INDUSTRIAL COURT OF MALAYSIA

PERAK BRANCH

CASE NO. 10(5)/4-649/22

BETWEEN

CHE ZAMBERI BIN CHE ANI

AND

MAB KARGO SDN. BHD.

AWARD NO. 320 OF 2025

BEFORE: Y.A. TUAN AHMAD ZAKHI BIN MOHD DAUD

- CHAIRMAN

VENUE: Industrial Court of Malaysia, sitting at Kuala Lumpur

DATE OF REFERENCE: 02/03/2022

DATE(S) OF MENTION: 05/04/2022, 13/06/2022, 15/07/2022, 01/12/2022,

28/02/2023, 05/04/2023, 15/05/2023, 04/07/2023,
03/10/2023, 23/10/2023, & 30/4/2024

DATE(S) OF HEARING: 14/04/2023, 21/05/2024 & 11/06/2024

REPRESENTATION: Auzan Hasanuddin Sazali with

Nur Mahirah Ani Abdul Rahim
Messrs. Mu’az Aiman Halem Auzan & Associates
Counsel for the Claimant

Nurul Aisyah Hassan with Summer Chong Yue Han

Messrs. Lee Hishammuddin Allen & Gledhill
Counsel for the Company

Reference:

This is a reference made by the Director General of Industrial Relations Malaysia

dated 02/03/2022 pursuant to Section 20(3) of the Industrial Relations Act 1967

which was received by the industrial Court on 08/03/2022 arising out of the alleged

unfair dismissal of CHE ZAMBERI BIN CHE ANI (hereinafter referred to as “the

Claimant”) by MAB KARGO SDN. BHD. (hereinafter referred to as “the Company”)

on 21/09/2021.

1
Factual Background:

[1] The hearing of this matter was conducted and heard before Y.A. Tuan

Ahmad Zakhi bin Mohd Daud, the Chairman at the Industrial Court of Malaysia,

Kuala Lumpur on 14/04/2023, 21/05/2024 and 11/06/2024. However, due to

mandatory retirement of the previous presiding Chairman from his services, and to

expedite the disposal of this matter in due course, the President of the Industrial

Court of Malaysia on 05/02/2025 had transferred this matter to the Industrial Court of

Malaysia, Perak Branch for the Chairman of the said division to adjudicate and

handed down the Awards pursuant to Section 22(2) dan 22(3), 29(g) and 30(8) of

the Industrial Relations Act 1967.

[2] Pursuant to the Malaysian Airlines System Berhad (Administration) Act

2015, MAB had taken over the assets and business of Malaysia Airlines with effect

from 01/09/2015. Thereafter with effect from 01/01/2016, the Company became a

full subsidiary under MAB. Vide an Offer of Employment dated 27/05/2015 (pages 8-

11 of COB-1) the Claimant was one of the few selected employees who were offered

employment with MAB despite the downsizing exercise undertaken at the material

time.

[3] The Claimant was then offered the position of Officer Cargo Handling

effective from 01/09/2015. Subsequently, vide a Transfer Letter dated 09/12/2015

(pages 47-48 of COB-1), the Claimant was transferred to the Company as Officer

MAB Kargo – Cargo Warehouse Handling Grade G-E3 with effect from 01/01/2016.

2
[4] The Claimant was made as an officer in the Cargo Handling – Export

Acceptance Department and reported to Muhammad Hafiz bin Richard Harding

(COW-1) who was an Assistant Manager in the Export Acceptance Department of

the Company. As stipulated in the Claimant’s Job Description, as an officer in Cargo

Handling – Export Acceptance Department, the Claimant was responsible for the

following:

(a) Ensuring all cargo are accepted in good condition an in line with the

Company’s procedures;

(b) Ensure piece count, packing condition, weight, dimension, marking and

labelling are properly checked and verified;

(c) Ensure all accepted cargo are screened through x-ray machine located at

the acceptance truck dock area;

(d) Responsible for coordinating and manage the export cargo handling

operations by vendors at the truck dock; and

(e) Ensure all accepted cargo are directed to the proper storage area.

[5] The Claimant had worked with the Company for six (6) years and 20 days

which is from 01/09/2015 until 21/09/2021 where the Claimant’s final position was a

Cargo Warehouse – Acceptance Officer with a monthly salary of RM2,564.80.

3
[6] Following a motor vehicle accident on 22/05/2021, the Claimant was

admitted to the Nilai Medical Center to receive treatment on 22/05/2021 and was

subsequently discharged on 25/05/2021. As a result of the motor vehicle accident,

he had suffered a clavicle fracture, fibula head fracture on his left leg and injured his

left wrist. Due to his injuries, the Claimant was placed on hospitalization and medical

leave from 22/05/2021. Following a medical report issued by the Nilai Medical

Center dated 31/07/2021, it was determined that the Claimant was still recovering

from his fractures and undergoing follow-up treatment and physiotherapy at the

same hospital.

[7] Taking into consideration, the Claimant’s welfare and adhering to the medical

recommendation, the Claimant was then placed on prolonged medical leave with full

pay effective from 22/05/2021 until 21/09/2021 in order to allow him to effectively

recover from his injuries.

[8] Eventually, it was later brought to the management’s attention that the

Claimant was among others seen climbing a tree when he should have been

recuperating from his illness. This was evident from the photograph captured of the

Claimant on 24/07/2021 (page 52 of COB-1). The Company also made aware of

video recordings dated 25/07/2021 and 06/09/2021 showing of the Claimant cutting

down a tree with a chain saw and playing “sepak takraw” during the period while he

was on prolonged sick leave.

[9] Upon this discovery and in line with the principles of natural justice, the

Company accordingly issued a Show Cause Letter dated 07/09/2021 (pages 56-58

4
of COB-1) to the Claimant to provide him the opportunity to explain why disciplinary

action should not be taken against him in respect of the allegations made against the

Claimant as follows:

Charge 1:

“That you as an employee of the Company on numerous occasions between

July and August 2021 while on prolonged medical leave due to road accident

had been found involving in activities that should not be done by someone

who is on long sick leave such as the following;

(i) Climbing tree

(ii) Cutting the tree using chain saw

(iii) Sport (sepak takraw)

(Photos & video attached)

We wish to emphasize that during hospitalization leave, it is only appropriate

for you to stay at home in order for you to recuperate from your illness, but

you were instead participated in outdoor activities.

The alleged act of misconduct committed by you tantamount to a breach of

the Company’s policies which includes but not limited to the Personal Data

Protection Act and Malaysia Aviation Group-Industrial Relations Handbook.”

Charge 2:

“That you as an employee of the Company had misled the Company as to

your alleged unfit to work by taking prolonged medical leave whereas in

5
 actual fact you had been actively involved in the activities as stated under

Charge 1 above. This act of misleading the Company is an act of dishonesty

and breach of fidelity on your part as an employee of the Company.

The alleged act of misconduct committed by you tantamount to a breach of

the Company’s policies which includes but not limited to the Personal Data

Protection Act and Malaysian Aviation Group-Industrial Relations Handbook.”

Charge 3:

“That you as an employee of the Company had continuously taken

excessive medical leave/hospitalization leave and/or prolonged illness leave

between June 2021 until to date with the intention not to come to work and

thereby indicating unwillingness to perform your contractual duties and

obligation which is contrary to the expected performance as per your

contract of employment with the Company. The details your absence from

work are as follows:

Total
Start Date End Date Leave Type Clinic/Hospital
Days
Nilai Medical
27-Aug-21 9-Sept-21 14 Prolonged Illness Leave-Full Pay
Center
Nilai Medical
6-Aug-21 26-Aug-21 21 Prolonged Illness Leave-Full Pay
Center
Nilai Medical
23-Jul-21 5-Aug-21 14 Prolonged Illness Leave-Full Pay
Center
Nilai Medical
9-Jul-21 22-Jul-21 14 Prolonged illness Leave-Full Pay
Center
Nilai Medical
25-Jun-23 8-Jul-21 14 Prolonged illness Leave-Full Pay
Center
Nilai Medical
9-Jun-21 24-Jun-21 16 Prolonged illness Leave-Full Pay
Center
Nilai Medical
22-May-21 8-Jun-21 18 Prolonged illness Leave-Full Pay
Center
111

6
 Your action as stated above shows your willingness and poor commitment

towards your duty as an employee despite you have been placed under

Performance Improvement Program (PIP) for 3 months from April until June

2021 but have failed to show any improvement.

The alleged act of misconduct committed by you tantamount to a breach of

the Company’s policies which includes but not limited to the Malaysia Aviation

Group-Industrial Relations Handbook.”

[10] Furthermore, it was also brought to the management’s attention vide a

Medical Report dated 22/09/2021 (pages 63-64 of COB-1) that the Claimant had

suffered further injuries to his left wrist and left shoulder on 22/07/2021. He was

subsequently treated with an upper limb cast for 6 weeks. Despite this, he had

engaged in the strenuous activities of climbing and cutting down trees on 24/07/2021

and 25/07/2021 instead of recuperating from his injuries.

[11] In response, the Claimant had replied with his letter dated 09/09/2021

(pages 59 of COB-1) whereby he had admitted and apologized in engaging in the

said activities and provided his explanations for his actions.

[12] Upon considering the Claimant’s admissions to the charges levelled against

him and all the facts surrounding the Claimant’s misconducts, the management

decided that the Company could no longer repose the necessary trust and

confidence in the Claimant to continue in his employment. Unfortunately, the

Claimant’s service was terminated with immediate effect vide letter of Punishment

Order dated 21/09/2021 (pages 60-62 of COB-1) due to the alleged misconduct of

7
not utilizing his prolonged illness leave to recover and recuperate from his injuries

but instead was climbing, cutting down trees and engaging in sports activities.

