INDUSTRIAL COURT OF MALAYSIA CASE NO: 25/4-278/06 ENCIK RAVINDAR SINGH A/L JESWANT SINGH AND ISLAND AIR SDN BHD AWARD NO: 175 OF 2009 BEFORE VENUE : DATO JALALDIN HJ. HUSSAIN CHAIRMAN (Sitting Alone) : Industrial Court, Kuala Lumpur. DATE OF REFERENCE : 14 September 2005. DATES OF MENTION : 22 February 2006, 20 April 2006, 22 May 2006, 16 June 2006, 4 July 2006, 27 July 2006, 18 April 2007, 4 May 2007 and 21 June 2007. DATES OF HEARING : 5 November 2007, 7 December 2007, 3 January 2008, 7 March 2008, 1 July 2008, 14 July 2008, 21 July 2008, 30 July 2008, 26 August 208 and 27 August 2008. DATES OF RECEIPT OF WRITTEN SUBMISSIONS : 11 September 2008 - Claimant s written submission 13 October 2008 - Company s written submission. 22 October 2008 - Claimant s submission in reply.
REPRESENTATION : Mr. Mohan Singh of Messrs. David Gurupatham and Koay, counsel for the Claimant. Mr. H. C. Yong of Zaid Ibrahim & Co., counsel for the Company. REFERENCES This is a reference under Section 20(3) of the Industrial Relations Act 1967 (herein after referred to as IRA), arising out the dismissal of Encik Ravindar Singh A/L Jeswant Singh (hereinafter referred to as the Claimant ) by Island Air Sdn. Bhd. (hereinafter referred to as the Company ). AWARD This is a reference made under Section 20(3) of the IRA 1967 arising out of the alleged dismissal of the Claimant on 10 February 2004 by the Company. The matter was referred to the Industrial Court through a reference ordered by the Honourable Minister of Human Resources dated 14 September 2005 and received by the Court on 16 January 2006. Brief Facts: The Claimant commenced employment with the Company on 1 April 2002 with a salary of RM7,000.00 per month. The Claimant alleged that ten months into his employment and up to the date of dismissal he was victimised by the Aviation Manager one Captain Revi Chandran (COW1). 2
On 9 November 2003, COW1 accused the Claimant of missing from the office. The Claimant alleged that sent an email as per CLB pages 13 and 14. In the evening of 9 November 2003, the Claimant alleged in the email that he can cope with the knowledge that COW1 do not trust him and cannot continue to work under that condition. The Claimant states that he is unable to handle the mental stress of disappointment when the promise to promote the Claimant to Captain on AS 365 N2 was not honoured by the Company. The Claimant also states that COW s sudden outburst time and again in front of the Claimant s subordinates had not helped either. The Claimant reiterated that he felt totally embarrassed and frustrated and would tender his letter of resignation the next day. Based the above said acts, the document subsequently alleged in the basis of his constructive dismissal. On 10 November 2003, COW1 received the Claimant s resignation letter as per CLB page 16 dated 10 November 2003. On 18 November 2003, COW1 replied to the Claimant acknowledging the receipt of the Claimant s letter of resignation and forwarding it to the Human Resource Department for further action. By a letter dated 1 December 2003, the Company s Senior Legal Manager requested that the Claimant to refund a sum of RM50,900.00 in pursuance of paragraph 4 of the Claimant s appointment letter for failing to work for five years with the Company. The Claimant by his letter dated 3 December 2003 appealed to the Managing Director of the Company (CLB page 20). 3
On 9 January 2004, the Claimant sent in a letter of withdrawal of his resignation as per CLB page 26. By a letter dated 15 January 2004 as per CLB page 28, the Company replied to the Claimant s letter of withdrawal. The Company informed the Claimant that they have accepted the Claimant s resignation and do not accept the withdrawal of the Claimant s resignation. On 19 January 2004, the Claimant replied to the Company s letter dated 15 January 2004 through his letter of the same date as per CLB page 29. The Claimant alleged that the Company s refusal to accept his withdrawal of his resignation letter and to allow him to continue in the employment of the Company was without just cause and excuse and that he will be making representation to seek reinstatement. The Company vide a letter dated 6 February 2004 as per CLB page 30 confirmed to the Claimant that the Claimant s resignation was with effect from 10 February 2004. The Claimant, however, pleaded several incidents of victimisation and mistreatment as per para 6 (a) to (j) of his Statement of Case to support his claim that he was constructively dismissal on 9 November 2003. The Law: The law on constructive dismissal has been clearly stated in the leading case of Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298. In the words of Salleh Abas LP:- 4
The common law has always recognized the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligations if the employer is guilty of such breach as affects the foundation of the contract or if the employer has evinced or shown an intention not to be bound by it any longer... We think that the word dismissal in this section should be interpreted with reference to the common law principle. Thus, it would be dismissal if an employer is guilty of a breach, which goes to the root of the contract, or if he has evinced an intention no longer to be bound by it. In such situations, the employee is entitled to regard the contract as terminated and himself dismissed. In the classic case of Western Excavating (ECC) Ltd. v. Sharp [1978] IRLR 27 Lord Denning made this observation:- An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once. Moreover the employee must make up his mind soon after the conduct of which he complains. 5
