IN THE INDUSTRIAL COURT OF MALAYSIA (CASE NO: 18/4-2516/18 BETWEEN DZULKIFLI BIN AHMAD AND KEDAH ISLAMIC ASSET MANAGEMENT BERHAD AWARD NO: 3054 OF 2019 Before : Y.A. PUAN MARIANI BINT! GHANI CHAIRMAN Venue : INDUSTRIAL COURT OF MALAYSIA, ALOR SETAR BRANCH Date of Reference : 1,8.2018 Dates of Mention : 24.9,2018, 23.10.2018, 26.11.2018, 28.5.2019, 11.10.2019, 25.10.2019 Dates of Hearing: 24,6.2019 & 20.8.2019 Written Submission of Claimant 21.10.2019, 25.10.2019 (Reply) Written Submission OfRespondent —: ~—_11.10.2019, 25.10.2019 (Reply) Representation © : En. Mohamad Akmar Bin Mohd Ghouse Tetuan Jessy & Associates (Counsel for the Claimant) En, Md. Ismail Wahidin Malaysian Employers Federation (MEF) (Representative for the Respondent)Reference. This is a reference made under Section 20(3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of DZULKIFLI BIN AHMAD (the Claimant’) by KEDAH ISLAMIC ASSET MANAGEMENT BERHAD (‘the Respondent’) on 21* February 2018. AWARD [1] The Ministerial reference in this case required the Court to hear and determine a complaint of unfair dismissal of the Claimant from the service on 21* February 2018 was without just cause or excuse by the Respondent. Facts [2] The Claimant was employed in the position of Counter Executive (CLB1, p.1-4) and later confirmed as an Audit Executive by the Respondent vide a letter dated 25.1.1996 (CLB1, p. 5). Due to restructuring made towards the Respondent's company, vide a letter dated 1.3.2017, the Claimant's position was redesignated to Assistant Manager in Investment & Research (CLB1, p.6). The Claimant's last held position was Assistant Manager with last drawn salary of RMS, 781.00. [3] The Claimant was issued with 5 Show Cause letters and the Claimant did furnish the Respondent with a detailed explanation. Vide a letter dated 26.12.2017; the Claimant was informed that a Domestic Inquiry (Dl) will be convened on 2.1.2018 on the following charges Tuduhan 4 KECUAIAN - KESILAPAN MEMBER! NASIHAT DAN CADANGAN KEPADA PENGURUS PELABURAN UNTUK MENJUAL SAHAM KEY ALLIANCE GROUP (KGROUP) SEHINGGA MENYEBABKAN TERLEBIH JUAL DAN MENGAKIBATKAN KERUGIAN KEPADA SYARIKAT SEBANYAK RM72, 787.13 Pengurus Pelaburan atas nasihat saudara pada 12 September 2017 telah menjual saham KGROUP sebanyak 7,560,000-unit pada harga RMO.1132, sedangkan unit yang sedia ada untuk urusniaga hanyalah sebanyak 21,890,000-unit sahaja setelah berlakunya pelaksanaan “Reverse Stock Split” dan “Share Consolidation’. Saudara juga telah mengesyorkan kepada Pengurus Pelaburan supaya membuat pembelian balik kesemua saham KGROUP untuk mengatasi kesilapan terlebih jual tersebut pada hari yang sama dengan harga purata belian sebanyak RMO.1227, iaitu harga yang lebih tinggi. Ini telah mengakibatkan kerugian sebanyak RM72,787.13 direkodkan dan perlu ditanggung oleh syarikat. Saudara didapati cuai di dalam melaksanakan fugas saudara dan kesalahan yang dilakukan ini adalah dikategorikan sebagai” Major Misconduct” di bawah Terma dan Syarat Perkhidmatan KIAM di bawah Perkara 13, seperti berikut: Perenggan 13.2 “Gross and deliberate negligence resulting in damage to the company's property or financial loss” Tuduhan 2 ENGKAR ARAHAN - KESILAPAN MEMBERI NASIHAT KEPADA PENGURUS PELABURAN UNTUK MEMBUAT PEMBELIAN TAMBAHAN TANPA KEBENARAN BAGI KAUNTER ZELAN BERHAD (ZELAN) YANG TELAH DIARAH OLEH JAWATANKUASA PELABURAN (JP) UNTUK DIBUAT PEMOTONGAN KERUGIAN SECARA BERHEMAH Pengurus Pelaburan atas nasihat saudara telah membuat pembelian tambahan bagi kaunter ZELAN yang berada di dalam portfolio YINK tanpa kebenaran JP. Pihak JP telah mengarahkan di dalam Mesyuarat JP kali ke-01/2011 bertarikh 21 Februari 2011 untuk dibuat pemotongan Kerugian secara berhemah bagi 12,000-unit saham ZELAN. Disebabkan pembelian tambahan sebanyak 1,240,000-unit tersebut telah menyebabkan ‘kerugian tambahan sebanyak RM88,741.12 berdasarkan harga pada 5 Disember 2017, yang mana tidak sepatutnya berlaku jika arahan JP dipatuhi Saudara didapati engkar untuk mematuhi arahan yang telah dikeluarkan dan kesalahan ini adalah dikategorikan sebagai” Major Misconduct” di bawah Terma dan Syarat Perkhidmatan KIAM di bawah Perkara 13, seperti berikut: Perenggan 13.1 “Refusal or wilful failure to obey a lawful and reasonable instruction” 3Perenggan 13.18 “Non-compliance with the guidelines as laid down in the Company's manual and any circulars and directives issued by the company’. Tuduhan 3 GAGAL MEMBERI NASIHAT KEPADA PENGURUS PELABURAN UNTUK MEMBUAT PEMOTONGAN KERUGIAN BAGI KAUNTER-KAUNTER YANG TELAH MELEBIHi TAHAP KERUGIAN YANG DIBENARKAN DAN TIDAK MENYEDIAKAN LAPORAN BERTULIS UNTUK MEMOHON KELULUSAN DENGAN MENYATAKAN MENGAPA PEMOTONGAN KERUGIAN TIDAK PERLU DILAKUKAN Saudara didapati gagal memberi nasihat kepada Pengurus Pelaburan supaya membuat pemotongan kerugian bagi kaunter-kaunter yang telah melebihi tahap pemotongan kerugian yang dibenarkan oleh JP. Saudara juga gagal menyediakan laporan bertulis untuk memohon kelulusan mengapa pemotongan kerugian tersebut tidak perlu dilakukan, sepertimana surat-surat tunjuk sebab yang telah dikeluarkan Saudara didapati engkar untuk mematuhi arahan yang telah dikeluarkan dan kesalahan ini adalah dikategorikan sebagai “Major