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)

(2) On the totality of the evidence, the company had proven the misconduct on the part of the claimant (Milan Auto Sdn Bhd v. Wong Seh Yen (refd)). (para 28)

(3) While the claimant had denied the alleged misconduct, he had failed to produce any document or call any other witness to contradict the testimonies of the company's witnesses. Thus, his denial must be taken as a bare denial. In the instant application, not only had the misconduct been proven against the claimant, such misconduct on the part of the claimant had also caused the breakdown in the employment relationship which was irrevocable. Consequently, the dismissal of the claimant by the company was with just cause or excuse. (paras 31, 34 & 35)

Case(s) referred to:

Beverley Hills Collection Sdn Bhd v. Yau Yok Chun [1999] 1 MELR 431; [1999] 1 ILR 786 (refd)

Century Mahkota Hotel, Melaka & Anor v. Michele Geraldine Kessler [1999] 2 MELR 325; [1999] 3 ILR 60 (refd)

Hang Edzharsyah Hang Tuah v. Maybank [2013] MELRU 104; [2013] 4 ILJ 151 (refd)

Ireka Construction Berhad v. Chantiravathan a/l Subramaniam James [1995] 1 MELR 373; [1995] 2 ILR 11 (refd)

Malayawata Steel Bhd v. Mohd Yusof Abu Bakar & Anor [1994] 1 MLRH 177; [1994] 2 MLJ 167; [1994] 2 CLJ 239; [1994] 2 AMR 983 (refd)

Malaysia Milk Sdn Bhd v. Ng Chee Meng [1986] 2 MELR 465; [1987] 1 ILR 175 (refd)

Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 2 MLRA 23; [1995] 3 MLJ 537; [1995[ 4 CLJ 449; [1996] 1 AMR 049 (refd)

Warren Zawawi Hussein v. Wagner Global Services (M) Sdn Bhd [2012] 2 MELR 447; [2012] 3 ILJ 34 (refd)

Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145 (refd)

Legislation referred to:

Industrial Relations Act 1967, ss 20, 30(5)

Counsel:

For the claimant: A Sivananthan; Malaysian Trades Union Congress

For the respondent: Chen Wai Jiun; M/s WJ Chen & Company