AWARD NO. : 1089 OF 2016

INDUSTRIAL COURT OF MALAYSIA CASE NO. : 3/4-106/15 BETWEEN INTAN SOFIA BINTI ZAINUDDIN AND TOI TOI SERVICES SDN. BHD. AWARD NO. : 1089 OF 2016 Before Venue : PUAN ANNA NG FUI CHOO - Chairman (Sitting Alone) : Industrial Court Malaysia, Kuala Lumpur Date of Reference : 9.1.2015 Dates of Mention : 26.2.215, 9.4.2015, 8.5.2015, 9.6.2015, 9.7.2015, 4.8.2015, 21.9.2015, 5.1.2016 Dates of Hearing : 19.1.2016, 27.4.2016, 4.5.2016 Written Submission of Company : 13.6.2016 Written Submission of Claimant : 15.6.2016 Submission in Reply by Company : 28.6.2016 Submission in Reply by Claimant : 29.6.2016 1

Representation : Mr. T. Ananthasivam and Ms P A Sharon From Messrs Palani Ammal & Co. Counsels for the Claimant Mr. Tan Chun Ming and Mr. Bruce Toh Chen Hsiang From Messrs Joseph Ting & Co. Counsels for the Company Reference This is a reference made under section 20 (3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of Ms Intan Sofia binti Zainuddin (hereinafter referred to as the Claimant ) by Toi Toi Services Sdn. Bhd. (hereinafter referred to as the Company ) on 15 January 2014. AWARD [1] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 15 January 2014. Facts [2] The Claimant commenced employment with the Company on 19 March 2012 and she was holding the post of Account and Admin Executive at the time of her dismissal. Her last drawn monthly salary was RM2,600.00. She was also paid RM200.00 a month as transport allowance. However, the allowance is not stipulated in the contract of employment. 2

[3] The Claimant was issued with a letter dated 15 January 2014 by the Company ( first letter ) exhibited at page 7 of the Common Bundle of Documents (CB) which reads: Dear Ms Intan Sofia RE: DISCIPLINARY ACTION We are very disappointed with your disciplinary attitude lately. We do found out on 08.01.2014, between 10am to 12pm you are sleeping at your table during working hours. We have a right to take an action to you due to your disciplinary attitude. Therefore, I want you to reply to me why action should not be taken.. [4] Vide another letter also dated 15 January 2014 ( second letter ) (at page 6 of CB) the Company informed the Claimant of the following: RE: DISMISSAL OF SERVICE ACCOUNT AND ADMIN EXECUTIVE With referring to our meeting today 15.01.14, at about 10.30 am, we sincerely regret to inform you that this letter confirms that your employment with our company is being terminated in 24 hours notice. We are really disappointed on the disciplinary issue and we can not tolerate on such attitude in our company. Under the circumstances, your salary will be paid until 15 th February 2014 with deduction for EPF/SOCSO plus 10 days additional salary on your termination.. [5] The dismissal letter was signed by Mr. Michael Ranck, the Managing Director (MD). It is not disputed that at the time of the Claimant's dismissal on 15 January 2014, the Company had also paid 3

the Claimant's salary up to 15 February 2014 with 10 days additional salary (page 43 of CB). The Function of the Industrial Court [6] The function of the Industrial Court under section 20 of the Act is as succinctly expressed in the Federal Court case of Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449, which is as follows: As pointed out by the Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s. 20 is twofold, first, to determine whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct constitutes just cause or excuse for the dismissal.. [7] In the case of Goon Kwee Phoy v. J & P (M) Bhd [1981] 2 MLJ 129, his Lordship Raja Azlan Shah CJ Malaya (as he then was) at page 136 impressed upon the court its duty and said: Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether the excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it 4