If he continues for any length of time without leaving, he will be regarded as having elected to affirm the contract and will lose his right to treat himself as discharged. In Colgate Palmolive (M) Sdn. Bhd. v. Yap Kok Foong [1998] 2 ILR 965 (Award No. 368 of 1998) it was held as follows:- In a Section 20 reference, workman s complaint consists of two elements: firstly, that he has been dismissed, and secondly that such dismissal was without just cause or excuse. It is upon these two elements being establish that the workman can claim his relief, to wit, an order for reinstatement, which may be granted or not at the discretion of the Industrial Court. As to the first element, industrial jurisprudence as developed in the course of industrial adjudication readily recognises that any act which has the effect of bringing the employment contract to an end is a dismissal within the meaning of Section 20. The terminology used and the means resorted to by an employer are of little significance; thus, contractual terminations, constructive dismissals, non-renewals of contract, forced resignations, retrenchments and retirements are all species of the same genus, which is dismissal [emphasis added] In the case of Southern Bank Bhd. v. Ng Keng Lian & Anor [2002] 2 CLJ 514, it was submitted to the Industrial Court that as the employee had not informed her employer that she considered herself to be constructively dismissed that the Industrial Court would not be seized with jurisdiction to adjudicate the claim of constructive dismissal as the representation was premature. The Industrial Court, 6
however, decided otherwise, and found that the claim was not premature. As to this approach the High Court in that case made these observations:- If the Industrial Court is correct in its view, then any employee can walk out of employment for whatever reasons (eg, for a better job) without first informing her employer or giving notice to her employer and then when things do not go the employee s way, the employee can say that he or she was in fact constructively dismissed by the employer. This would be an abuse of a claim of constructive dismissal. The High Court then held that the decision of the Industrial Court on the issue ; is also incompatible with the contract test in constructive dismissal cases as enunciated in the leading Supreme Court case of Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298. The High Court held at page 532:- As the common law contract test is applicable to all cases of constructive dismissal, it was incumbent on the Industrial Court to apply the test for the purposes of determining the issue before it. In doing so, the approach that the Industrial Court should have taken is to ask itself whether under the common law contract test there was a duty on the employee to inform her employer that she deemed herself as having been constructively dismissed before she made the representation. Burden Of Proof: The burden is on the employee who complains of constructive dismissal to prove the same. The law pertaining to constructive dismissal based on the contract test has 7
been propounded, followed and restated in innumerable superior court judgments and Industrial Court awards. In Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298, the Supreme Court laid down the doctrine of constructive dismissal in the local context at page 95 in this manner:- The common law has always recognized the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligations if the employer is guilty of such breach as affects the foundation of the contract or if the employer has evinced or shown an intention not to be bound by it any longer.... When the Industrial Court is dealing with a reference under Section 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse. Dismissal without just cause or excuse may well be similar in concept to the U.K. legislation on unfair dismissal, but these two are not exactly identical. Section 20 of our Industrial Relations Act is entirely different from paragraph (c) of Section 55(2) of the U.K. Protection of Employment Act 1978. Therefore we cannot see how the test of unreasonableness which is the basis of the much advocated concept of constructive dismissal by a certain school of thought in U.K. should be introduced as an aid to the interpretation of the word dismissal in our Section 20. We think that the word dismissal in this section should be interpreted with reference to the common law principle. Thus it would be a dismissal if an employer is guilty of a breach which goes to the root of the contract or if he has evinced an intention no longer to be bound by it. In such situations, the employee is entitled to regard the contract as 8
terminated and himself as being dismissed. (See Bouzourou v. The Ottoman Bank and Donovan v. Invicta Airways Ltd.). In Western Excavating (E.C.C.) Ltd. v. Sharp [1978] 1 Q.B. 761 which was adopted in Wong Chee Hong, Lord Denning M.R. illuminated the contract test at page 769:- If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract. The Issue: The issue before the Court is whether the Company s act or conduct amounted to a breach of contract that entitled the Claimant to resign on the basis of constructive dismissal. Did the Claimant in fact voluntarily resigned from his employment or was he in truth dismissed? 9
Evidence, Evaluation and Findings: In his Witness Statement, CLWS1 at page 22, the Claimant claimed that in the evening of 9 November 2003, a Sunday, I sent an email message on the spur of the moment to COW1 with a copy to COW2 and the Director of Human Resources. The email as per para 23 CLWS1 is as per CLB pages 13 and 14 and contained allegations of mistreatment by COW1 and that the Claimant was unable to handle the stress and will tender his resignation the next day on 10 November 2003. On 10 November 2003, the Claimant tendered his letter of resignation as per CLB page 16. COW1 one Captain Revi Chandran in his Witness Statement, COWS-1 in answer to Question 7 said that he received CLB page 16 which was the Claimant s resignation letter first and later received the email as per pages 13 and 14. According to COW1, the Claimant had resigned first then the Claimant sent the email. At pages 5 and 6 of the Notes of Proceedings dated 14 July 2008 while under cross examination, COW1 said the following:- Q : Refer to email as per pages 13 and 14, was this after resignation? A : Yes, the resignation letter we received was on 10 th November 2003, the email was supposed to be sent on 9 th November 2003. The resignation letter was in office was on 9 th November 2003 itself as on the 10 th Claimant was on MC. He called and informed the office. He was not in office on 10 th as he was on MC on 10 th November 2003, the Claimant went to Department of Civil Aviation to get his license endorsed by the Department of Civil Aviation as it appears on the license at page 47 CLB. 10