[13] Thereafter, the Claimant appealed against the decision of the management

to terminate his services with the Company vide his letter of appeal dated

28/09/2021 (pages 65-73 of COB-1). Upon assessing the contents of the Claimant’s

appeal, the management on the Company informed the Claimant vide latter dated

11/11/2021 (page 74 of COB-1) that its decision to dismiss the Claimant’s services is

maintained.

[14] On the other note, based on the Claimant’s 2020 performance evaluation, he

was rated “Rating 1” (do not meet expectation) and the Company found that the

Claimant’s work performance does not meet the expectations of his role. Hence,

vide a Company’s letter dated 26/03/2021 (page 51 of COB-1) he was placed in a

Performance Improvement Plan (PIP) Program for a period of three (3) months in

order to assist him in improving his work performance and addressing gaps in

delivery to his job role. The Company had commenced the PIP in April 2021 but was

unable to complete the same as the Claimant had been placed on prolonged medical

leave from 22/05/2021.

[15] Being aggrieved and dissatisfied with the decision of the Company as

abovementioned, the Claimant filed a representation claim in this reference claiming

for unfair dismissal against the Company pursuant to Section 20(3) of the Industrial

Relations Act 1967 for this division of the Industrial Court to hand down a just and

appropriate Award. Hence, this present claim.

8
The Claimant’s Case:

[16] In this case, the Claimant claims that he was dismissed without just cause

and excuse by the Company through a Punishment Letter dated 21/09/2021.

Throughout his employment with the Company, the Claimant had never been given

any warning letter and/or other disciplinary action and/or had no performance issue.

[17] The Claimant avers that the charges of allegation for misconduct are

defective and/or irregular as it did not state specifically the policy and/or rule that has

been breached in committing the alleged misconduct. The charge also did not state

the date, the time and the location of the alleged misconduct. Despite the Claimant

having not raised the issue of defective and/or irregular charge in his answer to the

show cause letter, but it did not render his right to raise this issue on defective and/or

irregular charge now where the effect is void ab initio, null and void from the

beginning.

[18] The Claimant contends that he is gradually being allowed to do light

activities including light sports during the rehabilitation and physiotherapy process

which can take at least 3 months to recover and it is not restricted to just being at

home doing nothing. His involvement in climbing the tree and/or cutting the tree

using a chainsaw and/or even playing sports are just minimal involvement that

cannot accelerate his injury. The Claimant himself is aware and would never place

himself in a risky activity. It is unrebutted that COW-3 himself had permits and

advised the Claimant to do so. Therefore, Claimant certainly not committing any

9
misconduct by doing those activities and certainly his action is not amount to a

misconduct which warrant his dismissal from the Company.

[19] The Claimant further contends that COW-3 is not the best person to give

expert opinion because he is in a conflict of interest position with the Claimant, and

that another colleague should be called to give an expert opinion to analyze the

Claimant’s condition as it is.

[20] The Company has failed to comply with the mandatory rules of natural

justice as it failed to abide by the requirements under section 14 of the

Employment Acts 1955 and has blatantly disregarded its own Malaysia Aviation

Group – Industrial Relations Handbook.

[21] The Company has made a hasty decision because all the explanations given

by the Claimant in his answer to show cause letter were blatantly ignored by the

Company and straightaway make a decision and dismiss the Claimant. The

Company failed to conduct a further investigation due to the ground that the

Claimant had admitted such misconduct in his explanation to show cause letter.

[22] The Company is doing a cherry-picking exercise of only looking at the

conduct but ignoring the reason offered by the Claimant like he just helping

neighbors, doing a little activity just to go sweat and following doctor’s instruction to

do little activities. The Company did not investigate all the points of defence as

stated in the Claimant’s letter of appeal against the Punishment Letter. Instead, the

Company indeed has made up its decision regardless there is an appeal from the

10
Claimant or not. Therefore, that the investigation or the due inquiry conducted by the

Company is insufficient and contravene section 14 of the Employment Act.

[23] The Claimant further contends that there is no full disciplinary inquiry against

the Claimant. The Company failed to explain for its basis for determining whether or

not the Claimant’s case needs to be escalated for a full disciplinary inquiry and there

is no reason given by the Company for deciding that the Claimant is not required to

attend a full disciplinary inquiry rather to relied only on the photographs and video

recordings being the basis of deliberation for the disciplinary committee. It is

unreasonable for the Company to rely solely on pictures and video recordings

without making the effort to investigate further the matter.

[24] The Company has completely not adhered to Clause 3.13.1 of the

Company’s Handbook and has failed to follow the Company’s policy. There is no

documentation to show what are the disciplinary committee’s deliberation to

conclude that the Claimant is guilty of the misconduct, thus the Company has drawn

and invoked an adverse inference under Section 114(g) of the Evidence Act 1950.

[25] The Claimant suffered the prejudicial effect of not having the right to be

heard as guaranteed under Section 14 of the Employment Act as the Claimant did

not know the reason for his appeal being rejected. Moreover, the Claimant did not

have the benefit of receiving the notice of inquiry and defending himself in front panel

of domestic inquiry. All these deprivation amount to breach of natural justice which

conclude that the dismissal was done without just cause and excuse.

11
[26] The Claimant submits that the punishment of dismissal given to the Claimant

was too harsh due to the reasons that he was worked with the Company

continuously for 6 years whereby this was the only first time that the Company

alleged him committing misconduct. Furthermore, the Company had not suffered

any financial loss due to the misconduct committed. The Company only assumed

that his prolonged sick leave will affect the Company’s operation without rendering

any proof to support the Company’s contention. They are many other types of

punishment that can be given to the Claimant such as warning letter but the

Company chose to terminate his service instead.

The Company’s Case:

[27] The Company contends that in line with the terms of the Claimant’s transfer

to the Company, the Claimant was aware that he would be bound by the terms and

conditions of employment as stipulated in the Company’s Employee handbook and

was expected to carry out his duties to the standards expected by the Company.

Considering the gravity of the Claimant’s misconduct, the Company had no

alternative but to uphold his dismissal.

[28] The Company avers that prior to the Claimant’s dismissal, it was brought to

the management’s attention that the Claimant was not utilizing his prolonged illness

leave to recover and recuperate from his injuries but instead was climbing and

cutting down trees and engaging in sports activities. The Claimant did not seek any

further information or clarification from the Company before issuing his reply letter

and explanation to the Company’s show cause letter.

12
[29] The Company’s cargo operations had increased significantly following the

Covid-19 outbreak as there was an increased demand in cargo services.

Furthermore, Cargo handling – Export Acceptance is an important function for the

Company’s business whereby adequate manpower is required to run its 24-hours

operations.

[30] The Company states that due to the Claimant’s prolonged absence, to

ensure minimal disruption to operations, other employees in the Cargo Handling –

Export Acceptance Department had no choice but to assume the workload of the

Claimant and work overtime during his absence, causing additional costs to be borne

by the Company.

[31] The Company further avers that there is no requirement for a full disciplinary

inquiry to be conducted by the Company as due inquiry had already been conducted

by the Company whereby the Claimant was provided with adequate opportunity to

explain and defend himself against the changes of misconduct levelled against him

vide his explanation and appeal.

[32] The Company submits that the claim brought by the Claimant is

misconceived in law and fact and is an abuse of the process of this Industrial Court

as the Company avers that it had conducted the necessary investigation into the

Claimant’s misconducts to justify that the Claimant had been dismissed with just

cause and excuse.

13
Cause Papers, Bundle of Documents, Witness Statements & Written

Submissions:

[33] The Company called three (3) witnesses in support of the Company’s case

namely:

(i) Muhamad Hafiz Richard Harding (COW-1) – Former Assistant Manager,

Export Acceptance Department;

(ii) Muhammad Fauzi Mahayuddin (COW-2) – Retired Senior Manager,

Industrial Relations Department; and

(iii) Dr. Ng Tiong Soon (COW-3) – Consultant Orthopedics Surgeon, Panel

Hospital

Meanwhile, the Claimant (CLW-1) only called himself as the sole witness to testify in

support of his own case in the hearing.

[34] In the course of hearing, the Court has been referred to the following

documents which were filed and presented by the parties as follows:

(i) Kenyataan Kes Terpinda dated 27/11/2023;

(ii) Amended Statement In Reply dated 19/01/2024;

(iii) Rejoinder dated 19/02/2024;

(iv) Witness Statement of Muhamad Hafiz Richard Harding (COW-1) dated

14/04/2023;

14
(v) Witness Statement of Muhammad Fauzi Mahayuddin (COW-2) dated
21/05/2024;

(vi) Witness Statement of Dr. Ng Tiong Soon (COW-3) dated 21/05/2024;

(vii) Penyata Saksi PYM Che Zamberi bin Che Ani (CLW-1) dated 11/6/2024;

(viii) Ikatan Dokumen Yang Menuntut marked as CLB-1;

(ix) Ikatan Dokumen Tambahan Pihak Yang Menuntut marked as CLB-2;

(x) Ikatan Dokumen Tambahan (2) Pihak Yang Menuntut – Penyata KWSP
marked as CLB-3;

(xi) Company’s Bundle of Documents (Volume 1) marked as COB-1;

(xii) Company’s Bundle of Documents (Volume 2) marked as COB-2;

(xiii) Company’s Written Submissions dated 19/07/2024;

(xiv) Claimant’s Written Submission dated 19/07/2024;

(xv) Company’s Written Rebuttal dated 15/08/2024; and

(xvi) Claimant’s Submission In Reply dated 15/08/2024.

