INDUSTRIAL COURT MALAYSIA CASE NO. 5(17)/4-1257/10 BETWEEN OTTOH BIN POTONG AND IOI EDIBLE OILS SDN. BHD. AWARD NO:

1011 OF 2014

BEFORE

:

Y.A. TUAN HAJI YUSOB BIN MD TASIR Chairman (Sitting alone)

VENUE

:

Mahkamah Perusahaan Kota Kinabalu.

DATE OF REFERENCE

:

22.09.2010

DATES OF MENTION

:

25.01.2011, 05.05.2011, 10.06.2011, 20.09.2011, 21.11.2011, 08.02.2012 and 09.04.2012.

DATE OF EARLY EVALUATION

:

28.03.2011

DATES OF HEARING

:

07.08.2012, 09.08.2012, 11.03.2013 and 12.03.2013.

WRITTEN SUBMISSION :

The Company's submission was filed on 04.09.2013 The Claimant's submission in reply was filed on 04.11.2013 The Company's submission in reply was filed on 10.12.2013

REPRESENTATION

Mr. Marzuki Hj Spawi JP Messrs Marzuki Spawi & Co. Advocates & Solicitors (Solicitors for the Claimant)

:

Mr Tsang Hieng Yee Messrs Tsang & Co. Advocates & Solicitors (Solicitors for Respondent/Company)

1

The Minister's Reference :

On 22.09.2010 the Honourable Minister exercising his power under section 20(3) of the Industrial Relations Act 1967 (the Act), referred the dispute over the dismissal of OTTOH BIN POTONG (the Claimant) by his employer IOI EDIBLE OILS SDN. BHD. (the Company) on 06.01.2009 to this Court for an award.

AWARD Brief Facts.

[1]

The Claimant was first employed by the Company as Bulk Operator on

02.03.1998. On 01.12.2001 he was promoted and appointed as Assistant Operation Supervisor. By a Letter of Transfer dated 28.04.2005 he was transferred to Security Department as a Shift Supervisor.

[2]

In the later part of 2008 the Company found that the Claimant had committed

misconducts and the Company preferred 4 charges against him. The charges as are produced at page 7 of this Award. His service was suspended from 09.12.2008 to 22.12.2008. The Company conducted a domestic inquiry for him on 13.12.2008. The Panel of Domestic Inquiry found the Claimant guilty of all the 4 charges. Vide a letter dated 06.01.2009 the Company terminated his service.

Witnesses [3]

The following witnesses for the Company testified at the hearing of the 2

case:

(a)

Chen Lee Chu (COW1)

(b)

Sudhakaran s/o Nottath Bhaskaran (COW2)

(c)

Ibrahim bin Yusuf (COW3)

(d)

Ali bin Ulang(COW4)

[4]

The Claimant testified at the hearing as CLW1 and he did not call any other

witnesses.

Witness Statements

[5] The witness statements of the witnesses were marked as follows: (a)

Witness statement of Chen Lee Chu – “WSCOW1”

(b)

Witness statement of - Sudhakaran s/o Nottath Bhaskaran“WSCOW2”

(c)

Witness statement of the Claimant - “WSCLW1”

Document:

[6] which

Before the trial, initially the Company filed a bundle of 32 pages of documents are

not

paginated

where

the

first

document

entitled

“PENAMATAN

PERKHIDMATAN KEATAS OTTOH BIN POTONG” dated 08.04. 2011 and the last document entitled “LETTER OF TERMINATION” dated 06.01.2009 but later it filed Respondent's Bundle of Document and

Respondent's Supplementary Bundle of

Document whilst the Claimant filed the Bundle of Documents For Employee.

Both

parties agreed to the authenticity of the documents and not to the truth of its content. Therefore I regard them as agreed documents. 3

The Law:

[7]

It is trite law that for dismissal cases the burden of proof rests on the

employer to prove that the dismissal of the Claimant as employee was with just cause and excuse. The standard of proof is on a balance of probabilities as enunciated in Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314.

[8]

The function of the Industrial Court in dismissal cases on a reference under

Section 20 of the Act is two-fold as stated by His Lordship Mohd Azmi FCJ in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449, namely:-

“… 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.”

[9]

In the present case there is no dispute that the Claimant was dismissed vide a

letter dated 06.01.2009 (COB page 97). The next question to consider is whether the dismissal of the Claimant was with or without just cause or excuse.

