DISMISSED BECAUSE NO PERMISSION WAS ASKED
ONG WAH CHONG V SHELL GLOBAL SOLUTION(MALAYSIA) SDN BHD / SARAWAK SHELL BERHAD (AWARD NO.: 1777 OF 2020)
- The Claimant commenced employment as Civil Engineer with Shell Solution with effect from 07.11.2005 and his last position was Senior Project Engineer and his last drawn salary was RM 32,595.00 with a fixed community allowance of RM 500 monthly.
- The cleaner employed by the cleaning service vendor discovered that a vacuum cleaner was missing from the janitor’s store and further investigation revealed that The Claimant had gained access to the janitor store carrying a vacuum cleaner, a broom and dustpan out of Menara Shell without authorization.
- The Claimant had apologies in the reply to show cause and admitted his mistake and had stated that his intention was only to borrow them and nothing else. He has also safely returned the items. However, the Disciplinary Committee found that the Claimant was guilty of misconduct on the ground of unauthorised use or removal of company property and hence the Respondent terminated the Claimant’s employment. The act of returning the assets was inconsequential.
- Whether the misconduct complained of by the employer has been established
- Whether the proven misconduct constitutes just cause or excuse for the dismissal
- The claimant has been dismissed by the respondent because the disciplinary Committee found the claimant guilty of misconduct in that he has accessed the janitor store and the claimant removed the vacuum cleaner, a broom and a dustpan without obtaining permission. The claimant also retained that three (3) items for his personal used and only returned the items after being questioned about the misappropriation.
- The claimant access the Janitor Store because it was unlocked. His intention is to borrow the vacuum cleaner, broom and dustpan to clean his new home. He cannot use his personal vacuum cleaner because he cannot find it in the warehouse. He tried many times searching for his vacuum cleaner but failed. After all, there is no notice posted in the Janitor Store indicating that the items belong to PWB( M) Sdn Bhd and must get permission in advance.
- Here in the case, the misconduct which has been a complaint by the employer has been established and the items were returned as per requested. Therefore, the Claimant did return the said items and also bought two new sets of broom and dustpan, thus the Respondent suffered no loss.
- The punishment of dismissal was too harsh as the Respondent had given undue weight to the fact that the Claimant served the Respondent more than (10) years with no previous misconduct and this is his first offence.
- The court is of the view that the issue of misappropriation did not arise as the Claimant has no intention at all to steal the vacuum cleaner. His intention is to borrow for a short time and returned it after using.
- The Respondent has failed to take into account the Claimant apology and the fact that he returned the items and had also added two more extra sets which show his remorse before terminating him.