INDUSTRIAL COURT OF MALAYSIA CASE NO.

13/4 562/2011

BETWEEN
RAZALI BIN HUSSIN

AND
THE ANDAMAN LANGKAWI AWARD NO. 116 OF 2013 BEFORE VENUE DATE OF REFERENCE DATES OF MENTION DATES OF HEARING : : : : : TUAN EDDIE YEO SOON CHYE - CHAIRMAN Industrial Court Malaysia, Kuala Lumpur 12.04.2011 15.06.2011; 15.08.2011; 03.10.2011; 07.12.2011; 06.06.2012; 11.07.2012; 25.09.2012; 01.11.2012. 18.01.2012; 19.01.2012; 26.03.2012; 19.07.2012. 27.08.2012; 25.10.2012 (Reply) 21.09.2012 Ashokumar Parthmanathen Ashok & Co, Counsel for the Claimant. Joyce Joan Fernandez of Fernandez & Associates., Counsel for the Respondent. of Messrs

DATE OF CLAIMANT'S SUBMISSIONS RECEIVED : DATE OF COMPANY'S SUBMISSIONS RECEIVED : REPRESENTATION :

Messrs

JJ

REFERENCE: This is a reference by the Honourable Minister of Human Resources under section 20(3) of the Industrial Relations Act 1967 on 12 April 2011 arising out of the dismissal of Razali Bin Hussin (hereinafter referred to as the Claimant) on 10 April 2009 by The Andaman Langkawi (hereinafter referred to as the Respondent).

AWARD

1.

This is a reference by the Honourable Minister of Human Resources

under section 20(3) of the Industrial Relations Act 1967 on 12 April 2011 arising out of the dismissal of Razali Bin Hussin (the Claimant) on 10 April 2009 by The Andaman Langkawi (the Respondent).

2.

The hearing of this case commenced on 18 January 2012 and the The Claimant's solicitors,

hearing was duly concluded on 19 July 2012.

Messrs Ashok & Co filed the Written Submissions on 27 August 2012 and Submissions in Reply on 25 October 2012. The Respondent's solicitors,

Messrs JJ Fernandez & Associates filed their Written Submissions on 21 September 2012.

BRIEF FACTS 3. The Claimant commenced employment as a Cost Controller in The

Andaman (the Resort) with effect from 18 October 1999 with a monthly salary of RM 2,200.00 pursuant to a letter of appointment signed by the General Manager, Leo Kuscher exhibited in CO-1 of the Statement in Reply. By letter of redesignation dated 24 September 2002 (CO-5) signed by the General Manager, Alison Fraser, the Claimant was redesignated to the position of Income Auditor with effect from 7 October 2002.

4.

By letter of redesignation dated 31 January 2007 (CO-3) signed by

the General Manager, Alison Fraser, the Claimant was redesignated to the position of Senior Accounts Executive with effect from 1 February 2007. The Claimant was thereafter transferred to the Human Resources Department as the Human Resources Executive with effect from 25 September 2008 pursuant to the letter of transfer signed by the Human Resources Manager, Manimala Kalidas exhibited in CO-2. The Claimant

reports to the Human Resources Manager and the basic function is to perform administrative work.

5.

The Respondent's Human Resources Manager, Manimala Kalidas sent

a Show Cause and Suspension letter dated 27 March 2009 (COB-1, page 42) outlining the list of misconduct against the Claimant as follows: " 1. You have sneaked into the Human Resources Manager's computer on 20 March 2009 at approximately 6.50 p.m. without her approval or knowledge. You have attempted to go into the Human Resources Manager's email on 20 March 2009 without her approval or knowledge. You have sneaked into the Human Resources Manager's personal drawer where private and confidential documents were kept on 20 March 2009. You have authorized a letter to Mohd Fauzi Awang, Security Shift Leader without the knowledge of your superior and written a false salary in the letter on 25 March 2009.

2.

3.

4.

5.

You have instructed Che Hassan, Employee Relations Executive to give a Management Apartment room for your wife, Norlin without approval from your superior.

