Tobacco firm fails to get leave to appeal RM302,400 award

Federal Court judge Nordin Hassan ruled that the company’s proposed questions of law did not meet the threshold for leave to appeal. PUTRAJAYA: The Federal Court has refused a tobacco company’s bid to challenge a ruling ordering it to pay RM302,400 to its former national security manager for unfair dismissal over an alleged incident of inappropriate touching at a private club.

A three-member Federal Court bench, chaired by Justice Nordin Hassan, unanimously rejected Tobacco Importers and Manufacturers Sdn Bhd’s application for leave to appeal, ruling that its proposed questions of law did not meet the threshold under Section 96 of the Courts of Judicature Act 1964.

Justices Ahmad Terrirudin Salleh and Azimah Omar sat on the panel, which also ordered the company to pay RM50,000 in costs to the former employee.

In May, the Court of Appeal upheld the Industrial Court’s finding that the manager had been dismissed without just cause or excuse.

In a judgment delivered by Justice Azhahari Kamal Ramli, the appellate court said the company had dropped the word “sexual” and relied instead on “harassment” when framing the charge against the manager during the domestic inquiry and proceedings before the Industrial Court.

Azhahari said the omission had serious repercussions on the burden of proof the company had to discharge. He also ruled that the company’s Standard of Business Conduct should not be extended outside the workplace.

Justices Ahmad Kamal Shahid and Ahmad Shahrir Salleh were the other members of the Court of Appeal bench.

The case arose from an incident after the company’s annual dinner at a hotel in Kuala Lumpur on Nov 23, 2019.

The manager and a female employee, along with other guests, later adjourned to Wicked Club, a private entertainment outlet at the same hotel.

The woman subsequently complained that the manager had touched her without her consent between 1am and 2am on Nov 24. The manager had denied the allegation.

The woman claimed he had held her around the left side of her lower waist from behind in what was described as a semi-hug. She immediately told him, “Do not touch me”, pushed his hand away and walked off.

The Industrial Court found that the company could not frame the dismissal on sexual harassment during disciplinary proceedings and subsequently argued that the conduct amounted merely to harassment.

It also found that the company's code did not cover employee misconduct outside the workplace.

In 2022, the Industrial Court ordered RM302,400 in compensation instead of reinstatement and back wages. The High Court later dismissed the company's judicial review application to quash the award.

Steven Thiru, Janice Annie Leo and Adrienne Sena appeared for the company, while VK Raj and SP Devi represented the former manager in today's proceedings.