- 公司之后发出show cause letter指责员工的事件，违反了商业准则/公司准则+损坏了公司的形象。 员工在回复中解释，他只是被反贪会逮捕以作调查，公司不应该在他被证明有罪之前，就立即对他采取行动。不过公司不接受这个解释，决定解雇他。
- 法庭发现公司只是怀疑员工有不当行为，但并没有任何真凭实据；他们甚至也没有进行内部调查(domestic inquiry)。如果雇主只是单纯怀疑员工干了不当行为，没有真凭实据，是不能解雇员工的。雇主不能因为“听说”，就在没有做出适当的调查前解雇员工。
- 雇主必须认真公平地调查员工是否犯下不当行为，让员工有机会解释，然后才做出最后决定。 如果雇主没有认真的调查，不让员工有机会解释，就直接快速地辞退员工，那么雇主就是无理辞退员工了。Sanyo Industries (M) Sdn Bhd v. Chan Wai Ho  1 MELR 597
- 而且法庭也发现员工在接受调查后立即被反贪会释放， 没有任何证据显示他犯有任何不当行为。法庭也质疑为何雇主在Show Cause Letter里并没有列明员工犯了什么错，只是要求员工解释为何被反贪会抓了+扣留。雇主单凭‘有理由相信’/怀疑员工犯错，但是却没有任何可信的证据，是不能将员工辞退的。
Brief Facts Of The Case
- The Claimant commenced employment as Assistant Manager, Commercial Department in Malaysia Airports Berhad with effect from 31.10.1994. His monthly salary was RM2,000.00 per month. The Claimant was confirmed in his position on 01.12.1995.
- His last position in the Company before his dismissal was as Senior Manager, Commercial Services (Business Excellence) Grade 26 with a monthly salary of RM12,127.86.
- Vide letter dated 11.2018, the Company issued a Show Cause letter to the Claimant directing the Claimant to submit his written explanation within 7(seven) working days on the following issues:-
“Due to your above mentioned arrest on 07.08.2018 for offences under s 17(a) of the Malaysian Anti-Corruption Commission Act 2009 (Act 694), you have caused the Company’s image and reputation to be blemished since your arrest became news subject of the mass media with the Company’s name being mentioned as employer.
Your actions have also caused the Company to lose confidence in your credibility and integrity as an employee.”
- Vide letter dated 12.2018 the Claimant replied to the above said show cause letter and explained as follows:
(a) That the arrest by Malaysian Anti-Corruption Commission(“MACC”) was related to an allegation lodged by Mr Hubert Ng from Diamoney Jewellery Holdings Sdn Bhd (“DJHSB”) and the case is still under investigation.
(b) The Claimant has given his full cooperation to MACC in their investigation.
(c) That the Claimant has not been charged in any Court of law and he has not been found guilty.
(d) The accusation was a mere allegation subject to be proved by the accusing party.
(e) The Claimant has been loyal to the Company in his 24 years of employment and had acted in the best interest of the Company throughout his employment.
(f) The Claimant avers that Mr Hubert Ng from DJHSB made the accusation against him and filed the complaint to MACC due to his dissatisfaction in a legal suit in Mahkamah Sesyen Kuala Lumpur whereby the Company had sued and DJHSB was ordered by the Court to pay RM582,000.00 to the Company. In the said case, the Claimant was one of the witnesses for the Company.
(g) The Claimant also appealed to the Company not to take any actions against him until or unless he was proven guilty.
- The Company being dissatisfied with the Claimant’s explanation, issued a letter dated 12.2018 to the Claimant that he was dismissed from the services of the Company with immediate effect. The letter is as follows:
After thorough investigation and deliberation, the Company found that you have caused the Company’s image and reputation to be blemished since your arrest became news subject of the mass media with the Company’s name being mentioned as employer.
Your arrest by MACC under s 17 (a) of the Malaysian Anti-Corruption Commission Act 2009 (Act 694), have also caused the Company to lose trust & confidence in your credibility & integrity as an employee and the Company is unable to depose any further trust & confidence for you to continue to serve the Company.
