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1. Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163
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 Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163
Industrial Law Journal Unreported (ILJU)

INDUSTRIAL COURT (KUALA LUMPUR)

GULAM MUHIADDEEN BIN ABDUL AZIZ, C
AWARD NO: 634 OF 2020
26 February 2013

Wilfred Yap Yau Sin with Siti Nur Syuhada binti Kahar (Wan Junaidi & Company Advocates) for the Claimant.
Leonard David Shim, Nicholas Wung Duk Ling and Stella Sim Mei Li together with him (Reddi & Co.) for the
Company.

Gulam Muhiaddeen Bin Abdul Aziz C:

THE REFERENCE :

The parties to the dispute are Hii King (hereinafter referred to as “the Claimant”) and Sarawak Energy Bhd.
(hereinafter referred to as “the Company”). The Ministerial reference to the Industrial Court pursuant to Section 20
(3) of the Industrial Relations Act 1967 (herein referred to as “IRA 1967”) was made on 26 February 2013 in relation
to the dismissal of the Claimant by the Company on 14 November 2012.
PROCEDURAL HISTORY

Although the Minister’s Reference was dated 26 February 2013, the Company filed a Judicial Review in the High
Court Kuching to quash the Minister’s Reference. The High Court on 20 May 2013, ordered a stay of the
proceedings in the Industrial Court case pending the final determination of the application for judicial review or any
appeals therefrom.

On 5 May 2016, the Company’s Counsel, Mr. Chow Yu Yen informed the Court, that their application for judicial
review was dismissed by the High Court and also by the Court of Appeal. On the same date, the Resident
Chairman of the Kuching Industrial Court, Yang Arif Puan Ani ak Solep recused herself from hearing the matter as
the main complainant in the case, Puan Cindy Anak Ahid @ Natasia Ahid Abdullah was from the same village as
the learned Chairman and she knew her. In order to avoid any allegation of biasness or conflict of interest, she
decided to discharge herself from hearing the case.

On 21 July 2016, Sarawak Sesco Berhad (“SSB”), a subsidiary of the Company was joined as a party to the present
case.

On 8 September 2016, the trial proceeded before Y.A. Tuan Duncan Sikodol who heard five (5) of the Company’s
witnesses and on the request of the Company’s Counsel, adjourn the matter to a date to be fixed by the Court.

On 25 July 2019, I was instructed by the President to continue hearing the matter as Y.A. Dato’ Duncan Sikodol
was elevated as the Judicial Commissioner of the High Court of Sabah & Sarawak on 14 May 2018. The case
proceeded with COW-6’s evidence and also the Claimant’s. Both parties were then instructed to file their written
submissions.

Both parties filed their written submissions on 19 August 2019 and their reply on 17 September 2019.
FACTUAL BACKGROUND

The Claimant commenced his employment with Sarawak Electricity Supply Corporation (hereinafter referred to as
“SESCorp”) on 17 March 1980. SESCorp was a statutory body corporate incorporated by the Sarawak Electricity
 Page 2 of 17
Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

Supply Corporation Ordinance, 1962 [Cap. 51]. SESCorp ceased to exist on 1 July 2005 by reason of the Sarawak
Electricity Supply Corporation (Successor Company) Ordinance 2004 (hereinafter referred to as “the Successor
Ordinance”). Syarikat Sesco Berhad (Company No. 672931-A) is a company incorporated in Malaysia on 25
November 2004 under the Companies Act 1965. Syarikat Sesco Berhad (“SSB”) became the “Successor Company”
of SESCorp in accordance with the Successor Ordinance.

The Claimant was vide Letter of Appointment dated 24 June 2005, employed by SSB as a Clerk Accounting
Services, Finance Department at a monthly salary of RM2,912.05 with effect from 1 July 2005.

On 16 July 2012, the Claimant received a Show Cause Letter to explain why the Claimant had behaved in an unruly
and violent manner against a fellow employee, Puan Cindy Nifkiman Anak Ahid @ Natasia Ahid Abdullah in that the
Claimant had scolded her and slapped her using a Medical Clinic Book several times.

On 23 July 2012, the Claimant submitted the reply to the show cause letter as follows;

RE: Show Cause Letter dd 16/07/2012

Dear Sir,

I am concerned and surprised that this matter is raised more than 3 months after the alleged incident. According to my
recollection, this is what transpired ….

(1) I went to my Company operated medical clinic on 30th April 2012 for a routine medical consultation as was
recorded in my medical clinic book.

(2) After consultation and while waiting for my medicine from our dispensary, I took the opportunity to talk to Puan
Cindy Nifkiman over the financial assistances I rendered her in June and August last year.

(3) These financial assistances were requested by her voluntarily. She agreed and assured to repay promptly by 9
monthly fixed installments on every payday of the month.

(4) Since she is a colleague whom I have known for over 15 years and with the promises and assurance she had
given me so sincerely, I agreed to help her out.

(5) Up to 10 April 2012, she had made 6 times of repayment but 4 times were late and short of the agreed amount. In
between, there had been no payment at all for more than 3 consecutive months.

(6) She had been avoiding me and I had difficulty in locating her when my office was moved from Wisma SESCo to
Wisma SEB on 8th March 2012; hence I took the chance on that day to talk to her hoping to have a pleasing result
over the unresolved issues.

(7) It was alleged that I had behaved in an unruly and violent manner whereas I was merely raising my vice and being
insistent because she was ignoring me and not responding to my enquiries.

