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2024 MarsdenLR 1973
INDUSTRIAL COURT MALAYSIA
Paul Benjamin a/l Silva – Appellant
Versus
PWB (M) Sdn. Bhd. – Respondent
15(11)/4-349/21
Employers must prove misconduct on a balance of probabilities in dismissal cases. A supervisor’s assault on a subordinate constitutes a fundamental breach of the duty of protection, rendering the employment relationship untenable and providing just cause for summary dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Employment Act - Section 14(1) - Industrial Court duty - Employer's burden of proof - Misconduct - Dismissal - Just cause or excuse - The court’s role in a reference for unfair dismissal is two-fold: to determine if the alleged misconduct occurred and whether that misconduct constitutes a just cause for termination - Employer bears the burden to prove misconduct on the balance of probabilities - A supervisor tasked with oversight carries a duty of protection towards subordinates; physical aggression and assault represent a fundamental breach of this duty, justifying summary dismissal - Workplace violence, regardless of the perceived hierarchy, is inconsistent with employment and warrants sanctions. (Paras 25, 26, 27, 52, 57)
(B) Domestic Inquiry - Procedural fairness - While the court is not strictly bound by internal inquiry findings, it must independently assess whether the tenets of natural justice were observed and whether the disciplinary action taken on the evidence was justified. (Para 24)
Facts of the case:
An individual employed as a supervisor was terminated following allegations of assaulting a subordinate at work sites on two separate occasions. The employee denied the allegations and claimed that no domestic inquiry was held. The employer contended that a domestic inquiry was conducted, the claimant attended, and the findings of guilt were supported by witness testimonies and documentation.
Findings of Court:
The court established that the employer successfully proved, on a balance of probabilities, that the supervisor assaulted the subordinate. The court found that the domestic inquiry was procedurally sound, the claimant was present, and the misconduct was of a nature so serious as to irreparably damage the employment relationship.
Issues: The main issues addressed were whether the employer had established the alleged misconduct by a preponderance of evidence and whether the dismissal was with just cause or excuse in light of the claimant's supervisory duties.
Ratio Decidendi: Physical violence by a supervisor against a subordinate constitutes a severe breach of the duty of care and professional obligation, rendering the employment relationship untenable and justifying summary termination. Employers are mandated to provide a safe working environment, and no internal disciplinary dispute justifies an employee resorting to physical assault as a remedial measure.
Result: Claim dismissed.
| Table of Content |
|---|
| 1. employment background, disciplinary process, and valid termination context. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. disputed domestic inquiry status and court's role in verifying holding of inquiry. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22) |
| 3. industrial court's duty under section 20(3) and burden of proof in dismissal. (Para 23 , 24 , 25 , 26 , 27) |
| 4. evidentiary standard of balance of probabilities for assessing workplace assault. (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47) |
| 5. supervisors' duty of protection and the prohibition of workplace violence. (Para 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64) |
| 6. final adjudication of dismissal with just cause or excuse. (Para 65) |
A. REFERENCE:
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under Section 20(3) of the Industrial Relations Act 1967 (“the IRA 1967”) in respect of the dismissal of PAUL BENJIMEN A/L SILVA (“the Claimant”) by his employer, PWB (M) SDN. BHD. (“the Company”) on 24.08.2020.
B. FACTS
[2] The Company is in the business of providing facilities management services including but not limited to cleaning, pest management, mechanical and electrical services and building maintenance.
[3] By an Employment Letter dated 30.10.2014 (“the Employment Contract”), the Claimant commenced employment with the Company as a Site Supervisor with effect from 15.11.2014.
[4] By a letter dated 30.07.2015, the Claimant was confirmed in his employment as Senior Supervisor after having successfully served his probation, effective 01.08.2015.
[5] Pursuant to a letter dated 13.03.2017, the Claimant was then promoted to the position of Executive I with effect from 01.03.2017. At the time of dismissal, he was holding the same position as Operation Executive I.
[6] On or about 06.08.2020, the Claimant was served with a Notice of Suspension dated 04.08.2020, informing him of the Company’s decision to suspend his work effective from 04.08.2020 until 17.08.2020 pending investigation into a work-related violence involving a worker that was under the Claimant’s supervision. The Claimant’s suspension was further extended to 21.08.2020.
[7] On 14.08.2020, the Company issued a Notice of Domestic Inquiry dated 14.08.2020 to the Claimant, requiring him to be present on 17.08.2020 for domestic inquiry in relation to the allegation of work-related violence involving the Claimant and his subordinate, one Rahman Mohammad Mahbubur (“Mahbubur”) who is a Bangladeshi national. Mahbubur was employed as a cleaner by the Company.
[8] The domestic inquiry proceeded on 17.08.2020 (“the DI”) as scheduled. The Claimant was charged for hitting or assaulting Mahbubur on two separate occasions, namely at Tesco Mall in Puchong (“Tesco Puchong”) and IOI City Mall in Putrajaya (“IOI Putrajaya”). At the end of the DI, the DI Panel unanimously found the Claimant guilty of the charge levelled against the Claimant.
[9] By a letter dated 17.08.2020, the Company informed the Claimant of the finding of guilt by the DI Panel on the charge levelled against him and the Company’s decision to terminate his employment, effective 24.08.2020. The relevant excerpts of the letter of termination are reproduced herein below as follows:
“Dear Mr. Paul Benjimen,
TERMINATION OF EMPLOYMENT
We refer to the Domestic Inquiry held on 17th August 2020 on the specific allegation of misconduct levelled against you involving a work-related violence that involved you and your subordinates.
We have carefully gone through the records of the inquiry, the witness and findings of the Panel of Domestic Inquiry and concur with its findings that on the evidence adduced at the inquiry the charges levelled against you have been sufficiently proved.
Your conduct during that incident:
i. was conduct in the course of your employment engaging in assault a