and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.. The Company's Case [8] The Company called two witnesses to testify before this court and they were Ms Rose Saharah Tajudin (COW1), an Account and Admin Executive and Ms Anis Shuhada (COW2) a salesperson. COW1 had held the same post as the Claimant but had joined the Company later than the Claimant. COW1 claimed that she was tasked to supervise the administration and accounts division in the Company. COW1 alleged in her testimony that the Claimant's work performance was not satisfactory and she was coming in late for work from August 2013 until her dismissal. COW1 also accused the Claimant of frequently sleeping during office hours. [9] It was the Company's case that on 8 January 2014, without taking leave and without informing her superior, the Claimant had slept in the office during office hours when her colleague (COW2) was trying to look for her for business related matters. Apparently, COW2 who was a staff from the Sales Department of the Company had called the Claimant at about 10.00am via the office telephone to inquire on the status of a customer payment. However, it was said that the Claimant had not answered the calls. Subsequently, COW2 said she called COW1 who was sitting next (or opposite) to the Claimant to ask for the Claimant's whereabouts. [10] Thereafter, COW1 said she had checked on the Claimant and noticed that the Claimant was sleeping on her table. COW1 claimed to 5

have advised the Claimant to take medical leave if she was not feeling well but the Claimant had not done so. The Claimant was also alleged to have failed to attend to her work. COW1 denied that the Claimant had informed her of her state of health before the incident on 8 January 2014 or that COW1 had given consent/verbal permission for the Claimant to rest. COW1 also testified that she was not aware that the Claimant was on medication on that day. Nevertheless, the Company further contended that no one including COW1 had the authority to allow the Claimant to rest or sleep during office hours without the permission of the director. [11] COW1 further testified that after the 8 January 2014 incident, she had instructed the Claimant to furnish a medical certificate or other proof for her alleged misconduct of sleeping. It was alleged that seven (7) days after the incident, the Claimant had failed, refused and/or disobeyed to give a ground or reason for sleeping. Hence, the Company issued a letter to the Claimant on 15 January 2014. She claimed that this first letter was given to the Claimant and the Claimant was given ample opportunity to explain herself. Amongst others, it was said that the Claimant had admitted to one Ms Davena Tan and COW1 that she had slept during office hours between 10.00am until 12.00pm without the permission and approval of the Company. COW1 further alleged that the Claimant had attempted to put the blame on her pregnancy to justify her sleeping in the Company during office hours but she had failed to provide any medical proof for her condition on that day. The Claimant was allegedly told that there were three (3) other female employees who were pregnant during that period of time and the Claimant's behaviour and attitude had caused dissatisfaction amongst those employees (page 41 of CB). 6

[12] COW1 claimed that the Claimant's conduct of sleeping while at work, together with her insubordination, were in breach of the Company's Employee Handbook for misconduct. Therefore, that entailed for immediate disciplinary action including dismissal. It was the Company's case that after considering the Claimant's feedback and admission on 15 January 2014, the Company decided to terminate the Claimant's service forthwith and out of goodwill, had paid her an additional one month salary. [13] COW2 testified in her witness statement that she had called the Claimant on the office telephone but there was no response. Subsequently, she called COW1 to ask if the Claimant was at her place. After her lunch break which was after 1.00 pm, COW2 said she continued to call the Claimant but there was no response so she decided to go upstairs where the Claimant's office was. COW2 said she had found the Claimant sleeping at her desk. Under cross-examination, COW2 said her lunch break was from 1.00 pm to 2.00 pm and it was after 2.00 pm that she had gone upstairs to look for the Claimant. The Claimant's Case [14] The Claimant gave testimony for her own case and called the two doctors who had given her medical treatment, as her witnesses. The Claimant testified that on 8 January 2014, the Company had alleged that she was sleeping at the office during working hours. The first letter contained only one allegation which stated that on 8 January 2014, she was sleeping at her table from 10.00 am to 12.00 pm. The Claimant said there was never an issue about punctuality in that letter. Further, 7

