INDUSTRIAL COURT OF MALAYSIA 6(12)/4-584/14 BETWEEN RADZI BIN MD. TAP AND FELDA GLOBAL VENTURES PLANTATIONS (M) SDN. BHD. AWARD NO: 1148 OF 2018

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1 INDUSTRIAL COURT OF MALAYSIA 6(12)/4-584/14 BETWEEN RADZI BIN MD. TAP AND FELDA GLOBAL VENTURES PLANTATIONS (M) SDN. BHD. AWARD NO: 1148 OF 2018 Before Venue : Y.A. TUAN GULAM MUHIADDEEN BIN ABDUL AZIZ - CHAIRMAN : Industrial Court, Kuala Lumpur. Date of reference : 4 August 2014 Dates of mention Dates of Hearing Claimant s Written Submission : : : 3 October 2014, 5 November 2014, 24 November 2014, 7 January 2015, 12 February 2015, 17 Mac 2015, 13 Mei 2015, 16 June 2015, 1 October 2015, 16 February 2016, 16 January 2017, 15 March 2017, 29 March 2017, 11 April 2017, 13 November 2017 and 20 November July 2016, 12 October 2016, 20 October 2016, 24 November 2011, 25 November 2016 and 9 August October 2017 Company s Written Submission : 12 September 2017 Representative : Mr. A. Sivanesan with Miss Kamini Muthusamy Messrs A. Sivanesan & Co. (Learned Counsel for the Claimant) Mr. Abdul Jalil Mohamad with Mr. Edwin Rajasooria Messrs. Kamil Hashim Raj & Lim (Learned Counsel for the Company) 1

2 AWARD This is a reference made under Section 20(3) of the Industrial Relations Act 1967 ( the Act ) arising out of the dismissal of Radzi bin Md. Tap (hereafter referred to as the Claimant ) by Felda Global Ventures Plantations (M) Sdn. Bhd. (hereinafter referred to as the Company ) on 27 September Brief Facts The Claimant was employed by Felda Land Development Authority ( FELDA ) as Penyelia Rancangan Tanah commencing from 17 July 1979 Thereafter, vide letter dated 1 June 1992, the Claimant was absorbed as an employee of Felda Plantations Sdn. Bhd and offered with a position of Supervisor with effect from 1 July Subsequently vide a letter dated 16 February 2012, the Claimant was transferred from Felda Plantations Sdn. Bhd. to Felda Global Ventures Plantations (Malaysia) Sdn. Bhd. ( the Company ). The Claimant s last position in the Company was that of Manager of Ladang Telang 01 and his last drawn salary was RM6, in addition to receiving monthly allowances for Responsibility and Accountability in the sum of RM200.00, telephone allowance of RM together with other variable allowances. Vide letter dated 6 June 2013, the Claimant was suspended for two(2) weeks for the purpose of investigation. Subsequently, the Company extended the Claimant s suspension period until to a date which would be notified by the Company. 2

3 Thereafter, the Company issued a Notice of Inquiry dated 25 July 2013 levelling six (6) charges against the Claimant which read as follows:- (i) Bahawa saudara di antara bulan Mac 2013 hingga bulan April 2013 dengan amanah yang diberikan secara curang telah bersekongkol dengan Sdr. Abdul Razak bin Osman (No. K/P ) dengan membawa keluar tandan buah kelapa sawit milikan majikan saudara, Felda Global Ventures Plantations (M) Sdn. Bhd., tanpa kebenaran majikan saudara Felda Global Ventures Plantations (M) Sdn. Bhd.; (ii) Bahawa saudara diantara 30 April 2013 hingga bulan 3 Mei 2013 dengan amanah yang diberikan secara curang telah bersekongkol dengan Sdr. Abdul Razak bin Osman (No. K/P ) dengan cuba membawa keluar 630 kilogram (KG) tandan buah kelapa sawit milikan majikan saudara, Felda Global Ventures Plantations (M) Sdn. Bhd., tanpa kebenaran majikan saudara Felda Global Ventures Plantations (M) Sdn. Bhd.; (iii) Bahawa saudara diantara 30 April 2013 hingga bulan 3 Mei 2013 telah menyalahgunakan kedudukan jawatan saudara sebagai petugas di Felda Global Ventures Plantations (M) Sdn. Bhd. dengan mengarahkan Sdr. Abdul Razak bin Osman (No. K/P ) menggunakan traktor (No. Pendaftaran WQG 5909) milikan majikan saudara Felda Global Ventures Plantations (M) Sdn. Bhd. untuk mengangkut buah dengan niat cuba membawa keluar 630 kilogram (KG) tandan buah kelapa sawit milikan majikan saudara di Blok 10, di Ladang Felda Telang 01 tanpa kebenaran majikan saudara Felda Global Ventures Plantations (M) Sdn. Bhd.; (iv) Bahawa saudara telah menyalahgunakan kedudukan jawatan saudara, dengan menjalankan urusniaga menuai Buah Tandan Sawit (BTS) di Ladang Puspanita/LPP tanpa kebenaran terlebih 3

