REPOST – ARTICLE SOURCE:
Datuk K.N. Segara, who led a three-man bench in allowing the appeal of former senior draughtsman Raja Abdul Rahman Raja Abdul Aziz for unfair dismissal, said private sector employees were only accorded protection under the Industrial Relations Act 1967.
He said once misconduct was proven in the industrial court, the tribunal must venture to determine whether the punishment of dismissal was warranted.
In Raja Abdul Rahman’s case, the court of appeal said his employer, Exxonmobil Exploration and Production Malaysia Inc, was unreasonable.
Segara said the right of employment of public sector workers was guaranteed under Article 135 of the Federal Constitution and Chapter D of the General Orders.
The judge said the industrial court chairman did not commit any jurisdictional error when he took into account the employee’s service record of 18 years when he held that the dismissal was without just cause or excuse.
Segara said the employer did not suffer losses as the computer, allegedly stolen by Raja Abdul Rahman, was recovered within the company premises.
He said the company approved the appellant’s application for a voluntary separation scheme to be effective on July 1, 2003 but the employer issued a show cause letter four days earlier (June 27, 2003).
“The company’s conduct was not sincere and tainted with bad faith when it withdrew the VSS valued at RM151,000,” Segara said.
Lawyer S. Mariappen, who appeared for Raja Abdul Rahman, submitted that a Court of Appeal bench in March this year decided on the severity of punishment for misconduct by relying on a 1998 Federal Court ruling that involved the dismissal of a public servant.
He said that apex court ruling was distinguishable.
Mariappan said the two Federal Court rulings, both in 1995, had stated that the industrial court chairman must ask two questions.
“First, whether misconduct has been proven and if the answer is in the positive, the tribunal must question whether the misconduct merited an extreme punishment of dismissal,” he said.
He said the High Court failed to consider the principle approved in the 1995 apex court rulings that involved private sector employees who were dismissed.
Raja Abdul Rahman was charged with theft at the Kemaman magistrate’s court in 2003 but was acquitted without defence being called.
Despite this, the employer went ahead and initiated a domestic inquiry that led to the employee’s dismissal Oct 16, 2003.
The industrial court said that the charge was proven but held that the punishment of dismissal was excessive.
He was awarded RM160,000 in compensation in lieu of reinstatement.
The employer filed for a judicial review in the High Court and in August 2010 successfully quashed the findings of the industrial court.