INDUSTRIAL COURT OF MALAYSIA CASE NO.

10/4-507/11 BETWEEN ENCIK GUNASAIKA A/L SINNAPPAN AND EDARAN OTOMOBIL NASIONAL BERHAD AWARD NO. 1083 OF 2013 Before Venue Date of Mention Date of Hearing : : : : Y.A. TUAN FREDRICK INDRAN X.A. NICHOLAS CHAIRMAN (Sitting Alone) Industrial Court of Malaysia, Perak Branch 2.6.2011, 19.8.2011, 19.10.2011, 22.12.2011, 2.5.2012 19.10.2011, 28.5.2012, 30.5.2012, 3.10.2012, 12.12.2012, 25.2.2013, 26.2.2013 & 31.5.2013 9.2.2012

Date of Early Evaluation :

Claimant's Skeletal Submission: 26.3.2013 Company's Written Submission: 24.4.2013 Final Oral Submissions : 31.5.2013 [whereat the Claimant filed a full written submission and a Reply to the Company's Written Submission] : Mr. Kuttiah Messrs. Ku & Partners Advocates & Solicitors (Learned Counsel for the Claimant) Mr. Yeoh Jie Hu Ms Josephie Sui Messrs. Sharizat Rashid & Lee Advocates & Solicitors (Learned Counsel for the Company)

Representation

AWARD

The Reference:

Edaran Otomobil Nasional Bhd. (the Company) and one of its erstwhile employees, a person by the name of Gunasaika a/l Sinnappan (the Claimant) parted ways, which ended their employer/employee relationship, with effect from 28.7.2009.

The Claimant, being aggrieved by the circumstances surrounding this cessation of employment, made written representations to the Director General for Industrial Relations under s. 20 (1) of the Industrial Relations Act 1967 (the Act) soon after that; where he complained of having been dismissed without just cause or excuse by his employer.

Pursuant to the complaint, conciliatory labours were undertaken by the said Director Generals Department; which proved futile. The said department, then being satisfied that there was no likelihood of the representations being settled amicably, duly notified the Honourable Minister of Human Resources, Malaysia under s. 20 (2) of the Act.

Upon the perusal of this notification, together with its accompanying papers from the Director General, the Honourable Minister found it fit to exercise those powers found under s.20 (3) of the Act to refer this matter to the Industrial Court of Malaysia.

As a consequence, the Claimants initial representations were transformed into a Ministerial Reference for an Award before this Court. The said Ministerial Order was dated 4.4.2011; and this Order of Reference was received by this Courts Registry at Kuala Lumpur on 21.4.2011 and subsequently by this Division of the Industrial Court at Ipoh, Perak on 6.5.2011.

The Matrix:

The Claimant commenced employment with the Company in January 1986 in the position of Cleaner & Driver. Over the course of some years he was promoted to Store Clerk and then on to the position of Parts-Assistant; where he remained until the date of his dismissal from the After-Sales Department of the Company on 28.7.2009. There is no dispute that his last drawn salary at that time was in the sum of RM1,582.00 per month.

The Claimants troubles with his employer began on 19.5.2009 when the Company, through one of its officers, ostensibly found that it had cause to issue the following communiqu to the Claimant (reproduced in its original language here):

*1 ~ exhibit COE 2 D 2:

The Claimant replied thus (exact copy reproduced): *2 ~ exhibit COE 13 D3:

Being dissatisfied by that reply the Company issued the following ( exact copy reproduced): *3 ~ exhibit COE 4 A 5 & 6:

The Domestic Inquiry went on as scheduled on 19.6.2009; after which the Claimant was dismissed vide the following missive (exact copy reproduced): *4 ~ exhibit COE 1 A 9:

The Claimant now comes before this Court to aver that his dismissal from employment was without just cause or excuse and was contrary to the principles of equity, good conscience and natural justice. He prayed to be reinstated in his former position without loss of seniority, wages or benefits, monetary or otherwise, together with arrears of salary or alternatively any other remedy that this Court may deem fit in the circumstances.

The Company, conversely, has denied the Claimants allegations and contends instead that it was entirely justified in taking the action that it did in the circumstances of this case.

