IN THE INDUSTRIAL COURT OF MALAYSIA

[CASE NO: 30(13W4-1609/12]

BETWEEN

NIK ABDUL RAHMAN YACOB

AND

MALAYSIA AIRLINES SYSTEM BERHAD

AWARD NO. 1317 OF 2019

BEFORE : Y.A. TUAN PARAMALINGAM AIL J.

DORAISAMY - Chairman (Sitting
Alone)

VENUE : Industrial Court of Malaysia, Kuala

Lumpur

DATE OF REFERENCE : 03.08.2018

DATES OF MENTION : 29.11.2012; 17.01.2013; 26.02.2013;

02.04.2013; 08.05.2013; 19.06.2013;
11.07.2013; 01.08.2013; 24.09.2013;
21.10.2013; 15.01.2014; 15.04.2014;
26.11.2014; 09.02.2015; 16.06.2015;
10.08.2015; 09.09.2015; 12.11.2015;
11.01.2016; 22.02.2016; 06.04.2016;
17.05.2016; 14.07.2016; 13.12.2016;
07.06.2017; 06.09.2017; 19.01.2018;
29.03.2018; 11.03.2019; 11.03.2019;

DATES OF HEARING : 13.08.2014; 26.03.2015; 13.06.2018;

16.07.2018

REPRESENTATION : For the claimant - Mohan Ramakrishnan;

M/s Ramakrishnan & Associates

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 For the company - S Sivagami; M/s Zaid
Ibrahim & Co

REFERENCE:

This is a reference made under Section 20 (3) of the Industrial Relations Act
1967 (Act 177), arising out of the dismissal of Nik Abdul Rahman Bin Yacob
(hereinafter referred to as “the Claimant”) by Malaysia Airlines System
Berhad (hereinafter referred to as “the Company’) on 12 th September 2011.

AWARD

[1] The Ministerial reference in this case required the Court to hear and
determine the Claimant’s complaint of dismissal by the Company on 12 th
September 2011.

I. PROCEDURAL HISTORY

[2] The Court received the letter pertaining to the Ministerial reference under
Section 20(3) of the Industrial Relations Act 1967 on 10 th October 2012.

[3] The matter was fixed for mentions on 29 th November 2012, 17 th January
2013, 26 th February 2013, 2 nd April 2013, 8 th Mei 2013, 19 th June 2013, 11 th
July 2013, 1 s t August 2013, 24 th September 2013, 21 st October 2013 and 15 th
January 2014. It was then fixed for hearing on 19 th February 2014 before the
learned Chairman YA Tuan Eddie Yeo Soon Chye (as the learned President of
the Industrial Court then was) but however the matter was postponed as parties
wished to resolve it by way of a mediation.

[4] The matter was fixed for further mention on 15 th April 2014. When it
came up for hearing on 18 th June 2014, the matter was postponed due to the
Company’s first witness being on medical leave. The hearing date of 19 th June
2014 was also vacated.

[5] The trial commenced on 13 th August 2014 with the Company’s first three
witnesses (ie, Mohd. Irian Bin Mhd. Ghozir (COW-1), Melvyn Peterson a/I
Rajoo (COW-2) and Zulkiffly Bin Abd. Aziz (COW-3)) taking the stand. The

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hearing was thereafter postponed on 14 th August 2014 due to the Company’s
fourth witness being on medical leave. The matter was also postponed on 13 th
November 2014, this time the Claimant’s counsel being on medical leave. It was
thereafter fixed for further two mentions, ie, on 26 th November 2014 and 9 th
February 2015.

[6] The trial recommenced on 26 th March 2015 with the Claimant’s fourth
witness (ie, Nor Afida Binti Ismail @ Abu Bakar (COW-4)) taking the stand.

[7] On the hearing date of 16 th June 2015 where the Company’s fifth witness
(ie, Mohamad Hassan Bin Pak Kechik) was to take the stand, the Court was
informed by the parties that a moratorium had come into effect which prohibits
any legal proceedings or process to be continued or commenced against the
Company, except with the consent of the Company’s Administrator, pursuant to
the Malaysian Airline System Berhad (Administration) Act 2015. The matter
was thereafter fixed for further mentions on 10 th August 2015, 9 th September
2015, 12 th November 2015, 11 to January 2016, 22 nd February 2016, 6 th April
2016, 17 th May 2016, 14 th July 2016, 13 th December 2016, 7 th June 2016, 6 th
September 2017 whilst waiting for the moratorium to be lifted.

[8] The matter was fixed for mention on 19 th January 2018 before the learned
Chairman YA Dato’ Patricia Tan Ghee Phaik wherein parties were directed to
submit on 1 st March 2018 on the legal status of the Company which was under
administration and whether leave was required for the matter to be heard before
the Industrial Court. On 5 th March 2018, the Company’s counsel informed the
Court that the Company’s fifth witness (ie, Mohamad Hassan Bin Pak Kechik)
may have passed away and that they needed to verify the information with the
Jabatan Pendaftaran Negara (JPN). On the subsequent mention date of 29 th
March 2018, the Company’s counsel informed the Court that the Compa ny’s
fifth witness had indeed passed away and that they will be relying on his
testimony during the Domestic Inquiry.

[9] On the hearing date of 14 th May 2018, the case had to be postponed as the
Claimant was absent and his counsel was on medical leave.

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[10] The trial recommenced on 13 th June 2018 before the learned Chairman
YA Dato’ Tan Ghee Phaik and concluded on 16 th July 2018. Directions for
written submissions were given wherein the Company was to file in their written
submissions on 17 th August 2018, the Claimant on 20 th September 2018 and
Reply submissions on 5 th October 2018.

[11] Two further mention dates were fixed, ie, on 11 th March 2019 and 20 th
March 2019 awaiting parties to file in their respective written submissions. As
at 2 nd April 2019, neither of the parties had filed their written submissions and
thus the learned President of the Industrial Court gave directions for the matter
to be closed pending the handing down of an Award.

