INDUSTRIAL COURT MALAYSIA

CASE NO. 17/4-544/13
BETWEEN
JAMALUDDIN BIN SAYUTI
AND
PRESTON SHIPYARD SDN. BHD.
AWARD NO: 460/2016

BEFORE

: Y.A. TUAN DUNCAN SIKODOL
Chairman (sitting alone)

VENUE

: Mahkamah Perusahaan Malaysia, Kota Kinabalu, Sabah

DATE OF REFERENCE : 26.02.2013
DATES OF MENTION

: 09.05.2013, 15.01.2014, 24.02.2014 & 02.06.2014

DATES OF HEARING

: 27.09.2013, 18.08.2014, 19.08.2014, 20.08.2014,
02.10.2014, 18.112014, 17.08.2015, 18.08.2015
& 08.10.2015

DATE OF CASE MANAGEMENT: 15.07.2013
REPRESENTATION

: For the Claimant – Pontius Aludah of Messrs Aludah & Co.
For the Respondent – Bonnie Tyler Suru of Messrs Bonnie
T. Suru

1

REFERENCE:

This is a reference by the Honourable Minister of Human Resources under Section
20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of
JAMALUDDIN BIN SAYUTI (hereinafter referred to as “the Claimant”) by PRESTON
SHIPYARD SDN. BHD. (herein referred to as “the Company”) on the 25th June 2012.

2

The Claimant now contends that his dismissal by the Company was without just cause or excuse. At the point of dismissal. the function of the Industrial Court in dismissal cases on a reference under s. 20 is twofold: first. “As pointed out by this Court recently in Wong Yuen Hock v Hong Leong Assurance (1995) 3 CLJ 344. His employment with the Company was terminated for allegedly failing to record his attendance by punching in and out for duty and also for poor performance. 20 was stated by His Lordship Mohd Azmi FCJ as follows. to determine whether the misconduct complained by the employer has been established and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal”. the Claimant was assigned to cover the said position on an acting basis. 3 . the duty of the Industrial Court in dismissal cases on a reference under s.00 based on his salary slip at CLBD at page 5 (a). which position he held until he was dismissed on the 25th June 2012 via letter of termination dated the 26th May 2012. The Law In the often cited case of MILAN AUTO SDN BHD v WONG SHE YEN (1995) 4 CLJ 449. When the former Chief Operating Officer (COO) of the Company resigned sometimes in the month of 2010.AWARD Brief Background Facts The Claimant commenced employment with the Company on the 1st December 2008 as Deputy Chief Operating Officer (DCOO). He therefore seeks to be reinstated to his former position or be given compensation in lieu of reinstatement. he was earning a basic salary of RM7000.

and (ii) (No Smoking) PSSB/HSE/2011-(01) dated 27th June 2011. Technical & Operation Executive Director and his witness statement was marked as COWS-4. HR Executive and his witness statement was marked as COWS – 3. Company's Supplementary Bundle of Documents No. Finance Director and her witness statement was marked as COWS-2. The Company needs only to prove misconduct justifying the dismissal or termination on the balance of probabilities. COW3 – Marion Anthony. Company's Memos : (Kegagalan punch card pekerja) dated 12 th September 2008. Witnesses The following witnesses testified at the hearing of this case: COW1 – Zailani Bin Mansor.2-COBD-2.It is trite law that the Company bears the burden to prove that the Claimant had committed the alleged misconduct and the conduct warrants the Claimant’s dismissal. CLW1 . COW2 – Siti Rohaya Binti Matassan. The following bundle of documents were also used in court and marked as follows.1 as COBD-1. Company's cash payment list & payment vouchers 18 pages) as COBD-4. COW4 – Yunus Bin Sari. Managing Director of the Company and his witness statement was marked as COWS-1. as COBD-5. Company's Supplementary Bundle of Document No. 4 .Jamaluddin Bin Sayuti and his witness statement was marked as CLWS-1 .3-COBD-3. Company's Bundle of Documents No. See Telekom Malaysia Kawasan Utara v Krishnan Kutty a/l Sanguni & Anor (2002) 3 CLJ 314 (CA). See Ireka Construction Bhd v Chantiravanathan a/l Subramaniam James (1995) 2 ILR 11 (Award No. 245 of 1995).