Role and Function of The Industrial Courts

[35] In the case of Wong Chee Hong v. Cathay Organization (M) Sdn. Bhd.

[1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298, the court had stated the followings:

“When the Industrial Court is dealing with a reference under s. 20, the
first thing that the court will have to do is to ask itself a question (of)
whether there was a dismissal, and if so, whether it was with or without
just cause or excuse.”

15
[36] In the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn.

Bhd. & Anor Appeal [1995] 3 CLJ 344, the Federal Court had held:

“On the authorities, we were of the view that the main and only function
of the Industrial Court in dealing with a reference under s. 20 of the Act
(unless otherwise lawfully provided by the terms of the reference), is to
determine whether the misconduct or irregularities complained of by the
Management as the grounds of dismissal were in fact committed by the
workman, and if so, whether such grounds constitute just cause or
excuse for the dismissal.”

[37] In the case of Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] CLJU 30;

[1981] 1 LNS 30; [1981] 2 MLJ 129, the Federal Court (vide the judgment of Raja

Azlan Shah CJ) held:

“Where representations are made and are referred to the Industrial

Court for enquiry, it is the duty of that court to determine whether the
termination or dismissal is with or without just cause or excuse. If the
employer chooses to give a reason for the action taken by him, the duty
of the Industrial Court will be to enquire whether that excuse or reason
has or has not been made out. If it finds as a fact that it has not been
proved, then the inevitable conclusion must be that the termination or
dismissal was without just cause or excuse. The proper enquiry of the
8 court is the reason advanced by it and that court or the High Court
cannot go into another reason not relied on by the employer or find one
for it.”

16
[38] The burden of proof in an unfair dismissal claim lies on the employer to

prove on a balance of probabilities that the employee is guilty of the allegation or the

reason for the dismissal. This principle was expounded by the Industrial Court in the

case of Stamford Executive Centre v. Puan Dharsini Ganesan [1986] 1 ILR 101:

“In a dismissal case the employer must produce convincing evidence

that the workman committed the offence or offences the workman is
alleged to have committed for which he has been dismissed. The
burden of proof lies on the employer. He must prove the workman
guilty and it is not the workman who must prove himself not guilty. This
is so basic a principle of industrial jurisprudence that no employer is
expected to come to this Court in ignorance of it.”

[39] Whenever a company had cause dismissal of the workman, it is the

incumbent on part of the company to discharge the burden of proof that the dismissal

was with just cause or excuse. This was illustrated in the case of Ireka

Construction Bhd. v. Chantiravathan Subramaniam James [1995] 2 ILR 11

(Award No. 245 of 1995); [1995] 1 MELR 373, where the court held that:

“It is basic principle of Industrial jurisprudence that in a dismissal case

the employer must produce convincing evidence that the workman
committed the offence or offences the workman is alleged to have
committed for which he has been dismissed. The burden lies on the
employer to prove that he has just cause and excuse for taking the
decision to impose the disciplinary measure of dismissal upon the
employee. The just cause must be either a misconduct, negligence or
poor performance based on the facts of the case.”

17
[40] Standard of proof that is required to prove a case in the Industrial Court is

one that is on the balance of probabilities as held in the case of Telekom Malaysia

Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314; [2002]

1 MELR 4, where the Court of Appeal held that the standard of proof that is required

in the Industrial Court is that of the balance of probabilities. Even if there is

misconduct like theft or any dishonest conduct, the standard of proof is still on the

balance of probabilities and not of beyond reasonable doubt. What this means is

that the company bears the burden of producing convincing evidence that the

company has good grounds for the dismissal and that the exercise of this decision is

made with just cause or excuse.

The Law Relating to Misconduct:

[41] As the Company had caused the dismissal of the Claimant, it follows that the

Company must discharge the burden of proof that the dismissal is with just cause or

excuse. The Industrial Court in the case of Holiday Inn Kuching Sarawak v.

Elizabeth Lee Chai Siok [1990] 2 ILR 262 expressed the term misconduct as:

“... the dictionary meanings of the word misconduct are improper

behaviour, intentional wrong doing or deliberate violation of a rule of
standard behaviour. In so far as the relationship of industrial
employment is concerned, a workman has certain express or implied
obligations towards his employer. Any conduct inconsistent with the
implied duties of an employee towards his employer unless it be of
trifling nature would constitute an act of misconduct (see Award No.
37176 Malaysia Thung Pau Ltd. v. Four Employees). It has been
said at common law, the employer would be entitled to dismiss the
workman summarily where the conduct of the workman is inconsistent

18
 with the maintenance of the relationship created by the contract.
Sometimes this would be evident from a course of conduct, a series of
acts of disobedience to orders from a superior although each act was a
minor affair in itself but in other cases a single act of disobedience
would suffice but then it must have the quality of wilfulness and perhaps
some degree for seriousness about it.”

[42] In Plaat Rubber Sdn. Bhd. v. Goh Chok Guan [1995] 1 ILR 79 (Award No.

30 of 1995), the Industrial Court stated:

"Misconduct means such act or conduct as adversely affects

employees' duties towards the employer".

[43] In Mohd Saufi Ahmad Rozali & Anor v. Puspakom Sdn. Bhd. [2013] 2

ILR 144 (Award No. 393 of 2013), it was held that:

“[6] When an employer makes an accusation of misconduct against an

employee and dismisses him on that ground, it is trite law that the
employer bears the burden of proving the misconduct against the
employee. However, it is my humble view that the standard of proof
has seen some significant changes in the recent past... The standard
that is required of the employer is that of a reasonable employer and
whether there were "solid and sensible grounds" on which the employer
could reasonably suspect the employee guilty of the misconduct. The
other important point is that the Industrial Court cannot demand proof to
its satisfaction and the Industrial Court has only to be satisfied that
company was justified in coming to its conclusion. What is vital to note
is that the employer has only to show that he had reasonable grounds
to believe and did honestly believe that the employee was guilty of
misconduct.

19
 [7] Hence, even the standard of proof on the balance of probabilities
may be too rigid a standard and the standard now is of reasonable
belief. This standard has been reaffirmed by the Court of Appeal in the
case of KA Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ 347.
This case established that the test is not whether the employee did it
but whether the employer acted reasonably in thinking the employee did
it.”

[44] In Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449 in pp. 454

dan 455 Y.A. Mohamed Azmi Kamaruddin decided as follows:

“As pointed out by this Court recently in Hong Leong Assurance Sdn.
Bhd. v. Wong Yuen Hock [1995] 3 CLJ 344; [1995] 2 MLJ 753, the
function in the Industrial Court in dismissal cases on a reference under
s. 20 is two-fold: first to determine whether the misconduct complained
of by the employer has been established and secondly to determine
whether the proven misconduct constitutes just cause or excuse for the
dismissal of the employee.”

[45] In Syarikat Kenderaan Melayu Kelantan Sdn. Bhd. v. Transport Workers

Union [1988] 1 LNS 234, had defined "misconduct" as:

“... conduct so seriously in breach of the accepted practice that, by

standards of fairness and justice, the employer should not be bound to
continue the employment.”

[46] The Court of Appeal in a case of Institute of Technology Petronas Sdn.

Bhd./Universiti Teknologi Petronas v. Amirul Fairuz Ahmad [2023] 1 LNS 222,

has adequately encapsulated the functions of this court which this Court need only to

refer, as follows:

20
 “[30] It is trite law that the function of the Industrial Court in dismissal
cases on a reference under s. 20 of the Industrial Relations Act is
twofold, first, to determine whether the misconduct complained of by the
employer has been established, and secondly, whether the proven
misconduct constitutes just cause or excuse for the dismissal (see
Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449; [1995] 3
MLJ 537, FC). In other words, the Industrial Court will have to
ascertain whether the claimant had been dismissed, and if so, whether
the dismissal was with or without just cause or excuse. Failure to
determine these issues on the merits would be a jurisdictional error
which would merit interference by certiorari by the High Court.”

[47] The Federal Court in Wong Yuen Hock v. Syarikat Hong Leong

Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 held that:

“Therefore, in the present case, the duty of the Industrial Court is to

determine whether the misconduct complained of by the university has
been established, and whether the proven misconduct constitutes just
cause or excuse for the dismissal. It is also common ground that the
onus to prove, on a balance of probabilities that the dismissal was for
just cause or excuse, lies with the University (see Telekom Malaysia
Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3
CLJ 314).

It is also important for the Industrial Court to determine whether

misconduct has been made out based on the evidence presented at the
trial. It is also pertinent to note that the Industrial Court cannot rely on
the notes of proceedings of the Domestic Inquiry only to decide whether
a prima facie case has been established.”

21
The Issues:

[48] It is trite that the issues to be determined in this case are as follows:

(a) Whether the allegations of misconduct complained by the Company had

been established by the Company in Court; and

(b) Whether the proven misconduct constitutes just cause or excuse for the

Claimant's dismissal.

[49] That said, the burden still remains on the Company to prove that the

dismissal of the Claimant was with just cause or excuse. In case of Koperasi

Pekerja-Pekerja Stevedoring Pelabuhan Bhd. v. Ebnusama Ali & Ors [1996] 1

ILR 165, where it was held that the burden of proof lies with the Company in proving

it had just cause and excuse for dismissing the Claimant.

[50] Therefore, the law requires the Court to determine the two-fold issues which

in this case, it is not disputed that the Claimant has been dismissed by the Company

vide letter of termination effective immediately from 21/09/2021.

