Before Venue Date of reference Dates of mention Dates of Hearing Bank’s Written Submission Bank’s Written Submission in Reply Claimant's Written Submission Representation Case No: 29(21)/4-155618 INDUSTRIAL COURT OF MALAYSIA CASE NO: 29(21)/4-1555/18 BETWEEN SHAIK DAWOOD BIN S HAMEED AND HSBC BANK MALAYSIA BERHAD AWARD NO: 2620 OF 2019 : Y.A. TUAN BERNARD JOHN KANNY CHAIRMAN (Sitting Alone) : Industrial Court of Malaysia, Kuala Lumpur. : 04,07.2018 + 09.08.2018, 24.10.2018, 20.12.2018 1 28.03.2019, 03.04.2019, 03.06.2019 : 26.06.2019 : 01.08.2019 25.07.2019 Mr. Bemard Scott From Messrs Sault Scott & Co. Counsel for the Claimant Mr. N. Sivabalah & Ms. Nadia Abu Bakar From Messrs Shear Delamore & Co. Counsels for the BankCase No: 29(21/4-1555/18 REFERENCE This is a reference by the Honourable Minister of Human Resources made under subsection 20 (3) of the Industrial Relations Act 1967 (Act 177) arising out of the dismissal of Shaik Dawood bin S Hameed (hereinafter referred to as “the Claimant’) by HSBC Bank Malaysia Berhad (hereinafter referred to as “the Bank") on 20.10.2017. AWARD [1] The Ministerial Reference in this case required the Court to hear and determine the Claimant's dismissal by the Bank on 20.10.2017. The reference was dated 04.07.2018 and received by the Industrial Court on 10.07.2018. [2] The matter was transferred from Court 21 to this Court on 22.03.2019 pursuant to instructions from the Yang Di-Pertua, Mahkamah Perusahaan Malaysia dated 21.03.2019, in order for the case to be heard and that a final Award be handed down. [3] _ The matter was heard on the 28.03.2019, 03.04.2019 and 03.06.2019. [4] The Bank's counsel filed their written submissions on 26.06.2019 and reply on 01.08.2019 while solicitors for the Claimant filed their written submissions on 25.07.2019. [5] Solicitors for the Claimant vide their letter dated 01.08.2019 confirmed that they would not be filing a reply. (A) Proceedings in The Industrial Court [6] The matter was heard on 28.03.2019, 03.04.2019 and 03.06.2019 during which the following witnesses was called by the Bank to testify in court: - i. Elizabeth Loo Mui Yuen who is the Manager, Employee Relations, Human Resources Department of the Bank ("COW-1"); 2(71 [8] Case No: 29(21/4-1588/18 |. Parajothy U Munusamy who is the Senior Protective Security Manager, Protective & Insider Security of the Bank (“COW-2"); and Alan Sunil Netto A/L E. F. Netto who is the Head, Industrial and Employee Relations, Human Resources Department of the Bank (“COW-3"). The Claimant testified as his sole witness (“CLW-1’). The documents filed and marked before this court are as follows: Claimant's Bundle of Documents (“CLB"); Bank's Bundle of Documents ("COB-1"); Bank's Bundle of Documents Vol. 2 ("COB-2"); and Bank's Bundle of Documents Vol. 3 (“COB-3"). The Witness Statements filed and marked are as follows: Witness Statement of Elizabeth Loo Mui Yuen (“COWS-1"); Witness Statement of Parajothy U Munusamy (“COWS-2"); Witness Statement of Alan Sunil Netto A/L E. F. Netto ("COWS-3"); and Witness Statement of Shaik Dawood Bin $ Hameed (“CLWS-1"). [10] After the conclusion of the trial, the parties submitted their written closing submission in chief and followed by their written closing submission in reply. (B) Factual Backaround [11] The Claimant commenced employment with the Bank on 10.11.1997 as a General Clerical Timescale. A copy of the Letter of Appointment dated 10.11.1997 is found at pp. 1 -2 of COB-1. [12] Subsequently the Claimant was confirmed in his employment vide Confirmation Letter dated 10.02.1998. A copy of the Letter of Confirmation is 3(Case No: 29(21)/4-185518 found at page 3 of COB-1. [13] The Claimant was promoted and redesignated to various positions during his service with the Bank. The Claimant's last held position was Assistant Manager based at the Damansara Branch of the Bank. [14] As Assistant Manager at the Damansara Branch of the Bank, the Claimant was responsible for ensuring compliance with the Bank's policies and procedures which includes cash management and operation's compliance in the Branch. [15] Further, the Claimant was expected to support the Branch in achieving its business target whilst maintaining compliance to the Bank's controls. [16] On the 08.09.2017, there was a robbery at the Bank's Damansara Branch, where the Claimant was based at, which caused the Bank to lose the sum of RM600,000.00. The robbery took place between 1:00pm— 2:00pm. [17] An investigation was immediately commenced to investigate the matter. As part of the investigation process, the Bank had recorded a Written Statement from the Claimant on 18.09.2017. A copy of the Written Statement is found at pp. 4-10 of COB-1. [18] The Claimant was suspended with full pay effective from 18.09.2017 in order for the Bank to carry out further investigations into the matter. A copy of the Letter of Suspension is found at page 11 of COB-1. [19] A review of the CCTV recordings revealed that the robbery was carried out by a third party disguised as a Contractor of the Bank. The third party had accessed the restricted areas of the Branch purportedly on the grounds of carrying out inspection and maintenance of fire extinguishers. [20] The CCTV recordings showed the Claimant had escorted the third party into the restricted areas of the Bank such as the Cashier area, Operations Office and the Chief Cashier's Room despite the third party not having any identification and authorisation to work.Case No: 20(24)/4-1655/8 [21] Despite the third party not having any authorisation to work and identification, the Claimant failed to warn the Chief Cashier when he saw the third party talking to the Chief Cashier. [22] The Bank alleged that the Claimant in his capacity as Assistant Manager was negligent in carrying out his duties when he allowed and/or brought the unauthorised third party to enter the restricted areas in the Bank and failed to warn the Chief Cashier that the