(8) She continued to ignore my presence by pretending to be busy at work, prompting me to approach in front of her.
In my impatience, I had used my medical clinic book to pat on her cheek a few times when she responded by
continuing to bluff it out and deceive me like a small kid. I regret that she saw my actions as unruly and violent.
(9) Lastly, I did not go there intentionally to confront her and had never done that before but had spoken to her on
that day merely because we were at the same location. I was there to consult doctor over personal health issues.

Any inconvenience caused is very much regretted. Thank you.

 Page 3 of 17
Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

Yours faithfully,

- signed - (HII KING)

The Company not satisfied with the explanation given by the Claimant decided to hold a Domestic Inquiry which
was held on 1 August, 6 August and 26 September 2012.

The Company vide a letter dated 14 November 2012, informed the Claimant that the Domestic Inquiry Panel found
him guilty of the charge brought against him. The Disciplinary Committee on 2 November 2012 had deliberated over
the findings of the Domestic Inquiry and had decided that the Claimant be dismissed from his employment with
immediate effect. The letter was signed by the General Manager Corporate Shared Services and the Head of
Finance.

On 14 December 2012, the Claimant appealed against the dismissal to the Disciplinary Committee.

On 16 January 2013, the Company replied and states that the dismissal was final and no further appeal would be
entertained.

The Claimant contends that his dismissal was without just cause or excuse and not based on evidence. The
Claimant further states that the punishment of dismissal is out of proportion and unjustified in the circumstances of
the case.
THE LAW

The function of the Industrial Court in dismissal cases on a reference under section 20 of the IRA, is two fold as
stated by Mohd. Azmi FCJ in Milan Auto Sdn. Bhd. v Wong She Yu [1995] 4 CLJ 449, namely;

“........firstly to determine whether the misconduct complained of by the employer has been established, and secondly
whether the proven misconduct constitutes, just cause or excuse for the dismissal.”

In the case of Goon Kwee Phoy v J & P Coats (M) Bhd. [1981] 1 LNS 30 states the principles of law applicable in
cases involving misconducts as follows:

“Where representations are made and are referred to the Industrial Court for inquiry, 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 inquire 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 inquiry 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”.

BURDEN OF PROOF

In the case of Guppy Plastic Industries Sdn. Bhd. v. Roshamiza Bt Muhamad Dan 2 Orang Yang Lain, Award
No. 965/2006 the Court held;

“The burden of proof to justify a dismissal lies on the employer for he knows why he in fact dismissed the employee (see
Union Construction Allied Trades Technicians v. Brain (1981) 1 IRLR 224). The employer must prove the employee guilty
and it is not the employee who must prove himself not guilty (See Stamford Executive Center v. Puan Dharsini Ganesan
(1986) 1 ILR 101). To discharge his burden of proof, the employer must adduce cogent and convincing evidence, whether
oral or documentary, to prove the facts and circumstances which he contends constitute just cause or excuse for dismissing
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the employee. The standard of proof is on a balance of probabilities (see Union Construction allied Trades Technicians v.
Brain, Supra, Blue Apparels (M) Sdn Bhd v. Vicknewaran Ramanathan (1997) 2 ILR 803).”

[Emphasis Added]

The Court of Appeal in Esso Production Malaysia Inc v. Maimunah Ahmad & Anor [2002] 3 CLJ 242 made it very
clear that in a dismissal case, the burden of proof is on the employer where it held as follows;

“.... For the Appellant to justify the dismissal, it is settled law that the burden is on it to satisfy the tribunal
empowered to adjudicate the matter that such dismissal was with just cause or excuse..... …... in an enquiry
pursuant to Section 20 of the Act, the burden is upon an employer to satisfy the Court that the dismissal of its
workman is with just cause or excuse...”

[Emphasis Added]

DOMESTIC INQUIRY (‘DI’)

The DI was held on 1 August 2012, 6 August 2012 and 26 September 2012. The Claimant pleaded not guilty to the
charge and the Company’s appointed Prosecutor proceeded with the Inquiry.

The Claimant was given ample opportunities to be heard as the DI was conducted for a total of three days. The
contemporaneous Record of Proceedings of the DI can be found in pages 64 to 99 of COBD-1. During the trial of
this action, the Claimant agreed and confirmed that he had signed on the said Record of Proceedings at pages 72,
84 and 99 of COBD-1. The Claimant did not challenge the said Record of Proceedings in the present case.

In determining the validity of a DI, it is necessary that the rules of natural justice are observed. The concept of
natural justice has two basic components;

(i) the rule of fairness (audi alteram partem), and

(ii) the rule against bias (memo judex in causa sua)

Upon perusal of the minutes of the DI, the Court finds that the DI in this case did observe the rules of natural justice
in that it acted without bias and that it gave the Claimant the opportunity to be heard. The Claimant was allowed to
cross-examine each and every witness and which he did. The Court is satisfied that the DI was conducted properly
and thus it is valid.
EVALUATION AND DECISION

The Company’s first witness, Dr. Khiew Siaw Kwang (“COW-1”) has been working as a Doctor at the Sesco Clinic
since year 2000. He is an employee of Normah Hospital and has been seconded to Syarikat Sesco Berhad to
operate the Sesco Clinic.

COW-1 in his evidence testified that on 10 April 2012 at about 2.30 – 3.00 pm, when he was examining a patient,
he heard some noise outside his room. He then saw his receptionist giving a signal to him indicating that something
was happening outside. After examining his patient, he look through the pigeon hole but it was already normal.

On 10 May 2012, he lodged an Incident Report Form after he carried out a preliminary investigations of the said
incident on 9 May 2012.
 Page 5 of 17
Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

He lodged the report because as the supervisor of the Clinic, he has a duty to report all incidents and misconduct
involving the staff under his supervision. After the initial incident took place, he felt it was his duty and responsibility
to lodge an Incident Report regarding the incident that occurred on 10 April 2012.

