- 员工投诉说，公司当时拒绝她的离职要求，让她继续留下来工作时，这表示公司在行为上已经接受了让她重新复职。在法律上当员工提交离职时，代表员工的雇用合同已经被终止，甚至不需要通过公司接受才能生效。如要撤回离职通知，这也需要得到双方的同意。因此一旦员工提交了辞职通知书后，她的雇员身份将在最后一天的工作日后随之终止。Percetakan Keselamatan Nasional Sdn Bhd v. Jamaliah Md. Yusoff  2 MELR 299
- 公司甚至在服务终止通知中明确指出员工的服务已经被终止was terminated ，并未提及员工是离职的。因此法庭裁定员工在提交辞职通知后，公司仍继续支付她工资的行为，显示员工是在双方同意的情况下，继续留下来工作。
- 即使公司称员工有工作表现问题，一直没有得到改善，然而员工在工作期间并没有收过任何的show cause letter。雇主在发现雇员有表现问题时，应先给予警告，并提供改善的机会。 Rohimi Yusoff v. Alfa Meli Marketing Sdn Bhd & Anor  3 MELR 96
- 公司在面对有工作表现问题的员工时，必须先与员工进行充分的书面沟通，以能够证明员工的确有工作表现上的问题，而这一切必须被记录起来。然后公司才能依靠此书面内容的做为合理解雇的证据。 然而这公司没有这么做。
- The claimant commenced employment with the company as an account clerk in November 2006 without any letter of appointment.
- On 11 June 2018, the company issued a reminder to the claimants to state, inter alia, then the claimants had further failed to perform her duties as a head of department which did not deligently and carefully in overseas the work of her subordinates which resulted the company suffer loss of double payment to its supplier.
- The claimant tendered her resignation on 13.08.2018.
- In view of the short notice served by the claimant to the company, the company had request the claimant to defer her resignation from further period of 3 months form the date of her letter of resignation to enable the claimant to hand over her work scope.
- On 15.08. 2018, the company issued a reminder to the claimant alleging that the claimant had further failed and neglected to perform her duties and responsibilities.
- The claimant continued to work with the company until January 2019.
- The company had subsequently on 28.12. 2018 terminated the claimant’s employment vide its letter dated 26.12. 2018 based on the charges stated therein.
Law on Resignation
- The claimant submitted that, the issues of the claimant’s resignation is not relevant as the company by its conducts has accepted the claimant back into employment.
- It is trite law that when the claimant resigned on her own, her contract of employment came to an end. The law does not require the company to accept a resignation for it to be effective. The Notice of Resignation become valid and effective upon the claimant submitting the same to the company on 13.08.2018.
- In the case of Syed Aman Syed Hassan v. Mara Institute of Technology  3 MLRH 159: “Turning to the law, it is clear that the relationship of master and servant is essentially contractual. It is created and continued with mutual consent. Just as the master cannot force the servant to continue to serve him, so also the servant cannot force his service upon the master. See Bain Bridge v. Smith  41 Ch D 462. By the same token if a letter of resignation is submitted, the contract of employment loses the bilateral relationship needed and as such may be said to dissolve the relation created.”
The Court then referred to the Indian case of Jawala Prasad v. State of UP Air  ALL 638: “No question of withdrawal could then arise, his resignation having been already accepted. Even if his withdrawal of resignation application had been received before the resignation was accepted he could not claim an absolute right to withdraw his resignation. The resignation was unconditional and whether he could be permitted to withdraw that resignation is a matter within the discretion of the appointing authority.”
- In the case of Percetakan Keselamatan Nasional Sdn Bhd v. Jamaliah Md. Yusoff  2 MELR 299: “The principle that there is no requirement of acceptance of resignation by the company has been accepted by the Singapore High Court in the case of Michael F Avty v. Pernas Plessey Electronic Sdn Bhd  1 MLRH 876 and the Court of Appeal of England in the case of Riordan v. The War Office  1 WLR 1046. In Riordan’s case, the Court of Appeal has stated as follows:-
“The giving of a notice terminating a contractual employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and like a notice to quit a tenancy. Once given it cannot in my view be withdrawn save by mutual consent.