You are hereby, required to provide a written explanation by 30 March 2009 in regards to the above allege misconduct as to why disciplinary action should not be instituted against you, Should you fail to reply within the stipulated time given, we shall deem that you don't have any explanation to offer and disciplinary action will be taken against you. Since the allegation against you is serious in nature, you are hereby suspended from employment with half pay for a period of fourteen (14) days with effect from the 27 March 2009, under section 14 (2) of the Employment Act 1955, pending further investigation. You are required to make yourself available during the suspension period to assist the Management in the investigation. 6. The Claimant sent a letter of explanation dated 28 March 2009

exhibited in COB-1, page 44 to the Respondent's General Manager, Akira Moreno. Pursuant to the letter dated 31 March 2009 (COB-1, page 73), the Respondent's Human Resources Manager, Manimala Kalidas informs the Claimant that the domestic inquiry will be held on 7 April 2009 and states as follows: We refer to the Letter of Explanation that we received on 28 March 2009 and the explanation you offered is totally unacceptable. Due to the seriousness of the misconduct, we decided to hold a domestic inquiry.
7.

The Claimant was dismissed vide letter of dismissal Re: Verdict

Domestic Inquiry of 7 April 2009 dated 10 April 2009 exhibited in COB-1, page 76 signed by Akira Moreno, General Manager. The relevant extract of the letter of dismissal is reproduced as follows: 4

 Further to the Domestic Inquiry of the 7th April 2009 at the Briefing

Room on the the specific charges against you as stated in the Charge Sheet and Notice of Domestic Inquiry dated 31st March 2009. I have carefully gone through the records and documented evidence of the above Domestic Inquiry and I concur with the findings of the Domestic Inquiry Panels that the charges against you have been proven. The charges leveled against you at the inquiry being grave and serious, and in view of the gross misconduct committed by you, the Management has decided to DISMISS you of your contract of service with effect from 10th April 2009. 8. Pursuant to paragraph 11 of the Statement of Case, the Claimant

contends that he had given reasonable explanation for the allegations and the Company did not accept the explanation. The Claimant further states that he was unfairly dismissed. The Claimant also contended that the

domestic inquiry was conducted unfairly and in a bias manner. The Respondent states in paragraph 38 of the Statement in Reply contended that the domestic inquiry was conducted fairly and the Respondent further contended in paragraph 42 that the Claimant's services was terminated with just cause or excuse.

THE LAW 9. The Court of Appeal in the case of Telekom Malaysia Kawasan

Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 at pages 322 and 323 decided as follows:

From all these, it is quite clear that the Industrial Court should not be burdened with the technicalities regarding the different standards of proof, the rules of evidence and procedure that are applied in a court of law. The Industrial Court should be allowed to conduct its proceedings as a court of arbitration, and be more flexible in arriving at its decision, so long as it gives special regard to substantial merits and decide a case in accordance with equity and good conscience. We do not think that representations by the minister to the Industrial Court should be classified as civil or criminal and apply different burden of proof in respect of each classification as is done in the court of law when finally the awards that follow are the same: dismissal or whatever.

10.

The function of the Industrial Court is succinctly explained in the case

of Goon Kwee Phoy v. J. & P. Coats (M) Bhd. [1981] 1 LNS 30; [1981] 1 MLJ 129 at page 136 where the Federal Court decided inter alia as follows: Where representations are made and are referred to the Industrial Court for enquiry, it is the duty to that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it. [Emphasis added]

11.

In the case of Wong Yuen Hock v. Hong Leong Assurance Sdn

Bhd & Another Appeal [1995] 3 CLJ 344 at page 352 the Federal Court decided as follows: On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under s. 20 of the Act (unless otherwise lawfully provided by the terms of the reference) is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal.

12.

The Federal Court in the case of Milan Auto Sdn. Bhd. v. Wong

Seh Yen [1995] 4 CLJ 449 at pages 454 & 455 decided as follows: As pointed out by this Court recently in Hong Leong Assurance Sdn. Bhd. v. Wong Yuen Hock [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s. 20 is two fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal.