Misconduct” di bawah Terma dan Syarat Perkhidmatan KIAM di bawah Perkara 13, seperti berikut: Perenggan 13.1 “Refusal or wilful failure to obey a lawful and reasonable instruction” Perenggan 13.18 “Non-compliance with the guidelines as laid down in the Company's manual and any circulars and directives issued by the company” Tuduhan 4 ENGKAR ARAHAN - TIDAK HADIR “INVESTMENT DAILY BRIEFING” (IDB) SAUDARA DIDAPATI ENGKAR ARAHAN DENGAN TIDAK MENGHADIRI IDB TANPA SEBARANG SEBAB PADA TARIKH-TARIKH BERIKUT - 27.9.2017, 289.2017, 29.9.2017, 210.2017, 3.10.2017 DAN 410.2017) Saudara telah beberapa kali diberi peringatan secara lisan di dalam Mesyuarat Pelaburan dan kali terakhir dimakiumkan lagi di dalam mesyuarat pada 19.9.2017 mengenai kewajipan menghadiri IDB yang diadakan pada 4setiap hari bermula jam 8.30 pagi untuk semua kakitangan di Jabatan Pelaburan & Penyelidikan. IDB adalah tertakluk di bawah Perkara 3.3 Manual Jabatan Pelaburan & Penyelidikan yang telah diluluskan olh Ahli Lembaga Pengarah KIAM, di mana kehadiran adalah diwajibkan bagi semua kakitangan jabatan. Saudara didapati engkar untuk mematuhi arahan yang telah dikeluarkan dan kesalahan ini adalah dikategorikan sebagai “Major Misconduct” di bawah Terma dan Syarat Perkhidmatan KIAM di bawah Perkara 13, seperti berikut: Perenggan 13.1 “Refusal or wilful failure to obey a lawful and reasonable instruction” Perenggan 13.18 “Non-compliance with the guidelines as laid down in the Company's manual and any circulars and directives issued by the company’ Tuduhan 5 ENGKAR ARAHAN - TIDAK TERLIBAT/KEENGGANAN MELIBATKAN DIRI DALAM PERBINCANGAN PELABURAN HARIAN MELALUI APLIKASI “GOOGLE HANGOUTS” Saudara didapati enggan dan tidak melibatkan diri di dalam sebarang perbincangan pelaburan melalui aplikasi “Google Hangout’ di sepanjang tahun 2017 sehingga kini, walaupun surat teguran bertulis dan amaran terakhir telah diberikan kepada saudara melalui surat bertarikh 9.10.2017. Saudara juga telah beberapa kali diberi peringatan secara lisan di dalam Mesyuarat Pelaburan dan kali terakhir dimaklumkan lagi di dalam mesyuarat pada 19.9.2017 mengenai kewajipan penglibatan secara langsung oleh semua kakitangan Jabatan Pelaburan & Penyelidikan di dalam semua perbincangan, cadangan serta keputusan pelaburan harian melalui aplikasi “Google Hangout”Perbincangan harian adalah sebahagian dalam proses pelaburan dan adalah penting bagi membolehkan semua cadangan serta keputusan pelaburan yang hendak dilakukan akan direkod sebagai rujukan di masa hadapan. Saudara didapati engkar untuk mematuhi arahan yang telah dikeluarkan dan kesalahan ini adalah dikategorikan sebagai “Major Misconduct’ di bawah ‘Terma dan Syarat Perkhidmatan KIAM di bawah Perkara 13, seperti berikut: Perenggan 13.1 “Refusal or wilful failure to obey a lawful and reasonable instruction” Perenggan 13.18 “Non-compliance with the guidelines as laid down in the Company's manual and any circulars and directives issued by the company’. [4] The Claimant contended that the DI was not convened in accordance with the Principle of Natural Justice. No witnesses were called by the Respondent. Vide a letter dated 20.2.2018, the Claimant was dismissed from service (CLB1, p. 67). The Claimant's appeal to the dismissal was rejected by the Respondent (CLB1, p. 69- 89). [5] The Claimant avers that he maintained a clean service record during his tenure with the Respondent. The Claimant avers that his dismissal is in breach of the fundamental principles of natural justice and that the dismissal was without just cause or excuse Issues for Determination [6] __ In this case, it is an undisputed fact from the evidence that the Claimant's employment with the Respondent was terminated vide a letter dated 20.2.2018 (CLB1, p. 67). Based on Colgate Palmolive (M) Sdn. Bhd. v. Yap Kok Foong & Another Appeal [2001] 3 CLJ 9, it now remains to be considered whether the termination was with just cause or excuse as such whether it was serious enough to warrant the dismissal of the Claimant.The Law [7] The burden of proof is on the Respondent to prove that the Claimant has committed the alleged misconduct or wrongdoings and such misconduct or wrongdoings constitute just cause or excuse for the Claimant's dismissal. It is not disputed that the Respondent had dismissed the Claimant vide the letter dated 20.2.2018 (CLB1, p. 67). The employer bears the burden of proof on a balance of probability to prove that the employee was dismissed for a just cause or excuse. Even if the employer succeeds in proving the reason for the dismissal, it is for the Industrial Court to decide whether the dismissal was warranted or not in accordance with inter alia the principle of equity, good conscience and the substantial merits of the case [8] The function of the Industrial Court under S. 20 of the Act was succinctly expressed in the Federal Court case of Milan Auto Sdn. Bhd v. Wong Seh Yen [1995] 4 CLJ 449, as follows: “As pointed out by the Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd, [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s. 20 is twofold, first, to determine whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct constitute just cause or excuse for the dismissal.” [9] Reference