Evaluation of Evidence & Findings:

[51] Prior to the Claimant’s dismissal, it was brought to the Company’s attention

that the Claimant was abusing his prolonged medical leave due to his injuries by

involving strenuous activities when he should have been recuperating and allowing

his injuries to heal instead. The Company was also made aware through the 2nd

22
Medical Report that the Claimant had sustained further injuries to his left wrist and

left shoulder on 22/07/2021. Despite sustaining further injuries and complaining of

pain, the Claimant had still engaged in strenuous activities of climbing and cutting

down trees on just a few days later on 24/07/2021 and 25/07/2021 instead of resting

and recuperating from his injuries.

[52] Clearly this is not a case where the Company had dismissed the Claimant

for absenteeism or for falsifying his prolonged medical leave certificates. Instead,

the Company acknowledged that the Claimant was involved in a motor vehicle

accident and sustained multiple injuries as a result of the said accident whereby he

was placed on prolonged medical leave since 22/05/2021 as he ought to have been

resting and recuperating at home to recover from his injuries so that he would be

able to resume to work when he was fully recovered in due time.

[53] There was never any dispute as to the validity of the medical certificates

although the Claimant claimed that the said medical certificates were validly issued.

However, the Claimant had unfortunately abused his prolonged medical leave with

full salary pay which was granted to him by the Company due to his multiple injuries

that he suffered according to the said accident.

Absence of Domestic Inquiry & Whether There Are Defective Charges:

[54] The Claimant contends that the Company had failed to comply with the rules

of natural justice under Section 14 of the Employment Act 1955 and in

contradiction of the Company’s Employee Handbook, by not affording him a

23
domestic inquiry. It is settled law and trite that an absence of a domestic inquiry is

curable by a hearing de novo at the Industrial Court.

[55] In a classical case of Wong Yuen Hock V. Syarikat Hong Leong

Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344, the Federal Court held

that:

“Held:

Mohd Azmi bin Hj. Kamaruddin FCJ (delivery the judgment of the
Court):

[1] In assessing compensation in lieu of reinstatement it is proper for

the Industrial Court to take into account any contributory misconduct on
the part of the claimant. Such practice is consistent with the provision
of s. 30(5) of the Act which requires the Industrial Court to act according
to good equity and conscience. The High Court was right in refusing
the appellant's application to quash the award on reduced
compensation.

[2] Once a case of wrongful dismissal has been properly referred by the
Minister under s. 20(3), the Industrial Court is seised with jurisdiction
and is obliged under the Act to determine the dispute on merits, unless
the reference itself is void ab initio. The Industrial Court has no
jurisdiction to change the scope of such reference. Thus, even where
there was a breach of contractual or statutory duty to hold an inquiry,
the Industrial Court should proceed and determine, firstly, whether the
misconduct complained of was in fact committed, and if so, whether it
constitutes just cause or excuse for the dismissal.

[3] The Industrial Court, in inquiring into the question of whether there
was a failure to hold a domestic inquiry, had gone into a reason not
relied upon by the employer, and into a matter quite outside the
reference by the Minister. The Industrial Court had thus changed the

24
 scope of the Minister's reference, committing thereby a jurisdictional
error.

[4] The defect in natural justice by the respondent could and ought to
be cured by the inquiry in the Industrial Court. The Industrial Court is
an independent quasi-judicial statutory body capable of reaching fair
result by fair method. Despite the initial defect by the respondent in
dismissing the appellant, the hearing before the Industrial Court should
be taken as sufficient opportunity for the appellant to being heard to
satisfy natural justice and thereby rectify the omission to hold domestic
inquiry. There is no ground for the Industrial Court to complain that for
it to inquire into the merits of the question of just cause and excuse
would be grossly unfair.

[5] The principle that an initial breach of natural justice by the employer
could be cured by the Industrial Court applies to all cases irrespective of
whether the claimant is or is not an employee within the meaning of the
Employment Act. The right to due inquiry accorded to certain category
of "employees" under s. 14(1) of the Employment Act does not alter the
law affecting "workmen" under s. 20 of the Industrial Relations Act.
That statutory requirement does not therefore excuse the Industrial
Court from discharging its duty to enquire into the question of "just
cause or excuse" as required by the said s. 20.”

[56] Similarly, decision of the Federal Court in Milan Auto Sdn. Bhd. V. Wong

Seh Yen [1995] 4 CLJ 449, Whether, in dismissal cases, the initial defect in natural

justice in not holding a domestic inquiry could be cured by an inquiry held before the

Industrial Court.

“Held:

Per Mohd Azmi bin Kamaruddin FCJ (delivering the judgment of the
Court):

25
 [1] The function of the Industrial Court in dismissal cases on a
reference under s. 20 is two-fold. It has to determine whether the
misconduct complained of by the employer has been established, and
secondly, whether the proven misconduct constitutes just cause or
excuse for the dismissal. Failure to determine these issues on the
merits is a jurisdictional error that merits interference by the High Court
by way of certiorari. Further, the Industrial Court would be acting in
excess of jurisdiction if it changed the scope of reference by substituting
its own reason, that is to say a reason not relied upon by the employer
for the dismissal.

[2] The initial defect in natural justice in not holding a statutory or

contractual domestic inquiry is "curable" by the inquiry held by the
Industrial Court itself. Industrial Court could not therefore shy away
from determining the two issues required to be determined in dismissal
cases under s. 20 reference. In omitting to carry out its basic functions,
the Industrial Court in the present appeal had clearly committed a
jurisdictional error. It follows that the learned High Court Judge, in
dismissing the appellant's application, had fallen into similar error.”

[57] In Dreamland Corporation (M) Sdn. Bhd. v. Choong Chin Sooi & Anor

[1988] 1 CLJ 1, SCJ Wan Suleiman (as he then was) stated as follows:

“(i) the absence of Domestic Inquiry or the presence of a defective

inquiry is not a fatality but merely an irregularity, it is open to the
employer to justify his action before the Industrial Court by leading all
relevant evidence before it and by having the entire matter referred
before the Court; and

(ii) unless the Industrial Court has found that the dismissal is without
just cause or excuse, the Court has no jurisdiction to offer any relief
whatsoever.”

26
[58] On the issue of the Claimant’s contention that the Company had breached

the principles of natural justice by not affording him a full disciplinary inquiry, the

Company contends that there is no requirement for a full disciplinary inquiry to be

conducted by the Company, and due inquiry had already been conducted by the

Company whereby the Claimant was provided with adequate opportunity to explain

and defend himself against the charges of misconduct levelled against him vide his

explanation and appeal.

[59] The Claimant has alleged that he had been denied a due inquiry in

accordance with the principles of natural justice as he was not given the right to be

heard orally prior to his dismissal. However, there is nowhere in the Company’s

Employees handbook (pages 16-46 of COB-1) does it state that a domestic inquiry

or oral hearing must be convened prior to any dismissal of an employee, on top of

the opportunity to give a written explanation, which the Claimant had. On the

contrary, the Company’s Employee Handbook (page 35 of COB-1) clearly spells out

as follows:

“3.19.3 The Company at its discretion may decide on the appropriate

punishment without a full inquiry being held.”

[60] It is clearly prescribed that it would be up to the Company’s discretion to

decide whether as matter is required to go for a full inquiry or otherwise. Therefore,

it is affirmative on the issuance of the show cause letter was sufficient to amount as

due inquiry prior to dismissing the Claimant in this particular case.

27
[61] Furthermore, the Claimant himself had admitted during cross examination

that he was given an opportunity to answer to the allegations of misconduct levelled

against him whereof he was accordingly made known of the charges levelled against

him and afforded the opportunity to answer to them:

“Question: Encik Zamberi sila lihat m/s 56-58 COB-1. Setuju bahawa pihak
Syarikat telah mengeluarkan surat tunjuk sebab ini kepada encik?
CLW-1: Setuju.

Question: Setuju pihak pengurusan telah memberi peluang kepada encik untuk
memberikan penjelasan bertulis kepada mereka?
CLW-1: Setuju.

Question: Sila lihat m/s 59 COB-1. Setuju berikutan itu encik telah mengambil
peluang untuk membalas kepada surat tunjuk sebab tersebut melalui
e-mel ini?
CLW-1: Ya.”

[62] Thus, the Claimant was afforded due inquiry in line with the principles of

natural justice and he had no issue responding to the same. The Company had

clearly acted in line with the principles of natural justice and procedural fairness by

issuing the show cause letter (pages 56-58 of COB-1) to the Claimant.

[63] In Metroplex Administration Sdn. Bhd. v. Mohamed Elias [1998] 5 CLJ

467, it is trite law that in cases of dismissal, it is necessary for the employer to adopt

a certain procedure for the purposes of carefully inquiring into the facts of an alleged

misconduct or a series of misconduct in order to arrive at a decision to dismiss an

employee. The procedure for effecting a dismissal calls for the application of the

28
rules of natural justice in that the employee must be informed of the grounds against

him and he must be given a chance to answer the allegations.

[64] Further, on the Claimant’s grouse that the charges issued against him were

defective, the Company further contends that the Claimant was well aware of the

charges made against him. The issue of defective charges raised by the Claimant

was nothing more than an afterthought by him as never at any material time did, he

raise this issue to the Company.

[65] The Claimant’s explanation in response to the charges levelled against him

clearly demonstrates that the Claimant had in fact understood the essence of the

allegations levelled against him. The Claimant in his appeal was able to detail the

date and event in which the video and pictures were taken of him climbing and

cutting down trees. Further, the Claimant was able to identify the type of sports

activity in which he was engaged in during his period of medical leave. The Claimant

also did not deny that he carried out the activities of climbing and cutting down trees

and engaging in sports activities during his prolonged medical leave.