[12] Due to the learned Chairman Y.A. Dato ’ Patricia Tan Ghee Phaik’s
transfer to the Attorney General ’s Chambers on 18 th September 2018, the
learned President of the Industrial Court on 18 th April 2019 instructed the
matter to be transferred from Court 13 to this Court, ie, Court 30, for the
purposes of handing down an Award before 3 rd May 2019.

II. FACTUAL BACKGROUND

[13] The Claimant commenced employment with the Company on 15 th October

1990 as a Traffic Clerk with a salary of RM400.00 per month. The position was
later renamed as Customer Service Assistant and subsequently Airport
Operations Assistant. The Claimant was specifically attached to the Baggage
Services Unit (“BSU”).

[14] The Company however denies that the Claimant was an Airport
Operations Assistant but rather a Customer Service Agent at the time of his
dismissal. They further contend that the duties of the Claimant as a Customer
Service Agent were, inter alia, as follows:-

a. Attend to every MH flight and Customer Airline flight arrival;

b. Take baggage timings for MH and Customer Airlines and fill in

details in the respective forms;

c. Raise reports for passengers with complaints;

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 d. Raise found baggage report (OHD) for every found bag;

e. Raise found property (FP) for all found property handed in;

f. Correctly advise all passengers of relevant information pertaining

to the reports that they have raised, e.g.:-

i. For DPR : passengers to leave bag for collection for

repair at hotel concierge or when will the pickup be
(only for foreigners or non-local residents);

ii. For DPR : for local passengers to leave bag empty and
loan a bag to passenger immediately or passenger must
send their bags by themselves;

iii. For DPR : (partial loss) passengers to write in; and

iv. For AHL : how passengers can get in touch with us.

g. Contact passengers and advise status of their case twice a day (AM
& PM);

h. Check system for any match messages on system;

i. Assist in arranging transport detail for AHL, DPR;

j. Sendoff of all returned baggage from Transport Office;

k. Collection of all returned baggage from Transport Office;

I. Answer all calls to ext. 108/308; and

m. Any other duties as and when delegated by Custom Service

superior.

The Court however notes that the Company’s own documents at page 79 of COB
(Baggage Services Work Sheet) and at page 7 of CLB -2 (Show Cause
Investigation Report dated 13 th January 2011) as well as the Domestic Inquiry
notes of evidence refers and ackn owledges the Claimant as an Airport
Operations Assistant.

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[15] On 4 th September 2010, whilst the Claimant was on duty as a frontline
officer at the Penang Airport’s Arrival BSU, a passenger carrying a Swedish
passport, ie, one Thomas Dahl, requested for the Claimant’s assistance in
transferring his baggage that had arrived in Kuala Lumpur International Airport
(“KLIA”) to be sent to the Penang Airport. The said passenger flew in Qatar
Airways from Frankfurt to Kuala Lumpur and was due to collect his bagga ge at
KLIA. However, the said passenger was unable to collect his baggage at KLIA
as he was late for his next flight to Penang to catch up with his client for a
meeting. As he was in a hurry, the said passenger had proceeded to take his
flight to Penang and upon reaching Penang Airport, had approached the
Claimant, being the frontline officer, to request for the said transfer of his
baggage.

[16] The Claimant agreed to assist the passenger and informed him that the
baggage would be flown in to Penang Airport from KLIA via Flight No.
MH1164 and that the passenger would have to collect the baggage himself at the
Penang Airport. The passenger’s baggage was labelled as ‘AHL HDQMH’
wherein the courtesy report states that the passenger was assisted by the
Company to transport his baggage at his own costs.

[17] The passenger then informed the Claimant that he was too tired to wait
for his baggage to arrive at the Penang Airport as he had travelled for almost 20
hours and furthermore he was late for the meeting with his client. He was also
unable to return to the Penang Airport and asked if the Claimant could arrange
for someone to transport the baggage to him at Cititel Hotel, Georgetown,
Penang.

[18] The Claimant contends that he was informed by the passenger that he
needed the baggage very urgently as his insulin and medicines were in it and he
needed to take them before he goes to bed. The Claimant did not commit
himself at that point but told the passenger that he would try his best to solve
the passenger’s problem.

[19] The passenger later contacted the Claimant to ask if the baggage had
arrived at Penang Airport and whether the Claimant would help to arrange for
the baggage to be sent to him at Cititel, Georgetown, Penang as he was in the

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midst of his meeting and was unable to come and collect the baggage. The
Claimant felt that it was his responsibility to deliver the baggage to the
passenger since the passenger was in need of his medicines and insulin that was
in the baggage.

[20] Once the baggage arrived at the Penang Airport, the Claimant received a
telex message from the Company’s headquarters in Kuala Lumpur stating “Plse
restore the bag to pax”. The Claimant then requested the driver on duty, ie,
Mohd. Zaini Bin Saad (“Zaia), to deliver the baggage to the passenger at Cititel
Hotel, Georgetown, Penang. However, Zaini refused by saying “toksah,
toksah”.

[21] The Claimant contends that he had been working from 5.00am on 4 th
September 2010 right up to 1.00am on 5 th September 2010, ie, approximately 18
hours, at the Penang Airport. Since there was no one to deliver the baggage to
the passenger, the Claimant, as a responsible Senior Officer and taking into
account the seriousness of the passenger’s medical situation, decided to take it
upon himself to deliver the baggage to the passenger during his meal break. He
had also asked the other Airport Operations Assistant, Anand Abd. Rahman
(“Anand”), to replace him at the counter whilst the Claimant went out for his
meal break and to deliver the baggage to the passenger.

[22] During his meal break, the Claimant went to Cititel Hotel to handover the
passenger’s baggage. He also handed Form D6 to the passenger for
acknowledgment of the baggage. The Claimant thereafter filed the said Form D6
at the submission counter at the BSU upon his return after delivering the
baggage during his meal break.