COW-1 further states that he only lodged the Incident Report one month after the initial incident as on the date of
the incident, he had asked Cindy if she was alright. Cindy assured him that she was alright and that there was
nothing going on. Only later when a lot of people were talking about the incident with different version, COW-1
realised that the incident might have been more serious than he initially thought. COW-1 then called all his staff and
interviewed them. Since COW-1 was not very sure of what had happened on 10 April 2012, he felt that it was his
responsibility as Supervisor of the Clinic to officially put the incident on the record. The report will allow the
Employee & Industrial Relations Department (“E&IR”) to carry out proper investigations to determine what actually
took place and the seriousness of the incident.

COW-1 carried out the preliminary investigation on 9 May 2012 and interviewed Komathy, Ramlah and Cindy
individually regarding the incident on 10 April 2012 at the Sesco Clinic. From the preliminary investigations, COW-1
concluded that;

(a) On 10 April 2012, at 2.30 – 3.00 pm in the Sesco Clinic, there was a confrontation between a Sesco Clinic
Staff, Cindy and a Sesco employee, Kevin Hii King;

(b) Kevin shouted and scolded Cindy regarding her failure to settle her debt with him on time;

(c) Kevin slapped Cindy several times on the face;

(d) Cindy felt worried about her personal safety and was initially reluctant to report the incident to the higher
authority.

COW-1 during the cross-examination testified that in the Incident Report Form, he has classified the nature of
incident as “victim of workplace violence.” In his opinion, violence indicates that an employee was threatened or
assaulted or has been subjected to any offensive behavior during the course of their work and violence does not
necessarily result in injuries.

Nifkiman Anak Ahid @ Natasia Ahid Abdullah who is also known as Cindy (“COW- 2”) testified that on 10 April
2012, she was working at the Sesco’s Medical Clinic at her work station near the dispensary unit. She knew the
Claimant also was one of the Sesco’s staff and her fellow colleague. The Claimant often comes to the Clinic to get
his medication or supplements or visit the doctor when he is unwell. In 2011, she experienced some financial
difficulties and one of her colleague, Mr. Jethi informed her that the Claimant can help her by lending her some
money. As she was in need of urgent money, she borrowed some money from the Claimant and for the repayment
of the said money by installments.

On the day of the incident, the Claimant states as follows in her witness statement;

“On 10th April 2012, at around 2.30 pm, I was working as usual at my workstation near the dispensary unit. The Claimant
came to the clinic to get his medication and supplements. I remember the Claimant stopped at my workstation to talk to me.
He asked me when I would be able to pay the next installment of the debt. I felt intimidated and fearful of how he would
have treated me at that point in time. I told him I would bank in the next installment that same evening. He was not satisfied
with my reply as I have previously been late in paying the installments. He then shouted “Who do you think you are” in a
loud voice. I said “Kita kan sama colleague”. He continued to threaten and said in a loud voice “I won’t give you face
anymore”. I was very afraid when he said to me “I won’t give you face anymore” in such a manner. I was scared of my
safety and felt very insecure of what would happen next.

To my utter shock, the Claimant started to slap the right side of my face several times with the edge of his thick Medical
 Page 6 of 17
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Record Book in my work station in front of my other colleagues. I could feel the pain on the right side of my face from the
Claimant’s act. I tried to stop him by saying “Jangan macam ya Kevin”. He did not stop but went on to slap the right side of
my face with the same thick Medical Record Book. The slap hit my spectacles causing it to knock off on one side and fell on
my table. He tried to slap me a second time with the same Medical Record Book but I managed to avoid the 2nd slap.

After I managed to dodge the 2nd slap, the Claimant started to leave the clinic but before he left, he told me to call him any
time after banking in the next installment. He added to say “You know my extension right?” before leaving the clinic
entrance door.

I was very shocked and scared by his actions. I never expected him to react in that way especially at my working place
where there were other patients and in front of my other colleagues. However, I remained calm and did not react to the
Claimant’s actions because I was embarrassed by the whole situation and I don’t want to make things worse or make the
Claimant slap me again as I managed to dodge his 2nd slap.

At that time, I thought that it was a personal issue and did not want it to be known to others as it was embarrassing moment
for me. I felt immensely scared during that time and also very sad at what has happened to me when the Claimant slapped
me at my work station. I felt I was being embarrassed, disrespected and bullied by the Claimant in front of others.

I continued to work as usual but I go to work with fear each day after the incident on 10th April 2012, that the Claimant
would come again to find me at the clinic. I was not able to sleep well at night thinking of him possibly turning up again to
find me in the clinic. I leave the clinic each day thinking he may find me after office hours at SESCO. I was petrified and felt
insecure. I also avoided my colleagues who came to ask me on my situation out of concern as I don’t want to make things
worse as I was truly embarrassed by the whole situation. I was depressed, sad and emotional although I tried to control my
fears as I still have to go to work. I never have experienced such an incident in my whole working time in SESCO.

Subsequently, on 8th May 2012, I was interviewed by Dr. Khiew regarding the incident that happened to me at SESCO’s
medical clinic on 10th April 2012.”

