THE INDUSTRIAL COURT OF MALAYSIA CASE NO: 5/4-1546/05 BETWEEN ENCIK SAIFUL NAFIS BIN SHARIFF AND AIRASIA SDN BHD AWARD NO: 2239 OF 2007 Before : TUAN CHEW SOO HO - CHAIRMAN Venue : The Industrial Court of Malaysia, Kuala Lumpur Date of Reference : 14.9.2005 Dates of Mention : 6.1.2006, 6.3.2006, 5.5.2006, 10.7.2006, 14.9.2006, 15.12.2006, 28.6.2007 & 18.7.2007 Dates of Hearing : 17.1.2007, 20.3.2007, 28.3.2007 & 17.4.2007 Representations : Encik Mahadi b. Muhammad of Messrs Mahadi Redzuan & Co., Solicitors for the Claimant Reference : : Encik Ahmad Nazery b. Shamsudin and Miss YH Teh of Messrs YH Teh & Quek, Solicitors for the Respondent This is a reference by the Honourable the Minister of Human Resources Malaysia under Section 20 (3) of the Industrial Relations Act 1967 arising out of the dismissal of Encik Saiful Nafis bin Shariff, (hereinafter known as the Claimant ) by AirAsia Sdn. Bhd., (hereinafter known as the Respondent ). 1
AWARD Facts of the Case Claimant commenced his employment with the Respondent on 10 December 1999 as a Cashier with a salary of RM966.00 per month. Effective from 13 December 2000, Claimant was confirmed as Senior Account Clerk with an increase in his salary to the sum of RM1,034.00. At the time of his dismissal, Claimant alleged his average income inclusive of allowances was RM1,800.00 per month. Vide its letter to show cause dated 6 February 2003 issued to the Claimant, the Respondent alleged that the Claimant had failed to attend work without approval from his supervisor for 7 dates stated therein for which Claimant had replied vide his letter dated 17 February 2003. The Respondent quite apparently not being satisfied with the Claimant s explanation, issued him with a notice of domestic inquiry dated 25 February 2003. In this notice of domestic inquiry, the allegation of charge is that Claimant had, without approval from his supervisor, failed to attend work on 10 dates as listed therein. The domestic inquiry was scheduled on 12 March 2003 at 10.00 a.m. at the AirAsia Corporate Office at Level 4 of the Main Terminal Building of KLIA but the Claimant failed to attend the said inquiry. The inquiry panel then unanimously found the Claimant guilty of the said charge. 2
Claimant alleged that he did not attend the domestic inquiry because the Respondent had changed the venue of the inquiry where he was notified via SMS during the night of 11 March 2003. Claimant explained that on the dates in the allegation of charge except 15 and 20 January 2003, he was on duty in the Markas Logistik Tentera Darat Malaysia at Jalan Padang Tembak, Kuala Lumpur; on 15 January 2003, he was on emergency leave as his father-in-law was seriously ill in Kuala Kubu Bharu and for 20 January 2003, there was a confusion as to the replacement holiday for Thaipusam but averred that he was also on emergency leave. Claimant denied that he had committed any misconduct and contended that his dismissal was, inter alia without just cause or excuse. He therefore prayed for reinstatement with full backwages. The Issue The sole issue before this Court is whether the Claimant was dismissed with or without just cause or excuse. The Law In OP Malhotra s The Law of Industrial Disputes Volume II Sixth Edn.2004 at page 1135, on the issue of absence without leave, the learned author had said of the following: 3
An employee is under an obligation not to absent himself from work without good cause during the time at which he is required to be at work by the terms of his contract of service. Absence without leave is misconduct in industrial employment warranting disciplinary punishment. Even if the workman is not absent from the employer s business premises, his absence from the specific place of duty where he is required to be, without permission, would also constitute an act of misconduct. Therefore, the absence of an employee from duty, if it amounts to misconduct inconsistent with faithful discharge of his duties, would constitute good cause for his dismissal. For dismissal cases, the burden is on the employer to prove the misconduct of the employee for which he was dismissed on a standard of probability; see Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 Evaluation & Findings A D.I. was scheduled and conducted on the 12 March 2003 in the absence of the Claimant who was notified of the change of venue at the eleven hour of the date of D.I.; he was notified via SMS on the night of 11 March 2003. The Respondent had contended that the new venue at AirAsia Corporate Office at Lot N1 Level 4 4
