Can a Company justify the dismissal of a workman by relying on a reason raised for the first time at the Industrial Court (i.e after the dismissal)?

MARITIME INTELLIGENCE SDN BHD v TAN AH GEK [2021] 4 ILR 417

• Ms Tan Ah Gek [the Claimant], was employed by the Company as the Vice President – Services and Registrar of the Netherlands Maritime Institute of Technology College.

• Close to a year into her employment, the Company dismissed the Claimant for alleged misconduct, including amongst others, acting unprofessionally and using derogatory language and showcasing unethical behaviour.

• The Claimant then referred her dismissal to the Industrial Relations Department pursuant to Section 20 of the Industrial Relations Act 1967 (“IRA 1967”)

• At the Industrial Court, the Company had raised for the first time, in its pleadings that the Claimant’s postgraduate degree was not from an accredited university, thus making her unqualified for the position from the outset (“New Ground”).

• The Industrial Court held that the Company cannot rely on the New Ground as it was not advanced earlier – i.e not stated in the notice to show cause, not brought up before the domestic inquiry and not stated as a ground in the notice of dismissal issued to the Claimant.

• Dissatisfied with the decision of the Industrial Court, the Company challenged the decision at the High Court, then appealed to the Court of Appeal and subsequently to the Federal Court.

• At the High Court, the High Court upheld the Industrial Court’s decision.

• On appeal to the Court of Appeal, the Court of Appeal dismissed the appeal – The Court of Appeal was of the view that only in rare circumstances the Industrial Court can rely on a ground not advanced earlier i.e where the misconduct could not have been found earlier through reasonable diligence.

The Federal Court in dismissing the appeal stated that:-

• Section 20 of the IRA 1967 makes it clear that representations made to the Industrial Court are based on the employee’s subjective view that his/her employment has been terminated without a well-grounded, impartial and reasonable basis.

• Thus, it follows that the Industrial Court’s jurisdiction when investigating and adjudicating upon the representations of an employee when assessing the fairness of a dismissal is limited to the reasons, factors or events operating in the mind of the employer at the time of dismissal resulting in the representation.

• Any reasons advanced by the employer at a subsequent stage, which were not raised at the time of the dismissal and not forming the scope of the representation, would fall outside the jurisdiction of the Industrial Court to assess.

• However, in the event there are compelling new facts/findings arising after the dismissal which implicate an employee, then those new facts/findings would go towards determining the remedy afforded to the claimant – i.e the Industrial Court may reduce the award of compensation in lieu of reinstatement.