[23] The Company however contends that the Claimant was rostered to be on
duty from 3.00pm on 4 th September 2010 to 1.00am on 5 th September 2010 with
an hour break from 8.00pm to 9.00pm, but only showed up to work at 5.00pm.
Mohd Irian Mhd Ghozir (an Airport Operations Assistant) reported to Nor Afida
Bte Ismail Abdul Bakar (an Airport Operations Officer) that he had been
informed by his other colleague, ie, Anand, that the Claimant was seen leaving
the Penang Airport with a passenger ’s baggage from Flight MH1164 and that it
was being sent to the passenger’s hotel, ie, Cititel Hotel, Penang. Upon

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checking the World Tracer Database system, Mohd Irian could not find any
report for any baggage to be sent to Cititel Hotel, Penang.

[24] The Claimant contends that his main intention was to show a good image,
to promote the reputation of the Company and Malaysian Hospitality to the
foreigner.

[25] The Claimant further contends that it is the norm that whenever the
baggage is taken out from the BSU, it had to be informed to the person in
charge or to the senior staff present there. However on that date, the person in
charge, ie, Nor Afida (COW-4) who was supposed to be on overtime duty at the
said unit was not present for duty as she had gone on emergency leave.

[26] The Claimant contends that five days after handing over the baggage to
the passenger, the said passenger contacted the Claimant and asked him “Are
you okay with your Company? Somebody from your Company is trying to play
dirty to you. They try to negotiate with me to charge you because you raised to
me courtesy report but I know you are an excellent person ”. However, at that
point in time, nobody from the Company had a pproached the Claimant with
regards to the incident.

[27] The Company via its Airport Operations Supervisor, Haji Mohamad
Hassan bin Pak Kechik, issued a show cause letter on 10 th September 2010 with
two charges levelled against the Claimant: -

“(i) As recorded on BAGGAGE SERVICES WORKSHEET by AOO NOR

AFIDA, you have reported for duty at 1715 hrs;

(ii) You have tempered a legal document (DAILY ATTENDANCE

REGISTER) without consent of higher authority, e.g. remarks from
AOO NOR AFIDA”.

The Claimant had responded to the said show cause letter apologising for his
mistake.

[28] Subsequently, the Company issued a Letter of Allegation dated 10 th May

2011 wherein 2 charges were levelled against the Claimant, ie, that he was
alleged to have left his place of duty at Penang Airport on 4 th September 2010

8
and that he had taken out a baggage from the Penang Airport without any
permission on the same date.

[29] The Claimant replied to the Letter of Allegation on 11 th May 2011 but the
Company deemed the explanation insufficient and followed up with a Notice for
Domestic Inquiry dated 17 th June 2011 informing the Claimant that a Domestic
Inquiry would be held on 27 th June 2011 and 28 th June 2011.

[30] Upon conclusion of the Domestic Inquiry, the Claimant was informed on
15 th August 2011 of the Inquiry Panel ’s decision that he had been found guilty
of both charges. The Company thereafter issued a Punishment Letter on 20 th
September 2011 informing the Claimant that he had been dismissed with
immediate effect. The Claimant appealed vide letter dated 17 th October 2011
against the Company’s decision to dismiss him. However there was no response
from the Company, prompting the Claimant to again issue another appeal letter
dated 15 th December 2011.

[31] The Claimant contends that his dismissal was done without just cause or
excuse and thus prays to be reinstated to his original position without any loss
of wages, allowance, service, seniority, privileges or benefits.

III. THE FUNCTION OF THE INDUSTRIAL COURT & THE BURDEN

OF PROOF

[32] It is established law that the function of the Industrial Court in a Section
20(3) Industrial Relations Act 1967 is two-fold, ie, to determine:-

(i) Whether the misconduct of the employee alleged by the employer

has been established; and

(ii) Whether the proven misconduct constitute just cause or excuse for
the dismissal.

[33] In the case of WONG YUEN HOCK v. SYARIKAT HONG LEONG

ASSURANCE SDN BHD & ANOR APPEAL [1995] CLJ 344 the Federal Court
had held:-

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 “On the authorities, we were of the view that the main and only function
of the Industrial Court in dealing with a reference under section 20 of the
Act (unless otherwise lawfully provided by the terms of the reference), is
to determine whether the misconduct or irregularities complained of by
the Management as the grounds of dismissal were in fact committed by
the workman, and if so, whether such grounds constitute just cause or
excuse for the dismissal.”

[34] And in the case of GOON KWEE PHOY v. J & P COATS (M) BHD [1981]
2 MLJ 129 the Federal Court (vide the judgment of Raja Azlan Shah CJ) held:-

“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 ”.

[35] The burden of proof in an unfair dismissal claim lies on the employer to
prove on a balance of probabilities that the employee had committed the
misconduct complained of. This principle was expounded by the Industrial
Court in the case of STAMFORD EXECUTIVE CENTRE v. DHARSINI
GANESON [1986] ILR 101:-

“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. He must prove the workman guilty and it is not the
workman who must prove himself not guilty. This is so basic a principle
of industrial jurisprudence that no employer is expected to come to this
Court in ignorance of if’.

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IV. ISSUES TO BE DECIDED

[36] The issues to be determined in this case are:-

(i) Whether the Claimant is guilty of the allegations of misconduct

levelled against him by the Company; and

(ii) Whether the allegations of misconduct constitute just cause or

excuse for the Claimant’s dismissal.

V. THE COURT’S FINDINGS AND REASONS

(i) Whether the Claimant is guilty of the allegations of misconduct

leveled against him by the Company?

(a) Charge No. 1 - Leaving workplace without permission

[37] Charge No. 1 levelled against the Claimant is that the Claimant had on 4 th
September 2010 between 8.40pm until 10.45pm had left his workplace at the
Penang Airport without permission and thus had contravened the terms of his
employment with the Company as stated in Appendix A, Paragraph 1, sub -
paragraph 1.1 and Paragraph 15, sub -paragraph 15.10 of the Malaysian Airline
System Berhad Disciplinary Procedure. The said Charge No. 1 is worded in
Bahasa Malaysia as follows: -

“Tuduhan 1

Bahawa anda sebagai Agen Perkhidmatan Pelanggan Syarikat

pada 04 September 2010, diantara jam 2040 mal am hingga 2245
malam telah meninggalkan tempat tugas di PENAP tanpa
kebenaran. Dengan ini, anda telah melakukan satu kesalahan
tatatertib yang bertentangan dengan syarat -syarat perkhidmatan
anda dengan Syarikat sepertimana tercatit dilampiran A,
Perenggan 1, Fasa 1.1 dan Perenggan 15, Fasa 15.10 Acara
Tatatertib Penerrbangan Malaysia dan jika sabit kesalahan, anda
boleh dikenakan hukuman yang boat.