but the employer himself. That. Issues for determination In this case. The findings of a DI are not binding upon the Industrial Court which rehears the matter afresh. in my judgment. Claimant's salary slips dated 28th April 2010 (as COO) and 27th January 2001 (as DCOO) as COBD-7. with all respect. even if there was no DI conducted as in this case. However. in this case. Based on Colgate Palmolive (M) Sdn Bhd v Yap Kok Foong & Another Appeal (2001) 3 CLJ 9. it now remains to be considered whether the dismissal was with just cause or excuse. Be as it may. an entirely irrelevant consideration to the issue whether the latter had been dismissed with just cause or excuse. is not the purpose for which parliament went through the elaborate process of Legislating the Act and setting up special machinery for the vindication of the right of Workmen”. it is an undisputed fact from the evidence that the Claimant was dismissed by the Company on the 25th June 2012 vide letter dated the 26th May 2012. the Company had not conducted a DI prior to the Claimant’s dismissal. and Company's letter. Were it otherwise.JPPS Borang Penghantaran Dokumen (Lam 1 pek. 5 . the guilt or innocence of a workman upon a charge of misconduct would be decided not by the Industrial Court. Am 1/93)and emails as COBD-6. Hence. PSSB/TLDM/2012-(70) dated 10th May 2012 as COBD-8. it may take into account the fact that a DI had been held when determining whether the particular workman was justly dismissed. However. the fact that there was no DI conducted does not necessarily make the dismissal invalid as this court will bear in mind the Court of Appeal’s decision in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals (1997) 1 CLJ 665 where the Court held that: “The fact that an employer has conducted a DI against his workmen is. the dismissal is not invalid per se since this Court will still proceed to hear the evidence of all the witnesses for both sides in determining whether the Claimant’s dismissal was with just cause or excuse.

as stated in the letter Pemakluman Mengenai Prestasi dan Halatuju Kerjaya di PSSB at page 16 of COBD-1. Failure to punch out There is ample evidence before this Court to prove that the Claimant had failed to punch out his punch card from the testimonies of COW1. due to the nature of his work.Whether the dismissal of the Claimant was with just cause or excuse? Company's case The Company contends that the claimant's dismissal was with just cause or excuse based on the following grounds: (a) Misconduct as stated in the Surat Teguran Pertama. As such. he said it was quiet inconvenient for him to go back to the main office merely to punch out his punch card after work at the operations site late in the night. according to CLW1.15 and 22 of COBD-1 and. His job according to CLW1 required him to perform duties and responsibilities by running from one division to another everyday around the clock including during weekends and holidays. Kedua dan Ketiga at pages. In respect of the 1st complaint. (b) Poor performance. However. the management had verbally given him exemption from punching in and punching out his punch card. 14. he had a series of 6 . the Company alleged that the Claimant had failed to punch out his punch card after office hours on various occasions and also smoked in front of the HR during discussion and at some restricted Company's premises. The question then for the Court to decide therefore is whether there was such permission given to the Claimant. 2. It is the evidence of CLW1 that before he joined the Company. 3 and 4 and also from exhibits at pages 24-37 of COBD 1.

11 at page 9.. 3. saya menerangkan keadaan dan meminta mereka bersabar kerana Preston menghadapi krisis kewangan. Statement given by the former COO in para 5.3 at page 8 of COBD1. The Claimant testified that during the discussion. In October 2008. The Company was sued by PSMB through summons No. LBN 72-110 of 2011 dated 25th July 2011 at page 64-76 COBD1. the subject of punch card was discussed as there was in force a memorandum about punch card issued by COW2 dated the 12th September 2008. 2.. CLW1 said that COW1 came over to Kuantan to persuade him to join his Company as it was facing a lot of financial problem and needed the help of an experienced hand.. being in default of payment for the levies since June 2008.. he requested that he be exempted from punching out his punch card due to the nature of his work. COW1 testified that the management had never given CLW1 exemption from punching out his punch card and that his failure to do so on various occasions after office hours had violated the Company's policy which can 7 . In examination in chief however. “ sewaan ini seharusnya tamat setelah 1 tahun tetapi saya meneruskannya melebihi jangkamasa kerana keadaan income yang agak berkurangan setekat ini ”..discussions with COW1. That the Company was in bad shape prior to CLW1 joining the Company was corroborated by the following evidence viz a viz: 1.. And he said that COW1 fully understood his problem during the said meeting. CLW1 went on to testify that prior to joining the Company. COW1 also had a similar business in Labuan. Walau bagaimanapun. After much persuasion. he said he agreed to join COW1's Company. COBD1 which states that “ Syarikat pemborong Kekal telah menghantar surat notis melalui peguam mereka untuk menyaman Preston.where the former COO said as follows. he had 2 small Companies in Kuantan doing maintenance and servicing work for Government Military vessels. The statement at para 5.. During the said discussions.

