INDUSTRIAL COURT MALAYSIA CASE NO: 7/4-1077/13 BETWEEN ZAINAL ABIDIN BIN ABU BAKAR AND PANASONIC MANUFACTURING MALAYSIA BERHAD AWARD NO: 466 OF 2018 BEFORE : Y.A. PUAN JAMHIRAH ALI CHAIRMAN VENUE : Industrial Court Malaysia, Kuala Lumpur. DATE OF REFERENCE : 03.07.2013. DATES OF MENTION : 29.08.2013, 28.10.2013, 12.12.2013, 15.01.2014, 10.02.2014, 18.03.2014, 07.04.2014, 21.07.2014, 11.11.2014, 01.04.2015, 08.04.2015, 02.09.2015, 17.09.2015, 22.10.2015, 03.02.2016, 16.02.2016, 04.08.2016, 10.11.2016. DATE OF HEARING : 18.02.2016. DATES OF CLAIMANT'S WRITTEN SUBMISSION : 06.04.2016, 13.06.2016, 05.09.2016. DATES OF COMPANY S WRITTEN SUBMISSION : 17.05.2016, 20.07.2016. DATE OF ORAL SUBMISSION 05.04.2017. REPRESENTATION : : for the Claimant Alfred Balamohan Vengadasalam Messrs A.V. Balamohan & Co Advocates & Solicitors for the Company David Ng Yew Kiat with Lee Lyn-Ni Messrs Shook Lin & Bok Advocates & Solicitors 1
REFERENCE: This case was referred to the Industrial Court on 03.07.2013 by the Honourable Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177]( IRA ) arising from the dismissal of Zainal Abidin bin Abu Bakar ( Claimant ) by Panasonic Manufacturing Malaysia Berhad ( Company ) on 06.03.2013. AWARD Prologue 1. The hearing of this case commenced on 18.02.2016. At the outset of the hearing, the Claimant informed this Court that he was admitting to all the 4 charges brought against him by the Company; and that he would only proceed on the issue of proportionality of punishment meted out by the Company, i.e. that of dismissal. 2. That being the case, the Company then proceeded to produce only one witness (COW1) to adduce the evidence on proportionality; and the only witness for the Claimant s case was the Claimant himself (CLW1). The hearing was completed on the same day. The Claimant s Written Submission and Bundle of Authorities were filed on 06.04.2016, 13.06.2016 and 05.09.2016 respectively; and the Company s Written Submission and Bundle of Authorities were filed on 17.05.2016 and 20.07.2016 respectively. The Oral Submissions were heard on 05.04.2017. Facts 3. The Claimant commenced employment with the Company as a fork lift driver on 26.04.1979 (COB1 pages 21-23). At the time of his dismissal, the Claimant held 2
the position of Clerk 1 which involved being a lorry driver for the Service Department, delivering and collecting parts and checking stocks. His last drawn salary was RM3,890.00 per month. 4. On 12.01.2013 at approximately 9.18 a.m., the Claimant drove out the Company s lorry (Registration No. BFS 2091) from Shah Alam Plant 1 (SA1) carrying 30 pieces of containers and a table that belonged to the Company. The Delivery Order (DO), No. w47023 dated 12.01.2013 was presented to the Company s Security Guard, one Ramesh a/l Perumal, at the exit of SA1. The DO stated that the Claimant was delivering the 30 empty containers and a table to one Ms. Kamsiah at the Company s Shah Alam Plant 2 (SA2) (COB page 2). 5. When the Claimant arrived at SA2 at 11.08 a.m., the lorry did not contain any cargo including the containers and the table. All of these events were recorded by the Company s closed-circuit camera at SA1 and SA2. It was also later discovered that the original DO that was issued to the Claimant did not list the table as part of the cargo carried out by the Claimant on 12.01.2013 whereas, the copy of the said DO given to Ramesh, C-Guardhouse was amended to include a listing TABLE1PC (COB page 1). 6. Vide a letter dated 15.01.2013, the Company issued a notice of show cause to the Claimant and requested the Claimant to explain the differing copies of the said DO and the disappearance of the table (COB page 3). 3
7. The Claimant replied to the notice of show cause vide a letter dated 16.01.2013, admitting that he had amended the C-Guardhouse copy of the said DO by writing TABLE-1PC ; and that he had left the table at his friend s shop at Section 24, Shah Alam (COB pages 4-5). 8. On 25.01.2013, the Company issued a second notice to show cause based on the findings of a Laporan Khas Pengawal dated 12.01.2013 (COB2 page 1), requesting the Claimant to explain on the disappearance of the 30 containers that were removed from SA1 but not deposited at SA2 (COB page 6). Vide a letter dated 28.01.2013, the Claimant replied to the second show cause letter and admitted, inter alia, that he had given the 30 empty containers to another employee, one Nazri bin Mohd Radzi (Nazri) (COB page 7). 9. Unsatisfied with the Claimant s explanation and due to the serious nature of the allegations, the Company issued a notice of domestic inquiry dated 08.02.2013 to the Claimant informing him that a domestic inquiry will be held on 20.02.2013 for the following charges (COB pages 8-9): i. Pada 12hb Januari 2013 (Sabtu), pada jam 9.18 pagi, anda dituduh meninggalkan SA I ke SA 2 dengan memandu keluar Iori milik syarikat (No Pendaftaran BFS 2091) dengan menyerahkan Delivery Order No Siri: w47023 bertarikh 12hb Januari 2013 kepada Pengawal Ramesh a/i Perumal dan membawa muatan tambahan, iaitu sebuah meja milik syarikat yang tidak tercatit pada Delivery Order yang asal, dan anda tidak mendapatkan kebenaran daripada Penyelia anda. 4