In view of the decisions in Syed Aman Syed Hassan v Mara Institute of Technology (supra) and Riordan v. The Wan Office (supra), this court takes the stand that there is no legal obligation on the part of a company to communication its acceptance of resignation and that a resignation notice tendered cannot be withdrawn except with the consent of the employer.”
- From all the evidence adduced, the claimant had not been put under any duress, force, coercion, threat or pressure to resign. (See Jebsen & Jessen Engineering (M) Sdn Bhd v. David Sandanasamy & Anor  5 MLJ 628).
- It is trite law that any withdrawal of notice requires consent and mutual agreement of the other party. (See MST Industrial System Sdn Bhd v. Foo Chee Lek  2 MELR 448 and Percetakan Keselamatan Nasional Sdn Bhd v. Jamaliah Md. Yusoff  2 MELR 299.
- Therefore, once the claimant submitted the Notice of Resignation, it remained valid and effective and her status as permanent employee of the company ceased upon her resignation.
- The issue before the court is whether the company by asking the claimant to stay on her employment and allowing her to work until the company had subsequently on 28.12.2018 terminated the claimant’s employment vide its letter dated 26.12.2018 rendered her resignation ineffective. The Court decides that:
- If at all the company had accepted the claimant’s resignation, there is no necessity for the company to issue a reminder dated 15.08. 2018 in relation to the claimant’s failure and negligence to performed her duties and responsibilities.
- Since the claimant was requested by the company to defer her resignation for further period of three months from the dates of her letter resignation dated 13.08.2018, the company would have asked the claimant to leave before the expiry of the period of three months and did not have to issue the Termination Letter dated 26.12.2018.
- By not asking the claimant to leave after the expiry of the deferrment period of three months and still allowing the claimant to continue to work in the company, the company has waived its right by now claiming that the claimant had resigned voluntarily from her position in the company vide letter dated 13.08.2018.
- The claimant did not submit any resignation letter after the deferrment period. Neither did the company demanded for the claimant to tendered her resignation letter again after the expiring of three months.
- The company’s letter dated 26.12.2018 clearly stated ‘Surat Pemberhentian Kerja’ in itself confirmed that the claimant’s employment was terminated. The claimant was dismissed based on the reasons of misconduct. The company had made no reference on the claimant’s resignation.
- The fact that the claimant was still on payroll for 135 days after her resignation until she was terminated by the company only fortifies the fact that she was asked to continue with her employment based on mutual consent.
- The claimant’s resignation was withdrawn by mutual consent of the parties and the claimant was dismissed by the company by virtue of the Termination Letter.
- There is no proof that the alleged misconduct allegedly committed by the claimant as early year 2016 was hidden by the claimant to the management of the company.
The Company’s Defence
- The company contended that the claimant’s continued service at the company is merely an agreed extension of three months for the purpose of handing over.
- The court finds that the company has failed to adduce any evidence or produced any documentary evidence to prove the purported extension.
- It was after the company had issued the Termination Letter dated 26.12.2018 and upon receipt of the claimant’s reply vide letter dated 31.01.2019, the company then vide letter dated 04.03.2019 made clear to the claimant that the company has no objection on her resignation.
- In the case of Anthony Lawrence Bourke & Anor v. CIMB Bank  1 MLJ 104: “ Having made its election to waive the DED and by continuing to disburse on the Agreement, the Respondent bank ought not to be allowed to take an absolutely opposite position in defence of its action. In our view this is a classic case of waiver by conduct as decided in the Federal Court case of Boustead Trading (1985) Sdn Bhd v. Arab Malaysian Merchant Bank Bhd  3 MLJ 311, page 348 of the judgement that when payment was made on the invoices without protest in the case, a reasonable man in similar circumstanced would be entitled to assume that there was no complaint on the same. Similarly the appellant here would be entitled to assume that the Respondent bank had waived its right under clause 3.4 of the Loan Agreement after DED; by its conduct. It would be most unjust for the Respondent to now suggest that after paying your invoices, it can go back to clause 3.4 to enforces its original right that it had at least on four occasions, waived.”