4 dahulu daripada majikan saudara Felda Global Ventures Plantations (M) Sdn. Bhd. ; (v) (vi) Bahawa saudara pada 2 Mei 2013 hari Khamis dengan amanah yang diberikan secara curang telah melakukan salahlaku apabila enggan melaporkan secara bertulis atau lisan kepada pihak pengurusan mengenai penuaian hasil kelapa sawit di Blok 10, Ladang Felda Telang 01 yang dibuat tanpa kebenaran; Bahawa saudara juga diantara bulan Mac 2013 hingga bulan April 2013 telah menyalahgunakan kedudukan jawatan anda sebagai petugas di Felda Global Ventures Plantations (M) Sdn. Bhd. dengan melakukan salahlaku seperti di Pertuduhan (1), Pertuduhan (2) dan Pertuduhan (3) di atas untuk tujuan keuntungan dan kepentingan peribadi. Vide the same letter, the Claimant was instructed to attend a Domestic Inquiry which was to be covened on 27 August 2013 in order for the Claimant to defend himself for the 6 charges issued against him. Subsequently, vide a letter dated 6 August 2013, the Claimant was issued with a Show Cause Letter wherein the Claimant was requested to furnish explanation for the six (6) charges levelled against the Claimant. Vide a letter dated 15 August 2013, the Claimant denied all the 6 charges levelled against him in addition to stating that the oil palm fruits which were seized by the Company in actual were the fruits of LPP and not of the Company by attaching the relevant documents to support his claim. 4

5 Pursuant to that, the Company being not satisfied with the reply, conducted a Domestic Inquiry on the scheduled date on 27 August 2013 wherein the Company produced 5 witnesses whereas the Claimant adduced 2 witnesses namely Abdul Razak bin Osman, the tractor driver and Jalaludin bin Ahmad Safri, the contractor who harvest oil palm fruits in LPP land to testify on behalf of the Claimant. Nevertheless, the Company denied the Claimant from adducing the documents that were relevant to the testimonies to be given by Jalaluddin bin Ahmad Safri on the sole ground that the Claimant failed to furnish 6 sets of the said documents. Exactly one month after the Domestic Inquiry, vide a letter dated 27 September 2013, the Company terminated the Claimant s employment with immediate effect on the ground that the Company had arrived at a decision that the Claimant was guilty of all 6 charges levelled against him as per the Show Cause Letter and Notice of Inquiry. The Claimant wrote a letter dated 7 October 2013 to the Company to appeal against the said decision of termination of employment. However vide a letter dated 6 November 2013, the Company notified the Claimant that his appeal was dismissed and the decision of termination of the Claimant s employment stands. Dissatisfied with the decision of the Company, the Claimant went on to submit a complaint in the Industrial Relations Department which then lead to the Ministerial Reference to this Court under Section 20(3) of the Industrial Relations Act,

6 THE LAW The function of the Industrial Court in a reference under s.20 of the Industrial Relations Act 1967 has been clearly stated by the Federal Court in the case of Goon Kwee Phoy v J & P Coats (M) Sdn. Bhd. [1981] 1 LNS 30; [1981] 2 MLJ 129 where His Lordship Raja Azlan Shah, CJ (Malaya) stated at p. 136: 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. [Emphasis Added] In the case of Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 at p. 352 Mohd Azmi FCJ delivering the grounds of judgment of the Court had this to say: On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under section 20 of the Act (unless otherwise lawfully provided by the terms of reference) is to determine whether the misconduct or irregularities complained of by the management as the grounds 6

