Dismissal With Just Cause Over Misconduct

Shamani Devi Chendra Chekheran
[2017] 4 ILR v. Shangri-La Hotels & Resorts 273
A SHAMANI DEVI CHENDRA CHEKHERAN

v. SHANGRI-LA HOTELS & RESORTS
INDUSTRIAL COURT, KUALA LUMPUR
JAMIL ARIPIN
AWARD NO. 1229 OF 2017 [CASE NO: 14/4-1448/2013]
B
8 SEPTEMBER 2017
DISMISSAL: Breach of company rules and policies – Misuse of the company
Local Area Network – Whether the claimant had used the LAN for her personal
conversations with her colleagues during working hours, despite being warned
about it – Evidence adduced – Evaluation of – Effect of – Whether proven by the
C
company – Claimant admitting to the same – Whether her conduct had justified
her dismissal – Whether dismissal without just cause and excuse
DISMISSAL: Misconduct – Claimant sending e-mails to COW3 expressing her
loss of trust in the management and in him as her boss and accusing him of
D practicing favouritism – Whether it had amounted to false accusations and had
been offensive – Factors to consider – Evidence adduced – Effect of – Claimant
admitting to the same – Effect of – Whether the charge had been proven against
her – Whether it had justified her dismissal
DISMISSAL: Misconduct – Sexual harassment – Whether the claimant had
E sexually harassed COW3 vide her Facebook postings and SMSes – Factors to
consider – Evidence adduced – Evaluation of – Effect of – Whether proven by the
company – Whether the company had acted reasonably in dismissing her –
Whether dismissal without just cause or excuse – Industrial Relations Act 1967,
ss. 20(3) & 30(5)
F DISMISSAL: Misconduct – Whether the claimant had used obscene language on
the LAN to badmouth her Supervisors and ridicule her colleagues and guests alike
– Factors to consider – Evidence adduced – Effect of – Claimant admitting to the
same – Effect of – Whether the charge had been proven against her – Whether
it had justified her dismissal
G
DOMESTIC INQUIRY: Procedural impropriety – Claimant not allowed to call
witnesses – Reasons for the same – Whether the evidence of those witnesses had
been relevant – Factors to consider – Whether the rules of natural justice had been
complied with by the company – Whether it had rendered the Domestic Inquiry
proceedings defective
H
EVIDENCE: Documentary evidence – Notes of proceedings of the Domestic
Inquiry taken in electronic form and then converted into written form – Whether
accurate – Factors to consider – Effect of
The claimant had been employed by the company as a Senior Customer
I Service Executive. Approximately five years into her employment with it,
she was issued a show cause letter on charges of inter alia misuse of the
Local Area Network (‘LAN’) and for sexually harassing COW3. A
Domestic Inquiry (‘DI’) was then convened against her, at the conclusion
274 Industrial Law Reports [2017] 4 ILR
of which she was found guilty of the charges preferred against her and A
dismissed from service. The claimant now contends that her dismissal had
been without just cause and excuse. There were two main issues that arose
for determination before this court. The first was whether the misconduct
complained of by the company had been established against the claimant
and if the answer to the first issue was answered in the affirmative, B
whether her dismissal from employment had been carried out with just
cause and excuse.
Held for the company: dismissal with just cause and excuse
(1) Although the claimant had not been given the opportunity to call Lee
C
Ping Yue and Oliver Lim as witnesses, there had not been any reason
to doubt the accuracy of the DI notes of proceedings as it had been
taken in electronic form ie. it had been taped and then converted into
written form. Further, the claimant had failed to establish that the
notes of proceedings or the minutes of the DI had been a concoction
D
of lies and a fabrication of evidence against her. It was observed that
“though the content of the tape is not exactly what transpired in the
transcript (100%) but the bulk of it is the same” and what had been
raised by the claimant in relation to it had been mere allegations
unsupported by the evidence (paras 44 & 45).
E
(2) The claimant had admitted to the first three charges in the DI. Her
contention that someone else had been using her name had not made
any sense, had defied all logic and had clearly been an afterthought.
Based on all the evidence adduced, “Sham” as recorded in the extract
of the LAN network messages, had referred to her and the company
F
had established charge 1 against her, on a balance of probabilities ie.
that she had used the LAN for her personal conversation gossiping
with her colleagues during working hours despite being warned about
it (paras 49, 56 & 61).
(3) On the second charge, ie. that she had used obscene language on the
G
LAN to badmouth her Supervisors and ridicule her colleagues and
guests alike showing a complete lack of respect, since “Sham” had
referred to her, as found in charge 1, this charge had also been
successfully proven by the company against her (para 64).
(4) On the third charge, ie. that she had sent e-mails to COW3 expressing H
her loss of trust in the management and in him as her boss and
accusing him of practicing favouritism, although there was nothing
wrong in sending e-mails to your supervisor expressing your
grievances or dissatisfaction with the management, accusing your
superior of practising favouritism and insinuating that his attitude and
I
behaviour towards you is unfair, without any proof, could amount to
a false accusation and be seen as being offensive. Thus, this charge
had also been proven against her (paras 65, 66 & 68).
A (5) On the fourth charge, ie. that she had sexually harassed COW3, the
word “Ubbie” which had been used with reference to him had not
been challenged as meaning “sweetheart” or “honey” or “darling”.
Having read the Facebook postings and SMSes that had been posted
and/or sent by the claimant, some of them had been offensive and
B could have been sexually annoying to COW3. The vulgar and
sexually explicit words used by her in these postings and messages
had clearly amounted to sexual harassment. Thus, this charge had
also been successfully proven against her (paras 69, 71, 75, 81 & 82).
[Dismissal with just cause or excuse.]
C
Award(s) referred to:
Advertising Marketing & Communications Sdn Bhd v. Teh Ah Bee [1989] 2 ILR 241
(Award No. 140 of 1989)
Eastern Union Rubber Products Sdn Bhd & M Elangovan Manikam [1991] 2 ILR 781
(Award No. 235 of 1991)
D
Case(s) referred to:
Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia & Anor [2004] 7
CLJ 77
Dreamland Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court of Malaysia
[1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39
E Fredo Ltd v. Barnes [1976] IRLR 439
Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 LNS 30
Harris Solid State (M) Sdn Bhd & Ors v. Bruno Gentil Pereira & Ors [1996] 4 CLJ 747
Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665
Metroplex Administration Sdn Bhd v. Mohamad Elias [1998] 5 CLJ 467
Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449
F Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2015] 4 CLJ 295
Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ
314
Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995]
3 CLJ 344
G
Legislation referred to:
Industrial Relations Act 1967, s. 20(3)
Other source(s) referred to:
CP Mills, “Industrial Disputes Law in Malaysia”, 2nd edn 1984, p. 78
H For the claimant - Anthony Gomez; M/s Gomez & Assocs

