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Zul Rafique & Partners Succeeds in Upholding Industrial Court Award for Dismissal of Employee with 36 Years of Service Based on A Single Misconduct

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Click HERE for the Mandarin version of the case update.

Wong Keat Ching and Wong Yen Ni from Zul Rafique and Partners’ Employment and Industrial Relations Practice Group, have successfully defended Hengyuan Refining Company Berhad (“the Company”) in a judicial review of the Industrial Court Award No. 693 of 2020.

In essence, the High Court refrained from disturbing the Industrial Court’s findings of facts based on witness credibility, in particular the testimony of a Bangladeshi employee who could only speak simple Malay. The High Court also upheld the dismissal on a single misconduct despite 36 years of service with no prior misconduct.

Brief Facts
The Applicant Employee (“Applicant”) had been continuously employed by the Company for 36 years. Prior to his dismissal, he held the position of Technical Executive Infrastructure under the Infrastructure and Facilities Management (“IFM”) Department of the Company.

One of his responsibilities amongst others, was to monitor the work of the IFM Contractors of the Company. This included third party contractors from a company providing cleaning services to the Company.

A total of 8 charges of misconduct were levelled against the Applicant during the domestic inquiry. However, he was dismissed based on findings of guilt for a total of 5 charges. The charges for misconduct were for bringing workers of the cleaning services contractor to his personal residence to carry out different housekeeping tasks during working hours on various days, and paying them a sum of money thereafter.

Industrial Court found Applicant guilty of only one charge
The Industrial Court evaluated all the evidence and found the Applicant guilty only for Charge No. 5, which is for bringing 3 workers of the cleaning services contractor to his personal residence during working hours around 10.00am to 7.00pm to perform housekeeping work – including packing old clothes and carrying them out to be burnt.

The Industrial Court relied on the testimony of only 1 of the 3 workers from the cleaning services contractor called to testify on the charge (namely “COW-9”) to prove the elements of Charge No. 5. Despite contentions by the Applicant’s counsel that COW-9 was not well-versed in Malay or English, the Industrial Court concluded that COW-9 “nevertheless managed to give his oral evidence to the best of his ability in simple Malay language”.

Dismissal was with just cause and excuse
Although the Industrial Court ultimately found the Applicant guilty of only 1 of the 5 charges, the Industrial Court still held the dismissal to be with just cause and excuse for the following reasons:
 
(1) The misconduct of taking the cleaning services contractors out from their working hours to conduct personal cleaning work at the Applicant’s house was a serious offence that no reasonable employer would tolerate.
 
(2) The seriousness of the misconduct was compounded by the fact that the Applicant had breached anti-bribery and corruption guidelines by rewarding the contractors with money for the cleaning jobs they had performed.
 
(3) The Applicant failed to comply with the procedure set out by the Company to declare or seek approval for the use of such cleaning services at his personal residence, if at all the work was done outside working hours as contended by the Applicant.

Upon analysing the evidence and facts in its entirety, in particular the evidence of the sole witness who performed the cleaning jobs at the Applicant’s residence i.e. COW-9 who testified in simple Malay, the Industrial Court was satisfied that COW-9 was a credible witness and despite his basic understanding of the Malay language, he could testify truthfully on the facts of the case.  As such, the Industrial Court held that the Applicant’s dismissal was with just cause and excuse. Dissatisfied with the Industrial Court Award, the Applicant filed an application for judicial review at the High Court and sought an order of certiorari to quash the Industrial Court’s decision.

High Court upholds Industrial Court Award
In the High Court, it was submitted for the Company that (1) there were no errors of law in the Industrial Court’s findings based on COW-9’s evidence; (2) the elements forming Charge No. 5 had been proven; and (3) the punishment of dismissal was proportionate due to the serious nature of the misconduct, and the lack of remorse from the Applicant.

Yang Arif Tuan Azizul Azmi bin Adnan, Judge of the High Court at Seremban, held that there was no reviewable error in the Industrial Court Award and dismissed the Applicant’s judicial review Application.

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

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