7 of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal. In our opinion, there was no jurisdiction by the Industrial Court to change the scope of reference by substituting its own reason. [Emphasis Added] THE BURDEN OF PROOF The burden of proving misconduct that justifies dismissal lies on the employer who has to establish such misconduct to the standard of a balance of probabilities. In Century Mahkota Hotel Melaka & Anor v. Michele Geraldine Kensler [1999] 3 ILR 60, the Industrial Court stated: "It is settled law that in cases of direct dismissal such as this, the burden is always on the employer to satisfy the Court by way of cogent and convincing evidence, albeit on a balance of probabilities that such misconduct as are alleged have indeed been committed by the employee and if so, whether it deserves a dismissal." [Emphasis Added] In Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11, it was stated that: "It is a basic principle of industrial jurisprudence that in a dismissal case, the employer must produce convincing evidence that the workman committed that offence of which the workman is alleged to have been dismissed. The burden of proof is on the employer to prove that he has just cause or excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The 7

8 just cause must be, either a misconduct, negligence or poor performance based on the case. [Emphasis Added] The Company s Contention Mohd Firdaus bin Abd. Razak ( COW-1 ) who was the Assistant Manager of Ladang Telang 01 Felda, testified that on 30 April 2013, Nor Ahmad Isa who was the Supervisor for Ladang PM90 BIC consisting Block 20, 21 and 22 reported to him that the plantation contract workers had not reported for work at Blocks 20, 21 and 22. COW-1 went to the area together with Mohd Isa Abd. Wahid ( Mohd Isa ) the Assistant Manager for Block 20, 21 and 22 the same day at about 3.00 pm and found two of the contract workers working at the neighbouring LPP/Puspanita area. COW-1 together with Mohd Isa went to the said LPP/Puspanita land where oil palms fruits were also being harvested. They saw Abd. Razak Osman, the Company s tractor loading the oil palms fruits. Mohd Isa questioned Abdul Razak, whose fruits are they?. Abdul Razak replied that Ini buah boss. Based on the said reply, COW-1 concluded that the Claimant was involved in harvesting oil palm fruits in LPP land. COW-1 on the same day at about 5.00 pm informed Encik Abdullah Yaacob, the Regional Manager and upon his instructions, COW-1 made a written report and sent it to the Regional Manager. In the said report, COW-1 explained that because the Manager was involved, he made the decision to report directly to the Regional Manager s office. Thereafter, COW-1 reported that on 2 May 2013, Nor Ahmad Isa informed that the Company s oil palm trees at Block 10, Ladang Telang 01 neighbouring the LPP/Puspanita 8

9 area were possibly harvested. Subsequently, COW-1 together with Noor Ahmad Isa and Mohd Isa Abd. Wahid went to Block 10 and discovered that the Company s oil palm trees at the border between Block 10 and LPP/Puspanita land had been harvested despite the turn for harvesting had not arrived. Accordingly, COW-1 reported the incident to the Auxiliary Police Officer, namely Che Zainal Abidin bin Che Mat ( COW-3 ) who then patrolled the said areas with the assistance of the Supervisor of Block 10, Safrinizam bin Md. Sidek, ( COW-2 ) in order to determine the boundary between Block 10 and LPP/Puspanita land. COW-2 estimates about of the Company s oil palm trees at Block 10 had been harvested. COW-2 further testified as follows: 3. S. : Sila terangkan bagaimana anda terlibat dengan kes Yang Menuntut ini? J. : Pada (hari Khamis) Penolong Pengurus iaitu Encik Firdaus telah mengarahkan saya membuat pengesahan sempadan di antara Blok 10 dengan Ladang PUSPANTA. Pada hari yang sama itu juga saya dan Che Zainal Abidin bin Che Mat telah membuat tinjauan ke lokasi tersebut dan saya mengesahkan sempadan tersebut yang dibezakan dengan barisan pokok-pokok di sempadan yang ditandakan dengan cat merah putih adalah kepunyaan Felda. 4. S. : Adakah terdapat lain-lain ciri yang boleh membantu menentukan sempadan Blok 10 dengan Ladang PUSPANITA tersebut? J. : Ciri lain yang boleh membatu menentukan sempadan adalah bahawa Ladang PUSPANITA tersebut tidak terurus dengan baik dan dipenuhi dengan semak samun dan pelepah-pelepah tidak di prunning sedangkan pokok-pokok Felda kelihatan terang dan tersusun. Perbezaan ini jelas kelihatan. 9

