30 January 2024

P. Thavaselvi from Zul Rafique & Partners’ Employment & Industrial Relations Practice Group has successfully acted for Public Bank Berhad (“the Bank”) in an unfair dismissal claim by a former employee (“the Claimant”) at the Industrial Court, wherein YA Tuan Ahmad Zakhi bin Mohd Daud handed down Industrial Court Award No. 2374 of 2023 dated 14.12.2023.

Brief Facts
The Claimant was employed as a messenger in 1996 but was dismissed by the Bank in 2020 due to allegations of misconduct, namely (1) failure to declare excess cash of RM40.00 incurred during his day-end balancing, and (2) temporary misappropriation of the said cash. A Domestic Inquiry (“DI”) was conducted whereby the Panel came to the conclusion that all charges against the Claimant had been proven. At the DI, the Claimant and his representative had cross-examined the Bank’s witnesses, the Claimant had the right to be heard in his defence when the prosecuting officer cross-examined him, and the Claimant also did not object to the composition of the DI panel.

Decision of the Industrial Court
The Industrial Court held that the Claimant was accorded with a valid DI which was in compliance with the rules of natural justice. The factors considered were among others: (i) The Claimant was served with a Show Cause letter specifying allegations against him, (ii) the Claimant was served with a Notice of DI specifying charges preferred against him, (iii) the Claimant was allowed full opportunities to defend his case, and (iv) the DI Panel consisted of other employees from various departments as to avoid bias and there was an absence of objection from the Claimant as to the members. The DI notes also showed that correct procedures were applied in conducting the DI.

For Charge 1, the Claimant admitted to having incurred an excess cash of RM40.00, yet he failed to declare it during day-end balancing despite knowing the rules and regulations of the Company.

For Charge 2, the Claimant’s suspicious movement was recorded by the CCTV whereby he moved cash from the cash drawer to his petty cash box and he subsequently returned the same. Despite being instructed to perform an error correction for the alleged wrongly posted transaction, no declaration was made.

To conclude, the Claimant failed to furnish a plausible explanation for both charges initiated against him thereby constituting a prima facie case made out against him.

Dismissal with just cause and excuse
Pursuant to Article 17(1)(b)(vi) MCBA/NUBE Collective Agreement, the Bank satisfied the Honourable Court that on the balance of probabilities, it has rightly terminated the Claimant’s employment contract without notice premised on grounds of serious misconduct.

Key Takeaway
  • It is important for any DI process to adhere to the rules of natural justice including the right to be informed of the alleged misconduct, right to call his witnesses, and right to present his case.
  • For an unfair dismissal claim, the standard of proof applicable is on the balance of probabilities despite such dismissal being premised on a criminal offence.
  • Employers and employees ought to be aware of their rights and obligations set out under applicable Collective Agreements.
For more insight into this area of law, please contact our Partner in our Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam
Teoh Alvare

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