ii. Pada 12hb Januari 2013 (Sabtu), pada jam 9.18 pagi, anda dituduh bersubahat dengan En Ramesh a/l Perumal dalam melakukan kesalahan membawa keluar barang milik syarikat (iaitu, sebuah meja) tanpa kebenaran daripada Penyelia anda. iii. Pada 12hb Januari 2013, anda dituduh membuat penambahan dan mencatat perkataan Table-1PC kepada dokumen rasmi syarikat (Delivery Order No Siri w47023) dan menyerahkannya kepada Pegawal Keselamatan bernama, Ramesh a/i Perumal (No Pekerja: 05641). iv. Pada 12hb Januari 2013, jam lebih kurang 9.18 pagi anda telah membawa keluar 30 keping container milik syarikat menyerahkannya kepada seorang pekerja bernama En Nazri bin Mohd Radzi, (No Pekerja: 02765), disebuah kedai makan di Seksyen 23, Shah Alam, Selangor, pada jam lebih kurang 10.30 pagi dan meja milik syarikat pula diserahkan kepada anak anda, dan melakukan kesalahan mengalihkan harta syarikat tanpa kebenaran. v. Pada 12hb Januari 2013, anda telah memberi gambaran yang palsu kepada pihak syarikat dengan menyatakan bahawa muatan yang dibawa keluar dengan menggunakan lori milik syarikat (No Pendaftaran BFS 2091) seperti pada Delivery Order No Siri w47023 bertarikh 12hb Februari 2013 akan diserahkan kepada seorang 5
pekerja syarikat bernama Pn Kamsiah bt Shamsuddin (No Pekerja: 03020) dan melakukan kesalahan tipu-muslihat. vi. Anda dituduh melakukan kesalahan lambat memberitahu perkara yang sebenar kerana pada 16hb Januari 2013 anda hanya maklumkan kepada pihak syarikat bahawa anda tidak membawa meja milik syarikat yang telah dikeluarkan daripada SA 1 ke SA II, dan anda tidak memaklumkan bahawa keseluruhan muatan dalam kenderaan milik syarikat (No Pendaftaran BFS 2091) tidak dibawa masuk dan hanya memberitahu perkara ini kepada pihak syarikat selepas surat tunjuk sebab yang kedua bertarikh 25hb Januari 2013 dikeluarkan terhadap anda. 10. The Claimant attended the domestic inquiry on 20.02.2013 and the domestic inquiry concluded that the Claimant had admitted to charges 1, 3, and 4; whereas charge 2 the Claimant was found guilty; and for charges 5 and 6 the Claimant was found not guilty (COB pages 17-20). Vide a letter dated 25.02.2013, the said decision was informed to the Claimant; and the Claimant was afforded the opportunity to mitigate against the punishment to be meted out against him (COB page 12-13). The minutes of the domestic inquiry proceeding were adduced in this Court at COB1 pages 1-13B. 11. Vide a letter dated 27.2.2013 the Claimant appealed against the decision of the Company and stated, inter alia, that he had returned the table to the Company (COB page 14). 6
12. The Company vide a letter dated 06.03.2013, notified the Claimant that after having considered all relevant facts and evidence, his services were terminated with immediate effect from 06.03.2013 (COB pages 15-16). Law 13. The role of the Industrial Court was lucidly explained by His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 MLJ 129 at page 136 (Federal Court) as follows: Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason or excuse for the action taken by him, the duty of the Industrial Court will be to enquire whether that reason or excuse has or has not been made out. If it finds as a fact that it has not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by the employer, and that court or the High Court cannot go into another reason not relied on by the employer, or find one for him. 14. The Federal Court in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 at page 352 succinctly stated the function of the Industrial Court in dealing with dismissal cases as follows: On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under s.20 of the Act 7