Main Terminal Building of the KL International Airport was still within the airport premises which the Claimant was aware of but he chose not to attend the said D.I. Whatever may be the reason or contention of the parties, it has to be borne in mind that one of the main functions and purposes of conducting a D.I. is to enable an employee the opportunity to be heard before a panel of impartial members and to challenge his accuser of the misconduct alleged against him in consonant with the principles of natural justice. The fact of the instant case is that the panel had proceeded with the findings of the guilt of the Claimant without rendering him the opportunity to be heard; their respective decision can be seen in the individual panel member s report COB p. 14-16 and the report of the chairman of the panel of inquiry in COB p. 17-18. No inquiry notes were tendered to show that the D.I. panel had heard the evidence produced by the Respondent though COW1 Miss Ling Siew Lee stated in her Witness Statement that in the D.I. she was asked as to the complaint of the Claimant s absence from work without permission and there was no record to show that those evidence, if any, had been recorded to indicate that the Respondent had proved its case before D.I. panel before they made their respective decision whether individually or collectively. This Court cannot thus hold that the D.I. panel had arrived at a just decision basing on evidence without the note or record to show that evidence was produced before them. On account of the fact that the Claimant was not heard in the D.I. and the fact that no evidence had been shown to have been produced before the panel members of the D.I. before they 5
made their decisions of finding the Claimant guilty of the charge, this Court will have to hold that the D.I. held against the Claimant on 12 March 2003 is not valid; see Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77. Nevertheless, in Ngeow Voon Yean v. Sungei Wang Plaza Sdn Bhd & Anor [2004] 1 CLJ 8, the Court of Appeal held, inter alia, that:- [3] A defective domestic inquiry, or even the absence of one, is not fatal to a dismissal which is otherwise not bad. Hence, the admittedly unsatisfactory domestic inquiry in the instant case did not play a pivotal role in determining the legality of the claimant s dismissal by the company. Claimant was dismissed from his employment with the Respondent on account of his absence from work without permission from his supervisor as per the charge in the notice of domestic inquiry (D.I.)/ COB p. 11 and in the charge sheet during the D.I. as in COB p. 13. The charge leveled against him reads as follows: Anda didapati tidak hadir bekerja tanpa kebenaran dari penyelia anda terlebih dahulu pada tarikh-tarikh seperti berikut: (1) 2 Januari 2003 (2) 3 Januari 2003 6
(3) 7 Januari 2003 (4) 15 Januari 2003 (5) 17 Januari 2003 (6) 20 Januari 2003 (7) 23 Januari 2003 (8) 11 Februari 2003 (9) 13 Februari 2003 (10) 14 Februari 2003 Since this is the reason that the Respondent chooses for the action taken, the duty of this Court will be to enquire whether that excuse or reason has or has not been made out. If this Court 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; see Goon Kwee Phoy v. J & P Coats (M) Sdn Bhd [1981] 2 MLJ 129 FC. The ingredient of the charge above is that without the prior approval from his supervisor or superior, Claimant was found to be absent from work on those dates listed above. The main contention of the parties herein is that the Respondent alleged that the Claimant had not sought prior approval from his supervisor for his absence from work whereas the Claimant asserted that he was on duty attending to invoices in relation to collection of arrears owed by the 7
Armed Forces Malaysia (ATM) at the Armed Forces Logistic Department at Jalan Padang Tembak, Kuala Lumpur on all those dates except 15 and 20 January 2003 and that there was no requirement that he should obtain prior approval from his supervisor before going for duty there as he was instructed to do so by the Chief Financial Officer, Raja Mohd Azmi Raja Razali and the Director of Corporate Communication, Abdul Naseer Abu Kassim to focus his duty on ATM to resolve the payments problems. Claimant also stated that he had nevertheless informed other colleagues of his attendance to work at ATM Logistics Department. According to COW1, Miss Ling Siew Lee, the Respondent s Senior Account Executive at the material time, Claimant s duties, among others, were to attend to matters relating to ATM ie to prepare billing and collection for flight services used by the staff of ATM, to compile documents relating to payments, dates of the payments made, total collection and other related matters. On attendance, COW1 emphasized that Claimant was required to inform her being the Claimant s supervisor or superior and to obtain her permission before Claimant went out to any place to do the collection as there was no necessity for a staff to go out of office at all time because some of these duties could be done via telephone, e- mail, fax or correspondence as in the case of Claimant s successor after Claimant s dismissal. Claimant s movements had also to be reported to her especially when Claimant was attending work outside office; this was in the 8
