The recent decision in Kuhendran a/l Rajan v American Express (Malaysia) Sdn. Bhd. (Award No. 741 of 2026) offers an important reminder to employers in Malaysia that poor performance allegations cannot be used as a shield for retaliation, workplace bullying, or unfair treatment.
In this case, the Industrial Court found that the employee had been dismissed without just cause or excuse after years of alleged harassment, repeated warning letters, and what the Court described as “nitpicking” by management. The Court eventually awarded the claimant RM153,200 in compensation and back wages.
For employees and employers alike, this case highlights how the Industrial Court examines allegations of poor performance, misconduct, workplace bullying, and retaliatory dismissal under the Industrial Relations Act 1967.
Background Facts
The claimant, Mr. Kuhendran a/l Rajan, joined American Express (Malaysia) Sdn. Bhd. in November 2014 as a Corporate Credit Specialist and later served as a Senior Credit Specialist.
According to the company, the claimant had a long history of poor performance and misconduct dating back to 2015. The company issued five warning letters over several years before eventually serving a show cause letter in May 2022.
The allegations included:
- Incorrect handling of client accounts;
- Failure to respond to customer emails within company timelines; and
- Inaccurate case notations.
The employee denied the allegations and argued that he had been subjected to ongoing bullying and harassment by his superior. He claimed that the disciplinary actions were part of a campaign to victimise him after he raised complaints internally and later sent a demand letter to the company’s headquarters in New York.
The Industrial Court’s Findings
The Court reaffirmed a well-established principle in Malaysian employment law tha once an employer dismisses an employee, the burden falls on the employer to prove that the dismissal was with just cause or excuse.
The Industrial Court referred to several landmark authorities including:
- Milan Auto Sdn. Bhd. v Wong Seh Yen;
- Goon Kwee Phoy v J & P Coats (M) Bhd; and
- Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair.
The Court reiterated that the key question is whether the misconduct or poor performance alleged by the employer was actually proven on a balance of probabilities. In the award, the Court made the following findings.
1. Poor Performance Alone Is Not Enough
One of the more interesting aspects of this award is the Court’s detailed discussion on poor performance dismissals.
The Court acknowledged that employers are generally entitled to evaluate employee performance and impose standards. However, if an employer genuinely believes an employee is underperforming, proper performance management steps should be taken first.
The Court referred to earlier Industrial Court decisions stating that employers should:
- Clearly identify performance shortcomings;
- Warn the employee;
- Give the employee sufficient opportunity to improve; and
- Implement proper monitoring or improvement mechanisms.
In this case, the Court found that the company failed to properly establish that the claimant’s conduct amounted to serious poor performance.
The Court observed that the allegations were vague, technical in nature, and insufficiently supported by evidence.
Importantly, the Court noted that occasional minor errors do not automatically make someone a poor performer deserving dismissal. The Court commented that if the alleged issues were truly serious, the employee should have been placed on a proper Performance Improvement Plan (PIP) with clear goals and monitoring.
2. Workplace Bullying and Harassment Took Centre Stage
What ultimately shaped the Court’s findings was not merely the performance issue, but the evidence surrounding the workplace environment.
The claimant alleged that his immediate superior had continuously bullied, harassed, and intimidated him over several years.
After reviewing the evidence, the Court accepted much of the claimant’s version of events.
The Court found:
- There was evidence of harassment and intimidation by the superior;
- The company appeared to shield the superior instead of properly addressing grievances; and
- The disciplinary process appeared retaliatory in nature.
The Court even criticised the use of “sexually charged, highly derogatory and demeaning words” allegedly used openly in the company’s office messaging system.
In fairly strong language, the Court concluded that the company’s actions were motivated by bad faith and retaliation after the claimant escalated his complaints to the company’s overseas headquarters.
Compensation Awarded
After evaluating the evidence, the Industrial Court concluded that the employer failed to prove that the dismissal was with just cause or excuse.
The Court found that:
- The employee’s explanations were consistent and credible;
- The company’s allegations were vague and exaggerated;
- The evidence did not establish serious misconduct or poor performance; and
- The dismissal appeared to be retaliation linked to the claimant’s complaints against management.
Although the claimant initially sought reinstatement, the Court declined to order reinstatement because he had already relocated and obtained employment in Canada.
Instead, the Court awarded RM114,000 in back wages after deductions and RM39,200 as compensation in lieu of reinstatement.
The Court also took into account the claimant’s post-dismissal earnings, as required under the Industrial Relations Act 1967 and relevant case law.
Final Thoughts
I believe the award in Kuhendran a/l Rajan v American Express (Malaysia) Sdn. Bhd. is a solid decision and a strong example of the Malaysian Industrial Court examining the true circumstances behind a dismissal.
As evident by this case, not every mistake or disagreement at work justifies termination. Where workplace bullying, retaliation, or unfair targeting results in unfair dismissal, the Industrial Court may intervene and award reinstatement or compensation.
For Malaysian employers, the decision is also a reminder that disciplinary procedures must be fair, transparent, and genuinely aimed at performance management rather than punishment.