The Claimant also left a note on the 9 th November 2003 asking the clerk to pass the letter of resignation to me (COW1) the next day. Court : The note to the said clerk was produced and marked as COB2. - the Claimant confirms the handwriting on COB2 as his. COW1: Mas who is Mastura (the clerk) is still with Company. Q : I put it to you, the letter of resignation was given after email? A : The letter was put on Mas s table on 9 th November and Mas gave to me on 10 th November 2003. Question: Which One Was First Received By The Company, The Email Or The Resignation Letter? : The Court had perused the evidence of the Claimant and the Company. COW1 produced COB2 which was a handwritten note from the Claimant to one Mastura, a clerk, working with the Company. The Claimant at page 6 of the Notes of Proceeding dated 14 July 2008 was shown the original note COB2 and confirmed that it was in his own handwriting. The date on COB2 was 9 November 2003 and the instruction to Mas (Mastura) was to hand over the resignation letter to COW1 on 10 November 2003. The note as per COB2 corroborates COW1 s evidence that the Claimant had sent the resignation letter to the Company on the 9 November 2003 to be passed to COW1 on 10 November 2003. Mas or Mastura was not a fictitious person as the Claimant himself produced CLB page 69 whereby Mastura s name ie, Mastura Ab. Ghaffar appears. The Claimant too did not challenge the note COB2 as being fictitious. 11
From the totality of the above evidence, the Court finds on a balance of probability that the Claimant had sent in his resignation letter as per CLB page 16 dated 10 November 2003 to Mastura on 9 November 2003 and the letter containing the said CLB page 16 was given by Mastura with the note as per COB2 to COW1 on 10 November 2003. The Court finds on a balance of probability, COW1 s evidence that the Claimant had sent the said resignation letter on 9 November 2003 before he received the Claimant s email, on a balance of probability, probable. The Court also finds on a balance of probability, the Claimant s evidence as per the last paragraph of para 22 CLWS1 that he tendered the resignation letter on 10 November 2003, not probable. It is also pertinent to note that the Claimant at the same para 22 of CLWS1, the Claimant was very specific in stating that he sent the said email in the evening of 9 November 2003 after considering his doctor s advice. The Claimant first produced CLB pages 13 and 14 as the email, however, no date was stated on CLB pages 13 and 14. The Claimant later produced CLB page 70 which was down loaded on 8 June 2008 as per what is stated at the bottom of CLB page 70. The date and time as per page 70 was Sunday, 9 November 2003, and the time 05:29:19, which is at 5.29 am and not in the evening as stated in para 22 CLWS1. CLB page 70 too does not indicate when it was sent though containing the subject matter and to whom it was intended to be sent. There is thus a material contradiction in the Claimant s evidence which remains unexplained. If credence is to be given to the Claimant s claim that he did sent the email in the evening of 9 November 2003, it would then on 12
a balance of probability be probably after the Claimant had sent CLB page 16 to Mas with the note COB2 attached. It is noteworthy to dwelve into this issue from the onset as it would indicate the Claimant s frame of mind and be relevant to what subsequently flows. The Court notes that CLB page 16, the Claimant s resignation letter, contains no allegation against anyone. The said letter states:- RAVINDAR SINGH 19 JALAN USJ 4/4A UEP SUBANG JAYA 47600 SELANGOR 10 NOV 03 CAPT REVI CHANDRAN GENERAL MANAGER ISLAND AIR SDN BHD. Dear Sir, NOTICE OF RESIGNATION I regret to inform you that I would like to submit my 3 months notice of resignation as required by my appointment letter effective today. As such, my last day of employment would tentatively be on 9 Feb 04. I would like to thank you for giving me the opportunity to be part of an exiting company, which is truly blessed with continuous success. It was indeed an honour and privilege to be of service to the YTL family and to assist your goodself on many of the flights. I believe that no one is indispensable, hence, my departure would only allow a better more experience pilot to contribute to YTL. I know, we had our ups and downs, and after careful thought, I feel it is best for me to resign. However, I sincerely hope that we can part as friends. Thank you and hope that you have a successfully career with YTL. Yours truly, signed. 13
The first paragraphs of the said letter of resignation letter indicates that the Claimant is electing to exercise his rights as provided by para 10 of his letter of appointment as per CLB pages 1 to 6 whereby termination can be effected by either the Claimant or the Company. It indicates on a balance of probability that the Claimant on his own volition is exercising his rights as provided for in the said letter of appointment. The Claimant had also stated at the third paragraphs of CLB page 16 that he had given careful thought in putting in his letter of resignation. It would then on a balance of probability be that the Claimant he was not forced to resign but voluntarily chose to do so. The Claimant too at the same third para acknowledged that, we had ups and downs and after careful thought, I feel it is best for me to resign. The tone and choice of words, on a balance of probability indicates that the decision to resign was the Claimants own after careful thought and is what the Claimant feels best for him to do. The Claimant in fact, thanked COW1 in the second paragraph and considered it a privilege and honour to have worked with COW1. The Claimant though acknowledging that he had ups and downs with COW1 sincerely hope that they can part as friends. A perusal of CLB page 16 would on a balance of probability show that the Claimant had resigned on his own after careful though. The Claimant was exercising his right under item 10 of his terms of employment where he is given the right to give three 14