10 5. S. : Hasil pemeriksaan yang anda buat pada , apakah yang anda dapati? J. : Hasil pemeriksaan pada , saya mendapati bahawa lebih kurang 15 hingga 20 pokok di Blok 10 telah dituai yang mana merupakan pokok yang bersempadan dengan Ladang PUSPANITA tersebut. Ini jelas kelihatan daripada kesan pelepah-pelepah yang masih hijau serta biji-biji relai di bawah pokok-pokok tersebut. Saya juga mendapati bahawa BTB Blok 10 yang dituai adalah dalam anggaran 40 tandan dan yang telah dirampas oleh FELSCO. COW-3 testified that on 2 May 9.00 am he received reports from COW-1 and went to Block 10 and found 15 to 20 trees had been harvested. He went to the collection area at LPP/Ladang Puspanita and found motor-lorry bearing registration number BKM 5310 and it s driver Jais Selamat there with two Indonesian workers, namely, Ira and Irma loading oil palm fruits onto the said motor lorry. Both Indonesian workers told COW-3 that they were paid by Abd. Razak.COW-3 then ordered that the oil palm fruits to be unloaded from the said lorry and told Jais Selamat to call Abd. Razak to come over to the place. Abd. Razak arrived and told COW-3 that he was instructed by the Claimant and was paid RM COW-3 in his testimony states as follows: Abdul Razak bin Osman (No. K/P: ) telah datang ke tempat kejadian itu dan memberitahu saya bahawa beliau telah disahkan oleh Pengurus Ladang itu dan memberitahu saya bahawa beliau telah diarahkan oleh Pengurus Ladang Telang 01 iaitu Yang Menuntut untuk menguruskan BTS ke kilang sawit swasta dan 10

11 dibayar upah sebanyak RM Saya telah menahan tandan BTS daripada dihantar ke kilang swasta, sementara mendapatkan kepastian daripada Yang Menuntut selaku Pengurus Ladang Telang 01. Saya telah melaporkan kepada pegawai atasan saya iaitu Inspektor Juswari bin Husin dan beliau telah arahkan saya untuk bertemu dengan Pengurus iaitu Yang Menuntut. On 2 May 3.00 p.m, COW-3 meet the Claimant at the Claimant s office and Claimant told him that the new contract workers did not know the boundary and accidentally harvested the Company s oil palm. The Claimant admitted that he obtained the contract worth RM12,000 to harvest fruits from LPP/Puspanita areas. COW-3 further testified that the Claimant told him that 45 bunches are to be returned to the Company and the balance to be sent to a private factory. However, COW- 3 told the Claimant that he has to report the matter to his superiors. The Company based on COW-1 s report on the above incidents and statements from COW-2, COW-3, Mohd Isa Abdul Wahid and Mahmud proceed to convene a Domestic Inquiry on 27 August The Claimant s Contention The Claimant denied all the six (6) charges levelled against him by the Company. The Company concluded that the Claimant was guilty merely on the ground that Abdul Razak bin Osman had allegedly stated that Ini buah boss and further Abdul Razak had stated on 2 May 2013 the fruits from oil palm trees in Block 10 were harvested despite its turn for harvesting had not arrived upon the Claimant s instruction. 11

12 The Claimant contends that he had refuted the allegation by adducing Abdul Razak during the Domestic Inquiry wherein he denied all the relevant allegations. The Claimant further contends that the oil palm fruits harvested on 2 May 2013 were in actual the product from LPP land and not of Block 10 and this was evident from the police report made by Jalaludin on 28 August The Company had failed to make an attempt to contact Jalaludin and LPP/Puspanita to clarify as to whether the Claimant indeed had obtained a contract to harvest the oil palm trees in the said land taking into account the fact that such doubt had already been brought to the Company s attention through the documents attached by the Claimant together with the reply to the show cause letter dated 15 August The Claimant also submitted that the Company had failed to adduce both Jalaludin and Abdul Razak as witnesses to testify in this Court as it feared that they would not be favourable witnesses for the Company. The Claimant concludes that the onus is upon the Company to prove that the termination was with just cause and excuse on the balance of probabilities which the Company had clearly failed to establish. EVALUATION AND FINDINGS The burden of proving misconduct that justifies dismissal lies on the employer who 12