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[38] Appendix A Paragraph 1 sub-paragraph 1.1 of the Malaysian Airline
System Berhad Disciplinary Procedure (at p. 9 of COB-1) provides:-

“Absence without Leave or overstaying the sanctioned leave without

sufficient grounds or proper or satisfactory explanation or absence from
the employee’s appointed place of work without permission or sufficient
cause.”

[39] Appendix A Paragraph 15 sub-paragraph 15.10 of the Malaysian Airline

System Berhad Disciplinary Procedure (at p. 11 of COB-1) provides:-

“Breach of any law, rules, regulations or orders applicable to the

Company’.

[40] It is the Claimant’s contention that he left the Penang Airport at 9.35pm
th
on 4 September 2010 to return the baggage to the passenger and that that was
done during his dinner break. And that also only after the other Airport
Operations Assistant, Anand Abd Rahman, returned from attending a ‘kenduri’
at 9.30pm. The Claimant went to the Cititel Hotel, Georgetown, Penang, to
return the baggage to the passenger, proceeded to have his dinner and thereafter
returned to his workplace, all within his one hour dinner break. The Claimant
(CLW-1) stated in his witness statement (CLWS-1):-

“15. Please refer to page 79 of COB, who were on duty with you at that
material time?

When I reported for duty, I was informed by Pn. Nor Afida bt.
Ismail Abu Bakar that the Officer, Mr. Fadzil was on medical
leave and that the other Airport Operations Agent, En. Anand had
to attend a Icenduri’ and as such would leave his workplace at
6pm on that day and would return only at 9pm. Further, since it
was the month of Ramadhan, I had to wait for En. Anand to
return from his Renduri’ before I could break my fast. Mr. Anand
reached the office at around 9.30pm, at which time I decided to
leave the office to send the baggage to the passenger.

16. Please refer to page 79 of COB, what time was your break?

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 My break was between 8.00pm and 9.00pm. However, since Mr.
Anand was not there in the office and the officers, Puan Afida
and Mr. Fadzil were also not there, I was left all alone to man the
Arrival. Hence, I had to wait for Mr. Anand to return from the
`kendurr he was attending before I could take my break as it was
the fasting month and I had not had my dinner. So, when Mr.
Anand arrived at the office around 9.30pm, I left the office for
my dinner break and I took the opportunity to send the baggage to
the passenger”.

[41] The above evidence of the Claimant was not challenged during cross -
examination by the Company. At the very most, the Claimant was put a question
during cross-examination that he did not obtain the permission of his superior
when he removed the bag from the Penang Airport and the Claimant’s answer
was that none of his superiors were around in the first place for him to report to
or ask for any permissions: -

“Q : I put it to you that when you removed the bag from Penang airport,
you did not obtain the permission from your superior to do so.

A: Refer page 79 COB. This is the time sheet . In Item A, Shaharuddin

is having his rest day. In Item B Fazil is on sick leave. In Item C
on page 79 COB, Afida is supposed to be on overtime until
1.00am but you can see on page 80 C OB that she has going off at
5.30pm (1730) and never came back on duty. I was the most senior
at this time and I was alone on duty until Anand came to replace
me. I did call Afida but cannot get through to her ”. (Emphasis
added)

[42] The two CCTV photographs exhibited at page 112 of COB (a clearer copy
was later produced at page 3 of COB-1) by the Company also shows the
Claimant leaving the Penang Airport at 9.35pm and not 8.40pm as per Charge
No. 1 in the Letter of Allegation dated 10 th May 2011. In fact, there was no
evidence whatsoever produced by the Company that the Claimant had left the
Penang Airport anytime between 8.40pm until 9.34pm on 4 th September 2010.

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The Company’s second witness, Melvyn Rajoo (COW -2), ie, the Human
Resources Manager (Industrial Relations) testified during cross -examination:-

“COC : Do you agree that there was no evidence at all material time
that the claimant had left his workplace between 20:40 and
21:30 hours on 4 th September 2010? That means 8.40pm to
9.30pm. There was no evidence whatsoever at all material
time that the claimant had left his work station or work
place between 20:40 and 21:30 on that date. This is in
relation of Charge 1

COURT : Why are you saying it’s 9.30?

COC : My Lord, because only after that he left. So here, the charge
seems to suggest from 20:40 to 22:45. So I ’m establishing
that 20:40 to 9.30, there were no evidence to show that he
had left his place. At least 9.30.

COW 2 : Referring to page 10 of COB at that point of time it was a

serious allegation, Yang Arif.

COC : I understand. I’m just saying, you are now testifying on the
whole incident as well as the procedures that was taken and
how he was dismissed finally. So my que stion is, a very
straight forward question, do you agree that there were no
evidences at all material times, that means right up until
dismissal, that means when they gone through the CCTV
footages etc. that he had left his work place between 8.40
and 9.30. Maybe to save, save us a lot of time, you just refer
to page 112 of COB which are 2 photograph capturing a
CCTV image at 9.35 he was still at the premises said to be
leaving the premises at 9.35. So t hat is why I’m asking you
there’s no evidence to show that between that time he had
not left his work place. If you are not sure, it’s okay.

COW 2 : I’m not sure, Yang Arif’. (Emphasis added)

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[43] The only person who could have shed light on the time the Claimant left
the Penang Airport on the night of the incident on 4 th September 2010 is Anand
but he was never called by the Company as a witness to give evidence before
the Court. The only evidence before this Court is the Domestic Inquiry notes
where Anand Abd Rahman had given his evidence (at p. 50 of COB-1) as
follows:-

“Q4 : Rujuk P1. Boleh anda sahkan apa yang diceritakan oleh lrfan
dalam e-mail tersebut adalah benar -benar belaka?