The Issue:

As there was no dispute as to the actual factum of dismissal in this case, the sole issue that arose for the determination of this Court was whether the Claimant was dismissed with just cause or excuse [the rudimentary principle in the case of WONG CHEE HONG v CATHAY ORGANISATION (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 (of the then Supreme Court of Malaysia) as per Salleh Abas LP, has practical relevance here].

The General Principles:

In COLGATE PALMOLIVE Sdn. Bhd. v. YAP KOK FOONG (Award 368 of 1998), it was held as follows:

In a section 20 reference, a workmans 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 established 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 recognizes 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.

As there is no quarrel that there was a crystal-clear dismissal of the Claimant by his employer and bearing in mind the factual matrix of this case, I take cognizance of the declaration of the late Mohd. Azmi FCJ in the cases of WONG YUEN HOCK V. SYARIKAT HONG LEONG ASSURANCE SDN. BHD. & ANOR [1995] 3 CLJ 344 and

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MILAN AUTO SDN. BHD. V. WONG SHE YEN [1995] 4 CLJ 449 wherein His Lordship articulated the two-fold function of the Industrial Court under a section 20 reference. To paraphrase; it is first ~ to determine whether the alleged misconduct of the employee had been established; and second ~ whether that proven misconduct constitutes just cause or excuse for the decision by the Company to dismiss .

In GOON KWEE PHOY v J & P COATS (M) Bhd. [1981] 1 LNS 30 Raja Azlan Shah CJ (Malaya) (as DYMM Paduka Seri Sultan Azlan Shah Sultan Perak Darul Ridzuan then was) speaking for the Federal Court ruled: -

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 that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.

That learned author, Dr. Dunston Ayadurai in his erudite text Industrial Relations In Malaysia: Law & Practice 3rd Edition at page 297 states: -

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A workman can seek a remedy under section 20 only if he had been dismissed. More often than not, there is no dispute that there was an actual dismissal of the workman by his employer. The only issue for the Industrial Court to determine is whether the dismissal had been for just cause or excuse, the onus of proving the existence of the same being cast upon the employer. [emphasis added]

And this onus or burden of proof on the Company is based on a standard of a balance

of probabilities (see UNION of CONSTRUCTION, ALLIED TRADES AND

TECHNICIANS v. BRAIN [1981] ICR 542, [1981] IRLR 224, CA; SMITH v. CITY of GLASGOW DISTRICT COUNCIL [1987] ICR 796, [1987] IRLR 326, HL; POST OFFICE (Counters) Ltd V. HEAVEY [1990] ICR 1, [1989] IRLR 513, EAT; IREKA CONSTRUCTIONS BERHAD v. CHANTIRAVATHAN a/l SUBRAMANIAM JAMES [1995] 2 ILR 11 and TELEKOM MALAYSIA KAWASAN UTARA v. KRISHNAN KUTTY SANGUNI NAIR & Anor. [2002] 3 CLJ 314).

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The Domestic Inquiry (the D.I.):

As stated earlier, a D.I. was convened in this case by the Company on 19.6.2009. Evidence with regard to those proceedings was led in the trial before this Court through Companys witness designated COW 4 ( i.e. one Jalalluddin bin Omar, the Chairman of the D.I. panel). The notes of those proceedings and the inquiry report was admitted as evidence here and marked as exhibit COE 7 A 7 to 8D, without objection from the Claimants side.

From the record, the Claimant was represented at the D.I. by a Representative from his Union. COW 4 stated in evidence that he had read the charge to the Claimant at the D.I. whereupon the Claimant pleaded guilty. He was then allowed to mitigate, which was followed by a short question and answer session for clarification of what the Claimant had uttered. This was followed by a short submission by the Claimants Union Representative, which in turn was followed by a closing statement by the Chairman of the D.I. panel. Each page of those notes ( see COE 7 A 7 to 8A) was signed by all present at the D.I. inclusive of the Claimant. [ note: COE 7 A 8B to 8D was the inquiry report].

Notwithstanding this, learned Counsel for the Claimant raised his disquiet regarding the legitimacy of the D.I. by claiming that it was defective as ~ no Company witnesses were called at the D.I.; that there was no evidence that the charge had been explained

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to the Claimant; that the Claimants proficiency in English and Bahasa Melayu was not ascertained by the panel and that in general there was a breach of natural justice.