unauthorised third party is not allowed into the Chief Cashier's Room. [23] Subsequently, the Bank issued a Show Cause Letter dated 25.09.2017 to the Claimant. A copy of the Show Cause Letter dated 25.09.2017 is found at pp. 12-16 of COB-1. [24] For ease of reference the Show Cause Letter dated 25.09.2017 is reproduced below:- The Remainder of this page has been intentionally left blank.Case No: 26(21)/4-1555/16 HSBC «tv ue Ref ROVER Sento tes 25 Septenber2017 Eee . laa. ‘Salk Dowcod Bln § Harned iter ‘ee RBWM-SVC Mem DSI ears eae Shik Dawood, rontdennne ‘SHOW CAUSE LATTER You te nud who tue ty dy teen el mtb on too Follow inn 40t{s) of miopndut andor brexch(et) ac snout epyra eere coed ‘yz dag th cnr af yur egeye Aunt May Dec e Se Bee ‘Dh the Bak), —_—---—-—— ‘Tht you ba on & Sspacrba 2017 ay eowad 1.00 pr sted angle of your on Bak aver aude your expreied ado ped dint Dak, whe Yor protec to exon | ed pry noe cena fic won Dek perme So Frat veri de ad pists nity, ALLEGATION Patera ‘That on 8 Septomber 2017 tor eroumd 1.40 pn tthe Bonk’ Carmen Helga ‘rane yu were apreahod by «i! pty C*Dhlrd D400) whe choad fat bt ‘wana vonar with fi elingsihes coop, The Th Naty fhoead ya at ‘here wuld be wf Foupation hy BomLh Achat fu io ealng Monaay ‘Seplaber 2017 ‘That as an employes ofthe Hans, more v0 ove Deg i ascve polon of aot Mat Rac 8 ond ar et er ral te ot ‘ify that ts Third Paty os an mio jervonad, Tis cold be ione by, ‘amcnpst others, eating ton te Tn) Party was ah to wb te weer ‘Accharitalion To Wats . “That yond ser 1.0 py at a anf yo ce Dat ane tread yo ere ped din the Ba eon rome core To ty noi vonhaedofe wnt Bese ben Tnevantingte ey eons, ‘has ter come fo tha Dave attention shot ha TH Py wnt an inpster acta ‘apoyo ofthe B's contnetr. has ls oven oth Dats ation hat while the Thi Pct wad the Cia Cahir’ Yoo ater cond 1.30 phe ha ped ‘magnet on he agen coor atch whlch prevented It fn ekg ‘We understand ate Thicd Paty hd abverenty, regain note wc hi Cairo mene alo b600.09 benno fe Dak at ae Dts ned ind a ot sed og RESTRICTED - Page 10f 5Case No: 26(21)/4-1556/18 Se a i arin ALLEGATION? | That you had om F Septanlees 2017, poxwetiine betwee | O8 pin tn 20 pm, acted fn trench Oct KG Cah Yona reads aed 18 ane 011 wr yous rod elo ict Dol wen Yo a uk hme e838 pry one ba Cage's vom, 4 voatrbewrd aren Pexticotars ‘Thaton I Seplember 2917 «or wound }.00 pm you lad slowed an wanted ‘Sid party Third Party" ocala he D's rsiedoflie wes ofthe Bask's ‘aosoara Haigh branch wit fal vrij the Tlnd arty’ wth. Ch dia wes outed a Allein shove ‘That romstice between 1.00 pn sid 120 pn yoe bet while walking the Tied ‘acy trough the Danks ewe office are, ongve the Tht Pay had tis poussion the necttsary Avtbaraaios to Werk okabor obsbea) 2 which the Thi Paty infrmad you tht way bald by Wis super who was werk ‘matter pete of ho Weng. That yous had olered TH Party yo wold tend the dobabet in eee fr hn t2 ‘You teretier walled out of the vealed offi are scsi that the Thi Pasty was tli behind ‘Wha yo retin a the Tid Pry hd ao ext te ered offs ar with Yu, You pend etka th erie oie are wal foun th Thind Paty athe Gila Case's 00m. In your tnventignon Shae dated 18 Setenber 2017, yoo ava ha Slloiag eins AIO: We | make um tewnrts backoff te found Stein, va vas wing to Sppprank a the exiaae polt of the Chie CCathiee'sr00m wie posting ot the fre eainpliar potion wich su soppeted tb hak on othe wall [tld hina ad patra shin job wih i eb bet (QU: Was in tn Cie Cahier oon whee yu fed ia? (15: What di you do whan you mse hin inthe Chef Cane oer? ‘A: The Indi ea wat sowing fr angi re upp fo be bck ont the well. Ma nate fr him init” ‘Tat the Bank's OCLIIO4: Cah Hondling Procedure dam (Joe 2011 provey nfllowe “Aa the cash room ond tiller crea ort rented even, only cevoberaed staff are alewed tm the eres wile tre eer eran ifort mat a acme seme =f combstoye cx batenctgs Ocber ut for RESTRICTED Page Tors(Case No: 29(21)/4-1855/18 ST ea NOY eR erik cea) enketonfenentinccoh , Topo reli Tid Party war the Che Cals po shor ove lode mans be ere od of wig fom Bh Yu re arf ced ack of OULD Cash bg Perf! 10 ee 21 entry expen ede ing dest Bk ALLEGATIONS Tht yond on Sere 387 tt ten 1.01.20, ng yom at adr kn ieach of yoo xpeered andr led ath Oh, wn ied to wara te Chal Caner boi warhoriedinderfual exwk aloed Ino the Chit aes von vida te Dak’ t OCL! 1044: Cash Handing Procedures ued 10 Jabs 2011. atketen ‘Tha on & Seamer 2017 at razon 1.00 par you had allowed an weathered Wis yay (“Tad Per cera Baas eaiseofice eof eBay Denacear Helgi leach without fet veiling Ted art's tary Pll ‘etn are we cutind | Allegtion Lebar, ‘Tat sometine Infwnes 1.00 pm nnd 1.20 pun you nd e-selered the Daak's ‘eaticad office sr in earch ofthe Thiet Party to Hace hat wt Chie Cash's ce. Pll dls we mr outloed i Alston’ above ‘eigen ted Spc AeA ha tt Cs (Chiat Cusber) peer, gue had sc knit of yor Camco i esh of yoot expend tale oped dates nthe Dark, wr yor flied a worn he (Ciel Canbit that neta drial ae oo iowa eo th Cal Cable's ‘op ede the Banks OCLIUOG€ : Cask HanaingPronefares dated F0 one 2011. ‘In fact, ry your ation, yor ve led the Chief Caine tbe nt ow Tht Peng was vx outhorted peronee. In your Invediguion Sulemert dated 16 Sepuente 2917, you made he flleniog edison: QUE: By you een i ( lowing fio be te Ce Cahiers 1000 Gi eo iforvlng Byneaal et swt ob a hd ‘xt be bck ter 230 po, yooh fad Sytvanw ee t te seer personnel allwed procaine, AM We uated te Thi Paty had eaten, reid ty ito te shuld Chet Casi" ream snl ecved soo 1 ‘Buk Fl dels ae el Allegation | sve That ha aaa of RHO 003 ‘tn have ben rreta ba you ntact neptune ha aca a ‘oaance wih you expend us ine dete Bank [RESTRICTED - Page’ ofCase No: 29/21)/4-1555/18 ALURCATION s Tht yo bon 8 Seyewnbe 2017, setae between 1.0 a 130 pe te ing you dinate Bah tn bebel oe peed etd es Da ws 300 flle eco ath pay ov ta Bais reciept possening tt eee ‘Authorization Te Wests jotene. “ Tutieelan ‘That un #Siytecbee 2017 at