The third Company’s witness, Komathy a/p Marimuthu (“COW-3”) was working at the Sesco’s Medical Clinic on 10
April 2012. She testified that at @ 2.30 pm, the Claimant came to see her to collect his medication. The Claimant
had only his medical book and the prescription from Dr. Khiew with him. The Claimant gave COW-3 the prescription
slip but the medication was not in stock at the Dispensary Room and COW-3 had to get them from the store room.
After she got the necessary medication and whilst walking back to the Dispensary Room, she saw Claimant talking
to COW-2. When she got back to the Dispensary, she realized that another medication was not available at the
Dispensary Room and need to go back to the store room. While walking to the store room, she heard the Claimant
saying to COW-2 in an angry voice, “Don’t promise me if you can’t do it”.

At that time, according to COW-3, the Clinic had many patients and although it was busy and noisy, she could
clearly hear the Claimant saying those words. The Claimant also look angry and was speaking to COW-2 in a loud
and angry voice.

She further testified as follows;

“7. Q : What happened after that?

A : On the way back to the Dispensary Room, after getting the necessary medicine from the store room, I saw the Claimant
slap Cindy’s right side of the face around 2 times using his Medical Record book. Whilst doing so, the Claimant also said to
Cindy in a loud voice, “Do you want me to talk to your boss or not!” and Cindy said “Don’t want”. After collecting his
 Page 7 of 17
Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

medication and before leaving the clinic, the Claimant on the way walking out towards the entrance door of the clinic
warned Cindy “Make sure you call me”.

8. Q : You mentioned seeing the Claimant slap Cindy 2 times with his Medical Record Book. What was Cindy’ reaction at
that time?

A : She look very scared, disturbed but she remained quiet.

9. Q : What was your reaction when you saw the Claimant slap Cindy’s face?

A : I became afraid of the Claimant and was worried. He slapped Cindy twice on the right side of the face which left her
right-side face with a red mark.

10. Q : Why were you scared?

A : The Claimant sounded angry. His voice was very loud and sounded angry when he spoke to Cindy. He had also
proceeded to slap Cindy’s face twice on the right hand side which left a red mark on her face which can be seen by me.
That made me worry whether the Claimant would do anything further to Cindy.

11. Q : Why were you scared by the Claimant’s loud voice throughout the incident of 10th April 2012?

A : His voice was loud and he was clearly angry. Furthermore, I saw him slapped Cindy’s right side of face with his medical
book. The Claimant’s act both frighten and shocked me. The Claimant was of a huge and tall build as well.

12. Q : What happened after the Claimant left the clinic?

A : After the Claimant left the clinic, I asked Cindy what had happened out of genuine concern as I can see her right side of
face was red. She didn’t answer and just kept quiet, but she looked very worried. As she did not want to talk about it and
was clearly upset, I did not ask her further and allowed her some space for things to calm down. I then continued with my
work as usual.”

The Claimant states in his witness statement that he had work faithfully for the Company for over 32 years from
1980 until 2012. During this period, he had been employed as a clerk and was attached to Billing Section, Internal
Audit Section and Revenue Budget Section.

In his witness statement, the Claimant among others states as follows;

“7. Q : Do you believe that during the inquiry, the charges that you had behaved in an “unruly and violent manner” were
adequately proven against you?

A : No. During the start of the inquiry until he end, there was never sufficient evidence to prove that I had ever acted unruly
nor violent manner. Even the oral and written evidence given by Puan Cindy Nifkiman never stated that I had ever slapped
her. (Page 47 ROP). No police report or medical report was also ever lodged in regards to the incident.
 Page 8 of 17
Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

Puan Cindy’s evidence without a doubt differs and contradict evidences given by the second witness Puan Komathy
Marimuthu. Puan Komathy alleged that I had slapped Puan Cindy few times (page 19 ROP) which was not the case as
what was stated by Puan Cindy, Puan Cindy even stated in her evidence that she didn’t think that I acted in an unruly
manner (page 43 of ROP).

When asked by the Chairman of the inquiry on whether Puan Cindy had ever felt threaten for her safety during the incident,
she had answered “No, she did not think so” (page 48 of ROP).

Furthermore, the two other witnesses brought before the Domestic Inquiry Panel, Tan An Nie and Ramlah Ahmad, never
saw or give any evidence that I had ever slapped Puan Cindy nor that I had acted unruly and violent manner (see pages 22
and 23 of ROP).

In conclusion, most of the evidences presented by the witnesses against me during the inquiry were hearsay evidence and
was contradictory. No reasonable court or panel would have came to the same decision to dismissed me based on the
evidence presented to the panel.”

The Court after considering the evidence adduced by both parties as well as the documents tendered finds that in
the final analysis it is not disputed that the cause of the incident arose out of the fact that the Claimant was annoyed
and distressed that COW-2 had not kept her promise to repay the loan she had taken from the Claimant and further
COW-2 has been avoiding him.

The Claimant in his testimony during the trial, states as follows:

“Q : Refer to page 74, COBD-1, line 18 – 23. You stated “I have difficulties in locating her and then I have made several
calls to her because I never take time to go there and look for her. But she asking me to go to see her. And yet when I was
there, I took my opportunity to see her she always not around and when I call she said somewhere in the building. One
time, I spoke to Ramlah, I said where is she and leave a massage and Ramlah said don’t ask me. I will call back within half
hour later. This has been many times already.”

Do you agree that because of Cindy’s alleged actions, you felt that she was deliberately avoiding you?

A : Yes. It is not just deliberately. She is just trying to make things difficult.

Q : Refer to page 74 of COBD-1, line 17 from the bottom. You stated “I think she deliberately doing this just to avoid me.”
Do you agree?

A : Yes, I agree.”

During the Domestic Inquiry proceeding, the Claimant had admitted that COW-2 actions relating to loan repayment
prior to 10th April 2012 had made him angry and annoyed:

“DW : When Cindy did not repay your money in time, did it make you angry?
 Page 9 of 17
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KH : Causes me a lot of distress and annoyance by continuing to deceive me and making all sort of excuses.