months notice to the Company if he wished to tender his resignation. In the circumstances and on a balance of probability, the Claimant then cannot be said to have been forced by anyone let alone COW1 to tender his resignation. There is no allegation of wrong doing, victimization or mistreatment by anyone including COW1 and it was a parting of friends. The Claimant s main argument that there had allegedly been mistreatment, victimisation and stress caused by COW1 as his main reason for his alleged constructive dismissal does not appear in his resignation letter, CLB page 16 which on a balance of probability was sent first on 9 November 2003. No arguments were ever put forward by the Claimant that had the resignation as per CLB page 16 was made and sent first by the Claimant thereby indicating that he had by himself voluntarily resigned, there would have then been no forced resignation for the Claimant to claim constructive dismissal. It flows then that the fact that the Claimant could have had a change in mind after tendering the said resignation letter to Mas would only be that of an afterthought or at most in the words of the Claimant as per para 22 of CLWS, an act on the spur of the moment. From the analysis of the facts of this case, the evidence of COW1 and the Claimant and the unchallenged evidence of COB2, the Court finds on a balance of probability that the Claimant had sent CLB page 16 first on 9 November 2003 to Mas to be delivered to COW1 the next day (10 November 2003) before sending the email as per CLB pages 13 and 14 to COW1 and COW2. 15
From the tone and wordings of CLB page 16, the Court finds on a balance of probability that the Claimant by putting in his resignation as per CLB page 16 had done so voluntarily. It is also to be noted that the first paragraph and in fact the first sentence of page 16 CLB indicates that the Claimant was giving a three months notice. It is also in line with the parting as friends to give three months notice. Had the situation been different and the condition so bad, would the Claimant on a balance of probability give a three months notice and continue to work with the Company? Would the Claimant be more than willing to continue to face the very stress, humiliation, victimization and mistreatment for the next three months? From the undisputed evidence of COB2 containing the Claimant s own handwriting and the date 9 November 2003, the Claimant s statement in CLB page 14 and CLB page 70 that, my letter of resignation will be submitted to you tomorrow, make no sense. It is also pertinent to note that both CLB page 14 and page 70 had the last sentence hanging in that, I sincerely hope that you have the heart to allow me to resign and.... The question the begets one is and what? A perusal of page 14 CLB would show that the email could not have been sent at 5.29 am as stated at CLB page 70 as it referred to the incident this evening. At page 14 CLB, the Claimant stated, if going to the toilet at 1710. 1710 is 5.10 pm could the Claimant at 5.29 am predict with certainty what will happen at 5.10 pm later in the day and thereafter? The Claimant admitted that he was in the office on 9 November 2002 from 9.30 am till after COW1 returned to office which would have 16
been later than 5.10 pm. The Claimant too would not have seen his doctor or be advised and got his MC as per CLB page 15 as he was working as claimed by him as per page 7 CLWS, fifth incident. It would on a balance of probability be more probable that the time and date of CLB page 70 (pages 14 CLB) to be 5.29 am on 10 November 2003. It is also not disputed by the Claimant and also COW1 that COW1 did not ask the Claimant to resign on that day (9 November 2003). COW1 could then not have forced the Claimant to resign on 9 November 2003 nor forced him to give CLB page 16 to Mas on the same date. It would then be probable on a balance of probability that the Claimant would have acted on his own to type out the resignation letter as per CLB page 16 before or on 9 November 2003, date it as 10 November 2003 and put it in an envelope with a note as per COB2 attached to it for Mas to hand it over to COW1 the next day (10 November 2003). The Claimant could not on a balance of probability have handed CLB page 16 on 10 November 2003 as he was on MC. Upon a close scrutiny of the totality of the evidence before this Court, the Court finds on a balance of probability that the Claimant had tendered his resignation letter as per CLB page 16 to Mas on 9 November 2003 and the Claimant had done so after careful thought. From the Claimant s own testimony and account of the incident on 9 November 2003, COW1 did not ask the Claimant nor forced the Claimant to resign on that date. 17
Flowing from the above, there is no evidence that anyone let alone COW1 had forced the Claimant to write and put in his resignation letter as per CLB page 16 on 9 November 2003. The Court also finds from the flow of events gathered from the evidence of the Claimant, COW1, COB2 and the Claimant s documents, CLB, especially CLB pages 14 and 70, the email was sent after the resignation letter on the spur of the moment after considering the doctor s advice. The Claimant was given medical leave on 10 November 2003 as per CLB page 15. It would have been after work on 9 November 2003 that the Claimant would have seen the doctor and obtained the medical certificate. If the email was sent as stated by the Claimant after considering the doctor s advice and the time stated on CLB page 70 is 5.29 am, then it could not on a balance of probability be 5.29 am 9 November 2003 but it all probabilities be 5.29 am 10 November 2003. It is also noted that the Claimant claimed that the email was sent by him from his home and not the office. It then can only be send after 5.10 pm 9 November 2003 and not earlier as the Claimant was not at home but in the office. The Claimant then after considering the doctor s advice had time to ponder and in the spur of the moment wrote on a balance of probability CLB pages 13 and 14 an unfinished letter containing allegations against COW1 on a balance of probability at 9.25 am 10 November 2003. In the circumstances, the Court finds on a balance of probability that the email was more of an afterthought. Based upon the above said findings alone, the Claimant s claimed would have failed and be dismissed as he had voluntarily resigned on 9 November 2003. It is also to be noted that if the said letter of resignation is voluntarily (CLB page 16) then there is no dismissal on 10 February 2004 the date stated in the ministerial reference. 18
