INDUSTRIAL COURT OF MALAYSIA CASE NO. 19(20)/4-722/07 BETWEEN ENCIK MANOKARAN A/L KALIYAGAM AND JPK (MALAYSIA) SDN.

BHD AWARD NO. 1664 OF 2012 Before Venue Date Of Reference Dates of Mention : : : : Y.A. PUAN HAPIPAH BINTI MONEL Chairman (Sitting Alone) Industrial Court Malaysia, Kuala Lumpur. 26.12.2006 09.04.2007, 23.06.2008, 29.06.2009, 02.06.2010, 28.09.2011, 20.02.2009, 22.06.2007, 02.07.2008, 17.07.2009, 22.02.2011, 27.02.2012. 30.06.2009, 01.08.2007, 17.07.2008, 29.09.2009, 04.03.2011, 16.01.2012, 11.09.2007, 19.02.2009, 25.02.2010, 22.09.2011, 09.02.2012. .. THE COMPANY .. THE CLAIMANT

Dates of Hearing Representation

: :

Mr. Ravindra Murugavell of Messrs. Murugavell Arumugam & Co, Counsel for the Claimant. En. Ahmad Hanafi bin Lop Ahmad of Messrs. Prasad Abraham & Associates, Counsel for the Company.

REFERENCE This is a reference under section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of 10 April 2006.
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ENCIK MANOKARAN A/L KALIYAGAM (hereinafter referred to as the

Claimant) by JPK (MALAYSIA) SDN. BHD (hereinafter referred to as the Company) on the

AWARD FACTS The Claimant commenced employment with the Company on 20 th May 2002 as Senior Maintenance Manager vide Letter of Appointment dated 8th May 2002 (pages 1 4 of CLB1). The Company vide letter dated 5th November 2002 informed the Claimant that he is a confirmed staff with effect from 20th August 2002 (page 5 of CLB1).

The Claimant was then transferred to the the Company's production department with the title of Production Manager. As the Production Manager the Claimant carried out the following responsibilities: a) b) c) d) e) f) The adherence to manufacturing schedules. Management planning with regard to the production department. The efficient utilization of production machines. Ensuring minimum machine downtime. Ensuring the quality of the products. The delivery of products to the customer on schedule.

Following a house-keeping audit carried by Dr. Ivy Liew the Managing Director, the Company vide a show cause letter dated 6 th March 2006 suspended the Claimant from work with effect from 7th March 2006 to 14th March 2006. Show cause and suspension letter stated as follows:

6th March 2006 Mr. Manokaran J 2663 Present Mr. Mano RE: SHOW CAUSE & SUSPENSION You have been informed by our Managing Director on many occasions concerning her expectation of housekeeping for the Production floor. 1. However, on 3rd March 2006 when our Managing Director inspected the Production floor, she discovered that her instructions to you had not been adhered to. It was noted that there were moulds left on platforms on the floor next to the machines, some of them did not have labels and some had labels SU since February 2006 and had not been sent back to the Mould Room. Kindly, furnish us with your detailed explanation on the matter.

You are hereby required to submit your hand written explanation within 3 days of the receipt of this letter as to why disciplinary action should not be taken against you. You are hereby suspended from duty effective 7th March 2006 to 14th March 2006. Should you fail to give your explanation with in the stipulated time, it will be presumed that you have no valid explanation to offer and in which case the Company shall proceed to take appropriate action against you. Yours faithfully Jonathan Mark V Alexander Manager Human Resource Department ACKNOWLEDGEMENT I, __________________ (NRIC No. _______________) do hereby acknowledge receipt of the original copy of this letter and confirm my understanding and accept the contents stated herein. ______________________Signature __________ Date.

The Claimant within the period of 3 days handed in his reply to the show cause letter (pages 7 9 of CLB1).

The Company was not satisfied with the Claimant's explanation and issued the Claimant a notice of inquiring dated 14th March 2006 requiring the Claimant to attend a disciplinary inquiry on 15th August 2006 (pages 10 & 11 of CLB1).

The Domestic Inquiry panel consisted of Mr. Raymond Ong, the Executive Director, Mr. Jonathon Mark, the Human Resource Manager and Ms. Tang Wai Wah, the Quality Assurance Manager. The prosecuting officer was Dr. Ivy Liew, the Manager Director of the Company and the person who initiated the charge against the Claimant. The minutes of the Domestic Inquiry was at page 12 to 17 of CLB1.

As a result of the above mentioned Domestic Inquiry, the Company vide letter dated 16 th March 2006 meted out punishment by demotion and transfer of the Claimant to its plant vide a letter dated 16th March 2006 (page 18 of CLB1).

