In the modern work environment, conflicts can sometimes escalate to unexpected and unfortunate levels. Workplace disputes, disagreements, or confrontations are not uncommon.  

What happens when these confrontations escalate to physical altercations? Can an employee claim the defence of provocation or self-defence where a fight breaks out on the job?

This article spotlights the case of Putera Amirul v IOI City Mall Sdn Bhd (Award No. 2184 of 2023, 1 November 2023).

Brief Facts

  • The Company manages, administers, and operates IOI City Mall.
  • The Employee was the Senior Executive, Customer Service of the Company. 
  • In September 2020, during the pandemic, the Employee was informed of two individuals working in the mall who were not wearing their face masks properly.
  • The Employee approached them to remind them to wear their face masks properly.
  • A disagreement broke out between the Employee and the two individuals, which turned hostile and resulted in a fight. 
  • The Employee was dismissed for misconduct and claimed unfair dismissal.

Court’s Findings

The evidence

  • There was evidence (witness testimony and CCTV recording) which shows that the Employee was engaged in a fight with the two individuals. Despite a witness screaming for the Employee to back off from the fight, the Employee was seen repeatedly approaching the other party, thus prolonging the fight.
  • The Employee had to be restrained from going forward to one individual who was leaving the scene of the fight. The Employee shouted at that individual, which prompted the individual to return to the scene of the fight.
  • The Employee gave evidence that the individuals were not wearing the face masks properly and when he warned them, they started acting aggressively. One individual threatened the Employee loudly, and another one threw punches at the Employee which started the fight.
  • The Employee also stated that he was only performing his duty to ensure all individuals in the mall were wearing their face mask, since the pandemic was raging.
  • The fight occurred during lunch time, which was peak operating hours for the mall.
  • Subsequently, the individuals apologised in written form.

Court’s evaluation and findings

  • It may have been true that the Employee was provoked whilst he was discharging his duties.
  • However, the conduct of the Employee as seen from the witness testimony and CCTV recordings shows he had every opportunity of walking away from the fight. The Employee failed to do so and instead continued to approach the individuals in a confrontational manner.
  • The Employee’s conduct therefore does not reflect a person who was purely engaged in acts of self-defence. Instead, he participated in the fight and did not retreat or step away from the scene.
  • It does not matter who started the fight. If the Employee was involved in the fight beyond the need to act in self-defence, then the Employee has committed a major misconduct that warrants dismissal.
  • Even if the individuals apologised for being in the fight, it does not absolve the Employee from his behaviour. 
  • If the Company did not view the Employee’s misconduct seriously with appropriate punishment, the shopping mall will be viewed by customers and patrons as an unsafe place. This would be damaging to the reputation of the mall, causing potential substantial loss of customers that would bring revenue to the Company. 
  • The dismissal was with just cause and excuse.

Key Takeaways

The “why” behind an employee’s serious misconduct does not always take precedence over the gravity of the misconduct itself.  This case emphasizes that employees are expected to demonstrate maturity and professionalism, and to not engage in misconduct regardless of their motivations.

The court’s decision underscores that serious breaches of conduct in the workplace, like physical altercations, are rarely excused by personal reasons or provocations. Maintaining the integrity and reputation of the workplace is paramount. We must recognise that some behaviour, regardless of the motivations behind them, can warrant dismissal when they pose a significant threat to the workplace’s harmony and reputation.

***

This article was written by Donovan Cheah (Partner). Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific for 2017-2022, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

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. Have a question? Please contact us.

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