The Company views this matter seriously and have decided to impose upon you the punishment of DISMISSAL with immediate effect.
- The Claimant subsequently sent an appeal letter dated 03.2019 to the Company to reconsider the decision to dismiss the Claimant. The Company responded that there were no reasons to overturn the decision to dismiss the Claimant.
- In the present case, there is no dispute that the Claimant was dismissed by the Company on 10.12.2018. Therefore, the only issue is whether the misconduct complained of by the employer has been established and if proven, whether that proven misconduct constitutes just cause or excuse for the dismissal.
Evaluation And Findings
- In the present case, two witnesses were called by the Company to testify, ie, (i) Mohd Adib Bin Ismail who was the Acting Manager of the Industrial Relations of the Company (“COW-1”), and (ii) Azman Shah Bin Mohamed who was the Senior General Manager, Human Resources Division of the Company (“COW-2”). The Claimant (“CL-1”) gave his own evidence.
- The determinant factor which resulted in the Company’s decision to terminate the Claimant was the fact that:
- the Claimant’s arrest and investigation by the MACC on account of bribery had caused great disrepute and adverse publicity to the Company’s name and image. The Company’s image and reputation was tarnished
- This had casted grave doubts in the Claimant’s integrity and credibility to discharge his duties as Senior Manager dutifully. The Company’s lost trust and confidence in the Claimant’s integrity and credibility.
- During cross-examination, COW-2 testified that based on the Show Cause Letter dated 16.11.2018, the only allegation made against the Claimant which requires his explanation is with regards to his arrest by MACC on 07.08.2018. The Company did not frame any charge or issue any show cause letter to the Claimant or seek any explanation pertaining to the purported accusation that the Claimant had received a monthly bribe from DJHSB nor convene a domestic inquiry on this purported accusation.
- COW-1 during cross examination had admitted that there was no investigation carry out by the Company pertaining to the accusation as reported by the online news portal that the Claimant had received the monthly bribe of RM500 to RM10,000.00 from a jewellery company.
- These allegations are only based on hearsay evidence which was obtained from the online news portal or oral information from MACC without conducting proper and full investigation to substantiate the findings. The Company had also failed to give the right to be heard to the Claimant to defense or answer to the accusation.
- Since there was no investigation carry out by the Company and no charge was framed against the Claimant on the purported offences of suspicion of corruption practice, the Company had failed to prove or established that the Claimant had committed any misconduct which warrants the Company to dismiss the Claimant.
- It is a trite law that a mere suspicion alone without any cogent evidence does not justify a dismissal. The Company should not form their belief hastily or act hastily without making the appropriate inquiry. 如果雇主只是单纯怀疑员工干了不当行为，没有真凭实据，雇主是不能解雇员工的。雇主不能因为“听说听说”，没有做出适当的调查，就做出决定解雇员工。
- In the case of Sanyo Industries (M) Sdn Bhd v. Chan Wai Ho  1 MELR 597, the Industrial Court states as follows:
“In Weedle & Co Ltd v. Tepper  IRLR 96, Stephen LJ states as follows:
Employers suspecting an employee of misconduct justifying dismissal cannot justify their dismissal simply by stating an honest belief in his guilt. There must be reasonable grounds and they must act reasonable in all the circumstances, having regard to equity in particular if they do not give him a fair opportunity in explaining before dismissing him. And they do not have regard to equity or the substantial merits of the case if they jump to conclusion which it would have been reasonable to postpone in all the circumstances until they had, per Arnold J in Burchell “carried out as much investigation into the matter as reasonable in all matter as was reasonable in all circumstances of the case.” 如果雇主怀疑员工犯了严重的不当行为，雇主是不能因为真诚的‘怀疑’，就把员工辞退。雇主必须认真公平地调查员工是否犯下不当行为，必须让员工有机会解释，然后才做出最后决定。
That means that they must act reasonably in all the circumstances and must make reasonable inquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employees a fair opportunity to explain himself their belief is not based on reasonable grounds and they are not acting reasonably.” 如果雇主没有认真的调查/询问，不让员工有机会解释，直接快速地辞退员工，那么雇主就是无理辞退员工了。
- The Claimant were released by MACC subsequently and were not charged in any Court of Law. There was no evidence to show that the Claimant had committed any misconduct as alleged by the Company. The Company did not call any officer from MACC to testify and confirm the reasons for the arrest, neither were any witnesses called to testify that the Claimant had received any gratification from public.
