Dedi bin Ajis v MHG Desaru Hotel Sdn Bhd [2020] ILJU 268

DEDI BIN AJIS v MHG DESARU HOTEL SDN BHD [2020] ILJU 268

Industrial Court (Johor)

Dismissal

Facts

1.  The Claimant, Dedi bin Ajis was employed as a restaurant manager with Anantara Desaru Coast Resort & Villas (“the Company”) and commenced his employment on 3 September 2019.

2.  The letter of appointment was issued by the Company to the Claimant dated 5 July 2019 and the Claimant was placed under probation for six (6) months from the date of commencement before he can be confirmed.

3. During the vetting process carried out by the Company, a verbal information was received from Kota Tinggi Police Station that the Claimant was on the police’s wanted list.

4.     The Claimant was required to make a clarification to the Company’s Human Resources Manager, Emmi Lee (who then became the only Defendant’s witness “COW-1”) regarding his ‘wanted’ status with the police on 4 October 2019.

5.  Since there was no favourable reply received from the Claimant, a letter of suspension was issued by the Company on 9 October 2019 for a period of seven (7) days.

6.  Unfortunately, the Claimant was unable to resolve the matter with the police and a letter of termination of contract dated 14 October 2019 was issued by the Company, terminating the Claimant’s employment with the Company with immediate effect with a payment of RM13,000.00 for compensation due to the breaching of Item 14 of the Company’s Business Code of Conduct and the Claimant’s matter with the police was not in the best interest of the Company’s image and policies.

7. The Claimant informed the Company that he was ‘wanted’ by the police in connection with a scam case involving his account with Maybank after the Company had questioned him about the information they received from the police station.

8. When the Claimant filled up the application form for the purpose of employment with the Company, he failed to declare his involvement in the scam case.

9. The Claimant was arrested on 10 October 2019 by the police at the Dang Wangi District Police Headquarters in Kuala Lumpur and was subsequently released on police bail.

Issue

1. Whether the dismissal of the Claimant by the Company was with just cause or excuse?

Ratios

1. The Company bears the burden to prove that the Claimant had committed the alleged misconduct on a balance of probabilities.

2. Regarding the Claimant’s failure to disclose his involvement in a criminal case in the application form, it appears that the Company failed to convince the Court that the Claimant was aware of his involvement in the relevant criminal case.  Even though COW-1 said the claimant told her that he knew about the scheme involving his Maybank Account, the Claimant denied her claim.

3. In fact, the Claimant’s testimony shows that he was only made aware of the fraud involving six (6) Maybank accounts, one of which was his account, when he was informed of this on 10 October 2019 by Sargent Ridzuan.

4. It cannot be denied that the Claimant was discovered to be on the police’s ‘wanted’ list.  When the Claimant attempted to clear his name as required by the Company on 10 October 2019, he was arrested by the police.

5. Although the Claimant claimed that he was not charged following that arrest and that he was released on police bail hours after being detained, this does not mean that he was no longer a party to the criminal proceedings, Section 420 of the Penal Code (Act 574), for which he was initially detained.

6. Additionally, the Claimant has not provided any evidence to support his claim that he participated in the fraud involving his Maybank Account as a witness and not as a perpetrator.  The Claimant claimed that he was merely wanted as a witness, but the fact that he was arrested under Section 420 of Act 574 proves otherwise.

7. It is therefore the Company’s right to evaluate the Claimant in terms of both his performance and his trustworthiness, taking into consideration that the Claimant was a probationary employee.

8. In this situation, whether or not the Claimant’s involvement in a criminal case was disclosed prior to his employment, it would still have an impact on the Company’s evaluation of him as an employee.

9.  The Company had certainly given the Claimant time to resolve the problem that implied his involvement in the criminal offence, but the Claimant had failed to extricate himself from such an implication.

10.  Thus, the Company had acted in good faith and had no choice but to terminate the Claimant’s contract.

Decision

1. The Court found that the Claimant’s termination was carried out with just cause or excuse.  Therefore, the Claimant’s claim was dismissed.

Key Take Away

1.  An employee on probation enjoys the same rights as a permanent or confirmed employee and his services cannot be terminated without just cause or excuse, according to the Court of Appeal in Khaliah Abbas v. Pesaka Capital Corporation Sdn Bhd [1997] 3 CLJ 827, which addressed the issue whether the Industrial Court has the authority to hear a matter involving a probationer.  His Lordship Shaik Daud Ismail JCA stated the following at page 83-

“It is our view that an employee on probation enjoys the same right as a permanent or confirmed employee and his or her services cannot be terminated without just cause or excuse. The requirement of bona fide is essential in the dismissal of an employee on probation but if the dismissal or termination is found to be a colourable exercise of the power to dismiss or as a result of dis- crimination or unfair labour practice, the Industrial Court has the jurisdiction to interfere and to set aside such dismissal.”

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