Wednesday, January 23, 2013

Apex court to rule on Industrial Court’s powers to reverse sacking

The Federal Court is to decide whether the Industrial Court can interfere with an employer’s decision to dismiss an employee for misconduct.
Court of Appeal President Tan Sri Md Raus Sharif, chairing a five-member panel, granted leave to Norizan Bakar, a former personal assistant to the chairman of Panzana Enterprise Sdn Bhd, to appeal against a Court of Appeals decision which did not favour him.
Raus said the legal question was important and warranted an answer from the apex court.
The panel, also comprising Federal Court judges Datuk Hashim Yusof, Datuk Suriyadi Halim Omar, Datuk Hasan Lah and Datuk Zainun Ali, unanimously allowed Norizan’s application for leave to appeal to the Federal Court on one legal question.
The question is whether the Industrial Court could consider the employer’s decision to dismiss an employee as too harsh even though the employer had proven that the employee had committed a misconduct.
A domestic inquiry was held on November 10, 1999, against Norizan on four charges, including a charge of breaching Panzana’s code of conduct for its employees by not disclosing and obtaining written approval from the company’s group chief executive officer on his (Norizan’s) direct interest as director of another company called NK Media Sdn Bhd.
The company’s code of conduct states that an employee found to be breaching that code shall be liable to stern disciplinary action, including termination of employment.
The domestic inquiry panel found Norizan guilty on the four charges and terminated his service via a letter dated November 18, 1999, which led to him (Norizan) filing a claim for reinstatement at the Industrial Relations Department.
The minister of Human Resources then referred the matter to the Industrial Court for determination.
On January 5, 2006, the Industrial Court ruled that Norizan’s dismissal was without just cause or excuse even though it (the industrial court) found Norizan guilty of the fourth charge of breaching the company’s code of conduct.
Although the Industrial Court found Norizan guilty of misconduct on the fourth charge, it (the Industrial Court) had, however, said it was only a minor misconduct and that the punishment by Panzana to dismiss him from employment was too harsh.
The Industrial Court then made an order that Norizan be paid RM109,000 in back wages and RM39,000 in compensation in lieu of reinstatement.
Panzana subsequently filed an application for judicial review at the High Court to quash the Industrial Court’s decision but was unsuccessful.
The company appealed to the Court of Appeal.
On February 10 this year, the Court of Appeal allowed Panzana’s appeal to quash the Industrial Court’s decision to order the company to pay back wages and compensation to Norizan. — Bernama

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