The recent Industrial Court case of Jolly bin Musa v Ansell N.P. Sdn. Bhd. [2024] MELRU 1345 deals with whether there can ever be a good reason for wielding a weapon at the office, and whether an employee’s length of service would be a relevant mitigating factor in such circumstances.
Brief Facts
- The Claimant commenced work with the Company in 1994.
- In May 2022, at the Company canteen, the Claimant noticed a migrant worker pouring his unfinished drinking water into the water tray of a water dispenser. As this was during the Covid-19 pandemic, the Claimant asked the migrant worker to clean up the water dispenser tray.
- The migrant worker did not comply with the Claimant’s request and walked away.
- The Claimant took out a utility knife and pursued the migrant worker. Before he could reach the migrant worker, he was intercepted by another employee who attempted to de-escalate the situation.
- After a show cause letter and a domestic inquiry, the Claimant was dismissed.
Findings of the Industrial Court
That the Claimant took out the utility knife to frighten the migrant worker was undisputed as the Claimant had admitted doing so. Further, the incident was captured by a CCTV recording played in Court for everyone to view. The Court accepted the evidence of the Company witness who had intercepted the Claimant, and found his testimony to be largely consistent with the CCTV footage.
The Court held that violence of any kind at the workplace must be viewed as a serious misconduct. A company must maintain discipline and responsible conduct on part of employees without which there will be disorder and chaos, leading to disharmony in the working environment in the company. This is especially so if the company must manage a large labour force.
The Court concluded that the Claimant could not challenge the consistent evidence of the Company’s witnesses when compared with the documents adduced in court. Therefore, the Company cannot be faulted for terminating the Claimant, since they had to maintain strict discipline, failing which violence and continued disruption in the workplace could become a regular occurrence.
As for the Claimant’s long service with the Company, the Industrial Court considered this but determined that no mitigating circumstances would work in the Claimant’s favour. To quote:
“… violence at workplace including any act that is designed to intimidate a fellow worker cannot be tolerated.”
The Claimant’s dismissal was with just cause and excuse.
Key Takeaways
- There is no excuse for violence – The Claimant gave several explanations as to why he took out the utility knife and followed the migrant worker – eg: that this incident took place during the Covid-19 pandemic (presumably therefore, that the Claimant had a right to be upset over the Claimant’s act of dirtying the water tray) and/or “self-defence”. None of these arguments took sway with the Industrial Court, since violence at the workplace cannot be tolerated.
- Evidence, evidence, evidence – The Industrial Court noted that it had the advantage of viewing the CCTV recording. The Company also called witnesses to testify on different issues, and these witnesses’ testimony were consistent with the documents. If there was no CCTV recording or no witnesses who could testify about what occurred – it may have been a different outcome all together.
- Long service doesn’t prevent dismissal – An employee’s long service (if unblemished) can sometimes be a mitigating factor. However, where the misconduct is so serious and severe, long service may mean nothing. An employee with decades of service can still be dismissed if they are found to have committed gross misconduct.
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This article was written by Donovan Cheah (with assistance from Austin Tan, Intern) 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. Have a question? Please contact us.
