Malaysia Court of Appeal rejects ground of dismissal raised for first time in Industrial Court

28 May 2021

Maritime Intelligence Sdn Bhd v Tan Ah Gek [2020] (Civil Appeal No. J-02(A)-111-01/2019)

In Maritime Intelligence Sdn Bhd v Tan Ah Gek, a company (“Defendant”) dismissed a workman (“Claimant”) from employment for alleged misconduct including undermining the authority of a company director and unethical behaviour. When the dismissal was referred to the Malaysia Industrial Court (“IC”), the Defendant raised for the first time, in its Reply to the Claimant’s Statement of Case, that the postgraduate degree of the Claimant was not from an accredited university (“Ground”). The Ground was rejected by the IC as it was not stated in the notice to show cause and neither was it brought up before the domestic inquiry nor stated as a ground in the notice of dismissal issued to the Claimant. The Defendant took umbrage with the award of the IC (“Award”) chiefly on the basis that the learned Chairman of the IC had completely ignored the Ground. When the decision was appealed at the High Court, the Award was upheld.

Dissatisfied, the Defendant appealed to the Court of Appeal. In dismissing the appeal, the Court of Appeal held as follows:

• In a case where the misconduct was before the dismissal and the discovery of it was after the dismissal, if the misconduct could have been discovered with reasonable diligence, the IC is entitled to consider the defences of lack of bona fide and afterthought and also the defences of waiver, condonation and even estoppel. As the Defendant had not verified the accreditation of the postgraduate degree, as it should have if this qualification really was an essential prerequisite for the post, estoppel would apply and it would be too late for the Defendant to raise the Ground for the first time before the IC, after dismissing the Claimant on other grounds unrelated to qualification and after having employed the Claimant for more than a year with no issue on her postgraduate degree. 
• It would be very rare for the IC to admit evidence adduced to justify a ground not advanced or relied on to justify a dismissal by the company unless it fell into the category where the misconduct was discovered after the dismissal in a case where the misconduct could not have been discovered earlier with reasonable diligence. The status of the Claimant’s postgraduate degree was not something that could not have been discovered with reasonable diligence. 
• There was no good reason to disturb the Award as the end result, even after considering the evidence adduced by the Defendant for the Ground, was the same in that it did not alter the position that the Claimant had been dismissed without just cause and excuse.