awed 10 pn, yt slaw v0 uated {Bie pty Third Party") exes its ho Basra occ kk ‘Daaarark Highs bie witout ac verlying Ge THbd Tay avy, Pll sd aaa udlined ot Alston | above. ‘Tht vometive Detwan 1.00 pn sod 120 pen you had ce-catured the Book's ‘acca fice ant serch of on Thiet Pty a cacover thal was inthe Chiat (Cars room. Tat yo wn fer the Thi Pasty a cumple ldeaing were fe fr extsies Welbe bced wd he waletha CC's roan, | Ful deta re 5 onlin in Allegation 2 above, “at smatine ete 100 pt at 130 pm, ea nov fl wl tt the Fry Int not been ie you wa Te at ty tl temo yoo epee andere dtr he Dac whan lee eT Fy et fe Gants pres In yor bvenpton Sound dl TE Seon 2017 ye mde owing somes “Q1S: id you exon be hie py cst? ‘A: No. Ke wat ou there wait me a ie ATM bby belie] pr foom ‘ny widvveval a agpesacbed we end tld, be wll core 4 2.0 (1d bn tens te le 2°30 and not cmely 2p. (Q16 ify cain you hat ai gone back to lok fe Be, wy did't You stort hls oa ur weg hb the Chief Can't roe ‘A: Seno veal vec fat vet, It | an aur hd geet ATMA ebb theese, QHY. Dit you aiow hit bang out in the bck office ea Chiat Gomer room a ie ogee? ‘ly ca seer, Lamon lat sw hint hx ATM toby” 2, ‘The shove algations, if sustctrly evablishe, comatose viliont of your duly ood ah ad thy which you ove io ie Dak anc rect your Hein ie lo ‘Bink enor beached your essed aie imped du othe Uno 2. The shove alcgatio(s i satiety esl, beve aio farther sedocnly demaged twice ef test aad eonfieateittonen the Bach od ye ach vw tesacun tot epedaton of your cont of engteymeat wilh te Boek. 4. Thestev albgaion east lid, ved vain te Bask mad Sond ort Secgtucy tent lg lps yor ALN may oe fs inion RESTRICTED Page dotsCase No: 29(21)/4-1555/18 1 oh hava, eu ae fey round to td yor eof wing ‘undnignad oe Ween 2 Qcthar UAT w to why dieiny aclon sei pet be he ‘gasitjos youth pram wren palo sO ine wre ene ‘ox yao Inve nouns Yar a ce wl pee! ae mp Smiling mie any hy loe ps Janie 6 ead hl tn of neyo sy lea wt stint Yuen oud ot cnet cioayaiet ois ted SieBot ale ro 7. Plea askoow ge reels of thi er by ng the de nd avon the sae Pai nloowtp resi ging the date ad etvoy she same Your sine, Zieh - ZA a Enter sa Ste Heed of lade & Employee Reaions Marna Reouroe Depatten. 1. SHON. : 1 Peoplesoft td: 2S PEF, ‘ry ake ceo ir seman Se Dat B, SIMMER, 7013,» [25] The Claimant replied the Show Cause Letter vide a letter dated 09.10.2017. A copy of his reply is found at pp. 19-27 of COB-1. [26] In his letter, the Claimant made reference to an email that he received from the Facilities Helpdesk sometime between 06.09.2017 and 07.09.2017, [27] Upon review of the Claimant's explanation, the Bank allowed the Claimant to attend at the Bank's head office to access his office email and retrieve the said email relied on by him. The Bank found that the email did not support the Claimant's contention. [28] The Bank reviewed the Claimant's response and found the Claimant's overall explanation to be unsatisfactory. The Bank found the Claimant guilty of allegations 1 and 3. In respect of allegations 2 and 4, the Bank accorded the benefit of doubt to the Claimant and therefore he was found not guilty of the same by the Bank, 10Case No: 29(21)/4-1555/18 [29] The Claimant was informed vide a letter dated 20.10.2017 that the Bank had decided to terminate the Claimant's services with immediate effect based on allegations 1 and 3. A copy of the Letter of Termination dated 20.10.2017 is found at pp. 28 — 29 of COB-1. 130] For ease of reference the Letter of Termination dated 20.10.2017 is reproduced below: HSBC <> (Our Ref: HROVER/EL/V7¢0280 —— 20 October 2017 scone" Sim Shak Deveot Bia Hand da RBWM - SVC Mgmnt DSR — aw at Dd, TERMINATION LETTER Reference ia made to the Show Came Leiter dated 25 September 2017 (Our Ref : HADVER/EL/I70262) Chow Cunee Lercer), the alleguioss contained therein acd you reply by nee dated 9 Ociober 2017 Reply"). 2. Reference(s further mide 10 your meeting on 15 October 7017 with Prassena Vato aod Glizadet Loo (Mavagers Brployee Relations) ant Parajothy ALU Maoisany (Physical Security Manage) wherein you were given sccest to your HSBC eaull ssccount to reieve the email mertioned at che last parayraph of page | of your Reply. ‘The Bank has tince perused the eral aed fads that doesnot suport yoar amvertion 3, Thee Bmk has reviewed the reason and justification siven in your Reply und found the stave o be uomcceptable in that you have failed to sisfactonly antwer Ailegaions | sand 3 made apaingt you by the Bank. Accordingly, the Bank finds you guilty of ‘Allegations | and 3s contained Inthe Shaw Cause Lele 4. Your wets of ensconduct whether wen singly or together constitute olen violations of ‘your duty of good futh and Odelty which you owed w (ie Bank endlor wmowats te breaches of your implied andlor expressed dues to Go Benk 5. Purthermoze, your acts of misconduct whether then singly or together have alto seriounly damaged the relationship of trust and confidence betwoea the Bask aad ‘yourself such arto tantarount toa repudiation of your conn of employznet with the Bank. 6. Thee Bank has decided thet your acts of serious misconduct and breaches of yous Obligations and‘or duties are unacceptable for a continued employer-employee relationship o exist pos & carefal considerttion of the mstir and comisering the slowness of your seisonduct and breaches of your obligations and/or dies, your exiployment withthe Bank is hereby cermnuted with immediate effect. The Bank reserves al is igh under ‘the Inw with regard to your act of misconduct and breaches of your obliaaons ner duties ding your tenure withthe Beak 5. Please hand over all Back propees that may sill baie your possenon including bot “nsernen atone ose sence ca 1cose No 29.1818 9. yeu tae my sanding mate naan whe ‘will be withheld for setterment of the same, * BeBe you foal oat 10, Plome weknvdg cit of his ete by aging the allen and tating = sabetotiuniegned Mn WY Mew ee open Youre sincrely, Thead oF