is also made to the case of British Leyland UK Ltd v. Swift [1981] 1RLR 91 which had been applied in the case of Norizan Bakar v. Panzana Enterprise Sdn Bhd [2013] 4 ILR 477 and Said Dharmalingam Abdullah v. Malayan Breweries (Malaysia) Sdn Bhd [1997] 1 CLJ 646, where the Court had made the following observation: “There is a band of reasonable within which one employer may reasonably take one view: another quite reasonably takes a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. fit quite reasonable to dismiss him then the dismissal must be upheld as fair, even though some other employers may not have dismissed him.” [10] By applying the case of British Leyland UK Ltd as stated above, the issue of whether it was reasonable for the Respondent to dismiss the Claimant would dependon the seriousness of the Claimant's misconduct. The principle in that case is if the Court is of the view that it was fair for the company to dismiss a Claimant, the dismissal must be upheld as fair. It is a subjective assessment of the facts of case. [11] The parties are also bound by their pleadings. Eusoff Chin CJ in Rama Chandran v. Industrial Court of Malays & Anor {1997} 1 CLJ 147 stated: “itis trite law that a party is bound by its pleadings. The Industrial Court must scrutinise the pleadings and identify the issues, take evidence, hear parties” arguments and finally pronounce its judgment having strict regard to the issues. It is true that Industrial Court is not bound by all the technicalities of a civil court (section 30 of the Industrial Relation Act 1967) but it must follow the same general pattem. The object of pleadings is to determine what the issues are and to narrow the area of conflict. The Industrial Court cannot ignore the pleadings and treat them as mere pedantry or formalism, because if it does so, it may lose sight of the issues, admit evidence irrelevant to the issues or reject evidence relevant of the issues and come to the wrong conclusion.” Evidence Adduced by the Respondent [12] The Respondent called three (3) witnesses to prove their case: i) COW1 - Encik Adi Harriman bin Abdul Majid (Ketua Eksekutif) (i) COW2— Puan Nor Akmar Rashid binti Zainol Rashid (Pegawai Pematuhan dan Pengurusan Risiko) (ii) COWS - Prof. Dr. Rushami Zien bin Yusoff (Pengarah) [13] COW testified that one of the duties of the Claimant was to give advice to the Investment Manager, Encik Jumadi in making decision regarding investment. Nevertheless, COW1 agreed that the Claimant was only provided with his job description after 7 months he joined the Investment & Research Department. COW1 also agreed that the 1* show cause letter was given to the Claimant on 20.9.2017 (CLB1, p.7). [14] Evidently COW testified that for “Counter Zelan” is meant for selling and not for buying and this counter is not meant for profit. It is a “cut loss Counter’. It only allowed to sell the share bit by a bit and never to buy. The action of the Claimant in additionally buying caused a loss of RM88, 741.12 to the buyer.[15] From the evidence, COW1 agreed that the decision of selling and buying back the KGROUP was made by Encik Jumadi to the broker, nevertheless this is a team decision which involved the Claimant as the Assistant Manager. COW1 agreed that he did not have the evidence what is the advice that had been given by the Claimant to Encik Jumadi: Testimony of COW1 during the cross-examination S| Siapakah yang membuat pembelian tambahan? J Arahan oleh Encik Jumadi kepada Broker. Ss Bagaimana Claimant terlibat dalam hal ini? J ‘Sebab Claimant terlibat dalam memberi nasihat. s J Bukti nasihat? Ada tapi tiada dalam Mahkamah. ‘S|Ada Eneik Jumadi dipanggil sebagai saksi DI? [J | Tidak ‘S| GOBT p. 66 — Tuduhan 7 untuk Encik Jumadi Cdg: daripada jawapan tambahan, setuju bahawa beliau tidak beritahu ada menerima apa-apa nasihat daripada Claimant, betul? J | Betul. [16] COW testified that the Claimant was found guilty based on his answer to the Show Cause letters, That is why during the DI there was no witness called for the Respondent. COW1 also agreed that there was no evidence from Encik Jumadi that he received advice from the Claimant in making his decision. [17] COW2 was the Prosecuting Officer at the DI. COW2 agreed that the Respondent did not call any witness in the DI and the evidence was based on the Claimant's reply in the Show Cause letter and his statement during the DI. COW2 also agreed that the charges framed against the Claimant in the DI are not the same as allegations preferred against the Claimant in the Show Cause letter. [18] COWS in his evidence during the cross-examination when was asked to show to the Court what are the advices or proposal that the Claimant had given to Encik Jumadi as framed in Charge 1, agreed that it was not mentioned anywhere but onlybased on the Claimant's reply in the Show Cause letter. COW3 agreed that the Respondent had no proof what are the advices given by the Claimant to Encik Jumadi, COWS also agreed that the allegations preferred against the Claimant in the Show Cause letter are not the same as what are framed in Charge 1. COW3 also agreed that the Claimant was guilty as charged based on his reply in the Show Cause letter. Evidence