Can an employer come up with a reason to dismiss an employee after the dismissal?

MARITIME INTELLIGENCE SDN. BHD. v. TAN AH GEK [2021] 1 LNS 1578

• Maritime Intelligence Sdn Bhd (“the Company”) owns an educational institution named the Netherlands Maritime Institute of Technology (“the Institute”).

• Tan Ah Gek (“Jenny”) commenced employment on 17 March 2014 as the Vice President-Services & Registrar.

• Jenny’s pre-employment interview was conducted by a panel comprising the President of the Institute and several directors of the company.

• During the interview, Jenny made available all her certificates and qualifications including the impugned qualification relating to Newport University.

• At that time, she was not queried on the qualifications nor its accreditation in Malaysia.

• In short, her qualifications were accepted and fully disclosed by her.

• Subsequently, throughout her employment, no one in the organization queried her on this issue either.

• The complaints leading up to her dismissal arose as a consequence of a petition signed by more than half of the employees of the company, alleging that Jenny had abused her power and conducted herself unethically and unprofessionally.

• The Company appointed an independent person to investigate the petition, Haji Arip, a retired director from the labour department.

• Based on Haji Arip’s investigation and report, the company was convinced that Jenny had committed misconduct and issued a show-cause letter on 6 January 2015. It found Jenny’s explanation unacceptable and proceeded to conduct a domestic inquiry.

• The domestic inquiry panel found that there was sufficient cogent and convincing evidence to indicate that the allegations against Jenny were established.

• The Company dismissed Jenny with immediate effect vide letter dated 5 February 2015.

• Jenny appealed but the Company responded stating that given the findings of improper conduct, it was untenable for her to continue in her employment with the Company.

• Jenny then filed a representation under section 20 seeking reinstatement, leading to a reference to the Industrial Court.

• The Industrial Court concluded that the dismissal was without just cause or excuse. The Industrial Court rejected reinstatement as an appropriate remedy but awarded Jenny compensation instead.

• The Company raised for the first time in the Industrial Court, in its pleadings, the allegation that the dismissal was justified because Jenny was never qualified for her position from the outset, as her Master’s degree was from Newport University in the United States of America, which was an unaccredited university in Malaysia. Further and alternatively the company also raised for the first time that Jenny’s claim to have obtained the Master’s degree was false.

• The Company sought to quash the decision of the Industrial Court in the High Court.

• The High Court dismissed the Company’s application for judicial review.

• The Company appealed to the Court of Appeal on the sole ground that the Industrial Court wrongly rejected and failed to consider the evidence on Jenny’s purported lack of qualifications.

• The Court of Appeal dismissed the appeal.

• The Company appealed to the Federal Court.

• The Federal Court held that the provisions of section 20 of the Industrial Relations Act supports the legal position that the Industrial Court is statutorily empowered only to examine, adjudicate and hand down an award as to whether the dismissal was with or without just cause or excuse premised on matters operating in the mind of the employer at the time of the dismissal.

• As such the Court cannot take into account allegations raised post-dismissal to justify the dismissal.

• Any such ‘just cause or excuse’ can only refer to the reason resonating in the employer’s mind, before, or preceding the decision to dismiss.

• However, the Federal Court did go on to say that the Court can take into account conduct discovered post-dismissal when considering the remedy to be awarded to the employee [if the employer does not succeed in proving that a termination was with just cause and excuse].