- The Company had failed to prove its case on the balance of probabilities that the Claimant had committed a misconduct as alleged in their letter of dismissal
- In the case of Jaafar Abd Rahim & Anor v. Puspakom Sdn Bhd  2 MELR 677, the facts of the said case is identical to the fact of the present case whereby both the Claimants were arrested with nine others in a raid by the Anti-Corruption Agency (‘ACA’) on 08.2008 on suspicion of being involved in corrupt practices. The claimants were subsequently released and not charged in any court of law. They went back to work on 28.08.2008. The company issued show cause letters dated 03.09.2008 to both claimants alleging that they were in breach of the company’s Ethics Code and Business Practice. They were also suspended from work for 14 days pending further investigation. The claimants replied to the show cause letters but they were dismissed on 11.09.2008 without any domestic inquiry. The Company contends that the arrest of the claimants by ACA violated the terms and conditions of the company’s Code of Ethics and Business Conduct. It was further contended that the claimants tarnished the company’s image by being arrested by the ACA. 员工和其他9个同事被反贪会逮捕，被释放，没有被提控。公司出show cause letter指责员工被执法单位捕抓的事件，违反了商业准则/公司准则+损坏了公司的形象。
- The learned Chairman held that the dismissal of both the Claimants were without just cause and excuse. Among others, he states as follows;
“ There is only one reason advanced by the company for dismissing both claimants and that is as the facts suggest that both claimants were arrested by Malaysia Anti-Corruption Commission on 27.08.2008 on suspicion of being involved in corrupt practices in Contravention of s 11(a) of Anti-Corruption Act 1997 (now repealed and replaced by s 17(a) of the Malaysian Anti-Corruption Commission Act 2009).
 It was not denied by the company’s witness that both claimants were not accorded a due inquiry before they were dismissed by the company. 公司没有进行内部调查/没有内部调查
 The claimants were released subsequently and were not charged in any court of Law by the authorities and in the second claimant’s evidence, he testified that their case was, classified as closed by MACC.
 The Company claimed that the Claimant’s misconduct was that he has put himself in the position of tarnishing the image of the Company by being arrested by ACA, has put the integrity in question.
 Apart from the letter from MACC dated 10.09.2008 there was no other evidence to show that both claimants had committed a misconduct as alleged by the respondent. The respondent did not call any officer from ACA to testify and confirm the reasons for the arrest, no witnesses were called to testify that both claimant had received any gratification or gift from public.
 The court has carefully considered the submission of the counsel for the respondent this court of the opinion that the respondent had failed to prove its case on the balance of probabilities that the claimants had committed a misconduct as alleged in their letter of dismissal.”
- In the case of Saidi Hasan v. Puspakom Sdn Bhd  MELRU 336, the facts of the case are identical to the fact of the present case whereby the Claimant, was an examiner in PUSPAKOM. His duties were to conduct inspection on motor vehicles to ensure compliance with the Road Transport Act 1987. On 12.2007 he and two other colleagues were apprehended and detained by the Anti-Corruption Agency (ACA, later Malaysian Anti-Corruption Commission) on suspicion of corrupt practices. Two days later, he was released. By letter dated 18.02.2008, PUSPAKOM terminated Saidi’s services with immediate effect on the grounds that he had brought disrepute to the Company by being involved in a corrupt practice.
