Back
2013 MarsdenLR 2993
FEDERAL COURT PUTRAJAYA
NORIZAN BAKAR – Appellant
Versus
PANZANA ENTERPRISE SDN BHD – Respondent
[Civil Appeal No: 01(f)-29-11-2012(W)
The Industrial Court has jurisdiction to determine the proportionality of dismissal based on misconduct severity under the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Judicial Review - Appellant dismissed from employment for misconduct, later found minor by Industrial Court - High Court upheld, finding dismissal unjust - Court of Appeal reversed, ruling Industrial Court erred in substituting its view for employer's - Jurisdiction to assess reasonableness of dismissal affirmed. (Paras 2.1, 12-44)
(B) Employment Law - Jurisdiction - Industrial Court has powers to assess dismissal based on proportionality and conduct under equity principles. (Paras 35-41)
Facts of the case:
Employee dismissed for breaching company conduct by serving as director in another company. Dismissal challenged, initially ruled minor misconduct not warranting dismissal by Industrial Court, but overturned by higher courts.
Findings of Court:
The dismissal was ruled fair; the appellant's misconduct was substantial and eroded trust.
Issues: Whether dismissal was without just cause; Jurisdiction of Industrial Court concerning misconduct severity.
Ratio Decidendi: The court found that the Industrial Court failed to consider important factors, ruling dismissal justified on grounds of the breach of trust and significant nature of misconduct.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. dismissal from employment by appellant. (Para 1 , 3 , 4 , 5) |
| 2. jurisdiction of industrial court on dismissal. (Para 2 , 8 , 9 , 10 , 11) |
| 3. observations on procedural fairness and reasonableness. (Para 6 , 12 , 20 , 22 , 23) |
| 4. judicial review principles (Para 7) |
| 5. ratio for not interfering with employer’s decision. (Para 14 , 26 , 35) |
| 6. court's conclusion on the appeal's dismissal. (Para 36) |
| 7. industrial court's jurisdiction and standards (Para 40) |
| 8. final ruling on dismissal fairness (Para 42) |
[1] This is an appeal by the appellant against the decision of the Court of Appeal given on 10 February 2012 in allowing the respondent's appeal against the decision of the High Court. The High Court had earlier on 31 March 2009 dismissed the respondent's application for judicial review to quash the Industrial 's Award No 154 of 2006 dated 5 January 2006.
[2] On 22 October 2012, the Federal Court granted the appellant leave to appeal on the following questions of law, namely:
2.1 Whether the Industrial Court has the jurisdiction to decide that the dismissal of the appellant was without just cause or excuse by using the doctrine of proportionality of punishment and/or that the punishment of dismissal was too harsh in the circumstances, when handing down an award under s 20(3) of the Industrial Relations Act 1967 .
2.2 Further and/or in the alternative, whether the Industrial Court in exercising its functions as stated in the paragraph above can rely to its powers under s 30(5) of the Industrial Relations Act 1967 specifically based on the principle of equity, good conscience and substantial merits of the case.
Background Facts
[3] This is a case where the appellant, an employee of the respondent, after a domestic inquiry was dismissed from his employment by the respondent when he was found guilty of four charges of misconduct. The allegation of misconduct levelled against the appellant was that he (the appellant) had falsely declared in writing in breach of the respondent company's code of conduct that he was not serving on the Board of Directors of any other company when he was at all material times found to be serving on the Board of Directors of another company. The salient facts leading to the appellant's dismissal are these: the appellant commenced employment with the respondent company on 19 September 1994 as an Assistant Manager. He was promoted to the position of Manager on 1 May 1995 and later as the Personal Assistant to the respondent's Chairman on 10 April 1999. On 29 October 1999, the respondent issued a show cause letter to the appellant wherein the appellant was asked to explain the four allegations of misconduct levelled against him. The appellant replied to the show cause letter on 1 November 1999. The respondent was not satisfied with the appellant's explanation and issued a notice to the appellant to attend a domestic inquiry on 10 November 1999 to answer the four charges of misconduct preferred against him. The relevant charges read as follows:
"1st Charge
You, knowingly and deliberately did not comply with the company's procedure on leaving the office premises during office hours, by not recording your absence from office during office hours, in the "leaving office premises during office hours register" maintained at the reception area.
Records in the register with effect from 10 February 1999 to 25 October 1999 and your response to the numerous queries raised by the Human Resource & Administration Department with regard to your absence from office, confirms that you have not complied with the said procedure.
2nd Charge
On 19 October 1999, you committed an act of Gross Insubordination by relinquishing your position as Personal Assistant to the Chairman, by writing a note to the Chairman's Executive Assistant, stating that you no longer work for the Chairman. In your note, you also implied that you have abandoned three assignments that were entrusted to you by the Chairman.
3rd Charge
On 15 July 1999, you committ
