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Balancing Act: How to take disciplinary action for insubordination where employee may have mental fitness issues

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11 January 2024

Wong Keat Ching together with Wong Yen Ni from Zul Rafique & Partners’ Employment and Industrial Relations Practice Group have successfully acted for PETRONAS (“the Company”) in an unfair dismissal claim by a former employee at the Industrial Court, wherein YA Tuan Syed Noh Bin Said Nazir @ Syed Nadzir handed down Industrial Court Award No. 2403 of 2023 dated 21.12.2023.

BRIEF FACTS
In Adibah Hani Binti Azit v. Petroliam Nasional Berhad (PETRONAS)[1], the Claimant was assigned to ALEXIS Gas Processing Santong Project (“ALEXIS GPS Project”) where the Claimant held the position of Project Engineer.

In 2018, the Head of Project Management at Petronas Gas Berhad (PGB) assigned the Claimant to the third phase of the ALEXIS GPS Project. However, the Claimant refused to attend the project office and ceased contributing to the project. Numerous reminder emails were sent instructing her to fulfill her duties, but she refused to obey. Instead, she insisted that there was no official letter for such assignment. During the disciplinary process, the Company came to know that the Claimant may have mental health issues. As such, the Company requested the Claimant to undergo a "Fit To Work" assessment, which took place on 2.3.2019. The assessment confirmed her fitness to work. Subsequently, the Company proceeded with the Domestic Inquiry against the Claimant on 7.5.2019 and 8.5.2019, wherein the Claimant was found guilty on 6 out of 7 charges of misconduct. Due to the severity of her proven misconduct, the Company dismissed the Claimant from service. The Claimant appealed, but the Company upheld the dismissal, affirming the disciplinary action.

The 6 charges of misconduct for which the Claimant was found guilty related to: (i) neglect and/or failure to obey official instruction from her superior to report for duty and/or resume her work (Charges 1, 2, 3 & 4), (ii) wrongful accusation against her superior to commit false reporting (Charge 5) and (iii) dishonesty in providing false information regarding performance rating for FY2018 (Charge 6).

DECISION OF THE INDUSTRIAL COURT
Charges 1, 2, 3 & 4: Neglected and/or failed to obey official instruction from her superior to report for duty and/or resume her work

The Claimant failed to obey official instructions from her superior and Project Manager of the ALEXIS GPS Project by not showing up at the office on the prescribed dates, and by not completing the tasks assigned to her. The Claimant’s defence was that she had not received the Company’s official letter of assignment to the Project, and she did not want to attend at the Project office since not all staff were present at the office. The Industrial Court found the Claimant’s explanations to be unacceptable given her role in the ALEXIS Project.

The Industrial Court found that the Company has adduced sufficient evidence that the Claimant was aware that she was at all times assigned to the ALEXIS Stage 3 Project, and that she played a crucial role in the Project as the Project Engineer and right-hand person to the Project Manager. Further, the Industrial Court found that the Claimant had failed to complete the tasks assigned to her on the PPMS Suite, which formed part of her duties and responsibilities as a Project Engineer.

Charge 5: Wrongful accusation against superior to commit false reporting
The Court noted that the Company’s evidence that there was no issue of false reporting of the Monthly Progress Reports for Project EMERY was never challenged by the Claimant. Therefore, pursuant to Forest Steel Sdn Bhd v Iconic Gateway Sdn Bhd & Anor and Another Appeal [2020] 7 CLJ 19, the testimony that there was no false reporting on the progress reports and that the Claimant’s superior did not instruct the Claimant to do any false reporting was deemed to be accepted by the Claimant.

Charge 6: Dishonesty in providing false information in performance rating for FY2018
Based on the testimonies and evidence adduced before the Industrial Court, it was undisputed that the Claimant had viewed and knew that her performance rating was 3S for FY2019, and yet she had dishonestly declared that her performance rating for FY2019 was 3L in her complaint email to the Company.

Fairness of the Domestic Inquiry
The Claimant raised the issue that there was delay in the issuance of the Notice of Domestic Inquiry on 24.4.2019 whereas the acts of misconduct happened in 2018. The Company explained that the Claimant was requested to undergo medical examination in early 2019 to ensure that she was fit to work, before the Company proceeded with the disciplinary process, including the Domestic Inquiry. The Industrial Court concluded that the Company has shown that it had taken sufficient steps to ensure that the Claimant had a fair opportunity in the Domestic Inquiry process and any alleged ‘delay’ in the process was only to ensure that the Claimant was truly mentally and emotionally ready to undergo the disciplinary process in a fair manner.

Dismissal was with just cause and excuse
The Claimant's overall behaviour exhibited a deliberate defiance of lawful company orders, dishonesty, and negligence in performing her duties. Her consistent refusal to comply with her superior's directives to attend the project office and fulfill her responsibilities, coupled with dishonest statements about her superior, constituted serious misconduct, resulting in the breakdown of the employer-employee relationship. The Industrial Court found that these actions, whether viewed individually or collectively, represent severe transgressions that no employer should tolerate, particularly given the subordinate's determined disregard for superiors' instructions and the dissemination of untruthful emails. Considering the presented facts and legal precedents, the Industrial Court concluded, on a balance of probabilities, that the 6 charges against the Claimant warranted dismissal. The Court held that the dismissal was a proportionate response to the gravity of her misconduct.

Key Takeaways
Employers should strive for timely initiation of domestic inquiry proceedings. Delays may raise questions about fairness, and providing a clear explanation for any delays, such as medical assessment, is crucial. It is also important to maintain proper documentation, including reports from medical professionals. Such documentation can serve as evidence in demonstrating that the employee was fit to undergo the disciplinary process as seen from the case above where the Industrial Court considered these assessments and the Company's efforts to ensure the Claimant was mentally and emotionally ready for the disciplinary process.
[1] Award No.: 2403 of 2023

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