Unijaya Electrical Supply Sdn Bhd v Muhammad Izzuddin Bin Ab Rahim (BA-16-46-09/2024)

This is an appeal against the decision of Director General of Manpower (DGM) dated 19.8.2024 which allowed the Respondent’s claim in the sum of RM21,266.79.

After careful consideration of the records of appeal and the submissions, this Court decided to dismiss all the appeals. The following are the reasons for that decision. S/N jlelpkdr02dPl0zzeECug Proceedings before the DGM

The Respondent worked as a lorry driver for the Appellant since 1.3.2017. His last drawn salary was RM3,150.00 and an allowance of RM230.00 per month.

The Respondent lodged a complaint with the DGM alleging that he was terminated without notice. He made the following claims –

salary in lieu of 1 months’ notice;

(ii) termination benefits; and

(iii) salary in lieu of 2 days’ annual leave.

The Respondent admitted receiving 3 warning letters before his termination on 31.5.2024. The warning letters were issued for –

sleeping at the work place;

(ii) bad work attitude; and

(iii) violation of company rules and policy.

The Respondent admitted to sleeping on the job and said that the second warning was for his failure to punch in as required. The final letter was in respect of his refusal to do deliveries using his motorcycle as he was not paid any travel allowance.

He contended that he was not afforded any opportunity to explain himself and therefore was deprived of his right to be heard before his dismissal. S/N jlelpkdr02dPl0zzeECug The DGM’s decision

The DGM made the following findings –

the Respondent was a employee;

(ii) the contract of service provided for the determination of employment by giving one-month notice;

(iii) the Respondent was terminated with immediate effect;

(iv) the Appellant did not conduct any inquiry into the Respondent’s misconduct; and

the Respondent was entitled to termination benefits.

The DGM allowed the Respondent’s claim and calculated the benefits due to the Respondent as follows – BIL BULAN PENDAPATAN (RM) 1 Jun 2023 3,630.00 2 Julai 2023 3,630.00 3 Ogos 2023 3,630.00 4 September 2023 3,728.00 5 Oktober 2023 3,691.30 6 November 2023 3,630.00 7 Disember 2023 4,112.22 S/N jlelpkdr02dPl0zzeECug 8 Januari 2024 3,800.00 9 Februari 2024 3,740.00 10 Mac 2024 3,740.00 11 April 2024 3,688.59 12 Mei 2024 3,510.00 JUMLAH 44,530.11 Tarikh mula bekerja : 1.3.2017 Tarikh diberhentikan kerja : 31.5.2024 Tempoh perkhidmatan : 7 tahun 2 bulan (7.16) Tempoh kelayakan faedah penamatan : 20 hari ((RM44,530.11) / 365) x 20 x 7.16 = RM17,486.79 Principles of law

Section 77 Employment Act 1955 (Act 265) provides that the procedure for an appeal to the High Court is the same procedure as an appeal from the Sessions Court.

The general principles of law in respect of the appellate jurisdiction of the High Court hearing appeals from the Subordinate Court is as pronounced in China Airlines Ltd v. Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd and another appeal [1996] 2 MLJ 517 at 527 and UMW Motor Sdn Bhd & Anor v. Allan Chong Teck Hin [2021] 3 MLJ 107 at 117. S/N jlelpkdr02dPl0zzeECug

Guided by these principles, this Court examine the proses of evaluation of evidence and the application of law by the DGM in arriving at her decision regarding the Respondents’ claim. The Appellant’s complaint

The Appellant’s complaints in the Memorandum of Appeal can be summarised as follows; that the DGM failed to consider –

the Respondent did not prove his allegation on a balance of probabilities;

(ii) the Respondent admitted to his misconducts and

(iii) the failure to hold the inquiry was fatal and a deprivation of the Respondent’s right to be heard. Findings

The Appellant argued that –

the Respondent admitted his misconducts and therefore they were justified in terminating him with immediate effect; and

(ii) the failure to hold a domestic inquiry was not fatal. The DGM is should first determine whether the misconduct was in fact committed and whether the misconduct could constitute just cause or excuse for dismissal (Wong S/N jlelpkdr02dPl0zzeECug Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd and another appeal [1995] 2 MLJ 753 at headnote [2]).

The Respondent admitted to sleeping on the job and said that the second warning was for his failure to clock in as required. The final letter was in respect of his refusal to do deliveries using his motorcycle as he was not paid any travel allowance.

The Respondent submitted that the Appellant failed to issue a show cause letter or hold a domestic inquiry and afford the Respondent an opportunity to be heard. He was simply dismissed without due process (Kirenjit Kaur a/p Ranjit Singh v. Leanus Pharma Sdn Bhd [2018] ILJU 94 at para [7]).