For the company - Vijayan Venugopal; M/s Shearn Delamore & Co
Reported by Sharmini Pillai
I
AWARD A
(NO. 1229 of 2017)
Jamil Aripin:
[1] This is a reference dated 4 December 2013 by the Honourable
Minister of Human Resources under s. 20(3) of the Industrial Relations B
Act 1967 arising out of the alleged dismissal of Shamani Devi a/p
Chendra Chekheran (hereinafter called “the claimant”) by Shangri-La
Hotels & Resorts (hereinafter called “the company”) on 29 October 2013.
Introduction
C
[2] The hearing of this case was fully heard before the previous
Chairman of Court 14, who had been transferred to another Department
effective 1 June 2016. Hearing commenced on 17 March 2015 and
concluded on 21 September 2015. The final written submission received
by the court from the company was on 4 August 2016. On 11 April 2017,
I received instruction from the President of Industrial Court to hand down D
the award. Prior to the said instruction, the consent of both parties was
obtained for another Chairman to hand down the award of this case.
[3] Therefore, this award will be based on the pleadings, Witness
Statements, Notes of Proceeding and the Written Submission of both
E
parties without the benefits of having to see the conduct and the
demeanour of the witnesses.
Witnesses
[4] During the hearing, the company called the following witnesses:
F
a) Mr. Kandasamy @ K.S. Anthony, the Area Hygiene and Sanitation
Manager (COW1).
b) Mr. Christopher Raj, the Area Director of Human Resource/
Industrial Relation Malaysia (Shangri-La) (COW2).
c) Mr. Yap Eu Seong (Kenneth), Director of Customer Contact Centre G
Shangri-La (COW3).
While only one witness was called for the claimant ie. claimant herself as
CLWS1.
Claimant’s Case H
[5] The claimant commenced her employment with the company as an
English-Speaking Reservation Sales Agent on 17 November 2008 with a
monthly salary of RM1,850 a month. She successfully completed her
probation and was confirmed on 17 March 2009 with salary adjustment
from RM1,850 to RM1,950 a month. I
A [6] On 1 March 2011 after serving less than 3 years, the claimant was
promoted to Customer Service Executive and her salary was raised to
RM2,300 a month. Subsequently the claimant was again promoted to
Senior Customer Executive and her salary was adjusted to RM2,800 a
month.
B
[7] The claimant claimed that her peaceful existence in the company
was abruptly disturbed when one of her former colleague’s (Joanna) was
re-inducted into the company and promoted as an Assistant Manager by
the Centre Director in 2012. The said new Assistant Manager imposed
new work rules and conditions and was extremely intolerant of any
C dissenting. No action by the company or management despite their
grievances raised and instead they were told to leave the company.
[8] Since no action and situation became intolerable, the staff members
brought this matter to the attention of the Corporate Headquarters in Hong
Kong and following the said complaint the Kuala Lumpur Office was
D
directed by Hong Kong Office to investigate the matter. As a result, the
staff members were interviewed concerning their unhappiness by the
company’s Director for call centre. The claimant did express her
unhappiness over the manner the call centre was managed in particular,
lack of sensitivity on the part of the management towards their
E subordinate. After the group meeting held on 18 October 2013 the
claimant was called to appear before the Centre Director and the Area
Director of Human Resources for a special session of questioning. As the
questioning proceeded, the Area Director for Human Resources instructed
the Centre Director to leave the room. In the absence of Centre Director,
F the Area Director of Human Resources expressed anger towards the
claimant for having expressed her unhappiness over work related matters
during dialogue session and issued an ultimatum “either you (the claimant)
resign or I will get the Centre Director to prefer charges against you for
sexual harassment”.
G [9] Three days after the questioning session, on the 21 October 2013,
the Area Director issued a charge letter with 4 counts of misconduct and
suspended the claimant immediately. Instead asking for explanation, the
letter directed the claimant to be present for a Domestic Inquiry that to be
held on 25 October 2013. The 4 counts of charges of misconduct against
H the claimant were as follows:
a) That you have misused the Local Area Network (LAN) for your
personal conversation gossiping with your colleague during working
hours (see extract between 25 July to 14 October 2013).
b) That you have used the same network to badmouth and also used
I
obscene languages to describe almost all your Supervisors, ridiculed
your colleagues and guest alike showing absolute lack of respect.
Specific examples from LAN extract are dated as follows:
(Supervisors) A
Evelyn (idiot/fucking bitch), Joanna (bitch/dumboo) on 29 July 2013

