CASE HIGHTLIGHTS

HARRY WONG WEI CHEN v. PETROLIAM NASIONAL BERHAD (PETRONAS)
INDUSTRIAL COURT, KUALA LUMPUR
PARAMALINGAM J DORAISAMY
AWARD NO. 3 OF 2021 [CASE NO: 22/4-818/19]
4 JANUARY 2021

DISMISSAL: Breach of company rules and policies – Sexual harassment – Whether the claimant had committed workplace or sexual harassment by, amongst other things, using the words “Pishy Pia” on COW1 – Factors to consider – Evidence adduced – Effect of – Whether the charges had been proven by the company against him – Whether it had amounted to serious misconduct – Whether it had justified his dismissal

DISMISSAL: Breach of company rules and policies – Sexual harassment – Whether the claimant had sexually harassed COW1 on numerous occasions by his words and actions towards her – Factors to consider – Evidence adduced – Effect of – Whether the charges had been proven by the company against him – His defence – Whether acceptable – Whether his actions had amounted to serious misconduct – Whether it had justified his dismissal – Position held by the claimant in the company – Whether dismissal without just cause and excuse

DISMISSAL: Breach of company rules and policies – Sexual harassment – Whether the claimant had used crude, vulgar and abusive language towards COW1 on several occasions – Factors to consider – Evidence adduced – Evaluation of – Effect of – Whether it had constituted workplace harassment or bullying – Whether the charges had been proven by the company against him – Claimant’s defence – Whether could be accepted – Whether supported by the evidence – Whose version of events had been more probable – COW1’s conduct and actions after the incidents had taken place – Whether the claimant’s conduct had justified his dismissal – Whether dismissal without just cause and excuse

DOMESTIC INQUIRY: Procedural impropriety – Whether the DI had been conducted fairly – Factors to consider – Evidence adduced – Effect of – Claimant agreeing to the composition of the DI panel at the outset and only objecting to it during the hearing before Court – Whether it had gone to his credibility

EVIDENCE: Corroboration – Some of the charges against the claimant, as alleged by COW1, uncorroborated by anyone – Whether the absence of corroboration had defeated complainant’s allegation of sexual harassment – COW1’s contemporaneous conduct in relation to the incidents – What it had shown

EVIDENCE: Documentary evidence – Notes of the DI – Company failing to provide the DI notes – Whether an adverse inference ought to be drawn against it for such omission – Factors to consider – Evidence adduced – Effect of – Whether the company’s failure aforesaid had been fatal to its case – How Industrial Court hearings are conducted

EVIDENCE: Witness – Credibility – The claimant’s and COW1’s version of events completely different – Whose version had been more believable – Factors to consider – Effect of – Conduct of COW1 after the incidents – What it had shown – Who had been a more credible witness – Claimant’s demeanour in court – Claimant’s evidence in Court riddled with inconsistencies – Effect of


JOLENE LEE MIAO CHI v. IFLIX SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
AUGUSTINE ANTHONY
AWARD NO. 73 OF 2021 [CASE NO: 4/4-1731/19]
21 JANUARY 2021

DISMISSAL: Breach of company rules and policies – Medical leave – Claimant accused of lying about her sickness and her inability to properly perform her duties that had been assigned to her by the company in order to attend the seminar – Whether successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of – Claimant’s explanations – Whether could be accepted – What being on medical leave had meant – Company’s actions against her – What it had shown – Whether it had justified her dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Breach of company rules and policies – Negligence – Claimant accused of failing to complete her work by the given deadline, in serious neglect of her duties, by lying about being ill and needing a day of sick leave to attend the MyIPO seminar – Whether successfully proven by the company against her – Factors to consider – Evidence adduced – Effect of – Whether it had amounted to blatant dishonesty, breach of the trust that had been reposed in her and gross misconduct – Claimant submitting a valid medical certificate – What it had shown – Whether the company’s allegations against her had been serious and unwarranted – Whether it had justified her dismissal – Whether dismissal without just cause and excuse

DISMISSAL: Gross misconduct – Claimant accused of failing, refusing and/or neglecting to deliver a valid medical certificate in respect of her sickness on the day in question – Allegation not stated in the show cause letter and only brought up after the conclusion of the inquiry – Whether it had had any basis to it – Factors to consider – Effect of – Company’s treatment towards her – What it had shown – Whether her dismissal had been without just cause and excuse

DOMESTIC INQUIRY: Procedural impropriety – Whether the proceedings had been conducted in compliance with the rules of natural justice – Factors to consider – Evidence adduced – Effect of – Whether fatal to the company’s case – Whether the company had succeeded in establishing a prima facie case against the claimant