It is to be noted that it is trite that a full domestic inquiry is necessary only in cases where misconduct is involved and where it is denied by the workman. In PETROLEUM NASIONAL Bhd. v. MOHD. RADZMAN bin RAMLI [1993] 1 ILR 100 (Award 47 of 1993) it was observed that:

The Indian Supreme Court has established that Where a workman in answer to a charge leveled against him admits his guilt, there will be nothing more for the management to inquire into, and in such a case the holding of an inquiry would be an empty formality: Central Bank of India v. Karumany Bannerjee [1967] 1 LLJ SC. [emphasis added]

See also the case of UMW TOYOTA (M) Sdn. Bhd. v. CHOW WENG THIEM [1996] 5 MLJ 679; which followed the principles distilled from the English authorities of BARTON v. FINCHAM [1921] 2 KB 291; THORNE v. SMITH [1947] 1 KB 307; & MIDDLETON v. BALDOCK [1950] 1 KB 657.

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In HONG LEONG EQUIPMENT Sdn. Bhd. v. LIEW FOOK CHUAN & Other Appeals [1997] 1 CLJ 665 @ p. 716, His Lordship Gopal Sri Ram JCA, held for the Court of Appeal that:

The fact that an employer has conducted a domestic inquiry against his workman is, in my judgement, an entirely irrelevant consideration to the issue whether the latter had been dismissed without just cause or excuse. The findings of a domestic inquiry are not binding upon the Industrial court which rehears the matter afresh. However, it may take into account the fact that a domestic inquiry had been held when determining whether the particular workman was justly dismissed.

It is essential to bear in mind that there are no fixed criteria or hard-and-fast rules as to what constitutes a proper domestic inquiry. Every case must necessarily revolve

around its own particular state of affairs. Thus, what must be observed ~ as regards the degree of formality and the rules of procedure adopted by an inquiry panel ~ would be determined by the prevailing and peculiar circumstances in each individual case. Of utmost importance would be the presence of a clear impression of due and reasonable adherence to the principles of natural justice in the whole scheme of things; in short, what must come through is an observable and practical compliance of fair dealing all round in the domestic inquiry [see the case of HAJI ALI HAJI OTHMAN v. TELEKOM MALAYSIA Bhd. [2003] 3 CLJ 310].

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From the record and the evidence led on this aspect of the case, notwithstanding learned Counsel for the Claimants various protestations, it appears that the Claimant was given a right and opportunity to explain and state his case, if he so desired, upon the charge being read to him. The essence of the charge was clear and to my mind needed no extensive explanation; whilst the language employed at those proceedings as reflected in the notes (COE 7 A 7 to 8A) did not seem at all complex or unintelligible to the average person, which to all intents and purposes the Claimant seemed to be to this Court.

In the upshot, it is the preliminary ruling of this Court that the D.I. stands valid and the decision arrived at by the board of inquiry upon the Claimants plea thereat was not perverse. This however does not imply the end of the matter, as I am mindful of what was set forth by His Lordship Gopal Sri Ram JCA, in the HONG LEONG EQUIPMENT case (supra). I will thus proceed to review and then evaluate the evidence tendered against the Claimant as recorded during the course of this trail and his reply thereto; and after that come to a final conclusion on the propriety of the Claimants dismissal from employment.

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The Evidence:

The Case for the Company

The Company called four witnesses on its behalf, namely:

COW 1:

one Ooi Chin Chuan, a Regional Manager of the Company based in Ipoh at the material time;

COW 2:

one Liew Siew Cheng (f), an Administrative Assistant with the Company;

COW 3:

one Zailan bin Karim, the Assistant Head After Sales for EON Bhd. based in Ipoh at the material time; and

COW 4:

one Jalaluddin bin Omar, the then Sales Head at EON Bhd., Taiping Branch ~ the Chairman of the D.I. at the material time.

What follows is a synopsis of their recorded evidence, save for that of the testimony of COW 4, which has been dealt with above viz. the D.I.