Adduced by the Claimant [19] The Claimant called one (1) witness to prove his case, i.e. himself (CLW1). ‘The Claimant contended that he had been working with the Respondent for 23 years and he had carried his duties efficiently, diligently and excelled in his job which resulted in his promotion by the Respondent. The Claimant claimed that he also had an unblemished disciplinary record. The Claimant contended that all the charges framed against him were not true and unfounded. The Claimant had not failed to perform his duties and responsibilities entrusted to him by the Respondent as laid down under his job descriptions (GLB1, p.26-28). The Claimant contended that he had exercised his duties above the standards at all material times and he had completed all the task and assignments given by the Respondent on time. [20] For the first charge levelled against him by the Respondent, the Claimant was not involved at ail with the Manager’s decision to sell the shares hold by KGROUP. The Claimant contended that there was no admission from Investment Manager that he must be advised by the Claimant and that he must decide based 0 the Claimant's advice. The Claimant had never been trusted or instructed by the Respondent to give advice or opinion to his Manager especially in matter involving sale and purchase of shares. This was admitted by the Respondent's witnesses, COW2 and COWS when they were crossed by the Claimant's counsel: Testimony of COW3 during Cross-examination S| COBT ms 71, nota Di dirujuk- Tuduhan 7 Pengadu cuai dan silap beri nesihat dan cadangan kepada Encik Jumadi — Boleh tunjukkan kepada Mahkamah apakah nasihat dan cadangan tersebut? J | Tiada dinyatakan di mana-mana hanya berdasarkan jawapan Claimant sendiri dalam Show Cause letter Claimant. 10CLBT m.s 7 (Surat tunjuk sebab) Surat syarikat kepada Claimant — ditujukan kepada siapa? Kepada Encik Jumadi dan Claimant. al ol Dalam surat tunjuk sebab (CLB1 m.s 7), adakah syarikat ada menuduh kepada Claimant bahawa Claimant telah cuai atau silap beri nasihat? a Tiada secara spesifik kepada Claimant-surat hanya untuk penjelasan jualan lebihan. ‘Setuju surat Show Cause adalah tidak sama dengan pertuduhan satu Setuju Sekira sural ini tidak sama dengan pertuduhan 7, mengapa Claimant boleh didapati salah dalam pertuduhan 1? ‘Kami melihat kepada pengiibatan Claimant dalam proses tersebut. Claimant bersalah merujuk kepada jawapan Show Cause, betul? Betul al cals) a) co CLBT m.s 10-11 (merujuk kepada jawapan Claimant) Adakah dalam jawapan tersebut ada pengakuan salah? Tiada Jika tiada pengakuan salah, di mana bukii daripada jawepan yang diberikan beliau bersalah atas tuduhan 1? "Tindakan yang bukan disengajakan untuk menjual unit saham tersebut melebihi unit” ‘Adakah di mana-mana dalam jawapan tersebut mengatakan ini adalah nasihat oleh Claimant? J a) J ol Tiada. Panel mensabitkan Claimant atas jawapan ini untuk tuduhan 1? Betul al cl Tuduhan 1 — cuai/silap bagi nasihat kepada Encik Jumadi. Ada Encik Jumadi dipanggil sebagai saksi? Tidak. ‘Setuju, awak tiada bukti apakah nasihat yang diberikan oleh Claimant kepada Encik Jumadi? ‘Setuju. (21) ‘The Claimant submitted that he should not be held liable for the 2" Charge, because there is no proof that the Respondent had given the Claimant such instruction that he had to give an advice to his Manager, En. Jumaidi regarding the “additional purchases for Counter Zelan’, The Respondent's witness, cows admitted that during the cross-examination that the instruction was given directly to Encik Jumadi. In fact, Encik Jumadi never mentioned that he acted based on the nnClaimant's advice. And it is the duty of Encik Jumadi as Manager to do the cutting loss for the Counter Zelan, COWS agreed during the cross-examination that the Respondent had no proof that an advice was given by the Claimant: Testimony of COW3 during Cross-examination S| Engkar arahan — kesilapan memberi nasihat kepada Pengurus, setuju tiada bukti nasihat/eadangan yang diberikan oleh Claimant kepada Jumadi? J Setuju. S| Setuju Pihak panel dapati Claimant bersalah hanya berdasarkan jawapan | show cause dan juga jawapan Claimant dalam DI? J__| Ya, setuju. S| Boleh tunjukkan apakah jawapan Claimant tersebut yang dirujuk oleh panel? J COB1 m.s 72 — Claimant ada beri pendapat dalam teknikal graph. S| Ada bukti yang Encik Jumadi mengunapakai pendapat Claimant dalam bentuk teknikal graph ini? J | Tiada. S| Pembelian tambahan, siapakah yang bertanggungjawab? J | Jumadi S| Setuju, En Jumadi perlu dapatkan kebenaran daripada kaunter Zelan seperti yang diarahkan oleh JP? J | Betul, setuju. S| Setuju, arahan ini kepada Jumadi dan bukan kepada Claimant? J_| Tidak setuju: S| Setuju, arahan ini kepada Jumadi dan bukan kepada Claimant? J__| Tidak setuju. ‘S| Dimanakah arahan janya kepada dua-dua? J Tiada oi Mahkamah pada hari ini tapi dalam Board Paper. S| Setuju bahawa pada hari ini syarikat tiada bukti ada arahan diberikan kepada Claimant? J_| Ya, setuju. [22] The Claimant contended that giving advice was not his duty and responsibility. He was entrusted to do research on investment, prepare a Report whenever instructed by the Respondent and to help the Manager to administer the Investment 