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J DORAISAMY JEYARATNAM V ROYAL SUNGEI UJONG [2010] 4 ILR 65
(IC KUALA LUMPUR, JUDGE ROSLAN MAT NOR)
Facts
Claimant contended that he had been dismissed without just cause
or excuse. Respondent contended that
the dismissal isjustify as there exist sexual harassment by
Claimant toward Companys employee.
Timeline
27 April 1999- Claimant start work at respondent company
16 December 2003- Claimant is alleged commited sexual harassment
toward one of the respondent
employee(COW1)
20 May 2004Complaint was made through formal letter from the
respondent employee(COW1).
29 May to 11 June 2004 Showcause letter was given to Claimant
and suspend temporarily for 2 weeks
for investigation purpose.
17 June 2004- Domestic Inquiry conducted
20 June 2004Letter of Dismissal given to the claimant.
21 June 2004Claimant dismissed.
Issue
Whether dismissal is with just cause or excuse?
Rules and Regulation
S. 20 (3) IRA 1967
Upon receiving the notification of the Director General under
subsection (2), the Minister may, if he
thinks fit, refer the representations to the Court for an
award.
S. 20(4) IRA 1967
Where an award has been made under subsection (3), the award
shall operate as a bar to any action for
damages by the workman in any court in respect of wrongful
dismissal.
S. 30 (5) IRA 1967
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The Court shall act according to equity, good conscience and the
substantial merits of the case without
regard to technicalities and legal form.
S. 30 (6A) IRA 1967
Notwithstanding subsection (6), the Court in making an award in
relation to a reference to it under
subsection 20(3) shall take into consideration the factors
specified in the Second Schedule.
Held
1) Cases involved sexual harassment must have corroborative
evidence. During trial, COW1 did not
give further evidence pertaining to the incidence except letter
given to company on 20 May 2004.
Besides, the period of which the letter was given to company was
5 month after the incidence which
occurred on 16 December 2003.
There are two view on the delay in submitting evidence.
a)Telekom Malaysia Kawasan Utara v. Krishnan Kutty
Delay is not an excuse for the employer not to prove the
misconduct by claimant.
b) Driskel v. Peninsular Business Services Ltd
Though victim of sexual harassment did not made any report
immediately, the delay in making report
does not give effect to the case. Industrial Court had took
approach that delay does not give effect to the
Courts judgment. Meaning to say, though victim delay in making
report, the company still can take
action against Claimant.
2) Claimant stated that he made a police report but not
submitted to the court. However, it is a legal
principle that as long there are others evidence which can be
submitted to court, failure to submit police
report did not affect the case.
3) The Domestic Inquiry page 64 exhibit 4 was not meant for
Claimant but related to Mr Mannu. Mr
Mannu name and incident on 16 December 2003 was contained in the
report. Domestic Inquiry on Mr
Mannu is difference from the Domestic Inquiry conducted on
Claimant. This shows there is mix of
finding of the report. This does not show Claimant involved in
the sexual harassment incident.
4) Taking account into COW1, COW2 COW3, Claimant statement,
exhibit and submission, respondent
failed to proof Claimant had sexually harassed COW1. Dismissal
of COW1 is without just cause or
excuse. Remedy granted to Claimant of backwages and
reinstatement in total of RM56,125.
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- During the allege sexual harassment incident, COW3 who heard
the screaming did not made report to
the security guard which is at nearby. COW3 and COW1 are not
able to give reasonable answer when
being interviewed by CWL2, a panel of Domestic Inquiry. COW1 did
not gave assurance whether she
made a police report on 20 May 2004 or on the day of the
incident occurred or prior to Domestic Inquiry
or after the Domestic Inquiry.
- CWL2, a panel of the Domestic Inquiry had visited the site of
incident and stand at the stairs where
COW3 stated that she saw the incident took place on COW1.
However, CWL2 finding is different from
COW3 as he couldnt saw the incident took place. COW1 and COW3
are witness without credibility.
- When cross examine, it is confirmed that COW3 statement on the
incident is not accurate.