- The Industrial Court held that the termination is without just cause and excuse, and states as follows:-
Selepas Mahkamah meneliti keseluruhan kes ini, Mahkamah mendapati Pihak Responden gagal untuk membuktikan salah laku atau kesalahan yang dilakukan oleh Pihak Menuntut kerana:
i) Tiada apa-apa pertuduhan atau salah laku yang dikenakan kepada Pihak Menuntut. Notis tunjuk sebab yang dikemukakan oleh Pihak Responden tiada menyatakan apaapa kesalahan atau salah laku yang dikenakan ke atas Pihak Menuntut. Pihak Menuntut hanya diminta memberi penjelasan kenapa beliau ditahan oleh BPR. 雇主在Show Cause Letter里并没有列明员工犯了什么错，只是要求员工解释为何被反贪会抓了+扣留。
ii) kegagalan Pihak Responden untuk memakluman salah laku atau tuduhan secara khusus menyebabkan hak Pihak Menuntut untuk membela diri dinafikan. Kegagalan Pihak Responden menjalankan siasatan dalaman seperti dicadangkan oleh Pihak Responden sendiri membawa padah kepada Pihak Responden kerana tiada apa-apa keterangan atau saksi yang dikemukakan di Mahkamah untuk mengaitkan Pihak Menuntut dengan apa- apa salah laku yang didakwa dilakukan oleh Pihak Menuntut. 雇主没有进行内部调查，因此雇主没有办法在法庭提出证据或者证人证明员工犯了什么错误。
iii) kepercayaan munasabah (reasonable believe) COW1 terhadap kesalahan yang dilakukan oleh Pihak Menuntut tidak disokong oleh apa-apa keterangan yang boleh dipercayai untuk menamatkan perkhidmatan Pihak Menuntut. Adalah amat berbahaya berdasarkan syak semata-mata untuk menamatkan perkhidmatan Pihak Menuntut tanpa keterangan saksi-saksi atau apa-apa kelakuan Pihak Menuntut yang menjurus kepada kesalahan rasuah ini. 单凭雇主一方的‘有理由相信’/怀疑员工犯错，但在没有任何可信的证据下辞退员工，是不可以的。
Berdasarkan alasan-alasan yang telah dinyatakan di atas, Mahkamah mendapati Pihak Responden gagal untuk membuktikan kesalahan dan salah laku yang telah dilakukan oleh Pihak Menuntut dan Pihak Responden tidak bertindak adil dan bersebab di dalam pemberhentian Pihak Menuntut. Oleh itu, pemberhentian Pihak Menuntut dibuat tanpa alasan dan tanpa sebab. Mahkamah dengan ini membenarkan tuntutan Pihak Menuntut.”
Allegations Not Stated In The Termination Letter
- The Company through the testimonies of COW-1 and COW-2 and also the appeal letter by the Claimant had raised two new allegations which was not stated in the termination letter dated 10 December 2018 as follows:
a) The Claimant had acted in favour of DJHSB on a tenancy related matter at the airport managed by the Company; and
b) The Claimant’s alleged admission vide appeal letter dated 7 March 2019 that he received money from Hubert Ng which is in breach of the Company’s Code of Ethics. 公司准则
- It is trite law that when an employer gives reasons for the dismissal of an employee, the duty of the Industrial Court will be to enquire whether the reasons has or has not been proved. The Court cannot go into another reason not relied on by the employer or find one for it. (See Goon Kwee Phoy v. J&P Coats (M) Bhd (Supra)). 当雇主解雇员工并给于解雇的理由，工业法庭必须确认雇主的解雇理由是否真实。雇主必须在解雇信里，清楚列明解雇的理由，雇主不能在工业法庭诉讼的时候，才添加其他的解雇的理由，工业法庭是不会考量这些‘新的解雇理由’的。
- This Court is of the view that since the Company has admitted that the only reason for the Claimant’s termination was the Claimant’s arrest by the MACC, any other reasons and testimony adduced by the Company has to be disregarded in considering whether the Claimant’s dismissal was with just cause or excuse. Both issues raised by the Company did not form part of the reasons for the Claimant’s termination and therefore this Court will only confine to the reasons for the dismissal as stated in the dismissal letter issued by the Company. The Industrial Court has no jurisdiction to determine the ground which was not the basis of the Claimant’s dismissal from the employment. Nevertheless, the Court will address this issue when deciding the quantum in the remedy for the Claimant. 解雇的理由就只是限制在解雇信里的理由而已，雇主不能在后期(法庭理)列出其他的‘新’的理由
