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8/4-560/12

INDUSTRIAL COURT MALAYSIA CASE NO. 8/4-560/12 BETWEEN ALBERT KANG SOON KIT .......................................... CLAIMANT AND AFIL ADJUSTERS & INVESTIGATORS SDN. BHD. .............. COMPANY AWARD NO: 191 OF 2013 CORAM VENUE : : Mr. Gabriel Gumis, Chairman Mahkamah Perusahaan Malaysia, Cawangan Sarawak, Kuching. 28.01.2010 12.02.2010 24.02.2012 25.06.2012 31.07.2012 30.08.2012 21.01.2013 01.10.2012 26.11.2012

DATE OF DISMISSAL : DATE OF FILING :

DATE OF REFERENCE: DATES OF MENTION :

DATE OF HEARING REPRESENTATION For Claimant:

Mr. Francis Wee of Messrs. Wee and Partners Advocates & Solicitors Claimant also present.

For Company:

Mr. Ivan Detta of Messrs. Detta Samen & Co., Advocates & Solicitors
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AWARD
The Reference This is a Reference dated 24th February, 2012 from the Honourable Minister pursuant to Section 20(3) of the Industrial Relations Act, 1967. By this Reference this Court is entasked with coming up with an award in the dispute between Albert Kang Soon Kit (hereinafter referred to as "the Claimant") and his employer Afil Adjusters & Investigators Sdn. Bhd. (hereinafter referred to as "the Company"). The dispute came about

following the termination of the Claimant's employment with the Company on 28th January, 2010.

Background of case Pursuant to the Minister's Reference, this case came up for mention in this Court on 5 occasions since 25 th June, 2012. The parties'

representatives had indicated that there were efforts to reach amicable settlement, but towards the end, the efforts apparently failed. The case was finally set down for hearing today 21st January, 2013.

When the case came up for trial today, Mr. Ivan Detta, learned counsel for the Company informed the Court that its only witness, the director Haji Ahmad Bin Haji Kechut, could not come to Court because of "family matters". It was not explained what the nature of the "family The learned Mr. Francis Wee,

matters" was, or how serious it was.


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counsel for the Claimant, informed the Court that the Claimant had taken 3 days' off from his job in preparation for this trial and, therefore, objected to an adjournment.

This case has come up before this Court for the sixth time. In the absence of any explanation as to what the nature of the "family matters" was, this Court has no way to assess whether the reason for the witness not showing up was serious or otherwise. The Court was only informed of this application for adjournment at the very last minute. There have been 5 previous mentions of this case. The Court, therefore, ruled that there are no satisfactory grounds to postpone the trial and ordered that the trial should proceed. As the Company has not been able to start first, the Court directed the Claimant instead to start his case first.

The Pleadings The pleadings of the parties are now before the Court.

It is the Claimant's case that the Company had dismissed him from his employment as the Branch Manager of the Company in Kuching without just cause or excuse. The Company, on the other hand,

contended in its Statement-in-Reply that the dismissal was lawful and justified.

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The evidence and assessment It is the Company's case that its dismissal of the Claimant was lawful and justified because the Claimant had committed acts of misconduct as the Kuching Branch Manager. The details of the

misconduct are stated in the Company's termination letter from the Company's director dated 28th January, 2010, produced by the Claimant in Court as Ex.CL1. There are 2 grounds given for the dismissal:

(a) (b)

failure to settle bills (office rental, utilities, stationeries); and being employed by another employer while still in the employment of the Company.

The Claimant contends that the abovesaid allegations are baseless and without merit.

In a Section 20 reference, there are two issues that are to be determined : the fact that the Claimant was dismissed, and the fact that the dismissal was without just cause or excuse. The dismissal of the Claimant is not in dispute in this case. Hence, the only issue left to be determined by the Court is whether the dismissal was without just cause or excuse. (See Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45, SC; Milan Auto Sdn. Bhd. v. Wong Seh Yen

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[1995] 4 CLJ 449, FC; Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. [1995] 2 CLJ 753).

The Company in its letter of termination had given the two reasons for the dismissal. It is now the duty of the Court to enquire whether these reasons have been proven or not. In Goon Kwee Phoy v. J&P Coats (M) Sdn. Bhd. [1981] 2 MLJ 129 (FC), Raja Azlan Shah, CJ (M) as His Royal Highness then was, held as follows:
"... Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the 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 reason has or has not been made out. If it finds that it has not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the Court is the reason advanced by the employer, and that Court or the High Court cannot go into another reason not relied on by the employer, or find one for him."

Hence, in this case, as the employer has claimed that the dismissal had been for just cause or excuse, the employer must adduce evidence to prove this.

Further, it is trite that the burden to show that the dismissal had been fair lies on the employer, a burden that it has to discharge beyond a

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balance of probabilities.