(unless otherwise lawfully provided by the terms of the reference) is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal. [emphasis added] 15. The said principle was reiterated in Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449 at page 454 and 455 (Federal Court), where His Lordship Mohamed Azmi FJ said: As pointed out by this court recently in Hong Leong Assurance Sdn. Bhd. v. Wong Yuen Hock [1995] 2 MLJ 753, the function in the Industrial Court in dismissal cases on a reference under section 20 is two-fold: first to determine whether the misconduct complained of by the employer has been established and secondly to determine whether the proven misconduct constitutes just cause or excuse for the dismissal of the employee. [emphasis added] 16. The standard of proof applicable to dismissal cases is the civil standard of proof on a balance of probabilities as decided by the Court of Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor. [2002] 3 CLJ 314 as follows: Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including theft, is not required to be satisfied beyond reasonable doubt that the employee has committed the 8
offence, as in a criminal prosecution... In our view the passage quoted from Administrative Law by H. W. R. Wade & C. F. Forsyth offers the clearest statement on the standard of proof required that is the civil standard based on balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature and gravity of the issue. [emphasis added] Issues 17. As mentioned above, at the outset of the hearing the Claimant, in this case, had admitted to all the 4 charges before this Court. Therefore, this Court will decide on the issue of proportionality of the punishment meted out to the Claimant for the 4 charges levelled against him; whether the charges are sufficiently serious to amount to just cause and excuse to warrant the Claimant s dismissal by the Company. Evaluation of evidence 18. I shall now analyse the issues and evaluate the evidence adduced in this case. In doing so I have taken into consideration all the oral and documentary evidence that was adduced before this Court and all the issues raised and discussed in the written and oral submissions, including the legal authorities filed by both the Claimant s and the Company s Counsel. 19. Takayuki Tadano, the Company s Director (COW1), who made the decision to dismiss the Claimant, informed this Court of the reasons why the Company took the decision to dismiss the Claimant. 9
a. The Company found the Claimant guilty of charges 1, 2, 3 and 4 which are serious and fraudulent misconduct. Theft of the Company s property was a serious offence as stated in the Company s Disciplinary Procedure Handbook; Fraudulence at item 1.9 paragraphs 1 and 3 and Property at item 2.5 paragraph 6 (COB1 pages 46-49). The Claimant was aware that removal of property belonging to the Company without prior approval was a serious misconduct as he had admitted that he had removed the table without the Company s approval. Although the Claimant gave a justification that the table was returned after the theft was discovered by the Company, it did not absolve him of the misconduct. b. The Claimant had also admitted that he had tampered with the Company s official document, i.e. the DO, with the intention to defraud the Company. Forging or defacing official documents of the Company, in this case, amending the DO after it had been signed by the authorised personnel was a serious offence under the Company s Disciplinary Procedure Handbook; Fraudulence at item 1.9 paragraphs 5 (COB1 page 47). c. The Claimant had also admitted removing the 30 empty containers from the Company and that he had failed to deliver the containers at the Company s SA 2 plant as stated in the DO No. w47023 dated 12.01.2013; and instead had delivered them to Nazri at a different location. These are very serious offences as it was done without authorisation and in contravention of the Company s procedures. 10
d. The testimony of one Mohd Yassin Bin Mohd Hashim and the CCTV footage (COB1 pages 13, 13A & 13B) showed that the Claimant had collaborated with the security guard, Ramesh to take the said items out of the Company. Mohd Yassin gave evidence at the domestic inquiry that the Claimant had verbally informed him (Mohd Yassin) that the Claimant had already obtained the permission from the security guard (Ramesh) to take out the table (COB1 page 7). e. Given the circumstances, the Company viewed the offences committed by the Claimant as very serious and therefore exercised its managerial prerogative to terminate the services of the Claimant pursuant to Paragraph B, Step III, item 4, Procedures for Handling Misconduct, Disciplinary Procedures Handbook (COB1 page 38). The misconduct committed by the Claimant had directly affected the Claimant s integrity as an employee of the Company who had worked with the Company for 34 years and the Company could no longer repose any trust and confidence in him. 20. The Claimant informed this Court that the table he took was an old table and that he had returned the table to the Company. 21. It is also the Claimant s contention that the Claimant s dismissal in comparison to the charges levelled against him did not commensurate and in fact was unduly harsh. Further, there was a clear, unfair and inequitable disparity in terms of punishment accorded to the Claimant in relation and comparison to the others 11