event of any accident and other incidents. COW1 asserted that Claimant had failed to inform her of his whereabout and failed to obtain her permission to carry out work outside office and that would be construed as missing from the office during working hours or did not attend to work without approval from her. In addition, the failure of the Claimant to inform COW1 or the Account Division Manager would be an act of insubordination. COW1 herself had met with the Claimant several times after Claimant had been often missing from the office and advised him that he had to inform her in advance on each occasion that he could not come to office or wherever he wanted to go. Warnings and reminders were also given to Claimant who was further informed that his act was an offence against discipline. In spite of that, Claimant did not change his attitude. Hence, the matter was reported to the Account Division Manager and the Chief Financial Officer, Raja Mohd Azmi Raja Razali (COW2). On 9 September 2002, COW2 had issued the Claimant with a memo (COB p.5) reminding the Claimant that he was to report to his superior in the event he was absent from work by 9.30 a.m. Despite this memo, Claimant continued to behave the same without informing COW1 where he went or where he was and was missing from office during working hours. Further advice was given on several occasions thereafter but the Claimant did not change. Claimant was found to be absent without prior permission for the respective dates in January 2003 as listed in the charge. Claimant at one point in time seemed to suggest that tacit consent from COW2 and another was given to him to be at ATM to carry out his duties and to focus 9
on the collection from ATM and that he reported directly to them. However, COW2 said very clearly that Claimant s line of reporting was to the Assistant Manager, Finance whom COW1 was subsequently and Miss Sharon Yong, the Manager, Finance Division who was the Head of Department; Claimant was told that he had to comply with all instructions and report directly to his immediate superior, the Assistant Manager who would report to the Manager, Finance and the Manager, Finance would in turn report to COW2. Hence, Claimant was not required to report directly to COW2 though COW2 had the overall supervisory power over all staff in the Finance Division. COW2 asserted that at the material time, Claimant was required to report to COW1. COW2 had also personally informed the Claimant to whom he had to report to and who would supervise Claimant s work and duties that had been entrusted to him. By COW2 s evidence in this respect, this Court finds that the contention or the impression cast by the Claimant that he probably reported directly to COW2 without the necessity to report to COW1 as his immediate superior and that he could go to ATM as and when he liked to perform his duties there without having to obtain prior approval from COW1 or the his Manager, is being refuted. COW2 stated that the Respondent had issued Claimant with a letter to show cause vide COB p.7 and Claimant vide his letter of reply dated 17 February 2003 (COB p.9-10) admitted that he did not convey his absence from office to COW1 as follows: 10
Seingat saya setiap kali hilang pada waktu pejabat, saya akan pasti melaporkan pergerakan saya kepada teman pejabat yang bagi saya boleh menyampaikan kepada si penyelia tadi. Yang menjadikan perkara ini rumit adalah kerana saya tidak menyampaikan ketidakhadiran saya melaluinya sahaja. COW2 further emphasized that it was the company policy that all rules of the Respondent had to be complied with by all employees. To enforce discipline, wherever Claimant would want to go, he had to obtain prior permission from his superior or from the Manager Finance Division; this was also considered a direction from a superior officer to officers or staff junior to him or her which had to be complied with by the junior officers or staff. He confirmed the dates of the Claimant s absence from work without prior approval as stated in the Charge Sheet COB p.13. Although COW2 endorsed that he had given instruction to the Claimant to attend to the arrears of unsettled bills by ATM, his instruction was still subject to the Claimant having to obtain permission from his superior. In other words, although Claimant might have to go to ATM, he was still required to inform his superior and at the same time to obtain her approval to carry out his duties out of office. On the justification for the Claimant s dismissal, COW2 confirmed that he being the Chief Financial Officer and Chief Executive Officer of the Respondent had the jurisdiction to dismiss any employee but the Director of Corporate Communication had not had that jurisdiction; he had personally given 11
the Claimant warning for several times to change his attitude and to comply with company policy to report where he went and where he was at the working time to his superior. Claimant had, however, failed to change and repeated his mistake or misconduct despite the fact that he had been also given reminders and warning by COW1 but such misconduct was recurring. Hence, COW2 had no choice but was compelled to dismiss the Claimant. COW2 denied that he had ever promised the Claimant any commission or bonus for the successful collection of the outstanding bills from ATM. Claimant explained that on 2, 3, 7, 17 and 23 January 2003 and 11, 13 and 14 February 2003, he was on duty at ATM Logistics Camp in Jalan Padang Tembak, Kuala Lumpur to attend to invoices relating to outstanding payments from ATM which were due to the Respondent for aircraft rental. For that purposes, ATM had provided him with a room to carry out his duties there. He averred that on the above dates, he had informed the other staff of his duties at ATM because he was assigned by COW2 and the Director of Corporate Communication to focus his duties on ATM to settle the payment problems and complaints raised by ATM. Claimant claimed that he had on several occasions tried to contact Miss Sharon Yong (Manager Finance) at about 8.30 a.m. to inform her of his duties at ATM but his calls were often not answered by her. When these occurred, Claimant would inform other staff of his attendance at ATM. Claimant also produced letter CLB p.61-62 from Mejar Razali bin Nasir to confirm that he was working at ATM 12
