Back
2011 MarsdenLR 3811
INDUSTRIAL COURT SARAWAK
ABANG AHMAD ABANG ABDUL SAMAD – Appellant
Versus
SDH MAKMUR MOTORS SDN BHD – Respondent
Award No: 1028 of 2011 [Case No: 8/4-750/06]
The dismissal of an employee for insubordination was lawful as the procedural requirements of the domestic inquiry were not violated despite the employee's absence; misconduct was established, justifying termination.
Headnote:(A) Industrial Relations Act 1967 - Section 20 - Employment termination - Claimant, a Branch Manager, was dismissed for instigating employees to sign a letter of resignation following grievances about company operations - Court considered validity of the disciplinary process, leading to dismissal deemed justified - Dismissal not made irregularly despite absence during inquiry; claimant's involvement established through witness testimony. (Paras 1-132)
(B) Employment Law - Domestic Inquiry - Requirement for fairness and proper procedures is paramount; actions leading to dismissal must reflect just cause, supported by adequate evidence - Claimant's role in misconduct fully explored, demonstrating insubordination and breach of trust in managerial capacity. (Paras 20-112)
Facts of the case:
The claimant, involved in a grievance process, allegedly facilitated an insubordinate act by endorsing a lettre signed by subordinates. Dismissal followed an investigation into the incident, raising issues regarding the procedural propriety of the hearing. The claimant contested the legitimacy of charges against him.
Findings of Court:
The court found the dismissal reasonable due to insubordination, confirming the gravity of the conduct involved. The claimant's absence from the inquiry was not a valid defense.
Issues: Central issues were the nature of the dismissal, the procedures followed, validity and execution of the domestic inquiry, and the grounds for misconduct as presented by the claimant - the claimant's role and the absence of adequate defense during inquiry raised fundamental questions regarding accountability and procedure.
Ratio Decidendi: The court established that the claimant's actions and failure to attend the inquiry constituted a voluntary acceptance of the charges against him, noting that the resignation letter's existence was confirmed through reliable testimony. The dismissal was warranted based on substantial evidence of misconduct.
Result: Dismissal upheld as justified and appropriate.
| Table of Content |
|---|
| 1. claimant's employment details and dismissal context. (Para 1 , 2 , 3 , 5 , 6 , 10) |
| 2. background facts surrounding the claimant's employment and dismissal. (Para 4) |
| 3. series of communications leading to disciplinary actions. (Para 7 , 9 , 12) |
| 4. review of disciplinary procedures and inquiry process. (Para 8 , 18 , 19) |
| 5. details of disciplinary procedures and claimant's responses. (Para 11 , 13) |
| 6. considerations of misconduct and the resulting justification for dismissal. (Para 14 , 27 , 59) |
| 7. witness testimonies and procedural concerns regarding the inquiry. (Para 15 , 24 , 25 , 26 , 58 , 61 , 79 , 81) |
| 8. court's finding and reasoning regarding misconduct. (Para 39 , 112) |
| 9. evaluation of charges and final assessment of the claimant's actions. (Para 60 , 113) |
[1] At the material time the claimant was the Branch Manager of the company's office at Jalan Matang, Kuching Sarawak. The company was a dealer and distributor of PERODUA cars As Branch Manager the claimant was in charge of sales, service and parts of the PERODUA cars The company's sales representatives and other employees were answerable to him. In turn the Branch Manager reported to the Managing Director (MD), Syed Habib Syed Sharbini. The Chairman of the company then was Tan Sri Datuk Dr. Sulaiman Bin Haji Daud and mention is made of his name because of the events that would unfold in this case in which repeated references were made to his name.
[2] The claimant had been working for the company as Branch Manager since the company's inception in July 2001.
[3] There was a sales meeting held among the sales representatives and chaired by the claimant on 15 December 2003. The events that transpired at the meeting were later to give rise to the dismissal of the claimant by the company on grounds of misconduct. At the meeting a letter was written and signed by all the sales representatives present, as well as by the claimant himself. There are 2 versions as to what kind of letter this was: the company's version was that it was a letter of mass resignation by those present at the meeting. However, the company claimed that that "mass-resignation" letter was later changed "to one which sought audience" (meaning wanting to meet) with the company's Chairman. On the claimant's side, the claimant claimed that the only letter signed on that fateful day was the one produced in court as evidence, that is, the "audience-seeking" letter.
[4] The "mass-resignation" letter was not produced in court as evidence in the course of this trial, and each side claimed ignorance as to what had happened to it, if at all it existed. What was produced in court was the "audience-seeking" letter.
[5] The Managing Director felt that the claimant had committed an act of insubordination. So two days later, on 17 December 2003 he suspended the claimant from service "until further notice". No salary was to be paid to him during the suspension.
[6] On 22 December 2003 the claimant responded to the suspension order and demanded for the reasons thereof. He also demanded a reply from the company within 14 days or else he would deem that the company had terminated his service.
[7] On 31 December 2003 the company again wrote to the Claimant and informed him that the reason why he was suspended was to allow internal investigations to be conducted "without hindrance and obstruction from any quarters". The letter also stated that the investigations had since been completed and so the letter also laid out 3 charges against the claimant. This letter also requested the claimant to provide explanation to the charges within 7 days as to why no disciplinary action should be taken against him. In short, a show cause letter.
[8] On 7 January 2004 the claimant replied to the show cause letter. In short, the claimant denied the allegations He also challenged that his suspension was against the company's Terms and Conditions of Service (TACOS) and demanded a reply within 7 days
[9] Obviously feeling that the claimant's