Thus. COW1 however admitted in cross examination that the Claimant's scope of job involves overtime as he has to supervise his fellow workmen at the operations site until late at night and sometimes until the next morning. evidence was adduced that prior to COW4 joining the Company viz a viz. there was no such evidence of any warnings to CLW1 for his failure to do so. the inference that could be drawn here is that COW1 must have verbally agreed to CLW1's request for exemption. She also agreed with the Claimant's counsel that those employees who were entitled for overtime allowances must punch in and punch out their punch card as it would be made as reference to calculate their overtime allowance later. If it is true as claimed by COW1. She then went on to testify that those employees whose salaries are more than RM1500. CLW1 had not received any warning letters from the management for not punching out his punch card even though he did not do so on various occasions.result in dismissal. She also confirmed that the Claimant did come to work on those days where he did not punch out and continued working even after office hours despite not being paid overtime allowance. He also said that he had advised CLW1 about the need to do so but said that CLW1 carried on doing it. Since COW1 himself admitted in cross examination that CLW1's scope of job involves 8 . in his first 2 ½ years with the Company. He also further admitted that the Claimant's scope of duty includes meeting clients/customers outside the Company's premises and sometimes outside of Labuan and that when he works overtime. COW3 and COW4 that it is a violation of the Company's policy if employees failed to punch in and punch out their punch card. During the course of the trial.00 are not entitled to overtime allowances as provided under the Company's policy. the HR on the other hand testified that the instruction to punch in and punch out was not provided for in the Claimant's letter of Appointment and that the surat -surat teguran were merely reminder letters. he is not entitled to any overtime claims. But here. COW3. then CLW1's omission to punch out his punch card for the first 2 ½ years of service with the Company would have resulted in a lot of warning letters to him and possibly dismissal.

No doubt. Hence. based on the totality of the evidence adduced. it makes no sense in the view of this Court to require CLW1 to go back to the office late at night just to punch out his punch card. COW3 in her evidence testified that it is the Company's regulation that smoking is prohibited in the Company's compound except in a designated area. the Claimant did come to work and continue even to work after office hours even though he did not punch out his punch card. when asked how many times the claimant smoked in front of the HR. COW1 testified that he does not know. However. She also said 9 . as admitted by COW3. I am satisfied that the Company has not proven its case on a balance of probability that Claimant had violated the Company's policy by failing to punch out his punch card. CLW1 was not employed as an ordinary workman. COW2 and COW4 also testified that they do not have any personal knowledge of the smoking incident except based on the complaint at page 15 paragraph (b) COBD1. Both of them testified that the said allegation be best explained by COW3. After all. it was the evidence of COW1 that the complaint was based on the document at page 15 para (b) of COBD1. Similarly.overtime as he has to supervise his fellow workmen at the operations site until late at night and sometimes until the next morning and also required to meet clients outside the Company's premises and sometimes outside Labuan. However. considering the task placed upon him. every workmen is bound by the regulation of the Company.if the Company did not allow CLW1's request for exemption. the HR. In respect of the allegation of smoking. and punching of punch card being one of them. He in fact admitted that he had no personal knowledge regarding the alleged complaint nor did he do any investigation on the complaint himself. it must be borne in mind that in this case. Smoking in front of HR during discussions and at restricted areas. Common sense tells us that the duties of a COO and an ordinary workman are poles apart and not synonymous and thus it would have been illogical in this case.

