Can an employer lawfully dismiss an employee who failed to disclose a past criminal conviction during the recruitment process? In DKM v Joe Green Precast Sdn. Bhd. [Award No. 1619 of 2026], the Industrial Court examined whether concealing a criminal conviction for theft in an employment application breached the trust and confidence central to the employment relationship. The Court ultimately held that deliberate misrepresentation during hiring constitutes serious misconduct, justifying the employee’s termination.
Brief Facts
- The Claimant applied for the role of Safety Officer with the Company and completed an official job application form.
- In the application form, the Claimant wrote ‘N/A’ when asked if he had ever been charged in a court of law, declaring that he had not suppressed any material facts.
- The Company subsequently hired the Claimant and entrusted him with workplace safety and compliance across its plants.
- Following internal workplace incidents, background checks revealed that the Claimant had a previous criminal conviction under Section 381 of the Penal Code for theft.
- The Company met with the Claimant to address this undisclosed conviction, resulting in the issuance of a termination letter, and a subsequent settlement letter where the Claimant accepted compensation in full and final settlement.
- The Claimant filed an unfair dismissal claim under Section 20 of the Industrial Relations Act 1967, alleging that he was forced to resign under duress and that no domestic inquiry had been conducted.
Court’s Findings
A lack of a domestic inquiry does not render a termination automatically unlawful. The Industrial Court can re-hear the dispute afresh, affording both parties full opportunity to present evidence and ventilate the issues. As such, the fact that there was no domestic inquiry in this case did not invalidate the dismissal.
Substantively, official police records and fingerprint identification conclusively proved that the Claimant had been convicted of theft, and was fined RM5,000.00. The Court firmly rejected the Claimant’s contention that he did not realize he had been ‘charged in court‘ because he had merely paid a fine. His deliberate failure to disclose this conviction on his application form was untenable.
Integrity forms the bedrock of the employment relationship. A Safety Officer holds a position of high trust, directly responsible for workplace compliance and the oversight of company premises. By deliberately concealing a conviction for stealing from an employer, the Claimant shattered that trust.
In addition, the Court found that the Claimant had willingly signed the mutual termination settlement without any evidence of coercion, thereby affirming that the termination was effected with just cause and excuse.
Key Takeaways
Employers have every right to expect honesty and transparency from candidates during recruitment.
When an applicant deliberately misrepresents or suppresses significant background details, especially a conviction for an offence involving dishonesty, it fundamentally compromises the mutual trust required to sustain the employment contract. Where that concealed history directly touches upon the integrity required for the role, dismissal can be fully justified. Although the Claimant in this case ultimately left by way of mutual termination rather than dismissal for misconduct, the principle remains relevant: the Court’s reasoning confirms that the deliberate suppression of material facts during recruitment can amount to misconduct serious enough to warrant dismissal.
To safeguard against disputes, employers should maintain robust recruitment documentation. Application forms ought to feature unambiguous declaration clauses stating that any concealment or false declaration constitutes gross misconduct warranting summary dismissal.
Employers should also consider conducting proper background checks on candidates before an offer of employment is made, to verify that the information they have provided is accurate and complete. In this case, the Claimant’s conviction only came to light after he had joined the Company and following internal workplace incidents. Pre-employment screening, carried out with the candidate’s consent and in compliance with the Personal Data Protection Act 2010, allows employers to identify misrepresentations at the outset, rather than discovering them only after the employee is already in place and having to manage the cost and disruption of an exit and any resulting dispute.
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This article was written by Donovan Cheah (Partner) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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