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Reference :
This is a reference made under Section 20(3) of the Industrial Relations Act,
1967 arising out of the dismissal of Encik Fadzillah @ Fadzil bin Abu (herein
referred to as “the Claimant”) at A1, Perumahan Petronas, Jalan Jati 9/17, 81700
Pasir Gudang, Johor by Secom (Malaysia) Sdn. Bhd. (herein referred to as “the
Company”) at No. 12, Jalan Astaka U8/82, Bukit Jelutong Business & Technology
AWARD
The parties to the dispute are Encik Fadzillah @ Fadzil bin Abu ("the
Claimant") and Secom (Malaysia) Sdn. Bhd. ("the Company"). The dispute
between parties arose out of the dismissal of the Claimant by the Company on
25.5.2004
Facts of Case
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RM700.00 per month. Claimant is subjected to three (3) months probation.
Claimant that the Company was satisfied with his performance thus it confirmed his
upgrading his position from 'Customer Service Officer' Grade AGG5 to Response
notified the Claimant that his salary has been increased from RM770.00 to
RM845.00 effective from 1.1.2004 and expressed gratitude for his performance and
support.
The Claimant was employed not on a permanent basis but under a fixed term
Vide Company's letter dated 14.5.2004 the Claimant was issued with a notice
of Domestic Inquiry and the allegation forwarded by the Company are as follows:
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Charge:
In the same letter the Company ordered the Claimant to attend a Domestic
Inquiry on 25.5.2004 at 10.30pm at the new office in Bukit Jelutong, Shah Alam
and suspended him from work effective from 14.5.2004 until 27.5.2004.
The Claimant dutifully attended the Domestic Inquiry which was held on
statement dated 14.5.2004 made by one of the Company's employees alleging that
the Claimant had on 11.2.2004 taken without authorisation one full set of security
Shah Alam.
The enquiry held was on 25.5.2004 was before a three man panel of inquiry.
The panel after careful consideration and deliberation found the Claimant guilty of
the charge levied against him and recommended that the Claimant be dismissed
from service.
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Subsequently, the Claimant's employment was terminated immediately vide
Company's letter dated 25.5.2004 and his last drawn salary at the material time of
Issue
The sole issue before the Court is whether the Claimant's dismissal by the
The Law
of the Industrial Relations Act 1967, the Federal Court in the case of Wong
Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. [1993] 3 CLJ 344 (at
“On the authorities, we were of the view that the main and only
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function of the Industrial Court in dealing with a reference under s. 20
314 (at page 315 of the report), the Court of Appeal sated:
Based on the above mentioned authorities, the questions which this court has
to determine are:
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unauthorized premise at Bukit Jelutong Shah Alam on 11.2.2004 was
i.e. that the Claimant did unload a full set of security equipment at an unauthorized
premise in Bukit Jelutong Shah Alam on 11.2.2004 was in fact committed by the
15 paragraph 7 of COB:
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"Panel (Puan Seoh Ooi) menyoal saya, adakah ada
lain."
J: Betul.
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S: Perbuatan ini kamu buat tanpa apa-apa arahan dari pihak
syarikat, setuju?
J: Setuju.
menjual?
J: Setuju."
(d) CLW2 the brother of the Claimant in his evidence in chief stated:
"S: Boleh beritahu Fadzil ada memberi alat itu kepada kamu
J: Ya."
The Claimant had clearly admitted to the act of unloading a full set of alarm
11.2.2004.
In the light of the clear admission by the Claimant, the Court finds that the
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Company has discharged its burden of proof on the first issue that the Claimant had
excuse for the Company to dismiss the Claimant. The Court is of the view that the
misconduct committed by the Claimant's constitutes just cause or excuse for the
(b) The Claimant was employed by the Company as its response officer;
(c) COW1 and COW3 testified that dismissal was the only option because
the misconduct alleged against the Claimant and to which the Claimant
admitted to committing was very serious and criminal in nature and the
There are a number of cases where the Court held that employees guilty of
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removing the Company's goods without authorization are liable to dismissal as such
Mat Zin [1999] 2 ILR 343 (at page 344 of the report), the Claimant in
to his own possession and it is found at the time when he was going
out of the work place that he was carrying some goods of the
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(b) In the case of Institute Seni Lukis Malaysia v Chung Yi [2003] 3
ILR 579 (at pages 580 and 599 of the report), the Claimant was
Company from the premises of the Company. The Claimant did not
deny removing the painting. She argued she was not guilty of
Even assuming the painting belonged to her father, what the Claimant
(c) Okumura Metal (M) Sdn. Bhd. v Aparaha Athinarayanan [2003] ILR
160 (at page 161 of the report), the Claimant was dismissed by the
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The Court held:
"The Claimant's conduct during and after the incident led to the
alleged misconduct.
that his act was detrimental to the best interest of the Company."
The Claimant justified his actions of unloading one set of security alarm
did so in order to conduct sale for the Company. The Claimant at page 15 COB
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berlaku dan saya menyatakan ianya adalah untuk dijadikan bahan
sampel bagi tujuan untuk menjual dan saya juga ada menyatakan satu
yang dihadiri oleh Encik Khoo Lai Hock (sales department) dari Secom
The Claimant's brother CLW2 testified that he asked the Claimant to give him
one set of security alarm equipment for his employer was interested in having such
a system.
defence to the charge of misconduct levelled against him. The Court rejects the
purported defence that he took the one set of security alarm equipment for the
purpose of sample for sale because it was never pleaded in his Statement of Case.
The Claimant knew all along the reason he was charged and dismissed after
a domestic inquiry he should have pleaded the relevant facts pertaining to the
"It is trite law that a party is bound by its pleadings. The Industrial
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Court must scrutinize the pleadings and identify the issues, take
judgment having strict regard to the issues. It is true that the Industrial
Court is not bound by all the technicalities of a Civil Court but it must
determine what are the issues and to narrow the area of conflict. The
Industrial Court cannot ignore the pleadings and treat them as mere
Industrial Court must at all times keep itself alert to the issues and
stated that:
J: Dia datang pada pukul petang saya ketika itu di tempat isteri saya
bekerja di Seksyen 27, Alam Maju, Shah Alam. Barang itu Fadzil
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On the evidence before the Court, the Court finds that the Claimant was not a
salesman permitted to conduct sale. The Claimant did not unload the said one set
of security equipment into the car of his brother CLW2 for the purpose of sale. In
any event, he was never authorised by the Company to deliver the said equipment
In the premises, having duly considered the whole evidence and the
authorities cited, the Court finds that the Claimant had indeed committed the
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