he being the author of the memo reminding employees not to smoke in a prohibited area. He agreed that there is one memo issued by him where he stated clearly where the restricted area are. it is the Company's contention that the Claimant's lack of ability to manage has caused the Company to suffer huge losses. even if the claimant did smoke.that the “No Smoking” memo was issued by the Claimant and that the designated area for smoking was also determined by him. which is to make profits. There was also no evidence adduced as to whether COW3 had knowledge of where the prohibited areas are. I also find that the Company have failed to prove the allegation of smoking on a balance of probability as there was no evidence adduced as to when and in which area did the Claimant smoked neither was there evidence adduced as to when he smoked in front of the HR. Thus. CLW1 on the other hand denied that he smoked in front of the HR and also at the restricted area of the Company's premise. However. 10 . then it would not be correct to say that he smoked in a prohibited area as he would himself be aware of where the prohibited areas are. Given the evidence adduced before me. Poor performance The Claimant who held the position of Acting COO prior to the termination of his service was expected to lead the Company in terms of its operation and objectives. He went on to say that if he is the one to issue the said memo. it is possible that he smoked in an area where it is not prohibited as he himself would have know where the prohibited areas are. However. Neither did COW3 give evidence of where the prohibited areas are nor gave details of when CLW1 smoked in front of her. no evidence was adduced as to when or which part of the Company's premises did the Claimant smoked.

.. Tidak mengambil berat dan memimpin staf terhadap rupacara dan penampilan. Sering kompromi dengan staf dimana sikap ini melambatkan peningkatan kemajuan Syarikat. d. Aktiviti pembaikan kapal diserahkan kepada staf tanpa pemantauan yang kemas dan menepati JMS. Kebersihan dan kekemasan PSSB tidak Tuan perhatikan dan tingkatkan. b. Tidak menguatkuasakan amalan kejuruteraan dan HSE dalam Syarikat. 11 . the Claimant still failed to perform to the expectation of the Company.. i. seterusnya gagal memantau kontrak kerja ke tahap kualiti terbaik dan menepati JMS. malah memandang ringan kehadiran staf. Menunjukkan sikap ambil mudah dalam kebanyakkan urusan Syarikat. j. k. c. Tidak sensitive terhadap tunggakkan bayaran yang perlu dibuat oleh Syarikat yang berhutang kepada PSSB. In the said letter. COW4 stated as follows.antara perkara besar yang diperhatikan dalam tempoh 10 bulan adalah seperti berikut:a. ". Pendapatan PSSB dari perkhidmatan yang diberikan tidak menjadi keutamaan malah bahagian yang menjadi aktiviti langsung dibawah tanggungjawab Tuan sering terlepas dari membayar. g. Tidak menguasai kontrak kerja dengan pelanggan. Mengambil masa panjang dalam menyiapkan keperluan yang diarahkan. Tidak memimpin staf meningkatkan kualiti diri dan kerja dengan berkesan. e. h.The Company in its Statement in Reply stated that the claimant's performance was unsatisfactory based on a 10 month observation made by COW4 and this complaint was contained in COW4's letter to the claimant at COBD1 page 16 dated the 5 th April 2012." COW4 went on to testify that despite various warnings and opportunities given to the Claimant to improve his performance. f. malah tidak sensitive terhadap tarikh-tarikh penting setiap urusan.

among others. the management team including himself did their best to work like a shield for the Company. All these while. only started at the end of 2010. the Company could hardly get any work project. . COW4 explained that it has something to do with the the following incidents which if the Claimant had properly supervised and managed. After the privatization. business was very slow until towards the end of 2010. he testified that in 2009. The Company's The Privatization of the Kompleks Workshop Jabatan Laut Labuan. compound by Customs Department which COW4 alleged that the Claimant had failed to managed the Company's private jetty. some projects then started to come in. mounted with unpaid debts. uncompleted / overdue maintenance works and.When asked to clarify the complaints of poor performance as contained in his letter at page 16. would not have occurred. COBD1 paragraph 3(a)-(k). thus causing the fire incident. In his evidence through his witness statement CLWS-1. He went on to testify that he is a qualified engineer majoring in mechanical and marine 12 . the Company was facing big amount of warranty claims in respect of some defective works (minor and major). which COW4 said CLW1 failed to monitor. the Company was badly hit by many problems. Claimant’s contention It is the Claimant’s case that the allegation of poor performance contained in COW4's letter at COBD1 page 16 against him are without basis as they are too general and too vague. writ of summon by the Ministry of Human Resources against the Company for accrued levies payable to the Ministry. where the Company's office now. As a result the Company was compounded by the Custom's Department for infringing Customs Rules. The said incidences are the fire incident on KD Paus which the Company alleged that the Claimant did not give proper instruction to the sub contractor who did the repairing work on KD PAUS. At that time.

