INDUSTRIAL COURT OF MALAYSIA

CASE NO: 11(22)(11)/4-1001/13

BETWEEN

SUMAN A/L PANEER SELVAM

AND

MARTIN-BROWER MALAYSIA CO. SDN. BHD

AWARD NO: 1087 OF 2019

BEFORE : YA DATO’ MOHD DUSUKI BIN MOKHTAR -

CHAIRMAN

VENUE : Industrial Court, Kuala Lumpur

DATE OF REFERENCE : 02.04.2013

DATES OF MENTION : 25.06.2013, 26.07.2013, 02.09.2013, 01.10.2013

21.10.2013, 13.11.2013, 17.12.2013, 29.01.2014
03.03.2014, 13.10.2014, 29.10.2014, 17.11.2014
22.11.2016, 23.07.2018, 15.08.2018, 29.08.2018
06.09.2018, 26.09.2018, 11.10.2018, 18.10.2018
25.10.2018, 01.11.2018, 15.11.2018

DATES OF HEARING : 12.04.2016, 28.06.2016, 03.08.2017, 11.01.2018

07.06.2018

DATES OF EARLY : 04.02.014

EVALUATION

REPRESENTATIONS : Mrs. M. Eswary

From Messrs The Law Firm of M. Eswary
Counsel for the Claimant

Ms. S. Sivagami Sivalingam

From Messrs Zaid Ibrahim & Co.
Counsel for the Company

REFERENCE:

This is a reference dated 2nd April 2013 by the Honourable Minister of Human
Resource under Section 20(3) of the Industrial Relation Act 1967 arising out of the
dismissal of Suman A/L Paneer Selvam (hereinafter called “the Claimant”) by
Martin-Brower Malaysia Co. Sdn. Bhd. (hereinafter called “the Company”) which
was received by this Court on 9th May 2013
 AWARD

BACKGROUND FACTS:

[1] The Claimant commenced employment with MacFood Services (Malaysia)

Sdn. Bhd. (“MacFood”) with effect from 3.6.2003. On or about the second or third

quarter of 2012, the Company entered into a Business Transfer Agreement (“BTA”)

with MacFood. This BTA was to effectuate the sale and transfer of the business of

the MacFood carried on in Malaysia as a going concern to the Company.

[2] Pursuant to the BTA, the Claimant was issued a letter entitled “Assurance of

Offer of Continued Employment” dated 8.8.2012. On or about 30.9.2012, the

Company had officially taken over the operations of MacFood. In narrative as the

events unfold prior to the termination of the Claimant’s service with the Company,

the Claimant was issued with a letter dated 5.10.2012 which entitled “Surat Tunjuk

Sebab” (page 18 COB) of the allegation against him that had only just been

discovered. The same letter also informed the Claimant that he was to provide the

Company with a written explanation before 10.00 am on 10.10.2012 as to why

disciplinary action should not be taken against him. Furthermore, the same letter

informed the Claimant that he was suspended with effect from 6.10.2012.

[3] In response to the said letter of “Surat Tunjuk Sebab”, the Claimant offered

his explanation through a letter dated 10.10.2012 (page 19 COB) whereby the

Company contended that the Claimant had admitted to the allegation as contained in

the “Surat Tunjuk Sebab”. The Company then issued a letter entitled “Surat

Penamatan Perkhidmatan” dated 22.10.2012 (page 20 COB) informing the Claimant

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that he was dismissed with immediate effect. In the same letter, the Company stated

that it had taken into account all available evidence against the Claimant and it could

not accept the Claimant’s explanation to the “Surat Tunjuk Sebab” dated 5.10.2012.

It was also stated that the misconduct to which the Claimant had admitted to was in

contravention of Lampiran A Kod 40.1(A) Buku Panduan Pekerja Syarikat MacFood

which states as follows:

“Kegagalan menepati Piawaian Kerja – Kegagalan yang berulang-ulang bagi

menepati piawaian kerja, kerja bermutu rendah yang disebabkan oleh kecuaian
dalam kerja, ketidakcekapan atau ketidaklayakan.”

[4] At the time of the dismissal, the Claimant’s position was a Senior Customer

Service Co-ordinator and his basic salary was RM2,150.00 per month. The Claimant

alleged that his dismissal was without just cause and excuse. The Claimant further

alleged that the warning letters as appeared at pages 6 to 11 COB were not

connected with the “piawaian kerja” (labour standard) as all the letters did not refer to

“piawaian kerja”. As such, it was alleged by the Claimant that there was no repeated

failures to adhere to the labour standard.

The Law and Burden Of Proof:

[5] The function of the Industrial Court under section 20 of the Industrial Relations

Act 1967 was clearly stated in the Federal Court case of Milan Auto Sdn Bhd v.

Wong Seh Yen [1995] 4 CLJ 449, as follows:

“As pointed out by the Court recently in Wong Yuen Hock v. Syarikat Hong
Leong Assurance Sdn Bhd & Anor Appeal [1995] 3 MLJ 344, 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.”
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[6] It is a trite law that the Company bears the burden to prove that the Claimant had

committed the alleged misconducts and that the misconducts warrant the Claimant’s

dismissal. In Ireka Construction Berhad v. Chantiravathan Subramaniam James

[1995] 2 ILR 11 (Award No. 245 of 1995) it was stated as follows:

“It is the basic principle of industrial jurisprudence that in a dismissal case, the
employer must produce convincing evidence that the workman committed that
offence of which the workman is alleged to have been dismissed. The burden of
proof is on the employer to prove that he has just cause or excuse for taking the
decision to impose the disciplinary measure of dismissal upon the employee. The
just cause must be, either a misconduct, negligence or poor performance based
on the case.”