the Claimant denied ever having a punctuality issue from August 2013 to January 2014. [15] After receiving the first letter dated 15 January 2014, the Claimant said she had verbally responded to the Company's first letter. She said she had given a detailed and comprehensive explanation of her condition to Ms Davena Tan who was the Sales and Marketing Manager and to COW1. The Claimant said she had told them that on 8 November 2013, she had a very bad headache and sinusitis so she had sought treatment for the same and she was given one (1) day of medical leave. Then, on 11 November 2013, the Claimant was confirmed pregnant with her first child and she had told her superior Ms Davena Tan about it. [16] Subsequently on 18 and 19 December 2013, the Claimant said she suffered severe headache and vomiting and was given two (2) days medical leave. On 8 January 2014, the Claimant said she had been experiencing the same kind of morning sickness and had kept on vomiting after taking her medication. On the morning of 8 January 2014, the Claimant stressed that she had told COW1 that she had felt groggy and she had then sought consent from COW1 to rest as the medication was taking a toll on her. It was alleged that COW1 had given the Claimant verbal permission for her to rest. The Claimant also said she had told her superior about the need to rest due to the medicine she had taken and she was allowed to do so. The Claimant confirmed that she had not given any medical report about her morning sickness to the Company because she had thought it must be known to others that the nausea and sickness are normal to a pregnant woman without giving any medical report on it. 8

[17] After the meeting with Ms Davena Tan and COW1 on 15 January 2014, the Claimant said she was not able to explain herself after receiving the second letter on 15 January. She explained that the termination letter was received and the termination itself had occurred on the same day and there was no reference made to the approval obtained by her from her superior regarding the need to rest. The Claimant said although she was given time to explain the matter, the meeting that had sought her explanation lasted only 30 minutes from 10.30 am until 11.00 am. Hence, she was not given an opportunity to answer to the allegation. An hour later, the Company immediately came out with the decision to dismiss her from her employment. [18] The Claimant further stated that she had never received any warning or notices from the Company about her punctuality or lateness previously. The Claimant emphasized that the first time the issue of punctuality was raised was in the Company's Statement in Reply (SIR) dated 8 July 2015. Moreover, the Claimant explained that her performance was not an issue and she had been given a special bonus five (5) times due to her performance, which were on 17 July 2013, 17 April 2013, 28 December 2012, 18 October 2012 and 5 July 2012. [19] Dr. Anuar Bin Ariffin (CLW2) was the doctor from Klinik Bakti who had attended to the Claimant initially. He informed the court that the Claimant had gone to the clinic after severe vomiting for two (2) days and it was due to the Claimant's pregnancy. CLW2 also testified that he had given her medical leave for her condition, saying that the Claimant was trying to cope but was not coping well. On the second occasion that she had gone to the clinic, CLW2 said she was not doing well. CLW2 also stated that he would not encourage the Claimant to drive due to her 9

medical condition and it was not so much related to the medication that she was taking. [20] Dr. Haniza Binti Hassan (CLW3) who was from the same Klinik Bakti attended to the Claimant on four occasions and stated that the Claimant was prescribed with Maxolone which was to stop nausea and vomiting. However, the same drugs has side effect though it is safe for patients who are pregnant. The most common side effect for the patient is that it has a sedative effect. CLW3 also testified that despite her colleague (CLW2) giving the Claimant Maxolon, the morning sickness did not go away so she had changed the medicine to Stimutil. Therefore, it was indicative of the Claimant's general condition during the material time that she didn't have severe but moderate symptoms of morning sickness and what the Claimant actually needed was just rest. Evaluation of Evidence and Findings [21] The burden is upon the Company to prove the alleged misconduct of the Claimant and the standard that is required is merely on a balance of probabilities - see the Court of Appeal case in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314. The first letter dated 15 January 2014 (page 42 of CB) which was issued to the Claimant showed that there was only one allegation set out in the letter which reads: We do found out on 08.01.2014 between 10 am to 12 pm you are sleeping at your table during working hours. Although the opening paragraph of the letter had expressed disappointment with the Claimant's alleged disciplinary attitude lately it is also obvious that the sole allegation against the Claimant was for sleeping during office hours. 10

