SHAHARUDDIN BIN ZAINUDDIN V BANK PEMBANGUNAN MALAYSIA BERHAD (AWARD NO: 1249 OF 2020)
- The Claimant qualified as a Certified Chartered Accountant in 1995 and is a person with extensive work experience in the financial industry. The Claimant was appointed the P/GCEO of the Bank for a fixed-term contract of 3 years effective.
- Based on anonymous letters and complaints an investigation was carried out against the Claimant and was later issued a show-cause letter setting out charges of misconduct involving issues relating to political donation, van sponsorship to FELDA and permitting an individual not being an employee of the Bank to participate and involve himself in the affairs of the Bank.
- The Claimant was then terminated before the expiry of his contract wherein the BOD was of the view that the alleged misconducts of the Claimant had materially compromised the Claimant’s fitness and propriety to hold the position of the P/GCEO hence he had been dismissed from his position as the P/GCEO without proper inquiry or investigations.
- Whether the misconduct complained of by the employer has been established
- Whether the dismissal was done in haste, in bad faith without just cause or excuse.
COURT REASONING AND FINDING
- The Court based on evidence adduced found that the Bank has failed to prove all three charges made against the claimant as evidence shows that the Claimant has not conducted any act that is against his responsibilities or the law.
- The Court finds the new allegations raised were very serious in nature and it was perplexing as to why the Bank has failed to list them down as alleged misconducts in the show cause letter to offer the Claimant sufficient opportunity to respond. The conduct of the Bank in raising these allegations in Court now for the first time raises serious questions as to the bona fide nature of the Bank in the undertaking and conduct of the fit and proper assessment carried out against the Claimant that has led to his dismissal from his employment.
- It is clear by looking at the combined weight of evidence before the court that the bank’s action against the Claimant smacks victimisation as the contentious pleaded grounds of the Bank remains unproven. A workman who is being dismissed from employment ought to be duly informed of the reason for the dismissal with sufficient particulars so as to offer him an opportunity to understand the nature and seriousness of the charges of misconduct committed by him thereby in appropriate circumstances the workman may even decide to rest the matter without going further if he is convinced that the decision to dismiss him was not actuated by malice.
- The Court in this was of the opinion that it was not the Claimant who had exhibited poor judgement but on the contrary, the blame of demonstrating lack of good judgement ought to fall on the shoulders of the framers of the allegations of misconduct in the fit and proper assessment document produced in Court by the Bank.
- The Claimant, in this case, was kept in dark on the fit and proper assessment that was carried onto him which included many allegations that the Claimant was unaware of and was not given a chance to explain. Even at the time of being in receipt of his termination letter, the Claimant was kept in dark of the real reason for his dismissal it was only during the conduct of the case in Court that the Claimant became aware of the whole list of reasons for his termination from employment with the Bank.
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