DW : My question was did it make you angry? It is either yes or no.

KH : You said she did not repay my money. She pay, she only delay. I’m only angry she is not telling me the truth. For me
not to pay in time. Still ok for me. Angry on when she confronted me face to face than maybe I will be angry.....”

(Pages 79 – 81 of COBD1)

The Claimant’s frustrations with COW-2 were evident from his testimony under cross- examination, wherein he had
admitted:

“Q : Refer to page 3 of COBD1, paragraph 6 which states “She had been avoiding me and I had difficulty in locating her
when my office was moved from Wisma SESCo to Wisma SEB on 8th March 2012.....” When you approached Cindy on 10th
April, she had, as alleged by you, been avoiding you for about a month. Agree?

A : That one was previously. Before I made that appointment. Yes. Agree previously.

Q : This must have made you angry. Agree?

A : Not actually angry la. I have been get used to it already. My solution is that I need to talk to her and negotiate. She
needs to tell me what she wants.

Q : So you got very frustrated when she didn’t tell you what you want to know?

A : Yes.”

The Court after considering the evidence adduced by both parties as well as the supporting documents tendered is
of the view that the cause of the incident arose out of the fact that the Claimant was annoyed that COW-2 had failed
to adhere to the agreed repayment schedule and make timely payments on the two loans taken from the Claimant.
Up to the date of the incident, COW-2 had made six (6) repayment but four (4) of the repayment were late and short
of the agreed amount. Thereafter there had been no payment at all for more then three (3) consecutive months.
The Claimant also alleged that COW-2 had been avoiding him and Claimant had difficulty in locating COW-2 when
Claimant’s office were moved from Wisma Sesco to Wisma SEB on 8 March 2012.

By virtue of COW-2’s failure to adhere to the agreed repayment schedule had given the Claimant the impression
that COW-2 was deliberately making things difficult for him. On the day of the incident, Claimant approached COW-
2 with the specific intention of inquiring about her loan repayment. The Claimant being angry and frustrated with
COW-2 had started to speak with a raised and loud voice. The Claimant contends during the trial that he has a
naturally loud speaking voice. However, this is contrary to his own admission in his Reply to Show Cause dated 23
July 2012 when he states:
 Page 10 of 17
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“(7) It was alleged that I had behaved in an unruly and violent manner whereas I was merely raising my voice and being
insistent because she was ignoring me and not responding to my inquiries”

[Emphasis Added]

Further, even if the Claimant has a naturally loud speaking voice, the Claimant was, on 10th April 2012, speaking to
COW-2 with a raised voice, I.e louder than his normal speaking voice. This is clear from the testimony of both
COW-2 and COW-3. During trial, COW-2 gave the following evidence:

“Q : PUT: Speaking loudly has always been his nature. He has always been loud person.

A : His voice is memang loud but at that time, it was louder.”

Further, COW-3 had, under cross-examination, stated:

“Q : Would a normal reasonable man speak in loud voice if there are other people around?

A : No.

Q : So, the Claimant would have spoken in a normal conversational loud tone?

A : His voice was louder than he usually was.”

The fact that the Claimant had been angry, annoyed and frustrated was evident from his own evidence during the
Domestic Inquiry but also in the course of trial as well. In the Domestic Inquiry, the Claimant admitted that:

“KH: ….During that day I have consulting my doc and my medical book with my hand, I have no say if she say that is a
violent, different people has different interpretation in different point of view. So, when I approach her to pay out or to.... why
she keep on deceiving me lies. And then she replied in a very showing no respect at all Even though she quiet. She said I
forgot. I ask her why she didn’t call me until now. I’m the person who have to take the initiative to look for her. So, I don’t
know which one I should referring to at the moment. Her replied completely ridiculous not logical and sensible.
Prompting me to raise my voice at her and pointed my medical book at her.”

KH: She is telling lies again. Why her face so thick. Not logical answer to me. How can she forgot her promise. If this is the
first time I don’t mind. A lot of time through phone only. Personally I went there to see her ….. is no other agreement
just verbal.

HI : So, am I correct to say that your state of mind at that point of time was angry?

KH : Yes, I said already. When she gave me that kind of answer.

 Page 11 of 17
Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

HI : Geram la?

KH : Yes.... geram la. It is something natural.....”

During cross-examination, the Claimant had further admitted:

“Q : So, you got very frustrated when she didn’t tell you what you want to know?

A : Yes.

Q : Refer to page 3 of COBD-1, paragraph 7 which states “It was alleged that I had behaved in an unruly and violent
manner whereas I was merely raising my voice and being insistent because she was ignoring me and not responding to my
enquiries” Do you agree that you raised your voice because you were angry that Cindy was ignoring you?

A : On the spur of the moment, the way she answered me back irritates me. And then I have been going through stress
about my wife illness but I try to be friendly. I don’t want to cause any trouble. And I try to talk to her nicely but the way she
answered me back, as the clinic is an enclosed area and my voice is big. And the way I gesture and hold the medical book,
people will say I am violent. It is people’s perception.

Q : Refer to page 74 COBD-1, 1st and 2nd lines from the bottom. You stated “So when I approach her to pay out or to.... why
she keep on deceiving me lies. And then she replied in a very showing no respect at all.” Do you agree that you felt that
Cindy’s actions in ignoring you and allegedly lying was disrespectful?

A : Yes, It was disrespectful.

Q : This must have made you feel angry. Do you agree? A : It irritates me. Yes.