THE RESPONDENT'S CASE AND SUBMISSIONS 13. The Respondent called the following witnesses to testify in this case: COW-1: Ruziah Hanim Binti Osman, 49 years old Human Resources Officer; COW-2: Hafiz Bin Hashim, 39 years old former Financial Controller;

COW-3:

Rosmi Bin Md. Dali, 41 years old Human Resources Officer; and

COW-4:

Manimula Davi a/p M. Kalidas, 44 years old Human Resources Manager.

14.

COW-1 was a colleague of the Claimant in the Human Resource The relevant evidence-in-chief of COW-1 regarding the

Department.

charges against the Claimant who testified in Court on 18 January 2012 in cross-examination that COW-1 has no knowledge of the incident at 6.20 p.m. involving the Claimant and that COW-1 has no knowledge about the Claimant using the computer of COW-4. The questions asked by the Claimant's counsel are as follows: S30: Mengenai insiden Yang Menuntut yang berlaku pada 6.20 petang, Puan tidak tahu? J: Ya, saya tiada pengetahuan peribadi.

S33: Sama ada Yang Menuntut boleh menggunakan komputer Puan Manimula, itu adalah di luar pengetahuan Puan? J: Ya.

15.

COW-2 who was the former Financial Controller with the Company

from June 2002 until June 2006. COW-2 is currently the Director of Finance

of The Danna, Langkawi.

The involvement of COW-2 in this case as

recorded in cross-examination are as follows: Q2: When the Claimant was dismissed in 2009, you were never involved in the case and never called as a witness in the Domestic Inquiry? A: Q3: Yes. You have no personal knowledge about the allegations against the Claimant? A: Yes.

16.

COW-3 has no personal knowledge of the allegations made against

the Claimant. COW-3 in cross-examination testified that she was not at the place of incident involving the Claimant on 20 March 2009 at 6.20 p.m. S13: Dalam insiden 20 Mac 2009, jam 6.20 petang yang melibatkan Yang Menuntut, adakah Pn. Rosmi ada di sana? J: Tidak.

17.

COW-4 who was the Human Resources Manager of the Company

testified on 18 January and 26 March 2012 as reflected in the evidence in chief COWS-4 (102 questions) and supplementary witness statement in COWS-4(a) comprising of 95 questions. COW-4 also gave her

supplementary evidence in Court and stated categorically that the Claimant conducted a Domestic Inquiry before the Claimant was terminated of his services and the Domestic Inquiry minutes are reflected in COB-1, pages 47 59. COW-4 confirms that in the hierarchy of the Human

Resources Department, below COW-4 is the Human Resource Executive. Regarding the domestic inquiry against the Claimant, COW-4 states as follows in the Supplementary Questions: Q16: Before the Claimant was terminated of his services, did the Company conduct a Domestic Inquiry? A: Yes, we did. The Company called Ruziah Hanim, Rosmi,

Hassan and myself. Q17: Is the Notes of Domestic Inquiry in the Company's Bundle of Documents? A: The minutes of Domestic Inquiry are found in COB-1, pages 47 - 59.

18.

The

Respondent's

counsel,

Joyce

Fernandez

in

the

Written

Submissions submits that the Respondent had successfully proven on a balance of probability that the Claimant was dismissed with just cause and excuse and submits that the Claimant's case be dismissed.

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THE CLAIMANT'S CASE AND SUBMISSIONS 19. The Claimant, CLW-1, 50 years old testified in Bahasa Malaysia on 19

July 2012 in his evidence-in-chief produced and marked as CLWS-1(a) and CLWS-1(b). The Claimant is currently holding the position of a Cost

Controller in Holiday Inn Gleanmarie. The Claimant referred to the Show Cause Letter and Suspension dated 27 March 2009 (COB-1, page 42) and in Question 9 of CLWS-1(a) he disagreed with the charges preferred against him. The Claimant denied the cross- examination questions fielded by the Respondent's counsel in respect of the charges outlined in the Show Cause Letter. As regards the domestic inquiry, the Claimant stated categorically in Question 16 of CLWS-1(a) that the domestic inquiry was not conducted fairly and was bias.

20.

