Back
2026 MarsdenLR 1825
HIGH COURT MALAYA JOHOR BAHRU
NOOR HISHAM ISMAIL, J
MAJUPADU DEVELOPMENT SDN BHD – Appellant
Versus
KONG KIEK CHING – Respondent
[Civil Appeal No: JA-16A-2-09/2024]
In an unlawful dismissal claim, an employer may rely on evidence of misconduct discovered prior to the termination date, even if not stated in the original show-cause letter, as it reflects the state of mind operational at the time of the decision.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Industrial Court - Admission of evidence - The focus of the enquiry of the Industrial Court under s 20(3) of the Act is premised on matters and events as they occurred at the time of the dismissal - Reasons operating in the mind of the employer, which preceded the decision to terminate, comprise the matters to be considered - Evidence relating to matters discovered prior to the termination should not be expunged for being irrelevant, as they are necessary for determining appropriate relief and contributory misconduct. (Paras 13, 17, 18, 19, 20)
Facts of the case:
The employer terminated the claimant's employment. During the trial for unlawful dismissal, the employer sought to introduce evidence of fraud and embezzlement. The claimant objected on the basis that these allegations were not explicitly stated in the initial show-cause letter. The Industrial Court upheld the objection and ordered the evidence to be expunged, leading to the current appeal.
Findings of Court:
The court found that the employer had discovered the alleged fraud and embezzlement prior to the formal termination date. Consequently, this information was part of the employer's mental state when the decision to dismiss was made. Therefore, the evidence was relevant and should not have been excluded.
Issues: The main issues were whether evidence regarding misconduct discovered by an employer before termination—but not included in the original show-cause letter—is admissible in an unlawful dismissal claim, and whether its exclusion was legally erroneous.
Ratio Decidendi: The legal standard for justifiable dismissal in industrial relations requires that the reasons for termination were operational in the employer's mind at the time of dismissal. Evidence of misconduct discovered prior to the termination is relevant to both the justification of the dismissal and the assessment of contributory conduct, and it is thus improper to exclude such evidence.
Result: Appeal allowed with costs.
| Table of Content |
|---|
| 1. procedural history and dispute regarding admissibility of evidence in industrial court. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. evidence acquired pre-dismissal constitutes a valid factor in termination proceedings. (Para 13 , 14 , 15 , 16 , 17) |
| 3. post-dismissal evidence is inadmissible for justification but relevant for relief/contributory conduct. (Para 18 , 19 , 20 , 21) |
JUDGMENT
The Appeal
[1] This was an appeal from the Industrial Court relating to the decision by the Industrial Court Chairman in not allowing the application by the company/appellant to recall its witness for the purpose of introducing a piece of evidence relating to fraud and embezzlement of money not mentioned in the show cause letter framed against the respondent.
[2] After hearing arguments from both counsel, and upon carefully perusing the Records of Appeal including the Grounds of Judgment prepared by the chairman, this Court allowed this appeal with costs. Consequential thereto, it was also ordered that the chairman shall allow the company to bring in the evidence and to proceed therefrom with the hearing of the claimant's claim in full.
Salient Facts
[3] Vide a letter dated 8 December 2021, the company terminated the claimant's employment.
[4] As a result, the claimant filed a claim for unlawful dismissal against the company in the Industrial Court.
[5] The trial at the Industrial Court began on 24 November 2023.
[6] The company's 1st Witness (COW-1) gave evidence by tendering a witness statement and a supplementary witness statement, which were marked as CO-WS 1 (A) and CO-WS 1 (B) respectively.
[7] The cross-examination of COW-1 was reserved. The trial was then adjourned to September 2024.
[8] When the trial resumed on 10 September 2024, COW-1 was absent due to medical reasons. The company then proceeded to call COW-2 and COW-3 to give their evidence.
[9] COW-3 tendered a witness statement and a supplementary witness statement, which were marked as CO-WS 3 (A) and CO-WS 3 (B) respectively.
[10] The claimant then raised an objection, requesting that the parts of CO-WS 3(A) which contained an accusation that the respondent had committed fraud and embezzlement of money which had caused loss of RM200,000.00 to the company be expunged from the Industrial Court's record ("Preliminary Objection").
[11] The basis for the preliminary objection was that such accusation of fraud and embezzlement of money was not among the charges stated in the show-cause letter dated 24 November 2021 issued by the company to the respondent. In other words, those fraud and embezzlement were not part of the charge against the claimant in the show cause letter.
[12] The Industrial Court allowed the preliminary objection, hence this appeal.
Decision
[13] In allowing the appeal, this Court firstly finds that the charge (show cause letter) was dated 24 November 2021.
[14] The termination letter was dated 8 December 2021.
[15] According to COW-1 and COW-3's testimony, the company had only come to discover about the fraud and embezzlement on 1 December 2021.
[16] Thus, the said discovery was obtained before the termination date. From the evidence, the said discovery had been taken into the mind of the company as the employer, prior to the decision to dismiss the claimant.
[17] In this regard, this Court agrees with the submission by the company's counsel that the evidence relating to the said discovery was wrongly expunged by the learned Industrial Court Chairman.
[18] That such evidence ought not to have been expunged because they are very much relevant for the purpose of determining the appropriate relief under Second Schedule of the Industrial Relations Act 1967, which are worded as follows:
"Second Schedule: Factors For Consideration In Making An Award In Relation To A Reference Under Subsection 20 (3)
Factors For Consideration In Making An Award In Relation To A Reference Under Subsection 20 (3)
...
5. Any relief given shall take into account con