Q : Do you agree that you have scolded Cindy on 10th April 2012 for the non-payment of loan installments to you?

A : No. I am just having a conversation. Just having a disagreement. And also since it is already revealed, then might as
well I thought of creating awareness so that other staff won’t be in the same situation as me. Because there are so many of
them they are trying to borrow money from friends. My intention is to create awareness also. Even now, I have told her if
you continue to do that I will lodge a report to the management.”

Based on the above evidence, the Claimant in his anger, annoyance and frustration had approached COW-2. When
COW-2 tried to ignore him, the Claimant used his medical book to slap COW-2 several times on her cheek. This is
supported by the evidence of COW-2 and also COW-3 who saw the Claimant using the medical book to slap COW-
2’s face. Apart from the evidence of COW-2 and COW-3, the testimony of COW-1’s (Dr. Khiew) evidence in the trial
is consistent with COW-2 and COW-3 as he stated that on 10 April 2012, ground 2.30 to 3.00 pm, he had heard
some commotion outside his consultation room and it sounded like somebody raising his voice.
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The Claimant in his Reply to Show Cause, even admitted to using his medical book on COW-2 when he states;

“(8). She continued to ignore my presence by pretending to be busy at work, prompting me to approach in front of her. In
my impatience, I had used my medical clinic book to pat her on her cheek a few times when she responded by
continuing to bluff it out and deceive me like a small kid. I regret that she saw my actions as unruly and violent”.

Taking into consideration all the evidence adduced before the Court I.e the evidence of the Company’s witnesses
coupled with the Claimant’s own admission, it is evidently clear that the Claimant’s misconduct has been
established.

Although it is claimed that there was no physical contact between COW-2 and the Claimant, the Court’s view is that
once the act of slapping with Medical Book by the Claimant is proved to have taken place, an act of serious
misconduct has occurred. It is not relevant whether the incident has caused any bodily harm or not. The extent of
injury is only a measure of the consequence of an unlawful act by the Claimant.

With regards to the submission by the Claimant’s Counsel on the failure of the Company to call two other witnesses
who were at the Clinic during the incident i.e. Alladeen and Chung Hon Choo, the Court does not think that their
presence in Court would make any material difference to the Court’s finding. This is because the Company was
able to discharge its burden of proving that the dismissal was with just cause or excuse based on the strength of the
evidence of all the six company’s witnesses who were present in Court. The evidence of COW-1, COW-2 and
COW-3 was sufficient evidence before this Court to establish the charge against the Claimant on a balance of
probabilities. There is no necessity for the Company to call every witness to prove their case. The Court is satisfied
that there was no evidence of suppression of evidence in the present case. As such, there is no necessity to invoke
section 114 (g) of Evidence Act 1950 against the Company for its failure to produce Alladeen and Chung Hon Choo
as witness.

Based on the adumbrated reasons, the Court finds that the Company has succeeded in establishing on the balance
of probabilities the charge of misconduct against the Claimant.

The final issue left to be considered is whether the misconduct committed by the Claimant constituted just cause or
excuse for his dismissal.
WHETHER THE DISMISSAL WAS DONE WITH JUST CAUSE AND EXCUSE

Having satisfied the 1st limb, i.e establishing that the Claimant’s misconduct in the present case had in fact been
committed, the Court will now proceed to the 2 nd limb as to whether the misconduct in question had been
sufficiently serious to constitute just cause and excuse for the Claimant’s dismissal.

The Claimant’s misconduct on 10th April 2012 amounted to a serious misconduct constituting just cause and excuse
for the Claimant’s dismissal by SSB. The Claimant’s dismissal was justified on the following grounds;

(i) Assault of a fellow colleague constitutes a serious and gross misconduct;

(ii) The Claimant had previously been warned and disciplined for a similar misconduct.

(i) Assault - A Serious Misconduct

The Claimant’s misconduct in the present case, involved an assault of a female colleague during working hours
whilst on Company premises. It is well settled law that any misconduct involving assault with a fellow colleague
would constitute a serious misconduct justifying the harsh penalty of dismissal.
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Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

The Industrial Court, in the case of Tan Swee Gek v FE Zuellig (M) Sdn. Bhd. [1980] 1 ILR 328 (Award No. 148 of
1980), had held:

“That leads me to the consideration of the issue as to whether the Claimant’s misconduct on the morning of 19 April 1980
justified an instant dismissal. These are a number of decided cases which held that a single incident of an offence of
assault could justify a harsh penalty of dismissal. In Tomlinson v. L.M.S. Rly [1944] 1 ALL ER 537 the Court of Appeal
held that the employer was justified in dismissing a worker summarily for assaulting a fellow worker. In Dacres v. Walls
Meat Co. Ltd. [1976] IRLR 20, it was held that fighting or violence was category of conduct for which a single offence of a
grave nature could justify instant dismissal.”

The finding of the court in Tan Swee Gek (supra) was adopted and applied in Alliance Bank Malaysia Berhad v
Tan Kim Keat [2007] 2 LNS 2278 (Award No. 2278 of 2007), wherein the Court held:

“The Industrial Court has taken a serious view as regards the offence of assault in the case of Tan Swee Gek vs. F.F.
Zuelliq (M) Sdn. Bhd. (Award No. 148 of 1980) it was held that a single incident of an offence of assault could justify a
harsh penalty of dismissal.

In the case of Shaw Computer & Management Services Sdn. Bhd. vs. National Union of Cinema & Amusement
Workers (Award No. 43 of 1984) it held that having assaulted another worker of the same establishment, the Claimant
has undermined discipline. The Court finds no justification for him to have taken the law into his own hands in committing
such a serious misconduct. The punishment should be none other than dismissal.