12Department. There was no instruction from the Respondent to the Claimant that he must give advice to his Manager to do the cut loss. The Respondent's witness, COWS during the cross examination admitted that the advice and reminder had been sufficiently given directly to the Investment Manager (Encik Jumadi) for him to do the cut loss. The Claimant aiso testified that he had submitted the said written report to the Respondent before they conducted the Mesyuarat Jawatankuasa Pelaburan on 4" December 2017. Therefore, the Claimant submitted that he should not be held liable for the 3°? Charge: Testimony of COW3 during Cross-examination ‘S| Adakah Pengurus Pelaburan perlu mendapatkan nasihat daripada Claimant untuk membuat pemotongan? J | Tak pertu. ‘S| €OB1 m.s 74 - jawapan fambahan Claimant di (6) dan (c). Setuju memo syarikat bertarikh pada 27.3.2017 memberi nasihat kepada Encik Jumadi? Setuju. COBT m.s.73 luduhan 3. ‘tidak menyediakan laporan bertulis ...” Setuju Iaporan ini telah disediakan dan telah diserahkan kepada Responden? Tidak pasti. goals {23} As forthe 4” Charge, the Claimant contended that the Respondent had failed to produce any attendance record for his absence. The Claimant contended that he had attended the briefing. He would not attend the briefing if he received an instruction from his superior to do research or technical analysis for the purpose of the briefing. The Claimant also contended that the Respondent had failed to produce any guidelines or instruction that the Briefing is compulsory. The Claimant further testified that his superior Encik Jumadi never complained or made any report regarding of his non present in the IDB: Testimony of COWS during the Cross-examination [s COBT ms 74, tuduhan 4, “Engkar perintah tidak hadir briefing daily’, ada arahan yang Claimant pertu hadir? J Tiada dalam Mahkamah. “Ada Encik Jumadi buat pengaduan bahawa Claimant gagal hadir 12D? J Tiada 3S| Ada syarikat terima sebarang rungutan daripada Pengurus pelaburan mengenai ketidakhadiran Claimant dalam IDB? "| J | Tiada [24] And for the 5 Charge, the Respondent bears the burden to prove that the Claimant had failed to participate or involve in the said investment's discussion. There was no evidence produced before the Court during the trial on what had been discussed and the Claimant had failed to involve or to participate in that discussion. No evidence had been adduced by the Respondent regarding this matter. There was no evidence showing that failing to participate in the discussion in this “Google Hangout’ is insubordination. COWS agreed during the cross-examination that the Respondent had no proof what had been discussed, failing which to participate making the Claimant insubordinate: Testimony of COWS during Cross-examination ‘S| Boleh buktikan apakah perbincangan yang enggan Claimant melibatkan iri hingga dia engkar perintah? J Tiada bukti. [25] The Claimant during the re-examination confirmed that he never denied that he was involved in Charge 1, Charge 2 and 3 because when he answered the Show Cause letter issued to him and Encik Jumadi, he merely answered and explained the situation occurred on behalf of the department. Furthermore, the Claimant contended that the allegation in the show cause letters are not the same as the charges framed against him. The Claimant contended that it is unfair for the Respondent taking his expalanation in the show cause letter as admission of guilty: Testimony of Claimant during re-examination S| COBT ms 11-19, Adakah jawapan ini untuk tunjuk sebab untuk pertuduhan 1? J] Untuk tunjuk sebab. Kenapa awak tidak menafikan awak terlibat dalam pertuduhan 1? | Saya menjawab surat tunjuk sebab bagi pihak Jabatan Pelaburan dan penjelasan ini menerangkan kepada pengurusan apa yang berlaku dan kesilapan ini berlaku tidak disengajakan kerana berdasarkan laporan oleh Puan Zamharik dan En. Zawawi. Saya tidak terlibat dalam urusniaga ini sebab ianya diuruskan oleh Encik Jumadi sendiri. 14jawapan awak sedia maklum tentang arahan mengenai pemotongan ‘secara berhemah di kaunter Zelan? J Urusniaga berlaku dalam tahun 2017 dan saya mula joint bahagian Pelaburan 1 Mac 2017. Saya baru sertai bahagian Pelaburan dan kerja- kerja penyelidikan masih dilakukan oleh Encik Jumadi, jadi saya tidak terlibat langsung kerana baru joint dalam 1 bulan sahaja. | s COB? ms 36-46 — Kenapa anda tidak setuju bahawa awak co [26] The Claimant testified that the DI was not convened in accordance with the Principles of Natural Justice. The DI held on 16.1.2018 and the Respondent failed to call any of the Respondent's witness. It was only the Claimant that was asked to answer the charges. The Panel of the D! should have made the decision based on the Claimant's reply to the Show Cause letter. The Evaluation and Findings [27] The burden of proof is on the Respondent to prove that the Claimant had committed the alleged misconduct or wrongdoings and such misconduct or wrongdoings constitute just cause or excuse for the Claimant's dismissal. The Respondent has to prove it on a standard of a balance of probabilities. It is not disputed that the Respondent had dismissed the Claimant vide the letter dated 20.2.2018 (COB1 p. 77) with effect from 