involved collectively on the whole transaction, i.e. the Claimant was dismissed, the security guard, Ramesh was transferred, and Nazri was merely demoted. Findings Whether the Punishment of Dismissal was Proportionate 22. This Court is fully endowed with the power to consider whether the misconduct proved warrants the punishment of dismissal as decided in the case of Norizan Bin Bakar v. Panzana Enterprise Sdn. Bhd. (2013) 6 MLJ 605, the Federal Court held as follows: In deciding whether the proven misconduct would constitute just cause or excuse, the Industrial Court is fully endowed with the power to consider whether the misconduct proved warrants the punishment of dismissal. Thus, in reference to the question posed to us, we are of the view that the Industrial Court has the jurisdiction to decide that the dismissal of the Applicant was without just cause or excuse by using the doctrine of proportionality of punishment and also to decide whether the punishment of dismissal was too harsh in the circumstances when ascertaining the Award under s. 20(3) of the IRA. We are further of the view that the Industrial Court in exercising the aforesaid functions can rely to its powers under s.30(5) of the IRA based on the principles of equity, good conscience and substantial merit of the case. 12
23. The learned Counsel for the Claimant submitted that the punishment of dismissal meted out was too harsh and not proportionate to the misconduct committed by the Claimant on the grounds that there was a disparity in terms of the Company s punishment accorded to the Claimant and Nazri. The learned Counsel submitted that Ramesh, Nazri and the Claimant were charged and had subsequently undergone domestic inquiry proceedings. However, the Claimant was the only one who was dismissed, whereas Nazri who also had not followed the Company procedures and had committed a misconduct was merely demoted. Further, the learned Counsel submitted that the Company had contended that Nazri had verbal approval from his superior and that he had returned the 30 containers; therefore based on such response from the Company, it could also be said that the Claimant would have also been laboring under the impression that he had verbal permission from his superior based on the communication between them; and that the Claimant had also returned the old and rickety table to the Company. 24. The learned Counsel for the Company submitted that the misconduct committed by the Claimant are serious, as the Claimant had admitted removing the table and the 30 containers without obtaining the requisite approval from the Company; and he had also admitted to tampering with the Company s DO. Further, the Claimant did not give any reasonable or satisfactory explanation for his misconduct. 25. The learned Counsel further submitted that COW1 s evidence had shown that the Company s reasons for not dismissing Nazri are not solely based on the fact that the property was returned to the Company; but it was because he had obtained 13
verbal approval from his superior, as confirmed by his superior, in the Claimant s domestic inquiry (COB1 page 10). On the other hand, the fact that the Claimant had returned the table to the Company was not a factor to be taken into account as there was no prior permission given in the first place. Further, the learned Counsel submitted that the Claimant s misconduct tantamount to theft of Company s properties and/or fraud and the Company could no longer repose trust and confidence in the Claimant and therefore the Company had exercised its managerial prerogative to dismiss the Claimant. 26. This Court agrees with the learned Counsel for the Company s submission that it is trite that theft and fraud are an act which is inconsistent with the fiduciary relationship between employer and employee. This Court is of the view that when an employee had placed himself in such position, he was in breach of his fiduciary duties. As stated in B.R. Ghaiye in Misconduct in Employment Chapter XIX at page 650: The relation between an employer and an employee is of a fiduciary character. The word fiduciary means belonging to trust or trusteeship. It means that whenever an employer engages a worker he puts trust that the worker will faithfully discharge the service and protect and further the interest of the employer. 27. In Pearce v. Foster [1886] 17 QBD 536 the Queen s Bench Division held as follows: The rule of law is, that where a person has entered into the position of servant, if he does anything incompatible with the due or faithful 14