Induatril & Employee Relations urun Resources Department ACKNOWLEDGEMENT She wnmere sunny Ie i Peopleaoh 1D... Be hereby acknowledge xcept of ths iter, [31] The Claimant's last drawn basic salary as Assistant Manager was RM5,716.00. [32] The Claimant seeks the primary relief of an order of reinstatement to his former position as he considered that his dismissal was without just cause or excuse, (C) The Issues (a) Whether the Claimant had been negligent and failed in carrying out his duties in complying with the Bank's procedures when he proceeded to escort the third party to enter the restricted areas in the Branch without verifying the third party's authority; (b) Whether the Claimant had acted negligently i.e. without exercising any proper due care to protect the Bank when he failed to warn the Chief Cashier that unauthorised individuals are not allowed to enter the Chief Cashier's Room; and 12Case No: 20(21)/4-1555/18 (c) Whether the allegations of misconduct was serious enough to warrant the Claimant's dismissal (D) The Role and Func! [33] _ The law on dismissal is now well settled, the function of the Industrial Court in a reference under $20 of the Industrial Relations Act 1967 has been clearly stated by the Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M) Sdn Bhd [1981] 2 MLJ 129 where his Lordship Raja Azian Shah, CJ (Malaya) (as he then was) stated at p 136: “where representations are made and are referred to the Industrial Court for enquiry, it is the duty of 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 enquiry 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.” [34] _ In the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Anor [1995] 3 CLJ 344, Mohd. Azmi FCJ held 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 misconduct or irregularities complained of by the management as the grounds of a dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal. In our opinion, there was No jurisdiction by the Industrial Court to change the scope of reference by substituting its own reason.” [35] Dr Dunston Ayadurai in his book “Industrial Relations in Malaysia: Law & Practice “3rd edn at page 297 stated: 13Case No: 20(21)/4-1555/8 “A workman can seek a remedy under Section 20 only if he had been dismissed. More often than not, there is no dispute that there was an actual dismissal of the workman by his employer. The only issue for the Industrial Court to determine is whether the dismissal had been for just cause or excuse, the onus of proving the existence of the same being cast upon the employer.” (E) The Burden of Proof [36] Ina reference under s. 20 (3) of the Industrial Relations Act 1976, it is trite law that the burden of proof is on the employer to prove that the Claimant is guilty of the alleged misconduct thereby justifying the dismissal. [37] The law is settled in cases where the dismissal is caused by the Company It follows that whenever the Company caused the dismissal of the workman, it is the Company that must now discharge the burden of proof that the dismissal is with just cause or excuse. [38] This long settled principle was demonstrated in the case of Ireka Construction Berhad V Chantiravathan A/L Subramaniam James [1995] 2 ILR 14 where the Court opined that: - “It is basic principle of industrial jurisprudence that in a dismissal case the ‘employer must produce convincing evidence that the workman committed the offence or offences the workman is alleged to have committed for which he has been dismissed. The burden of proof lies on the employer to prove that he just cause and excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be, either a misconduct, negligence or poor performance based on the fact of the case." [Emphasis Added] (F) The Standard of Proof [39] _ In Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 LJ 314, a Court of Appeal case, Abdul Hamid JCA (as he then was) stated in no uncertain terms that the standard of proof required in a case is 14(Case No: 29(21)/4-1555/18 ona balance of probabilities. (G) Claimant to Faithfully Discharge His Duty [40] In Tian San (S) Sdn Bhd v Lin Kim Ping [1997] ILR 3 483 the Industrial Court held: “It is an established principle in Industrial jurisprudence that in every employment contract there is an implied term that a party thereto will not without reasonable cause conduct himself in a manner likely to damage or destroy the relationship of trust and confidence between the parties as ‘employer and employee: see Bliss v South Thames Regional Health Authority [1995] IRLR 308.” [41] In Cellular Communications Network (M) Sdn Bhd v IIhani Mohamad [2001] 2 ILR 233 17 it was stated: “The implied term of contract relied upon by the Company can hardly be gainsaid. In “The Modern Law of Employment “at page 446, GHI Fridman puts the matter this way’: The relation of Master and Servant implies necessarily that the Servant shall be in a position to perform his duty and faithfully and if by his own act he prevents himself from doing so, the master may dismiss him. There are thus two aspects of the employee's duty under a contract of employment. He must provide a satisfactory performance of the work he was contracted to do; and he must act faithfully and in accordance with the interest of his employer.” [42] An employee has an obligation to faithfully discharge his duty to his employer and it follows that he should not act inconsistently with the interests of the employer. In Pearce V Foster [1886] 17 QBD 536, Lord Esher MR stated: - “The rule of law is that where a person has entered into the position of servant, if he does anything incompatible with the due and faithful discharge of his duty to his master, the latter has the right to dismiss. 