Sc (Mechanical Engineering) from the University of Sunderland in England. He also said that COW4 used this situation to mislead the Company's "Pengarah Urusan". He obtained his B. Being the Executive Director. He said. He also said that less that 2 weeks before his dismissal he was instructed to visit the Navy Regional HQ. but not to get physically and/ or directly involved with the ground work. He then went on to testify that as soon as COW4 joined the Company. No other explanation given and the said time never come. until En Yunus Sari. Kota Kinabalu and the 13 . These unusual new events really made him feel redundant and confused and so as the other workmen. Puan Royaha. He said COW4 told him that this new system will only be TEMPORARILY. he said he believed COW4's scope of authority/job should be confined to only giving instructions. He also told the court that through the 15 years of service with TLDM he was engaged in this nature of job and have never encountered any difficulties or problems performing his duty as the Chief Operating Officer (COO). came to join the Company on the 25th June 2011 as the company's newly created "Pengarah Eksekutif Teknikal" (TED). his whole scope of job become almost redundant because there were lots of interruptions and overlapping instructions coming from the new TED in respect of the works that he was supposed to do. He also said that he had served the Armed Force (TDM) when he was 18 years old and after that joined the Royal Malaysian Navy (TLDM). he started to restrain him from making any form of operational and admin works. He went on to testify further that after the new TED joined in. he lamented. The new system was later used by COW4 to condemn and brand him as "gagal berkomunikasi". who was formally working with TLDM. Tuan Zailani and also the "Pengarah Eksekutif". It creates many overlapping instructions within his group of workmen and also disturbances towards their scope of works. initially he will handle everything and would hand it back to him when the time is right.engineering. He therefore said that he really believed that he had done his duties and responsibilities to the confines of his job.

he said he was really busy until late in the evening entertaining some visitors from the Navy Department of Kota Kinabalu and suddenly the next day he was no more with the Company. However the sub contractor defied his order and resumed work negligently and recklessly. COW4 once mentioned that without this assistance. However. He also denied that the Summon brought by Pembangunan Sumber Manusia Bhd (PSMB) for failure by the Company to settle all the levies due to PSMB was due to his poor performance as an Acting COO as those levies were incurred during the time of the previous COO. 14 . CLW1 testified that in fact when he complained to COW1 about the conduct of some crew members of MV SWISSCO.Navy HQ. He said. He testified that the fire incident was caused by the non stop of heat transfer while removing the hull plating of the vessel. COW 1 gave immediate orders to ban MV SWISSCO crews from using the jetty. the claimant deny that it was due to the lack of supervision by him. there is a possibility that the Company would have been blacklisted. In respect of the fire incident at KD Paus. Kuala Lumpur for the purpose of getting some financial assistance. On 25th June 2013 (Monday). The claimant also denied that the compound imposed by the Customs Department against the Company for infringing Customs Rules was as a result of his poor management. He said when he came back on 23rd June 2012 (Saturday) with an approximated sum of RM11 million to service the company's debts with the bank. thus causing the fire. which instruction he immediately carried out. He went on to testify that the sub contractor who was engaged to do the work was given instruction by him to stop work until the evening break. his instruction was overruled by COW4 claiming that he is the final decision maker.

2. The Industrial Court in the case of Sime Darby v Mathi Arasu M Kalimuthu (1991) 2 ILR 836 ( Award No. He went on to say that until he was terminated. he must then be warned of his poor performance and given sufficient opportunities to improve. where there is an allegation of poor performance against an employee. the court can only find 3 instances among the allegations contained at page 16 of COBD1 where the Company specified the particulars of the allegation as a result of the claimants alleged poor performance. and who are these staffs in question that he did not supervised. The Claimant was warned about his poor performances. Since these are the only complaints 15 . Despite the warnings and opportunities given. it is a general principle of law that. the claimant failed to improve his performance to the satisfaction of the Company. Having done that. In essence. He admitted receiving the letter COBD1 at page 16 but testified that the allegation of poor performance against him is too vague and too general and cited the allegation at item (a) page 16 COBD1 as an example. CLW1 on the other hand denied that that he was ever called for any formal discussion in respect of the allegations at page 16 COBD1 a-k. the nature of the employees poor performance must be particularized and supported by concrete evidence. He questioned what the management meant by “tidak memimpin staf meningkatkan kualiti diri dan kerja dengan berkesan”. 3. 248 of 1991) held that the Company has to establish the following 3 requirements in order to justify the dismissal: 1. he still do not know why his employment was terminated. The Claimant was given sufficient opportunities to improve and. they have warned CLW1 as a friend and as his superior on many occasion to improve himself and also to discuss the allegations contained at page 16 COBD1 but to no avail. In this case.Evaluation and Findings According to COW1 and COW4.

