INDUSTRIAL COURT OF MALAYSIA

Transcription

1 INDUSTRIAL COURT OF MALAYSIA CASE NO: 10(9)/4-644/01 BETWEEN COPTHORNE ORCHID SDN. BHD. AND 1. LIM PHAIK GIM 2. FIONA CHOO 3. KOUH AH MOOI 4. JEANNIE OOI CHIN NEE AWARD NO: 2221 / 2007 BEFORE VENUE PUAN CHOONG SIEW KHIM - Chairman (sitting alone) Industrial Court, Perak DATE OF REFERENCE DATES OF HEARING 23/ , , 23/ , , and REPRESENTATION Mr. V. Sithambaran & Mr. Rajivan, counsel for M/S Kumar & Co. and Mr. Hussaini bin Abd. Rashid from M/S Kumar & Co., for the respondent Mr. Thayalan Muniandy from M/S Thayalan & Associates, for the claimants. REFERENCE This is a reference pursuant to section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Lim Phaik Gim, Fiona Choo, Kouh Ah Mooi and Jeannie Ooi Chin Nee (the claimants) by Copthorne Orchid Sdn. Bhd. (the respondent).

2 AWARD This is a reference by the Honourable Minister of Human Resources under s. 20(3) of the Industrial Relations Act 1967 and the parties to the dispute are Copthorne Orchid Sdn. Bhd. ("the respondent" or alternatively referred to as "the hotel") and Lim Phaik Gim ("the first claimant"), Fiona Choo ("the second claimant"), Kouh Ah Mooi ("the third claimant") and Jeannie Ooi Chin Nee ("the fourth claimant"). The claimants were female employees of the respondent who held management level positions. The first claimant was the Human Resources Manager while the second claimant was her assistant. The third claimant was the Assistant Manager in the respondent's Hua Ting Chinese Restaurant and the fourth claimant was the secretary to the General Manager in the Executive Office of the respondent. The first claimant, also known as Rossie Lim, joined the respondent on 8/5/1996 with a last drawn salary of RM3, per month. The second claimant joined the respondent on 13/12/1999 and she earned RM per month. The third claimant who is also known as Linda Kouh joined the hotel on 1/11/1985 and her last drawn salary was RM1, The fourth claimant's last drawn monthly salary was RM1, and she joined the respondent's employment on 15/2/1995. All the claimants except the second joined the respondent when it was initially known as Novotel Penang. The four claimants were suspended from employment with effect from 9/2/2000 because of the respondent's contention that they had made malicious and unfounded allegations of sexual harassment against the General Manager, Jan Buttgen. The respondent by letters dated 22/2/2000 notified the claimants of domestic inquiries to be conducted on charges preferred against them. The domestic inquiries were conducted before Hj. Ahmad Bin Hj. Moidin as Chairman and Dr. Choong Tung Pow as co-chairman, both of whom were not associated with the respondent. Vide letters dated 29/3/2000 (page 72 of claimants' bundle of documents "CLB"), 12/4/2000 (page 96 of CLB), 10/4/2000 (page 120 CLB) and 10/4/2000 (page 147 CLB), the first claimant, second claimant, third claimant and fourth claimant respectively were notified of their termination with immediate effect. In the statement in reply, the respondent set out its allegations of misconduct against the claimants. It was averred that: i. the four claimants had without any basis conspired and made false and malicious allegations against its general manager by way of a letter dated 26/1/2000 entitled "Re : Formal Complaint on Mr. Jan Buttgen" addressed to Penang MCA's Public Services and Complaints Bureau (paragraph 15 of statement in reply) ii. iii. the claimants, in order to obtain signatures to support the said letter, had approached employees of the respondent and had instigated them to sign on blank papers without informing them of the contents and/or the purpose of the said letter and further they had in their said letter forged signatures of certain employees (paragraph 16 and 19 (a) of statement in reply) the claimants had attempted to create disharmony, disunity and/or industrial unrest in the respondent company and also breached clause 32 of Other Regulations and Discipline, Clauses 6 and 12 of Category II of Serious offences