21.2.2018. [28] Based on Colgate Palmolive (M) Sdn. Bhd. V. Yap KokFoong & Another Appeal [2001] 3 CLH 9, it now remains to be considered whether the termination was with just cause or excuse as such whether it was serious enough to warrant the dismissal of the Claimant. From the evidence, it is crystal clear that the findings of the DI that the Claimant was guilty for all the charges preferred against him. [29] In the case of Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan & Other Appeals (1997) 1 CLJ 665 the Court of Appeal held that: “The fact that an employer has conducted a DI against his workman is, in my judgement, an entirely irrelevant consideration to the issue whether the latter had been dismissed with just cause or excuse. The findings of a DI are not binding upon the Industrial Court which rehears the matter afresh. However, it may take into account the fact that a DI had been held when determining whether the particular workman was justly dismissed. 15Was it otherwise, the guilt or innocence of a workman upon a charge of misconduct would be decided not by the industrial Court, but the employer himself? That, with all respect, is not the purpose for which parliament went through the elaborate process of legislating the Act and setting up special machinery for the vindication of the right of workmen.” [30] Hence, the Court will still proceed to hear the evidence of all the witnesses for both sides in determining whether the Claimant's dismissal was with just cause or excuse. As there was no dispute as to the fact that the Claimant was dismissed, the sole issue before this Court is whether the Claimant was dismissed with just cause or excuse. [31] In the case of Stamford Executive Centre v. Puan Darshini Ganeson Industrial Court Award No. 263 of 1985, the Industrial Court held: “It may further be_ emphasized here 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. He must prove the workman guilty, and it is not workman who must prove himself not quilty. This is so basic a principle of Industrial jurisprudence that no employer is expected to. come to this court ignorance of it”. (Emphasis added) [32] From the evidence adduced by the Respondent's witnesses, COW1, COW2 and COWS agreed that the Respondent did not have any proof what was and when the advice was given by the Claimant to Encik Jumadi, The panel of the DI found the Claimant guilty based on his reply to the Show Cause letter. From the evidence it is clear that when the Claimant reply to the Show Cause letter, the Claimant replied it on behalf of the Department merely to explain what happened and it was never an admission of guilt by the Claimant. The Respondent's witnesses also agreed that the charges framed are not the same as the allegation preferred in the Show Cause letter. COWS testified that it is not the same when being cross-examined by the Claimant's Counsel (as in paragraph [24}) [33] During the trial, this Court agreed that the Respondent failed to prove what was the advice given and when the advice was given to Encik Jumadi. This was admitted by the Respondent's witnesses during the cross-examinations. 16[34] There is no strong and cogent evidence produced before this Court that Encik Jumadi had acted based on the Claimant's advice before he proceed with the additional purchase for Zelan's Counter. COWS also confirmed during cross- examination that Encik Jumadi was the one who had decided to proceed with the additional purchase for Zelan’s Counter and it was Encik Jumadi responsibility/duty to obtain the approval from the JP and not the Claimant. This evidence can be found in paragraph [24] and [25] above (Emphasis added). [35] From the evidence provided, the Court agreed with the Claimant that the Claimant was never under duty and responsibility to give advice to Encik Jumadi Referring to the Claimant's job descriptions at page 27 and 28 CLB1, there was nothing to prove that the Claimant is under a duty and had been assigned to give advice to Encik Jumadi. There was absence of evidence that Encik Jumadi must act based on the Claimant's advice. [36] As pointed out in evidence that the duty to “cut loss" as framed in Charge 3 is a duty of the Investment Manager (Encik Jumadi). This evidence can be found in paragraph [26] above (Emphasis added). COWS confirmed it during the cross- examination. [37] The Respondent also failed to prove before this Court that there was instruction given by the Respondent to the Claimant that it is compulsory for the Claimant to attend the morning briefing and failing to adhere to the instruction is a serious misconduct. From the evidence, this Court finds the Respondent's allegation was not convincing since if attendance of the briefing is compulsory, Encik Jumadi being the Claimant's superior would have received compiaint from the Respondent's management or from Encik Jumadi himself. The Claimant also had received no waming letter or reminder regarding this matter. When COW1 was being asked to produce the instruction during the cross-examination, COW1 confirmed, there was none. Later, when asked, who has issued the Instruction, COW1 contended that it was by the Board of Director. But when COW3 was cross-examined regarding