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COW 1
The gist of this witness testimony can be condensed to the effect that the bulk of the Companys documentary evidence was introduced and tendered through him. Those of pertinence to this Award & connected to him have already been copied above. In substance this witness affirmed that the Claimant had been absent on the days mentioned in the charge against him without having first obtained the required approval for leave as provided by Article 27 (4) of the Collective Agreement to which the

Claimant was subject to for the period in question. The relevant part of the article reads:

No employee shall absent himself from duty for the purpose of annual leave without the prior approval of the Management. . [see exhibit COE 5 C 16]

The documentary proof of his absence was shown by the Claimants time cards thus: *5 ~ COE 8 A 3 & 4:

~ left blank intentionally ~

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19

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This witness testified that the Claimant was, or at least should have been, well aware of this provision and the usual procedure for the prior application of annual leave, given that he had been employed by the Company since 1986. The Claimant had in fact been reprimanded before for a similar offence. As proof of this he referred to the following: *6 ~ COE 6 A1:

~ left blank intentionally ~

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COW 1 was not substantially moved from his position by the cross-examination.

COW 2
This witness was called to explain two documents pertaining to a record of the Claimants leave for the period in question. The documents concerned were CLE 1 D 5 & 6 (in the Claimants bundle of documents marked D ) and COE 12 B 1 (in the Companys bundle of documents (2) marked B). The essence of her evidence was that she was merely the data in-putter, and that she had made several mistakes in the carrying out of her task. Hence the state of the documentation and the discrepancies apparent on the face of document marked CLE 1 D 5 & 6. As she could not rectify those errors at her level in Ipoh, she had informed the H.R. Department at headquarters to do so; which lead to the production of COE 12 B 1. What this witness seemed certain of was that notwithstanding the state of the contents of CLE 1 D 5 & 6, the Claimants leave had not been approved by the Company on the dates concerned as per the charge. What emerged here was that at the time COW 2 had in-put the data in CLE 1 D 5 & 6, the Claimant had exhausted his annual leave entitlement of 24 days per year. She had thus taken it upon herself to enter into the Companys computerized Leave Application System the days the Claimant had not turned up for work as unpaid leave. This information she derived from exhibit COE 11 E 7 to 26 ~ i.e. the Claimants Leave Applications Forms which remained unapproved on the face of the documents ( together with accompanying papers) for the 11 days as set out in the charge against him.

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So much for this witness.

COW 3
This witness was the Claimants immediate superior at the time in question. It was he who would recommend any leave application made by the Claimant; which was then sent on to a Mr. Choong Kean Fee, the then Head of After Sales at Ipoh, for approval.

COW 3 affirmed that the Claimant had been absent without leave and/or prior approval from him for those 11 days mentioned in the charge against him ( i.e. between 22.4.2009 to 12.5.2009). In point of fact, the Claimant had not bothered to submit his leave application forms for those days until after he was issued with the Companys show cause letter of 19.5.2009 which was signed by this witness ( see exhibit COE 2 D2 ~ supra). The Claimant only then put in the said leave application forms with his reply dated 25.5.2009 (COE 13 D 3 ~ supra).

That then was the state of the Companys case in its distilled form.

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The Claimants Reply

The pith of the matter as far as the Claimants was concerned was that he had been either on sick leave or annual leave on the 11 days that he has been accused of being absent without leave. The medical certificates ( in amongst the papers in exhibit COE 11 E 7 to 26) and a letter from his Solicitor (exhibit CLE 2 D 9) accounting for 6 of the 11 days concerned; were tendered to the Company together with his explanation in reply to the Companys show cause letter. He had in any case informed one Azrul Affendi by SMS (short message service) each time he went on leave on the dates concerned. The Claimant claimed that this Azrul Affendi was his superior, but admitted in crossexamination that he (Azrul) did not have the authority to recommend his leave. The Claimant stated that this person was the Store Keeper at the Company at the material time, which fact was alluded to earlier by COW 3 in cross-examination ( COW 3 however denied that this Azrul was the Claimants immediate superior ). The Claimant did acknowledge that COW 3 was his immediate boss who had the authority to recommend his (the Claimants) leave to higher management for approval.

Whilst admitting that he had sent the reply ( COE 13 D 3), the Claimant claimed that it was written by an Indian Petition Writer, who only cursorily explained the contents to him at the time in Bahasa Melayu; a language to which he alleged only a moderate understanding. He confirmed however that he had appended his signature to the letter before he sent it on the Company. Further, the Claimant agreed in cross-examination that he had exhausted all his annual leave for 2009 before April of that year.