3 and clauses 9 and 13 of Category III of Very Serious Offences in the Employee's Handbook (paragraph 18 of statement in reply) iv. the claimants had failed to bring the allegation of sexual harassment committed by the general manager to the attention of the respondent's directors and/or senior management and thereby failed to exhaust internal remedy but had instead without prior consent or knowledge of the respondent held press conferences to intentionally injure the reputation of the General Manager and thereby put the respondent to disrepute (paragraph 19 (b) of statement in reply) v. the claimants' unsubstantiated, false and malicious allegations of sexual harassment and immoral behaviour against the general manager had undermined his authority and standing before his employees (paragraph 19 (c) of statement in reply) vi. vii. the claimants had failed to promote the interest of the respondent in accordance with their express or implied terms of employment by making false and/or malicious allegations (paragraph 19 (d) of statement in reply) the claimants had conspired to remove the general manager from the respondent and thereby acted in a manner detrimental to the interest of the respondent and inconsistent with their duties as employees of the respondent (paragraph 19 (e) of statement in reply). The law is clear when dealing with a s. 20 reference when dismissal is not in dispute. The Federal Court in Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449, reiterated it this way at page 455: As pointed out by this Court recently in Hong Leong Assurance Sdn. Bhd. v. Wong Yuen Hock [1995] 2 MLJ 753, the function of the industrial Court in dismissal cases on a reference under s. 20 is twofold 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. Industrial Court awards have invariably referred to this two-fold function and the following award cited by the claimants is one of these as a convenient point of reference. In Sime Bank Bhd. v. Tee Booi Eng [2001] 3 ILR 773, the learned Chairman John Louis O'Hara stated: When the Industrial Court is dealing with a reference under s. 20, the first thing that the court will have to ask itself a question whether there was a dismissal and if so whether it was with or without just cause Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd [1998] 1 CLJ 45. Per Salleh Abas LP. After that the court's function in dismissal cases on a reference under s. 20 becomes two fold: first to determine whether the misconduct complained of by the employer which resulted in his dismissal has been established; and secondly, whether the proven misconduct constitutes just cause or excuse for the dismissal see Wong Yuen Hock v. Hong Leong Assurance [1995] 3 CLJ 344 as reiterated by the Federal Court in Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 3 CLJ per FCJ Azmi J.

4 In doing so, this court has to consider the reasons put forward by the company for the claimant's dismissal and determines whether the company has proved them to the court on a balance of probabilities. Even if the company does succeed in proving these reasons. the court has to determine in the final analysis whether they constitute just cause and excuse for dismissing the claimant. In a dismissal case of this nature where the claimant was dismissed for misconduct, the company must produce convincing and cogent evidence that the claimant committed the offence that he was alleged to have committed for which lie was dismissed. The burden of proof lies on the company on a balance of probabilities and it must adduce evidence to discharge this legal burden. The basic principle of industrial jurisprudence is emphasized in Stamford Executive Centre v. Puan Dharsini Ganesan [1986] ILR February 101 at page 106: It may further be emphasised 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 the workman who must prove himself not guilty. This is so basic a principle of industrial jurisprudence that no employer is expected to come to this Court in ignorance of it. The instant case is especial though as it concerns the harassed employees who were dismissed and not the alleged harasser who, as the general manager, held the highest ranking executive post in the Copthorne Orchid hotel. The charges of misconduct levelled against the claimants arose basically from their allegations of sexual harassment against the general manager which the respondent considered and found to be false. In this context, the evidence adduced by both parties before this court must be viewed and assessed in totality in order to determine whether the claimants' accusation was probable and/or had an element of truth. If found to be so, the converse applies and it follows that the respondent would have failed in its burden of proof to produce convincing and cogent evidence to establish that the claimants committed the misconduct for which they were dismissed. COW1, the general manager, was appointed on 1/10/1999. The claimants were dismissed not too long after, in March and April 2000 which was within seven months after his appointment. The respondent took disciplinary action against the claimants after a letter entitled "Formal Complaint on Mr. Jan Buttgen" and dated 26/1/2000 was sent to the Public Services and Complaints Bureau of Penang MCA (see pages 1-6 of respondent's bundle of documents "COB"). This letter complained of sexual harassment against COW1 among others. A copy of the letter was received by the respondent on or before 1/2/2000 (see top right of page 1 COB). The letter had an attachment (pages 4-6 COB) that contained the signatures of employees who purportedly supported and agreed with the contents. Subsequently on 3/2/2000 a press conference was held by Penang MCA where the complaint of sexual harassment against COW1 was aired to and publicised by the media. The claimants' suspension letters signed by COW1 followed closely on 8/2 and 9/2/2000. It is important to note that these letters specifically referred to malicious and unfounded allegations of sexual harassment made by them against the general manager. Page 52 CLB which is the suspension letter of the first claimant is an illustration that the complaint of sexual harassment was the pivot for their eventual dismissal:

5 February 8, 2000 Miss Lim Phaik Gim, Rossie (Human Resources Manager) 16, Reservoir Drive, Air Itam, Penang. RE : Unfounded and Malicious allegation against Mr Jan Buttgen - General Manager of Copthorne Orchid Penang. It has been reported to us that you have made malicious and unfounded allegations against the General Manager. The allegations are that he had committed acts of sexual harassment on some of the staffs of the hotel. The allegations are serious in nature. As further investigations are being conducted, you are hereby suspended from work with immediate effect from February 9, 2000 until further notice. We will revert to you as soon as investigations are completed. Jan Buttgen General Manager A. Whether Complaints And Allegations Of Sexual Harassment Were Unfounded, False And Malicious The four claimants testified vide witness statements. I have exhaustively perused their testimony which was succinctly summarised by their learned counsel in their written submissions. The claimants and two former female employees of the respondent gave detailed accounts of their complaints of sexual harassment against COW1 to which he merely denied. i. Evidence Of First Claimant (CLW1) CLW1's witness statement is marked as CLWS1. Her allegations of sexual harassment against COW1 are stated in her answers to questions 12 to 20, 42 and 46 of CLWS1. She lodged a police report about COW1's conduct of sexual harassment (page 49 CLB). CLW1 complained about the "dress incident" during the staff party on 24/11/1999 (see Q. and A. 12 of CLWS1). She was shocked when CLW1 pointed and said there was a little flower at a specific place (pointing and indicating her breast) and he would like to take his finger and prick that flower. To rebut this, COW2 (Harbans Singh, the then Food and Beverage Manager) recalled COW1 only telling CLW1 that she had a nice dress. He said in cross examination that CLW1 wore a floral dress with a flower or corsage above her chest, near the collar bone. CLW1 however said COW2 was not present during the incident. It was an orange off-shoulder dress that she wore and not a floral dress. The flowers were instead an appliqué sewn on the left side of the dress and not a corsage as stated by COW2. CLW1 went on to describe how COW1 hugged and kissed her with his lips at the belated Christmas party on 30/12/1999. It was not the "cheek to cheek" kiss that COW1 and Ms. Sally Lai (COW3) demonstrated before the court on

6 24/4/2003. CLW1 said she felt very sad and depressed over this and left early. Of this incident, COW2 said COW1 merely gave CLW1 a cheek to cheek kiss and CLW1 did not express any displeasure. Contrary to what CLW1 said that she left the party early, COW2 testified that the opposite happened. It was COW1 who left early while CLW1 stayed on and danced. The fourth claimant (CLW2) gave evidence that corroborated CLW1's evidence with regard to what happened on 30/12/1999 (see O. and A. 11 of CLWS2). The second claimant (CLW3) also testified that on 30/12/1999 CLW1, looking very upset and angry, told her that COW1 hugged and kissed her cheeks at the Christmas party (see Q. and A. 15 of CLWS3). On 5/1/2000 at approximately past a.m., COW1 telephoned CLW1 to say that he was sorry for not attending the morning briefing that was supposed to start at 8.45 a.m. as he had overslept. CLW1 told him that they waited till 9.10 a.m. COW1 then said that next time they should go into his room and sing him a song and the ladies to go in naked and he would then stand. The fourth claimant, in her answer to question 12 of CLWS2, corroborated CLW1's evidence about this telephone conversation. CLW1 further testified that COW1 called her "baby" and "darling" in public and had on several other occasions hugged her, kissed her cheeks, rubbed her head, held her hands and smacked her buttocks (see O. and A. 18 and 19 of CLWS1). She objected to these by showing her displeasure but it did not stop him from doing so in public. She said she told COW1 several times that calling her "baby" and "darling" was not proper since she was the Human Resources Manager and those were terms of endearment only to be used by people close to her. CLW1 was strenuously cross-examined but she stood her ground and maintained her allegations although she was seen to be emotionally affected at one stage. It was obvious that she felt very humiliated by what happened on 30/12/1999 when she was asked to again recount the incident in crossexamination. She explained that cheek to cheek kisses were alright on occasions but lip to cheek kisses were definitely objectionable to her. ii. Evidence Of Second Claimant (CLW3) Fiona Choo's witness statement is marked as CLWS3. She lodged a police report about her allegations of sexual harassment against COW1 on 1/2/2000 (see page 84 CLB). Her testimony on these allegations appear in Q. and A. 4, 5 and 6 of CLWS3. CLW3 complained about being given a full body hug by COW1 at the Shock! discotheque on the night of 17/12/1999 in front of guests while working as a part-time waitress there. He hugged her tightly and very close to his chest. She struggled, pushed him away and walked off. This incident was witnessed by bartender Koay Seng Lye (CLW4) and the third claimant (CLW8). CLW4 testified that "Mr. Buttgen gave Fiona Choo a full body hug the first day she worked at Shock! discotheque. He did this in the presence of several guests who were there" (see Q. and A. 6 of his witness statement CLWS4). The third claimant said the same (in Q. and A. 11 of her witness statement CLWS6). On the same night CLW3 said COW1 again grabbed her, stroked her head and touched her face. She also complained that on 31/12/1999 at Shock! discotheque, COW1 "grabbed me, gave me a tight, full frontal body hug with