A4 : Ya.

Q5: Ditunjukkan keterangan bertulis ini kepada anda, sila s ahkan itu
adalah keterangan yang anda berikan kepada pegawai penyiasat
kes berhubung kejadian yang berlaku pada 04 Sep 2010 jam lebih
kurang 2135 malam?

A5 : Ya”. (Emphasis added)

[44] Exhibit P1 (at pp. 71-72 of COB) referred to during the Domestic Inquiry
is an email sent by COW-1 to COW-4 containing the complaint against the
Claimant. It is evident from the email that COW-1 stated that he was informed
by Anand that the Claimant had sent the baggage to the passenger at 9.40pm
(2140 hrs):-

“lebih kurang jam 2200It/04sep saya diberitahu oleh Abg Anan yang abg
nik ada menghantar satu beg penumpang ke hotel Citytel
2140It/mh1164/04sep”.

[45] COW-1 was only informed of the incident by Anand. He did not have
personal knowledge of the incident. No explanation was given by the Company
as to why Anand himself did not make the complaint and instead got COW-1 to
lodge the complaint to COW-4 against the Claimant. COW-1 testified during
cross-examination:-

“COC : Adakah Encik setuju bahawa En. Irfan tiada pengetahuan

secara peribadi bahawa Yang Menuntut telah meninggalkan

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 premis lapangan terbang Pulau Pinang dengan bagasi
seorang penumpang pada 4 September 2010?

COW 1: Secara peribadi, tidak.

COC : Adakah Encik setuju bahawa Encik cuma maklum mengenai

perkara ini apabila diceritakan oleh En. Adnan dan En.
Zaini? COW 1 : Setuju.

COC : Adakah En Irfan telah cuba menghubungi Yang Menuntut

melalui telefon untuk mendapatkan cerita sebenar apa yang
berlaku? Sorry, selepas diberitahu oleh En. Adnan dan En.
Zaini.

COW 1 : Saya tidak ingat”.

[46] COW-4 admitted during cross-examination that on 4 th September 2010

after 5.30pm none of the superiors were on duty and that only the Claimant,
Anand and COW-1 was on duty. COW-4 did not even know that when the
Claimant left the premises at 9.35pm on 4 th September, it was done during his
dinner break. She further testified:-

“COC : do you know the claimant has breached this paragraph or

phase 1.1? Do you know why he has breached it?

COW 4 : Because he leave the working area.

COC : Because he left the working area. But do you agree Puan,
that the claimant had gone out of the working area for his
dinner break at that time. At 9.35pm on 4 th September 2010,
are you aware that he went out for his dinner break?

COW 4 : I do not know.

COC : You do not know yeah, okay. Are you, do you agree that
there is no evidence before this court or even at the
domestic inquiry to suggest that the claimant had taken a

16
 dinner break before that 9.35pm he left. There was no
evidence right?

COW 4 : I do not knout. (Emphasis added)

[47] To compound matters, the Chairman of the Domestic Inquiry Panel,

Zulkiffly Abd. Aziz (COW-3) testified that the prosecuting officer merely
produced the two photographs from the CCTV footage (at p. 3 of COB -1) and
that the Inquiry Panel did not even have the opportunity to view the CCTV
recording of the incident on 4 th September 2010 as the same was not produced
before them.

[48] It is rather perplexing and bad management on the part of the Company
that they saw it fit to raise an issue on the Claimant going for his one -hour
dinner break, but yet closed one eye when all the superiors decided to go absent,
for one reason or another, at the BSU Arrival on 4 th September 2010 and further
allowing AOA Anand to go off for a ‘kenduri’ for three and a half hours, ie,
from 6.00pm to 9.30pm, leaving the Claimant to work all alone at the BSU.

[49] It is this Court’s finding that the Company has failed to prove Charge No.
1 against the Claimant as there is no evidence whatsoever produced by them to
show that the Claimant had indeed left his work place at the Penang Airport at
8.40pm (2040 hrs) on 4 th September 2010.

(b) Charge No. 2 - Removing passenger’s baggage from the Penang Airport
without permission

[50] Charge No.2 levelled against the Claimant is that the Claimant had on 4 th
September 2010 at 8.35pm had removed a baggage with reference AHL
HDQMH10671 from the Company’s area without permission and thus had
contravened the terms of his employment with the Company as stated in
Appendix A, Paragraph 15 sub-paragraph 15.10 and Paragraph 16 sub-paragraph
16.1 of the Malaysian Airline System Berhad Disciplinary Procedure. The said
Charge No. 2 is worded in Bahasa Malaysia as follows:-

“Tuduhan 2

17
 Bahawa anda sebagai Agen Perkhidmatan Pelanggan Syarikat
bertempat di PENAP, pada 04 September 2010, jam 2035 malam telah
mengeluarkan sebuah bagasi rujukan AHL HDQMH10671 dari kawasan
Syarikat tanpa kebenaran.

Dengan ini, anda telah melakukan satu kesalahan tatatertib yang

bertentangan dengan syarat-syarat perkhidmatan anda dengan Syarikat
sepertimana tercatit dilampiran A, Perenggan 15, Fasa 15.10 dan
Perenggan 16, Fasa 16.1 Acara Tatatertlb Penerrbangan Malaysia dan
jika sabit kesalahan, anda boleh dlkenakan hukuman yang berat ’

[51] Appendix A, Paragraph 16, sub-paragraph 16.1 of the Malaysia Airline

System Berhad Disciplinary Procedure (at p. 11 of COB-1) provides:

“Removing without proper authority Company property or property

entrusted to the Company from the aircraft or Company premises.”

Appendix A, Paragraph 15, sub -paragraph 15.10 of the Malaysia Airline System
Berhad Disciplinary Procedure (of p. 10 -11 of COB-1) provides:

“Breach of any law, rules, regulations or orders applicable to the

Company.”