[10]

In the case of Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd. [1981] 1 LNS 30

His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness was then) states:-

“ Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of that court to determine whether the termination or 4

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 inquire 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 inquiry 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.

(this portion is intentionally left blank)

5

Charges:

6

The Preliminary Objection

[11]

On the first day of the hearing that is 07.08.2013 the Claimant's Counsel (CLC)

raised a preliminary objection on the ground that the charges preferred against the Claimant are invalid, defective and in law void. He also objected to the Company's Bundle of Documents (BOD) which was just filed by Company on that day. According to him, the late submission of the BOD showed that the Company had problem with their case. If I agree with his view he prayed that the Claimant's claim be allowed without trial.

[12]

I postponed the hearing to the next day to enable the Company's Counsel (COC)

to prepare his submission in reply and also to enable the CLC to peruse the Company's BOD. After hearing the submission in reply made by the COC as well as the reply made by the CLC, I decided that both of the objections be dismissed. It does not mean, I have ruled that the charges were not defective, valid and good. I dismissed the preliminary objection because I can only decide on the claim

after I have considered all the

evidence.

The Submission of the Company

[13]

The Company filed its submission (the Company's Submission”) on 04.09.2013

and its reply to the submission of the Claimant (the Company's Reply) on 10.12.2013. The points raised by the Company in its submission and reply inter alia as follows:

a)

The Company issued a reprimand letter dated 25.04.2005 to the Claimant 7

because he admitted that he did not take any action against 4 of his subordinates who were caught playing cards while on duty. After that the Claimant was transferred to the Security Department as the Shift Supervisor.

b)

In November 2008, the Claimant had committed

several very serious

misconducts that is he was in breach of the Company's safety regulations, permitted a number of contract workers to enter and work in the plant without wearing the proper safety attire and tools. He had also left open the gate adjacent to neighboring plants without the permission of the General Manager (COW2). No disciplinary action was taken against him, nevertheless he was issued a warning letter dated 18.11.2008 (page 60 of COB). [para11]

c)

Besides that the Claimant also had committed other misconducts and mistakes which are as follows:

i)

He had been seen socialising beyond normal boundary including consuming alcohol with his subordinate by the name of Asmar bin Ulag (Asmar) who according to the COW2 involved in petty theft, getting drunk while on duty and not performing patrols at night.

ii)

The COW2 had received many reports about Asmar who was one of the

subordinates of the Claimant, being involved in petty theft,

getting drunk while on duty and not performing patrols at night. 8

Because of that the GM had instructed the Claimant to specially keep an eye on Asmar. Instead of doing that, the Claimant had been socialising beyond normal boundary including consuming alcohol with Asmar. Finally Asmar was involved in a theft of crude palm oil (CPO) case. Asmar has since wanted by the police and has since been missing until then. (para 12.1)

iii)

On 30.11.2008 at about 3.30 am, the Claimant had driven a vehicle under the influence of alcohol and resulted in a serious accident. The passengers on board of the vehicle were his subordinates namely Asmar and Norazman Jual Mahani (Norazman). (para 12.2)

iv)

The Claimant had a quite close personal relationship with Asmar which

had

resulted

in

ineffective

supervision

over

Asmar

notwithstanding that he was told by the GM to keep an eye on Asmar. There was dissatisfaction among his other subordinates because he practiced favouritism over Asmar against them. (para 12.3)

v)

In order to carry out his personal affairs and to avoid working from 01.12.2008 to 06.12.2008, the Claimant had feigned illness by getting medical certificates from 4 different clinics including 2 non panel clinics, which was in breach of the Company's regulations. (para 12.4)

9

d)

Due to the misconducts as stated in sub-para (c) above, the Company suspended the service of the Claimant from 09.12.2008 to 22.12.2008 (COB page 72). Thereafter the Company issued a suspension letter dated 10.12.2008 (COB page 69). Then the Company issued

a letter dated

10.12.2008 to the Claimant which spells out the charges against him and requests him to attend a Domestic Inquiry (DI) on 13.12.2008. The letter also states all the Claimant's right during the DI. (para 13)

e)

The DI was properly conducted in Bahasa Malaysia, the language fully understood by the Claimant. The notes of proceedings of the DI is COB pages 73 to 105 and CSBOD. (para14)

f)

