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In the case of a "Fundamental Breach," there is no need for an Inquiry

Updated: Oct 25, 2022

Harapan R Sdn. Bhd. vs. RY Jabatan Perhubungan Perusahaan 7 October 1997

The parties to the dispute are Harapan R Sdn. Bhd. (hereinafter referred to as 'the company') and Encik RY (hereinafter referred to as 'the claimant').

The dispute is over the claimant's dismissal by the company on 5 April 1994.

The claimant contends that the dismissal was without just cause or excuse and prays for reinstatement to his former position without loss of benefits.

争议双方是 Harapan R Sdn. Bhd.(以下简称'公司')和 Encik RY(以下简称'申诉人')。



The Company

The company has adduced evidence before the Court to show that the claimant was absent from work without leave being approved on three separate occasions.

On each occasion, the claimant proceeded to go on leave despite being told his application for leave had not been approved.

The company had treated his absence from work as absence without leave, and on each occasion, it issued a warning letter to the claimant.

The authority for approving leave applications was the executive director A, after the recommendation of supervisor B (the claimant's immediate superior).

First Absence Without Leave

The claimant's application for a leave commencing 14 November 1993 to 18 November 1993 had been sent to executive director A directly for approval. After discussing with supervisor B, and due to the exigency of service, he disapproved the application.

The claimant was duly informed by supervisor, B but he did not turn up for work from 14 November to 18 November 1993.

When the claimant was issued a show cause letter, he refused to acknowledge receipt.

Executive director A subsequently called the claimant to his office for an explanation, and the claimant did not give any explanation.

Second Absence Without Leave

The claimant again applied for leave from 25 February to 28 February 1994.

Executive director A approved two days out of the four days applied for and duly informed the claimant, but he did not return to work from 1 March 1994 to 5 March 1994.

When executive director A confronted the claimant after his return, the claimant said he had informed the telephone operator about his leave.

The managing director was briefed on this incident and decided to issue a second Show Cause Letter to the claimant, who did not give any explanation. A second Warning Letter was sent to him.

Third Absence Without Leave

The claimant again asked for leave from 16 March 1994 to 17 March 1994, and the leave was not approved by executive director A.

The claimant was informed of the refusal of his leave, but he, nevertheless, did not turn up for work from 16 March to 18 March 1994.

The claimant again refused to give any explanation and was issued a final warning letter.

The board of directors made a decision to dismiss the claimant, and a letter of dismissal dated 5 April 1994 was sent to the claimant.

The company contended that it had done more than required to be fair to the claimant before dismissing him.

The claimant

The claimant completely denied being absent without leave. He denied he had applied for leave on all three occasions. He denied the signature on the leave forms. He challenged the accuracy of the punch cards. The information brought out is that the company went out of its way to forge those documents produced as exhibits in Court and concocted the whole story to mislead the Court.

The claimant, however bizarrely, did not put his case on the authenticity of the leave forms when cross-examining the company's witnesses. The claimant only cross-examined at great length and in minute detail the particulars contained in the leave forms, including whether the executive director was the proper authority to approve or disapprove leave in the company.

The claimant also complained that he was not given an opportunity to be heard by the company before the decision to dismiss him. This is a breach of his fundamental right guaranteed in s. 14 of the Employment Act 1955 .

The claimant further contended that there was no cogent evidence produced before the Court that the misconduct alleged was in fact, committed to justify the punishment of dismissal.

It is also the claimant's contention that the company's stand that it was unnecessary for a charge sheet to be given to the claimant for the reason of dismissal under s. 15(2) was a wrong statement of law. The law lays down the procedure for employer to impose disciplinary action after due inquiry.






The claimant in his testimony denied he had received the several warning letters and had no knowledge of their contents.

His defence is that he was framed for the three applications for leave on three separate occasions and his signature on the leave forms was forged.



The Evaluation Of Evidence And Findings

It is true that in a dispute for unfair dismissal the burden is on the employer to prove the employee's misconduct to justify its action of dismissal.

The Court has thoroughly scrutinised the documentary and oral evidence of the company as against that of the claimant's and has come to the finding that the company has established its case against the claimant.

The company has adduced evidence to show that an employee had to fill up the application form for leave prior to going on leave and submitted it for approval by the executive director. That was a definite procedure for employees to apply for leave.





The Witnesses

The company called five witnesses to give evidence that the claimant was absent without leave on three occasions when his application for leave was rejected. The witnesses included two senior executives of the company, the managing director and the executive director besides the executive from the assignor of the quarry operation.

The claimant admitted in his evidence he had no problem working with executive director and had never walked out from his job. Three witnesses had personal knowledge of the claimant's absence when they communicated with each other, when the claimant was absent, not one occasion but on all the three occasions.