Misconduct/The Need of Show Cause Letter
- Vide letter dated 26.12.2018 the company issued a Termination Letter to the claimant alleging the following:
“setelah memo-memo bertarikh 11 Jun 2018 (Memo No. 1), 4 Julai 2018 (Memo No. 2) dan 15 Ogos 2018 (Memo No. 3) dikeluarkan, pihak pengurusan syarikat mendapati bahawa tiada perubahan dan peningkatan dari segi mutu tugasan anda atau pun kecuaian dalam tugasan anda, walaupun beberapa peringatan dan nasihat telah diberikan.
Memo No. 1 (11 Jun 2019): (i) gagal dalam melaporkan pembayaran pembekal dan subkontraktor kepada pihak pengurusan memberi impak kepada operasi syarikat.
Memo No. 2 (4 Julai 2018): (i) gagal dalam menguruskan kakitangan sebagai seorang pengurus jabatan. (ii) Gagal dalam menyemak transaksi bayaran pembekal menyebabkan kesilapan kepada penyata akaun syarikat.
Memo No. 3 (15 Ogos 2018): (i) kecuaian dalam pengiraan akaun syarikat. (ii) gagal dalam melaporkan tugasan kepada pihak pengurusan syarikat daripada segi masa dan tarikh akhir yang telah diberikan.
- Based on the Termination Letter, the company had terminated the claimant’s employment based on the charges stated in Memo No. 1, 2 and 3.
- The claimant has responded to the company’s aforesaid charges vide her letter dated 31.01.2019 as follows: (i) The first memo was not duly explained to her and that grounds stated herein were unwarranted; (ii) The 2nd memo has issued over a trial issue due to no fault of the claimant; and (iii) The 3rd memo was not served on the claimant.
- In this case, there is no show cause letter issued to the claimant prior to her dismissal.
- In the case of Rohimi Yusoff v. Alfa Meli Marketing Sdn Bhd & Anor  3 MELR 96, the High Court held that: “An employer should be very slow to dismiss upon the ground that the employee is found to be unsatisfactory in his performance or incapable of performing the work which he is employed to do without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility of likelihood of dismissal on this ground and giving him an opportunity of improving his performance. It is for the employer to find out from the employee why he is performing unsatisfactory or warn him that if he persists in doing so he may have to go. There is no record of any such warnings. On the contrary I am satisfied that the claimant had performed his task to the best of his ability.” 一个雇主不应该因为员工工作表现不好或者没有能力做好份内事而直接解雇他。雇主应该先了解为什么员工做不好，告诉员工他在哪里做得不对，给他警告说他如果再做不好就会被解雇，给他机会改正和进步。
- The court finds that allegation of misconduct was not stated in the termination letter. It was only raised by the company in the pleadings. In Oriflame Marketing (M) Sdn Bhd v. Quah Jin Kok  1 MELR 410;  1 ILR 170: “In the present case the reason for dismissal was “relieve of your duties effective immediately” in a one sentence letter of termination and nothing more. In the hearing before the Industrial Court several other matters of serious misconduct were averred as grounds for dismissal. I am surprised when the reason for dismissal was a set of facts known to the company at the material of time of its action why could not the reason be stated in the termination letter and made known to the claimant. Why should this set of relevant facts which would justify its action to locked in its bosom and produced at the very last moment at the Industrial Court? This court would not encourage the practice of “dismissal first and find the reason for dismissal later”. The time at which one looks at the reason for dismissal is the time of dismissal. The court must consider that the employer treats as the reason when he gives a reason for dismissal at the material time in the light of equity, good conscience and substantial merit of the case. 解雇信必须列出员工被解雇的理由。如果雇主在工业法庭才列出解雇的理由或者添加解雇的理由，工业法庭会质疑这些之后的解雇理由，甚至纳为虚假的理由。
- Even if the dismissal was because of inability to generate business, that reason did not justify dismissal. Because firstly that reason was not pleaded and secondly the employer did not try to remedy it. In Lee Nyoke Hin of Syarikat Pengangkutan Bas Kilang/Bas Sekolah v. Kumaran V Karthirvello  1 MELR 336: “The Industrial has repeatedly emphasised in several award that the age of firing an employee at the first sign of laziness or unsatisfactory performance, is past, and belongs to a bygone era as today, security of tenure of employment is a fundamental principle in employment law and industrial relations. Unless a workman is incorrigible, an employer should try to rectify or remedy the shortcoming of unsatisfactory employee, before resorting to dismissal. 雇主第一次看到员工偷懒或者工作表现不好就直接炒人的作风是一个过去。现今的劳工法律是以保住员工的饭碗为基本原则。除非员工惯性/没得救，雇主必须在解雇员工之前，先尝试纠正或者帮助员工的不足/缺点。