The Court finds that even if Heah had hit the Claimant first, the disproportionate retaliation by the Claimant towards Heah
(as evidenced by the medical report) his subordinate who is a female and of smaller build than him shows that the Claimant
is more the aggressor than the victim.”

In the case of Jamalis Jaafar v Bistro & Theatre Restaurant Sdn. Bhd. [2019] 1 ILR 619 (Award No. 447 of 2019),
the Court held:

“(5) The Claimant had been charged with a serious misconduct, I.e that of committing violence at the workplace in full view
of the other staff and the punishment of dismissal had been proportionate to the nature and gravity of the misconduct. Acts
of violence can never be tolerated at the workplace where industrial harmony is of paramount importance. Thus, his
dismissal had been with just cause and excuse. The Claimant is charged for committing a serious act of misconduct, i.e.
committing an act of violence at his workplace in full view of the other staffs. He clearly admitted that he had slapped
COW7 (Aleemin). In the case of Mohamad Shuhaimi Ali v. DHL Express Sdn. Bhd. [2016] 2 ILR 345 (Award No. 311 of
2016) it was held by the Industrial Court:

“It is trite law that fighting within the company’s premises is a serious offence which justifies the punishment of
dismissal. In Uthiya Kumar Subramaniam v Nipoon Express (M) Sdn. Bhd. [2010] 4 ILR 54 (Award No. 398 of 2010) it
was held:

Fighting in workplace has always been considered as serious misconduct, as it disrupts the smooth running of the
company and undermines discipline. Hence, the punishment of dismissal cannot be said to be excessive because the
responsibility for the maintenance of discipline inside the establishment is that of management. In this case, there is no
justification for the claimant to take matters into his own hands and engage in riotous behaviour.”

Further in Gunasekaran Krishnan v. Nippon Electric Glass (Malaysia) Sdn. Bhd. [2013] 2 LNS 0838 (Award No. 838 of
2013) it was held:
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Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

“It is trite that fighting with a colleague is a serious offence because it undermines discipline and disrupts a harmonious
working environment. The Industrial Court has consistently held that the assault or fighting with a colleague justifies
the punishment of dismissal.”

Thus, this court finds that the punishment of dismissal against the Claimant was proportionate to the nature and gravity of
the misconduct committed by the Claimant. Acts of violence can never be tolerated at a workplace where industrial
harmony is of paramount importance.”

As in the case of Jamalis Jaafar (supra), the Claimant’s misconduct, in the present case, occurred during working
hours and on company premises which disrupted the smooth running of the company and the harmonious working
environment. In doing so, the Claimant had acted in breach of the express and/or implied terms of his employment
with SSB and against the interests of SSB.

It is recognised that an employer owes a contractual obligation to his employees, female or otherwise, to ensure
that he provides a safe and conducive working environment in which they can function. It cannot be emphasised
strongly enough that the employee cannot take the law into his own hands. There are remedies available to redress
his alleged personal grievances.

The Claimant as a Senior Officer who has served the Company for a period of 32 years has an exemplary role in
the Company. He ought to know better than to take the law into his own hands. To say that it was done in the heat
of the moment is no excuse.

In accordance with the above authorities, the Claimant’s miscondut, being one involving assault, clearly constituted
a serious misconduct which justified dismissal.
(ii) Past Misconduct

The past misconduct of the Claimant would be a relevant factor to consider in determining whether the Claimant’s
dismissal was justified. It is trite law that past misconduct of a similar nature is a relevant consideration when
determining whether the dismissal of a Claimant is justified.

In the case of Azahar Wahid v Sistem Penerbangan Malaysia Berhad [2014] 2 LNS 0066 (Award No. 66 of 2014)
the Court had held:

“In the case of Kamala Loshanee a/p Ambalavanar v Jaffnese Co- Operative Society [1998] 7 MLJ 61, the Court held that
past misconducts of a similar nature may justify dismissal. It states as follows;

“In my judgment, past misconduct is a relevant factor to be taken into consideration. If there is a repetition of similar
acts of misconduct, the cumulative effect may justify dismissal.....

The message to the applicant was very clear indeed that the warning was a final one. Unfortunately, the applicant did
not heed it. The previous warnings could not be considered as ‘spent’ even though the final warning was
issued some 12 years prior to the incident. Since the final warning was breached by the applicant’s
misconduct, the respondent society could not be expected to overlook the past bad record of the applicant
and to confine itself to the particular incident of this case”.”

[Emphasis added]
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Hii King v Sarawak Energy Bhd. & Anor [2020] ILJU 163

The principle applied in Azahar Wahid (supra) was similarly adopted in Ismail Nasaruddin Abdul Wahab v
Malaysian Airlilne System Berhad [2019] 2 LNS 0562 (Award No. 562 of 2019), wherein the Court held:

“It is trite that past misconduct of an employee is a relevant factor to be considered in determining whether the punishment
of dismissal is harsh. In support, the learned Counsel for the Company referred the case of Kamala Loshanee a/p
Ambalavanar v. Jaffnese Co-operative Society [1998] 7 MLJ 61, Nik Hashim J (as he then was) held,

“The message to the applicant was very clear indeed that the warning was a final one. Unfortunately, the applicant did
not heed it. The previous warnings could not be considered as ‘spent’, even though the final warning was issued some
12 years prior to the incident. Since the final warning was breached by the applicant’s misconduct, the respondent
society could not be expected to overlook the past bad record of the applicant and to confine itself to the particular
incident of this case… Thus, the learned Chairman of the Industrial Court was right to take the past misconduct
as a relevant consideration for the purpose of determining the appropriate punishment for the subsequent
misconduct.”

