When Warnings Fail: Industrial Court Sides with Employer in Repeat Misconduct
The Industrial Court, in its recent Award No. 237 of 2025 in Kannan A/L Elankiran v. Air Products Malaysia Sdn Bhd [Case No. 18/4-529/23], upheld the dismissal of the Claimant for repeated misconduct of using mobile phone while driving the Company’s Liquid Bulk vehicle transporting hazardous nitrogen gas, a violation of the Company’s safety policies.
Introduction
The Claimant was employed as a liquid bulk driver tasked with transporting hazardous nitrogen gas, a role requiring strict adherence to safety protocols and policies.
Safety protocols and policies were put in place by the Company. The Company’s Driver Handbook prohibits any driver from using and/or engaging with mobile phone while the truck is in motion. The Company’s safety policies require any driver to stop the truck at a safe place before making or taking any phone calls.
The Repeated Misconduct
Within a period of 1 year and 2 months, the Claimant committed 3 documented violations of the Company’s safety protocols and policies.
The Claimant was caught red-handed in April 2021 using and/or engaging with a mobile phone while the truck was in motion. Despite counselling and a written warning with caution of stricter disciplinary action, including dismissal, he repeated the violation in July 2021. Despite another counselling and a final written warning, he repeated the violation in June 2022.
The due process of issuing a show cause and conducting a domestic inquiry was subsequently carried out by the Company before the Claimant was dismissed from his employment by the Company.
The Claimant’s Arguments
The Claimant claimed that his dismissal was without just cause and excuse. He argued that his wife was pregnant and home alone, necessitating urgent communication. He also argued that there was no immediate harm as no accident occurred during the June 2022violation.
The Claimant also argued that his dismissal was actuated by mala fide, an unfair labour practice and disproportionate as he had served the Company for many years without prior misconduct before 2021.
Decision of the Industrial Court
The Industrial Court rejected the Claimant’s arguments and ruled that the dismissal was with just cause and proportionate. In essence, the Industrial Court held that as a repeated offender handling hazardous goods, the Claimant’s actions posed catastrophic risks to public safety and the environment.
The Industrial Court recognized that as an employer, r, the Company has acted responsibly by enforcing strict safety protocols and policies to mitigate catastrophic risks inherent to transporting hazardous goods.
The Industrial Court found that sufficient warning had been accorded to the Claimant by the Company before the Company eventually dismissed him for repetitive violations of the Company’s safety protocols and policies. The Court held that the Claimant’s repeated violations, despite warnings and counselling, rendered the dismissal just and proportionate. The Court applied the following principles:-
(a) Doctrine of proportionality which requires an assessment to be made whether a dismissal aligns with the severity of the misconduct (the Federal Court’s decision in Norizan Bakar v. Panzana Enterprise Sdn Bhd [2013] 9 CLJ 409; the Court of Appeal’s decision in Ngiam Geok Mooi v. Pacific World Destination East[2016] 3 ILR 229).
(b) Repeated misconduct and safety risks justify harsher punishment, including a dismissal (Syarikat Kenderaan Melayu Kelantan Berhad v. Rosdi bin Zakaria[1995] 2 ILR 1051; Wan Ahmad Munawar Wan Ali v. Linde Malaysia Sdn Bhd [2019] ILJU 1740; Kamala Loshanee a/p Ambalavanar v. Jaffanese CoOperative Society [1988] 7 MLJ 61, Mohd Khairul Ismail v. Teluk Datai Resort[2024] ILRU 0277).
Conclusion
The Industrial Court’s decision serves as a cautionary tale for employees and a validation for employers navigating workplace safety compliance. By emphasizing proportionality, the ruling balances fairness with the broader imperative of protecting lives and the environment. For businesses, it underscores the need for clear policies, consistent enforcement, and thorough documentation to defend disciplinary actions. For employees, it reiterates that adherence to safety protocols is non-negotiable, especially when lives hang in the balance.
Key Takeaways
Zero Tolerance in High-Risk Sectors: Employers in industries handling hazardous goods are legally justified to enforce strict safety protocols and p policies.
Deterrent Value: Leniency would undermine workplace discipline and set a dangerous precedent.
Progressive Discipline Matters: Documented protocols and policies, warnings, counselling, and clear communication of consequences strengthen an employer’s case for dismissal.
Mitigation vs. Prevention: Personal circumstances (e.g. family emergencies) do not override safety protocols and policies designed to mitigate risks.
Judicial Deference to Proportionality: Courts will uphold dismissals if misconduct is severe, repetitive, and poses significant risks, even in the absence of immediate harm.
Employee Accountability: Workers in safety-critical roles must prioritize compliance; repeated misconduct undermines employer trust and legal defences.
Should you have any queries or wish to find out more, please get in touch with our partners in charge of the matter, Bong Lep Siong or Joycelyn Teoh Hooi Cheng.
Authored by: Bong Lep Siong