Issue Of Constructive Dismissal: Be that as it may, even if the Court were to be wrong, the Court will consider the allegation in the said letter CLB pages 13 and 14 which was the basis of the allegation of constructive dismissal. The allegations as per page 14 are as follows:- Dear Sir, It is with deep regret that I wish to inform you of my intention to give you my notice of resignation with immediate effect. The incident this evening has hurt me a great deal and am unable to cope with the knowledge that you do not trust me. You have on 3 occasions accused me of not being present at the office when each time I was there. I have never left the office without you or Capt Sim s permission. If going to the toilet at 1710, the time when you called the office after being on duty since 0930 hrs, is considered as missing, then I have no choice but resign to the fact that I cannot continue working under this conditions. In Jul 03, you accused me of being a contagious disease that need to be removed just because I objected to some of your proposals in a meeting held 12 March 03. After repeatedly apologising to you and agreeing to tow the line, you told me that I would be promoted to captain on AS365N2 helicopter and my salary would be adjusted to RM8,000.00 as the agreed amount in my Letter of employment starting 1 Aug 03. You have revised this date 1 Sep 03, then 1 Oct 03. Till date, I am still co-pilot and the only increment I received was my annual increment. I am unable to handle the mental stress of disappointment over and over again. I cannot sleep at night and am totally stressed out. This has greatly affected my emotions and sad to say it has also affected my marriage. I tried to improve my relationship with my family by going for holiday in Pangkor Laut but it has not help much. Your sudden outburst time and again in front of my subordinates has not help either. I feel totally embarrassed and frustrated. My letter of resignation will be submitted to you tomorrow. Thank you. Capt Ravindar Singh I sincerely hope that you have the heart to allow me to resign and First Allegation CLB Page 14: The first of the allegation against COW1 was that COW1 had on three occasions accused the Claimant of not being present in the office. According to para 6 (h) of 19
the Statement of Case, two of the said occasion were in June 2002 and October 2002. The third was on the 9 November 2003. With regards to all the three incidents, the Claimant did not testify at any point of time in the three incidents that COW1 did ever mention to the Claimant that COW1 did not trust the Claimant or had asked the Claimant to resign. In fact the Claimant in no uncertain terms said that COW1 did not ask the Claimant to resign on the third occasion which was 9 November 2003. The Claimant in his Witness Statement, CLWS in answer to Question 17 regarding the fifth incident said that COW1 had in the presence of Mr. Jagjeet (CLW2) accused the Claimant of being missing from the office. COW1 in answer to Question 11 of his Witness Statement, COWS-1 did not deny the fact that he could have checked on the Claimant. Under cross examination at pages 8 and 9 of the Notes of Proceeding dated 21 July 2002, COW1 said the following:- Q : I refer to your answer to Question 11 COWS1. On several occasions when you were in flight, did you accuse Claimant of being missing from the office? A : Missing from office, no, I did not accuse him. I might have been looking for Claimant because Claimant helps us in the office as he keeps track of our aircraft in flight. There could have been occasions I could have asked him about the weather etc. Q : Did you make Claimant call you back on the office phone just to prove that he was in the office? 20
A : No, I might have wanted some information and that is why I have asked him to call me back. Q : What was the basis of your belief that Claimant was missing in the office? A : I never accuse Claimant of missing from the office, he could be nearby at the hangar. Q : Have you ever found Claimant missing from office? A : I can t recall. Q : Have you ever issued any warning letter to Claimant for being missing in the office? A : No, I don t think so. Q : I put it to you, you have no genuine reason to check on Claimant and you acted in the manner because you intended to cause the Claimant into resigning? A : No. The Claimant called CLWS-2, Mr. Jagjeet Singh to testify and CLWS-2 said the following in answer to Question 10 of his Witness Statement, CLWS-2 as follows:- Q10 : Do you recall of any other incident at work between the General Manager and Capt. Ravindar? A : Yes. I recall a couple of times the General Manager while in flight called the operations room and asked Where is Capt. Ravindar. Before, I could answer, he instructed me to tell Capt. Ravindar to call him back from the office phone. 21