The panel of DI found the Claimant guilty of all four charges as stated at pages 70 and 70(a). The finding was conveyed to the Claimant by the Company vide a letter dated 06.01.2009 (COB page 97) and his service was terminated immediately. (para 15)

g)

The issues to be tried in the present case are as follows: i)

the validity of the charges preferred against the Claimant;

ii)

the validity of the show cause letter that was issued to the Claimant;

10

iii)

whether the dismissal of the Claimant is just, unfair or without just cause; and

iv)

whether the DI has been conducted in breach of the rules of natural justice. (para 17.1 – 17.4)

h)

On the first day of the hearing the Claimant made a preliminary objection against the charges which subsequently has been dismissed by the Court. Because of that this issue has become res judicata.(para 19)

i)

The 4 charges preferred by the Company against the Claimant are not criminal or semi criminal in nature. Therefore the principles enunciated in Esso Production's Case is not applicable to the present case.(page 11 para 10)

j)

The law does not prescribe nor does it determine any special requirements for show cause letter. It is submitted that as long as it contains sufficient particulars and details of the charges, it is deemed to be proper and regular. (para 23)

k)

The charges are misconducts committed by the Claimant. Even if any single charges is not tantamount to misconduct, the cumulative effect of all the charges is tantamount to misconduct as enunciated by the case of Perusahaan Kemas Maju Sdn Bhd v Ramli Abu Hassan (Award 250 of 1994) and Gaya Film Bhd v S Muniandy (Award 180 of 1988). 11

l)

Asmar was investigated by the police for abetting the theft of crude palm oil committed by a driver. He was also investigated and suspected by the Company for stealing scrap iron from the Company, was drunk while on duty on 13.05.2008 and was found sleeping in the Guest Room on 24.08.2007. Because of that the COW2 instructed the Claimant to keep an eye on Asmar. The evidence shows the Claimant did not adhere to the instruction instead he had formed and exhibited a specially closed friendship with Anuar. (33.1 – 33.3)

m)

The evidence of specially closed friendship between the Claimant and Asmar as follows:

i)

the Claimant had been seen to have very regular drinking sessions with Asmar after work;

ii)

special treatment or favouritism was given by the Claimant to Asmar at work;

iii)

an accident was caused by both of the Claimant and Asmar under the influence of alcohol while they were having social outing on 30.11.2008 at around 3.30pm. (para 33.4)

n)

The misconducts of the Claimant as stated in para (m) above are tantamount to insubordination against COW2 who was then his superior. (para 33.5 to 33.6)

12

o)

In the case of Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Berhad [2006] 3 CLJ 837, the Federal Court held that in Malaysia the general rule governing the doctrine of superior orders is nothing than the duty of obedience that is expected of an employee. The Federal Court reasserted that working as instructed is the employee's basic consideration under a contract of employment. (para 34.3)

p)

In the present case, it is clear that the Claimant defied the clear and unequivocal instruction given not only once but many times by COW2 to keep a proper look out on Asmar so that this person would not create any troubles. (para 35)

q)

Instead of obeying the instruction, the Claimant formed a close relationship with Asmar which rendered him incapable and impossible to carry out the instruction.(para 36)

r)

During the DI, the Claimant admitted his close friendship with Asmar. He also admitted that COW2 had given him a few instructions. Besides that the Claimant's colleagues had confirmed the favourtism given by him to Asmar. (para 38)

s)

As a Head of Security,the Claimant should be role model to his subordinates especially to Asmar but conversely he had shown bad 13

example such as having drinking until late night, being intoxicated in the presence of his subordinates and involved in a road accident. (para 40)

t)

The Company's Submission is supported by the view of Maimunah Aminuddin in Termination of Employment: Understanding The Process at page 143 to 144 where the author inter alia states “If an employee acts in some way outside the workplace which the employer considers as tarnishing the company's image, there may be a case for dismissal.....”.(para 44)

u)

The Claimant was undoubtedly supposed to be a role model for his subordinates, which job he has clearly failed to fulfill. In such circumstances, even if the Company cannot show any direct harm that is caused by such failure, which is denied, a dismissal is justifiable. (para 45)

v)

