“Suspicion may have justified inquiry. Concern may have justified caution. But neither suspicion nor concern can take the place of proof.”
These words from the Industrial Court encapsulate the central principle emerging from a recent decision in favour of our client, Umapagan A/L K Ampikaipakan, a former Producer/Presenter of BFM 89.9.
Our Consultant, P. Jayasingam, Partner, Thavaselvi Pararajasingam, and Legal Associate, Eve Hong Xin Yun, from our Employment & Industrial Relations practice group successfully represented the Claimant in his claim for dismissal without just cause or excuse arising from allegations of workplace sexual harassment.
The Industrial Court, presided over by YA Pravin Kaur Jessy, examined each allegation individually and concluded that the Company had failed to establish the misconduct relied upon for dismissal on a balance of probabilities. The Court found that a number of allegations were affected by deficiencies including lack of material particulars, non-testifying complainants, incomplete or unauthenticated screenshots, missing original messages, and reliance on investigative material that was not proved through direct evidence.
Accordingly, the Court held that the Claimant’s dismissal was without just cause or excuse and awarded compensation and back wages totaling RM358,400.00.
Background
The dismissal followed an anonymous email dated 29 November 2018 entitled “Sexual Harassment at BFM”, which was sent to the Company and circulated to members of the media, containing allegations of sexual harassment, including allegations concerning the Claimant. The Company subsequently established an Independent Investigation Committee and appointed external investigators, who interviewed 27 individuals. The Claimant was issued a Notice to Show Cause on 24 December 2018, and his employment was terminated on 4 January 2019.
Key Takeaways from the Decision
1. Suspicion does not displace the requirement for proof
The Court accepted that the anonymous complaint and information gathered during the investigation justified a serious inquiry. However, it emphasised that a reasonable belief or suspicion of misconduct cannot substitute for proof before the Industrial Court. An employer must still establish the alleged misconduct through cogent and reliable evidence.
2. Charges must contain sufficient particulars
The Court reaffirmed that the requirement for sufficient particulars is rooted in the principles of natural justice, particularly where allegations of sexual harassment carry significant reputational and professional consequences.
In addressing the Company’s reliance on confidentiality, the Court observed:
“This Court will not permit confidentiality to be used as both shield and sword. A shield to conceal particulars from the Claimant and a sword to obtain a finding of guilt against him.“
The Court further held that the relevant inquiry is whether, despite any omission, the employee knew the case he or she was required to answer.
3. Investigation findings are not automatically proof
Whilst recognising that the Company’s investigation was extensive and conducted in response to serious allegations, the Court emphasised the distinction between proving that statements were made during an investigation and proving the truth of those statements. Investigation reports, interview summaries, and hearsay material cannot automatically stand in place of direct, tested evidence.
Why This Decision Matters
This decision does not diminish the importance of investigating complaints of workplace sexual harassment. On the contrary, the Court expressly recognised that employers must take such allegations seriously and investigate them appropriately.
The case nevertheless serves as an important reminder that when a dismissal is challenged before the Industrial Court, the employer bears the burden of proving the misconduct relied upon. Investigative findings, concerns, or even a reasonably held belief are not, by themselves, sufficient.
Ultimately, the Court reaffirmed a fundamental principle of employment law: while suspicion may justify investigation and concern may justify caution, a dismissal can only be sustained where the alleged misconduct is established through reliable, admissible, and sufficiently tested evidence.