Joanna (lazy bumps), Ari (fucker/asshole) on 6 August 2013
Evelyn (fucking bitch) on 9 August 2013
Peik See (damn fucking annoying) on 9 September 2013 B
Arri (fucking Arrie), Joanna (asshole) on 17 September 2013
Management in general (stupid) on 18 September 2013
Arri (Idiot) on 19 September 2013
All supervisors (all fucking shit) on 20 September 2013 C
Arri (fucker) on 4 October 2013
Evelyn (beauty bitch), Joanna (fucking dumboo) on 7 October 2013
(Colleague)
Izan (kipas, ie buttkisser), Aishah (malas, ie lazy) on 29 July 2013 D
Nam (bastard/pondan, ie. faggot) on 9 August 2013
Ewing (double faced) on 10 August 2013
Aishah (stupid asshole) on 23 August 2013
Nam (mother fucker) on 2 September 2013 E
Alia (fat one) on 11 September 2013
Dax (damn stupid) on 17 September 2013
(Guests)
“Fucking Indian/stupid” on 6 August 2013 F
“Stupid Arabic customers”, Indian idiot on 8 August 2013
“Indon and Filipinos are real stupid” on 10 August 2013
“another asshole” on 18 September 2013
G
“stupid Indian and Filipino” on 4 October 2013
(The list is not exhaustive. Full transcript attached for period 25 July
2013 to 14 October 2013)
c) That you have, through your own letter dated 10 October 2013
addressed to Mr. Kenneth, stated the following “lost trust in this H
management and you as my boss with your favouritism I believe I
will not be getting what I deserve, in term of salary, bonus and other
benefits” which is consistent with your attitude and behaviour
towards your superiors.
I
d) That you have been sexually harassing Mr. Kenneth through the
Facebook and SMS making it very uncomfortable for him because of
sexual connotations used in your postings towards him (please see
extracts attached).
A [10] It is the claimant’s case that during the Domestic Inquiry, she was
denied the opportunity to question the company’s witnesses nor given the
opportunity to call her witnesses. The claimant averred that her effort to
seek clarification from witnesses were stopped or brushed aside by the
Area Director and the Chairman of the inquiry. The Domestic Inquiry
B failed to conform to the principles of natural justice nor it met basic
procedural fairness.
[11] On 29 October 2013, the company issued a termination letter to the
claimant. In the termination letter, it was stated that the claimant had
admitted 3 of the 4 charges which is denied by the claimant. It was the
C claimant’s contention that her unblemished service record with dedication
for 5 years was completely ignored by the company when she was
dismissed. It is the case of the claimant that the company had arbitrarily
dismissed her without just cause and excuse.
Company’s Case
D
[12] The company first contended that the claimant was employed by
Shangri-La Marketing Sdn. Bhd. and not Shangri-La Hotels & Resorts and
the dismissal of the claimant on 29 October 2013 was done with just cause
and excuse.
E [13] It was not disputed by the company that the claimant commenced
employment with the company on 17 November 2008 but her probation
was extended for a further period of one month and she was only
confirmed on 17 March 2009 and her salary was adjusted from RM1, 850
to RM1,950 a month.
F [14] However, the company contended that the salary increment on
March 2011 was due to the implementation of a new salary scale and it
was carried out across the board and did not only involve the claimant.
The company further contended that the claimant’s salary was again
adjusted on 17 March 2011 as she was designated to a Senior Customer
G Service Executive and there were no changes in the claimant’s job scope.
According to the company, all agents in the company would be
redesignated to become a “Senior” provided they have worked in the
company for three (3) years and had latest performance rating of 3 or
more.
H [15] The company also claimed that the claimant’s performance was
average based on performance rating used by the company as follows:
5 = excellent
4 = Very Good
I
3 = Doing Job Well
2 = Needs Improvement
1 = Inadequate Performance
[16] The claimant’s performance ratings during her tenure are as follows: A
2009 (Mid-year) - 3
2009 (Year-end) - 2
2010 (Mid-year) - 1
B
2010 (Year-end) - 2
2011 (Mid-year) - 2.5
2011 (Year-end) - 3
2012 (Mid-year) - 2 C
2012 (Year-end) - 3
2013 (Mid-year) - 1.5
[17] It is also the case of the company that during the claimant’s tenure
with the company, the claimant had been documented a total of 49 times D
wherein 48 of them are in relation to the claimant’s performance ie.
negligence, non-performance etc. and 1 of them for misconduct for arguing
with her colleague. Further, the claimant had also been suspended for
1-week unpaid leave due to performance issues.
E
[18] The company alleged that the claimant had been sending
inappropriate messages via claimant’s Facebook message to the Director
of the Customers Contact Centre, Mr. Kenneth sometimes in October
2012. In one of the claimant’s Facebook message to Mr. Kenneth she said
“thank you for signing the letters for the trip ... mmmmuax?!” On
8 December 2012, the claimant had sent an SMS to Mr. Kenneth stating F
that she regretted attending the company’s Team Building event as
Mr. Kenneth was “staring at the ass” of another agent as the agent climbed
a ladder for one of the activities.
[19] It was also alleged by the company that over the course of a few
G
months, Mr. Kenneth continued to receive SMS containing inappropriate
and sexually explicit statement from the claimant. The company also
averred that Mr. Kenneth had never entertained the claimant’s messages
and sometime in February 2013, he had confronted the claimant on her
unbecoming behaviour and asked her to stop sending him any messages.
H
[20] Despite Mr. Kenneth warning, on 27 March 2013, the claimant had
responded Mr. Kenneth as her “UBBIE” (meaning “darling”,
“sweetheart” or “honey”) after Mr. Kenneth allowed the claimant’s
application not to attend a cross-training organized by the company. The
situation made Mr. Kenneth even more uncomfortable in the presence of
the claimant and took steps to avoid the claimant. However, the claimant I
began to be increasingly temperamental in her behaviour at work, refused
to cooperate with her colleagues, question every instruction given which
A made it very difficult for her supervisors, trainers and management to

work with the claimant. The claimant’s erratic behaviour is evident in her
various SMS messages to Mr. Kenneth, her Facebook postings/messages
to her colleague through the company’s Local Area Network (LAN).
[21] On 3 July 2013, a meeting was held between all managers,
B
supervisor and trainers and one of the topic discussed was the claimant’s
behaviour at work had made it very difficult for everyone to work and/or
manage her. Apart from making numerous disparaging remarks about her
colleagues and Hotel guests using company’s Local Area Network, the
claimant continued her inappropriate behaviour towards Mr. Kenneth and
C her colleagues.
[22] The company also averred that the claimant continued her
inappropriate behaviour towards Mr. Kenneth and her colleagues which
amongst others were as follows:
D (a) The claimant continued reference to Mr. Kenneth as “Ubbie” in her
Facebook postings.
(b) Claimant’s Facebook message to Mr. Kenneth on 15 July 2013 saying
she cannot trust what anyone in the office says.
(c) On 29 July 2013, the claimant called one of her trainers “intelligent
E
shit” in one of her Facebook posting.
(d) Continued to vent her alleged frustrations in her Facebook postings or
Local Area Network messages.
[23] On 13 September 2013, meeting was called to address the
F claimant’s dissatisfaction with Mr. Arri, Work Force Assistant Manager
and to explain to the claimant why her colleagues find it difficult to work
with her in the office and again on 19 September 2013, another meeting
was called for the claimant to provide her explanation on her Facebook
postings. On 2 October 2013, an anonymous e-mail from “CCC Agents”
G to Group Human Resources was sent wherein it contains a complaint
against Ms. Joanna Paul, the Assistant Operation Manager. The complaint
in the anonymous e-mails was consistent with the claimant’s postings on
Facebook and also her message on the Local Area Network.
[24] It is the company contention that the Standard Operating
H Procedures and Practices at the Customer Contact Centre of the company
were reasonable and in line with business activities and requirement of the
company. The company had also reviewed and gave due consideration to
the claimant’s and/or other agents’ complaints in relation to working
environment in the customer contact centre.
I
[25] After receiving the claimant’s email on 10 October 2013 which
expressed her unhappiness over the response to the anonymous e-mail and
losing her trust in the management, Mr. Kenneth had forwarded all
relevant Local Area Network message history of the claimant, the A