[66] The Claimant has also contended that the charges levelled against him are

defective and they lacked certain particulars and would be rendered void ab initio.

As demonstrated by the Claimant himself, he clearly understood the charges levelled

against him and was able to give thorough explanations to each charge. The

Claimant also never stated that he did not understand or was not aware of particular

misconduct he was accused of when he replied to the show cause letter:

29
“Question: Setuju bahawa tak ada di mana-mana encik nyatakan bahawa encik
tidak faham surat tunjuk sebab tersebut, kan?
CLW-1: Maksudnya?

Question: Encik tidak ada cakap encik tak faham surat tunjuk sebab tersebut,
kan?
CLW-1: Tak ada.”

[67] In Poovan Sinnasamy & Anor v. Malaysian Airline System Berhad [2014]

ILRU 1068, it was decided that:

“In fact, in a case of misconduct like in the instant case, what is

important is that the employee concerned must know what they are
charged for by the company. This was held to be the case by the High
Court in Faber Group v. Y.M Raja Mohar bin Raja Zainal Abidin (R2-
25-58-96 wherein the court held as follows:

"Sayugia diingat pertuduhan terhadap tindakan tatatertib tidak boleh

disamakan tarafnya dengan pertuduhan terhadap tindakan jenayah
yang dilakukan oleh Pendakwa Raya yang memerlukan butir-butir
terperinci di dalam pertuduhan tersebut. Di dalam pertuduhan
tatatertib, apa yang penting ialah orang yang dituduh tahu mengenai
perkara yang dituduh terhadapnya. Dari keterangan yang ada
Responden mengetahui butir-butir Pertuduhan Pertama ini. Ketiadaan
butir-butir terperinci di dalam pertuduhan tatatertib itu tidak sepatutnya
dianggap fatal seperti yang diputuskan oleh Mahkamah Perusahaan."

(The above decision by the High Court was subsequently upheld by the

Court of Appeal)

[68] It is clear from the correspondences by the Claimant to the Company that he

was very well aware of the nature of the misconduct which he was charged with by

the Company. Furthermore, the Claimant had not sought any clarification from the

30
Company of the details of the charges nor did he inform the Company that there

were details in the charges of misconduct which were lacking.

[69] In Chong Peng Fai & Anor V. CIMB Bank Berhad [2016] 1 ILR 315, the

Chairlady had discussed the issue of defective charge as follows:

“…The essence of first charge was that the 1st claimant had by initialing
on the said reports, misrepresented to the Bank that he had checked
and verified the said reports. It is irrelevant whether those FDs belong
to PA Extrusion or some other customer of the Bank. The 1st claimant
in his answer to question 44 of his witness statement (CLWS-1) was
well aware of the fact. Therefore the court finds that the 1st claimant's
contention that the first charge was defective could not stand.”

[70] In Balaguru Ramiah v. Malayan Banking Berhad [2023] CLJU 2472,

Anand Ponnudurai J had explained that where an employee its able to understand

and answer to the charges levelled against him, there is no issue of due process

being denied. It was held as follows:

“[27] Moving to the complaint now that the charges were vague and
due process denied, I again see no merit in the said complaint. Quite
apart from the Claimant being able to fully understand the show cause
and was able to reply which clearly indicated that he understood the
charges levelled against him, the LC had also addressed this issue and
found that the charges were not vague. That conclusion in my view
was a correct one. [Refer to decided cases such as Faber Group v.
Y.M Raja Mohar Bin Raja Zainal Abidin (Usul Pemula No. R2-25-58-
96) as well as Poovan Sinnasamy & Anor v. Malaysian Airline
System Berhad [2014] ILRU 1068; [2014] 2 LNS 1068 which have

31
 held that what is important is that the employee knows what he is being
charged for].”

Whether The Allegations of Misconduct Has Been Proven on Balance of

Probabilities:

[71] On a prolonged sick leave following a medical report issued by the Nilai

Medical Center dated 31/07/2021 (pages 54-55 of COB-1), it was determined that

the Claimant was still recovering from his fractures and undergoing follow up

treatment and physiotherapy at the hospital. Therefore, taking into consideration of

the Claimant’s welfare and adhering to the medical recommendation, the Claimant

was then placed on prolonged medical leave with full pay effective from 22/05/2021

to allow him to effectively recover from his injuries.

[72] Evidence of COW-3; Dr. Ng Tiong Soon the Panel Hospital’s Consultant

Orthopaedic Surgeon had testified that the Claimant was his patient at the material

time when COW-3 treated the Claimant at the Panel Hospital’s Emergency

Department where he was brought in following a motor vehicle accident on

22/05/2021. COW-3 is a material and appropriate witness to be called to testify on

the Claimant’s medical history when COW-3 was the one who had treated the

Claimant from the time that he was hospitalized on 22/05/2021, during the

subsequent follow-ups on 22/07/2021 and on 09/09/2021. Obviously, pursuant to

Section 45 of the Evidence Act 1950, an expert as COW-3 was in the best position

to explain based on COW-3’s professional experience and expert opinion what the

Claimant could or could not do whilst his injuries were healing at the material time.

Any averments by the Claimant that COW-3 was in a position of conflict and should

32
not be the one testifying on the Claimant’s condition are misconceived, unfounded

and unsubstantiated.

[73] As the Claimant had complained of pain over his left upper limb and left

knee, x-rays had been conducted on his shoulder and knee areas and after COW-1

diagnosed to conclude that the Claimant had suffered the following injuries:

(a) Closed left clavicle fracture;

(b) Closed left fibular head fracture; and

(c) Left wrist triangular fibrocartilage complex injury.

[74] As a result of the above-said injuries, COW-3 had performed the following

procedures on the Claimant:

(a) Open reduction, locking plate left clavicle;

(b) Left lower limb backstab; and

(c) Left arm sugar tong splint.

The serious fractures sustained by the Claimant may also be seen on the x-ray films

(pages 2-5 of COB-2) tendered by the Company.

[75] Obviously by referring to COW-3’s first Medical Report dated 31/07/2021

(pages 54-55 of COB-1) the Claimant was subsequently discharged well on

25/05/2021 but he is still under follow up and had to undergo physiotherapy as his

fractures were still uniting. The healing process for his fractures would have taken

approximately three (3) months. However, on 22/07/2021, the Claimant came back

33
to see COW-3 again complaining of wrist and shoulder pain. He was diagnosed with

the following new injuries:

(a) Left wrist triangular fibrocartilage complex injury; and

(b) Left acromioclavicular joints arthritis.

[76] As stated in COW-3’s second Medical Report dated 22/09/2021 (pages 63-

64 of COB-1) the Claimant was then placed upper left limb cast for 6 weeks to allow

for his new injuries to heal. He was also treated with a steroid injection on his left

wrist and left acromioclavicular joint on 09/09/2021 as he claimed that the pain had

not subsided.

[77] Evidence of COW-3 further confirmed that it would not be advisable for the

Claimant to be climbing a tree on 24/07/2021 as he should not be doing that at that

point of time due to the Claimant’s left clavicle and left fibular head fracture were still

uniting and he had also suffered new injuries to his left wrist and left shoulder.

Similarly, it would not be advisable for the Claimant to be carrying out heavy work

like cutting down a tree by using a heavy machinery such as chain saw as shown in

the video recording dated 25/07/2021 because his initial fractures would still be

uniting at the time and he also just suffered new injuries to his left wrist and his left

shoulder. As such, COW-3 further commented that carrying out activities like

climbing the tree and handling the chain saw could aggravate the Claimant’s injuries

and prolong his healing process.

34
[78] Under cross examination, when COW-3 was shown the photograph of the

Claimant climbing a tree, COW-3 confirmed that he just was the Claimant two (2)

days before where he complained that he had worsening wrist pain and he had put

the Claimant’s upper left limb in a cast, and the Claimant ought to have still been

wearing the cast and COW-3 did not see how the Claimant could climb a tree unless

he had removed the cast.

[79] Although COW-3 did recommended that the Claimant is allowed to carry out

light activities and light sprots, but the Claimant ought to ensure that he does not do

anything which may aggravate his injuries although the fracture healing was

progressing, and patient was gradually allowed to do light activities including light

sports, but what he did during his prolonged medical leave is not considered a light

sports by playing sepak takraw, climbing trees and cutting trees using chainsaw

while in the healing process. It was obviously a strenuous activity using whole body

movement. If there was a mishap during such strenuous activities which the

Claimant did, it would be inappropriate because he should take steps to avoid

engaging in such strenuous activities and to recuperate faster than the expected

period of healing. Likewise, he should stay at home doing minimum and light

outdoor activities so long as he did not prolong injuries and not to risk a prolong

absent by him which affected operations of the Company.

[80] Similarly, during the cross examination, the Claimant had pertinently

confirmed that the ground of his dismissal by the Company was because he had

abused and misused his prolonged medical leave by engaging in activities which he

35
should not have during this period of time and not on the ground of falsifying his

medical certificate.

[81] Nevertheless, the Claimant’s evidence during cross examination also

corroborated with the evidence of the Company in the trial when he conceded that

he did in fact climb a tree to cut down a tree branch and handled a chain saw to cut

down a tree stump while he was on prolonged medical leave. It is not up to the

Claimant to decide that he was feeling well enough to partake in the activities of

climbing tree, hanging from the tress for balance using the very said injured left arm

and simultaneously handling a heavy chain saw with both his hands. The Claimant’s

injuries were serious enough to expect him to be resting at home instead of risking

worsening his injuries. Any responsible employee who is under paid medical leave,

would ensure that he utilizes this period to rest and recuperate from his injuries.