[22] The Company's counsel has submitted that a domestic inquiry was conducted which this court has failed to appreciate how such a proceeding could be accepted as an 'inquiry'. It was more like a meeting and since the Meeting Minutes at page 41 of CB were not disputed, it would appear that a meeting was held and not an inquiry that was conducted to look into the Claimant's alleged misconduct. What was clearly reflected from the minutes was that they were prepared by COW1. COW1 was also the complainant as she had found the Claimant sleeping and she had also stated that she was the one to ask the Claimant to show proof for the reasons she was sleeping during working hours. The Claimant's fate was sealed within 30 minutes because that was the time period taken to complete the meeting. Shortly after that, the Claimant was served with the dismissal letter. [23] The first letter (or show cause letter) to the Claimant did not state her alleged tardiness or failure to attend to her work at the material time. Based on the attendance records which the Company had produced, it was submitted by learned Company's counsel that the Claimant had been late for work since August 2013 until her dismissal. It was observed that the frequency of lateness had increased (twice in August 2013, 9 times in September 2013, 13 times in October 2013, 14 times in November 2013, 13 times in December 2013 (with a lot of leave taken) and failure to clock out once), 8 out of 8 working days in January 2014 (twice for the failure to clock out) at pages 64 until 69 of CB). The Company's subsequent assertion and insertion of this ground in the SIR was surely an afterthought to justify the Claimant's dismissal. The first letter had only dealt with the incident that happened on 8 January 2014. There was no documentary proof submitted by the Company before this court to show that any show cause letter or warning had been issued to 11

the Claimant for being late or the alleged failure to attend to her work prior to the show cause letter dated 15 January 2014. The Claimant also testified that her boss had told her that the staff could even work flexi-hours. [24] The Company had also accused the Claimant of poor performance in its SIR and in COW1's testimony. This is contrary to the Claimant's evidence who has shown that the Company had given her bonus incentives up to the Q3 and Q4 of 2013 dated 22 October 2013 and 17 July 2013 (pages 74 and 75 of CB). Further, based on the documentary evidence at pages 23, 25 of CB and page 30 of CB, the Claimant had received the highest special bonus of RM500.00 in October 2013 (page 75 of CB). This would be testimony of the Claimant's good performance rather than supporting the Company's allegation that the Claimant was not performing well. The court has also not found any evidence brought by the Company that the Claimant was ever advised or reprimanded for her alleged poor performance. [25] The Company contended that the Claimant did not provide a medical report to show that she was incapable of performing her work when she was found sleeping or that there was medical side-effect from the medicine she had taken. The Company submitted that CLW2's testimony that the medication prescribed by him was generally without side effect in view of the Claimant's pregnancy and the Claimant's medication would have finished before 8 January 2014 according to the prescription given. In the court's view, that would have been true if the Claimant had taken her medicine religiously but there was no evidence adduced regarding this. It was further argued that the Claimant had not testified what was the medicine taken by her that had resulted in her 12

sleeping and she had not produced any medicine/prescription that she had taken on 8 January 2014. Thus, it was submitted that there was not an iota of evidence to support the Claimant's pleaded case that she had fallen asleep because of the medication taken. [26] Both CLW2 and CLW3 had taken time off from their busy schedule to attend the proceeding before this court. The court had seen and observed them and also heard their oral testimony in court. The court has no doubt that they were witnesses of truth. In fact, there was also no reason for them not to tell the truth in court. From their evidence, the court concludes that the Claimant had been suffering from morning sickness and she had been vomiting. Even if some of the medicine had not caused her to sleep, it appeared that the Claimant had not been well due to the effects of the severe morning sickness according to CLW2. In that condition, the good doctors also testified that it was not advisable for the Claimant to drive. Hence, the Company's suggestion through COW1 that if the Claimant was too sick to work, she could drive home or to drive to the nearest clinic to get a medical certificate, has been rebutted by the Claimant's witnesses' evidence. [27] The Claimant was never given an opportunity to explain her version of the facts as the show cause letter, the meeting and the termination had all occurred on the same day of 15 January 2014 within hours. The court disagrees with the Company's submission that the Claimant had admitted to the allegation so the misconduct had been proved. It is trite law that under a section 20 (3) reference, a dismissal must be for a just cause or excuse. Furthermore, the burden is on the Company to discharge and not for the Claimant to prove that she had not committed the alleged misconduct. 13

