Malaysia: Language barrier claim does not undo admissions made during disciplinary proceedings

The Industrial Court has upheld the dismissal of a long-serving employee who attempted to remove company property without authorisation, rejecting the employee’s contention that his admissions during the domestic inquiry resulted from an inability to understand Malay. The decision in Vikneshwaran A/L Tathan v Sime Darby Plantation Berhad (Award No. 434 of 2026) highlights the importance of clear and properly documented disciplinary proceedings and reaffirms that dishonesty may justify dismissal regardless of an employee’s length of service.

Brief Facts

The employee had been employed by the employer since November 2008 and was serving as a tractor driver at the time of his dismissal in October 2023.

On 5 April 2023, the employee was instructed to collect bagged loose oil palm fruits from designated blocks and deliver them to the employer’s collection bin. During a routine patrol, an auxiliary police officer observed him at the boundary between the employer’s estate and an adjoining smallholder plantation, where employees had no work-related reason to be. The employee left the area after seeing the officer.

A subsequent inspection uncovered four bags of loose fruits concealed beneath palm fronds on the neighbouring land. The bags were identical to those used by the employer. When questioned, the employee made statements indicating that he had taken the fruits. At the employer’s request, he also re-enacted how the bags had been carried across the boundary using a wooden bridge. Photographs were taken of the re-enactment.

The employer issued a show cause letter and subsequently convened a domestic inquiry. The two charges ultimately pursued against the employee concerned:

• attempting to remove company property without authorisation; and
• failing to deliver the collected fruits to the designated collection bin as instructed.

At the domestic inquiry, the employee confirmed that he understood the charges and pleaded guilty to both. He was accompanied by representatives of the National Union of Plantation Workers, and both the employee and the union representatives signed the inquiry notes as an accurate record of the proceedings. In mitigation, the employee referred to financial and family difficulties and stated that the misconduct had occurred over a short period. The employer dismissed him with immediate effect after the inquiry panel found both charges against him were substantiated.

Before the Industrial Court, the employee challenged his earlier admissions. He argued that his limited proficiency in Malay, together with the absence of a Tamil interpreter, meant that he had not properly understood the charges or the domestic inquiry.

Industrial Court Decision

The Industrial Court rejected the employee’s language-barrier argument. It found that the employee’s conduct before and during the domestic inquiry demonstrated that he understood the nature and substance of the charges. In particular:

• his written response to the show cause letter expressly denied one charge but did not deny the two charges to which he later pleaded guilty;
• he was informed that the domestic inquiry would be conducted in Malay, confirmed that he understood and did not request an interpreter;
• union representatives were present and available to assist him throughout the inquiry;
• after pleading guilty, he explained his mitigating circumstances in Malay;
• Malay had been used in his daily workplace communications throughout his employment; and
• following his dismissal, he submitted a request concerning company accommodation that was written entirely in Malay.

Against that background, the Court considered the employee’s subsequent claim that he had not understood the proceedings to be an afterthought.

The Court also considered the evidence underlying the charges rather than relying solely on the employee’s guilty pleas. It took into account his unexplained presence at the estate boundary, his departure after being observed, the location and concealment of the four bags, his statements when questioned, the re-enactment and the evidence given by the employer’s witnesses. The Court found that the employer had established both charges on the balance of probabilities.

The Court held that the misconduct was sufficiently serious to warrant dismissal. The employee knew that removing company property without permission was prohibited but nevertheless attempted to do so instead of completing his assigned task. His approximately 15 years’ service did not prevent dismissal for conduct that undermined the trust required in the employment relationship. The Court therefore found that the dismissal was with just cause or excuse and dismissed the employee’s claim.

Key Takeaways

The decision demonstrates that a claim of language difficulty will be assessed against the employee’s conduct and the contemporaneous disciplinary record. Employers should explain disciplinary charges in language the employee can reasonably understand, confirm and record the employee’s understanding, and consider interpretation assistance where there is genuine uncertainty about the employee’s language proficiency.

Employers should also maintain a clear record of:

• the charges and supporting materials provided to the employee;
• the language used during the proceedings;
• any request for, offer of or waiver of interpretation assistance;
• the employee’s responses, admissions and mitigation;
• the attendance and role of any union or employee representative; and
• the employee’s confirmation of the accuracy of the inquiry notes.

An admission should not be treated as a substitute for a proper investigation. Employers should preserve the surrounding evidence supporting each charge, particularly where the employee may later withdraw or dispute an earlier admission. Although an employee’s service history may be relevant to mitigation, it will not necessarily outweigh misconduct that fundamentally damages the employer’s trust and confidence in the employee.