on 2, 3, 7,17 and 23 January 2003 and a letter CLB p.59 from Kapten Azman bin Che Mohd Salleh dated 13 February 2003 to the effect that he was often at 673 Kem Transit, Kor Perkhidmatan Di Raja, Jalan Ampang, Kuala Lumpur to check on the name lists of the ATM passengers who had taken the flights. A further letter from Mejar Hamim Zairin bin Hj Hamzah dated 13 February 2003 vide CLB p.60 also certified Claimant s presence at the ATM Logistics Camp in relation to his work and for the month of January 2003, his attendance was more often because of several financial matters and payments for the 2002 year end account for the Respondent. Claimant said that he had been attending to ATM outstanding bills collection matters since 2002 and produced CLB p.5-15, 18, 21-29, 36-48 and 50 to establish his assignment and the duties he had performed there or relating thereto, inter alia. He further produced his applications for visiting pass and the visit passes issued to him by the ATM Logistics Camp vide CLB p.16, 17, 19, 20, 30-32, 34-35, 51 and 58. For the date 15 January 2003, one of the dates listed in the charge, Claimant explained that he had to take emergency leave because his father-in-law was seriously ill in Kuala Kubu Bharu, Selangor. He said he had informed the other staff in the Respondent and or his superior Miss Sharon Yong. As regards the date 20 January 2003 in the charge, Claimant said he took for granted that it was a public holiday. Thaipusam fell on 18 January 2003 on the third Saturday of the month. Claimant said he anticipated the Respondent to declare 20 January 2003 (Monday) as replacement holiday but it was at the eleven hour that the Respondent issued a memo that 13
Thaipusam was a working day and not a public holiday. There was a misunderstanding between himself and the Respondent over this public holiday. Accordingly to Claimant, the Respondent s policy or procedure for application of leave was that he needed to submit his application 14 days before the day of the leave applied for. However, he would not obtain a reply until the date of his leave. Thus, Claimant took for granted that his leave had been approved by the Respondent. From the evidence above-mentioned, it is clear evidence that there is no dispute as to the dates that Claimant was alleged to be absent from work or that he was not in the office during working hours as stated in the charge. What the Claimant had contended was that he had informed other staff in the Finance Division of his duties at the ATM Logistics Camp. He had apparently abandoned his contention that it was COW2 and the Director of Corporate Communication who had purportedly given him the tacit approval to be at ATM without having to seek prior permission from his immediate superior. In the light of COW2 s evidence, undoubtedly, Claimant had to shift his version. He said he had called Miss Sharon Yong, Manager Finance Division to inform the same but she apparently did not answer her hand phone. Miss Sharon was not called as a witness. From the Claimants evidence recapitulated, it was said that Claimant had called his Manager Finance, Miss Sharon Yong on those dates in the charge in January 2003 as stated by him at about 8.30 a.m. but Miss Sharon Yong did 14
not answer the calls. Throughout his evidence in chief, he had never mentioned that he had ever called COW1 to inform her of his attendance to work at ATM nor sought her permission. However, from the Claimant s cross-examination on COW1, it was suggested to her that Claimant had communicated with her but not Miss Sharon Yong at 8.30 a.m. in December 2002 to January 2003 to inform her that he was at the ATM Camp but COW1 did not answer her hand phone. To this Court, Claimant s version of the event had itself raised a doubt whether he had attempted to inform, in particular, Miss Sharon Yong at 8.30 a.m. in January or as his cross-examination on COW1 that he had attempted to inform COW1 at 8.30 a.m. in January 2003 since December 2002 was not relevant to the charge in his case or that he had attempted to inform both or none of them. His version of having called to inform his superiors was put in suspect. Further, Claimant had also claimed that he had informed other colleagues in the Finance Division of his out of office duties or when he was working at ATM Camp. However, this Court finds that such facts of his defence was never put to the Respondent s witnesses in challenge of their evidence that Claimant had indeed informed the other colleagues in the Finance Division to, in turn inform either the Manager or COW1 of his whereabout. In Sivalingam Periasamy a/l Periasamy & Anor [1995] 3 MLJ 395, the Court of Appeal referred with approval the passage from the case of Browne v. Dunn [1893] 6 R 67 at page 400 of the following: 15