The Claimant's counsel, Ashokumar Parthmanathen in the Written

Submissions submits there was lack of clear and convincing evidence for the Company to come to the conclusion that the Claimant was guilty of the charges. In the Claimant's submissions, the Court was urged to invoke

section 114(g) Evidence Act 1950 against the Company for failure to call Fauzi Awang, Che Hassan and the panel of Domestic Inquiry. As regards the Domestic Inquiry, it was the Claimant's submissions that the Domestic Inquiry was conducted in a bias manner. However, the Claimant's counsel in

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his Reply Submissions conceded that the hearing at the Industrial Court is a fresh hearing.

DOMESTIC INQUIRY 21. Where a domestic inquiry had been held, as in the instant case, the

Industrial Court's jurisdiction is limited to considering whether there is a

prima facie case against the Claimant. This approach was advocated in the
case of Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77, and in the Court of Appeal case of Jye Tai Precision Industrial (M) Sdn Bhd v. Victoria a/p Arulsamy [2008] 1 CLJ 760.

22.

The duty of the Court is to first consider whether or not the domestic

inquiry was valid and whether the inquiry notes were accurate. Further, if the rules of natural justice had been duly observed and the inquiry finding was based on the evidence presented to it, this Court ought then to consider such finding in order to conclude whether the Claimant had been dismissed with or without just cause or excuse (see Metroplex Administration Sdn Bhd v. Mohamed Elias [1998] 5 CLJ 467).

12

EVALUATION AND FINDINGS 23. The Claimant was given due Notice of the Domestic Inquiry

dated 31 March 2009 as reflected in COB-1, pages 73 & 74 stating that the Domestic Inquiry will be held on 7 April 2009. The Minutes of the Domestic Inquiry exhibited in COB-1, pages 47 59. What is paramount now for the Court's consideration is whether there were sufficient evidence before the Panel of Inquiry to justify their finding of guilt as charged against the Claimant in respect of the five charges proffered against the Claimant.

24.

It is pertinent to note that albeit there being a Domestic Inquiry by

the Respondent to investigate the charges against the Claimant, this Court rehears the matter afresh. This Court has to make a finding of fact

premised on the evidence available as to whether the charges of misconduct had been established against the Claimant by the Respondent on the balance of probabilities.

25.

In the case Hong Leong Equipment Sdn. Bhd. v. Liew Fook

Chuan & Other Appeals (1997) 1 CLJ 665 at page 716 the Court of Appeal decided as follows: The fact that an employer has conducted a domestic inquiry against his workman is, in my judgement, an entirely irrelevant consideration to the issue whether the latter had been dismissed without just cause or excuse. The findings of a domestic inquiry are not binding

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upon the Industrial Court which rehears the matter afresh. However, it may take into account the fact that a domestic inquiry had been held when determining whether the particular workman was justly dismissed.

26.

The author, C.P. Mills in Industrial Disputes Law in Malaysia, 2nd

Edition 1984 at page 78, states the following: Unless there is clear evidence to support the charge of misconduct, the employer's decision against the workman will not be upheld by the Court. Even where there were reasonable grounds before the employer for concluding that the workman was guilty of the misconduct alleged against him, but in the proceedings before the Court the evidence does not permit any firm conclusion that the workman did commit the acts in question, the dismissal will not be sustained.

27.

The

Claimant's

services

with

the

Respondent

Company

was

terminated with effect from 10 April 2009 vide letter of dismissal dated 7 April 2009. The question for the Court's determination now is It was

whether the Claimant was dismissed with just cause or excuse.

explicitly clear from the dismissal letter whereby a detailed scrutiny of the dismissal letter indicated that the Respondent's General Manager states the the charges leveled against the Claimant at the inquiry being grave and serious and in view of the gross misconduct committed by the Claimant, the Management has decided to dismiss the Claimant of his contract of service with effect from 10 April 2009. The charges against the Claimant were reflected in the Show Cause and Suspension letter dated 27 March 2009 to

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the Claimant. Now, the Court's duty is to enquire whether the excuse or reason advanced by the Respondent Company has been made out. If the Court makes a finding of fact that the charges against the Claimant has not been proven, then the inevitable conclusion must be that the dismissal was without just cause or excuse.