(Telekom Malaysia Kawasan Utara v.

Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 CLJ 314, CA).

As indicated above, the Company did not adduce any evidence at all during this trial. The Company's only witness, for the reasons indicated above, did not show up in Court. As the burden is on the Company to prove that the Claimant's dismissal was fair and just, and as no evidence at all was adduced by the Company, it must follow that the Company has not been able to prove that the dismissal was indeed fair and just. In the words of Raja Azlan Shah, CJ (M) supra:

"... If (the Court) finds that (the reasons for dismissal) have not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse".

In this case the Claimant gave evidence on his own behalf. His testimony was that the reason for the delay of the payment of the bills was because the Company's headquarters in Kuala Lumpur had routinely given insufficient remittance to the Company's Kuching Branch so much so that routinely, the Claimant's own salary was either delayed or paid only in part after he had made deductions to pay the rest of the staff in the Branch. The Claimant testified that he did regularly inform the headquarters about the shortage and that the bills were routinely sent to them, but according to the Claimant, these "fell on deaf ears".
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As for the other reason given for the Claimant's dismissal i.e. that the Claimant, while still in the Company's employment, was employed by another Company named General Adjusterment Enterprise Sdn. Bhd. the Claimant completely denied in Court that he did so. He testified that the said Enterprise's Branch Manager was his friend, but he was never employed by the Enterprise in any capacity at all.

I find that the testimony of the Claimant is not inherently incredible and there is no cogent reason not to accept it. Company's learned

counsel's cross examination did not harm the testimony in any way. As against such testimony, the Company on whom the burden lies, and at the risk of repeating myself has zero evidence to offer.

In the circumstances, the inevitable finding must be that the Company has not been able to prove the two reasons why it dismissed the Claimant, either on a balance of probabilities, or on any balance at all.

The Company had also contended in its Statement-in-Reply that the Claimant had been taken in as an employee of the Company by someone who was not authorised to employ him. Again, no evidence whatsoever was adduced to try and prove this allegation. This, by itself, should be sufficient to dispose off this contention.

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I suppose the contention must have come about following the employment letter dated 24th March, 1998 (Ex.CL1), which was signed by one Stephen T.W. Lee, Regional Manager of the Company, in which the writer's address was in Sabah, not Kuala Lumpur where the Company's headquarters was. I do not see how, there being no evidence led at all, this issue could make the Claimant's employment improper. Because for the next 11 years the Company was to pay the Claimant his monthly salary and the Claimant did his job for the Company, and there is no evidence that, hitherto, there was any complaint by the Company that the Claimant had been improperly employed throughout all these years. This issue does not even have a birthing chance at all.

Finding In the circumstances, for the reasons laid out herein, I find that the Company has not been able to prove that it had dismissed the Claimant with just cause or excuse. The Claimant's claim is accordingly allowed in part.

The Remedy: The Claimant is now employed as a Regional Manager in another adjuster company, a post he landed 2 months after his dismissal in 2010. It would not now be realistic to order him to be reinstated into his former

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position in the Company. The Court believes that the better recourse is to award him compensation in lieu of reinstatement.

The Claimant had served the Company as its Branch Manager since 1st April, 1998. He had, therefore, served the Company for 11 years and 9 months when he was dismissed on 28 th January, 2010. His last drawn monthly salary was RM6,200.00. He was unemployed for 2

months following his dismissal. Thereafter he was taken in as Branch Manager and subsequently promoted to Regional Manager in another adjuster company.

His salary in the current commpany is RM3,500.00, in addition to which he enjoys a 10% sales commission. His average take-home salary is between RM6,000.00 to RM10,000.00 per month.

There is no evidence of contributory misconduct on the Claimant's part.

Having seen how unfairly he was dismissed by the Company, I believe the Claimant should be paid the full 24 months backwages allowed by the law. Hence, for backwages he shall be paid 24 months x RM6,200.00 = RM148,800.00.

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The Claimant is also entitled to compensation in lieu of reinstatement, and the formula and prevailing practice is that the Claimant may be paid one month's salary for each completed year of service. (Industrial Court Practice No. 2 of 1981). In this case the Claimant had served 11 years and 9 months. He should, therefore, be entitled to 11 months x RM6,200.00 = RM68,200.00.

In total, the Claimant is awarded the said RM148,800.00 + RM68,200.00 = RM217,000.00.

The Company is hereby ordered to pay the said sum of Ringgit Malaysia Two Hundred and Seventeen Thousand (RM217,000.00) to the Claimant through the Claimant's solicitors within a period of 30 days from today.

DATED THIS 22nd DAY OF JANUARY 2013.

Sgd. [GABRIEL GUMIS] CHAIRMAN INDUSTRIAL COURT MALAYSIA SARAWAK


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