17 June, 2019
In a recent decision of the Industrial Court in Mohd Fairuz bin Jamaludeen v MISC Berhad (Award No: 1428 of 2019) we successfully defended the company in a claim of unfair dismissal brought by a former employee in connection with drug abuse.
The claimant ("Mohd Fairuz") was signed off from on board ship service on 22 April 2016 when traces of methamphetamine were found in his cabin. On 23 April 2016, pursuant to a urine test at a panel clinic, the results were negative for traces of drugs.
Thereafter Mohd Fairuz was sent for a further test on 25 May 2016, where his hair sample was extracted and sent to a laboratory in the United Kingdom for a drug analysis. The results were positive for amphetamine (methamphetamine 0.53NG/MG), pursuant to which Mohd Fairuz was dismissed from services.
Given the negative results of Mohd Fairuz's urine sample and his denial that the hair sample belonged to him, this was a fundamental issue for consideration in court.
In reaching its decision, based on the testimony of the witnesses, the Court was satisfied that there was no break in the chain of custody of the hair sample from the extraction from Mohd Fairuz to the laboratory in the United Kingdom for an analysis.
Although Mohd Fairuz's urine test results were negative, the Court accepted the evidence adduced that the hair sample test provided a more accurate reflection of the usage of drugs as the detection window is over a longer period of time that can stretch over several months based on the hair length. In comparison the window of detection for amphetamine in urine is approximately only one to three days.
The Court also found that the mere denial of Mohd Fairuz of the hair sample belonging to him was insufficient to prove mala fide intention of the company. Notwithstanding Mohd Fairuz's unblemished past disciplinary record and negative results in respect of the urine sample, the Court upheld the dismissal given the company’s policy of zero tolerance for drug abuse.
For further information, please contact:
Sivabalah Nadarajah, Partner, Shearn Delamore & Co
sivabalah@shearndelamore.com