[82] The Claimant went on to testify unequivocally further that he just gone to see

COW-3 at the Panel Hospital on 22/07/2021 complaining of pain in his left wrist and

left shoulder. On the same day, he was placed in an upper left limb cast which was

intended to be affixed for six (6) weeks. Just two (2) days later, he had climbed a

tree to cut down its branch with a saw, whilst hanging from the said tree using his

injured left arm and shoulder for balance (as shown in photograph at page 52 of

COB-1) with the upper limb cast removed which was just placed in a cast two (2)

days before. For someone who had complained of pain in his left wrist and left

shoulder just two (2) days before, it is only logical that the Claimant ought to have

been taking greater caution and care to ensure that his injuries do not worsen.

36
[83] Moreover, the chainsaw he used as seen in the video recording on

25/07/2021 (page 69 of COB-2) was indeed heavy equipment/tool, hence why he

needed to use both his hands to maneuver it. Again, his upper left limb cast was

also removed at this time. The Claimant irresponsibility removed the upper limb cast

placed by COW-3 to do this. Thereafter, on 09/09/2021, he had gone to see COW-3

again at the Panel Hospital where he complained that the pain in his left wrist had

not subsided. The Claimant himself had admitted to these acts during cross

examination as follows:

“Question: Jadi setuju bahawa encik telah memanjat pokok dan memotong pokok
dengan menggunakan gergaji rantai dan gergaji kecil ini hanya dua
atau tiga hari selepas encik jumpa Dr. Ng dan mengadu sakit pada
pergelangan tangan kiri dan bahu kiri encik kan?

CLW-1: Setuju.”

[84] Accordingly, based on the Claimant’s explanation letter (page 59 of COB-1) it

is evident that the Claimant was fully aware of the charges levelled against him for

which he understood his wrongdoings as follows:

“Assalamualaikum, I’m Che Zamberi Bin Che Ani. S/N 2102893. Export
Acceptance Department. Referring to the above I’m as an employee
apologize in advance for any inconvenience that has occurred.

I’m confessed to the 3 things above, for example climbing trees, cutting trees
and playing sports (Takraw) during the sick leave period. From May 22 until
now I have been on sick leave from doctor because I have not yet fully
recovered.

37
 EXPLANATION
1. CLIMBING & CUTTING TREES

This is because I’m sweating with my family just doing a little activity.
My wife and my children do the heavy work. I’m as the head of the family just
monitored and did not take a high risk of my broken left shoulder. There was
a recording sent by someone I admitted that I was in a situation of cutting
down a tree, just to help ease the burden of the neighbors but I didn’t do
heavy work I was just helping. Lastly, I’m the last person hold the chain saw
because I was just helping to cut down trees to lighten the burden of my
neighbors. But I don’t do any heavy work.

2. SPORTS (TAKRAW)

I was advised by doctor who treated me to do exercise in order to treat

and give improvement to my broken left shoulder.

Thank you for your cooperation and sorry again.”

[85] This was also consistent with the Claimant’s own admissions during cross

examination of committing the acts of misconduct, as follows:

“Question: Setuju dalam surat penjelasan encik kepada pihak Syarikat ini, encik
mengaku telah membuat aktiviti-aktiviti tersebut?
CLW-1: Mengaku.

Question: Ini semasa encik sedang cuti sakit Panjang kan?

CLW-1: Ya.”

[86] Thus, when the Claimant was issued with the medical leave from the Panel

Hospital and placed on prolonged medical leave by the Company in due

consideration of his injuries, it was a legitimate expectation by the management that

38
he would be resting and allowing his fractures to heal during the three (3) months

period as prescribed by COW-3 in order to rejoin the workforce.

[87] Nonetheless, it is rite principles of industrial jurisprudence that where a

workman in answer to a charge levelled against him admits his guilty there will be

nothing more for the management to inquire into and in such a case the holding of

an inquiry would be an empty formality whereas it is clear and credible finding that

the Claimant had been given all the opportunities to defend himself and to state his

version of the case in accordance with the principles of natural justice. The effect of

admission by an employee suffices for the employer for no further obligation to hold

any further inquiry and a decision or an order could be made based on the

admission.

[88] In addition, on this issue, the Court is reminded of the decision of this Court

in Petroluem Nasional Berhad v. Mohd Radzuan Ramli [1993] 1 ILR 100, where

the learned Chairman W. Satchinandan had this to say:

"It is established by authority that where a workman in answer to a

charge levelled against him admits his guilt there will be nothing more
for the Management to inquire into and in such a case the holding of an
inquiry would be an empty formality. A misconduct owned and admitted
by a delinquent workman is the antithesis of the principle of natural
justice or victimization as understood in industrial law."

[89] The Court then referred to the case of UMW Toyota (M) Sdn. Bhd. v. Chow

Weng Thiem [1996] CLJU 92; [1996] 5 MLJ 678, where the High Court had stated

the following:

39
 "In light of the respondent's admission at a domestic inquiry, the court
was under no further obligation to make any further inquiry and a
decision, or an order could be made based on the admission"

[90] Hence, this Court is of the considered view that the Court is not barred from

taking into account the admissions of the Claimant made during the hearing and

therefore the decision of this Court can be based on such admissions. Conversely, it

is misconstrued for the Claimant to now claim that the Company acted unreasonably

by failing to investigate further on the Claimant’s misconducts, when he had already

admitted guilt to them. The weight of an employee’s admission of guilt was

highlighted in the case of UMBC Finance Bhd v. Mohamad Zamri [2000] 3 ILR

54 at page 57 decided as follows:

"The claimant's evidence in court relating to his purported involuntary

admission of charges and tremendous pressure/compulsion heaved on
him by COW3 is merely an afterthought.

The claimant's admission of guilt is conclusive to support the

justification of the dismissal. His defence has no merits at all."

[91] During cross examination, the Claimant alleged that COW-3 had informed

him that he could remove the upper left limb cast whenever he felt uncomfortable.

However, the Claimant later admitted that nowhere in the 2 nd Medical Report did

COW-3 state that he could remove the upper limb cast whenever he was

uncomfortable as follows:

40
“Question: Encik Zamberi jawab dekat Yang Arif yang Dr. Ng cakap kalau tak
selesa boleh buka. Sila lihat m/s 12 CLB-1. Dekat mana Dr. Ng kata
Encik Zamberi boleh buka cast itu?
CLW-1: Mengikut dekat report ini, tak ada.”

[92] In Kumpulan Guthrie Bhd. v. Sugumaran Kittu [1997] 1 ILR 409; the

Industrial Court decided on the followings:

“Evidence was adduced by the company that the claimant was on

medical leave from 9 January 1990 till 8 March 1990 as in charge no.1
above. He was on further medical leave from 23 April 1990 till 5 June
1990 (Exh. COB8). COW3 had said that he went on to investigate the
allegation that the claimant was conducting taekwondo classes at
Sekolah Menengah Agama Persekutuan, Labu, Seremban, N.S. He met
the timbalan pengetua of the school and two other teachers one of
whom was COW2. He was told that the claimant was conducting
classes sometime in January 1990 until 21 June 1990. The classes
were conducted twice a week i.e., Tuesdays and Thursdays. COW2 had
said the claimant was the instructor from January 1990 till June 1990.
The classes started around 5p.m. The claimant was always in
taekwondo outfit. The claimant had denied that he never conducted
classes during this period. He had been advised by his doctor not to
participate in active sports. Ever since he had handed over the classes
to his assistant CLW2 though most times he was present. CLW2 the
claimant's own witness had said in cross examination that if he made
any mistake in the course of giving instructions the claimant would
correct him after the class was over or on their way back. CLW2 also
confirmed that the classes were held twice a week. I find the company
has proved its case on this charge and that the claimant was abusing
his medical leave granted for purpose of convalescence and cure.”

41
[93] Similarly in The Regent Kuala Lumpur v. Gerad A/L Anthony [1996] 1 ILR

658, the Industrial Court had decided that:

“This was more so when on 1 August 1993 he was seen at the hotel's
family day. If he actually was sick, he should have been resting at
home but instead he attended the family day. He said he was at the
V.I. field at about 1.30 p.m. with his children and went back at about
2.30 p.m. but according to Aziah, COW6, she saw the claimant at the
V.I. field at about 3.40 p.m. and according to Mohd Zulkifli, COW7, he
saw the claimant at the V.I. field and spoke face to face with him.
COW7 was at the family day from 10.00 a.m. to 11.00 a.m. and
therefore the claimant was not telling the truth that he was at the V.I.
field around 1.30 p.m. to about 2.30 p.m. and he even said at the D.I.
that he did not attend the thanks giving day of his mother-in-law. As
such he would have obtained the medical leave on false pretences of
being ill to enable him to attend the hotel family day and was also
considered malingering. In Employees' Misconduct by Alfred Avins
(supra) at page 488, it was said that:

Malingering. The Supreme Constitutional Court of Cyprus has held that

an employee may be disciplined for malingering, which consists of
obtaining leave on the false pretence of being ill.

In Flour Mills Emp. U. v. Karachi Steam Roller F.M., 1963 Pak. Lab.
L. Cas. 698 (W. Pak. Ind. Ct.) found in Employees' Misconduct by
Alfred Avins (supra), page 489, it was held:

The West Pakistan Industrial Court has concluded that obtaining a

medical certificate to get sick leave through a false representation, and
then using the leave to go to a fair, is a disciplinary offence.”