In the case of Subramaniam & X Sarathambal v Merlimau Pagoh Ltd (Award 32 of 1975), the Court agreed with the decision in Madho Singh v State of Bombay AIR [1960] Bom 285 where it states “In Madho Singh v State of Bombay AIR [1960] Bom 285, the Bombay High Court, with regard to misconduct outside employment, stated as follows: The ratio decidendi deductible then is that in order to enable a master to take disciplinary action against his servant, it is not a condition precedent that the misconduct on the part of the servant must be arise within his employment and not outside his employment. The test is in each case will be whether the servant is 14

conducting himself in a way that is inconsistent with the faithful discharge of the obligations undertaken by him expressly or impliedly in accepting the service. The inconsistency may arise on account of any act of the servant, either in the course of his employment or outside it, which injures or has the tendency to injure his master's business or interests or reputation.” (para 46)

w)

Even though his application for sick leave for 29.11.2008 was declined by the Assistant Manager for HR, Miss Chen Lee Chu (COW1), the Claimant still absent and during the DI he admitted on this date he was helping his cousin campaigning for the Batu Sapi by-election from the afternoon until 11.00pm. Thereafter he went out for drinking and karaoke session with his subordinates including Asmar until 4.00am the next day, at which time he met a road accident. (para 47)

x)

Due to the injury suffered from the accident, the Claimant was absent from 01.12.2008 to 06.12.2008 without leave approved by the Company but he had medical chits from 5 clinics which 2 of them were not the panel of the Company. (para 48)

y)

It has been the Company's long established rule and custom that employee shall visit the Company's panel clinics whenever they require medical treatment and advice. (para 50)

15

z)

During the DI the Claimant admitted that when he was on medical leave instead of resting at home he went to places such as police station, insurance company and workshop to sort out matters relating to his vehicle which was damage during the accident. (para 52)

aa)

The DI was conducted properly,legally and fairly and the unanimous finding of the panel of the DI ought to be upheld by the Court. (para 63)

ab)

The hand written not entitled “ special comment” was not challenged by the Claimant during the hearing. Therefore he is barred from raising this issue in his submission. (para 9 of the Reply)

ac)

The charges preferred against the Claimant were communicated and made known to him in the clearest manner together with all the necessary details and particulars. (para 10 of the Reply)

ad)

In respect of the Third Charge, since the instruction to monitor Asmar was given directly to the Claimant by COW2 (the COW2), then the Claimant had the sole responsibility to carry out this duty. He cannot blame others for his failure in carrying this duty. (para 16 of the Reply)

16

ae)

The Company's Witnesses have adduced evidence to support the charges preferred against the Claimant on the balance of probabilities. (para 18 of the Reply)

The submission of the Claimant

[14]

The Claimant filed his submission on 04.11.2013. The submission is not

paginated. I have paginated it. It is now has page1 to page 11. The points raised by the Claimant in his submission inter alia as follows:

a)

The four charges were the charges framed against the Claimant for which he was dismissed by the Company.[page 2 para 2(i)]

b)

The DI that was conducted by the Company on or about 13.12.2009 prior to the termination of the service of the Claimant was defective, invalid and not in accord to good industrial practice because the panel was not impartial. [page 2 para 2(i)]

c)

Since the DI was defective, the Company has to produce evidence to justify the termination of the service of the Claimant. [page 3 para 2(i)]

d)

COW1 was the superior of the Claimant. The presence of COW1 during the DI rendered the proceedings to a smack of bias and impartial. [para 2(i) at page 3]

17

e)

There was no DI conducted specifically for the Claimant. What actually was set up by the Company was a general inquiry to investigate the involvement of its staff in the alleged theft of CPO in the Company. [para 2(i) at page 3]

f)

The Claimant did not admit that he had admitted to the charges at the so called DI. His evidence was corroborated by COW3 who said that he could remember that the Claimant never admitted to any wrong doing as stated in the charges. [para 2(i) at page 3]

g)

The Charges are invalid and should not be used in the inquiry. The special comment made by COW2 on page 71A of the inquiry report (COB pages 70- 71A) made it worse because the comment was never minuted and approved by the Panel. [para 2(i) at page 3]

h)

There was no actual minutes of the so called DI given to the Claimant. Even if there was one, it was not accurate. [para 2(i) at page 4]

i)

The charges are vague and lacking in particulars in relation to the Claimant's contract of employment with the Company as the Head of Security. [para 2(ii) at page 4]

j)

The First Charge has the words “socializing beyond normal bounds”. It would be impossible to have “a legal yardstick or limit” as to what amount

