Employment – Whether proven misconduct by employee deserved punishment of dismissal.

Mashkon Hj Samuri v Orang Kampung Holdings (M) Sdn Bhd [2016] 3 CLJ 759

• The appellant (“Mashkon”) was formerly an employee of the respondent (“the Company”).
• Mashkon’s employment with the Company was terminate pursuant to an internal investigation which was conducted in respect of 3 original charges against him, which are: –

1. failure to complete handover duties to the acting factory manager;
2. failure to use the punch card since 1 January 2007; and
3. failure to comply with the instructions of the Company in participating in a game at Majlis Sukan Melaka.

• Apart from the 3 original charges, Mashkon also faced an additional set of 11 new charges.
• Mashkon pleaded guilty to the 3 original charges.
• However, the panel members of the Disciplinary Inquiry (“DI”) found that the 11 new charges were serious offences and the explanations given by Mashkon were not acceptable.
• Therefore the DI was of the view that Mashkon’s service with the Company ought to be terminated.
• The Industrial Court (“IC”) found that Mashkon’s termination was without just and valid excuse and that the dismissal was not an appropriate order under the circumstance of the case.
• The IC awarded compensation and backwages to Mashkon.
• Dissatisfied, the Company filed an application for judicial review to quash the decision of IC’s award.
• The High Court Judge (“HCJ”) allowed the judicial review application holding that the dismissal was with valid and just excuse.
• Hence, this appeal by Mashkon on the ground that the HCJ had erred in law and in fact.

• As Mashkon had been sanctioned by way of a warning letter pertaining to his breach of non-clocking in of his time card, in law, no further or subsequent action could be taken against him.
• The Company had based its disciplinary action against Mashkon on the same breach, for which he had been penalized albeit by way of a warning.
• Such an action of the Company was not allowed by law, wherein Mashkon had been penalized twice for the same offence.
• Having established misconduct on part of the employee, the IC has the authority to exercise equity in deserving cases.
• In this case where the IC is involved, the right to prove “a just cause or excuse for the dismissal” no longer resided within the exclusive domain of the employer in the private sector employment.
• The Company had also failed to show that Mashkon’s failure to handover duty properly had in fact resulted in important information not being passed to the Company, thereby exposing the Company to various unfavourable legal actions.
• The IC had the necessary jurisdiction to depart from the punishment that was imposed by the employer.
• Furthermore, the circumstances warranting such a drastic punishment were not established by the Company.
• Therefore, there was no jurisdictional error committed by the IC for the HCJ to disturb the award.