It is essential that a party s case be expressly put to his opponent s material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument. It is quite wrong to think that this rule is confined to the trial of criminal causes. It applied with equal force in the trials of civil causes as well. It is pertinent to the Claimant s defence of the charge if he had informed his colleagues to notify COW1 or the Manager of his duties in the ATM Camp and if they had done so on his behalf without COW1 and/or the Manager Finance raising any objection, then it would be a complete defence for the Claimant that he had received tacit consent from either COW1 and/or his Manager through the colleagues that he had informed. However, this does not seem to be so. Claimant had in fact not named any of his colleagues in the Finance Division whom he had so informed nor call anyone of them to be his witness to verify that he had so informed them and or that they had notified COW1 or the Manager of what the Claimant had indeed informed them. This Court finds that Claimant had merely paid lip service that he had informed his colleagues in his department without even naming which of the colleagues that he had so called. For these reasons, on the balance of probability, this Court finds it difficult to accept this aspect of the Claimant s evidence. The crux of the charge is that he 16
had failed to obtain prior approval or permission from his superior. Claimant had not shown that he had prior approval or permission. He seemed to suggest that permission was granted by COW2 when Claimant was instructed to focus on collection of payment from ATM. But, with the evidence of COW2 that that did not constitute prior approval or permission to waive Claimant s need to obtain his superior s approval, Claimant s contention would have no basis. Claimant had tendered and referred the visit passes issued to him upon his applications but upon a scrutiny of these visit passes and his applications, it is sad to say that none of them had reference to the relevant dates as spelt out in the charge and thus they are irrelevant in so far as the charge is concerned. Consequently, this Court holds that the Respondent had proved on a balance of probability that the Claimant had failed to obtain his superior s prior approval or permission before he left for duties outside his office even if this Court were to accept that he might be at the ATM Camp vide CLB p.59-62 and therefore Claimant was deemed to have been absent from work without prior approval on the dates except 15 and 20 January 2003 as stated in the charge when he was not granted the approval or permission to be out of the office. In respect of Claimant s absence from work on 15 January 2003, Claimant explained that he was on emergency leave and that he had informed his colleague of the same presumably anticipating the latter to inform the superior or Manager. It has to be borne in mind that the granting or refusal of leave is 17
the absolute discretion of the employer depending on the exigency of service of the particular employee at a particular time. An employee cannot claim that his leave is automatically approved once he has tendered his leave application. Hence, the onus is on the employee to ascertain the approval of his leave application before he goes on leave on the dates he has applied. Claimant in our instant case wanted an emergency leave on ground that his father-in-law was seriously ill. It would only be appropriate and sensible for him to speak to his superior officer or Manager or whosoever who had the authority to grant him leave or to approve his leave for that particular day of emergency bearing in mind that he had to have the approval before he could go on leave. This Court could not see any reason why Claimant failed to get the approval of COW1 or his Manager Finance to approve his emergency leave on this 15 January 2003 before he went on leave. He took the risk by merely informing his colleague without any confirmation later of the approval before he went on leave. The act of the Claimant in not seeking prior approval before he went on emergency leave only goes to show his indifference towards the rules and regulations of the Respondent that he had to comply with. Article 17 and in particular 17.3 of the Respondent s terms and conditions of service (COB p.33-34) had prescribed the mode of application for leave. Emergency leave may differ slightly. Be that as it may, Claimant had not informed this Court which colleague of his that he had informed of this intended emergency leave nor did he call this colleague as a witness. He had also not tendered or applied that the Respondent tendered his 18
leave application form for that day if he had in actual fact applied for such a leave. It is an accepted practice that if an employee could not turn up for work for emergency reason, his leave application could be submitted on the day that he came back to work after the said leave. Nevertheless, the oral approval from the superior officer must be obtained in advance before Claimant could claim that he was on emergency leave. There was no approval granted for this date. Thus, this Court finds that Claimant s claim that he was purportedly on approved emergency leave on 15 January 2003 is a bare assertion in the absence of any proof to that effect and Claimant, in the absence of any evidence that his emergency leave application had been approved by any of his superior officers who were authorized by the Respondent to approve his leave, is absent without leave. Claimant alleged that his father-in-law was seriously ill which necessitated him to apply for an emergency leave. Nevertheless, he did not produce any evidence to indicate that his reason was not mere allegation but a fact which substantiated his leave application. E-mail of COW1 in COB p.6 was a complaint or a notification to the Respondent s Legal Adviser of the days that the Claimant was absent citing 15 and 20 January 2003 to be among the dates that Claimant did not turn up for work. This does not show the approval of these two dates to be the emergency leave of the Claimant. Had there been an approval, 15 and 23 January 2003 would not have been included as the days that Claimant did not turn up for work. On a balance of probability, this Court holds that Claimant was absent without his leave being approved by the Respondent. 19