18

to these words. It is nothing in the charge which relates the Claimant with his contract of employment or with any manual or regulations of the Company which prohibit socializing. [para 2(ii) at page 4]

k)

The Second Charge has no connection with the Claimant's duty and contract of employment since he met the accident at around 3.30am which is beyond office hours and while he was off duty. [para 2(ii) at page 5]

l)

The alleged acts of Asmar as stated in the Third Charge should not be attributed to the Claimant. COW 1 and COW4 should also be responsible for the alleged acts. The so called instructions of COW2 given to the Claimant were not in writing. It is grossly unfair to the Claimant to answer charges of this nature. [para 2(iii) at page 6]

m)

Pertaining to the Fourth Charge, the Claimant has given his explanation as in his bundle of documents where inter alia he said he went to

Klinik

Wawasan and Klinik Mansor Osir for follow up treatment because the Company's allocation for his medical treatment had finished. [para 2(iv) at page 6]

n)

In his letter dated 05.02.2011 the Claimant states that on 29.11.2009 he got fever while on duty. Because of that he had asked permission to go back early from COW1. She granted the permission and he went home at about 1.10pm. [para 2(iv) at page 7]

19

o)

In the same letter the Claimant admits that he was helping his cousin campaigning as alleged from 5.00pm to 11.30pm on the same date but it is not against the Company's regulations since it was done while he was off duty and not in the Company's premises. [para 2(iv) at page 7]

p)

The Claimant had never feigned illness as the medical certificates were issued to him by the said clinics. It is cruel and against the good practice of employer and employee relationship, to terminate his service just because the certificate was issued by non panel clinic. [para 2(iv) at pages 7 and 8]

q)

COW1 was not the eye witness of the incidents mentioned in the four charges. The evidence of COW2,COW3 and COW4 does not support the charges. [para 3(i) at pages 8 and 9]

r)

COW1 and COW4 must be partly blamed for whatever acts allegedly committed by Asmar. [para 3(i) at page 9]

s)

The Claimant was made the scape goat by the Company so that they had explanation and answer to the top management of the Company especially in Kuala Lumpur in respect of the alleged theft of CPO in the Company premises. [para 3(i) at page 9]

20

Evalution And Findings

[15]

COB pages 73-75, 81-86,90-94 and 99 to 105 are the notes of the Domestic

Inquiry which the Company claimed was held on 13.12.2008. From the notes I found the facts as follow:

[16]

a)

at pages 73-75 the date below the signature is 15.12.08.

b)

at pages 82-86 the date below the signature is 18.12.2008.

c)

no date below the signature at pages 90-94.

d)

at pages 99-105 the date on the right of the signature is 13.12.2008.

The dates indicate the DI was conducted on three different dates that is on

13.12.2008, 15.12.2008 and 18.12.2008 but COB pages 70 to 71A show that the DI was held on 13.12.2008. There is no explanation from the Company.

[17]

From the notes, I also found indications as follows:

a)

the evidence recorded at COB pages 99-105 was given by the Claimant on 13.12.2008.

b)

the evidence recorded at COB pages 73-75 was given by Norazman on 15.12.2008.

c)

the evidence recorded at COB page 82 was given by Azlan on 18.12.2008

d)

the evidence recorded at COB page 83 was given by Suhaili on 18.12.2008. 21

e)

the evidence recorded at COB pages 84-85 was given by Bajuri on 18.12.2008.

f)

the evidence recorded at COB page 86 was given by Ibrahim Api on 18.12.2008.

[18]

According to COB page 70 Norazman, Azlan, Suhaili, Bajuri and Ibrahim Api are

amongst the guards who were interviewed on 13.12.2008. Since there is no date stated beside the signatures at COB pages 90-94, I conclude that the Claimant gave evidence at the DI earlier than Norazman, Azlan, Suhaili, Bajuri and Ibrahim Api. Normally the Claimant will give evidence after all the Company's witnesses have given their evidence. There is no explanation from the Company as to this strange procedure.

[19]

COB pages 70-71A contain the finding of the Panel of the DI. Para 3 (ii) at page

70A COB reads “Azlan Mohd Sahipol Mulok, claimed that Asmar always go out with Ottoh. He also claimed that Ottoh did no do anything if Asmar was late but Ottoh did take up with other security guards who are late”. The evidence of Azlan Mohd Sahipol Mulok that was recorded at the DI was not produced during the trial and again there is no explanation from the Company.