Bukan penuntut tetapi kita pumya sub contractor. Hence. Q5(a) Boleh bagi tahu Mahkamah bagaimana sebenarnya kebakaran KD Paus itu berlaku? A. then the inevitable conclusion must be that the termination or dismissal of the Claimant by the Company was without just cause or excuse.20 (3) of the IRA 1967 and also the pronouncement by the court in Goon Kwee Phoy v J & P Coats (M) Sdn Bhd (1981) 1 LNS 30 where the Court held that the respondent cannot now give another reason to justify the termination or dismissal. Q5(c). COW2 also confirmed in her evidence in chief that the fire incident was due to the lack of supervision by the claimant. KD PAUS fire incident It is the Company's pleaded case that the the claimant had failed to give proper instruction to the sub contractor who did the repairing job on KD PAUS resulting in the fire that occurred. COW4 in his evidence testified that the cause of the fire was due to the lack of supervision by the claimant. the Court therefore would only examine to inquire if that reason or excuse has been made out by the Company. tapi tidak di pantau oleh penuntut. I shall now examine the 3 allegations contained at page 16 COBD1 and decide whether those incidents that occurred were as a result of the claimant's poor performance. Kebakaran berlaku pada tahun 2008 yang di sebabkan potong plating tanpa pemantauan. If this court finds as a fact that it has not been proved. notwithstanding whether the management have had discussion with the claimant regarding his alleged poor work performance. If it does so it will smack on an afterthought. Bila kejadian kebakaran berlaku sebenarnya? 16 .where such particulars are specified. COW2 gave the following evidence. 1. However in cross examination. This is in accord with s. Q5(b) Adakah sewaktu melakukan kerja kerja pemotongan plating dilakukan penuntut telah melakukan kebakaran tersebut? A.

Penuntut bersama yang lain sedang solat maghrib di surau preston. Q5(j). Tidak. Kamu setuju? A. Saya berada di pejabat. Ada kah kamu terlibat dalam siasatan tentang kebakaran tersebut? A. di mana ka penuntut ketika itu? A. hanya kapten Yunus sahaja Q5(g). Q5 (h). That the fire incident was as a result of the negligent act of the sub contractor was confirmed by COW4 in his report to the Panglima Sistem Armada. tapi tiada arahan untuk berhenti untuk menghormati kita punya solat. Q5(e). Q7. it was stated at page 19-32 COBD3 that the cause of the fire was due to the non stop of heat transfer while removing the hull plating of the vessel. Tiada. Adakah Kapt Yunus juga bersolat dengan Penuntut? A.A. Satu laporan telah di keluarkan oleh Preston mengenai perkara ini. Boleh kamu tunjukkan yang penuntut tiada beri arahan untuk berhenti? A. Sewaktu berlaku kebakaran. Puan. Tiada bukti dari segi dokumen tapi dia patut tahu tanggungjawabnya dan beritahu kepada sub contractor untuk berhenti kerja dahulu. Saya tidak setuju. Masa itu solat magrib. Ketika berlaku kebakaran kamu di mana? A. Adakah dalam laporan mengatakan yang penuntut tidak ada memberikan arahan untuk berhenti kerja saperti yang kamu katakan tadi? A. Setuju. saya katakan bahawa apa yang kamu katakan adalah semata mata apa yang kamu dengar dengar atau andaian andaian kamu sahaja. 17 . Q5(d). Ya. Q5(f). In the report dated the 20th December 2011prepared by CLW1 concerning the fire incident. Q5(i). betul? A. Tidak. Pengkalan TLDM Lumut dated 28th December 2011 where in the report he stated as follows. Penuntut tidak memberikan arahan untuk menghormati sembahyang maghrib.