claimant’s Facebook postings and the claimant’s SMS messages to the
Area Director of Human Resources, Mr. Christopher Raj. As a result a
meeting was held on 18 October 2013 between Mr. Christopher,
Mr. Kenneth and the claimant to discuss the claimant’s various
communications and during the said meeting, it was established that the B
claimant was involved in preparing the anonymous e-mail.
[26] It is also alleged by the company that after the meeting, the claimant
sent an e-mail to Group Human Resources using the same e-mail address
which was used to send the earlier anonymous e-mail to complaint about
the meeting with Mr. Christopher and Mr. Kenneth. C
[27] Only after investigation into the issues raised by Mr. Kenneth, the
company had decided to issue a Notice of Domestic Inquiry dated
21 October 2014 where the said 4 charges of misconducts preferred
against the claimant. It was the decision of the Panel of Inquiry that the
D
claimant was found guilty on all the 4 charges after going through all the
documentary and testimony evidence before it.
[28] It is the company’s view that the misconduct as proven in the
Domestic Inquiry was serious and left the company with no alternative but
to dismiss her from employment.
E
The Law And Issues
[29] The function of the Industrial Court had been clearly defined by the
Federal Court in the case of Milan Auto Sdn Bhd v. Wong Seh Yen [1995]
4 CLJ 449, where Mohd. Azmi FCJ states as follows:
F
As pointed out this Court recently in Wong Yuen Hock v. Syarikat
Hong Leong Assurance Sdn Bhd & Anor Appeal [1995] 3 CLJ 344, the
function of the Industrial Court in dismissal cases on a reference
under s. 20 is twofold, firstly, to determine whether the misconduct
complained of by the employer has been established and secondly
whether the proven misconduct constitute just cause or excuse for G
the dismissal.
[30] In the case of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 LNS
30, Raja Azlan Shah, CJ (as HRH then was sitting in the Federal Court at
the time) stated the principle as follows:
Where representations are made and are referred to the Industrial H
Court for enquiry, it is the duty of the Court to determine whether
the termination or dismissal is with or without just cause or excuse.
If the employer chooses to give a reason for the action taken by him,
the duty of the Industrial Court will be to enquire whether that
excuse or reason has or has not been made out. If it finds as a fact
I
that it has not been proved, then the inevitable conclusion be that
the termination or dismissal was without just cause or excuse. The
proper enquiry of the Court is the reason advanced by it and that
court or the High Court cannot go into another reason not relied on
by the employer or find one for it.
A [31] Therefore, the main duty of this court will be on the twofold
functions of the Industrial Court ie. to determine whether the misconduct
complained of by the company has been established and secondly whether
the proven misconduct constitute just cause or excuse for the dismissal.
The burden is on the company to justify the accusation and the dismissal.
B
Domestic Inquiry
[32] Where a Domestic Inquiry has been held, the Industrial Court’s
jurisdiction is limited to considering whether there was a prima facie case
against the employee and in this respect the Industrial Court should
consider whether the Domestic Inquiry has applied the correct procedure
C
and reached the correct conclusion having regard to all the evidence,
documentary and oral, adduced at the domestic inquiry: Bumiputra
Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia & Anor [2004] 7
CLJ 77; Metroplex Administration Sdn Bhd v. Mohamad Elias [1998] 5 CLJ
467.
D
[33] What is paramount now for the court’s determination is whether
there was sufficient evidence before the Panel of Inquiry to justify their
finding of guilty as charged against the claimant in respect of allegations
proffered against the claimant. It is pertinent to note that albeit there being
a Domestic Inquiry by the company to investigate the charge against the
E
claimant, this court rehears the matter afresh. This court has to make a
finding of fact premised on the evidence available as to whether the
charges of misconduct had been established against the claimant by the
company on the balance of probabilities.
F [34] In the case Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan &
Other Appeals [1997] 1 CLJ 665 at p. 716, the Court of Appeal decided as
follows:
The fact that an employer has conducted a Domestic Inquiry against
his workman is, in my judgement, an entirely irrelevant
G
consideration to the issue whether the latter had been dismissed
without just cause or excuse. The findings of a domestic inquiry are
not binding upon the Industrial Court which rehears the matter
afresh. However, it may take into account the fact that a Domestic
Inquiry had been held when determining whether the particular
workman was justly dismissed.
H
[35] The author, CP Mills in “Industrial Disputes Law in Malaysia”, 2nd
edn 1984 at p. 78, states as follows:
Unless there is clear evidence to support the charge of misconduct,
the employer’s decision against the workman will not be upheld by
the Court.
I
Even where there were reasonable grounds before the employer for
concluding that the workman was guilty of the misconduct alleged
against him, but in the proceedings before the Court the evidence
does not permit any firm conclusion that the workman did commit
the acts in question, the dismissal will not be sustained.
[36] It is the contention of the claimant that during the Domestic A

Inquiry, she was denied the opportunity to call her witnesses nor given the
chance to question the company’s witnesses. Her effort to seek
clarification from the witnesses was stopped by the Chairman of the said
inquiry. The Domestic Inquiry failed to conform to the principles of
natural justice nor it met basic procedural fairness. B
[37] The claimant in her Witness Statement (CLWS1) claimed that she
did not plead guilty to any of the charges and the Area Director refused to
show her the Domestic Inquiry notes for her to verify despite asking twice.
It was also the contention of the claimant that the notes of proceeding that
was produced in this court was nothing but a concoction of lies and C
fabrication of evidence against her and prayed that the entire Domestic
Inquiry notes should not be allowed as evidence in court for want of
procedural fairness.
[38] During cross-examination of the claimant, she agreed that based on
D
CLB1 p. 1, she was informed that the notes of Domestic Inquiry shall be
passed to her at scheduled ministry meeting on 12 November 2013. The
claimant also agreed that she received the minute of the inquiry on
12 November 2013, about 2 weeks after the Domestic Inquiry. However,
during re-examination, the claimant said she made the request
immediately after the Domestic Inquiry but was given the typed written E
notes about 2 weeks after the said inquiry.
[39] The claimant also testified that she can’t remember whether the
minutes or notes of the Domestic Inquiry are accurate. In my view, if she
could not remember on the accuracy of the notes, why would she have
F
said the notes was nothing but a concoction of lies and fabrication of
evidence against her. She never complaint on the accuracy of the notes
before. Why did she pray in her Witness Statement that the entire notes
should not be allowed as evidence in court for want of procedural fairness?
She even admitted during cross-examination that she did not write to the
company complaining that the Domestic Inquiry notes are not accurate G
after receiving the said notes on 12 November 2013. According to COW1
the proceedings were recorded by electronic means and there was also a
secretary who was present throughout the proceedings. The secretary, one
Nor Salfida Shaari, an Administration Assistant subsequently typed the
notes of proceedings into written-form. H
[40] The claimant also failed to produce any document to prove that she
had informed the company that she wanted to call witnesses. It was her
evidence that she never writes any letter about to call witnesses. However,
COW1 in his evidence admitted that the claimant did request to bring
witnesses but after discussion he disallowed it on the ground that the said I
witnesses were not relevant to the charge. It was alleged by COW1 that
when the decision was made the claimant said yes implying that she
agreed to it. COW2 in his testimony said the reason why the Panel refused
A to allow the claimant to call Lee Ping Yue and Oliver Lim was because
both of them were using the LAN the way the claimant was alleged to
used and actions were already taken against both of them by the company
and therefore their evidence were not relevant. Both were issued show
cause letter and final warning (see p. 127 until 137 of COB1).
B
[41] Having read their explanations to the show cause letter, I find that
the said explanation supports the first charge against the claimant and
therefore this court is of the view that calling of both of them will not assist
the claimant nor would their evidence make any different in the Domestic
Inquiry as both had admitted in their explanation letters over the misused
C of Local Area Network (LAN).
[42] The allegation of the claimant that her efforts to seek clarification
from the witnesses were stopped or brushed aside by the Area Director
and the Chairman of the said Inquiry was not true as based on the notes
of proceeding that was recorded, the claimant was given the opportunity
D
to cross-examine the witnesses.
[43] According to the company, the Domestic Inquiry was carried out as
scheduled on 25 October 2013 wherein the claimant was given the
opportunity to present her case and it is the contention of the company that
during the inquiry, the claimant admitted to charges 1, 2 and 3 as
E
contained in the Notice of Domestic Inquiry.
[44] Therefore, despite the fact the claimant was not given the
opportunity to call the 2 witnesses, I find no reason to doubt the accuracy
of the Domestic Inquiry notes of proceedings and to exclude it in totality
F as the evidence adduced showed that the Domestic Inquiry notes was
taken in electronic form and it was taped before it was converted into the
written form. Further, the claimant failed to establish that the notes of
proceeding or a minute of the Domestic Inquiry was a concoction of lies
and fabrication of evidence against her.
G [45] The tape recording during the DI which was played and heard by
the court as per the transcript at pp. 39 and 40 of COB2 clearly support the
evidence of COW2 that the claimant did admit charges 1, 2 and 3. Based
on the evidence of COW1 and COW2 and having read the said transcript
at pp. 39 and 40 of COB2, I have no reason not to disbelieve them that the
H claimant did admit committing the alleged misconducts as in charge 1, 2
and 3 even though the claimant in her Witness Statement said that the
termination letter which stated that the claimant had admitted to 3 of the
4 charges, not only laughable but an idiotic statement devoid any merit.
Further, it was also the court’s observation during the hearing based on the
notes of proceedings that “though the content of the tape is not exactly
I
what transpired in the transcript (100%) but the bulk of it is the same” and
the court then had accepted the transcript and the tape as the same. What
was raised by claimant was a mere allegation not even supported by her
own evidence during cross-examination.
[46] Be that as it may, this court is mindful of the decision in Wong Yuen A
Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3
CLJ 344, where it was held that:
... Thus, even where there was a breach of contractual or statutory
obligation to hold an inquiry, the Industrial Court should proceed to
determine on the merits firstly, whether the misconduct complained B
of was in fact committed by the employees? and secondly whether
the nature and extent of the misconduct could constitute just cause
and excuse for the dismissal.
[47] In the earlier case of Dreamland Corp (M) Sdn Bhd v. Choong Chin
Sooi & Industrial Court of Malaysia [1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39, C
where it held inter alia:
The absence of Domestic Inquiry or the presence of a defective
inquiry is not a fatality but merely irregularity; it is open to the
employer to justify his action before the Industrial Court by leading
all relevant evidence before it, and by having the entire matter open D
before the Court.
[48] Whether or not the Domestic Inquiry was conducted in accordance
with the principles of Natural Justice and in conformity with the basic
procedural fairness, it is still the duty of this court to proceed to determine
whether the misconduct complained was in fact committed by the E
claimant and whether the nature and extent of the misconduct could
constitute just cause and excuse for the dismissal. However, since the
notes of proceeding form part of the company’s evidence against the
claimant, it is open for this court to asses and to admit the evidence that
was adduced in the said Domestic Inquiry if it is relevant. F
Findings On The Misconducts
[49] Despite the denial of the claimant that she never pleaded guilty on
the first 3 charges as claimed by the company, the notes of proceeding of
the Domestic Inquiry suggested otherwise. While it is true that the
G
claimant did not plead guilty to all the four (4) charges, but in the course
of the Domestic Inquiry, the claimant did admit to charges 1, 2 and 3 as
evinced in the notes of proceedings. The crucial part of the claimant’s
evidence in respect of the first 3 charges in the Domestic Inquiry was as
follows:
H
The DI Notes Of Proceeding At p. 40 COB2
Question : So the first charge, you saying that you are guilty?
Claimant’s answer : Yes.
Question : The second Charge, you admit to it?
I
Question : The third charge, you admit to it?
A Claimant’s answer : Yes because I sent the letter.