15Case No: 29(21)/4-1558/18 The relation of master and servant implies necessarily that the servant shall be in a positon to perform his duty and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him... if a servant conducts himself in a way inconsistent with the faith full discharge of his duty in the service, it is misconduct which justifies immediate dismissal.” (H) Was the Allegations of Misconduct Proven? [43] Allegation no 1 reads as follows: - “That you had on 08.09.2017 at or around 1:00pm, acted in neglect of your duties to the Bank and/or breached your expressed/and/or implied duties to the Bank when you proceeded to escort a third party into the restricted office area of the Bank's premises without first verifying the third party's authority.” ‘The Restricted Areas [44] COW-3 testified that the Claimant is responsible for the security aspect at the Damansara branch together with another Assistant Manager and a Relief Officer. The claimant confirmed during Cross Examination that he was jointly responsible for the security at the branch, [45] COW-1 who was Manager, Employee Relations, Human Resources was involved in the investigation into this matter together with the Security and Fraud Risk Department. [46] COW-1 testified that the Claimant was negligent in carrying out his duties when he brought the unauthorised third party to enter the restricted areas such as the Cashier area, Operations Office and the area outside the Chief Cashier's Room. [47] The Claimant agreed that the cash teller areas in the branch is a very restricted area and it is very strict that no outsider could enter the areas without authorization. 16Case No: 29(21)/4-1885/18 [48] _ In this regard the Claimant was cross examined as follows: - “Q: Now En Dawood, would you agree now you have been with the Bank for almost 20 years. Would you agree that the cash and teller areas in the branch is a very restricted area? A: Yes mylord. Q: Would you agree that it is very strict that no outsiders can enter this area without authorisation? A: Yes. Q: And they would have to be closely monitored by you or En Azat when they enter the area, am | correct? A: Yes, correct.” [49] Based on the evidence above, the Claimant agreed that the Cashier area and the area outside the Chief Cashier's Room is restricted. (Il) Did the Claimant Escort the Third Party into the Restricted Areas? [50] COW-1 testified that the Claimant in his Written Statement at page 4 of COB-1 revealed that he escorted the third party into the restricted area of the branch including the area near the Chief Cashier's Room. [51] COW-2 who was a Senior Protective Security Manager, Protective & Insider Security of the Bank testified that his involvement in the investigations was to investigate and review the CCTV recordings. [52] The CD containing the CCTV recordings is found at page 1 of COB-2. [53] According to COW-2 based on the CCTV recordings, the Claimant is seen bringing the third party into the back office and showing the third party other working areas such as pantry area and Chief Cashier area. [54] Still shots from the CCTV recordings at pages 4 to 8 of COB-2 will show the Claimant bringing the third party into the restricted areas. 17Case No: 29(21)4-1555118 [55] The Claimant during cross examination agreed that he brought the third party into the restricted areas. [56] _ In this regard he was cross examined as follows: - “Q: Now he says he wanted to go and inspect the fire extinguisher correct? Now and you brought him into the restricted area, am | correct? | brought him to the back office. Q: Yes, back which where the teller area is going to be, where you have access to the teller area and the Chief Cashier's Room, am | > correct? A: Chief Cashier's Room is the restricted area. Q: And also teller area the back area is also restricted am I correct? So you bring him into the area correct? A: | didn't bring him directly to the Chief Cashier's area.” [57] Based on the evidence of the Claimant himself and the CCTV recordings it is clear that the Claimant had escorted the third party into the restricted areas of the Damansara Branch of the Bank. (J) Was There a Procedure to Access Restricted Areas? [58] _In view of the strict access to the restricted area, the Bank has in place a procedure for a vendor to carry out any works at the branch of the Bank. [59] COW-2 in his examination in chief laid down the procedure as follo\ “In order for a vendor to carry out any works at the branch, the vendor must possess an authorisation to carry out the works. There must also be a prior notification to the Bank before the vendor can carry out the works. In ‘this regard, the vendor must produce it before the vendor is allowed to carry out any work at the branch. If the vendor fails to produce any authorization, the vendor will not be allowed to enter the branch and carry out the works.” 18(C880 No: 20(21)/4-1858/18 [60] This is supported by the evidence of COW-3 when he testified “all vendors of the Bank must have an authorization to carry out the works at the branch and prior to any works being carried out, the Bank must have notified beforehand of such works.” [61] Based on the evidence of COW-2 and COW-3, it is clear that for any vendor to carry out any works at the branch, the Bank must be notified beforehand and the vendor must produce the Authorization To Work before it could carry out the work, A sample of the Authorization To Work Form is found at pp. 1 — 5 of COB-3. [62] The Claimant agreed that the third party is a vendor from a fire extinguisher Company and he claimed that there will be a fire inspection by BOMBA on 11.09.2017. [63] The Claimant agreed in such situations the Damansara branch must be notified and the third party must show that he has the authorization to do the inspection Did the Claimant Verify the Third Party's Authority Before Proceeding to the Restricted Area? [64] The third party failed to produce any job sheet/authorisation to work and notification when he entered the restricted area. [65] The Claimant only asked for the authorization from the third party when they were at the back office after he had escorted the third party to the restricted area. [66] The Claimant during cross examination agreed there was no prior notification that there would be an inspection at the branch. [67] _ In this regard the Claimant was cross examined as follows: ~ “Q: If there is going to be an inspection by outsiders or vendors you will be specifically notified about it, am | correct? 