[20]

Para 3(iii) at page 70A COB reads “Norazman claimed that he on 21 th Nov, he saw

both Ottoh and Asmar together with CPO receiving operators (Taufik, Adnan, Mohd Noor & Mohd Azmi) having drinks at one of the shops at SPA. Norazman also said Ottoh and Asmar are known to go out often, 2 to 3 times per week”. This evidence of Norazman is not stated in COB pages 73-75. There is no explanation from the Company as well.

22

[21]

COW1 in her evidence says she was only the jotter during the DI but according to

COB page 70

she is one of the Panel Members of the DI and again there is no

clarification nor explanation from the Company.

[22]

According to COB page 70, the other witnesses for the DI other than mentioned

above are Hashim Titing and Abdul Rahim Matayang but their evidence that was recorded at the DI was not produced in Court and again there is no explanation from the Company.

[23]

SBOD pages1-12 are not relevant to the present case because they are evidence

recorded at the DI conducted for Aslan bin Ahad and Norazman on 29.12.2008.

[24]

Based on para 15 to 22 of this Award, I hold that there was breach of natural

justice had been committed during the DI and I don't believe the finding as well as the evidence. Since I am not bound by the finding of the Panel Members of DI, I rehear the case de novo.

[25]

The Company's evidence inter alia is as follows:

a)

COW1 in answer (ii) to Q3 of WSCOW1 says inter alia “In November 2008, Ottoh had even made a number of very serious mistakes. He had, in breach of the company's safety regulations,allowed a number of contract workers to enter and work in the plant without wearing the proper safety attire and tools. Further he had also left open the gate adjacent to the neighbouring plants without the permission of the General Manager.” 23

b)

COW1 in answer (ii) to Q4 of WSCOW1, states inter alia “Firstly he had been seen socializing beyond normal boundary including consuming alcohol with an employee of the company by the name of Asmar Bin Ulag (“Asmar”), a subordinate of Ottoh in many occasions, despite after having been instructed by the COW2 specifically to keep an eye on Asmar because the COW2 had received many reports about Asmar being involved in petty thefts, getting drunk during work and not performing patrols at night”.

c)

COW1 in answer (iii) to Q4 of WSCOW1 testifies “Secondly, Ottoh had on 30.11.2008 at around 3.30am, driven a vehicle under the influence of alcohol together with his subordinates, namely Asmar and Norazman Jual Mahani (“Norazman”) which resulted in a serious accident. This behaviour is unbecoming of the Head of Security and had tarnished the image of the company. It had further compromised his superiority and credibility before his subordinates and this had affected his effectiveness in controlling his subordinates.”

d)

COW1 in answer (iv)to Q4 of WSCOW1 says “Thirdly, Ottoh had formed a very close personal relationship with Asmar which had resulted in ineffective supervision over Asmar, despite being informed by the management to keep an eye on Asmar. Ottoh also practiced favouritism over Asmar against other subordinates, hence, creating among the other subordinates......” 24

dissatisfaction

e)

COW1 in answer (v) to Q4 of WSCOW1 states “ Fourthly Ottoh had feigned illness to avoid work from 1.12.2008 to 6.12.2008 by getting medical chits from 4 different non-panel clinics, against the regulations of the company, in order to carry out his personal affairs”.

f)

COW1 in answer to her CE Q69 states “We have come to the conclusion due to the investigation on the few security in the group that Ottoh and Asmar had gone out frequently for drinks. From the statement they also said Ottoh could not control Asmar allowing him going out without gate pass. There is a statement where Ottoh supposed to monitor Asmar at the front gate. Another statement showed Ottoh pilih kasih.”

g)

COW1 in answer to her CE Q127 says “ The First Charge he socialized with Asmar between 5.00 to midnight where he had the accident. He also explained and described the few cases he went to before the accident. This also covers Charge 2 and also Charge 3 as in page 99-100. The place that he went to before the accident page 103-104. He confirmed Asmar bad behaviour and GM instruction to look over Asmar”.

h)

COW2 in answer to his EIC Q8 says “These 4 charges preferred against Ottoh, the due process of DI concluded that he was guilty of all 4 charges and the panel made their decision that he was not fit for the job. Thus on the strength of the conclusion arrived at by the panel and further with the absence of sufficient mitigating factors, I left with no choice other than to 25

terminate the services of Ottoh Potong”.

i)

COW2 in answer to his Second Re-examination Q1 states “In rare cases such as live threatening cases where the nearest is non panel doctor we would allow the discretion. However this leeway is actually meant for those who are out station provided they inform the officer or the supervisor. This has been our practice”.