this instruction, COW3 confirmed that, there was no such instruction given to the Claimant regarding the briefing’s attendance is compulsory. Though in his letter of explanation, the Claimant did admitted that he did not attend the briefing a few times, 7but still the Respondent was unable to proof that the attendance was compulsory and failed to attend it is an act of misconduct. [38] During the full trial there was no such evidence from the Respondents’ witnesses what was the discussion that the Claimant failed to participate even if there was such instruction that the employees must actively participate in that “Google Hangout”. This Court agrees with the Claimant's Counsel that there was no such evidence. Furthermore, COWS confirmed that they have no evidence to prove in this Court that the Claimant had failed to participate and/or involve in the discussion. And yet the Claimant also have given his unrebutted and unchallenged evidence before this Court the actual purpose of the “Google Hangout" via CLWS-1b as follows "78. S |Bolehkah tuan jelaskan kepada Mahkamah tujuan sebenar aplikasi | “Google Hangout" dipasang di Jabatan tuan? J | Untuk makluman Mahkamah, aplikasi “Google Hangout” mula dipasang di Jabatan Pelaburan & Penyelidikan pada pertengahan tahun 2016. la | dipasang bagi membolehkan Pengurus Pelaburan memaklumkan segera transaksi jual beli saham kepada Unit Settlement, yang mana pada penutup urusniaga, Unit Settlement perlu menggunakan maklumat tersebut bagi menyediakan Laporan daily Capital Value (DCV). Selain itu, aplikasi “Google Hangout" digunakan oleh Ketua Jabatan untuk memberi arahan ringkas kepada kakitangan jabatan atau maklum balas ringkas kakitangan Jabatan kepada saya dan Puan Zalailawati selaku Penyelidik di Jabatan Pelaburan. Selebihnya, ia berfungsi sebagai saluran komunikasi ringkas sesama kakitangan Jabatan [39] The Claimant submitted that the Respondent should have called the staff in the Investment & Research Department especially Encik Jumadi who was the Investment Manager. In three (3) of the charges, the Claimant was charged on his negligence in giving advice to his Investment Manager, Encik Jumadi. Encik Jumadi is the best person to give the evidence to this Court, whether the Claimant had given him the advice and that him had acted on it when he did the stock selling and buying transaction, However, during the Dl Encik Jumadi was not called by the Respondent to give evidence. 18[40] The Claimant made a reference to the case of Sime Darby Bhd v. Khalid Abd Rahman [197/1 ILR 375, in this case, section 114(g) of the evidence Act was invoked for the failure to call material witness in Court, the Court held: ‘11] the Company has failed to prove the charges against the Claimant, as it did not get the testimony of witnesses whose evidence was essential for the effectual adjudication of the Industrial Tribunal. The Industrial Tribunal invoked s, 114(g) of the Evidence Act 1950 fo the Company's disfavour". [41] This Court agrees with the Claimant's submission that the Claimant was found guilty by the Respondent based on the Claimant's explanation in his replied to the show cause letter. All the Respondent's witnesses agreed that they have no proof whether the Claimant did give the advice and what was the advice had been given to Encik Jumadi [42] Since the onus of proving that the Claimant did committed the five (5) charges framed against him lies on the Respondent, the Respondent must discharge this burden by adducing cogent and concrete evidence, whether oral or documentary, to prove the facts and circumstances. This Court satisfies that the Respondent had failed to prove the case on the balance of probabilities. [43] As a Court of arbitration, s. 30(5) of the Industrial Relation Act 1967 (Act 177) requires the Court to decide a case in accordance with equity and good conscience as reflected in the case of Harris Solid State (M) Sdn Bhd & Ors. V. Bruno Gentil Pereira & Ors [1996] 4 CLJ 747 CA, whereby Gopal Sri Ram JCA had stated that it is incumbent upon the Court to have regard to substantial merits of the case rather than to technicalities. [44] In conclusion, taking into account the totality of the evidence adduced by both parties and bearing in mind s. 30(5) of the Industrial Relations Act 1967 to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form, this court finds that the dismissal of the Claimant was without just cause or excuse. Therefore, the Claimant's claim is hereby allowed. 