[28] In this case, the Claimant was not given a proper show cause letter for her to explain herself or sufficient time accorded for her to reply. After the first letter was received by her in the morning, she was hauled up before COW1 and Ms Davena. That meeting lasted only half an hour and at 11.00 am, the meeting was adjourned To get management decision (page 41 of CB). The Claimant testified that an hour later, the Company's decision was made and it was to dismiss her. The court is unable to accept that the Claimant had been given a fair opportunity to be heard and to adduce proof that she was under medication which had resulted in her sleeping on her table. [29] The Company had wittingly (or unwittingly) produced a document at page 73 of CB which was an undated document signed by the Managing Director titled Acknowledgement of Pregnant Staff. It was stated that four staff including COW2 had been pregnant from August 2013 to June 2014 and they had completed their work, taken their two months leave and returned to work. What was most interesting is the paragraph that followed, All of these staff performed job duties completely to company satisfaction and did not sleep on the job. It had been the Company's contention that other pregnant ladies in the Company were unhappy and had complained because the Claimant had slept on her desk during her pregnancy. If it was the stand of the Company that this letter was to show to this court how fair it had been to the other pregnant ladies with their unfailing performance, the court views such an opinion with dismay. The court opines that how other ladies had reacted or worked during their pregnancies would not be relevant in the Claimant's case. What is imperative for this court to decide is: has the Company proved to the satisfaction of the court the misconduct of the Claimant. In addition, was the Claimant's dismissal 14

with just cause or excuse? This court is not a medical expert but from the evidence of the two medical doctors, it was clear that the Claimant was having problems coping with her morning sickness and had to seek medical assistance. The Company was also aware that the Claimant was pregnant. [30] Upon perusing the Company's evidence, the court has also found it difficult to believe their witnesses. The Claimant sleeping on her table was alleged to have lasted from 10.00 am to 12.00 pm and COW2 said she had been calling the Claimant from the morning. If that was true, surely COW1 who was sitting next to the Claimant would have heard the ringing of the telephone. However, it was COW2 who had called COW1 to ask if the Claimant was at her place and why the Claimant was not picking her calls. Then, COW1 said she had looked over her desk and saw the Claimant sleeping and had woke her up. It was also in COW2's testimony during cross-examination that she had gone to check on the Claimant after lunch time (after 2.00 pm) and she had found the Claimant sleeping. The big question then is: when was the Claimant sleeping? The allegation against the Claimant was that she was sleeping from 10.00 am to 12.00 pm but it seems that there is no evidence to support that she was indeed sleeping within that period of time. Decision [31] On the totality of evidence before the court, this court is not satisfied that the Company has proved the misconduct allegation against the Claimant. Even if the misconduct is proved, the court must also dwell on the issue of the Claimant's dismissal and if the dismissal by the 15

Company was warranted and if it was for a just cause or excuse. The Company's dismissal letter had referred to the meeting held at 10.30 am and that they were disappointed with the disciplinary issue. It irresistibly concludes that the disciplinary issue was the Claimant's single act of being caught sleeping in the office for two hours. The Claimant did not have any previous bad disciplinary record or show cause issued and to dismiss her for this misconduct which was attributed to her pregnant state, was clearly unwarranted and too severe a punishment. It smacks the attitude of an employer who was not sensitive and compassionate to women facing difficulties in their pregnancies. The court does not condone sleeping on the job which is a serious misconduct but the facts of each case must be discerned with fairness and wisdom. [32] The Federal Court has decided in the case of Norizan bin Bakar v. Panzana Enterprise Sdn. Bhd. [2013] 6 MLJ 605 that the Industrial Court has the jurisdiction to decide if the dismissal of an employee was without just cause or excuse by using the doctrine of proportionality. The Company's punishment imposed on the Claimant for her first misconduct and the sole charge for being caught sleeping was too severe and was disproportionate to the misconduct alleged to have been committed. The dismissal was therefore without just cause or excuse and Claimant's claim is hereby allowed. Relief [33] The Claimant had testified that she had found gainful employment and started working again on 1 October 2014 after her dismissal. In deciding whether the Claimant should be reinstated to her former position, this court has considered the industrial harmony of the parties 16