As regards the Claimant s absence on 20 January 2003, it was an admitted that Claimant did not report for work on that day as according to him, there was a confusion as to whether 20 January 2003 was a replacement holiday for Thaipusam which fell on 18 January 2003 which was a non-working Saturday. Again, as stated earlier and reiterated herein, the onus is on the Claimant as an employee to ascertain in advance whether a day is or is not a holiday before he enjoys the day off even though the Respondent may declare or not declare that day to be a holiday or a replacement holiday. No employee can have the right to assume any day to be a holiday or replacement holiday. Claimant for that matter could have easily call the office or his Human Resource Department or its officers to seek confirmation whether 20 January 2003 was a replacement holiday. There is, therefore no question of any confusion or misunderstanding as raised by the Claimant. Anyway, Claimant claimed that he was on emergency leave on that day and that he had informed his colleague about it. Again, he did not call directly to COW1 or the Manager of his department or even COW2 to seek prior approval orally before he took the day off. Claimant merely informed his colleague and assumed his application would automatically or definitely be approved when there is no such term and condition in his contract of service to express so. Such indifferent attitude is unbecoming and a clear violation of discipline. Claimant had submitted that vide e-mail from COW1 to the Respondent s Legal Adviser Charles Chow Chon Jin (COB p.6), the Respondent was aware that the Claimant was on emergency leave on 15 and 20 January 20
2003 and it was unfair to take disciplinary action against him for his absence. However, this Court wishes to emphasize again that approval or refusal of leave application is the prerogative of the employer and it is not as a matter of right of the Claimant that any of his leave application must be approved even though he is entitled to have annual leave. There is no approval granted in the instant case; Claimant merely assumed that his application for emergency leave would have been approved without he himself ascertaining the approval before he went on emergency leave. He took the risk and must face the consequences that he would be construed as being absent if no approval was granted as in this case. On the balance of probability, this Court holds that the Claimant was absent without leave or without prior approval from his superior on 20 January 2003. On the charge as a whole, this Court finds, on a balance of probability, that the Respondent had proved the charge against the Claimant that he was absent without prior approval or permission from his superior on the dates as listed in the charge above quoted which is a misconduct On the ensuing issue whether the Claimant s dismissal was with or without just cause or excuse, evidence of COW1 and COW2 showed that they had respectively advised, reminded or warned the Claimant of his lackadaisical attitude pertaining to attendance and the need to inform his superior before he left for work outside the office. COW2 had even issued a memo to that effect as in COB p.5. Claimant was adamant and turned a deaf ear to all the advice, 21
reminders or warnings and continued to do as he liked on his attendance repeating his absence from office without prior permission from his immediate superior. It is an open challenge to the discipline and tolerance of the Respondent. COW2 in deciding to dismiss the Claimant had asserted that the Respondent had no choice but to dismiss the Claimant because of his repeated misconduct in spite of the numerous advice, reminders and or warnings having been given to him. This Court is of the view that any reasonable employer as the Respondent would, in the circumstances of this case, have reacted as the Respondent to dismiss the Claimant; see Taylor v. Parsons Peebles Ltd [1981] IRLR 119. This Court finds no reason to disagree with the Respondent with its action against the Claimant who did not heed any form of advice, reminders and or warnings and hence, it could only be reasonably inferred that he was not interested in his employment with the Respondent. In equity, good conscience and the substantial merits of this case, this Court holds that the Claimant s dismissal is therefore with just cause or excuse. Consequently, Claimant s claim is hereby dismissed. HANDED DOWN AND DATED THIS 31 OF OCTOBER 2007 (CHEW SOO HO) CHAIRMAN INDUSTRIAL COURT MALAYSIA KUALA LUMPUR 22