Legal Update 2 of 2012
Whether the offence of khalwat is a misconduct justifying dismissal.
CASE:
Bank Muamalat Malaysia Bhd v Mahkamah Perusahaan Malaysia & Anor [2011] 6 AMR 832
ISSUES:
Whether the offence of khalwat is a misconduct justifying dismissal.
BRIEF FACTS:
- The applicant (“Bank Muamalat”) dismissed the second defendant (“the employee”) for the offence of being in close proximity with a woman not his wife (“khalwat’).
- Second defendant applied to first defendant (“the Industrial Court”). The Industrial Court allowed the employee’s claim for wrongful dismissal and ordered that he be reinstated with backwages without loss of seniority and benefits.
- Bank Muamalat appealed to the High Court but while the hearing was going on the court was informed that the Syariah Court had discharged and acquitted of the employee of khalwat.
DECISION: Employee’s appeal dismissed with cost.
- Case law authorities state that khalwat is a recognised gross misconduct justifying dismissal because the employer’s reputation must be given priority.
- Furthermore, sexual immorality has been recognised as an actionable misconduct and the Chairman of the Industrial Court erred in holding that only Syariah Court can hear such cases.
- The work performance of the employee is a factor, but Bank Muamalat is an Islamic Bank and therefore subject to Islamic principles.
- The fact that the employee was caught during a large scale operation and that there were 35 officials from various government agencies did tarnish Bank Muamalat’s image and reputation.
- Reinstatement is not an apt remedy. The employee has previous multiple disciplinary issues including sleeping and smelling of liquor at work and Bank Mualamat has also lost trust and confidence in this employee.
