- 一名回教徒男性主管(该主管)于2018年和公司的一名印尼籍女员工被联邦直辖区宗教局 (JAWI) 在酒店房里幽会时逮捕。他在伊斯兰教高等法庭认罪，被判处30天监禁，罚款RM3,000。 做出上诉后，他的监禁被撤销，但是还是保留了原有的罚款为惩罚。
- 之后，公司委员会收到了匿名投诉，指控该主管对公司女性行性骚扰，让女员工认为公司的工作环境不安全。 该电子邮件也透漏其主管被宗教局逮捕的事件。
- 该主管的抗辩是，伊斯兰教法庭不能算是“法庭”，因此宗教法庭对他的判决并不属于刑事罪 。所以他并没有违反公司手册。
- 对此法庭表示该主管的抗辩点并没有说服力。 伊斯兰教法庭是由议会法案设立的，它的权力包括对伊斯兰教徒的的刑事管辖权，是在法律上承认的法庭。
- The claimant commenced his employment with the company as a Supervisor. In the following 28 years, the claimant had enjoyed several promotions and his last held position in the company was as a General Manager. His last drawn salary was RM15,320.00 per month.
- On 27 May 2018, the claimant and a female migrant worker of the company hailing from Indonesia were detained by the Federal Territory Islamic Affairs Department (“JAWI”) at the Grand Continental Hotel Kuala Lumpur on suspicion of committing the Syariah offence of “khalwat” or being in close proximity pursuant to s 27(a) and (b) of the Syariah Criminal Offences (Federal Territories) Act 1997 (‘the Act’).
- The claimant pleaded guilty to the offence under s 27(a) of the Act in the Syariah High Court. He was then sentenced to imprisonment of 30 days with a fine of RM3,000.00. The claimant’s appeal against this sentence was heard by the Syariah Appeal Court wherein his imprisonment was set aside. However, the fine of RM3,000.00 was maintained by the said court.
- On 10 October 2018, the company’s Whistleblowing Committee had received an anonymous complaint from the company’s female employees alleging harassment by the claimant that made them consider the work environment in the company to be unsafe. The email also asserted that the claimant had been involved with a female foreign national employee, resulting in both of them being arrested by religious authorities.
- The company’s Whistleblowing Committee commenced an investigation into the allegations made against the claimant in the said email.
- Pursuant to the investigation, COW1 had conducted interviews with staff in the company including the claimant, about the allegations. Many of these employees who were interviewed by COW1 were aware of the claimant’s relationship with the foreign female employee by the name of Ms Friska Pangaribuan (“Friska”) and the arrest of the claimant by JAWI. The claimant did not deny his relationship with Friska in the interview.
- The Company in the further show cause letter wrote to the Claimant “By the above conviction, you are found to have breached cl 2.3, sub-clause 4(3) and 4(5) of the company Handbook, which states as follows:
“The company may terminate the Employment Contract for any of the following reasons […] the Employee is convicted of a criminal offence by a court of law” and;
“The company may terminate the Employment Contract for any of the following reasons […] the Employee commits a serious misconduct”
The above action constitutes a fundamental breach of your terms of employment and is a gravely serious misconduct which, if established, goes to the root of the trust and confidence reposed upon you by the company.”
- A Disciplinary Inquiry (“DI”) was later convened on 07.12.2018 wherein a total of four charges were levelled by the company. The Panel of Inquiry found the claimant to be guilty on one of the four charges and recommended that the claimant be demoted with salary deduction.
- The company upon considering the outcome of the DI and the recommendation made by the Inquiry Panel, came to the conclusion the claimant had not only acted in breach of the express terms of his contract with the company as found in cl 2.3 (sub-clauses 4.3 and 4.5) of the company’s Handbook but also had tarnished the image and reputation of the company.
- Due to the gravity of the misconduct, the company stated that it could no longer repose the necessary trust and confidence in the claimant and informed him of the company’s decision to terminate his services effective from 14.12.2018.