- In the case of Rooftech Sdn Bhd v. Holiday Inn  2 MELR 256;  1 ILR (Rep) 752 Award No. 166/86 the Industrial Court stated: Inefficiency which discloses a course of negative conduct no doubt is a sufficient ground for termination but there must necessarily be sufficient proof that a procedure has been followed. Ordinarily there must be sufficient written communication to the claimant in order to establish inefficiency or poor performance before the company can rely on it to justify dismissal. The company has failed to do so. 员工的工作效率差劲是一个解雇员工的理由，但是必须要有证明公司有遵守解雇程序。所以公司必须有文字上的沟通来证明员工的办事效率低和表现不好，证明解雇是合理的。
- In the case of IE Project Sdn Bhd v. Tan Lee Seng  2 MELR 461: “An employer should be very slow to dismiss upon the ground that the employee is found to be unsatisfactory in his performance or incapable of performing the work which he is employed to do without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility of likelihood of dismissal on this ground and giving him an opportunity of improving his performance. It is for the employer to find out from the employee why he is performing unsatisfactory or warn him that if the persists in doing so he have to go. There is no record of any such warnings. On the contrary I am satisfied that the claimant had performed his task to the best of his ability.”
- It is good industrial relations practice and a rule of natural justice that the claimant be given the opportunity to provide an explanation in response to the allegations of misconduct before the claimant was terminated of her employment by the company which the company had failed to do so.
- The fact that there was no Domestic Inquiry conducted by the company before the claimant was terminated of her employment is not a fatality which is curable by de novo proceedings before the Industrial Court. (Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal  2 MLJ 753, Dreamland Corporation (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court of Malaysia  1 MLJ 111.
- The company had highlighted the alleged mistakes committed by the claimant in paragraph 16 of the Statement in Reply (“SIR’) as follows:- i. Mistake in Profit & Loss account; ii. Over payment to creditors; iii. Double payment to Duracem Coating Industries Sdn Bhd; iv. Creditor balance; v. Outstanding payments to creditors; vi. Non-payment to sub-contractors; vii. Non-payment of staff’s claims; viii. Non-payment of staff’s SOCSO; ix. Penalty imposed by Lembaga Hasil Dalam Negeri; x. Failure to procure refund of deposits; and xi. Monies from unclaimed Money Department.
- The claimant’s dismissed was based on the ground, raised on the Termination Letter and not other issues as stated in paragraph 16 and 16.1 to 16.13 of the SIR.
- After the company discovered the discrepancies in the accounts, handled by the claimant sometime in 2014, the company did not put fault on the claimant instead tried to overcome all those discrepancies mentioned by the Auditors.
- The allegations stated in the three Memos are not specific and no further details or particulars are made available for the court to come to a just decision.
Doctrine Of Condonation
- The claimant submitted that by not putting fault on the claimant for the above discrepancies, the doctrine of condonation applies and the alleged misconducts cannot be relied by the company to dismiss the claimant.
- In the case of Azman Abdullah v. Inspector General of Police  1 MLJ 263, Court of Appeal referred to Amraoti v. Vithal Vinayak  AIR Nagpur 125 where the Court had said: “Once a master has condoned any misconduct which would have justified dismissal or a fine, he cannot, after such condonation go back upon his election to condone and claim a right to dismiss his (the servant) or impose a fine or any other punishment in respect of the offense which has been condoned.”