and if that could be maintained should the Claimant be reinstated. Considering the circumstances the Claimant had been dismissed and the fact that she has now found employment, it would not be in the interests of industrial harmony to reinstate the Claimant to her former position. [34] In the case of Koperasi Serbaguna Sanya Bhd. (Sabah) v. Dr. James Alfred and Anor, at page 544 of the reported case in [2001] 3 CLJ 541, his Lordship Steve Shim CJ (Sabah and Sarawak) said, We take the view that the quantum of backwages is a matter within the discretion of the Industrial Court. That discretion is, however, not unfettered. It has to be exercised according to law. In this connection, s 30(5) of the Industrial Relations Act 1967, is significant, and it reads: The court shall act according to equity, good conscience and the substantial merit of the case without regard to technicalities and legal form. It seems clear therefore that the court has to act in accordance with equity in the exercise of its discretion. Here, we may also add that we find sufficient merit in the proposition stated in vol. 2 of the 4th edn of the Law of Industrial Disputes by Malhotra cited with approval by the Court of Appeal. The relevant passage on p. 961 bears repetition herein. It reads: In dealing with different types of cases, the tribunal in each case has to see that relief should be given in a particular case to a particular workman in the matter of compensation by balancing the conflicting 17

claims and the variations that exist in human conduct and the requirements of social justice. On the parity of reasoning, the adjudicator has to counter-balance the claim of the employer that the workman was gainfully employed elsewhere during the period of unemployment with him, with the claim of the workman that he was not employed anywhere at all. The quantum of backwages is, therefore, a matter in the discretion of the tribunal dependent on the facts of a case. The tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. A workman directed under an award to be reinstated with backwages would not be entitled to backwages for the period during which he was usefully employed elsewhere, because he cannot be allowed to take double advantage and make excessive gains relying on the wrongful act of the employers. In our view, it is in line with equity and good conscience that the Industrial Court, in assessing quantum of backwages, should take into account the fact, if established by evidence or admitted, that the workman has been gainfully employed elsewhere after his dismissal. Failure to do so constitutes a jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course, taking into account of such employment after dismissal does not necessarily mean that the Industrial Court has to conduct a mathematical exercise in deduction. What is important is that the Industrial Court, in the exercise of its discretion in assessing the quantum of backwages, should 18

take into account all relevant matters including the fact, where it exists, that the workman has been gainfully employed elsewhere after his dismissal. This discretion is in the nature of a decision-making process.. [35] The court is also mindful of the provisions of section 30 (5), section 30 (6A) and the Second Schedule of the Act in considering the amount of the compensation to be paid to the Claimant since she had found employment eight (8) and half months after her dismissal. Although the Claimant was paid RM200.00 of transport allowance, it was not stipulated in her contract of employment. Therefore, the court is not allowing the allowance to be paid in this award, taking into account that the Claimant had not been working and would not have incurred any expenses on transportation. [36] After considering all the above, the award that is ordered is the following: Backwages of 8.5 months: RM2,600.00 x 8.5 months = RM 22,100.00 Compensation in lieu of reinstatement of one month's pay for each year of completed service: RM2,600.00 x one (1) month's salary (19.3.2012 to 15.1.2014) = RM 2,600.00 Total = RM 24,700.00 [37] The amount, after deducting the necessary statutory deductions if any, is to be paid by the Company to the Claimant through the 19

Claimant's solicitors Messrs Palani Ammal & Co. within 30 days from the date of this award. [38] In arriving at this decision, the court has acted with equity and good conscience and the substantial merits of the case without regard to technicalities and legal form as stated under section 30 (5) of the Act. HANDED DOWN AND DATED THIS 30 DAY OF SEPTEMBER 2016 20