discharge of his duty to his master, the latter has a right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him. 28. This Court finds that the misconduct committed by the Claimant was indeed a theft and fraud. The act of removing property belonging to the Company without prior approval/permission, even though it was an old and rickety table was tantamount to theft. Theft is indeed a serious offence. This was compounded by the fact that the Claimant had also admitted that he had tampered with the DO, an official document of the Company, whereby fraud is another serious offence. 29. It is trite that misconduct of theft and fraud warrants dismissal. In the case of Malaysian Airlines System Bhd v. Airline Workers Union, Sarawak [1983] 1 ILR 238, the Claimant was employed as a Traffic Hand with the Company, and it was alleged that he had assisted another employee to remove from the Company s premises a chain saw and its accessories that was entrusted to the Company; when he was not authorised to do so. The Industrial Court held as follows (at pp.240, 246): 6. When an offence was committed in respect of the property of the Company and if the Company was satisfied with the misconduct of its employee after a proper inquiry, the Company will be justified in dismissing him and maintaining his dismissal independent of the result of the Court of law 15
22. The Claimant s act of misconduct is a serious one which deserves nothing less than the punishment of dismissal. This Court holds the dismissal of the Claimant to be justified. The Union s claim is hereby dismissed. 30. The learned Counsel for the Company also cited the case of Tamco Cutter- Hammer Sdn. Bhd. v. Muhamad Hatif Yaacob [1996] 2 ILR 1645 (at p. 1649) where it stated: However after hearing the evidence of the claimant and his witnesses the Court is satisfied that C0W2 did see the claimant and the other person loading the two boxes onto the lorry. That is the crux of the matter. It is not disputed that the boxes contained copper scraps of some value belonging to the company and that there was no authorisation for the claimant to remove them. The scraps were meant to be taken out of the possession of the company through the lorry with the help of the lorry driver. The Court is satisfied that the company had justification after receiving the report of the domestic inquiry that the claimant had attempted to commit theft of company property. In the circumstances it has proved to the Court that the dismissal of the claimant is with just cause. 31. This Court is of the general view that the Court has no jurisdiction nor purview to consider the punishment imposed on the other employees by the Company. It is the duty of this Court to merely decide whether the punishment of dismissal on the Claimant in the instant case was fair and just based on the facts and circumstances 16
pertaining to the misconduct that the Claimant had admitted to in charges 1, 2, 3 and 4. 32. In the case of Ranjit Kaur a/p Gopal Singh v. Hotel Excelsior (M) Sdn. Bhd. [2010] MLJU 686, the Federal Court held: All the above are the relevant matters which the Industrial Court had failed to take into consideration. Instead, it took into consideration other irrelevant matters. A clear example was when it took into account the fact that the respondent s action in not taking action against another employee for a similar misconduct amounted to a display of double standard. With utmost respect, such conclusion is a clear error. As rightly pointed out by the learned High Court Judge that such consideration was irrelevant as it was not for the appellant to question why the respondent as the employer should take disciplinary action against her and not another. 33. This issue was also decided in Harianto Effendy Bin Zakaria & ors v. Mahkamah Perusahaan Malaysia & Anor [2014] 6 MLJ 305, the appellants, in that case, were dismissed for taking part in an illegal picket within the bank s premises during banking hours. The Industrial Court upheld the dismissal of the appellants. The High Court and the Court of Appeal affirmed the Industrial Court s decision. In an appeal against the Court of Appeal s decision, the appellants submitted that in upholding their dismissal, the courts below erred in not taking into account the fact that, inter alia, the bank had practiced double standards in that five other employees had participated in the same picket were either found not guilty or were issued with a 17
