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INDUSTRIAL COURT OF MALAYSIA

CASE NO: 18/4-24/06

OOI CHIK PENG
V.

EMBEDDED WIRELESS LABS
SDN. BHD.

AWARD NO: 1030 OF 2010

Before : Y.A. RAJENDRAN NAYAGAM
CHAIRMAN

Venue : Industrial Court Malaysia, Penang

Date of Reference : 11th October 2005

Dates of Mention : 22nd February 2006; 9th August 2006; 18th April 2006;
27th August 2007; 10th September 2007; 15th October 2008;
20th May 2010;

Dates of Hearing : 28th August 2008; 22nd July 2009; 14th June 2010.

Date of Oral Submission : 26th July 2010

Representation : Mr. Ajit Singh Jessy of Messrs Jessy & Associates
for the Claimant

Mr. Savinderjeet Singh Counsel for Messrs Azfar,
Chin & Solomon
for the Company

Reference:

This is a reference made under Section 20(3) of the Industrial Relations Act, 1967
arising out of the dismissal of Mr. Ooi Chik Peng (“the Claimant”) by Embedded Wireless Labs
Sdn. Bhd. (“the Company”).

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2 . At this meeting. On 10th September 2002 the Claimant's superior directed the Claimant to see him. the issue of the Claimant's resignation was brought up. Ooi Chik Peng (“the Claimant”) by Embedded Wireless Labs Sdn. This e-mail was concerning a tooling tool identified as no. in view of the Claimant's e-mail issued one year later. wherein he now offered to pay the manufacturer for it. The Company became doubtful that said tool was made pursuant to the purchasing order issued on 9th March 2001. The Claimant got into problems with the Company. if the Company was willing to pay compensation. Brief facts The Claimant now aged 46 years commenced employment on 1 st August 2000 and at the time of dismissal held the position of Director of Materials & Manufacturing. the negotiations fell through and the Claimant was dismissed by the issuance of a letter of termination dated 10th September 2002 which he received on 29th September 2002. This is a Ministerial reference to the Industrial Court under section 20(3) of the Industrial Relations Act 1967 made on 11th October 2005 for an award in respect of the dismissal of Mr. AWARD 1.805 per month. infringing the Company's policy that all all business related correspondence by e-mail have to be transmitted using the Company's e-mail ID. (“the Company”). When the Claimant was confronted with the matter. However. he offered to resign. The Company had outsourced its manufacturing to BWP Industries Sdn Bhd and they were required to fabricate tooling tools in order to do the manufacturing. for the Company. when the Finance division of the Company came across an e-mail (COE1) sent 25th April 2002 by the Claimant to his secretary (COW3) using his private address to his secretary's private address. The Company was involved in switch technology for a telecommunication centre. Bhd. It was primarily doing research and development. 2. 41-WH15010-320. earning a sum of RM17. What tooling tools should be fabricated by BWP Industries Sdn Bhd was the responsibility of the Claimant's department.

the Company had outsourced the manufacturing to BWP and as such BWP had to fabricate the said tool. we will send a D. The Company then came across the Claimant's private e-mail to his secretary (COW3) sent on 25th April 2002 which stated as follows. But once the employer chooses to give a reason for the dismissal.3. After the tool is done. which he did on 9th March 2001 by issuing the Company's purchase order no0183 to BWP Industries (M) Sdn Bhd.8 of the Company's reply. It is trite law that the reason for dismissal need not be stated in the letter of termination. The Company was under the impression that this had been done.O. to John to acknowledge as the tool is transferred to Le-Champ. so long as the Claimant has been informed of it in other ways. However. In the instant case. Discussed with John (Le-Champ) to tool up and I will pay for the tool. 41-WH15010-320. to carry out the manufacturing. “Carolyn. As stated above. This is main complaint of the Company against the Claimant and the Claimant was confronted with the accusation. it averred inter alia that the Claimant had colluded with BWP Industries (M) Sdn. (see Galift (M) Sdn Bhd v Tay Keng Lock [1993] ILR 169). until the Company made the decision in April 2002 to change its contract manufacturer from BWP to another Company called LeChamp Technology Sdn Bhd and BWP was directed to deliver the said tool back to the Company together with other tooling tools and to be redelivered with a supporting delivery order to LeChamp Technology Sdn Bhd. the court will then enquire whether the reason has been made out and will not go into another reason not relied on by the employer. (see Goon Kwee Phoy v J & P Coats (M) Bhd. the Company in the letter of termination stated ''performance and conduct'' of the Claimant as grounds for his dismissal. Whether the claimant is guilty of misconduct? Evaluation In this case. the Claimant was responsible for placing an order for the manufacture a tooling tool identified as no. (hereinafter referred to as BWP). But the Company did not give any details. at para 10. [1981] 1 LNS 30). Bhd in failing to make the said tool. 3 .