7 his hands almost touching my breast. He then kissed both my cheeks with his lips, wishing me "Happy New Year" I struggled and tried to push him away". iii. Evidence Of Third Claimant (CLW8) CLW8's witness statement is marked as CLWS6. Her police report lodged on 1/2/2000 is on page 108 CLB. Her complaints of sexual harassment against COW1 are set out at length in Q. and A. 6 of CLWS6. Firstly, she complained that COW1 had on several occasions hugged her, kissed her cheeks with his lips and called her "darling" as well as slapped her buttocks. He also liked to sniff the perfume scent on her hands and neck. She did not agree that the kisses were "cheek to cheek" (see Q. and A. 7 in CLWS6). She also complained about what happened at a food-tasting session at Hua Ting restaurant sometime in October 1999 where she was seated next to COW1 at a round table. In front of other male employees, COW1 reached out and pulled her chair closer towards him. He grabbed her in a rough manner and caused her to fall on his chest. She struggled and tried to get away from him but he held her very tightly with his right hand, pressing her against his chest until his hand almost touched her breast. The restaurant chef Lee Tuck Weng (CLW5) was present on that occasion and he convincingly corroborated CLW8's evidence by stating that he remembered the incident very clearly where he saw COW1 grab CLW8's chair closer to him and then hugged her with his right arm although the respondent tried to discredit him by its line of cross-examination. He said he was shocked when he saw this. COW2 who was in the group lamely said no such incident happened. In early November 1999, CLW8 was humiliated, embarrassed and offended by COW1 at the restaurant's kitchen when he suddenly lifted her right leg causing her to lose balance and expose her undergarments (due to her highslit cheongsam uniform). In order to prevent her from falling, COW1 grabbed her around her waist and touched her breast. COW1 was in the kitchen with a supplier about purchasing anti-slip mats for the wet and slippery kitchen floor. COW2 said this kitchen incident did not happen but CLW8 was very certain that COW2 was not present in the kitchen that day. COW2 knew the name of the supplier, one Johnny from Chempro but this person was not called by the respondent to refute CLW8's description of what happened. On 25/12/1999 at about 3.00 a.m. at the Shock! discotheque where CLW8 was transferred to work, COW1 hugged her, tried to kiss her and verbally abused her. Koay Seng Lye (CLW4) witnessed this incident (see 0. and A. 8 of CLWS4). On 8/1/2000 (Hari Raya Eve) at around 4.00 a.m. at Shock! discotheque COW1 pulled her close to him, said suggestive words while at the same time verbally abused and threatened her (see Answer 6 (vi) in CLWS6). iv. Evidence Of Fourth Claimant (CLW2) CLW2's witness statement is marked as CLWS2. Her police report against COW1's acts of sexual harassment is on page 131 CLB. In her evidence, she described how COW1 would put his arm around her neck with his palm almost touching her breast, stroke her hair while she was working, pinched her nose and cheek, tickled her and called her "Baby" and "Darling" (see Q. and A. 5 of CLWS2).