[52] It is the Claimant’s contention that he was approached by the passenger,

Thomas Dahl, asking for assistance in getting his baggage transferred from
KLIA to the Penang Airport, which he duly did via Flight MH1164 after
opening the World Tracer Management File on the baggage. Upon the arrival of
the baggage at Penang Airport, the passenger (who had already left for his hotel,
ie, Cititel Hotel, Georgetown, Penang) then requested the Claimant to have his
baggage sent to his hotel as he was in the midst of a meeting with his client.

[53] The Company contends that the standard opera ting procedure pertaining
to mishandled baggage as contained in Clause 40.5 of the Ground Operations
Manual (at p. 5 of COB-1) are that:-

(i) Whenever a mishandled baggage arrives at the airport, the flight

arrival details are to be filled in according to the required format as
per the World Tracer Database system;

18
 (ii) The mishandled baggage are to be delivered as soon as possible but
due to the Customs Regulations, all passengers may be required to
clear customs inspection and collect their own baggage unless the
passengers provide their key or lock combination for the
Company’s staff to do the same on their behalf at the customs
inspection point;

(iii) Should the customer provide their key or lock combination, the
baggage is required to be strapped afte r customs clearance to avoid
any pilferage before receipt by the customer; and

(iv) When the baggage has been delivered to the customer then the file
must be closed.

[54] It is the Claimant’s testimony (CLWS-1, Q & A 7, 8, 11, 12 and 13) that
upon the passenger asking for assistance to have the baggage transferred from
KLIA to Penang Airport, he had immediately raised a World Tracer
Management File on the said baggage. The baggage was labelled as `AHL
HDQMH’ wherein the courtesy report states that the passe nger is being assisted
by the Company to transport his baggage to the Penang Airport but no costs will
be borne by the Company. When the flight carrying the baggage, ie, Flight
MH1164, took off at KLIA, the Claimant received a telex from the Company ’s
headquarters at Kuala Lumpur stating “Plse restore the bag to pax”. Upon
receiving the baggage upon arrival at the Penang Airport, the Claimant took it
through the customs exit where he was not asked by the customs officer to open
the baggage.

[55] The Claimant then took the baggage to the transportation office to request
the driver to send the baggage to the passenger at Cititel Hotel. However, the
driver on duty, ie, Zaini, refused to send the baggage by uttering the words
“toksah, toksah” (meaning “no need, no need”). The said driver Zaini was not
produced as a witness during the trial before the Court but gave scant evidence
during the Domestic Inquiry (at pp. 48-49 of COB) on the events that took place
on the night of 4 th September 2010. The said Zaini merely referred to his
Statement-In-Investigation to the Investigation Officer (at pp. 105-106 of COB)
during the Domestic Inquiry where he made a bare denial of being approached

19
by the Claimant to have the baggage sent to the passenger but admitted seeing
the Claimant taking the baggage out of the Penang Airport and seemed to be
fully aware of the incident.

[56] Charge No. 2 basically alleges that the Claimant had removed the
baggage out of Penang Airport without permission from his superiors. However,
the Company had failed to produce any evidence which shows that prior
permission was needed from the Claimant’s superiors, especially when the
World Tracer Management File had already given the instructions to restore the
baggage to the passenger. Charge No. 2 also alleges that the Claimant removed
the baggage out of Penang Airport at 8.35pm (2035 hrs) on 4 th September 2010
which is clearly incorrect as the CCTV photographs at page 3 of COB-2, as
highlighted under Charge No. 1 above, shows the Claimant leaving the Penang
Airport with the passenger’s baggage at 9.35pm (2135 hrs) on 4 th September
2010

[57] In fact, there were no superiors at the Claimant’s department, ie, BSU
Arrival, at the material point in time for him to seek permission before he
removed the baggage out of Penang Airport to be handed over to the passenger.
Mohamad Hassan Bin Pak Kechik, ie, the Customer Services Supervisor at the
Penang Airport, gave evidence during the Domestic Inquiry (at p. 46 of COB)
that only officers on duty are vested with authority and that there is nothing in
the Job Description of Customer Service Departure, PENAP (at p. 81 of COB)
and Job Description of Customer Service Arrival, PENAP (at pp. 82-83 of COB)
which prohibits BSU officers from delivering baggage to the passengers:-

“Q23 : Rujuk P5 & P6, boleh anda tunjuk kepada kami dimana
letaknya ayat bahawa tertuduh boleh merujuk kepada anda
atau duty officer semasa tiada pegawai di BSU kerana
pegawai tersebut telah mengambil cuti sakit?

A23 : It is not stated any of the documents however I believed it is

clearly stated in our SLA and during our frequent briefing,
staff are advised to refer any cases or irregularity to me
direct. In other words if they have any problems like
irregularity cases, they can refer it to me.

20
 Q24: Tahukah anda hanya pegawai -pegawai yang bertugas is
vested with authority dan bukannya pegawai yang tidak
bertugas?

A24 : I know.

Q25 : Rujuk P5 & P6, boleh anda tunjuk kepada kami dimana
ada ayat yang menyatakan kakitangan BSU dihalang
menghantar bagasi-bagasi kepada penumpang-penumpang?

A25 : Tidak ada”. (Emphasis added)

This Court notes that the said Mohamad Hassan Bin Pak Kechik was not
produced as one of the Company’s witnesses before the Court as he had passed
away by the time his turn came up to give evidence.

[58] COW-4 stated during cross-examination that she could not remember
preparing an investigation report in relation the incident on 4 th September 2010
despite the fact that she took it upon herself to conduc t her own investigations
by talking to COW-1 and Anand as well as calling up the passenger and
arranging to meet him at his hotel. COW -4 also could not remember whether she
called and spoke to the Claimant about the incident. In fact, a perusal of the
Notes of Evidence show that COW -4 during her testimony could not remember
many things and seemed to suffer from selective amnesia. COW -4 however later
agreed to the Claimant’s counsel’s suggestion that there is in fact no evidence
whatsoever that she had condu cted the investigation on the incident.

