Work travel requirements clash with employee concerns about trip arrangements
The Industrial Court of Malaysia recently dealt with a case involving a probationary employee who was dismissed for allegedly refusing to attend a work trip to Singapore.
The worker argued that she never refused to travel but was making enquiries about the trip arrangements when she was summarily dismissed without proper investigation or notice.
The worker's case centred on several key arguments: she had been seeking clarification about travel arrangements rather than refusing outright, the company failed to conduct proper enquiries before dismissing her, and she was terminated without being informed of the specific misconduct allegations against her.
The company maintained that the worker's refusal to travel constituted serious misconduct warranting immediate dismissal, and also alleged tardiness and unauthorised absences.
Worker's alleged travel refusal
The worker started her employment with the company on 24 July 2023 on a one-year fixed-term contract running until 23 July 2024 as an assistant accountant with a monthly salary of RM7,600.
She was placed on a three-month probation period from the commencement of her employment. The worker was part of a shared services arrangement where she reported to a Singapore-based finance manager who worked for an associated entity within the group of companies.
The events leading to the dismissal began whilst the worker was still under probation. In August 2023, the company planned a work trip for the worker to Singapore which did not materialise.
The company claimed the worker was unable to confirm or had refused to travel to Singapore. A second trip was organised for September 2023, which the company alleged the worker refused to attend citing work-life balance concerns.
The worker's role required her to support the company's shared operations, which were mostly located in Singapore. As part of her job scope, work trips to Singapore were expected.
However, the specific arrangements and requirements for these trips became a source of disagreement between the worker and the company, ultimately leading to her dismissal on 7 September 2023.
Disputed circumstances and communication breakdown
According to the worker's account, she was informed about the work trip to Singapore on 27 August 2023, but the trip was not finalised at that stage.
Further discussions were held about planning another trip in September 2023, which remained unconfirmed. On 5 September 2023, the worker was brought into a face-to-face discussion with the office manager about whether she would attend the meeting in Singapore.
The worker maintained that during the 5 September meeting, she informed the company she would attend but requested certain flexibility, for which the company failed to provide a positive response.
She argued that she never intended to skip the Singapore work trip and had made suggestions to the company, which received no positive reply.
However, the office manager sent an email to the finance manager on 7 September 2023 stating that the worker was unwilling to attend the work meeting in Singapore on the proposed dates.
The company's version differed significantly. They claimed the worker was asked about suggested dates for the first work trip and had proposed 14 to 23 August 2023, but then refused to attend despite knowing that work trips to Singapore were part of her job.
For the second trip scheduled between 25 to 28 September 2023, the company alleged that despite requesting the worker's passport details for flight and accommodation arrangements, she failed to provide the details and made "petty verbal demands about her accommodation" that were against company policy.
Summary dismissal and procedural failures
On 7 September 2023, the company sent an email asking whether the worker would attend the Singapore meeting. The same day, the worker was terminated from her employment due to alleged misconduct of refusing to attend the second Singapore work trip.
The company also accused the worker of being "constantly absent from her workplace/office for more than 3 to 4 hours during work hours" and taking "long lunch breaks for approximately 2 hours or longer."
The dismissal was communicated through an email from the office manager that stated:
"The reason for your termination is due to misconduct. As per company policy you will be paid for any remaining wages. You will no longer have access to any company records, system, or property following your termination."
However, the letter did not specify the exact nature of the misconduct or provide details about the allegations.
The court noted that it was undisputed that the worker was dismissed summarily without any show cause letter or domestic inquiry being held to determine her guilt on the alleged misconduct.
The court observed that "a summary dismissal of an employee without even notifying or informing the employee of the alleged misconduct is most undesirable." This procedural failure became a significant factor in the court's evaluation of whether the dismissal was justified.
Legal framework and burden of proof requirements
The court explained that its role in dismissal cases involves determining whether alleged misconduct occurred and whether it justifies dismissal. The burden of proof lies with the employer to demonstrate just cause for dismissal.
As established in employment law, "the employer must produce convincing evidence that the workman committed the offence or offences the workman is alleged to have committed for which he has been dismissed." The standard of proof required is on the balance of probabilities.
Misconduct is defined as "conduct that is inconsistent with the fulfilment of the express or implied conditions of service," including examples such as "wilfully disobeying lawful and reasonable orders or precedents, unprofessional conduct and breach of company policy."
The court must determine whether the worker breached any express or implied conditions of service and whether such breach warranted dismissal.
Court analysis and evidence evaluation
The court in this case (Case No: 4/4-397/24) examined the email conversations between the office manager and the finance manager, particularly emails dated 28 August 2023 and 7 September 2023.
After reviewing these communications and comparing them with the director's testimony during cross-examination, the court found that the worker's version was more reliable than the company's version. The director testified that "the [worker] did not conclusively say that she will not attend or refuse to attend the Singapore work trip."
The court noted that the Singapore trip scheduled for 25 to 29 September 2023 was "far from confirmed as the [worker] was making further enquires." The worker had suggested that the proposed meeting be postponed or shortened due to Malaysian public holidays falling on the proposed dates and was awaiting confirmation from the director.
The court determined that "for the Company to alleged that the [worker] has committed the misconduct of disobedience by refusing to attend the Singapore trip, the Company was clearly on a wrong footing."
Regarding the allegation of failing to observe working hours, the court found no documentary evidence to support this claim. The director testified that "there are no known warnings given to the [worker] on her alleged failure to observe the working hours."
The court emphasised that during the probation period, the company was "duty bound to record the [worker]'s failings and inadequacies in performance for the purposes of evaluating and determining the suitability of the [worker]," but no such documentation existed.
Final determination and compensation award
The court concluded that the company had failed to prove the alleged misconduct on the balance of probabilities. The judgment stated:
"This Court finds that the Company had failed to prove on the balance of probabilities that the dismissal of the [worker] was with just cause or excuse. This Court now finds that the [worker] has been dismissed without just cause or excuse." The court criticised the company for hastily rushing into dismissal "without making proper enquiries."
Since the worker was on a fixed-term contract and dismissed during her probation period, the court determined that reinstatement was not appropriate. As a probationer, she "does not hold any lien on the post that she has served whilst on probationary period."
For employees on fixed-term contracts, backwages are limited to the unexpired term of the contract rather than the full probation period entitlement.
The court awarded the worker backwages for five months, taking into account her post-dismissal earnings. The worker had testified that after dismissal, she was unemployed for three months before finding new employment as an accountant with a basic monthly salary of RM8,800 per month.
The final order stated: "It is this Court's order that the Company pays the [worker] a sum of Ringgit Malaysia Thirty Eight Thousand (RM 38,000.00) only less statutory deduction (if any) within 30 days from the date of this Award."
This amount represented RM7,600 multiplied by five months, with appropriate deductions for the worker's post-dismissal employment earnings.