- The Claimant’s dismissal by the Company was done hastily, pre-emptive, premature and unfair labour practice because the Company had failed to carry out any investigation against the Claimant and decided to terminate the Claimant summarily by merely relying on the arrest of the Claimant by MACC on suspicion of corrupt practice. The Company failed to adduce sufficient evidence to discharge the burden of proof that the Claimant had committed the offence for which he had been dismissed. The Court hereby holds that the Claimant’s dismissal was without just cause or excuse. Remedy
- It is trite law that in awarding compensation, the Court may also consider the contributory conduct of the employee in reducing the compensation. [See Syarikat Permodalan Kebangsaan Bhd v. Mohamed Johari Abdul Rahman  2 MELR 398]
- In the case of George Kent (M) Sdn Bhd v. Steven Koh Hon Seng  1 MELR 622, the Industrial Court states as follows:
“It is settled that contributory misconduct of the claimant can be taken into consideration in assessing compensation and reducing award. I am not aware of any authority on past misconduct affecting the quantum of compensation. But in my view, the working of s 30(5) of the Industrial Relations Act 1967 which requires the Industrial Court to act according to equity and good conscience to prevent injustice to both employee as well as employer, evidence of misconduct discovered subsequently may be taken into account in assessing a just and equitable compensation. The Court cannot, in equity and good conscience award a fraudulent employee who has successfully concealed his fraud or dishonest dealing to the employer’s detriment, a compensation of a substantial sum. I am of the view, facts discovered by the employer not relevant to the issue of dismissal may nevertheless become relevant to the question of quantum in compensation.”
- Based on the above authority, the Court is of the view that facts discovered by the employer or admission by an employee as in this present case although not relevant to the issue of dismissal may nevertheless become relevant to the question of quantum in compensation.
- The Claimant in his Appeal Letter dated 07.03.2019 ie 3 months after his dismissal admitted that he had in 2011 actually received monies from one Hubert Ng of Diamoney Jewellery Holdings Sdn Bhd (“DJHSB”) via ang pow and also via subsequently online transfer into his bank account without the Claimant’s approval.
- The Court note that the Claimant contends that when he received the monies, he was not in a position to influence the decision in connection to DJHSB’s application for tenancy or store rentals at the Airports. Further, COW-1 also admitted that there is no evidence to show that Claimant had given special treatment or privilege to DJHSB’s in any business dealings in particular the rental matters. The Claimant had in fact, testified against DJHSB’s in a recovery suit at the Sessions Court commenced by the Company against Diamoney and the Company was successful in obtaining a judgment sum of RM 582,000.00 against Diamoney.
- The Court also note that this issue of Claimant receiving monies from Diamoney arise because of the Claimant’s Appeal Letter which was written to show his good intention that he had never acted against the interest of the Company throughout his services of 24 years in the Company. If not for the Claimant’s revelation on this issues, the Company would have not known of this matter.
- This Court as a Court of Equity, however, would not condone the Claimant’s act of receiving monies from a third party who has an interest in the Company. For this reason, the Court will deduct 30% from the back-wages. Taking into consideration all the factors in this case as stated above, the Court hereby makes the following orders:
RM12,734.25 x 24 months less 30%
RM305,622.00 – 30% = RM213,935.40
ii. Compensation in lieu of reinstatement of one month salary for each completed year of service
RM12,734.25 x 24 months = RM305,622.00
iii. Therefore, the total sum payable by the Company to the Claimant:
RM213 935.40 + RM305,622.00 = RM519,557.40
Source: Zulkeflee Abdullah v. Malaysia Airports Holdings Berhad  MELRU 416. Industrial Court Kuala Lumpur. Gulam Muhiaddeen Abdul Aziz.
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