[59] COW-4 however admitted during cross -examination that the Claimant had
provided all the details required in the World Tracer Management File so that
the Company can verify if required: -

“COC : Right. Now, but do you agree. Do you agree that as at 4 th

September 2011, okay after 6pm, 4 th September, oh sorry. 4 th
September 2010 after 6pm, the incident date yeah. You have
access to the, to the World Tracer Management File to see
what was the file that the claimant had opened, right? Yes
or no? You have that access, isn ’t it?

21
 COW 4 : Yes.

COC : Yes. Now, do you agree that in that report that the claimant
had opened, the World Tracer Management File, okay. The
claimant had stated in that report that the passenger was
staying in Cititel Hotel. Is it there? Do you agree that it
was there?

COW 4 : Yes.

COC: It was there. I’m just going to refer you to the World Tracer
Management Report. This is at pages 73 and 74. Okay? COW
4 : Okay.

COC: Okay, this is the file that was report that was opened by the
claimant. Do you agree that, that claimant had clearly
stated the name of the passenger as well as the hotel that
the passenger was going to be staying in, in the report?

COW 4 : Yes, I agree.

COC : Agree. So, do you agree that the claimant was transparent
in his report by stating the details of the passenger and the
hotel so that Malaysia Airlines can verify if they require.
Do you agree?

COW 4 : Yes, I agree”. (Emphasis added)

The information in the World Tracer Management File (at pp. 1-2 of COB-1) as
well as COW-4’s testimony puts paid to COW -1’s testimony in his witness
statement (CLWS-1, Q & A 4) that he had checked the system to find any report
for baggage to be delivered to Cititel Hotel and could not find any. COW -1’s
evidence is clearly circumspect under the circumstances. The name of the
passenger as well as the name of the hotel to which the baggage was to be
delivered, ie, Cititel Hotel is clearly stated in the World Tracer Ma nagement
File (at p. 1 of COB-1).

22
[60] COW-4 further agreed during cross-examination that the instruction “Plse
restore to pax” meant that the baggage was to be handed over to the passenger
and not the other way around that the claimant was to come over to the airport
to collect his baggage:-

“COC : Okay, then the instruction “Plse return to pax”, do you

agree that when it says “please restore to pax” that means
that the baggage must be handed to the passenger?

COW 4 : I agree.

COURT : Yes.

COC : Okay, now do you also agree that, nowhere in the report
does it state that the passenger has to come and collect the
baggage at the airport. Do you agree that it is not stated
here?

COW 4 : 1 agree” (Emphasis added)

[61] It is the Claimant’s contention that the passenger needed the baggage
urgently as he needed to take his insulin and medicines before he goes to bed.
Considering the seriousness of the issue and the fact that the passenger kept on
mentioning the Company’s oft-quoted motto of “Malaysian Hospitality”, the
Claimant took the baggage out of Penang Airport, since he could not find any of
his superiors around as they were not working at that time and the driver Zaini
from the Transport Department refusing to send the baggage to Cititel Hotel.
The Claimant took it upon himself to deliver the baggage to the passenger at
Cititel Hotel, Georgetown, Penang. COW -4 confirmed during cross-examination
that there was in fact no officers vested with authority on duty on the night of
4 th September 2010 who could have given the permission to the Claimant to
remove the baggage out of Penang Airport: -

“COC : You don’t know, okay. Now, are you aware, okay, that at the
domestic inquiry, Encik Hasan Pak Kechik that is your
superior officer had testified that it ’s true only officers with
duty are vested with authority and not officer who are not on

23
 duty, are you aware of that? This is at page 46, you could
look at page 46 of the domestic inquiry notes that he had
said that. He said “I know”. Page 46 question 24

COW 4 : Yes.

COC : Okay, yes.

COW 4 : Yes.

COC : Okay, now I’m going to refer you to, now before that Yang
Arif, so I’m putting it to you Puan, that since you have
admitted there were no officers on duty at that time and
without a station manager, station manager at th at time
there was no officer on duty vested with authority to allow
or disallow the claimant taking the baggage to hand over
personally to the passenger, you agree?

COW 4 : There is no officer.

COC : Yes, there is no officer vested with that authority to tell him
you can take.

COW 4 : I agree”. (Emphasis added)

[62] Finally, the part of the testimony of COW -4 that puts paid to the
Company’s defence was where she agreed that there was not a single document
in the bundles of document before the Court that stated a Baggage Services Unit
staff like the Claimant could not deliver a baggage directly to a passenger: -

“COC : Now, do you agree that nowhere at pages 81 to 83, that bars
or stops a baggage services unit staff like the claimant,
okay, from sending a baggage directly to a passenger. Do
you agree nowhere it is stated you cannot do it?

COW 4 : I agree.

COC : Agree?

24
 COW 4 : I agree.

COC : Yes, now in fact the, this whole bundles of document that
are here in court today. Do you agree that there is no single
document to suggest from Malaysian Airlines to suggest
that he cannot take and deliver a baggage to a passenger?

COW 4 : I don’t know.

COC : You don’t know. I mean the documents are before you. COW
4 : All this document you mean?

COC : Yes, yes, all these documents that are there before you,
nothing here stops him from handing over a baggage to a
passenger.

COW 4 : Agree”. (Emphasis added)

[63] The Claimant in his witness statement (CLWS-1, Q & A 17) stated that he
was guided by the Service Transaction Manual (at p. 1 of CLB-1) when he took
it upon himself to deliver the baggage to the passenger at Cititel Hotel. The
Service Transaction Manual provides: -

“Where guidelines are not contained in the manual, all frontline staff are
recommended to use their discretion based on situational demands at that
point of time and always remember that our duty is to extend excellence
customer service to our valued clients ”.

The Company could not show or prove conclusively that the said Servic e
Transaction Manual were no longer in operation or in force.