Question : The fourth charge, you admit to it?
Claimant’s answer : The fourth charge, I don’t agree with that, I am
not guilty.
B On The First Charge (p. 6 of COB2 And p. 7 Of COB2)

[50] That you have misused the Local Area Network (LAN) for your
personal conversation gossiping with your colleague during working hours
(see extract between 25 July to 14 October 2013).
Question : The extract has been given to you, do you admit
C
that it comes from your account status?
Claimant’s answer : Yes my name is there
Question : Do you admit that this is in relation to the first
charge, can I say that it’s done during office
D hours?
Question : The first charge says basically you have misused
the LAN during office hours?
E
On The Second Charge (p. 8 Of COB2)
[51] That you have used the same network to badmouth and also used
obscene languages to describe almost all your Supervisors, ridiculed your
colleagues and guest alike showing absolute lack of respect.
F
Question : So you admit that you used this LAN (Local Area
Network) to bad mouth towards your colleagues,
guest and supervisors? This is your document you
admitted earlier. What I’m saying is extract from
the document. I just want to show you the
G document that you have bad mouth to all these
people eg. Supervisors.
Claimant’s answer : Yes I did, all the conversation is mine.
Question : Yes, that makes the second charge that mean all
that she used the network for bad mouth but why
H say that you are not guilty?
Claimant’s answer : Because I have reason to give ... If I have reason
also ... yeah I want to defence myself of course I
want to say.
On The Third Charge (p. 8 Of COB2)
I
[52] That you have, through your own letter dated 10 October 2013
addressed to Mr. Kenneth, stated the following “I lost trust in this
management and you as my boss with your favouritism I believe I will not
be getting what I deserve, in term of salary, bonus and other benefits” A

which is consistent with your attitude and behaviour towards your
superiors.
Question : Now the third Charge is, did you send a letter to
Kenneth (showed the letter to her), this letter, did
you write to Kenneth? B
Claimant’s answer : Ha yeah.