“[65] Also in the case of UMW Equipment Sdn. Bhd. v. Parantaman Ramasamy & Anor [2014] 3 MLJ 457 which held,

“[22] As far as punishment was concerned, the facts showed that this was not the first time that the respondent had
been brought before the domestic enquiry for similar misconduct. The first domestic enquiry which was held on 20
April 1998 found the respondent guilty of five charges of misconduct but the appellant decided to give him another
opportunity by giving him a final warning that any further act of misconduct and infringement of the appellant’s rules
and regulations would result in termination of service. The judgment of the Industrial Court shows that the
respondent had been issued with warning letters relating to his discipline and punctuality even before the
first enquiry was held. Verbal warning had also been given to him in the past. Learned counsel for the
appellant submitted that the misconduct which preceded the second enquiry was the proverbial straw that
broke the camel’s back leaving the appellant with no choice but to terminate his employment upon the
respondent being found guilty of the charges against him. Past misconduct is a relevant factor and the
Industrial Court, had in the past, taken into consideration in determining whether the punishment is harsh or
otherwise.”

‘[66]. Where an employee repeatedly commits a misconduct of a similar nature, the repetitive nature of such actions may
warrant dismissal as decided in the case of VDO Instruments (M) Sdn. Bhd. v. Lau Jit Imm [2004] 3 ILR 392, the Industrial
Court held,

“The law is that past misconduct is a relevant factor when considering whether a dismissal is justified. The
repetition and cumulative effect of similar acts of misconduct may justify dismissal.”

“[67]. This Court agrees with the Company’s contention that the Claimant’s repeated similar misconduct underlines his
insubordination against the Company. As a longserving employee of the Company, the Claimant ought to have been aware
of the Company’s policies instead of acting in contravention of the same. “

[emphasis added]

In the present case, the Claimant’s past misconduct was of similar nature to that of his current misconduct. The
Claimant’s repeated similar misconduct demonstrates the Claimant’s tendency of getting into altercations and being
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violent or using physical intimidation towards his fellow colleagues, his inclination of behaving so on Company
premises during work hours as well as the Claimant’s disregard for the rules and regulations of SSB and/or SEB.
The Claimant’s past misconduct can be seen in the Initial Report dated 8 August 1998 and also in the warning letter
issued by the Company dated 12 March 1999 as follows;

“INITIAL REPORT ON ASSAULT CASE INVOLVING SESCo STAFF

On 7th August 98, at around 16.30 hrs. Mr. Anthony Kuncit informing that Mr. Amat bin Udin from WR Disconnection
Team claimed that on the 6th August 98 at around 8.30 hrs. he was confronted and assaulted by Mr. Kevin Hii King
from Account Section in HQ at the Regional Office staircase. Mr. Amat later reported the case to Mr. William Chai
Teck Chiew, Security on the same day. Mr. William has advised him to refer the case to the police if he wished to.
Police report was lodged at Sekama Police Station on the same day by. Mr. Amat for police investigation. And
resulting from that incident Mr. Amat suffered minor injury on his face and neck.

Initial investigation believed that the incident happened due to misunderstanding on debt case. According to sources
Mr. Kevin has lend some amount of money to Mr. Amat which he has not settled for quite a long period. Mr. Amat
denied that, and he claimed that he has settled all his debt. As the argument heated up Mr. Kevin just could not control
his anger and he slapped Mr. Amat on his face and strangled him on his neck. There was no commotion and Mr.
Kevin left the place when other staff observed the incident.

There was no further development pertaining to the case till date and the case is suggest to be handled by the Police.”

The Company issued a written warning of the above incident as follows;

RE: WRITTEN WARNING

“On 5th November 1998, the Kuching Regional Disciplinary Committee was convened to hear a disciplinary case involving
yourself and Encik Amat bin Udin for breaching SESCo Standing Order 72(iv) which states that no employee shall use
abusive, impertinent or offensive language toward another employee whilst on duty or on Corporation’s premises neither
shall he at any time nor for any reason whatsoever strike, smack, kick, punch, push or offer or appear to offer, any form of
physical intimidation or violence to any other employee. The alleged misconduct was committed at about 8.35 am at the
Kuching Regional Office.

The Committee, in its findings, found you guilty of getting involved in arguments which could have lead to a fight if not for
the timely intervention of your colleagues. The Committee also recommended that you are to be issued with a written
warning.

The Corporation views such conduct seriously as it could affect the harmonious working relationship among our staff and
will not hesitate to take appropriate and firm action against any employee for breaching Corporation’s rules and regulations.

This letter, therefore, serves as a written warning to you for the misconduct. Any future recurrence of this misconduct may
result in heavier penalty.”

In accordance with well-settled law and the above authorities and having regard to the nature and gravity of the
Claimant’s misconduct in the present case as well as the Claimant’s past similar misconduct, SSB could no longer
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repose trust and confidence in the Claimant. As such, the punishment of dismissal in the Claimant’s case was
proportionate and with just cause and excuse.
CONCLUSION

For reasons adumbrated and having regards to the evidence in its totality the Court is of the considered view that
the Company has proved on a balance of probability that the Claimants’ termination was perfectly reasonable and
justified. It was carried out in good faith and in accordance to fair labour practice. Based on equity and good
conscience and the substantial merit of the case without regard to technicality and legal form, the Court finds that
the Claimants’ termination was carried out with just cause and excuse. The claim is hereby dismissed.

End of Document