The Company vide letter dated 17th March 2006 informed the Claimant inter-alia that an air ticket for the flight to Dongguan, China has been booked for 24 th March 2006 (page 19 of CLB1).

The Claimant vide letter 22nd March 2006 informing the Company that his demotion and transfer was tainted mala-fide and requested to be reinstated to his former position and be stationed at his present location. (pages 20 & 21 of CLB1).

In response to the Claimant's letter, the Company vide letter dated 27 th March 2006 informed the Claimant inter-alia that the Company has been fair in imposing a punishment of demotion and transfer in order to improve the Claimant's skills (pages 22 & 23 of CLB1).

The Claimant vide letter dated 28th March 2006 gave his reason why he is not able to accept the transfer to Dongguan, China (pages 24 & 25 of CLB1). The Company vide letter dated 30th March 2006 issued the Claimant show cause letter and suspension letter suspending the Claimant from work for 30th March 2006 to 3rd April 2006. The said letter stated that the Claimant's failure to submit his passport and photographs to the Company was a blatant disregard of a lawful instructions. The Claimant was required to give a hand-written

explanation within 2 days of receipt of her said show cause and suspension letter (page 26 of CLB1).

The Claimant vide letter dated 30th March 2006 replied the Company's show cause and suspension letter (pages 27 & 28 of CLB1). The Company vide letter dated 1st April 2006 issued the Claimant's a notice of Inquiring contained the following allegations:
i) You had been officially informed in writing on 17 th March 2006 and further to your letter of appeal on 27th March 2006 to furnish the Human Resource department with your passport and two (2) copies of your photograph to facilitate your immediate transfer to our office at JPK Dongguan China by 20 th March 2006 and subsequently by 30 th March 2006. ii) You were issued a show cause letter on 30 th March 2006 as to why disciplinary action should not be taken against you in view of your blatant disregard to a lawful and

legitimate instruction given to you by Management on two (2) occasions. You again in your hand written explanation on 30 th March 2006 refuse to comply with the instructions.

The Claimant was required to be present at the Domestic Inquiry on 5 th April 2006. The Claimant's was also suspended from work with effect from 4 th April 2006 to 11 April 2006 (pages 29 & 30 of CLB1).

Domestic Inquiry was held on 5th April 2006. Note of the Domestic Inquiry at pages 31 to 33 of CLB1. As a result of the Domestic Inquiry, the Claimant was dismissed from employment with the Company on 10th April 2006 vide letter dated the same (pages 34 & 35 of CLB1).

The Evidence, Evaluation and Finding The Company bore the legal burden of proof to convince the Court that the misconduct complained by the Company had been established in Court and the Claimant was dismissed with just cause or excuse.

The Company called one witness that is Liew Lai Peng (COW1). COW1 testified on 20th February 2009 wherein the case was then fixed for continued hearing on 16 th January 2012. COW1 then choose to be absent from Court and the learned counsel for the Company then proceeded to close the Company's case without completing the testimony of COW1. The

question that arose hare is whether the evidence of COW1 which has not been tested under cross-examination can be considered by the Court.

In the case of Dr. Shanmugam v. Periasamy Sitahmbaram Pillai (1997) 2 CLJ 153, Federal Court held as follows:
With respect the learned Judge failed to appreciate that the cross examination of DW1 was not completed. It must be noted that in the course of cross-examination, DW1 had absconded and therefore the plaintiff was prevented from either putting his case or injuring DW1's credit. From the record it is noted that DW1 gave his evidence in chief on 30 March 2987. His crossexamination commenced the same afternoon. The hearing was then adjourned to 1 September 2987. However the case came up for continued hearing only on 1 November 1988. On this date the Court was informed by counsel for defendant that DW1 could not be found. Counsel told the Court that DW1 had left the Court. In the event the cross-examination could not be completed and in fact it was never completed. It is imperative for the Court to consider what is the legal effect or cross-examination which could not be complete. A passage in the Halsbury's, 4th Edn. Vol. 17, paragraph 277 reads: Any party is entitled to cross examine any other party who give evidence and his witnesses, and no evidence affecting a party is admissible against that party unless the latter had an opportunity of testing its truthfulness by cross examination. The question which arises here is whether there was an opportunity afforded to the plaintiff to test the truthfulness of the evidence of DW1 by cross-examination. opportunity must be a real opportunity. The right to cross-examination is not enough; there must be opportunity to exercise the right (opportunity is equivalent to actual cross-examination) see Sarkar on Evidence, 14th Edn. At p. 1998. At p. 1999, Sarkar said: Needless to say such an

