Friday, June 3, 2016

Criminal Breach of Trust (CBT)

The fundamentals of the employer-employee relationship is based on the principals of fiduciary trusts.
When the basic fundamental of the relationship is breached by either party, then there is sufficient excuse or reason for the relationship to end i.e. employment.

Action by an employee that will be categorized as a misconduct that is also in breach of the relationship will justify for a summary dismissal from the employment.
Misconducts such as acts of fraudulent, forgeries and theft will cause the Company to lose faith and confidence on an employee that warrants for immediate release of employment, that is DISMISSAL. Such criminal in nature acts are also categorized as Criminal Breach of Trust (CBT) that also prosecutable under the criminal law.  

In the Industrial Court case of SOIL DYNAMICS (M) Sdn. Bhd. v. YONG FUI KIEW [2005] 2 ILR 817:
"... the relationship between an employer and an employee is of a fiduciary character and if the employee does an act which is inconsistent with the fiduciary relationship then it will be an act of bad faith for which his services can be terminated”.

Also in the case of Court of Appeal of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (“Telekom case”) clearly stated the standard of proof required to be met even where criminal related misconducts are concerned. The Court of Appeal in the Telekom case held as follows:-
“Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including “theft”, is not required to be satisfied beyond reasonable doubt that the employee has “committed the offence”, as in a criminal prosecution …”.

Similarly should the act of Criminal Breach of Trust (CBT) were reported to the authority, criminal proceeding of the act will take place and the court may impose a much heavier punishment such as the reported case of the Sessions Court attached with this email where the court has ordered rotan lashes to a CBT case of an employee from a MNC as reported by the RakyatPost here.  

Wednesday, June 1, 2016


Uttering or even verbally threatening another employee or to make things worse, to one's superior is a major misconduct. Some may say that they did not mean what they say but still, the incident has happened. Such act is also consider insubordination, as the said action is not a required or desired action of an employee of any company. 

Briefly, abuse is not limited to physical assault but verbal assault as well. Especially threatening statement that is seen to be a gross misconduct that risks others’ safety.

And on the grounds of insubordination, an employee MUST NOT disobey any legal instruction which is also considered as gross misconduct.

Another case cited is Ngeow Voon Yean v. Sungei Wang Plaza Sdn. Bhd/Landmarks Holdings Bhd. [2006] 3 ILR 1717 where the court stressed –

“From the case law, it is clear that the duty of obedience is confined to compliance with the lawful and reasonable orders of an employer and as such the concept of an order being manifestly wrong has no part in the doctrine of superior orders. To that extent the Court of Appeal erred when it made an exception to the general rule on superior orders when stating that an employee is entitled to disobey the orders of his superior if he, the employee, is aware that such orders are manifestly wrong. However, that exception holds good in military or criminal law as seen from the case of PP v. Tengku Mahmood Iskandar [1973] 1 LNS 124; [1973] 1 MLJ 128 where it was held that "a soldier is not protected where the order is grossly illegal."