Company was right to sack officer for concealing conviction, court rules

Failure to declare a criminal conviction when accepting a job is a serious matter, as it undermines the trust and confidence essential to the employment relationship, the industrial court has ruled.

Rusita Md Lazim, chairman of the industrial court in Penang, said an employer may ultimately dismiss an employee without notice, but it should generally follow a fair disciplinary process.

Rusita said a criminal conviction did not automatically entitle an employer to dismiss an employee, but when an employee deliberately misrepresented or concealed a material criminal conviction during recruitment, such dishonesty may constitute serious misconduct and provide just cause or excuse for dismissal.

The court upheld the dismissal of a safety and health officer by Joe Green Precast Sdn Bhd.

Rusita said the position required someone with integrity, compliance with rules, and risk management skills.

“The claimant realised that if he admitted he had been convicted and fined in court for theft, his chances of being accepted for a key position were slim. This clearly showed his ulterior motives had led to deliberate omissions that are hard to forgive,” she said in the award handed down last month.

She said the company’s trust in the claimant led to his appointment without reservation, and therefore, it treated his failure to disclose this conviction as a serious act of misconduct.

Rusita said one of the claimant’s key contentions was that he did not know that being charged in court and fined RM5,000 for theft from one of his previous firms was a criminal conviction, which led him to declare as “N/A” or not applicable to the particular question on his past.

“The court finds that his justification is untenable. The employer’s trust in him was betrayed when the company discovered that the very person appointed to safeguard its high-value assets had a prior conviction for stealing from an employer.

“Despite an omission of inquiry, a criminal conviction may constitute a legitimate basis for dismissal if the nature of the offence makes the employee unsuitable for employment. For example, a conviction for fraud, dishonesty or theft would be particularly serious for someone employed in a position involving trust,” she said.

The claimant’s services were terminated 10 months after he was appointed safety and health officer at the company’s Senai and Seelong plant in April, 2021.

SK Low appeared for the company while G Sritharan represented the claimant.

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