BFM to pay sacked producer RM358,400 after failing to prove misconduct

A private radio station was ordered to pay a former producer and presenter RM358,400 after the Industrial Court found that the allegations of sexual harassment and inappropriate conduct used to dismiss him were not proven.

Industrial Court chairman Pravin Kaur Jessy said BFM Media Sdn Bhd had grounds to investigate the allegations, but the evidence fell short of establishing misconduct on the balance of probabilities against Umapagan K Ampikaipakan.

“Suspicion may have justified inquiry. Concern may have justified caution. But neither suspicion nor concern can take the place of proof,” she said in a 98-page award dated Sept 21.

The court found that several allegations against Umapagan were imprecise, uncertain in attribution, incomplete in documentation and untested in essential respects.

Pravin said the court could not conflate a reason to investigate with proof of misconduct, particularly where allegations of sexual harassment could have serious consequences for an employee’s reputation, dignity and livelihood.

The case arose after the circulation of an anonymous email alleging sexual harassment at BFM in November 2018. The company appointed external investigators to look into the allegations.

Umapagan was issued a show-cause notice on Dec 24, 2018, and his employment was terminated with immediate effect on Jan 4, 2019.

BFM maintained that it acted on the findings of its independent investigation and that Umapagan’s conduct amounted to sexual harassment or, at least, inappropriate and unprofessional conduct.

However, Pravin said the Industrial Court’s role was not simply to assess whether the company had a reasonable basis to suspect misconduct.

“Possessing reasonable grounds to suspect an employee of an infraction does not relieve the employer of its burden of proof when the matter reaches Industrial Court adjudication,” she said.

The court also found that Umapagan was materially disadvantaged because underlying messages and the identities of some alleged complainants were withheld.

Some allegations emerged only after his interview with investigators, and he was not given an opportunity to respond.

Pravin said it was “legally untenable” to expect an employee to comprehensively answer vague allegations involving unnamed interns or colleagues and messages allegedly sent years earlier.

The court also found deficiencies in some screenshots relied upon by BFM, including the absence of original messages and sufficient evidence linking them to the alleged sender or recipient.

“The company’s case, though grave in allegation, was not made good in proof,” Pravin said.

The court held that Umapagan was dismissed without just cause or excuse.

However, it declined to order his reinstatement as more than seven years had passed since his dismissal and the employment relationship had broken down.

Instead, the court awarded Umapagan RM51,200 in compensation in lieu of reinstatement and RM307,200 in backwages, bringing the total award to RM358,400.

The court rejected his claim for punitive damages, saying BFM had received serious allegations, investigated them and considered his response.

Lawyers P Jayasingam, Thavaselvi Pararajasingam and Eve Hong appeared for Umapagan while Yong Hon Cheong and S Sivagami represented BFM.

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