The PSMB's Writ of Summons No. Similarly. Therefore based on the above reports and testimonies of the witnesses. Dua pekerja PSSB di minta berada di persekitaran kapal bagi menjaga sebarang kemungkinan kesan haba selepas pemotongan. Here. the evidence of COW4 blaming the claimant for the fire incident cannot be relied upon as it contradicts with the report at page 33 COBD3 dated the 28th December 2011 prepared by him. Pages 57. Tindakan sub contractor memulakan semula kerja sebelum mendapat kebenaran dan mengabaikan langkah keselamatan adalah punca kepada kejadian kebakaran” In cross examination when COW4 was asked whether an order to stop work before going for maghrib prayers was given. clearly. Sub Contractor telah di maklumkan. 63 and 80 of COBD3 shows 18 . Kerja pemotongan di maklumkan pada jam 1620H pada 19th Disember 2011. He also agreed that there was nothing in his report to say that the fire was caused as a result of the claimant's negligent failure to give proper instructions to the sub contractor. he answered in the affirmative. the evidence adduced by COW2 that the fire incident occurred as a result of the lack of supervision by the claimant cannot be relied upon by this court as even the year when she said the incident occurred is not correct.“PSSB mengesahkan hanya bahagian hadapan kapal sedia untuk pemotongan. as pointed out by the learned counsel for the claimant. I agree with the Claimant's counsel that there is no evidence adduced by the witnesses to prove that the fire was due to the lack of supervision by the Claimant. However.30 H. 61. Arahan berhenti kerja di berikan untuk persiapan makan malam dan sembahyang maghrib jam 17. 2. LBN 72-110 of 2011 dated 25th July 2011 The Company had at pages 55-98 of COBD 3 produced voluminous correspondences and letters of demand as evidence in respect of the accrued levies payable to Pembangunan Sumber Manusia Bhd (PSMB) by the Company which she alleged was as a result of the claimant's poor monitoring and supervision.

it was the claimant who initiated the re registration at page 62 of COBD3 which eventually caused PSMB to give some reduction on the sum due to them. I am in agreement with the learned counsel for the Claimant that the said note must not be equated to poor performance but rather a suggestion put forward by him to address the issue in the best interest of the Company. Mismanagement of the Company's Jetty COW4 testified that the Company has a private jetty which was also used to provide services for other Companies for loading and unloading their goods and also for boarding of crews to off shore and vice versa. the court finds that the Company has not proven that the default in the payment of the levies was caused by the Claimant's poor monitoring. As it was addressed to COW1 and since at that time the claimant has yet to join the Company. In fact. In the course of the trial. which was before the Claimant joined the Company. on the contrary. He based his allegation on the personal authorization given by the claimant to other Companies to use the said jetty as evidenced in the claimant's email at pages 2-6 COBD3. the Company had attempted to put the blame on the Claimant by referring to the note dated the 5th August 2010 at page 58 of COBD3 which was written by him. it was the evidence of COW4 19 . 3. In fact. COW4 testified that the Company was compounded by the Custom's Department for infringing the Customs' Rules. it is the court's observation that the claimant in the said emails did not at anytime give personal authorization to the other Companies to use the said private jetty.that the Company had defaulted in its payments since June 2008. From a closer look at the emails at pages 2-6 of COBD3. However. The 1st letter of demand at page 55 of COBD3 was dated June 25th 2010 and it was addressed to COW1. However. And he attributed this to the Claimant's failure to manage the said jetty properly.