On the issue of misconduct, the DGM found that the failure to hold a domestic inquiry was fatal. She held that – “Mahkamah berpendapat, tiada kenyataan atau dokumen daripada Defendan yang menunjukkan bahawa kesalahan yang dilakukan oleh Pengadu telah diadili dengan sewajarnya berdasarkan prinsip natural justice iaitu melalui proses siasatan dalaman. Walaupun kes Pengadu merupakan kes salahlaku, Mahkamah berpendapat Defendan tidak boleh menamatkan perkhidmatan Pengadu serta-merta sebelum satu siasatan dalam dijalankan ke atas Pengadu.” S/N jlelpkdr02dPl0zzeECug

This Court was mindful that in Maritime Intelligence Sdn Bhd v. Tan Ah Gek [2021] MLJU 2189, Nallini Pathmanathan FCJ held di [para 104] – “In relation to domestic inquiries, the general principles of good industrial practice and natural justice require that an employer ought to hold a domestic inquiry prior to dismissing a workman for misconduct. However a failure to hold a domestic inquiry is not fatal. Otherwise an employer who had perfectly just cause or excuse on the substantive merits of a case to dismiss an employee, would be compelled to reinstate or pay compensation to a workman guilty of grave misconduct, simply because it had failed to comply with this procedural requirement. Therefore the position in law as enunciated in the leading case of Dreamland (above) is that where an employer fails to hold an inquiry, or an inquiry is found to be defective, it is open to the employer to establish afresh at the inquiry before the Industrial Court, that the dismissal was indeed with just cause or excuse. In other words, the employer is at liberty to establish the basis for the decision to terminate the workman. (Lim Eye Thun v. Majlis Peguam Malaysia & Anor [2010] 2 MLJ 444 di 462; [2010] 2 CLJ 45; [2010] 4 AMR 125).”

In the case where there is just cause or excuse on the substantive merits of a case for termination, the failure to hold a domestic inquiry is not fatal. However in this case, having perused the warning letters, this Court finds that the Appellant’s cause for terminating the Respondent is not clear. S/N jlelpkdr02dPl0zzeECug

This Court perused the warning letters.

the first warning letter dated 25.3.2024 – “Dear Sir, You were found guilty for sleeping few time at work place and has thus neglected your duties. Your are hereby warned to be careful of your conduct while in duty. Recurrence of this misconduct or any other misconduct will lead initiation or severe disciplinary action against you. Company has the authority to sack you from the job for poor performance.”

(ii) the second warning letter dated 27.5.2024 – “Dear Sir, The management decided to give you a 2nd warning due to you continue to have a bad work attitude. Your work attitude has not improved but has become worse even though you have received the first warning letter. Since 10th May 2024 your work rotate is to punch card in and start standing aside and do nothing while waiting for lunch and the end of get off work. You does not help anyone in the shop even though everybody is busy or not enough workers. You also refuse to help loading and unloading because you say you are just a lorry driver job S/N jlelpkdr02dPl0zzeECug scope. However, you job scope is not specified in appointment letter as only a lorry driver (that is a word with e.t.c).”

(iii) the final warning letter dated 30.5.2024 – “Dear Sir, This is final warning to you regarding your violation of the company rules and policy. Prior to this warning, we have already given you many of verbal on the difference issue. Corrective action was also suggested, and though we understand that you have done your part in trying to remedy this issue, it seems that it is becoming more difficult for both you and the company to deal with it lightly. We would like to remind you that your continued violation of the same policy will be grounds for immediate termination from your employment here at Unijaya Electrical Supply Sdn Bhd. Please comply to avoid further issues from this day forward. All written warnings are made part of your official employee records. Your cooperation regarding this matter compulsory. We will not tolerate such behaviour that will compromise the company and our employees.” S/N jlelpkdr02dPl0zzeECug

The first warning letter was clear; the Respondent was found sleeping on the job. The Respondent admitted the misconduct. He was reprimanded and rightly so.

The 2nd warning letter says bad work attitude; and it seems to be related to the fact that he did not help around the company. The Respondent, however, said it was because he failed to clock in his attendance as required. This is highly subjective but again he was reprimanded.

The 3rd warning letter says violation of the same policy but no evidence was provided what this policy was. The termination is also pithy and does not set out the reasons for his termination.

In these circumstances, this Court is hard pressed to find the just cause for the immediate termination. The Appellant has failed to discharge the burden of proof of showing misconduct that justified the termination.

This Court is satisfied that the DGM’s decision was correct o and does not warrant appellant intervention. S/N jlelpkdr02dPl0zzeECug S/N jlelpkdr02dPl0zzeECug