“The respondent’s delay in taking disciplinary action against the appellant must surely be an act of condonation. Had the issue of condonation been taken into consideration in the court below, the trial Judge’s decision would surely have been the other way. Consequently, the charges against the appellant could not stand.”
- In the case Lim Teik Chye v. Dynacraft Industries  MELRU 1643, the Court adopted the doctrine of waiver and condonation when the company had knowingly allowing the misconduct to be carried out and failing to act for 10 months. 公司知道员工的不当行为，并且在10个月没有采取任何纪律行动。工业法庭使用‘放弃和宽恕的原则’来决定公司已经原谅员工的不当行为，所以裁决公司现在解雇员工是无理的。
- In the case of National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam)  2 MLJ 144, the Court of Appeal: “The doctrine of condonation has long been established in India, Malaysia, New Zealand, Canada, South Africa, Australia and Hong Kong. In this respect, The Manager Scudai Estate, Johore Bahru v. Naryanan  26 MLJ 162 in dealing with the issue of dismissal by a master of the servant’s misconduct, held that a master, with full knowledge of the servants misconduct, electing to continue him in his service, cannot subsequently dismiss him from the offence which he had by his warning and subsequent employment condoned. We agree to the principle of condonation as a waiver of the employer’s right to punish for misconduct”. 当雇主知道员工的不当行为，只是给予警告和宽恕，选择继续让他在公司工作，雇主就不能在后来基于这个不当行为解雇员工
- This court agrees with the claimant that the company had waived and condoned the misconduct by knowingly allowing it to be carried out and failing to act for so long.
- In the case of MUI Bank Bhd Johor v. Tee Puat Kuay @ Tee Puat Kway  3 MLJ 239, the High Court held that condonation is a question of fact to be decided by the court depending on the circumstances of the case. The misconduct is deemed to be condoned when election is made by the company to retain a guilty employee. By allowing the employee to continue to work in the company for 5 months after the misconduct amounts to condonation. 当雇主继续雇佣犯了不当行为的员工，这就证明雇主已经宽恕员工了的不当行为。在此案，银行让员工继续在银行工作5个月才解雇他。工业法庭判决，没有立刻采取纪律行动，银行不能在5个月后才解雇员工。
- The court finds that all the alleged misconduct as stated in paragraph 16 of the SIR were never mentioned in Termination Letter. If the company classified the claimant’s alleged misconduct as severe, therefore it should ensure swift action be taken towards the claimant instead of taking so long to dismiss her. Despite the alleged misconduct, the company did not take any disciplinary action against the claimant and allowing her continue to work shows that the company had condoned all the alleged misconducts of the claimant.
- The court finds that the company had failed to prove to the satisfaction of this court, on the balance of probabilities that the dismissal of the claimant was with just cause or excuse. Accordingly, the claimant’s claim is hereby allowed.
- The claimant’s last drawn salary was RM6,000 per month. The claimant had served the company for 12 years period to her dismissal. As such compensation in lieu of reinstatement at the rate of one last drawn salary is hereby allowed.
- In Telekom Malaysia Berhad v. Jernal Singh Banta Singh & Anor and Another case  MLRHU 1546 the High Court held as follows: “Section 30(6A) of the Industrial Relations Act 1967 requires Industrial Court to take into account the matters that have been specified in the Second Schedule, which includes contributory misconduct… Accordingly, the award was quashed and an award in substitution that was 20% lower was ordered.”
- The court therefore orders that the backwages based on the last drawn salary to be computed in the following manner:
- The sum of RM104,400.00 less any statutory deduction is to be paid to the claimant within 30 days from the date hereof.
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#解雇信没有注明不当行为 ##解雇信没有注明员工的不当行为 #解雇信没有列明不当行为 #解雇信没有列明员工的不当行为 #没有在解雇书注明解雇原因 #no domestic enquiry conducted #原谅员工的过错 #宽恕员工的过错 #员工犯错