In the recent case of Kuhendran a/l Rajan v American Express (Malaysia) Sdn Bhd, Award No. 741 of 2026 [Case No. 4/4-744/23], the Industrial Court examined whether the dismissal of an employee for alleged poor performance and misconduct was with just cause or excuse.

Brief Facts

The claimant commenced employment with American Express (Malaysia) Sdn Bhd on 3 November 2014, he was subsequently assigned as a Senior Credit Specialist and remained in employment until his dismissal on 23 June 2022. His last drawn salary was RM5,600 per month.

The Company alleged that the claimant had continuous poor performance and behavioural issues dating back to 2015. Between 2015 and 2021, the claimant was issued five warning letters relating to unsatisfactory handling of client accounts, failure to respond to customer emails within the required timeframe, inaccurate case notations, and other alleged performance or misconduct issues.

The claimant denied the allegations. His position was that he and other employees had been subjected to bullying, harassment and unacceptable conduct by his immediate superior. He alleged that when he raised grievances, he was instead targeted with warning letters and allegations based on trivial or unsubstantiated matters. The claimant had also lodged a formal complaint in 2019 and 2022 against his superior. He claimed that the subsequent show cause letter and dismissal were retaliatory in nature.

The Company denied this. It maintained that the dismissal was based on the claimant’s poor performance and misconduct, and that it had acted fairly.

Industrial Court Findings

The Industrial Court was not satisfied that the Company had proven that the claimant’s conduct had led to negative customer experience, brand damage or potential financial loss. The Court also found that the allegations relating to the claimant’s alleged unsatisfactory performance were vague, confusing and capable of being interpreted in different ways.

The Court made an important observation on performance management. It stated that minor errors may occur in the nature of the claimant’s work, but such errors cannot automatically be treated as so serious as to justify dismissal. If the Company genuinely considered the errors serious enough to show poor performance, the claimant should have been placed on a proper Performance Improvement Plan with clear goals, monitoring and an opportunity to improve.

A significant part of the Court’s finding related to the claimant’s workplace bullying complaint. The Court found that there was merit in the claimant’s evidence that his immediate superior had caused him stress, anxiety and continued harassment and bullying. The Court also found that the superior had used sexually charged, highly derogatory and demeaning words to humiliate employees through the Company’s office messenger system.

The Court was critical of the Company’s handling of the matter. It found that the claimant’s legitimate grievances were not effectively managed by HR or the Labour Relations department. Instead of protecting the workforce, the Company appeared to be shielding the team leader.

Based on the totality of the evidence, the Industrial Court found that the Company had failed to prove, on the balance of probabilities, that the dismissal was with just cause or excuse.

The Court awarded compensation in lieu of reinstatement and back wages. The total award was RM153,200.

Conclusion

This decision reinforces an important point for HR practitioners: an employer may rely on poor performance or misconduct as grounds for dismissal, but the allegations must be clear, properly proven and supported by a fair process.

Where an employee has raised workplace bullying or harassment complaints, the employer must be especially careful. Any subsequent warning, show cause letter or dismissal may be scrutinised closely, particularly if it appears to follow the complaint or escalation.

The Industrial Court will look beyond the wording of the dismissal letter. It will examine the actual facts, the timing of the disciplinary action, the quality of the investigation, and whether the employer had genuinely addressed the employee’s grievance.

Finally, HR should be cautious when disciplinary action is taken shortly after an employee raises a complaint. Even if the employer believes there are valid performance concerns, the process must be capable of showing that the action was not retaliatory. In workplace bullying cases, the employer’s response to the complaint may become just as important as the complaint itself.