42
[94] Contrary to the Claimant’s averments, COW3 had testified that the Claimant

should in fact be wearing his cast as advised and not to expect COW-3 to follow a

patient around to determine whether or not the Claimant could climb a tree. COW-3

on his expert opinion in cross examination testified that the Claimant should not be

climbing a tree:

“Question: Do you agree for you to give advice whether he could or not, you need
to be present there?

CLW-3: As I mentioned just now 2 days before, he has worsening wrist pain. I
put him on the cast. I don’t see any way that e can climb a tree but I
think he took out the cast.”

[95] The Claimant’s recalcitrant behaviour of abusing his prolonged medical leave

constitutes a serious act of misconduct that the Company could not turn a blind eye

to. As highlighted above, abusing medical leave which was granted for the purpose

of convalescence and care is a dismissible misconduct. The Claimant’s, by not

utilizing his prolonged medical leave (with full pay) to recover and recuperate, had

protracted the period for him to return to work. Thus, causing the Company to incur

additional costs to manage its operations in his absence, albeit financial lost to

minimize the work disruption due to the slack cause by an absent employee, a

regular worker would be in normal circumstances assume the added workload.

[96] In Chan Yeon Kum v. Stampro International (M) Sdn. Bhd. [2024] ILRU

0398, the learned Chairman decided that:

43
 “[73] The primary function of a workman is to be present at work and to
complete the tasks and duties assigned to him by his employer. Unless
his physical attendance is dispensed off by his employer, itis incumbent
on the workman to be present at work as required. Unscheduled
absences from a workplace can be detrimental to an organisation. The
effects of absenteeism are far reaching as it can lead to reduced
productivity, low output and create disharmony in an organisation. The
consequences of absenteeism was elaborated in the case of
Thawendran Wendran v. Malaysia Airline System Berhad [2014]
ILRU 570; [2014] 2 ILR 570 as follows:

Absenteeism may appear to be a minor misconduct but when it is

prolonged and employers are not notified of the 'emergency' leave
that has not been applied for or the unexplained leave afterwards
of employees as in the case of the claimant, it can subsequently
become a very serious problem. The result is that employers will
be left in a lurch having to find other staff to cover the absent
employee's work and naturally, will cause disharmony in the
workplace. The court is of the opinion that the company had
indeed given the claimant many opportunities to improve on his
punctuality and attendance at work. Accordingly, the claimant's
claim is dismissed."

[97] In Saranpal Kaur Harjit Singh v. Malayan Banking Berhad [2016] 2

ILR614; the Industrial Court had decided that:

“(4) The bank had granted the claimant, prolonged illness leave for a
period of two years and she had not been allowed to report for duty until
it had given her the certificate of fitness and resumption of duty letter,
which had been issued to her in August 2010, based on the doctor's
letter. Based on this doctor's letter, the bank had acted in good faith by
asking her to resume duty, but she had continued to take excessive
medical leave despite being counselled and issued a warning letter.

44
 The bank had been very tolerant with her poor attendance records for
over three years. It had been very accommodative, tolerant and
sympathetic towards her despite her continuous absences from work
and her excessive medical leave. The evidence had shown that she
had been given sufficient time and opportunity to improve her
attendance but she had failed to do so. She had taken medical leave in
excess of what had been provided under the Collective Agreement and
had thus been in breach of her contract of employment. Due to her
frequent absences from work, the bank had had to bring in additional
staff to clear her backlog of work, the workflow of the team had been
disrupted, and the staff had been demoralised (paras 37 - 40, 42 - 45,
48 & 49).”

Whether The Dismissal Was Done With Just Cause Or Excuse:

[98] The Claimant was well aware of the charges made against him. He was in

fact given the opportunity to answer to the allegations of misconducts levelled

against him through the show cause letter (pages 56-58 of COB-1). The issue of

defective charges raised by the Claimant is nothing more than an afterthought by

him as never at any material time did the Claimant raise this issue to the Company.

The Claimant took the opportunity to respond to the show cause letter vide his

explanation (page 51 of COB-1) wherein he admitted to all the allegations of

misconduct levelled against him whereby prior to providing his explanation, the

Claimant never raised to the Company that he did not understand the charges

levelled against him in the said show cause letter. He was unable to show where in

the Company’s Employee Handbook was the requirement for him to be given the

opportunity to explain himself orally, in addition to providing a written explanation,

prior to being dismissed.

45
[99] The Claimant’s explanation in response to the charges levelled against him

clearly demonstrates that the Claimant had in fact understood the essence of the

allegations levelled against him and even admitted to the allegations as contained in

the show cause letter. The evidence against the Claimant were clearly shown to him

by way of the photographs and video recordings, which contained the date and time

of the commission of the acts by the Claimants.

[100] Undoubtedly, the Company had taken into consideration the Claimant’s

medical condition and placed him on prolonged medical leave with full pay in order to

allow him to fully recover from his injuries before he may resume work. The

Company had grounded its decision to dismiss the Claimant based on the evidence

before it, including the 1st and 2nd Medical Report, the photographs and video

recordings of the Claimant engaging in strenuous activities, and most importantly, the

fact that the Claimant had admitted to the allegations levelled against him in the

show cause letter. Furthermore, the Disciplinary Appeal Committees also

deliberated on all facts and circumstances surrounding the case before deciding to

maintain the Claimant’s dismissal.

[101] In furtherance, vide an email dated 09/09/2021, the Claimant provided his

explanations for the allegations levelled against him whereby he admitted to

committing the acts of misconduct as alleged and provided his explanation for his

actions. In view of the Claimant’s admissions and unsatisfactory explanation and the

gravity of his misconduct that the Claimant was found guilty of by the Disciplinary

Punishment Committee, whereof the Company could no longer repose the

necessary trust and confidence in the Claimant’s to continue in its employment.

46
[102] In fact, the Claimant in his appeal was able to detail the date and event in

which the video and pictures were taken of him climbing and cutting down trees.

Further, the Claimant was able to identify the type of sports activity which he was

engaged in during his period of medical leave. The Claimant also did not deny that

he carried out the activities of climbing and cutting down trees and engaging in

sports activities during his prolonged illness leave.

[103] As stated above, the purpose of medical leave is for convalescence and

cure. Thus, it is not up to the Claimant to decide on what he can or cannot do

depending on the gravity of his illness or injury. It is not about whether the Claimant

had been fit but yet decided to obtain medical leave. If a medical certificate had

been issued, then the Claimant should have rested at home instead doing such a

strenuous activity that would worsen his injuries. In the case of Maju Holdings Sdn.

Bhd. v. Nor Ashika Mohamed Dom [2004] 1 ILR 1026), it was held by the learned

Chairman of the Industrial Court, K. Ramakrishnan:

“When a medical certificate is issued by a doctor, then the said medical

certificate should generally be believed because the doctor is an expert
in his field and is in a best position to say whether an employee is in a
position to join his duties or not. When in such a case the leave is
refused by the employer without any basis then the action of the
employer is arbitrary and capricious.”

[104] In the light of the above findings and factual matrix together with the

evidences presented in the trial before the Court, the fundamental question was

whether the Claimant was in breach of his express and implied duties to the

47
Company by acting inconsistently with his fiduciary duties and fidelity owed to the

Company in misusing and abusing his prolonged medical leave by such a strenuous

activities when he should have been recuperating and recovering from his injuries in

order to resume his works and acting in a manner that violated the confidence and

trust that the Company had reposed in him.

[105] An employee has an obligation to faithfully discharge his fiduciary duties to

his employer and should not act inconsistently with the interest of the employer.

When an employee commits gross misconduct, such as conduct inconsistent with

the relationship of an employer and employee, the employer is justified in dismissing

the employee after giving him adequate opportunity to refute the allegations framed

against him. The relationship between an employer and employee is built on the

concept of trust and confidence. If any of the two is lacking, then it becomes very

difficult for the employer to continue keeping the employee in its employment. This

concept necessarily entails an obligation on the employee to faithfully discharge his

duty to his employer which includes not abusing the prolonged medical leave by and

the Company in consideration of the Claimant’s welfare.

[106] It is also trite that mutual trust and confidence between an employee and the

employer is a fundamental term in any employment contract. The breach of an

employee of his fiduciary duty will necessarily lead to the damage of the relationship

of mutual trust and confidence, as observed by the learned chairman in Azahari

Shahrom & Anor v. Associated Pan Malaysia Cement Sdn. Bhd. [2010] 1 ILR

423 wherein it was held, inter alia, as follows:

48
 "It is trite that the association between employer and employee out of
necessity is fiduciary in nature. There has to be mutual trust and
confidence that one would deal with the other in all fairness and
rectitude over the rights and obligations flowing between the parties
under the employment agreement. If one does an act or commits an
omission which is inconsistent with that fiduciary relationship then that
act or omission will be mala fides. This principle has equal application
as against the employer and the employee in their respective positions
viz the employment relationship between them."

[107] In the case of General Tyre Retreaders Sdn. Bhd. v. Vadiveloo

Munusamy [1996] 2 ILR 1419 (Award No. 532 of 1996); [1996] 1 MELR 820,

where it was held that:

“It is settled in law that an employee is entitled to sick leave after

examination by a doctor appointed by the employer so long as he does
not abuse the purpose of sick leave certificate. Sick leave is meant for
employees who fall sick and who are not medically fit to perform their
duties and not as means to avoid coming to work. Persistent
absenteeism by an employee under the pretext of medical unfitness
may be taken as an indication not to perform his contractual obligations
to his employer this is because extensive absence causes
inconvenience and has a disrupting effect on the productivity of the
business.

