‘Suspicion cannot take the place of proof’: BFM ordered to pay ex-presenter RM358,400 over 2019 dismissal

The Industrial Court in Kuala Lumpur has ruled in favor of former BFM Media producer and presenter Umapagan Ampikaipakan, awarding him RM358,400 for wrongful dismissal.

The court found that BFM Media failed to substantiate allegations of misconduct, including sexual harassment, due to inadequate evidence and imprecise accusations.

The judgment concluded that the serious allegations against Umapagan were not proven on the balance of probabilities, leading to compensation for unjust termination.

Despite the allegations, BFM's case fell short, highlighting the importance of concrete evidence in employment disputes.

KUALA LUMPUR, Sept 25 — The Industrial Court has ordered BFM Media Sdn Bhd to pay former producer and presenter Umapagan Ampikaipakan RM358,400 after ruling that the radio station failed to prove the misconduct allegations used to justify his dismissal in 2019.

While the allegations against Umapagan were serious, Industrial Court chairman Pravin Kaur Jessy found that BFM had not proved the alleged misconduct on the balance of probabilities, The Edge Malaysia reported yesterday.

BFM had accused Umapagan of sexual harassment and other misconduct, including sending explicit messages, making inappropriate remarks and engaging in unwanted physical contact. He denied the allegations.

In a 98-page judgment, Pravin found shortcomings in both the charges and the evidence relied upon by the company, including a lack of specific dates and names in some allegations and the absence of original message exchanges.

She said an employer was required to prove the misconduct as charged rather than rely on a broader impression of an employee’s behaviour.

“This court cannot permit a vague charge to be cured by evidential accretion after the event. The company was required to prove the misconduct as charged, not a general impression that the claimant was tactile or overly familiar,” she said.

Pravin said that, taken as a whole, BFM’s case had fallen short despite the gravity of the accusations.

“Having considered the evidence in its entirety, the court is driven to one conclusion. The company’s case, though grave in allegation, was not made good in proof,” she said.

She added that too many of the allegations were imprecise, uncertain in attribution, inadequately documented or insufficiently tested.

“Suspicion may have justified inquiry. Concern may have justified caution. But neither suspicion nor concern can take the place of proof.

“On the evidence before it, the court is not satisfied that the misconduct relied upon has been established on a balance of probabilities,” she said.

Umapagan had argued that his dismissal was without just cause or excuse and alleged that it was made in bad faith, amounted to victimisation and constituted an unfair labour practice.

BFM maintained that the dismissal was justified.

According to The Edge Malaysia , the parties also disputed when Umapagan began working for the station. He said he had been employed there since 2009, while BFM said he joined in April 2014.

BFM also disputed his claim of having an unblemished employment record, citing a previous warning over inappropriate communication with an intern.

The company said two external lawyers familiar with Malaysian employment law had carried out an independent investigation into the allegations and that management did not interfere with the process.

Umapagan was issued a show-cause letter on December 24, 2018, and dismissed on January 4, 2019.

With reinstatement no longer an option, the court accepted April 2014 as his starting date for the purpose of calculating compensation.

It awarded him RM51,200 in compensation in lieu of reinstatement, equivalent to one month’s salary of RM12,800 for each of four completed years of service.

He was also awarded RM307,200 in back wages, representing the maximum 24 months permitted under the Second Schedule of the Industrial Relations Act 1967.

The awards totalled RM358,400.

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吉隆坡工业法庭裁定前 BFM 媒体制作人兼主持人 Umapagan Ampikaipakan 胜诉，判给他 358,400 令吉的非法解雇赔偿金。

法院认定，由于证据不足和指控不准确，BFM Media未能证实有关不当行为（包括性骚扰）的指控。

判决认定，针对乌马帕甘的严重指控在可能性权衡原则上并未得到证实，因此应给予不当解雇赔偿。

尽管提出了指控，但BFM的案件未能成立，这凸显了在劳动纠纷中确凿证据的重要性。

吉隆坡，9月25日讯——工业法庭裁定，BFM Media Sdn Bhd电台未能证明其在2019年解雇Umapagan Ampikaipakan时所指控的不当行为，因此责令该电台向前制作人兼主持人Umapagan Ampikaipakan支付358,400令吉的赔偿金。

据《马来西亚边缘报》昨日报道，虽然对乌玛帕甘的指控很严重，但工业法庭主席普拉文·考尔·杰西认为，BFM未能从可能性权衡的角度证明所指控的不当行为。

BFM指控乌马帕甘性骚扰及其他不当行为，包括发送露骨信息、发表不当言论和进行不必要的身体接触。他否认了这些指控。

在长达 98 页的判决书中，普拉文发现指控和公司所依赖的证据都存在缺陷，包括一些指控缺乏具体日期和姓名，以及缺少原始信息交流记录。

她表示，雇主必须证明指控的不当行为属实，而不是依赖于对雇员行为的总体印象。

“本法庭不能允许事后通过证据的积累来弥补模糊的指控。公司必须证明指控属实，而不是仅仅凭感觉认为原告有肢体接触或过于亲昵，”她说道。

普拉文表示，尽管指控性质严重，但总体而言，BFM 的案件还是不够充分。

“综合考虑所有证据，法庭得出一个结论。该公司的指控虽然严重，但证据不足，”她说道。

她补充说，太多指控不够精确，归属不确定，缺乏充分的证据或未经充分检验。

“怀疑或许足以构成调查的理由，担忧或许足以构成谨慎的理由，但怀疑和担忧都不能代替证据。”

“根据现有证据，法庭认为，所依据的不当行为尚未达到证据优势的程度，”她说。

Umapagan 辩称，他的解雇既无正当理由也无借口，并声称这是出于恶意，构成了报复，属于不公平劳动行为。

BFM 坚称解雇是合理的。

据《马来西亚边缘报》报道，双方对乌马帕甘何时开始在该电台工作也存在争议。他声称自己自2009年起就在那里工作，而BFM则表示他于2014年4月加入。

BFM 还反驳了他关于拥有无瑕疵就业记录的说法，并指出他之前曾因与实习生进行不正当沟通而受到警告。

该公司表示，两名熟悉马来西亚劳动法的外部律师已对这些指控进行了独立调查，管理层没有干预调查过程。

Umapagan 于 2018 年 12 月 24 日收到一份要求其说明理由的信函，并于 2019 年 1 月 4 日被解雇。

由于复职已不再可能，法院认定 2014 年 4 月为他的赔偿金计算起始日期。

法院判给他 51,200 令吉的补偿金，以代替复职，相当于他四年服务期内每年 12,800 令吉的月薪。

他还获得了 307,200 令吉的补发工资，这相当于 1967 年工业关系法令第二附表允许的最高 24 个月工资。

奖金总额为358,400令吉。

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