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The Specific Jurisprudence:

O.P.Malhotras THE LAW OF INDUSTRIAL DISPUTES VOLUME 2 (6nd Ed) at page 1135 states:

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 employers 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 the faithful discharge of his duties, would constitute good cause for his dismissal.

Also see the cases of NATIONAL COAL BOARD v. GALLEY [1958] 1 All ER 91 (CA); HANLEY v. PEASE and PARTNERS Ltd. [1915] 1 KB 698; LILLEY v ELWIN [1848] 2 QB 742; HICKS v. THOMPSON [1857] 28 LTO s 25; HALSBURYS LAWS OF ENGLAND, third edition, Col 25, p 464 under the caption Obligation of servant not to absent himself from work.

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The statement of law in O.P. Malhotras, was positively ratified by our Federal Court in the case of PAN GLOBAL TEXTILES Bhd, PULAU PINANG v. ANG BENG TEIK [2002] 1 CLJ 181 which held:

. that no employee could claim as a matter of right, leave of absence without permission and that remaining absent without any permission was a gross violation of discipline, which constituted misconduct justifying the discharge of a workman from service.

B.R. Ghaiye in MISCONDUCT IN EMPLOYMENT (2nd Ed) states at p. 172:

Whenever an employee requires leave, it is necessary for him to send the leave application even if an employee has just cause for absence .. . No employee can claim as a matter of right leave of absence without permission and when there might not be any application for the same. Remaining absent without application is, therefore, a gross violation of discipline .

In the case of TENG TONG KEE v. NIKMAT JASA PILING Sdn. Bhd. [2006] 1 CLJ 1199 the Court of Appeal held that :

The onus was on the claimant to show that his application for leave had been accepted and approved by the company.

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And in MOHAMAD NOOR bin JOHARI v. THE VALSPAR (M) Corp. Sdn.Bhd. (Award No: 1231 of 2011) the Industrial Court observed:

In fact, the law is clear that in an application for leave, until and unless there is an express approval by the employer, the employee cannot go on leave. If the employee contends otherwise, the burden of proof is on the employee.

The Evaluation & Findings:

By a prudent assessment of the evidence taken as a whole, grounded upon equity, good conscience and the substantial merits of this case it is the finding of this Court that the Company has established, on a balance of probabilities, the appropriateness of the Companys action against the Claimant. The Claimant himself has positively admitted to substantial and material elements of the allegation of being absent without permission on the days concerned and has by this, shown a betrayal of the trust and confidence reposed in him by the Company. That he may or may not have informed Azrul of his absence is of no consequence, as the Claimant himself acknowledged that this person had no authority bestowed by the Company with regard to the question of his (the Claimants) leave. It could hardly be ideal for industrial harmony and in an employer/employee type situation if the workman could decide himself upon whom he should inform in the Company before he went on leave or choose to absent himself from work!

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Juxtaposing the stated law with the evidence, as distilled above, it is the finding of this Court that the Claimant has failed to comply with the basic obligation of a workman to be present at his employers work place to the render the service that he was contracted to do. He was absent without leave or the requisite authorization from the Company on the days concerned ~ notwithstanding the purported medical certificates and his Solicitors letter; and he had failed to do the expedient and expected thing of informing and obtaining the prior requisite permission from an authorized officer of the Company for his absence in due and proper time. After 23 years of service in the same Company it would not be farfetched for him (the Claimant) to be expected to know who it was that was actually authorized to grant him leave; and also to be familiar with the usual procedure that he would have been obliged to take to apply for such leave.

Thus, that the Claimant has committed an employment misconduct is unequivocal. That he had breached a term fundamental to his employment contract is undeniable; and that it was serious enough to warrant his dismissal is unquestionable.

Under the circumstances and in accordance to s. 30 (5) of the Industrial Relations Act 1967 I hold that the dismissal in the instant case was for just cause or excuse.

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The Final Order:

For the reasons above, I order that this claim be and is hereby dismissed.

In Extenso & Under My Hand;

HANDED DOWN AND DATED THIS 18th DAY OF JUNE 2013.

~ SIGNED ~ (FREDRICK INDRAN X.A. NICHOLAS) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA PERAK BRANCH AT IPOH

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