19Case No: 29(21)/4-1555/18 > Yes. Q: And can you confirm in this case En Dawood you did not receive any notification that there will be an inspection? A: Yes." [68] The Claimant further agreed that the third party did not show any identification. This is evident from his cross examination as follows: - “Q: Did he show you any identification? A: He merely showed me the floor plan. Q: Did he show you any identification? A: No, he didn't.” [69] The Claimant agreed that he had allowed the third party without identification to enter the restricted area. He was cross examined as follows: - “Q: So without any identification, you allowed a perfect stranger to enter the restricted area correct? Az Yes." [70] The Claimant in his submission concedes that he failed to verify the authority of the third party before he proceeded to escort the third party into the restricted area. [71] _ It was the Claimant's duty to verify the identity of the third party and ask for the Authorization To Work before escorting him to the Restricted area. [72] Hence | find the Claimant guilty of allegation no 1 that he escorted the third party into the restricted area without any notification and authorization. (K) Allegation No 3 [73] Allegation no 3 reads as follows: - 20Case No: 29(21/4-155518 “That the Claimant had acted in neglect of his duties to the Bank andlor in breach of his expressed and/or implied duties to the Bank, when he failed to warn the Chief Cashier that unauthorised individuals Cashier's Room under the Bank’s OCL are not allowed into the Chi 11044.” [74] The Bank’s OCL 11044: Cash Handling Procedure reads as follows: - “As the Cash Room and Teller area are Restricted areas, only authorised staff are allowed in the areas which include Teller Supervisor, Chief Cashier, Cash Officer, Customer Service Manager (or authorised personnel for conducting cash balancing). Other staff (or unauthorised persons) are strictly not allowed in the restricted areas in order to safeguard the cash.” [75] The third party did not have any identification that he was in fact a vendor from a fire extinguisher Company and an Authorization To Work Form with him. Nor was the branch informed that a vendor would be coming on that day. In those circumstances the third party was an unauthorised person. [76] Being an unauthorised person the third party was not allowed in the Restricted Areas. [77] After showing the third party the location of the fire extinguishers, the Claimant took the third party out of the restricted area. [78] When the Claimant was walking out of the Restricted area, the third party followed him from behind when the Claimant was already out of the restricted area, he realized the third party was not following him. [79] The Claimant went back to look for the third party and found him at the restricted area talking to the Chief Cashier near the Chief Cashier Room. Still photographs from the CCTV recordings at pp. 7 — 8 will confirm the same. [80] COW-1 stated in evidence that the Claimant should have told the Chief Cashier that the third party was unauthorised and should not be allowed in the 21Case No: 26(21)/4-1556/18 Cashier's Room. [81] COW-1 testified that the Claimant had failed to wam the Chief Cashier that any unauthorised individual is not allowed into the Chief Cashier's Room. [82] The Claimant agreed during cross examination that he did not warn the Chief Cashier. [83] _In this regard the Claimant was cross examined as follows: - “Q: Would you agree that this third party Mr K case behaviour was very suspicious for him to come back without your knowledge to try to talk to the Chief Cashier? Do you agree it was very suspicious? Yes, correct. Q: So even then Mr Dawood, you did not tell the Chief Cashier don't allow anyone inside the room. You didn't tell her that isn't it? Before that | didn't. Q: You did not tell her? A: No, Ididn't tell her.” > > [84] When the Claimant walked back to the restricted area he saw the third party walking out of the Chief Cashier's Room. However, he failed to warn the Chief Cashier that the third party was not authorised [85] The Claimant testified as follows: - "Q: Can the Chief Cashier speak to an unauthorised person in her area without you or in En Azzat presence? A: No. Q: Would you agree that the Chief Cashier did something very wrong? A: Yes, she was talking at a third party without our presence. Q: And also don't you think that the third party had no business talking to the Chief Cashier? A: Yes of course. Q: Did you tell the Chief Cashier why did she talked to him wrong? 22Coase No: 29(21)/4-156518 > No, I did not. Q: Even then, you didn't tell the Chief Cashier don't allow anyone to enter the Chief Officer's Room? A: No, | didn't tell her Was it Reasonable for Employees of the Branch and the Chief Cashier to Assume that the Third Party is an Authorised Person? [86] COW-1 testified during cross examination that the third party managed to access the Chief Cashier's Room because the Chief Cashier was under the impression that the third party was an authorised person. [87] The Chief Cashier in her Written Statement at page 8 of COB-3 stated: - “At first, when | saw Dawood talking to that guy especially when they were inside the backroom, | thought Dawood was verified him already. | assumed that everything was in order and Dawood didn't mention anything about the arrangement.” [88] Even the Claimant agreed that his conduct would have given the impression to the Chief Cashier that the third party was an authorised individual. [89] The Claimant in his statement at page 8 of COB-1 stated: - “Q: By your actions (i) allowing him to be in