A perusal of CLW2 s answer on a balance of probability shows that COW1 did not accuse in the presence of CLW2 that Claimant was missing from the office as alleged by the Claimant. This is because before CLW2 could answer, COW1 had asked CLW2 to ask the Claimant to call back. There was no accusation by COW1. There was no mention by COW1 that the Claimant was missing from the office. The Claimant also was not there so the Court thus finds on a balance of probability, the Claimant s claim that COW1 had accused him of missing from the office in the presence of CLW2, not proved. CLW2 was not aware of the third incident as he had left the Company in April 2003. No witnesses were called to support the first and third incidents. What remain were the bare assertions of the Claimant. The Court took into consideration that there was the Claimant s allegation on only three occasions where COW1 was alleged to have called the office and had asked the Claimant to call back. One in June 2002, one in October 2002 and the last being 9 November 2003. There was a three months gap between the first and the second call and almost more than a year between the second and the third allegation. Could the three incidents cumulatively be taken to be that COW1 was checking on the Claimant and be regarded as COW1 do not trust the Claimant. An analysis of the Claimant, CLW2 and COW1 s evidence coupled with the fact that no warning letters were issued to the Claimant would on a balance of probability show that there was no accusation by COW1 that the Claimant was missing from the office. The Court also finds COW1 s answer under cross that COW1 might have wanted some information from the Claimant as being the reason why COW1 had asked the Claimant to call COW1 back on a balance of probability, probable. It then cannot on 22
a balance of probability be a basis to conclude that COW1 was checking and had not to trust the Claimant. As for the third incident, the Claimant at page 14 CLB said, if going to the toilet at 1710, the time when you called the office after being on duty since 0930 hrs, is considered missing then I have no choice but resign to the fact that I cannot continue working under this condition. COW1 had denied as stated earlier that he ever accused the Claimant of missing in the office. The Claimant in fact at page 7 of CLWS-1 said that what COW1 said was timing is everything, when I need you, you were not there. The question then is, was what COW1 said not a fact or was it a baseless accusation? The Claimant admitted that when COW1 called him at 5.10 pm, the Claimant was not there as the Claimant had gone to the toilet. Was it not a question of timing? Or could it be said that COW1 was just picking on the Claimant? Did COW1 make an issue of the incident on 9 November 2003? It is undisputed that no action was taken by COW1 with regards to this incident? There was thus no evidence of victimization or mistreatment by COW1. COW2, Captain Sim, was called by the Company but never cross examined by the Claimant with regard to the incident on 9 November 2003. The evidence of the Claimant remains unsubstantiated. Mr. Rashidi Mustaffa too was not called by the Claimant to support his case. What remains is the Claimant s allegation vis a vis COW1 s explanation. 23
The Court after looking at the totality of evidence before it finds on a balance of probability that the Claimant s allegation of COW1 accusing him of being missing from office, not proven. Second Allegation As Per CLB Page 14: The second allegation made in CLB page 14 was the incident in July 2003 whereby COW1 accused the Claimant of being a contagious disease that need to be removed, because the Claimant objected to COW1 s proposal in a meeting held on 12 March 2003. With regards to the meeting on 12 March 2003, the Claimant at pages 8 and 9 of the Notes of Proceeding dated 7 December 2007 said:- Q : Refer to third para in Witness Statement page 6 as to 3 rd incident. What was it that the GM wanted you to tow the line? A : On 12 th March 2003, the GM called for a meeting. At that meeting, he made a statement where half of our annual leave would be at the discretion of the Company. He will decide when we can take half of that annual leave. I oppose his requirement of his and I requested that this requirement be given to me in writing. The GM agreed to give me this requirement in writing and almost immediately after that said he did not want to give me in writing. This incident happens in the presence of Captain Sim Kian Peng, Mr. Jagjeet Singh, Mr. Rashidi Mustaffa and the secretary of the GM. 24
In July 2003, he accused me of using insubordinate language and to comply to his requirement. That is the time that he said I was the contagious disease that need to be removed as it would corrupt the minds of the employee and asked me to tender my resignation. Court : Why did you oppose? A : The Company operates the helicopter 24 hours a day and we are required to work any time, there is a request for a flight. As my term of employment allowed me to take 14 days leave a year, I felt that it was not reasonable for GM to take away seven days of my leave. That is why I requested him to give his requirement in writing. Q : Would you agree that granting of leave will be subject to work requirements in any event? A : Yes. Q : How many pilots did Company have, including yourself? A : Three. Q : Two helicopters? A : Yes. Q : What was it that the GM wanted you to do to tow the line in July 2003? A : The GM wanted me to agree to all his proposals at future meetings and not to oppose him again. 25
The Claimant also produced CLB page 69, a notice of meeting. COW2, Captain Sim under cross examination at page 13 of the Notes of Proceeding dated 27 August 2008 said the following:- Q : I refer to the email at CLB page 69 dated 10 th March 2003. Do you remember attending this meeting on 12 th March 2003? A : I could not remember the date but if it was about leave application and Company s expectation, I did attend. Q : Do you agree that in that meeting the Claimant objected to COW1 s attempt to implement restriction on employee going on annual leave? A : Yes. Q : Do you agree that after the meeting, the Claimant made a phone call to HR Manager, Mr. Kuldeep Singh, in your presence to complain about COW1? A : I could not remember. Q : Do you remember the Claimant informing you after the phone call that the HR Manager asked the Claimant to resign if he cannot work with COW1? A : I couldn t remember. Q : I put it to you, Claimant did inform you that Claimant was asked to resign by HR Manager? A : As I mentioned earlier, I couldn t remember. COW1 at page 7 of the Notes of Proceeding dated 21 July 2008 said the following:- 26