8 In mid-december 1999, COW1 forced her to wear a long black body-hugging dress that was too small for her. She was asked to turn round and round to show him. Serene Lee Soo Li (CLW7) witnessed this incident (see Q. and A. 9 of her witness statement CLWS5). COW1 in his testimony merely said he did not remember this incident. v. Evidence Of Serene Lee Soo Li (CLW7) CLW7's witness statement is CLWS5. She joined Copthorne Hotel in early 1999 as a secretary to the Food and Beverage Manager and resigned in February She complained about COW1's acts of sexual harassment vide her letter dated 26/1/2000 to the Human Resources Manager (page 6 CLB). Her police report of the same matter is on page 14 CLB. The details of her complaint are in Q. and A. 3 of CLWS5. COW1 hugged her and pushed her head towards his chest, pinched her face, nose and chin, beat her buttocks, tickled her around the armpit area and called her "Baby" and "Darling". vi. Evidence Of Lim Geik Thoo (CLW9) CLW9, also known as Winnie, was the Assistant Manager in the Stars Karaoke Lounge. Her witness statement is marked as CLWS7. Her complaints against COW1 are in Q. and A. 4 and 6 of CLWS7. She lodged Tanjong Tokong police report No. 286/2000 against COW1. She testified that on 1/1/2000 at about 2.00 a.m. at the Shock! discotheque, COW1 hugged her. He also asked her to spend that night with him. He got angry when she refused. On several other occasions in December 1999, COW1 had hugged, kissed, caressed and 'Inappropriately touched her at the Stars Karaoke caressed and inappropriately touched her at the Stars Karaoke Lounge. She repeatedly protested and repeatedly told COW1 that his conduct was wrong but her objection was ignored by him. He always called her "Baby" and "Darling". vii. viii. Evidence Of Koay Seng Lye (CLW4) CLW4's witness statement is CLWS4. When he testified in support of the claimants, he was still in the respondent's employment. He testified that he signed on page 10 CLB (which is the same as page 4 COB) in support of the letter of complaint against COW1 because he actually knew there were many complaints by the female staff of the hotel and that many of the complaints were justified. Being the bartender, he knew that COW1 went regularly to the discotheque where he drank a lot and after drinking, he had the habit of hugging girls in the discotheque. He hugged female customers and female staff. In fact, CLW4 personally wrote a letter of complaint against COW1 dated 31/1/2000 vide page 13 CLB, one of which was about his unbecoming conduct against the female staff of the hotel. He stood by what he said in this complaint letter. Police Reports All the four claimants as well as Serene Lee and Winnie Lim lodged police reports against COW1. COW1 was subsequently charged in the Magistrate's Court of Georgetown for outraging the modesty of the respondent's three female employees that included the third claimant and Winnie Lim (see page 40 CLB). At its face value, this at the very least shows that the complaints of sexual harassment were not made frivolously. COW1 also admitted in his evidence that he did not initiate any libel or defamation suit against the four