caution letter or punished with a two-year freeze in salary increment. The Federal Court dismissed the appeal and held on the issue of double standards, [40] We shall deal first with the appellants contention that the second respondent was guilty of unequal treatment and double standards because five of the employees who were charged together with the appellants were not dismissed. On this issue we agree with the observation made by the Court of Appeal that there was no merit in the appellants contention that the appellants dismissal was actuated by discriminative practice. From the record, the allegation of the inconsistency of punishment of the five employees who were charged together with the appellants was misconceived. Three of the five employees, namely Zamir bin Ahmad, Noor Jam bin Kader Mohiden and Ahmad bin Kassim were found not guilty of the charge in the domestic inquiry that was conducted against them. Their suspensions from work were therefore uplifted. In respect of Maimunah bt Mat Nor, she was found guilty of the charge. However, taking into consideration her plea of mitigation, the second respondent uplifted her suspension and imposed the punishment of stoppage of increment for a period of two years with effect from January 2005. In respect of Rohana bt Abdul Samad, the second respondent, after taking into account her written explanation dated 21 November 2003, uplifted her suspension. She was instead issued with a caution letter dated 4 December 2003. These facts were taken into the consideration by the Industrial Court when it considered the fairness or otherwise of the dismissal of the appellants. 18
34. In the case of Mohamad Kamal Majid v. Mahkamah Perusahaan Malaysia & Satu Lagi [2014] 1 LNS 1759, the applicant filed a judicial review application seeking to quash the Industrial Court award which upheld his dismissal. The applicant contended that, inter alia, the Industrial Court had erred when it failed to consider the disparity of punishment imposed on another employee of the 2nd respondent which committed a similar misconduct. The High Court held that there was no error committed by the Industrial Court, [14] Akhirnya, peguam pemohon telah menegaskan bahawa responden pertama telah silap dari segi undang-undang apabila gagal memberi pertimbangan tentang hukuman yang berbeza dikenakan kepada pengurus responden kedua yang lain yang turut terlibat dengan cara membuat tuntutan balik perbelanjaan keraian yang sama dengan pemohon. Keputusan kes Malayan Banking Berhad v. Roslinda Hassan [2008] 3 ILR 368 dirujuk. Rujukan kepada Award, jelas menunjukkan responden pertama telah memutuskan: That others may have done so and gotten off lightly is not within the jurisdictional purview of the court in this instant case. Such allegations as was raised by the Claimant will thus have to fall by the way-side, and not be construed as mala fides on the Part of the Bank. (lihat akhir perenggan 2 di muka surat 42 Award) Adalah didapati bahawa responden pertama sememangnya tidak mengambil kira tentang tindakan responden kedua ke atas pegawai yang lain di atas alasan ianya bukan di bawah bidang kuasanya dan perkara tersebut tidak dapat menunjukkan tindakan mala fide responden 19
kedua. Adalah didapati pandangan responden pertama tersebut bukanlah satu salah arahan atau satu kesilapan undang-undang yang boleh menjejaskan keseluruhan keputusan responden pertama. Sekiranya diteliti rekod prosiding perbicaraan di hadapan responden pertama, ada keterangan dari COW5 yang mengatakan 7 dari 10 Pengurus Cawangan responden kedua telah dikenakan hukuman yang sama dengan pemohon dan hanya 3 orang pegawai diberi amaran, diturunkan pangkat dan satu tidak diambil tindakan kerana didapati tidak terlibat. Faktanya ada disparity dalam tindakan atau hukuman, tetapi hanya ada perbezaan tindakan atau hukuman berdasarkan asas tindakan yang diambil. Alasan pemohon yang membandingkan hukuman diterimanya dengan pegawai responden kedua yang lain sememangnya tidak berkaitan dengan bidang kuasa responden pertama dan tidak menjadikan Award silap dari segi undang-undang. 