the Chief Cashier's Room (i) not informing Shazwani that he is not authorized and should only be back after 2:30pm, you had led Shazwani to believe that he is an authorized personnel and to proceed with the job. Maybe.” [90] Further the claimant agreed that other people would have assumed that the third party was authorized. [91] _ It is the finding of this Court that it is reasonable and foreseeable for other employees and the Chief Cashier to assume that the third party is an authorized 23Case No: 29(21)/4-1556/18 individual as they had seen the Claimant escorting the third party into the restricted area. [92] The Claimant was Assistant Branch Manager of the Bank and was jointly responsible for the security aspect of the branch. As Assistant Branch Manager he is obliged to exercise reasonable care that the Bank does not suffer injury. [93] Knowing that the third party was an unauthorized person in a restricted area he should have warned the Chief Cashier, who would not have allowed the third party to enter the Chief Cashiers Room. The Claimant was responsible for the state of danger which was exploited by the third party. [94] In view of the above the Court finds that the Company has proved allegation no 3 against the Claimant. {L) The Claimant's Defence [95] The Claimant in his explanation letter dated 09.10.2017 (found at pp. 19 — 27 of COB-1) claimed that vide an email, he was put on notice that the Bank would carry a fire risk prevention and protection and standardization in all branches. [96] The email that the Claimant referred is found at TAB 4 of CLB. [97] COW-1 has testified that the Bank was not aware of any such email that the Claimant claimed to exist [98] _In this regard COW-1 was cross examined as follows: - "Q: Refer to TAB 4 of CLB. Wouldn't you think that a person reading it would think there would be a fire assessment being carried out? A: | don't think so. It just say fire log book, assessment should be carried out. Q: Put it to you one reading it would suggest that there would be a fire assessment being carried out, and in respect to that, a fire 24Case No: 20(21)/4-155518 extinguisher maintenance too. A: Disagree.” [99] The Claimant was cross examined as follows: - “Q: No, lam just saying this email does not say there is going to be any inspection, am | correct? Directly it is not mentioned Q: Ifthere is going to be an inspection by outsiders or vendors, you will > be specifically notified about it? > Yes. Q: Can you confirm that in this case, you did not receive any notification that there would be an inspection? A: Yes." [100] Based on the above it is clear that the email which the Claimant relies upon is not a Notice of Fire Risk Prevention Exercise. [101] | have perused the email at TAB 4 of CLB. | find that the email refers to a construction of a sample fire log book format, There is no mention of any inspection of fire extinguishers at the Damansara branch on 08.09.2017. [102] Thus this Court finds that the Claimant had no valid defence to the misconduct committed by him. [103] The Claimant in his submissions claimed that the robbery took place while he was away at Friday prayers. Thus he was not responsible for the loss of RM600,000.00 by the third party. The Claimant argued there was novus actus interveniens. i.e. the chain of causation was broken. [104] It was the Claimant who escorted the third party into the restricted area without authorisation. It was reasonable for the employees and the Chief Cashier to have assumed that the third party is an authorised individual to carry out vendor's work as he was seen with the Claimant in a restricted area. 25Case No: 20(2114-1555/18 [105] When the Claimant found the third party in Chief Cashier's Room, the Claimant did not wam the Chief Cashier that the third party should leave and come back after 2:30pm. [106] The Claimant did not brief the relief Manager or Executive when he left for Friday Prayers [107] In this case, the Claimant was under a duty to keep unauthorised persons out of the restricted areas of the Bank. [108] However by allowing the third party to enter the restricted areas without authorization the Claimant had created a state of danger which was exploited by the third party. [109] The lack of precautions and measures taken by the Claimant resulted in the Bank suffering a loss of RM600,000.00. [110] The breach was foreseeable as the Claimant allowed the restricted area to be breached. [111] It is the finding of this Court that the Claimant had caused the chain of events that led to the Bank's loss. The Claimant's conduct played a substantial role in the loss as he was responsible for the state of danger which was exploited by the third party. Without him, this loss would not have happened. It was reasonably foreseeable that the Claimant's conduct and the impression given by him when he escorted the third party in the restricted area which had allowed and led to the third party being able to enter the Chief Cashier's Room and got away with RM600,000.00 from the room. (M) Whether the Claimant’s Misconduct Was Serious Enough to Warrant Dismissal? [112] The termination letter is dated 20.10.2017 and is found at pp. 28 - 29 of COB-1. 