Question : Did you say that? That you don’t trust the
management at all in the letter?
Claimant’s answer : Yeah, after all the problem, yes. C
[53] Based on the notes of the Domestic Inquiry and the tape recording
that was played in court when COW2 testified, it is obvious that there was
an admission on part of the claimant on the first three (3) charges. In other
words, the panel of Inquiry was correct when they found the claimant
guilty of the 3 said charges based on the evidence adduced and the D
claimant’s admission of committing the alleged misconducts. It was the
finding of the Panel of Inquiry at p. 42 of COB 2 that the claimant had
pleaded guilty to the first three charges at the closing session.
[54] However, during cross-examination of the claimant (CLW1), she
denied all the extracted LAN messages runs between 25 July 2013 until E
14 October 2013 (pp. 74 to 114 of COB1) were her messages and claimed
that somebody else was using her name and she accused her superior
Mr. Kenneth as the person. When cross-examined further the claimant
said “I only think it is Kenneth but I do not know it was Kenneth”. The
claimant also agreed that the LAN messages is to be used for work F
purpose only and not for personal messages. However, when cross-
examined further on this issue, the claimant gave two (2) contradicting
answers. First, she disagrees that she did not follow the instruction of her
superior on the usage of LAN messages for work purpose. On the other
hand, when asked whether after receiving the reminder at pp. 27 and 28 G
dated 20 May 2013 of COB1, she only used the LAN messages for work
purpose only, she answered no.
[55] In relation to charge 2, the claimant also denied all the extracted
LAN messages (pp. 74 to 114 of COB1) in which she was alleged to bad
mouth and used obscene language to describe almost all her Supervisors, H
ridiculed her colleague and guest and showing lack of respect. The
claimant testified that she never bad mouth any of her superior. While in
respect of charge 3, she admitted sending the e-mail stating that she lost
trust in the management and COW3 (Mr. Kenneth) as her boss.
[56] On the claimant’s allegation that somebody else was using her name I
and she thinks it was Kenneth, I have no reason to disagree with counsel
for the company that such allegation did not make any sense and defies
A logic. It does not make any sense that COW3 could have maintained
numerous conversations between the claimant’s colleagues without them
realizing that it was not the claimant. It was a mere and unsupported
allegation when all the evidence pointed that “Sham” actually the
claimant herself. Further when Mr. Kenneth (COW3) was called to give
B evidence, such a serious allegation was never put to him and this court
agree that it only goes to show that it was an afterthought by the claimant.
Such allegation should also be disregarded on the ground that it was not
pleaded as it is trite law that parties are bound by their pleadings. The
claimant’s even admitted in her testimony to misusing the LAN network
C
to conduct her own personal conversation with her colleagues in question
48 and 49 of CLWS1. As a matter of fact, the claimant did not deny in her
Rejoinder that she did use LAN network for non-related work purpose and
claimed it was common amongst the call centre staff that claimant
intended to call but was denied during the Domestic Inquiry. In response
to the show-cause letter did not deny the fact that the company had come
D
across exchanges between them and Shamani (the claimant) over Local
Area Network (LAN) where they had displayed a lack of respect for
management, colleagues and guests and also used vulgarities that are not
becoming of Shangri-La staff (see pp. 126 to 136 of COB1).
E
[57] Further, the claimant in her testimony during cross-examination
confirmed that she received the document at pp. 27 and 28 of COB1 dated
20 May 2013 in which the claimant was specifically warned by COW3
that LAN messenger is to be used for work purpose only and not for
personal messages. However, based on the LAN messages extracted from
25 July 2013 until 14 October 2013 (pp. 74 to 114 of COB1), clearly
F
indicated that despite the warning, the claimant continued to use LAN
network for non-related work purpose.
[58] The claimant also denied that during the meeting held between her,
COW2 and COW3 on 18 October 2013, she had admitted all the 4
G
accusations against her. However, her evidence during cross-examination
after her email to COW3 dated 21 October 2013 (pp. 3 and 4 of CLB1)
was shown to her, she agreed that nowhere in the said e-mail suggested
that she never admit the accusations against her. There was also no
evidence that she wrote to the company that she never admitted the
accusation.
H
[59] It was the submission of the counsel for the claimant that the
Company freely allowed its call centre to indulge in free private
conversation. However, in the case of the claimant, she was warned not
to use the LAN network for non-related work purposes after her argument
I
with Juzaili as stated in the letter dated 20 May 2013 (pp. 27 and 28 of
COB2) issued by COW3. The claimant in her evidence said Kenneth
(COW3) is her superior in the company and she agreed that she have to
follow Mr. Kenneth instruction on work related matter. Despite of what A

she said in her testimony, the claimant continued to use the LAN Network
not only for personal conversation but also to badmouth and used obscene
language to describe her Supervisors, ridiculed her colleague and guest as
can be read in the extract of the messages from LAN network from 25 July
2013 until 14 October 2013 (pp. 74 to 114 of COB1). B
[60] Further, at no time prior to the claimant’s testimony did the

claimant deny that the LAN messages as shown by the company were not
her messages. During the Domestic Inquiry, the claimant agreed that the
LAN messages belonged to her. The unchallenged testimony of COW3
that the LAN messages beginning with the name “SHAM” were the C
claimant’s messages supported the first charge that the claimant had
misused the Local Area Network (LAN) for her personal conversation
gossiping with her colleague during working hours.
[61] Therefore, based on the evidence adduced in this hearing together
D
with the evidence of the claimant during the Domestic Inquiry, this court
finds without doubt that “Sham” as recorded in the extract of LAN
network massages (pp. 74 to 114 of COB1) referred to the claimant and
company has on the balance of probability establish that the claimant had
committed the alleged misconduct as in charge 1 ie., the claimant had
misused the Local Area Network (LAN) for her personal conversation E
gossiping with her colleague during working hours despite after being
warned on 20 May 2013.
[62] As regards to Charge 2, it was the claimant’s evidence during the
Domestic Inquiry that, not only she admitted all the conversation was
F
hers, she also admitted that she had used the LAN network to badmouth
and used obscene languages to describe almost all her Supervisors,
ridiculed her colleagues and guest. However, it was the claimant’s
evidence during cross-examination that she did not send the conversations
as at pp. 74 to 114 of COB1 despite record referring her as “Sham”.
G
[63] According to COW3 in his testimony confirmed that “Sham” is the
claimant and I see no reason not to disbelieve him based on his
consistency and other available evidence which pointed “Sham” as the
claimant. In the letter of explanation by Ping Yue Lee at p. 127 of COB1,
third paragraph that says “Even though we (Shamani and I) mentioned
quite a number of things that we should not have in the workplace, from H
the bottom of my heart, we meant no harm” clearly support the first and
the second charge against the claimant. In other words, the witness that the
claimant intended to call during the Domestic Inquiry admitted in the said
letter of explanation that the claimant and her did mentioned quite a
number of things that they should not have in workplace. Both Lee Ping I
Yue and Oliver Lim did not deny the fact in the show cause letter that the
company had come across numerous exchanges between them and the
A claimant over the Local Area Network where they had displayed a lack of
respect for management, colleagues and guests and also used vulgarities
that are not becoming of a Shangri-La staff.
[64] Since it is the finding of this court that the of “Sham” referred to the
claimant, this court also finds that the company has on the balance of
B
probability established that the claimant did used the LAN network to bad
mouth and also used obscene languages to describe her Supervisors,
ridiculed her colleagues and guest and therefore the company had on the
balance of probabilities established the second charge ie. the claimant
have used the same network to badmouth and also used obscene languages
C to describe almost all your Supervisors, ridiculed your colleagues and
guest alike showing absolute lack of respect.
[65] In respect to charge 3, the evidence of the claimant clearly admitted
that she did send the email to COW3 (Mr. Kenneth) expressing her loss
of trust in the management and COW3 as her boss. Apart from that she
D
also accused COW3 of favouritism and she believe she will not be getting
what she deserves, in term of salary, bonus and other benefits, which is
consistent with COW3 attitude and behaviour towards his superiors.
[66] While it is true that there was nothing offensive to send e-mail to
your superior expressing your grievances or dissatisfaction with the
E
management, but accusing your superior of practicing favouritism and
insinuating your superior attitude and behaviour towards his superiors
without any proof may amount to false accusation and offensive unless
you are able to justify it.
F [67] Therefore, I am unable to agree with the counsel for the claimant
that the e-mail was nothing but a manifestation of the claimant’s frustration
with the administration and the management of the call centre by the said
Director. There was no evidence adduced that the claimant would not be
receiving salary, bonus and other benefits she deserves and no evidence
adduced to show COW3 attitude and behaviour towards his superiors.
G
The claimant failed to justify or substantiate such allegation against
COW3. Neither was there any evidence of any form of favouritism.
[68] Therefore, it is this court’s finding that the alleged misconduct as in
third charge has been established by the company on the balance of
H probability.
The 4th Charge
[69] The 4th Charge accused the claimant of sexually harassing
Mr. Kenneth (COW3) through the Facebook postings and SMS messages
making it very uncomfortable for him because of sexual connotations used
I
in the claimant’s postings towards him.
[70] It was the evidence of COW3 that after assisting the claimant to A
issue a letter to the Insolvency Department for her to officially travel to
China for a familiarization trip, the claimant began sending him
inappropriate messages to him. To support his accusation, Facebook
messages between claimant and COW3 from January 2013 to October
2013 were produced in court as at pp. 32 to 55 of COB1. In addition to B
that the claimant had also sent SMS to COW3 after the company’s Team
Building event on 8 December 2012 stating that she regretted attending the
event as COW3 was staring at the ass of another agent as the agent
climbed a ladder for one of the activities. It was also the evidence of
COW3 that over the course of few months, he continued to receive SMS C
containing inappropriate and sexually explicit statements which amongst
the SMS messages sent by the claimant contained statement such as:
a) The claimant describing how she had a dream of the company’s
agents having gay sex.
D
b) Each time she looked in COW3’s eyes, she cannot help but to think
of sex.
c) Asked COW3 whether he was having an affair with anyone.
[71] It was COW3 contention that he never entertained the claimant’s
inappropriate messages and sometime in February 2013, he had E
confronted the claimant and asked her to stop sending him any messages.
The claimant did tell him not to let anyone know about the SMS she had
sent to him. However, on 27 March 2013, after COW3 allowed the
claimant’s application not to attend cross-training organized by the
company, the claimant again sent him a message and addressed COW3 as F
follows “U R MY UBBIE Always and Forever!!!” According to COW3
the meaning of the word Ubbie which is not challenged is “darling”,
“sweetheart” or “honey”. The said message can be seen at pp. 40 to 41
and pp. 56 to 73 of COB1.
[72] COW3 in his evidence claimed that after he took steps to avoid the G
claimant, the claimant began to be increasingly temperamental in her
behaviour at work, refused to cooperate with her colleagues, questions
every instruction given etc. which made it very difficult for her
supervisors, trainers and management to work with her. The claimant’s
erratic behaviour is evident in her various SMS messages to COW3, her H
Facebook postings/messages and her messages to her colleagues through
the company’s Local Area Network (LAN).
[73] Despite denying charge no. 4, the claimant in her evidence admitted
that in her Facebook postings at COB3, she referred COW3 as her “Ubbie
always and forever” and she confirmed that COB3 and COB4 were I
Facebook postings taken from her Facebook page and she also confirmed
that the words marked in red box were written by her. However, she
A denied “Ubbie” in COB4 referred to COW3 and instead contended that it