Persistent absenteeism by an employee under the pretext of medical

unfitness may be taken as an indication not to perform his contractual
obligations to his employee. This is because extensive absence causes
inconvenience and has a disruption effect on the productivity of the
business.”

49
[108] In the case of Farahtina Kassim & Anor v. Malaysian Airline System

Berhad [2018] ILRU 1209; [2018] 2 LNS 1209 held that the claimant's conduct in

attending a union gathering whilst being on medical leave was a clear case of

malingering.

[109] In the case of Ambank Berhad v. Rasidah Othman [2007] 4 ILR 656, the

employee had obtained a medical certificate for her purported illness on 4 December

2002. In the afternoon of the same day, two officers of the bank spotted the

employee in a shopping complex at KOMTAR carrying a few bags. The bank viewed

her subsequent conduct despite taking medical leave as tantamount to malingering

and dismissed the employee from her services. The Industrial Court stated:

“In Employees' Misconduct [As Cause for Discipline and Dismissal in India
and the Commonwealth] by Alfred Avins 1968 Edition with 1987 Supplement
on p. 488: - Malingering.

An employee may be disciplined for malingering and feigning illness to get

out of a particular job is misconduct.

In Misconduct in Employment (in Public and Private Sector) by BR Ghaiye

on p. 724, the learned author stated that:

Workers have no right to take leave on the ground of sickness when they are
not actually sick. - Sometimes the workers feign sickness in order to get
leave which is called 'malingering'. The dictionary meaning of the word
'Malinger' is to feign sickness in order to avoid duty. It is usually done by
producing false medical certificate. Malingering is a recognized misconduct
but in order to show that the worker has taken leave on false grounds of
sickness the medical certificate has to be examined in the light of the
attendant and other circumstances.”

50
[110] In the case of Jeana Yeo See Nah v. Virgoz Oils & Fats Sdn. Bhd. [2021]

1 ILR 516 the learned Chairman had referred to Professor of Law Alfred Avin's book

'Employees' Misconduct' as follows:

"The servant is bound to give faithful personal service to his master

and, as a consequence, to refrain from any course of conduct the
natural tendency of which must be to injure the master's trade or
business."

[111] Therefore, having considered the fact that the Claimant had admitted to the

allegations of misconduct levelled against him as evident in his explanation letter in

which he had clearly misused and abused his prolonged medical leave, that any

reasonable employer would have found that his action was tantamount to serious

misconduct warranting dismissal.

[112] Nevertheless, the Claimant’s misconduct of abusing his prolonged medical

leave is serious enough to warrant the punishment of dismissal. In Dalia Ash'Ari v.

Malaysian Airports (Niaga) Sdn. Bhd. [2020] 1 ILR 472, it was decided that the

purpose of medical leave is for convalescence and cure and it is not up to the

employee to decide what he/she could or could not do depending on the gravity of

her illness or injury.

“Held for the company: dismissal with just cause and excuse

(1) The claimant had not disputed travelling to Thailand whilst she had
been on medical leave but her explanation had been that she had
already bought the bus tickets and planned the trip with her family in

51
advance. From the evidence adduced, it had been clear that she had
abused the medical leave given to her when she had seen fit to travel to
Thailand for a holiday when she should have been resting at home and
the conclusion that could be drawn was that she had been malingering.
The purpose of medical leave had been for convalescence and cure
and it had not been up to her to decide what she could or could not do
depending on the gravity of her illness or injury. Whether she had
rested and/or cured herself in Thailand had been irrelevant. She should
not have been travelling whilst sick in the first place. By her actions,
she had clearly betrayed the trust and confidence that had been
reposed in her by the company and it had not mattered that the
company's guidelines had been silent on the matter of abuse of medical
leave being a serious act of misconduct (paras 27, 29, 31 & 33).

(2) On the claimant's contention that COW3 had had mala fide intention
by not approving her annual leave application on time, the evidence had
shown that COW3 had not been aware of the application until the
claimant had sent her a WhatsApp message and thereafter, she had
immediately approved the application but only for the 18th to the 20th
December as the claimant had been on medical leave for the earlier
dates. There had not been any evidence adduced by the claimant to
show mala fide intent on the part of COW3 in withholding her consent to
the said application (para 39).

(3) It had been hard to believe that it had been a mere coincidence that
the claimant had fallen sick on the morning of her travel to Thailand,
after finding out that her annual leave application had not been
approved. The modus operandi in which she had gone about obtaining
the medical certificates, when she had found out that her leave had not
been approved and then rescheduling her travel dates to Thailand, had
raised the presumption that she been malingering, which she had failed
to rebut. She had committed a serious misconduct by travelling to
Thailand for a holiday with her family, whilst she had been on medical

52
 leave. She had also exhibited sheer defiance and rebelliousness by
posting videos of her holiday, during that period, on her Instagram
account (paras 40-42).”

[113] Notably, the Claimant’s misconduct of abusing his prolonged medical leave

is not a minor misconduct which can be tolerated by the Company. It is trite that

when an employee is granted medical leave, that leave is intended for the purpose of

convalescence and care. The Claimant here has contended that he was entitled to

partake in neighbourhood activities and should not be confined to just his house

during the period of his prolonged medical leave.

[114] Needless to say, in considering the issue is whether the dismissal of the

Claimant is proportionate, it is trite that a dismissal of an employee over a serious

misconduct may be warranted even if he has an unblemished employment record.

The only punishment befitting of the Claimant’s misconduct was the punishment of

dismissal. The trust and confidence between the employee and the employer are of

utmost importance, the breach of which justifies dismissal. In the case Abu Bakar

Majid v. Profitable Plots Sdn. Bhd. [2013] 2 ILJ 258, the Court referred to Holiday

Inn. Kuching, Sarawak v. Puan Elizabeth Lee Chai Siok [1990] 2 ILR 262, which

states:

"It has been said that at common law, the employer would be entitled to
dismiss the workman summarily where the conduct of the workman is
inconsistent with the maintenance of the relationship created by the
contract..."

53
[115] In the case of Gurcharan Singh Melkha Singh v. Sixfingers Dot Com

Sdn. Bhd. [2019] 1 ILR 367 where it was emphasized that the responsibility and the

constant fiduciary duty to always act in the best interest of the Company showed that

the said Claimant's misconduct justifies dismissal as a form of punishment.

"[63] The claimant's conduct was against the company's best interest
and faithful discharge of his duty to the company. No amount of long
years of service in the company could repair the damage to the
shattered trust and confidence that the company had reposed in the
claimant."

[116] The relationship between the employer and the employee is a fiduciary one.

Therefore, if the employee does anything incompatible with the due or faithful

discharge of his duties to his master the latter has a right to dismiss. In the case of

United Parcel Service (M) Sdn. Bhd. v. Wan Saadiah Mohd. Ghani [1999] 1 ILR

668 it was held as follows:

"The relation of master and servant implies necessarily that the servant
shall be in a position to perform his duty duly and faithfully, and if by his
own act he prevents himself from doing so, the master may dismiss
him..."

[117] Above all, the Claimant was among the fortunate employees who were

retained by MAB and subsequently the Company after 6,000 to 8,000 employees

were retrenched by Malaysia Airlines. However, despite having been afforded this

opportunity, the Claimant had instead chosen to act contrary to the trust and

confidence which the Company had reposed in him when he abused his prolonged

medical leave while being paid his salary in full during this period of time. Based on

54
the aforesaid findings in the factual matrix and circumstances of this case, a

meaningful employer-employee relationship between the Claimant and the Company

could no longer be sustained.

[118] Upon final analysis, it was very clearly demonstrated by the Company on the

balance of probabilities that the Claimant had breached the trust and confidence

reposed in him when he abused his prolonged medical leave. The law in this area of

misconduct is clear. An abuse of medical leave including prolonged medical leave is

a serious misconduct which justifies dismissal.

[119] The Claimant's conduct was against the company's best interest and faithful

discharge of his duty to the Company. No amount of long years of service in the

Company could repair the damage to the shattered trust and confidence that the

Company had reposed in the Claimant. And as stated in the case of Esso Malaysia

Bhd. v. Chiang Lick Teck [2003] 2 ILR 716; [2003] 2 ILR 716, a Claimant's long

years of unblemished service do not immunize the Claimant from dismissal.

[120] In Pearce v. Foster [1886] QBD 536, Lord Esher MR, held as follows:

"The rule of law is that where a person has entered into the position of
servant, if he does anything incompatible with the due or faithful
discharge of his duty to his mater, the latter has a right to dismiss. The
relation of master and servant implies necessarily that the servant shall
be in a position to perform his duty and faithfully, and if by his own act
he prevents himself from doing so, the master may dismiss him..."

55
[121] Hence, the punishment of dismissal was appropriate in this case and was

indeed commensurate with the misconduct. It is also satisfied that the Company had

produced convincing and cogent evidence that the Claimant’s dismissal was with just

cause and excuse.

Conclusion

[122] In conclusion, based on the facts and circumstances of the present case in

its entirety and the evidence adduced by both parties in the proceedings and upon

hearing the testimonies of the witnesses and considering the statement of case and

Company's written submissions and respective bundle of documents, this Court is of

the considered views that there is no merit in the Claimant's case. Having

considered the evidence as produced by both parties in totality and bearing in mind

the provision in s. 30(5) of the Industrial Relation Act 1967 by which virtue the

Court shall act according to equity, good conscience and the substantial merit of the

case without regard to technicalities and legal form, this Court has no hesitation to

order that the Claimant's case be hereby dismissed.

HANDED DOWN AND DATED THIS 05th. DAY OF MARCH 2025

Signed
(ZULHELMY BIN HASAN)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
IPOH, PERAK

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