9 claimants over their allegations of sexual harassment against him. In this respect, it is my view that any right-minded person who considers that he has been falsely and unjustly accused of such a serious charge should have resorted to legal means and avenue to vindicate himself and protect his image and reputation. Although COW1 disputed and countered the police reports lodged against him by lodging his own police report (C02), none of the four claimants or Serene Lee/Winnie Lim had been charged by the police for lodging false reports against him. ix. Retraction of Signatures COW1 implied that the claimants had made false and malicious allegations against him by alleging in C02 that 25 out of 39 persons who signed in support of the letter on page 1-6 COB had retracted. Before this court, the respondent could only produce four letters of retraction (pages 7, 8, 9 and 10 of COB) and COW7 (Sivanesan s/o Suppiah) who testified that he later withdrew his signature as he was allegedly misled by the first claimant. Those four employees who could have thrown more light on the matter were not called to testify on behalf of the respondent and to enable the claimants the opportunity to cross-examine them. It is pertinent to note too that the respondent's chief security officer, COW4 (Saravanan a/l Panasamy C Sellasamy), agreed in cross examination that "when the management received the petition on page 1 COB on 1/2/2000 I was instructed to get retractions from the staff". He also admitted that he met and "investigated" Anthony Chan, the writer of page 18 CLB. COW4's credibility as a reliable and truthful witness was in doubt when in re-examination he did a volte-face by saying that the company did not instruct him to get retractions from those who signed. It is obvious that even if pages 7, 8, 9 and 10 COB were admissible, it is only a very small minority (including COW7) that had retracted. It is inferred therefore that the larger majority of the employees had justifiable basis and reason to complain against COW1. With regard to COW5 (Yeoh Swee Leong, the night auditor) who was approached by the first claimant to sign the formal complaint against COW1, it was to his credit when he told the court that he would not sign it as he did not witness any of those alleged incidents. To my mind, this is a good enough reason for anyone not to sign any petition but then again, COW5's testimony on this issue is not enough to offset the voice of the larger majority. It further shows that the first claimant did not force COW5 or anyone to sign the said letter. x. The Company s Evidence As Against The Claimants After having assessed the evidence in totality, it is apparent to me that the respondent had failed to adduce cogent and convincing evidence that the claimants had without any basis conspired and made false and malicious allegations of sexual harassment against COW1. On the other hand, I find that the claimants had proven, on a balance of probabilities, that their allegations were believable, not orchestrated or contrived to remove COW1 from his post based on their evidence that withstood nerve-wracking, lengthy and strenuous cross-examination by learned counsel for the respondent and amply corroborated by the testimony of CLW4, CLW5, CLW7 and CLW9 in material particulars. CLW4, CLW5, CLW7 and CLW9 had nothing to gain by

10 giving evidence against the respondent, especially so for CLW4 who is still working for the respondent. COW2 and COW3 (material witnesses for the respondent with regard to the allegations) who were still in the employ of the respondent during the hearing and obviously having to take care of their jobs and career did not impress me as independent or neutral witnesses. me as independent or neutral witnesses. COW1 himself merely denied the - allegations and incidents of sexual harassment. Likewise, COW2 denied all the complaints of sexual harassment raised by the claimants. Although he claimed that he was present during the dress incident involving the first claimant, his evidence about the material of the dress and the flower contrasted sharply with the first claimant's version (floral v. plain and corsage v. appliqué). In my view, COW3's evidence on evaluation was generalised to favour the respondent and in any event only refuted the allegations made by the fourth claimant and not the others. Consequently, the misconduct complained of by the respondent that the claimants had made false, unsubstantiated and malicious allegations of sexual harassment against their general manager has not been established and it hence follows that their dismissal was without just cause or excuse. B. Failure to Exhaust Respondent s Internal Remedy The four claimants testified vide witness statements. I have exhaustively perused their testimony which was succinctly summarised by their learned counsel in their written submissions. The claimants and two former female employees of the respondent gave detailed accounts of their complaints of sexual harassment against COW1 to which he merely denied. For the sake of completeness, this contention needs to be ventilated to determine whether it was justified and fair for the claimants to ultimately refer their grouses to a third party/outsider. The second claimant, Fiona Choo, was the first person to internally raise her complaint of sexual harassment with her immediate superior, the first claimant, about what happened to heron 17!12l1999 and 31/12/1999 (see Q. and A. 4-7 of CLWS3). The first claimant confirmed that Fiona did not want to raise it further since she was a new staff. The first claimant was herself in a dilemma as she was also a victim and did not know how to deal with the problem (see Q. and A. 21 and 22 of CLWS1) apart from speaking directly to COW1 who however did not heed her complaints. In the case of the third claimant, she said her immediate superior COW2 knew about what happened to her but he refused and chose not to do anything (see Q. and A. 15 of CLWS6). The fourth claimant told her immediate superior COW3 that she disliked COW1 hugging and kissing her and calling her "baby" and "darling" but COW3 told her that there was nothing she could do about it as COWI was doing the same to her and she needed a job (see Q. and A. 16 of CLWS2). COW1 testified about the company's "grievance procedure for sexual harassment" but no documents or written guidelines were produced to show the existence of such a procedure. The first claimant testified in cross-examination