Q : I put it to you, in the meeting, the Claimant objected to your proposal as stated in email as per pages 13 and 14 CLB1? A : No. Witness : Which part of email? A : In July..., Claimant objected to your proposals. Witness : What proposals, you said the Claimant had 14 days annual leave and the Company will take away 7 days and decide when Claimant can go on leave and Claimant can decide on 7 remaining days. If this is the proposal, it was not a proposal, it was actually a discussion and suggestion that Company employees who were pilot and technical staffs are encouraged to take their leave while the aircraft is in maintenance as that time there is not much flying and they can better utilise their leave. This was a suggestion which I recall Claimant was not very happy about and this was also not implemented. Q : I put it to you that you were unhappy with the Claimant for having objected to your proposals and that was why you told him that he was a contiguous disease that needed to be removed? A : In Management, there is bound to be disagreement and I have never taken this into mind. And I never contend those words that the Claimant was a contiguous disease that need to be removed. 27
Q : I put it to you that, after that you subjected the Claimant to mistreatment in order to force Claimant into resigning from Company? A : I did not do any of such things. In fact, prior to his resignation, he had asked to go to Pangkor Laut for holiday, sometime late October and I did arrange for him personally and if mistreatment is going to be an issue, why should I sent him for Instrument Rating. The Claimant also produced as part of his Bundles CLB pages 36 and 37, a letter from Mr. Kuldeep, the Personnel Manager. Where Mr. Kuldeep in the said letter stated the following:- We deny that you have brought to the attention of management that you were allegedly victimised by Capt. Revi Chandran nor have we received any complaint, formal or otherwise from you, prior to receipt of your resignation letter. In fact, this alleged issue of victimisation was only brought up to management by you after you receipt our letter dated 1.12.2003 requesting you to repay the amount owing to us pursuant to the Agreement dated 1.7.2002. We expressly deny that we have received repeated appeals and requests to meet and receive your complaint against Capt. Revi Chandran. You had ample opportunity to submit a formal complaint against Capt. Revi Chandran at any time but instead failed to do so. The issue of the reluctance of your superiors to act as alleged clearly does not arise as notwithstanding that we had not even received a formal complaint in the first place which you orally advised us that you would be submitting, we had nevertheless at our own volition investigated the matter. As you had chosen not to submit a formal complaint and to present your case obviously we had no alternative but to undertake our own investigations based on the available facts. We expressly reject your reason for not handing over the formal complaint as there is absolutely no basis for your allegation that we had acted in the manner alleged. 28
As it is clear that you had voluntarily resigned from the Company, the issue of you alleged forced resignation does not arise. We believe that we have addressed the issue raised by you which appear to be an afterthought only upon your receipt of our demand for repayment of the amount payable to us. An analysis of the totality of the above evidence shows that there was in fact a meeting held on 12 March 2003 and the agenda was to discuss about annual leave and the Company s expectation. From the evidence of the Claimant and CLW2, the Claimant did object to COW1 s proposal. According to COW1, the proposal was not implemented. The Claimant did not in his Statement of Case raise any issue with regards to the meeting on 12 March 2003. At page 6 of CLWS-1 first para of the third incident, the Claimant also stated that it was never brought up against him on or after the meeting but. was only brought up in July 2003 after the gap of about four months. Under cross examination at page 8 of the Notes of Proceeding dated 7 December 2007, the Claimant said he protested on the 13 March 2003 to Mr. Kuldeep Singh. When COW2 was cross examined, the Claimant s counsel had put to COW2 that the Claimant complained to Mr. Kuldeep after the meeting. COW2 said, he cannot recall. Mr. Kuldeep as per his letter CLB page 36 denied that there was such a complaint verbal or otherwise. Based upon the above evidence, the Court finds on a balance of probability that the Claimant did not complain of the incident on 12 March 2003 to Mr. Kuldeep. The fact remains that there was a meeting on 12 March 2003 where COW1 had made a suggestion to which the Claimant disagreed or was not happy about. The suggestion was not implemented and no action was taken against the Claimant let alone that he was victimised or mistreated for it. The Court finds 29
COW1 s explanation that there is bound to be disagreement in Management, probable. COW1 had stated that he had never taken the Claimant s objection into mind and the evidence from CLB page 36 indicated that there was no such complaint of the incident on 12 March 2003 or thereafter. The Claimant did not raise the issue of the meeting in his Statement of Case and did not say he objected nor complained of it at page 6 of CLWS. The Claimant then shifted his stand to making a complaint on 13 March 2003 but later changed it to after the meeting on 12 March 2003 when putting it to COW2. CLB page 36 was tendered by the Claimant and is part of his own case. Mr. Kuldeep specifically deny that there was any complaint. The Claimant s evidence on the complaint then remains unsubstantiated and at the very least contradictory. It affects his credibility and weight to be given to his evidence as against that of COW1 pertaining to the allegation that COW1 did accuse the Claimant in July of being a contagious disease that needs to be removed. The Court finds on a balance of probability COW1 s evidence on this point more credible and probable that he did not utter those words nor asked the Claimant to resign. The Court had the opportunity of seeing both the Claimant s and COW1 s demeanor when they gave evidence. COW1 was firm while the Claimant as stated above seen to be wavering and changing his stand. The Court thus on a balance of probability finds that the Claimant had not proven this allegation. 30