[26]

The Claimant's evidence inter alia is as follows:

a)

Q38 of WSCLW1 reads “Secara ringkasnya, bolehkah Encik Ottoh terangkan kepada mahkamah yang mulia ini, apakah sebabnya Encik Ottoh diberhentikan oleh IOI Edible Oils Sdn Bhd pada 6.1.2009” and to this question, the Claimant's answer is “Menurut kenyataan Puan Syerene, saya diberhentikan oleh kerana kes kecuaian yang menyebabkan seorang pengawal Asmar Bin Ulag didapati terlibat dalam kes curi minyak sedangkan pada masa tersebut saya tidak bertugas”.

b)

Q58 of WSCLW1 reads “Sejauh pengetahuan Encik Ottoh, selepas diberhentikan kerja, adakah pekerja atau sesiapa pun di IOI Edible Oils Sdn. Bhd. ini disabitkan atas kesalahan jenayah dan didakwa di mahkamah?” to this question, the Claimant's answer is “ Tidak ada”.

c)

Q11 of the Cross-examination of the Claimant reads “Semasa bekerja bersama dengan Asmar di IOI kamu berdua akan keluar minum dan makan 26

sekurang-kurangnya 2 kali seminggu betul?” to this question,

the

Claimant's answer is “ tidak”.

d)

Q9 of the Re-examination of the Claimant reads “Q19 p/balas jawapan kamu adalah betul dan Q20 p/balas jawapan kamu adalah dapat cuti sakit. Boleh terangkan kemalangan itu” to this question the Claimant's answer is “Kemalangan itu berpunca daripada saya semasa memandu saya terlelap menyebabkan berlaku kemalangan. Selepas siasatan polis dibuat dan polis mengarahkan saya membuat pemeriksaan di hospital dan saya diberi cuti sakit sehari. Kemudian pada esoknya keadaan badan,tangan dan leher saya masih bengkak dan sakit. Selepas itu saya telah dibawa oleh adik saya membuat pemeriksaan di Klinik Mansor Lo dan daripada pemeriksaan keadaan saya belum pulih sepenuhnya, adik ipar saya yang bekerja di SESB telah menawarkan saya membuat pemeriksaan susulan sehingga saya benar-benar pulih”.

[27]

The admissions made by COW1 in her evidence are as follows: a)

there was no rule or regulation issued by the Company that prohibits socialising beyond normal boundary. (Answer to her CE Q52A).

b)

agreed that it is not against any rule and regulation for colleagues to socialize during off duty. (Answer to her CE Q62)

c)

agreed that the alleged consuming of alcohol with Asmar Ulag by the Claimant is a normal behaviour. (Answer to her CE Q64)

d)

there was no eye witness for the act of the Claimant consuming alcohol together with Asmar. (Answer to her CE Q65) 27

[28]

There was also no evidence that the act of the Claimant socializing beyond

normal boundary with Asmar made him unable to supervise Asmar effectively.

[29]

Based on para 27 and 28 above I find the Company has failed to establish the

First Charge.

[30]

In answer to her CE Q68 which reads “ My instruction is 3.30am was off duty. The

vehicle does not belong to the Company, he suffered an accident . I put to you my instruction that there is no wrong committed by the Claimant” COW1 says “true”.

[31]

For the Second Charge, there is no evidence that the Claimant was driving the

vehicle under the influence of liquor. The Claimant admitted that he took beer before driving the vehicle and he met the accident because he fell asleep while driving. Due to the facts as stated in para 30 and 31 above, I hold that the Company also has failed to prove the charge.

[32]

With regard to the Third Charge, there is no evidence that the Claimant's

personal relationship with Asmar had resulted in ineffective supervision over this person. Besides that there is also no evidence of the misconduct of Asmar as listed in the charge. As such the Company has failed to prove the charge.