13 has to establish such misconduct to the standard of a balance of probabilities. The Company has to produce cogent and convincing evidence to show that the Claimant had committed the misconduct. However, there is ample authority for saying that the test is not whether the employee did it but whether the employer acted reasonably in thinking the employee did it. They must show that they had made reasonable enquiries and did not form their belief hastily and that they had given the employee a fair opportunity to explain himself. In the present case, the Company had preferred six (6) charges against the Claimant. The thrust of the Company s case against the Claimant is that the Claimant had collaborated with Abdul Razak bin Osman to remove 630 kilograms of fresh bunch oil palm fruits ( the fruits ) belonging to the Company and/or wrong fully used his position by ordering Abdul Razak to use the Company s tractor to ferry the 630 kilograms of the fruits with the intention of removing the fruits without the permission of the Company. The Claimant was also charged for harvesting the fruits without the prior permission from the Company as well as failing to report to the Company s management about the harvesting without permission of the fruits at Block 10. The evidence of the Company witnesses namely COW-1, COW-2, COW-3 and also COW-4 clearly shows that the Company s oil palm trees at Block 10 had been harvested by one Abd. Razak Osman on the instruction of the Claimant. COW-1 s evidence that when he went to Block 10 he saw Abdul Razak collecting the fruits using the Company s tractor and two of the Company s contract workers were also present at the scene assisting Abdul Razak. Abdul Razak told COW-1 that the fruits belong to the boss. This is not disputed by the Claimant and in fact pleaded at para 18(a) (iv) of the 13

14 Statement of Case. However, the Claimant took the position that the word boss did not refer to the Claimant but other persons. In this regard, although COW-1 and COW-2 is also considered as boss and called as such by other employer, both the witnesses has no doubt that the word boss referred to the Claimant in the present context.. COW-1 and COW-2 who were also the witnesses during the Domestic Inquiry had testified that when Abdul Razak and also the Indonesian contract workers said the word boss, they were referring to the Claimant and not to them. COW-1 evidence is consistent with his written report dated 3 May 2013 to the Regional Office. Photographs of the tractor and the fruits were also taken by COW-1 to further support COW-1 s evidence. COW-1 further testified that a statement was taken from the Indonesian contract worker, Mahmudi who was at the site. In the statement, Mahmudi concedes that he and the other worker did not know the boundary between the LPP/Puspanita and the Block 10 and had harvested the Company s fruit. Mahmudi also confirmed that he was assigned to harvest the fruits from LPP/Puspanita by the boss. In his written statement dated 13 May 2013, Mahmudi among others states as follows; 1. Saya sememangnya ditugaskan menuai BTB diladang LPP/PUSPANITA oleh boss (Pengurus) melalui En. Razak Pemandu Traktor. 2. Kerja itu dibuat sejak bulan Mac 2013 dan sepanjang ingatan saya hanya sudah 3 kali dituai. 3. Kerja itu dibuat bersama 2 orang lagi rakan saya yang akan dan setiap dari kami dibayar sebanyak RM bagi setiap tan yang diperolehi. Yang terbaru, saya mendapat upah sebanyak RM begitu juga 14

15 dengan 2 orang rakan saya yang lain (Ses dan Lampong - nama panggilan). Wang itu dibayar sendiri oleh En. Razak kepada kami. 4. Saya dan rakan-rakan lain tidak memberitahu En. Shahrul (Taukeh) atau meminta kebenaran dari beliau untuk berbuat demikian. 5. Pemunggahan BTB ke tempat longgokan dilakukan oleh En. Razak sendiri dengan menggunakan traktor berwarna biru. Pada (hari kejadian) lebih kurang jam 4.00 petang ketika saya ditemui ditempat pengumpulan BTB tersebut, kerja-kerja pemunggahan oleh En. Razak telahpun selesai (2 trip). 6. Semasa tuaian BTB dilakukan, tiada orang lain yang menjaga kami dan kami sendiri tidak mengetahui sempadan ladang/kawasan yang terlibat. Kami ingat yang bertanda merah putih masih ladang kepunyaan PUSPANITA/LPP yang perlu kami tuai. Upah RM telah dibayar kepada kami pada 02/04/13 oleh En. Razak. COW-2 confirmed that between 15 to 20 trees had been harvested from Block 10 despite the turns for harvesting had not arrived. He further testified that he can clearly differentiate the fruits between the Block 10 and the LPP/Puspanita as the fruits from the oil palm trees in Block 10 were fresher and bigger than that of the oil palm fruits from LPP/Puspanita as the oil palm trees in LPP/Puspanita were not well kept and not in order. Based on the above evidence, and the contemporaneous documents adduced in the Court, it is obvious that oil palm fruits were harvested from Block 10 by Abdul Razak on the instruction of the Claimant. This is further supported by the evidence of COW-3 and COW-4 on the conduct of the Claimant after he was confronted on the above incident. COW-3 testified that the Claimant told him that the contract workers had wrongly harvested fruits from the trees at Block 10. Claimant had also admitted to COW-3 that he 15