The Third Allegation As Per Page 14: This is pertaining to the promise of promoting the Claimant to Captain starting 1 August 2002 revised to 1 September 2003 then 1 October 2003 and till the effective date of his resignation ie, 10 February 2004, the Claimant was not promoted. It is pertinent to note that at page 9, eighth incident of CLWS-1, the Claimant said COW1 informed him that COW1 would promote the Claimant as of 1 August 2003 based on clause of the Claimant s letter of appointment. Clause 6 of the Claimant s letter of appointment as per CLB page 2 is as follows:- As Captain: After having obtained the necessary Company aircraft Type Ratings including Instrument Rating as applicable and meeting the prerequisites for Command, you could be appointed as Company Captain. In this instance, your gross salary will be readsjusted to RM8,000.00 (Ringgit Malaysia : Eight Thousand Only) per month. Based on Clause 6, COW1 s promise would then be subjected to the Claimant obtaining the necessary aircraft Type Rating including Instrument Rating as applicable and meeting the pre-requisites for command. What was the Rating that was applicable in this case? It then will depend on what aircraft the Claimant is flying. It is not disputed that the Claimant was flying the AS 365N2. It is also not disputed that the Claimant only sat for the relevant Instrument Rating test for As 356 N2 on 8 November 2003 and received his Instrument Rating (got it endorsed) on 10 November 2003. This was after the Claimant had sent to Mas on 9 November 2003 his resignation letter, CLB page 16. Basing on his own words as per page 9 CLWS- 1, COW1 only had informed the Claimant that he will be promoted based on Clause 31
6. This runs contrary to CLB page 14 that there was a promise to promote the Claimant to captain on 1 August 2003. There is a lot of difference between inform and promise. There is also a world of difference as to the condition and training which was based on Clause 6 and on 1 August 2003. The first merely stating the facts and being conditional while the other specific with a date fixed. The Claimant, from his own evidence, seems to be blowing hot and cold at the same. At the very least he is contradicting himself. The dates of the promise too keep changing dates does not imply that the pre condition of Clause 6 have yet to be complied with? The Claimant did not adduce any evidence before this Court that he had attained the necessary rating prior to 10 November 2003 to enable him to be promoted to captain as provided by Clause 6 of the Claimant s letter of appointment. If one were to take what the Claimant said at page 9 of CLWS-1, then COW1 had not on a balance of probability victimised or mistreated the Claimant by not promoting him as the Claimant had yet to attain the said rating. Then there is still the pre requisite for command. It is also pertinent to note what COW1 said in answers to Questions 13 to 16 COWS- 1 as follows:- Q13 : Was there a guarantee that the Claimant would be Captain? A : No, there was never any guarantee. As you can see, the letter states that the Claimant could be promoted to Captain. It would still be within the discretion of the Company. We must also bear in mind that the Company is not a commercial airline. It is a private company and decisions to appoint captains are very much at the discretion of the Company. 32
Q14 : Looking back again at page 2 of the Claimant s Bundle of Documents, it states here that the employees must obtain necessary instrument ratings. Did the Claimant receive the required ratings as per the letter of appointment so that he would have the pre-requisites to be considered for promotion to Captain? A : From my recollection, the Claimant only received the relevant instrument rating on 10 November 2003. In regard, he did not have the pre-requisites to be considered for appointment as Captain in any event until 10 November 2003. Q15 : What is this document on page 47 of the Claimant s Bundle of Documents? A : This a Certificate of Test for Instrument Rating endorsed by the Department of Civil Aviation (DCA). Q16 : Could you tell us the date this document was stamped? A : If you look at the document, the date is stated as 10 November 2003. COW1 at pages 9 and 10 of the Notes of Proceeding dated 21 July 2008 said as follows:- Q : Refer to answer to Question 13 COWS1, by your answer, is it the discretion of Company to promote Claimant as Captain? A : That is correct. Q : When you say discretion of Company, does it mean it is in your discretion? 33
A : It is totally not my discretion, I do recommend to the Board and the Board decides. Normally what happen is that all pilots undergo a series of training after which they will be evaluated for consideration to the Captain as this is a private Company, it is totally up to the owners to decide. Q : Refer to your answer for Questions 14 to 18, by your answers, are you suggesting that you did not promote Claimant because he did not have his Instrument Rating? A : That is not the only reason. Q : What was the other reason? A : The other considerations are of which is attitude and work ethics. There was one incident involving a VVIP flight to Pangkor Laut, the crew, me and the Claimant. The departure was at 8.00 am, at about 7.40 to 7.45, the Claimant was not yet at the aircraft and Claimant was staying in Pangkor Island and I called him and I believed he was still in bed. Nevertheless, I prepared the aircraft myself for the flight. By the time Claimant arrived, the VVIP was already there. So there are the things we look at the forward captaincy in our Company. We look at the overall picture. I do not wish to go further than this incident. COW2, Captain Sim in his examination in chief at page 10 of the Notes of Proceeding dated 27 August 2008 said the following:- 34