26Case No: 29/21V4-1555/18 [113] COW-3 testified that he was involved in the decision to terminate the Claimant. It was COW-3 who recommended that the Claimant's services to be terminated. [114] COW-3 explained that the Claimant held the position of Assistant Branch Manager hence he was responsible to ensure compliance with the Bank's Policies and Procedures which includes Cash Management and Operations’ compliance in the branch, 1115] According to COW-3, the Bank found him guilty of allegations 1 and 3 as contained in the Show Cause Letter. The Claimant's negligence in carrying out his duties as the Assistant Manager had caused loss to the Bank in the amount of RM600,000.00. [116] COW-3 testified that in view of the fact that the Claimant's conduct led to the Bank losing RM600,000.00, the Claimant had clearly failed to safeguard the trust and confidence entrusted upon him. The Bank could not condone the Claimant's conduct hence the punishment of dismissal was most appropriate. [117] It is trite law that the nature of the banking industry requires a higher standard of conduct from its employees, as custodians of public monies. [118] In Perwira Habib Bank (M) Bhd V Tan Eng Seng & Lim Teng Ho [1997] 2 ILR 839, the Court held: - “The banking industry belongs to a special kind of business and services rendered to the public. It is entrusted with other people's money. Therefore, a high quality of discipline and conduct of the highest order is expected of its staff to win public confidence. The bank demands from its employees’ absolute honesty and impeccability. The Claimant, as a bank manager, occupied a position of trust. He should not only be honest but be seen to be honest. Like Caesar's wife, the Claimant must be above all suspicion.” 27Case No: 20(21)/4-1566/18 [119] In Hasfiza Abdul Halim V RHB Bank Berhad [2013] 2 LNS 0566, the Industrial Court held: - "68. Sebagai seorang pekerja perbankan, Pihak Menuntut sepatutnya mempunyai nilai-nilai etika dan integriti yang tinggi. Adalah sesuatu yang munasabah untuk Pihak Responden mengharapkan setiap pekerjanya luarkan. Ini adalah mematuhi setiap prosedur dan arahan yang untuk mempastikan ime} Pihak Responden akan sentiasa terpelihara dan juga mengekalkan kepercayaan dari pelanggan. Memandangkan Pihak Responden adalah sebuah institusi perbankan yang memegang dana pendeposit, maka sudah tentulah Pihak Responden memerlukan pekerja yang taat, berintegriti dan mempunyai disiplin yang tinggi terutama apabila ianya melibatkan pekerja dalam peringkat pengurusan atan penyeliaan. 71, Pihak Menuntut didalam menajalankan tugasnya adalah diperiukan melindungi kepentingan bank dan kegagalan untuk berbuat demikian merupakan satu perbuatan salah laku yang serius dimana tindakan pembuangan kerja yang diputuskan oleh Pihak Responden adalah suatu tindakan atau keputusan yang dengan sebab dan alasan yang adil. Dalam industri perbankan dan kewangan, tugas berhati-hati yang tinggi adalah diperlukan dari semua perkerja-perkerjanya.” [120] In Norkhairul Izam Kassim V Bank Muamalat (M) Berhad [2018] 2 LNS 0375 the Industrial Court held: - “The employees in the banking industry are indeed required to uphold a higher standard of integrity in executing their duties and responsibilities. Every procedure, rule and SOP which were in place by the Company had its own objectives to ensure the Company's interest, in particular; and the public at large were safeguard.” [121] Employees in the Banking Industry are required to uphold a higher standard of integrity as well in executing their duties and responsibilities. [122] The Claimant argued that he was a loyal employee and had served the Bank for 20 years. In addition, he had an unblemished record. 28Case No: 29(21)/4-1555/18 [123] In Esso Malaysia V Chiang Lick Teck [2003] 2 ILR 716, the Industrial Court held: - “the very fact that the Claimant had served the Company for such a long time shows that the Claimant has to be aware of the Company's policies and its need for strict compliance and adherence thereto. If all ‘employees are allowed to merely fall back on their past clean record to vindicate themselves then this would seriously undermine the enforcement of discipline and proper conduct within the Company's establisment.” [124] The Court considered the long and unblemished track record of the Claimant. Notwithstanding that, the Court is of the view that the Claimant's long years of unblemished service do not immunise the Claimant from dismissal. [125] In Mohd Yusof bin Jaafar V Nibong Tebal Paper Mill Sdn Bhd [2012] 2 ILJ page 45, the Industrial Court held had referred to the case of Taylor V Parsons Peebles Ltd [1981] 1 ILR 119 where the Court held: - “In determining the reasonableness of an employer's decision, the proper test is not what the policy of the employer was, but what the reaction of reasonable employer would be in the circumstances.” [126] in Dahaman Huri bin Azidin V MISC Integrated Logistic Sdn Bhd, Award No 129 of 2014, the Industrial Court following “Pearce V Foster [1989] 17 QBD 536, Lord Esher Mr observed: - “The rule of law is that where a person has entered into the position of servant, if does anything incompatible with the due and faithful discharge of his duty to his master, the latter has the right to dismiss. The relation of master and servant shall be in a position to perform his duty and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him.” And Lopes LJ in the same case held: 29(Case No: 29(21)/4-1555/18 “If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service it is misconduct which justified immediate dismissal.” [127] In the present case, the Claimant's act in allowing the third party to enter the restricted area without authorisation and his failure to warn the Chief Cashier are the events which led to the robbery at the branch. The Bank suffered a loss of RM600,000.00. This misconduct was major and was committed by an employee who held a senior ranking positon hence the Bank could no longer repose the necessary trust and confidence in the Claimant to discharge his duties and responsibilities in a faithful and diligent manner. [128] A reasonable employer in the circumstances and facts of the case would have dismissed the Claimant. The misconduct had marred the trust and confidence the Bank had in the Claimant, the Court finds that the punishment meted to the Claimant is appropriate in the circumstances of the case. The Claimant's dismissal was therefore with just cause and excuse. (N) Conclusion [128] Accordingly, the Claimant's claim is hereby dismissed. HANDED DOWN AND DATED THIS DAY OF 02°¢ OCTOBER 2019 Signed (BERNARD JOHN KANNY) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA KUALA LUMPUR 30