19Relief [45] The Court will now proceed to consider the relief the Claimant is entitled to for the loss of his employment. The primary relief for an unjustified dismissal is reinstatement but before the Court decides whether the Claimant should be reinstated to his former position, this Court has to consider the industrial harmony of the parties and if that could be maintenance should these court orders that the Claimant be reinstated. The Claimant has been dismissed for more than 4 year and there could be some changes in the Respondent's company. Hence, itis not in the interest of Industrial harmony to make an order of reinstatement for the Claimant, [46] In the case of Koperasi Serbaguna Sanya Bhd (Sabah) v. Dr James Alfred (Sabah) & Anor [2000] 3 CLJ 758, the Court of Appeal held at p. 766 the following: “In Industrial law, the usual remedy for unjustified dismissal is an order of reinstatement. It is only in rare cases that reinstatement is refused. For example, as here, where the relationship between the parties had broken down so badly that it would not be conducive to industrial harmony to return the workman to his place of work, In such a case, the industrial Court may award monetary compensation. Such an award is usually in two parts. First, there is the usual award for the arrears of wages, or back wages, as it is sometimes called. It is to compensate the workman for the period the he has been unemployed because of the unjustified act of dismissal. Second, there is an award of compensation in lieu of reinstatement.” [47] The above decision was affirmed in the Federal Court and p. 544 of the reported case in Dr. James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd. (Sabah) & Anor (supra), his Lordship Steve Shim CJ (Sabah and Sarawak) said: "We take the view that the quantum of back wages is a matter within the discretion of the Industrial Court. That discretion is, however, not unfettered. It has to be exercised according to law. In this connection, s. 30(5) of the Industrial Relation Act 1967, is significant, and it reads: The Court shall act according fo equity, good conscience and the substantial merit of the case without regard to technicalities and legal form. it seems clear therefore that the court has to act in accordance with equity in the exercise of its discretion. Here we may also add that we find sufficient 20merit in the proposition stated in vol. 2 of the 4" edn. Of the Law of Industrial Disputes by Malhotra cited with approval by the Court of Appeal. The relevant passage on page 961 bears repetition herein. It reads: In dealing with different types of cases, the tribunal in each case has to. see that relief should be given in a particular case to a particular workman in the matter of compensation by balancing the conflicting claims and the variations that exist in human conduct and the requirements of social justice. On the parity of reasoning, the adjudicator has to counter- balance the claim of the employer that the workman was gainfully employed elsewhere during the period of unemployment with him, with the claim of the workman that he was not employed anywhere at all. The quantum of back wages is, therefore, a matter in the discretion of the tribunal dependent on the facts of a case. The tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. ... A workman directed under an award to reinstated with back wages would not be entitled to back wages for the period during which he was usefully employed elsewhere, because he cannot be allowed fo take double advantage and make excessive gains relying on the wrongful act of the employers. In our view, it is in line with equity and good conscience that the Industrial Court in assessing quantum of back wages should take into account the fact, if established by evidence or admitted, that the workman has been gainfully employed elsewhere after his dismissal. Failure to do so constitutes a Jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course, taking into account of such employment after dismissal does not necessarily mean that the Industrial Court has to conduct a mathematical exercise in deduction. What is important that the Industrial Court, in the exercise of its discretion in assessing the quantum of back wages, should take into account all relevant matters including the fact, where it exits, that the workman has been gainfully employed elsewhere after his dismissal. The discretion is in the nature of a decision-making process". [48] The Court is also mindful of the provision of s. 30(5), s.30 (6A) and the Second Schedule of the Act in considering the appropriate relief to be awarded to the Claimant. The Claimant said that he has not been employed after the dismissal. Having considered all the above and items 1 and 3 of the Second Schedule of the Act, the Court hereby orders that the Claimant be allowed the relief of payment of back wages equivalent to 17 months of his last drawn monthly salary. He is also to be paid compensation in lieu of reinstatement. a[49] After considering the above, the Court orders that the relief to be awarded shall be: Back wages of 17 months RM5,781.00 X 17 months = RM96, 277.00 (21.2.2018 to 20.8.2019) { ‘Compensation in lieu of reinstatement | RM5,781.00 X 23 months (19.12.1984 to 21.2.2018) = RM132,963.00 RM98, 277.00 + RM132,963.00 Total M231,240.00 Order [50] It is hereby ordered that the whole amount RM231, 240.00, after deducting the necessary statutory deduction if any, is to be paid by the Respondent to the Claimant through the Claimant's Counsel Messrs. Jessy & Associates within 30 days from the date of this award. [51] In arriving at this decision, the Court has acted with equity and good conscience and the substantial merits of the case without regard to technicalities and legal form as stated under s. 30(5) of the Act HANDED DOWN AND DATED THIS 25™ DAY OF NOVEMBER 2019 MAN INDUSTRIAL COURT OF MALAYSIA PENANG BRANCH 2