11 that the respondent had not adopted the "Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace" initiated by the government. It was only in January 2000 when the first claimant received complaints from the third and fourth claimants, Winnie Lim and Serene Lee that they decided in a group to see the local Director Dato' Teoh Chew Peng (COW6) as they felt it would not be useful to confront COW1 (see Q. and A. 24 of CLVVS1). On 13/1/2000, the first, third and fourth claimants together with Winnie Lim and Musa Bin Yaacob (CLW6) met the Directors COW6 and Mr. Yeoh Cheng Kung. The affected female staff related their complaints of sexual harassment against COW1 to the directors in detail (see O. and A. 28 & 29 CLWS1, O. and A. 19 & 20 CLWS2 and O. and A. 18 & 19 CLWS6). CLW6 substantially testified that the main issue discussed at the said meeting was the complaint of sexual harassment against COW1. He remembered the first and third claimants cried while relating their experience in relation to that. COW6 Dato' Teoh however said the issue of sexual harassment was never raised at the meeting although he admitted that their problem must have been serious enough for them to meet him. The letter on page 24 COB stated the same. The claimants who attended the meeting testified that a week later COW1 came to know who had attended the meeting and became harsh, aggressive and threatening towards them (see Q. and A. 30 of CLWS1, Q. and A. 21 of CLWS2 and Q. and A. 20 of CLWS6). The third claimant spoke about this in her letter on page 111 CLB while the first claimant lodged a police report at page 41/53 CLB. The fourth claimant also lodged a police report of what transpired after COW1 knew about the meeting (see page 130 CLB). She also put it on record vide her letter to COW1 on pages of CLB. Thus, after considering the evidence in totality with regard to the meeting, I find that it is totally incomprehensible and illogical for the three claimants and Winnie Lim to have taken the trouble and exigent need to see the directors if not to air their distress and grievance of sexual harassment against the general manager. I also find that COW6 was not altogether candid in his evidence with regard to the meeting. It is my view that in the circumstances the claimants did their best to exhaust internal remedies given the fact that the harasser was the general manager. According to the first claimant, when she referred the complaints to the hotel's chief security officer, COW4 said he did not want to be involved and refused to see COW1 together with her on the matter (see Q. and A. 47 of CLWS1). Since the respondent through their directors did not take the complaints of sexual harassment seriously, the claimants were forced to seek the assistance of Penang MCA and later the Women Crisis Centre to resolve their predicament caused by COW1 and not the hotel. There is also no evidence that the claimants themselves organised or held any press conference. They only attended the press conferences organised by MCA and the Women Crisis Centre. The press cuttings did not name the respondent nor the claimants. However it was beyond the control of anyone once COW1 was charged in the Magistrate's Court for outraging the modesty of three female employees. The claimants therefore could not be faulted for intending to tarnish the image and name of the hotel.

12 There being no effective and protective in-house measures for the claimants, the respondent's allegation that the claimants failed to exhaust the respondent's internal remedy and putting the respondent into disrepute by holding press conferences without prior consent or knowledge must accordingly fail. C. Others I am inclined to agree with the claimants' submission that there was no evidence whatsoever of any conspiracy by them to remove the general manager. They just wanted the sexual harassment to stop. They merely wanted a safe and conducive environment to work in. In this context then, there could not have been any attempt by the claimants to create disharmony, disunity and industrial unrest as alleged by the respondent. On the contrary, there was serious discontent among the female employees because of the lewd conduct and behaviour of the general manager. COW1 testified that there were forged signatures in the complaint letter but neither he nor any of the respondent's witnesses could identify any forged signature. The employees' numbers were stated against the names and signatures on pages 4-6 COB, leaving no room for forgery in the absence of evidence to prove the contrary. It is only fair to conclude that the general manager, by his offensive and annoying behaviour, had undermined his own authority and standing. The respondent failed to promote its own interests by employing such a general manager and the directors by ignoring the claimants' complaints of sexual harassment had allowed its image to be publicly tarnished when COW1 was charged in court. It ought to be noted too that when the claimants were suspended from work, they had in fact asked the respondent to investigate the allegations made by them against COW1 vide their letters on pages 23, 25 and 26 of CLB. The respondent not only failed to respond but instead proceeded with domestic inquiries on the charges preferred against the claimants. There was also no evidence adduced by the respondent to prove that the claimants had done anything to breach clause 32 (page 32 COB), clauses 6 and 12 (page 33 COB) and clauses 9 and 13 (page 34 COB) of the company regulations contained in the Employee's Handbook. D. Conclusion And Remedy It is inconceivable why the respondent failed in its innate duty to inquire into the allegations made by the claimants. The respondent did not even bother to acknowledge that there could be a sexual harassment problem within its organisation. Based on the substantial merits of the case and guided by equity and good conscience as required by s. 30 (5) of the Industrial Relations Act 1967 as well as the well-written submissions of both parties in concluding that the claimants had been dismissed unjustifiably, it is again inconceivable for the claimants and other employees to have trumped up their accusations. The claimants ought to be lauded for their courage and persistence in speaking up against COW1 and standing up for their rights and beliefs. COW1's conduct and behaviour was sexual harassment that encompassed verbal harassment (suggestive remarks, calling "baby" and "darling") as well as physical harassment (hugging, kissing, tickling) which was unsolicited and unreciprocated by the claimants. With reference to photographs C04 that showed the fourth claimant attired in sexy costumes which implied that she did not complain when COW1 put his arms