16 had obtained a contract from LPP/Puspanita to harvest its fruit for RM12, and further he had instructed Abdul Razak to do the harvesting. Contemporaneously, COW-3 had also submitted a report to his superior. COW-3 also testified that the Claimant had called him on 16 August 2013 on his mobile phone and he told the Claimant to speak to Sarjan Hazari bin Bakar ( COW-4 ). COW-4 confirmed that the Claimant had called him on 16 August 2013 at about 19:17 hours and told him to withdraw the case and if this was not done, the Claimant would take it to the higher authority. COW-4 told the Claimant that the case could not be withdrawn as the matter had been referred to the higher authority. Based on the above evidence, the Court is satisfied that the Company has proven this case on balance of probabilities as regard to Charges 2, 3, 4 and 6. The Company has failed to prove Charges 1 and 5 against the Claimant on balance of probabilities. In regard to Charge 1, there is no evidence led by the Company to show that the Claimant had collaborated with Abdul Razak to remove the oil palm fruits between March 2013 to April 2013 except for the incident on 30 April 2013 which is the subject matter of the Charges 2 and 3. As for Charge 5, there is no evidence to show that the Claimant had refused to lodge a report to the higher authority as regard to the unauthorised harvesting at Block 10. Was the Dismissal Justified Having concluded that the Claimant was guilty of the charge of misconduct preferred against him, the next question for this Court to consider is whether the punishment or dismissal against the Claimant was justified and reasonable in the 16

17 circumstances of the case. The Claimant held a senior position in the Company and at the material time was the Manager of the Company s Ladang Felda Telang 01. The offences are serious in nature particularly due to the senior position held by the Claimant. It is clear the Claimant disregarded the interests of the Company. The Chairman of the Mesyuarat Syor Hukuman, Mazlan bin Hamid ( COW-6 ) gave the reasons for the Company s decision to dismiss the Claimant as follows; 4. S. : Mengapa Syarikat membuat keputusan sedemikian? J. : YM telah dibuang kerja kerana pertuduhan terhadap YM adalah salahlaku berat serta melibatkan isu integrity. I agree with the Company that the misconduct of the Claimant was serious in nature which struck at the very root of the employer-employee relationship which advocates mutual trust and confidence. The Claimant's act of placing himself in a position where his personal interest conflicted with the interest of his employer destroyed the very basis of the employment relationship between the parties. The Claimant had conducted himself in a way inconsistent with the faithful discharge of his duties. In Pearce v. Foster [1886] 17 QBD 536, Lord Esher MR observed; The rule of law is that where a person has entered into the position of servant, if he does anything incompatible with the due and faithful discharge of his duty to his master, the latter has the right to dismiss. The relation 17

18 of master and servant shall be in a position to perform his duty and faithfully, and if by his own act he prevents himself from doing so, the matter may dismiss him. [Emphasis Added] And Lopes LJ in the same case stated as follows; If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service it is misconduct which justifies immediate dismissal. The Learned Author B.R. Ghaiye in his book; Misconduct in Employment; 2nd Edn., at page 20, states; In every contract of service there is an implied condition that the servant will work faithfully. If he does not work faithfully, the master can ask for recession of the contract. It is said to be the implied term of fidelity. The obligation to account is a direct corollary of the obligation to faithfully perform duties, that means the implied term of fidelity. The obligation is assumed because in the absence of any such assumption the contract of service will be unworkable or in any case it is an assumption based on equitable grounds in view of the peculiar nature of the contract itself. [Emphasis Added] 18

19 In the whole circumstances of the case, the Court holds the view that the punishment of dismissal meted out against the Claimant was proportionate with the nature and gravity of the misconduct committed by him. CONCLUSION Based on the totality of the evidence and upon a consideration of the submission of the parties, this Court having borne in mind Section 30(5) of the IRA 1967 acting in equity and good conscience and on a balance of probabilities finds that the Company had discharged its burden of proving that the Claimant was dismissed with just cause or excuse. In the premise, the Claimant's claim is hereby dismissed. HANDED DOWN AND DATED THIS 23 MAY Signed - (GULAM MUHIADDEEN BIN ABDUL AZIZ ) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA AT KUALA LUMPUR 19