Employees are a business’ most valuable assets. However, toxic employees can have a negative impact on productivity and morale. A demanding and argumentative employee may take up valuable management time, especially when these employees are also underperforming in their roles. These employees are then, rightly or wrongly, viewed as “hard to dismiss” because they are more likely to file complaints of unfair dismissal.

In the case of Choo Yik Kian @ Chu Yik Kian v Kitacon Sendirian Berhad [Award No. 1918 of 2019]:

  • The employee was alleged to have been a poor performer. Numerous complaints were received about the employee, which resulted in 7 warning letters being issued against him and he had to be reassigned to a different role.
  • The employee was also excessively late for work.
  • The employee was absent from work for more than 2 months, citing hospitalisation as a reason but he did not furnish any documentary evidence like medical certificates or any medical report.
  • The employee requested a change of working hours because he needed to send his child to a day care centre. The Company accommodated this but the employee continued to come late to work.
  • Eventually, the employee was dismissed and he filed a claim of unfair dismissal.

The claim was dismissed by the Industrial Court because the employee eventually confirmed that he did not want reinstatement, and was looking for monetary compensation from the Court. As the employee did not want reinstatement (which is the primary relief in unfair dismissal claims), the Industrial Court held that it had no jurisdiction over the matter and struck off the case.

In so doing, the Industrial Court had choice words for the employee, finding that “he now wants only money but conceals this from the Court, and only makes known his real motive for maintaining his pursuit against the Company upon being cornered by cross-examination. This is an abuse of this court’s process.”

In its decision, the Industrial Court also took a step further to comment about the Claimant’s behaviour and attitude:

“… the Company’s counsel describes the Claimant as a difficult employee. He is being kind with such an understatement. What comes across from the foregoing overview of the salient facts of the case, is an employer overstretching its patience to accommodate the personal issues of one lone employee. To the court’s mind, the Company’s final act of terminating the Claimant’s employment was with just cause and excuse.

As an end note, the Court must mention the recalcitrance demonstrated by the Claimant whilst under cross-examination, by his refusal to face up to the facts confronting him. He was disputatious and at times, to the point of taking on himself the role of counsel, so much so that the Court had to remind him several times of his place and role in the witness box.”

Cases can be won or lost on the witness stand. An employee’s attitude at the workplace may often translate to an unfavourable impression while they are on the witness stand. Often times, an employee who is difficult for the sake of being difficult, will behave similarly during cross-examination. This behaviour may unintentionally highlight to the Court the struggles that the employer has in managing this employee. If this is rampant during testimony, it would not be unreasonable for the Court to sympathise with the employer.

In the case of A Saad Tasripan v Geowell Sdn Bhd [2012] 2 ILR 321, the Industrial Court made similar observations about an employee’s behaviour while giving testimony. There, the Industrial Court held that the employee as a witness would deny the obvious only to admit them after rigorous cross-examination. The Court held that while his defensiveness and antagonism could be due to the frustration of losing his job, “if, as an employee, he had the attitude he displayed in court, then it was likely that he was a difficult employee with an attitude problem.”

These cases shouldn’t be taken to mean that an employee should never stand up for their rights, or raise concerns about unfair treatment. However, the manner in which an employee goes about it, can make all the difference.

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This article was written by Donovan Cheah. Donovan has been named as a Recommended Lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, 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. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

 

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