MV SWISSCO and other Oil and Gas Companies for the purposes of facilitating their business. the claimant's instruction was overruled by COW4. the Claimant’s claim is hereby allowed. In the final analysis. I agree with the learned counsel for the claimant that it was the claimant as evidenced by the emails at pages 11 and 12 dated the 29th October 2011 and page 10 dated 31st October 2011 of COBD3 who had ensured that the relevant parties comply with the terms and conditions of the agreement and in accordance with the prevailing laws. Hence I shall now examine the remedy. it is also the findings of this Court that the allegation by the Company that the Claimant mismanaged the Company's jetty herein is not proven. On the contrary. 30(5) IRA. In the email dated 29th October 2011 found at page 12 COBD3. based on the totality of evidence adduced by both parties as well as submissions made and also having regards to equity and good conscience as well as substantial merits of the case without regard to technicalities and legal form as stated in s. On the evidence adduced. For that reason. this Court finds that the Claimant’s dismissal was without just cause or excuse. the claimant had sent an email to one Mr Yahya Mohd of MISC and Mr David Wong of Kencana informing them that some crew members of MV SWISSCO had on several occasions neglected the Company's rules by not registering their names at the entrance counter and misbehaved themselves by making lots of noises while the Company was having morning meetings.himself that it was the Company who had actually entered into an agreement with KENCANA. However. Accordingly. Before that. the claimant after getting instruction from COW1 immediately banned MV SWISSCO crews from using the Company's said jetty. The termination is now rendered unjust and unlawful. I shall first of all deal with the preliminary objection raised by the learned counsel for the Respondent to the filing of the Claimant's written submission on the 20 .

Instead. From the back wages. post dismissal earnings 21 . In the circumstances. the reasons for late filing of its submission was fully explained by the claimant's counsel via its letter to the Court dated 22nd December 2015 and was cc copy to the Respondent's counsel. it is certainly not conducive to reinstate the Claimant as the relationship between the Company and the Claimant has been badly strained. Back wages Back wages is calculated based on the Claimant’s last drawn salary but limited to 24 months.grounds that the Claimant's counsel failed to obtain leave from the Court for an extension of time to file its written submission. the claimant counsel only managed to do so by the 29 th December 2015. The Court had earlier given the parties the 29th October 2015 to submit and exchange their written submissions simultaneously. As the letter was cc copied to the Respondent's counsel. See Court practice Note 1 of 1987. the Claimant will be awarded compensation under 2 heads namely. Remedy Based on the Court’s assessment of the industrial climate between the parties. it is my considered view that the objection raised by the learned counsel for the Respondent has no merit and I therefore disallow the objection raised herein. This is a court of equity where technicalities and legal forms play a very minimal role in the dispensation of justice. In this instant case. Having considered the submissions by both parties. However. this Court therefore finds that there is no prejudice whatsoever caused to the Respondent by the Claimant filing its submission late. the court is required to make a deduction for any contributory conduct. back wages and compensation in lieu of reinstatement. it is inappropriate to order the remedy of reinstatement.

000. there is no evidence adduced before this Court that he was in gainful employment after he was dismissed by the Company. c. Gainful employment At the time of dismissal. there is also no deduction down under this head. under this item. Hence.000. which is arrived as follows: a.00 On the facts of this case.00.000. I noticed that the Claimant did not occasion any delay in connection with the hearing of this ministerial reference. Thus. See Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Sdn Bhd (Sabah) & Anor (2001) 3 CLJ 541. Back wages for 24 months based on his last drawn salary in the sum of RM168. a. the Claimant’s last drawn salary was RM7. Contributory Factor From the evidence adduced before me. Hence. no deduction shall be made. b.and delay in the hearing of the case but such a deduction need not involve a mathematical calculation. there is also no deductions under this head. Delay From an examination of the notes of proceedings. Compensation in lieu of reinstatement for 3 years of service (from to ) at the 22 . I have carefully examined the facts and evidence in this case and I am of the view that there is no contributory factor on the part of the Claimant in respect of the allegations against him. The fact that he did not reply to any of the show cause letters issued to him is not a contributory factor to taken into account in assessing the compensation due to him as it is the claimants right whether or not to respond to a/the show cause letters issued to him. b. I hereby hand down to the Claimant a monetary Award in the total sum of RM189. In conclusion.00 in lieu of reinstatement.

00.000. It is further ordered that the Company shall pay the total amount of RM189. -sgd(DUNCAN SIKODOL) CHAIRMAN INDUSTRIAL COURT MALAYSIA SABAH 23 .00 through the office of Messrs Aludah & Co within 30 days from the date of this Award subject to statutory deductions if any and Messrs Aludah & Co shall accordingly undertake to pay the same to the Claimant.rate 1 month salary for each completed year of service @ RM21. c.000. HANDED DOWN AND DATED THIS DAY OF 19Th APRIL 2016.