[64] This Court finds that the Claimant had used his discretion reasonably
when faced with the situation of having to deliver the baggage to the passenger
urgently as the passenger needed his in sulin and medications badly which was in
that baggage. He also acted upon the instructions in the telex from the
headquarters at Kuala Lumpur to restore the baggage to the passenger. The
Claimant had said that he had sent the baggage for a customs check an d was
given the clearance by customers, and he thereafter brought the baggage to his

25
work station and kept it there until he had the opportunity of delivering it to the
passenger at Cititel Hotel. The Company alleged that the Claimant did not send
the baggage for customs clearance but there was no evidence produced, in
particular the CCTV recording, to support their contention.

[65] Under the circumstances and based on the evidence before it, this Court
finds that the Company has failed to prove Charge No. 2 against the Claimant.

(ii) Whether the allegations of misconduct constitute just cause or excuse

for the Claimant’s dismissal?

[66] It is this Court’s findings that the Claimant’s dismissal by the Company
was done without just cause or excuse. There was no evidence adduced by the
Company that show that the Claimant had left his workplace at 8.40pm (2040
hrs) as per Charge No. 1. There was also no evidence adduced that there was a
requirement for the Claimant to obtain the prior approval from his superiors
before removing the baggage from the Penang Airport to be sent to the
passenger at Cititel Hotel, Georgetown, Penang.

[67] The Court has perused the Domestic Inquiry notes of proceedings (at pp.
12- 70 of COB) as well as the report and decision reached by the Inquiry Panel
(at pp. 119-130 of COB) and find that the said decision of the Inquiry Panel to
be erroneous. This Court is not bound by the decision of the Domestic Inquiry
Panel. The Court of Appeal had held in the case of HONG LEONG EQUIPMENT
SDN BHD v. LIEW FOOK CHUAN & OTHER APPEALS [1997] 1 CLJ 665 that
the fact that an employer has conducted a domestic inquiry against his employee
is an entirely irrelevant consideration to the issue whether the latter had been
dismissed without just cause or excuse. The findings of a domestic inquiry are
not binding upon the Industrial Court which rehears the matter afresh. The
Industrial Court may however take into account the fact that a domestic inquiry
had been held when determining whether the employee was justly dismissed.

VI. THE REMEDY

26
[68] The Claimant has prayed for a reinstatement to his former position in the
Company. Reinstatement has been defined by Ashgar Ali Ali Mohamed in his
book “Dismissal From Employment And The Remedies ” (Second Edition) at
p. 505 as follows:-

“Reinstatement is defined as ‘putting the specified person back, in law

and in fact, in the same position as he occupied in the undertaking
before the employer terminates his employment ’. The award is intended
to restore the status quo ante of the dismissal where the employer will
be compelled to restore the claimant to his former or original position.
It carries with it a prima facie right to recover all benefits he might
reasonably have expected to receive during his period of dism issal’.
(Emphasis added)

[69] However, the remedy of reinstatement is no longer possible under the

circumstances as the Company had ceased operations and placed under
administration pursuant to the Malaysian Airline System Berhad
(Administration) Act 2015. Since the remedy of reinstatement is no longer
possible under the circumstances, it follows that there can equally be no longer
any remedy of compensation in lieu of reinstatement. The issue of compensation
can only arise if the Claimant is in a position to be reinstated. The possibility of
a reinstatement is a condition precedent to the award of compensation in lieu of
reinstatement. In the case of UNILEVER (M) HOLDINGS SDN. BHD. v. SO LAI
& ANOR [2015] 3 CLJ 900 it was held by the Federal Court:-

“The leave question also speaks of “compensation in lieu of

reinstatement”. The key words “compensation”, “in lieu of and
“reinstatement” are not defined in the IRA 1967. The Law Lexicon
defines “in lieu of”‘ as signifying “instead of and “in place of”.
Therefore reading the words “compensation in lieu of reinstatement” in
plain English it means that such compensation was meant to be a
replacement or a substitute or an alternative to reinstatement.

From the phrase “compensation in lieu of reinstatement”, it is our

judgment that the element of compensation will only arise when the
employee is in a position or situation to be reinstated. It is a condition

27
 precedent to such compensation. Our view is fortified by the clear
provision of s. 20(1) of the IRA 19 67, where the primary remedy of such a
representation to the Director General is for the workman “to be
reinstated in his former employment”. If a workman cannot be reinstated
because his age has exceeded his retirement age, the issue of
compensation cannot arise. Corollary to that logic, it cannot be in lieu of
his reinstatement. After all, reinstatement is a statutorily recognised form
of specific performance. On that premise, such specific performance can
only be ordered in a situation where the legal ba sis for such performance
does exist. One cannot substitute when the one to be substituted does
not or cannot exist. This can be seen in the legal maxim: “Iex non cogit
ad impossibilia”, le, the law does not compel the impossible”.
(Emphasis added)

[70] The Court however orders the Claimant to be paid backwages for 24
months by the Company as he was terminated from his employment on 20th
September 2011. His last drawn salary was RM2,509.36 (based on his salary
slip at page 141 of COB). The Court uses its discretion in imposing no
deductions for post-dismissal earnings. He had been doing odd-jobs helping out
his sister since 2012 importing goats from Australia. It is rather unfortunate that
the Claimant had found himself in such a predicament where the passage of time
had limited his avenues for recourse against the Company.

VII. AWARD

[71] The Court awards and directs that the Company is to pay backwages
amounting to RM60,224.64 (ie, RM2,509.36 x 24 months) to the Claimant’s
solicitors, ie, Messrs. Ramakrishnan & Associates (for onward transmission to
the Claimant) within 30 days from the date of this Award.

HANDED DOWN AND DATED THIS 29 th DAY OF APRIL 2019.

28
 (PARAMALINGAM J DORAISAMY)
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

Case(s) referred to:

Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Anor Appeal
[1995] CLJ 344

Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129

Stamford Executive Centre v. Dharsini Ganeson [1986] ILR 101

Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & O ther Appeals [1997] 1
CLJ 665

Unilever (M) Holdings Sdn. Bhd. v. So Lai & Anor [2015] 3 CLJ 900

Legislation referred to:

Industrial Relations Act 1967, s. 20 (3)

29