A case in 2008 is a good example of whether or not someone can be sacked after being detained. THERE are occasions when an employee may be detained in the course of investigations. The employee may miss attending work and the employer will eventually come to know. The absence could be minimal, especially if it covers the weekend. However, in other cases it could be longer. Whatever the period of the absence, the employee will return to work once released. Can an employer say that such an event brings disrepute to the employer and proceed to dismiss him? The situation has to be looked at as a whole, based on the circumstances which have to be carefully considered. The case of Saidi bin Hasan v. Puspakom Sdn Bhd in the Industrial Court provides guidance. It was a reference under S. 20(3) of the Industrial Relations Act 1967 following the dismissal of Saidi bin Hasan who was the claimant in the Court. He was an examiner in the Road Transport Department (later taken over by PUSPAKOM), having commenced employment in 1993. His duties were to conduct inspection on motor vehicles to ensure compliance with the Road Transport Act 1987. On Dec 15, 2007 he and two other colleagues were apprehended and detained by the Anti-Corruption Agency (ACA, later Malaysian Anti-Corruption Commission) on suspicion of corrupt practices. Two days later, he was released. By letter dated February 18, 2008 his employer terminated Saidi’s services with immediate effect on the grounds that he had brought disrepute to the Company by being involved in a corrupt practice. Saidi took the view that the employment had been terminated without just cause. The question before the Court was whether the termination was with just cause. It has been decided in numerous cases before the Industrial Court that it is always for the employer to prove that the termination was with just cause. The burden is not on the employee to prove that there was no justification. The evidence of the Company was that on the basis of information received from the ACA, Saidi and two others had been detained on suspicion of being involved in corrupt practices. After being so informed, the Company asked Saidi to show cause as well as suspending him with full pay for two weeks to facilitate investigations. He was asked to respond in writing as to why disciplinary action should not be taken against him. He was also told that if an explanation was not forthcoming from him within seven days, the Company would consider that he had no explanation to give and disciplinary action would be taken against him. Saidi responded with the explanation within the stipulated period and in fact on the next day. The Company next wrote to the ACA to say that as it was not satisfied with the explanation given by Saidi, it proposed to conduct a domestic inquiry, to which the ACA indicated they had no objection. In doing so, ACA indicated that investigations had been completed and that though there was insufficient evidence to pursue the matter, it was a case more suitable for disciplinary action. Following this, the Company issued the letter referred to earlier terminating Saidi’s employment with immediate effect. Hence the complaint by Saidi to the Director-General of Industrial Relations, which in turn led to the Minister of Human Resources referring the matter to the Court. The Company’s first witness, the head of Human Capital Development, testified that firstly Saidi’s reply to the show cause notice was not acceptable and secondly that the Company was informed by the ACA upon conclusion of their investigation that the incident relating to the charge of bribery did occur and the ACA’s finding was that Saidi had received monetary gratification and/or bribes in the discharge of his duties. It was also said that the Company’s Code of Ethics and Business Conduct and policy towards any acts which would undermine the public image and reputation of the Company was infringed. The second witness, the Senior Investigating Officer from the ACA, testified that as investigation officer, he had conducted investigations. He presented the investigation paper referred to and said that following a reference of the matter to the DPP, disciplinary action had been suggested. Saidi was not charged in Court because there was insufficient evidence to prosecute. Saidi testified that his duty was to only examine the brakes after payment had been made and the car was then taken to a brake tester where electronic equipment was used to produce the results. The results were presented by the computer and then given to the vehicle owner. He also contended, and it was the case, that there was no domestic inquiry to establish his guilt and there were no specific allegations as to the wrongdoing on his part except that the detention had affected the Company’s ability to trust him. What was in issue here was that being detained by the ACA could not be regarded as misconduct as ACA could detain anyone on grounds of suspicion. Reference was made to OP Malhotra’s : “the charge sheet should specifically set out all charges which the workman is called upon to show cause against and should also state all relevant particulars without which he cannot defend himself.” The letter asking him to show cause did not show what the misconduct was or what the charge was. The only explanation he had been asked to give was why he was detained and that he had done. Even though the witness from ACA had tendered the investigation papers, he had also agreed that Saidi had been detained following a complaint made by a taxi driver but that no wrongdoing had been done by the employee. The Court noted that no charge of misconduct had been preferred against Saidi. No domestic inquiry had been held to establish the charge against him and a reasonable belief by the Company was not supported by the evidence. In such circumstances, it was unwise to uphold the contention of the Company. Saidi was reinstated to his position.

Source: The Star Online