Reliance on Post-Dismissal Reasons and/or Events as Justification for the Dismissal of an Employee

Can an employer rely on reasons or events that occurred after dismissing an Employee? In short, the answer is no.

The recent Federal Court case of Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 10 CLJ 663 makes it clear that an employer seeking to rely on events and/or reasons which did not operate in the mind of the employer at the time of dismissal, cannot then raise the same during the subsequent stage in the Industrial Court to justify the dismissal.

In this present case, Maritime Intelligence Sdn Bhd (“the Employer”), sought to rely on the workman’s lack of postgraduate qualifications (which was only discovered vide subsequent investigations post-termination), as a means to justify the dismissal. In addition, it was also submitted that the workman’s lack of qualification for the job was to be considered as a “good basis” as to why her relief to be reinstated must fail.

In arriving at its decision, the Federal Court was of the view that:

1. “Just cause or excuse” can only refer to the reason resonating in the employer’s mind, prior to, or preceding the decision to dismiss. This is to prevent wholly different or additional matters being put forward by the employers for a “stronger” defence; and

Any subsequent matters and/or findings (if any) may very well go towards the moulding of the relevant relief such as contributory conduct, or comprise the basis to refuse reinstatement and reduce or refuse compensation.  

To this end, the Federal Court’s decision would on face value, appear to put a stop to employers firing their workmen before finding proper reasons to justify their dismissals and/or from advancing matters which it had failed to take into consideration at the material time of the dismissal during the hearing stage before the Industrial Court.