28.

The first two charges shall be dealt with collectively as the charges To

are interconnected in respect of the date and place of incident.

regurgitate, the first two charges preferred against the Claimant are as follows: Charge 1: You have sneaked into the Human Resources Manager's

computer on 20 March 2009 at approximately 6.50pm without her approval or knowledge. Charge 2: You have attempted to go into the Human Resources

Manager's email on 20 March 2009 without her approval or knowledge.

29.

The evidence in chief of COW-4 as reflected in COWS-4 in regards to

Charges 1 and 2 are as follows. COW-4 states categorically in Questions 42 and 55 that she did not authorise the Claimant to use her computer on 20 March 2009. COW-4 states further that she did not know that the Claimant came back to the office after she left the office on 20 March 2009. According to COW-4, the room and office was locked before she left for the

15

day on 20 March 2009. It was also clear from Question 43 that COW-4 had never given the Claimant any authority to use her computer. COW-4 in her further evidence states as follows in relations to Charges 1, 2 and 3:

Q49: A:

How did you know someone gained access to your email? When I came to work and I tried to open my drawer, it was locked. I normally do not lock my drawer. I suspected

someone came in to my room without my consent and called the IT personnel to check if anyone attempted to gain access to my e-mail.

30.

According to COW-4, the Claimant admitted that he gained access to

COW-4's room and that he had done the same to take one of the files from the cabinet and the Claimant also admitted gaining access to COW-4's computer to view an e-mail that was in reference to his wife and the Purchasing Officer. The Claimant's very own evidence clearly demonstrated that he sneaked into COW-4's room and had attempted to go into the Human Resources Manager's email on 20 March 2009 without her approval or knowledge. The evidence of the Claimant in CLWS-1(b) are as follows: S36: Ada Encik Razali pada 20 March 2009, 6.20 petang masuk ke bilik Mala dan guna komputer?

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J:

Ya, ada.

Saya masuk untuk menggunakan komputer beliau

tetapi apabila saya ON komputernya memerlukan kata laluan di mana selama ini tidak pernah ada kata laluan. Oleh itu saya tidak dapat menyiapkan kerja lalu saya OFF kembali komputer dan terus keluar dari biliknya.

31.

The Court is inclined to agree with the Respondent's submissions in

page 15 to state there is evidence before this Court that the Claimant trespassed into COW-4's room and gained access to her computer without her consent. Therefore the Court finds Charges 1 and 2 against the

Claimant proven.

Charge 3: 32. The charge reads as follows: You have sneaked into the Human

Resources Manager's personal drawer where private and confidential documents were kept on 20 March 2009. This charge shall not be dealt with pursuant to the findings of the Panel of Inquiry in the Report Findings of the Domestic Inquiry at COB-1 page 69 that this charge lacks proof.

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Charge 4: 33. The charge reads as follows: You have authorized a letter to Md.

Fauzi Awang, Security Shift Leader without the knowledge of your superior and written a false salary in the letter on 25 March 2009. COW-4 in her evidence in chief stated that the Claimant was never given the authority to issue any letters of confirmation regarding employment, salary and years of work of Mohd. Fauzi Awang Said. COW-4 states that she did not authorise the Claimant to issue the letter. (see minutes of Domestic Inquiry in COB-1, page 54). According to COW-4, only Ruziah Hanim, the Human Resources Officer and herself are authorised to issue letters of confirmation. In the Domestic Inquiry (COB-1, page 55) the Claimant admitted issuing the said letter when questioned by Gindo Sufri Sianturi, Chairman of the Panel of Inquiry. In the Report Findings of the Domestic Inquiry as reflected

in COB-1 page 70, the Panel found the Claimant of Charge 4 pursuant to the findings inter alia that the Claimant admitted that he has never been authorised to issue such letter and that the Claimant admitted that the letter was issued without the knowledge of his superior, the Human Resource Manager until later when it was discovered by COW-4. Therefore the Court finds the charge against the Claimant proven.