35. However, in the instant case, COW4 testified that disciplinary action was taken against the security guard (Ramesh) and Nazri. Domestic inquiries were held for both the employees and the Company found that Ramesh was negligent in discharging his duties as a security guard. He was given a warning and was transferred to another department. Nazri was found guilty for filling in false information in the DO. He was demoted from Senior Executive to Executive. COW1 had testified and explained as to the reason why the Company had dismissed the Claimant and had demoted Nazri. It was clear that the charges preferred against the Claimant was more serious in nature as compared to Nazri s (notice of domestic inquiry for Nazri COB3 pages 4-5). 20
36. Upon a perusal of the above mentioned evidence, it clearly proved that the Claimant was not the only employee that the Company had taken action against. He was not picked-on nor was he discriminated against. The Company had taken necessary action against the other two employees who were involved at the material time. Whether the type of punishment imposed on the respective employees would have been proportionate to their respective charges and facts in their respective cases is not within the jurisdictional purview of this Court in this instant case. Suffice to state that whether or not the Company had discharged its overall duty to those employees is beyond the scope of this Court to consider. 37. Further, in the case of Harianto Effendy Bin Zakaria & ors v. Mahkamah Perusahaan Malaysia & Anor (supra), the Federal Court acknowledged the principle that an employee can be dismissed even for a single instance of insolence depending on the nature of misconduct committed by the employee concerned where it stated: there is no fixed rule of law to suggest that it was unreasonable to dismiss employees with unblemished records for a single instance of insolence. It depends on the nature of the misconduct. In this connection Lord Evershed MR opined in Laws v. London Chronicles (Indicator Newspapers) Ltd [1959] 2 All ER 285 at pp 287-288: In the present case, the learned judge, in the course of his judgment, said: It is clear and sound law that to justify dismissal for one act of disobedience or misconduct it has to be of a grave and serious nature. 21
Later he concluded, in the plaintiff s favour, that what she had done, or not done, on June 20, 1958, was not sufficiently grave to justify dismissal. With all respect to the learned judge, I think that his proposition is not justified in the form in which he stated it. I think that it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is wilful : it does (in other words) connote a deliberate flouting of the essential contractual conditions. [Emphasis Added] 38. In the instant case, it is clear that the misconduct of theft and fraud committed by the Claimant in charges 1, 2, 3 and 4 (which were admitted by the Claimant) does have the quality that it was willful : it does (in other words) connote a deliberate flouting of the essential contractual condition as opined by Lord Evershed MR in Laws v. London Chronicles (Indicator Newspaper) Ltd [1959] 2 All ER 285 at pp 287-288. Consequently, the said misconduct of the Claimant was of a nature that goes to show that (in effect) he had repudiated his contract of employment in not discharging his responsibilities with honesty. Therefore, the Claimant s said misconduct had effectively destroyed the trust and confidence that the Company had placed in him to carry out his duties faithfully and with integrity; 22
and the Claimant in these circumstances must have been aware that dismissal would have been the inevitable punishment. 39. Based on the facts and circumstances of the case the Court finds that the dismissal of the Claimant by the Company was fair and was proportionate to the misconduct committed by him. Hence the Court finds that the Company had just cause and excuse to dismiss the Claimant. Conclusion 40. In view of that, after taking into account the totality of the evidence adduced by the parties and bearing in mind subsection 30(5) of IRA which requires the Court to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form, this Court finds that the Company has proved on a balance of probabilities that the Claimant's dismissal was with just cause or excuse. Accordingly, the Claimant's case is hereby dismissed. HANDED DOWN AND DATED THIS 28 TH DAY OF FEBRUARY 2018 -signed- ( JAMHIRAH ALI ) CHAIRMAN INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR 23