after it is done. Yet the director of BWP (CLE2) stated in evidence that his Company had made the said tool within one month upon receipt of the purchase order dated 9th March 2001 and it was kept by the Company.E. stating that the tool will be transferred to Le-Champ after it is done. clearly states that the Claimant will pay for the tool. the Company's accusation against the Claimant that tool no. the Claimant's own e-mail confirmed that the said tool had not been done as at 25th April 2002. the Company's C. 4 . I will call you tomorrow (Friday) afternoon. which was item 9 in the purchase order. The content of e-mail which is set out as above. The Claimant could not give a reasonable explanation as to why he had privately e-mailed COW2. Thanks. Another interesting feature is that the so-called delivery order of BWP did not relate to said tool and the description of the tool in the delivery order had been unilaterally amended by the Claimant. Hence. COW2. when it was clearly prohibited by Company policy as contained in Employee Handbook. to be redelivered to LeChamp.O. As such. it could not be returned by BWP to the Company.” The Claimant has confirmed in his cross-examination that the e-mail sent to COW3 was regarding tool no. when the Company had issued the purchase order in March 2001 and had paid for it. The most damning evidence is that there was no explanation as to why he had to offer to pay for it. If the said tool had been made. Hence. 41-WH15010-320 was not made by BWP pursuant to the issuance of Company's purchase order on 9 th March 2001 is well grounded based on the substantial merits of the case. stated that they had checked with BWP on the amended delivery order handed over by the Claimant and BWP stated that they had no record of it. This was clearly a blatant lie. The Claimant also could not produce a proper delivery order in respect of the said tool. CP. then the Claimant would not have sent the said e-mail. 41-WH15010-320.

there is implied in a contract of employment that the relationship between the employer and employee is one of complete trust and confidence.805 per month. based on the substantial merits of the case. In determining the misconduct of the Claimant. 5 . the Company was involved in research and development and Claimant was the Company's Director of Materials & Manufacturing. it is little wonder that the company lost its trust and confidence in the Claimant. In the present case. This shows that the Claimant was a senior employee. In the light of this Company policy. 4. (see British Home Stores Ltd v Burchell (1978) ILR 378). (see Isle of Wright Tourist Board v Combes [1971] 3 WLR 995). when they discovered that the said tool was not manufactured in 2001 and attempts by the Claimant to cover his tracts. It expected its employees to conduct business in accordance with the relevant laws and to refrain from any dishonest or unethical conduct. it has to give special regard to substantial merits and equity and good conscience. The Company's Employee Handbook on professional & business conduct states inter alia that the Company placed great emphasis on the principle of fair dealing and expected high standards of professional conduct and personal integrity from all its employees across ranks. it is the finding of this Court that the Claimant is guilty of misconduct and as such the dismissal is with just cause or excuse. they had no choice but to dismiss him. the court should not proceed as if it is exercising the function of a criminal court and in arriving at its decision. (see Telekom Malaysia Kawasan Utara v Krishnan Kutty a/l Sanguni [2002] 3 AMR 2898) Hence. holding an important position in the Company. earning RM17. Hence. Finding For the reasons given. it is the finding of this court that the Company was entitled to entertain a reasonable suspicion amounting to a belief that the Claimant was guilty of the misconduct. Further.

HANDED DOWN AND DATED THIS 3RD DAY OF AUGUST 2010. Order Accordingly.5. for the reasons given. the claim is hereby dismissed. Signed (RAJENDRAN NAYAGAM) CHAIRMAN INDUSTRIAL COURT 6 .