26 June, 2019
In the recent Industrial Court case of Wan Ahmad Munawar bin Wan Ali v Linde Malaysia Sdn Bhd (Industrial Court Award 1740 of 2019) dated 13 June 2019, we successfully defended the Company against a claim of unfair dismissal. The Claimant in this case was dismissed pursuant to seven charges of misconduct leveled against him. The nature of the misconduct ranged from insubordination, tardiness to being absent from work without approval. The bulk of the charges related to his coming to work late, or leaving for lunch early, which unfortunately is an all too common problem in many companies.
The Claimant alleged that one of the charges of misconduct was ambiguous as it lacked material particulars. The Industrial Court held that the Claimant knew very well the nature of misconduct he was charged with. It held that what was important was that the employee knew and understood the charges of misconduct leveled against him.
More importantly, in proving the charges, the Company tendered the entry and exit records provided by the building management where the Company was located. The Claimant argued that based on section 90A of the Evidence Act 1950, a computer generated document can only be received as evidence if it was generated by the computer in the course of its ordinary business. A certificate signed by a person who is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used, is also required as proof that the document was produced by a computer in the course of its ordinary use.
The Industrial Court held that although section 90A was to be strictly complied with in criminal and civil proceedings, the said requirement does not require strict compliance in the Industrial Court by virtue of section 30(5) of the Industrial Relations Act 1967, which mandates the court to act in accordance with equity, good conscience and the substantial merits of the case, without regard to technicalities and legal form. Pursuant to this, the Industrial Court accepted the entry and exit records tendered by the Company and ultimately found that the dismissal of the Claimant was with just cause or excuse.
The company was represented in this matter by Vijayan Venugopal, who is a Partner in our Employment and Administrative Law Practice Group.
For further information, please contact:
Sivabalah Nadarajah, Partner, Shearn Delamore & Co
sivabalah@shearndelamore.com
