Wong Keat Ching and Syazwani binti Suhaimy from ZUL RAFIQUE & partners’ Employment & Industrial Relations team succeeded in defending Tenaga Nasional Berhad (the “Company”) in a consolidated unfair dismissal claim by 3 claimants (collectively the “Claimants”) namely, Mohd Nizam bin Baharom (the “First Claimant”), Shariman bin Shammim (the “Second Claimant”), and Mohd Zul Husni bin Che Mail (the “Third Claimant”) in the case of Mohd Nizam bin Baharom v Tenaga Nasional Berhad (Award No 305 of 2021), Industrial Court (the “Court”).

The Company is the national electricity company in which the Claimants were employed. The First Claimant was an Authorised Person (“AP”) who had received Authorisation from the Regional Control Centre (“RCC”) to carry out work to repair the fault between the electrical substations of Kampung Melayu Subang and Subang Low Cost (“Work Site”). The First Claimant then left Work Site to go to another site in Anshin, Shah Alam. Before he left the Work Site, the First Claimant assigned the task of cable phasing test at the Work Site to the Second Claimant who was also an AP without revoking the Authorisation by RCC nor informing RCC. The Second Claimant who did not receive any Authorisation from the RCC then proceeded to further assign the task of cable phasing test without any official work order or documents to the Third Claimant who was a Competent Person (“CP”). This was contrary to the Company’s safety procedure which clearly states that only the AP can carry out tests including phasing test. The cable phasing test conducted by the Third Claimant was unsuccessful, causing an electrical flash over that killed one employee and seriously injured another two at the Site.

The main issue to be decided by the Court was whether the punishment of dismissal was proportionate to the Claimants’ misconduct of failing to adhere to the Company’s safety procedures. The Court held that the First Claimant as an AP who had received Authorisation from RCC was fully responsible for the work and the workers at the Work Site. His failure to be at the Site to carry out and supervise the phasing test constituted a serious misconduct. He had failed to take reasonable care as he owed a duty to the Company to exercise reasonable skills in the performance of his job as the AP at the Site with Authorisation issued by the RCC. Similarly, the Second Claimant had committed a serious breach of the Company’s strict safety procedures by assigning the Third Claimant who was only a CP to carry out the phasing test at the Work Site that must only be carried out by an AP. The Third Claimant who was a CP could only carry out the phasing test with the supervision or presence of an AP. His qualifications as a CP are subject to the safety rules and procedure of the Company.

The Court concluded that the Claimants had clearly breached the safety procedures of the Company which constituted a serious misconduct and their utter disregard of the Company’s safety procedures had caused the loss of life of their fellow employee. The Court finds that the Claimant’s dismissal was with just cause or excuse. Such serious misconduct attracts punishment of dismissal which commensurate with the gravity of the offence.

For more insight into this area of law, please contact our Partners in the Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Teoh Alvare