[2016] 2 MELR 374
Industrial Court, Johor
Mohd Azari Harun
Award No: 515 of 2016 [Case No: 16/4-157/15]
Mohd Azari Harun

Dismissal : Misconduct due to poor performance - Claimant dismissed due to poor work performance - Application to challenge dismissal - Whether claimant given right to be heard on alleged misconduct - Whether misconduct by claimant proven - Whether dismissal proportionate in circumstances to deal with claimant

This was the claimant's application against the respondent company ("the company") for wrongfully dismissing him. During his employment, the claimant had been issued with a show cause letter for the misconducts of frequently being late in reporting for work and leaving the work place without informing his superior. The claimant had admitted those misconducts and apologised for his actions. However, the claimant's performance did not improve and he was issued a final warning letter. Subsequently, the company gave a one month's notice to the claimant to terminate his employment. The reason for his dismissal was that his work performance was not satisfactory and he was irresponsible. Accordingly, the issues to be decided were, whether the claimant had not been given the right to be heard on the alleged misconduct; whether the company had proven the misconduct by the claimant and if so, whether dismissal was proportionate in the circumstances to deal with the claimant.

Held (dismissing application):

(1) It was well-settled law that even if no inquiry was held with regard to the alleged misconduct and no opportunity had been given to explain the misconduct to the claimant, there was no infringement of the rule against natural justice as the company was entitled to present the case of misconduct against the claimant afresh or de novo at the full trial, and at the same beset the claimant would still be given the opportunity to contest the allegation against him. In the instant case, the claimant had been given the opportunity to cross and put across his version. Therefore, the claimant could not complain that he had not been given the right to be heard. (paras 21 & 23)

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