referred to Larry and Prakash which names were never raised during the
Domestic Inquiry. The claimant also agreed that nowhere in her e-mail to
COW3 dated 21 October 2013 on the subject “Suspension Due Sexual
Harassment Case” at p. 3 of CLB1 that she mentioned “Ubbie” actually
B refers to Prakash and Larry.
[74] It was the evidence of COW3 that the claimant calling him “Ubbie”
made him uncomfortable because it was an unwanted attention and
unwanted nickname that was given to me without him asking for it.
Further COW3 testified that the problem that he had with the claimant’s
C postings (COB4) which appeared in his Facebook referred him as
“Ubbie” and using sexual connotation which makes him uncomfortable.
[75] Having analysed the evidences adduced in respect of this issue
together with all the Facebook postings and the SMS messages in total, I
am more inclined to believe that the word “Ubbie” which was used by the
D
claimant is without doubt referring to COW3. The evidence of the
claimant that “Ubbie” referred to either Larry or Prakash was only an
afterthought.
[76] Next issue is whether the claimant did sexually harassing
Mr. Kenneth (COW3) through her Facebook postings and SMSes
E
messages. According to Dr. Ashgar Ali in his book “Dismissal from
Employment and the Remedies” at p. 156, it is impossible to define sexual
harassment in terms of specific act or behaviour because incidents of
harassment are difficult to measure. Therefore, one has to look at the
context, the surrounding circumstances that include the victim’s
F
upbringing, culture and religious sensitivities, amongst others ... what
might be offensive to one person might not be offensive to another.
[77] In Court of Appeal case of Mohd Ridzwan Abdul Razak v. Asmah Hj
Mohd Nor [2015] 4 CLJ 295 where Zaharah Ibrahim JCA (as she then was)
quoted, at p. 304, the definition of sexual harassment from a Code of
G
Practice on the Prevention and Eradication of Sexual Harassment in the
Workplace as follows (this decision was later affirmed by the Federal
Court in Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ
346):
H The Malaysian Government had accepted that sexual harassment in the

workplace, especially, is to be abhorred. In 1999 a Code of Practice on the
Prevention and Eradication of Sexual Harassment in the Workplace was
formulated by the Government and employers were urged to adopt it.
While the Code has no force of law, it signalled in the change in the
mindset of the authorities on sexual harassment in the workplace.
I
In the Code, sexual harassment is defined as:
Any unwanted conduct of a sexual nature having the effect of verbal, non-
verbal, visual, psychological or physical harassment:
- that might, on reasonable grounds be perceived by the recipient as A

placing a condition of a sexual nature on her/his employment; or
- that might, on reasonable grounds, be perceived by the recipient as
an offence or humiliation, or a threat to his/her well-being, but has
no direct link to her/his employment.
[78] Based on that definition, the code divides sexual harassment into B
two categories, namely coercion and sexual annoyance. The second type
of sexual harassment, sexual annoyance which is relevant in this case is
defined as follows:
... sexually-related conduct that is offensive, hostile or intimidating
C
to the recipient, but nonetheless has no direct link to any job
benefit. However, the annoying conduct creates a bothersome
working environment which the recipient has to tolerate in order to
continue working. A sexual harassment by an employee against a
co-employee falls into this category. Similarly, harassment by a
company’s client against an employee also falls into this category. D
[79] The code further sets out various forms of sexual harassment in
para. 8:
Sexual harassment encompasses various conducts of a sexual nature which
can manifest themselves in five possible forms, namely:
E
- verbal harassment:
e.g. offensive or suggestive remarks, comments, jokes, jesting,
kidding, sounds, questioning.
- non-verbal/gestural harassment:
e.g. leering or ogling with suggestive overtones, licking lips or F
holding or eating food provocatively, hand signal or sign language
denoting sexual activity, persistent flirting.
- visual harassment:
e.g. showing pornographic materials, drawing sex-based sketches or
G
writing sex-based letters, sexual exposure.
- psychological harassment:
e.g. repeated unwanted social invitations, relentless proposals for
dates or physical intimacy.
- physical harassment: H
e.g. inappropriate touching, patting, pinching, stroking, brushing up