13 around her (4 (c) and (e) in particular), the fourth claimant explained that she participated in a dance presentation for the staff party held on 24/11/1999. The theme of the party was masquerade/cabaret and those taking part in the dance presentation had agreed on the costumes. She said COW1 put his arm around her waist in the group photographs which were taken in a public area. Be that as it may, it is my opinion that this should not be used as an excuse, feeble it might be, for COW1 to behave in the manner described by the fourth claimant who did not welcome it in the first place. Taking into account the facts and circumstances of the case, it is my opinion that it would not be conducive to industrial harmony to reinstate the claimants who are thus entitled to backwages and compensation in lieu of reinstatement. i. First Claimant The first claimant joined the respondent on 8/5/1996. She was dismissed on 29/3/2000 and had remained unemployed since then until the date she testified on 24/8/2004. She attended interviews but could not find reemployment and the respondent did not even attempt to refute this. I would award her backwages at the rate of RM3,450 per month for four years [RM3,450 x (4 x 12)] RM165,600. She had been in the employ of the respondent for almost 3 years 11 months which is rounded up to 4 years. Compensation in lieu of reinstatement at the rate of one month's salary for each year of service would amount to RM3,450 x 4 RM13,800. The total amount of RM179,400 [RM165,600 + RM13,800], less statutory deductions if any, shall be paid to the first claimant within thirty (30) days from the date of service of this award on the respondent. ii. Second Claimant The second claimant was employed on 13/12/1999 until her dismissal on 12/4/2000. Nothing was mentioned about her being a probationer. On the date she testified in court on 13/12/2005, she was already gainfully employed as a finance secretary. She did not admit and neither was evidence led as to when she obtained reemployment after dismissal. Backwages for the second claimant is limited to 24 months amounting to RM900 x 24 = RM21,600. She is not entitled to compensation in lieu of reinstatement as she had not completed one year of service. The amount of RM21,600 subject to statutory deductions if any, shall be paid to the second claimant within thirty (30) days from the date of service of this award on the respondent. iii. Third Claimant The third claimant had worked for 14 years 6 months in the hotel from 1/11/1985 until 10/4/2000. On the date she testified (15/12/2005), she was employed as a food-court manager in Prangin Mall for a salary of RM2,000 per month. There was however no evidence when she started working there. Backwages for the third claimant is limited to 24 months amounting to RM1,892 x 24 = RM45,408. She is awarded compensation in lieu of reinstatement totalling RM1,892 x 14.5 = RM27,434.

14 The respondent shall pay the third claimant the total sum of RM72,842 subject to statutory deductions if any, within thirty (30) days from the date of service of this award. iv. Fourth Claimant The fourth claimant joined the respondent on 15/2/1995 until she was dismissed on 10/4/2000. She had been in its employ for 5 years 2 months. She was in gainful employment as a secretary with MK Land, Kuala Lumpur on 1/12/2004 when her evidence was heard. She was not questioned however when she was re-employed as a secretary. Backwages of RM1,200 is hence limited to 24 months amounting to RM1,200 x 24 = RM28,800. For five complete years of service, the fourth claimant is awarded compensation in lieu of reinstatement of RM1,200 x 5 = RM6,000. The total amount of RM28,800 + RM6,000 = RM34,800 less statutory deductions if any, shall be paid to this claimant within thirty (30) days from the date of service of this award. HANDED DOWN AND DATED THIS 30th DAY OF OCTOBER (CHOONG SIEW KHIM) CHAIRMAN INDUSTRIAL COURT PERAK