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Charge 5: 34. The charge reads as follows: You have instructed Che Hassan,

Employee Relations Executive to give a Management Apartment room for your wife, Norlin without approval from your superior. According to COW-4 in Question 82 of COWS-4, any staff bringing outsiders to stay with them are required to fill the form in COB-1, page 72 (Request to Short Stay for NonResident /Visitors) to be approved by either the Human Resources Manager or the General Manager. COW-4 explains in COWS-4 on the procedure to be followed: Q93: Can the Claimant approach Che Hassan, the Employee Relations Executive without seeking approval? A: No. He will have to fill up the form and get my approval first and only then can he speak to Che Hassan to use the room.

The Respondent's submissions at page 29 referred to the Panel of Inquiry's findings at page 70 of COB-1 whereby the Panel found the Claimant guilty based on the findings inter alia that the Claimant mentioned that he has no knowledge that he needs to get approval from the Human Resources Manager for the use of the Management Apartment and that the Claimant had misused his role to accommodate his wife in the apartment by asking Che Hassan to provide the apartment without the approval and knowledge of the Human Resources Manager. It was crystal clear from the Statement

19

Report of Che Hassan Mohd. Rashid recorded on 4 April 2009 (COB-1, page 67) that he did not know if the Human Resources Manager has given authorisation to the Claimant or any other staff to issue the letter with their signature. During the domestic inquiry, the Claimant admitted at page 59 of COB-1 that he did not obtain approval from COW-1 for the management quarters. In the circumstances, Charge 5 against the Claimant is proven.

35.

Based on the totality of the evidence of the Respondent's key witness

COW-4 and the Claimant, the Court finds the Claimant guilty of Charges 1, 2, 4 and 5. The Court dismissed the Claimant's counsel application for the Court to invoke section 114(g) Evidence Act 1950 against the Company for failure to call Fauzi Awang, Che Hassan and the panel of Domestic Inquiry.

Whether the Claimant's misconduct warrants a dismissal? 36. By paragraph 2 of the Statement of Case, the Claimant contended

that the dispute is over the dismissal of the Claimant by the Company without just cause or excuse. Pursuant to paragraph 12 of the Statement of Case, the Claimant prays for an order that he be reinstated to his former position in the Company without loss of seniority or any benefits, monetary or otherwise.

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37.

The learned Chairman, Y.A. Franklin Goonting in the case of

Hasbullah Abd. Jalil v. KUB Power Sdn. Bhd. [2011] 1 ILR 629 at page 641 decided inter alia as follows: The remaining issue is whether these proven acts of misconduct are just cause and excuse for the claimant's dismissal. His counsel submits that the respondent should have considered his past good service. The court, while not denying the past good service is a mitigating factor to be taken into account, must ask whether in making the decision to dismiss the claimant, the respondent had acted reasonably. In the light of the totality of the evidence before it and with due regard to equity and good conscience the court is of the view that the decision to terminate the claimant's employment was reasonable.

38.

The Court asks itself whether in this case it was reasonable for the

Respondent to dismiss the Claimant. The answer to this question must be in the affirmative as the Claimant had committed the acts of misconduct in regards to Charges 1, 2, 4 and 5 which were clearly inconsistent with the fiduciary relationship between the employer and an employee. The

Claimant's conduct of sneaking into the Human Resources Manager's computer on 20 March 2009 at approximately 6.50pm without her approval or knowledge justifies the managerial decision to dismiss the Claimant as this involves the Claimant's honesty and integrity whilst in the employment of the Respondent Company. The Court is of the view that honesty and integrity are amongst the key characteristics that any employee ought to

21

possess, especially in this case where the Claimant held the position of Human Resources Executive.

CONCLUSION 39. Based on the totality of evidence, written submissions of both parties

and bearing in mind section 30(5) of the Industrial Relations Act 1967 to act according to equity and good conscience and the substantial merits of this case, it is the Courts finding that the Claimants dismissal was with just cause or excuse. Accordingly, the Claimants claim is hereby dismissed.

HANDED DOWN AND DATED THIS 14TH JANUARY 2013.

( EDDIE YEO SOON CHYE ) CHAIRMAN INDUSTRIAL COURT MALAYSIA KUALA LUMPUR

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