- Aggrieved, the claimant herein contended that his dismissal was without just cause or excuse.
Held (dismissing the claimant’s claim):
- Where a DI has been held, the Court must consider the validity of the DI and determine if the notes of the DI are accurate (Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia & Anor  2 MLRH 369).
- The company in this case did not submit to the Court the notes of the proceedings of the DI. The court is thus unable to rule if the DI notes are accurate or determine if the DI was validly held. Federal Court in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal  1 MLRA 412 held as follows: “The Industrial Court was not competent to declare the dismissal void for failure to comply with the rule of natural justice. The very purpose of the inquiry before the Industrial Court was to give both parties to the dispute an opportunity to be heard irrespective of whether there was a need for the employer to hold a contractual or statutory inquiry. We were confident that the Industrial Court as constituted at present was capable of arriving at a fair result by fair means on all matters referred to it. If therefore there had been a procedural breach of natural justice committed by the employer at the initial stage, there was no reason why it could not be cured at the rehearing by the Industrial Court”.
- The claimant’s main contention before this court had been that he did not commit a misconduct pursuant to cl 2.3 sub-clause 4(3) of the company’s Handbook of Rules and Regulation. This clause stated that the company might terminate the claimant’s Employment Contract if he was “convicted of a criminal offence by a Court of Law”. Thus, the claimant stated that the fact he was found guilty and was sentenced by the Syariah Court did not justify his dismissal pursuant to this clause. The claimant argued that his conviction by the Syariah High Court was not a criminal conviction in the ordinary sense of the word. It was the claimant’s stand that the provision in the company’s Handbook was never breached by him as the Syariah High Court was not a “court of law”.
- This Court found the claimant’s submission to be weak and lacked substantial merit. The claimant’s submission rested on technicality. This Court was not persuaded by the claimant’s point that the Federal Territories Syariah High Court was not a court of law. The Federal Territories Syariah High Court was established by an act of Parliament and the court had been conferred its jurisdiction thereunder. The Syariah High Court’s powers including criminal jurisdiction over persons professing the religion of Islam was recognised in law. Whilst the Syariah Court might not be established under art 121 of the Federal Constitution, its existence was constitutionally provided for within the ambit and the framework of the Federal Constitution.
- This court therefore held that the express terms of the company’s Handbook were breached by the claimant when he was found guilty and convicted by the Syariah High Court, which was a “court of law” within the ordinary meaning of cl 2(3) sub-clause 4.3 of the company’s Handbook.
- The Court was unable to overlook the fact that the claimant was a senior ranking official in the company holding the post of a General Manager. In the position of authority that he held, the claimant was required to set a good example for his peers and subordinates. The claimant’s inappropriate association with Ms. Friska, who was an employee of the company was a breach of the claimant’s implied duty of mutual trust and confidence that he owed to the company.
- The claimant’s offence was not a private matter. It was a conduct that involved another employee of the company, that had resulted in the termination of employment of Friska. The claimant could not as such state that his arrest by JAWI did not concern the company. The court noted that the claimant’s relationship with Friska was known to the other employees by the claimant’s own admission. Such information about a senior ranking official of the company had a direct and serious effect on the company. The company had a duty to protect its employees and provide them a safe and healthy working environment.
- This Court was of the firm view that the company’s decision to terminate the claimant’s services was not harsh or unwarranted. Taken together, the claimant’s arrest by JAWI and his subsequent conviction had in fact tarnished the image of the company’s management and had caused the company to fall to disrepute amongst its female employees.
- It was incumbent upon the claimant as a General Manager to abide by the company’s rules and regulations as provided for in the company’s Handbook and to comply with his contract of employment. The claimant had failed in this regard and by his misconduct had caused the company opprobrium.
Source: Md Tarmizi Mohamad Yusof v. Canon Opto (Malaysia) Sdn Bhd  2 MELR 464
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#没有DI #no domestic enquiry #no DI (para 12 &13)