against the body, hugging, kissing, fondling, sexual assault.
[80] The issue now is whether the alleged conduct of the claimant of
sending the inappropriate messages in her Facebook postings and SMSes I
amounted to sexual harassment.
A [81] Having read the Facebook postings and the SMSes sent by the
claimant to COW3 at pp. 32 to 55 of COB1, COB3 and COB4, I find some
of the postings and SMSes were not only offensive but could cause sexual
annoyance to COW3. The claimant’s messages in particular stating that
COW3 was staring at the ass of another agent, describing how she dream
B of the company’s agents having gay sex, each time she looked in COW3’s
eyes, she cannot help but to think of sex and asking COW3 whether he
was having an affair with anyone, in my view without any doubt amounted
to a form of sexual harassment. The vulgar and sexually-explicit words
used by the claimant in her Facebook postings and SMSs, in my view,
C
were not only offensive and having suggestive remarks but they are clearly
amounted to a sexual harassment.
[82] Therefore, this court finds that the company had on the balance of
probability established the misconduct on the fourth charge ie. claimant
did sexually harassing Mr. Kenneth (COW3) through the claimant’s
D Facebook messages and SMSes messages.
Whether The Claimants Were Dismissed By The Company Without Just
Cause Or Excuse.
[83] The Court of Appeal in the case of Telekom Malaysia Kawasan Utara
v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (“Telekom case”)
E
clearly stated the standard of proof required to be met even where criminal
related misconducts are concerned. The Court of Appeal in the Telekom
case held as follows:
Thus, we can see that the preponderant view is that the Industrial
F
Court, when hearing a claim of unjust dismissal, even where the
ground is one of dishonest act, including “theft”, is not required to
be satisfied beyond reasonable doubt that the employee has
“committed the offence”, as in a criminal prosecution ...
In our view the passage quoted from Administrative Law by H.W.R.
Wade & C.F. Forsyth offers the clearest statement on the standard
G of proof required, that is the civil standard based on a balance of
probabilities, which is flexible, so that the degree or probability required is
proportionate to the nature of gravity of the issue. But, again, if we may
add, these are not “password” that the failure to use them or if some
other words are used, the decision is automatically rendered bad in
law.
H
[84] It must be emphasized here that the standard of proof required is
based on a balance of probabilities which is flexible so that the degree or
probability required is proportionate to the nature of gravity of the issue.
In Goon Kwee Phoy v. J & P Coats (M) Sdn Bhd (supra), it was held that
I proper inquiry of the court is the reason advanced by it and that court or
the High Court cannot go into another reason not relied on by the
employer or find one for it.
[85] However, there is another view that an employer need not be A

burdened with such a high standard of proof and that he need only to show
that he had a genuine and reasonable belief based on tenable conclusion
pursuant to the conduct of due inquiry. On this view, it would appear that
the standard of proof required of an employer may be even lower than
proof on a balance of probabilities. Thus, in the case of Advertising B
Marketing & Communications Sdn Bhd v. Teh Ah Bee [1989] 2 ILR 241
(Award No. 140 of 1989) where the claimant had been dismissed inter alia
for making false claims, the court cited the view contained in Hepple and
O’Higgins on Employment law as follows:
The standard of proof required of an employer is not proof beyond C
reasonable doubt and even on the balance of probabilities may be
too rigid a standard. The question is whether there were solid and
sensible grounds from which the employer could reasonably infer or
suspect dishonesty.
[86] In this context, the substantial merits, equity and good conscience D
of this case rather than technicalities were the prime considerations as
decided in the case of Harris Solid State (M) Sdn Bhd & Ors v. Bruno Gentil
Pereira & Ors [1996] 4 CLJ 747, where Gopal Sri Ram JCA held as
follows:
Further, section 30(5) of the Act imposes a duty upon the Industrial E
Court to have regard to substantial merits of a case rather than to
technicalities. It also requires the Industrial Court to decide a case
in accordance with equity and good conscience.
[87] Therefore, having regards to substantial merits of the case together
with equity and good conscience, I find the company has on the balance F
of probabilities established the accusation of misconducts on part of the
claimant. In Eastern Union Rubber Products Sdn Bhd & M Elangovan
Manikam [1991] 2 ILR 781 (Award No. 235 of 1991) the court noted:
[88] In this connection, the test formulated in Fredo Ltd v. Barnes [1976]
IRLR 439 is relevant. Therein the EAT (Employment Appeal Tribunal) G
said:
It must be remembered that in dismissing an employee, including a
dismissal where the reason is criminal misconduct, the employer
need only to satisfy himself that, at the time of the dismissal, there
were reasonable grounds for believing that the offence put against H
employee was committed. The test is not whether the employee did it,
but whether the employer acted reasonably in thinking the employee did it,
and whether the employer acted reasonably in subsequently dismissing him.
[89] Having regard to my earlier findings and applying the above said
test, I also find that not only the company had established on the balance I
of probabilities of the claimant’s 4 (four) misconducts, the company had
A also acted reasonably in thinking the claimants had committed the said
misconducts and had acted reasonably in subsequently dismissing the
claimant after holding the said domestic inquiry.
Conclusion
B [90] Based on the totality of the evidence as adduced both oral and
documentary and upon a consideration of the written submission of
parties, this court acting in equity and good conscience and on a balance
of probabilities, finds that the company had discharged its burden of
proving that the claimants were dismissed with just cause and excuse. The
claimant’s claim is accordingly dismissed and her dismissal is upheld by
C
this court.

Dismissal With Just Cause Over Misconduct

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Dismissal With Just Cause Over Misconduct

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Shamani Devi Chendra Chekheran

[2017] 4 ILR v. Shangri-La Hotels & Resorts 273

A SHAMANI DEVI CHENDRA CHEKHERAN

H For the claimant - Anthony Gomez; M/s Gomez & Assocs

Evelyn (idiot/fucking bitch), Joanna (bitch/dumboo) on 29 July 2013

A made it very difficult for her supervisors, trainers and management to

relevant Local Area Network message history of the claimant, the A

[36] It is the contention of the claimant that during the Domestic A

A Claimant’s answer : Yes because I sent the letter.

B On The First Charge (p. 6 of COB2 And p. 7 Of COB2)

be getting what I deserve, in term of salary, bonus and other benefits” A

Claimant’s answer : Ha yeah.

follow Mr. Kenneth instruction on work related matter. Despite of what A

[60] Further, at no time prior to the claimant’s testimony did the

A denied “Ubbie” in COB4 referred to COW3 and instead contended that it

H The Malaysian Government had accepted that sexual harassment in the

- that might, on reasonable grounds be perceived by the recipient as A

e.g. inappropriate touching, patting, pinching, stroking, brushing up

[85] However, there is another view that an employer need not be A

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