[33]

Pertaining to the Forth Charge, the Claimant admitted that he visited Sandakan

Hospital, Klinik Mansor, Klinik Khoo, Klinik Liu and Klinik Wawasan. Amongst these clinics only two of them are non-panel clinics of the Company that is Klinik Mansor and 28

Klinik Wawasan. But the charge states “visiting three different non-panel clinics”. Based on this evidence alone the Company has failed to establish the charge.

[34]

The Company never claim that the medical certificates obtained by the Claimant

are forged documents or was issued by unauthorized persons. Because of that how could the Company alleged that the Claimant feigned illness. Further more there is no evidence that the Claimant who was on medical leave was campaigning for UMNO, taking his report from the police station, repairing his car and making insurance claim. Because of that it is quite clear that the Company has failed to prove the Fourth Charge.

[35]

During the trial the Company tendered 4 memorandums addressed to it workers.

It has become the Company's evidence and marked as “CO Ext1-Ext4”. According to these exhibits, visiting non-panel clinic is not a misconduct. The memorandums only stress that if you visit non-panel clinic, you are not eligible for reimbursement.

[36]

With regard to the charges I find they are bad in law for reason as follows:

a)

the First Charge is too rigid because the Claimant is not allowed even to have drink together with subordinates. Besides that it does not state the date, time and place of the incident.

b)

the Second Charge is too draconian because driving a vehicle under the influence of liquor which resulted in serious accident while off duty is a misconduct.

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c)

the Third Charge is also draconian because the Claimant is responsible for any offence committed by Asmar at any time and at any place.

d)

the Fourth Charge is incomprehensible. How can the Claimant be alleged to feign illness just because he visited non-panel clinics. I can understand if he visited bomoh.

[37]

In the present case the reasons chosen by the Company to dismiss the

Claimant are stated in the charges as produced at page 7 of this Award. Based on the forgoing reasons, I find the reasons have not been made out.

Conclusion

[38]

In conclusion, taking into consideration the totality of the evidence adduced by the

Claimant and the Company, and bearing in mind section 30(5) of Act to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form,I hold that the dismissal of the Claimant is without just cause and excuse. As such the Claimant's claim is allowed.

[39]

In considering backwages and relief for the Claimant I have to consider factors

which are listed in the Second Schedule of the Act. Since there is no evidence of postdismissal earnings and contributory misconduct of the Claimant, no deduction under factors 3 and 4 will be made to the backwages granted to the Claimant.

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[40]

How much was the last drawn salary of the Claimant before his dismissal?. The

Claimant said RM1,900.00 – RM2,300.00 plus overtime (Answer to Q33 of WSCLW1). The Company challenged this evidence but it did not provide evidence of the actual last drawn salary of the Claimant according to its record. On the other hand the Claimant did not inform the Court how much was his overtime per month. Because of that I conclude that the last drawn salary of the Claimant before his dismissal was RM1,900.00 per month.

[41]

How long did the Claimant work with the Company? The Claimant stated he

worked with the Company for 11 years. The Company also challenged this evidence but once again did not provide evidence of the period of the Claimant was in its employment. However the Company does not deny in its Statement in Reply that the Claimant worked for almost 11 years (para 13 Statement in Reply).

Because of that I hold that the

Claimant worked with the Company for 11 years.

[42]

The Claimant was born on 16.09.1966. So on the date of this Award he is only 47

years old. Therefore he is eligible for reinstatement or compensation in lieu of reinstatement. I have to ponder which is amongst industrial harmony.

the two reliefs is

good for the

He was dismissed on 06.01.2009 that is 5 years ago. On the

balance of probabilities much water has flown under the bridge within this period. I am of the opinion compensation in lieu of reinstatement is more suitable in the present case. As such I grant him 11 months of his last drawn salary as compensation in lieu of reinstatement.

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Final Order

[43]

I hereby order as follows: a)

The Company shall pay the Claimant back wages from the date of dismissal (06.01.2009) to the last date of hearing (12.03.2013) to a maximum of 24 months ie RM1,900.00 x 24 = RM45,600.00.

b)

The Company shall also pay the Claimant compensation in lieu of reinstatement ie RM1,900.00 x 11 = RM20,900.00

c)

The above payments (less statutory deduction) shall be paid within one month from the date of this Award to the Claimant through his Counsel.

HANDED DOWN AND DATED THIS 27 DAY OF AUGUST 2014.

t.t. (HAJI YUSOB BIN MD TASIR) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA AT KUALA LUMPUR

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