pages 74-75 of COB-1) was issued by the Company for the Claimant to provide his response and reasons as to why disciplinary action should not be taken against him within seven (7) days from 16/06/2021. Being dissatisfied with the Claimant’s explanation, the Company issued him a Charge Letter dated 23/08/2023 charging him with