When a witness dies after examination in chief and before cross-examination the evidence is admissible, but its probative value may be very small and may even be disregarded. If the examination is substantially complete and the witness is prevented by death, sickness or other causes (mentioned in s.33) from finishing his testimony, it ought not to be rejected entirely. But if not so far advanced as to be substantially completed, it must be rejected. From the record, it is abundantly clear that the cross-examination was far from over as several areas of the plaintiff's case and most of the matters highlighted here were not even put to the witness. In Maharaja of Kolhapur v. S. Sundram Ayyar & Ors. AIR (1825) Madras 497 at 537, Kumaraswami Sastri J held: She was ill when she was examined in chief, and her examination was adjourned after a few sentences in cross-examination were recorded. She dies before cross-examination could resumed. There was considerable argument as to the admissibility or her evidence which it was not possible to test by cross-examination. I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can have little value.... There is nothing in the Evidence Act which renders such evidence inadmissible. In Rosi v. Pillamma (1910) 20 Madras LJ 400 it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that though in some cases the Court may act upon it if there is other evidence on records its probative value may be very small and may even be disregarded. I am not disposed to attach any weight to the weight to the evidence of this witness. In Mt. Horil Kuer & Anor v. Rajab Ali & Ors, AIR (1936) Patna 34, it was held that the weight to be attached to the evidence depends on the circumstances and the Court should look whether there are indications that by a completed cross-examination, the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached Rowland J, in the case held:

This decision which was followed in (1929) Lah 840 (7) seems to me, if I may say so with respect, to state the law correctly. I do not understand the observations of the learned Judge to mean that there is any hard and fast rule that the probative value of such evidence is small, and in my view there is no such rule. The weight to be attached to the evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. The principles enunciated in these cases established that the Court must consider the weight to be attached to the evidence given by DW1. If the Court was of the opinion that the cross-examination was not substantial, then the Court need not act upon such evidence.

By failing to attend Court, the Claimant's case stands unchallenged, unrebutted, uncontroverted. As such, the Court has no alternative but to accept the Claimant's unrebutted evidence and give the benefit of any doubt to the Claimant.

Based on the incomplete evidence of COW1, no weight can be give to COW1 testimony and as such the Court holds that the Company has failed to discharge its burden and the Claimant's dismissal was without just cause or excuse.

Conclusion Based on the incomplete evidence of COW1 no weight can be given for COW1 testimony. The Court finds that the Company has failed to discharge its burden and therefore the Claimant dismissal was with just cause or excuse. Accordingly, the Claimant's claim is hereby allowed.
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Remedies This court is of the view that reinstatement of the claimant in the Company is not the appropriate remedy in the circumstances and facts of this case. The reinstatement of the claimant in this case is not conducive to industrial harmony.

In the case of Koperasi Serbaguna Sanya Bhd (Sabah) v. Dr. James Alfred (Sabah) & Anor (2000) 3 CLJ 758 at p. 766, the Court of Appeal decided inter alia as follows:
In industrial law, the usual remedy for unjustified dismissal is an order of reinstatement. It is only in rare cases that reinstatement is refused. For example, as here, where the relationship between the parties had broken down so badly that it would not be conducive to industrial harmony to return the workman to his place of work. In such a case, the Industrial Court may award monetary compensation. Such an award is usually in two parts. First, there is the usual award for the arrears of wages, or backwages, as it is sometimes called. It is to compensate the workman for the period that he has been unemployed because of the unjustified act of dismissal. Second, there is an award of compensation in lieu of reinstatement.

Backwages In awarding backwages, such backwages shall not exceed 24 months based on the last drawn salary of the claimant. At the time of the claimant's dismissal, his last drawn monthly salary was RM7,000.00. Based on the above, the Court hereby order as follows: 24 months x RM7,000.00 = RM168,000.00

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Compensation In Lieu of Reinstatement It is the practice of the court to grant compensation in lieu of reinstatement based on the formula of 1 month salary for every completed year of service with the company. The Claimant joined the Company on 20 May 2002 and was dismissed on 10 April 2006. Therefore the Claimant is entitled to compensation in lieu as follows: RM7,000.00 x 3 Total Final Order The court orders the Company to pay the Claimant the sum of RM189,000.00 less statutory deductions, if any, through the Claimant's solicitors, Messrs. Murugavell Arumugam & Co, within 30 days from the date of this Award. = = RM21,000.00 RM189,000.00

HANDED DOWN AND DATED THIS 4 DECEMBER 2012

(HAPIPAH BINTI MONEL) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA AT KUALA LUMPUR

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