[7] The standard of proof needed to be met by the Company is on a balance of

probabilities which is the civil standard. (See Telekom Malaysia Kawasan Utara v.

Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314). This approach was

reaffirmed in K A Sanduran Nehru Ratnam v. 1-Berhad [2007] 1 CLJ 347 at p. 362

CA.

Issues:

[8] It is clear and undisputed by both parties that a Domestic Inquiry (DI) was not

conducted before the Claimant was dismissed. Firstly, the Company contends that

there was no requirement under the law for a DI to be conducted as the Claimant

had admitted to the said misconduct. Secondly, the Company further submits that in

any event, a failure to conduct a DI is not fatal but a mere irregularity which is

curable during the proceedings before this Honourable Court. The Company cited

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the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. &

Another Appeal [1995] 3 CLJ 344 to support its contention

[9] The argument put forth by the Company has its merit. On the authority of Wong

Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal

(supra) which followed the decision of the Supreme Court in Dreamland

Corporation (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court of Malaysia

[1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39, a defective inquiry or failure to hold a DI is

not a fatality but only an irregularity curable by de novo proceedings before the

Industrial Court. In Dreamland Corporation (M) Sdn. Bhd. v. Choong Chin Sooi

& Industrial Court of Malaysia (supra), SCJ Wan Suleiman (as he then was) stated

as follows:

“(i) The absence of DI or the presence of a defective inquiry is not a fatality but
merely an irregularity, it is open to the employer to justify his action before the
Industrial Court by leading all relevant evidence before it and by having the entire
matter referred before the Court. (ii) Unless the Industrial Court has found that
the dismissal is without just cause or excuse, the Court has no jurisdiction to offer
any relief whatsoever.”

[10] Invariably, the hearing before the Industrial Court itself which indeed provides a

better and impartial forum for the Claimant should be taken as sufficient opportunity

for the Claimant to being heard to satisfy natural justice. Indeed, the Minister’s

reference should be viewed as a hearing de novo by the Court and therefore it

rehears the matter afresh.

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[11] As aforementioned, it is also not disputed that the Company vide its letter

entitled “Surat Penamatan Perkhidmatan” dated 22.10.2012 (page 20 COB) had

dismissed the Claimant as the Company had taken into account all available

evidence and could not accept the Claimant’s explanation to the “Surat Tunjuk

Sebab” dated 5.10.2012 (page 18 COB). The case of Goon Kwee Phoy v. J & P

Coats (M) Bhd [1981] 1 LNS 30; [1981] 2 MLJ 129 is the authority for the

proposition that the Court is restricted in its inquiry into the veracity of the reason

chosen by an employer for the dismissal. Raja Azlan Shah CJ (as His Highness

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 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. [Emphasis
added]

[12] It is the duty of this Court to determine whether the Company on a balance of

probabilities had proven the charge preferred against the Claimant. If the Court

makes a finding of fact that the charge preferred against the Claimant has been

proven, then the Court must determine whether his dismissal was with just cause or

excuse.

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THE COMPANY’S CASE, SUBMISSION AND FINDING OF THE COURT:

[13] The Company called two (2) witnesses to testify in this case. The first witness

is Miss Maureen Tong Fook Poh (COW1) and the second witness for the Company

is Mr Ian Derrick Jeremiah (COW2). Briefly, the Company’s case to prove the

misconduct committed by the Claimant was primarily depended on the admission

made by the Claimant in the followings:

(a) In the “Surat Penjelasan” by the Claimant in response to the “Surat Tunjuk
Sebab” issued by the Company, the Claimant stated that:
“..dengan tersilap saya telah kredit notekan tanpa usul periksa….
Perbuatan yang saya lakukan ini atas kecuaian saya dan saya berjanji bahawa
perbuatan ini tidak mengulangi lagi.”

(b) During cross-examination on the Claimant, he did state the followings:

“Q: Saya cadangkan bahawa sebenarnya anda telah mengaku kepada tuduhan
terhadap anda yang terkandung dalam surat tunjuk sebab bertarikh 5.10.2012
melalui surat penjelasan anda bertarikh 10.10.2012
A: Betul
….
Q: Saya cadangkan bahawa anda tidak memeriksa TT tersebut langsung
sebelum mengeluarkan Credit Note
A: Memang saya tak check
…..
Q: Anda anda setuju dengan saya bahawa anda tidak mematuhi SOP untuk
pemprosesan TT di Syarikat berkenaan dengan TT yang terdapat di ms 15 COB
A: Setuju.”

[14] It is the submission of the Company that the Claimant made a careless mistake

in handling Transfer Ticket or TT and credit notes despite his vast experience

handling the same. The reason given by the Claimant was that he wrongly placed

the unprocessed TT into the tray at the top together where all the TT were already
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processed. The Company submits that the explanation was nothing but an

afterthought where the Claimant’s testimony in this Court did not support his

contention. Moreover, the Company further submits that even if this Court were to

accept the Claimant’s explanation that it was a mistake, the Claimant still cannot

explain as to why he issued the credit notes despite the fact that the TT had no

signatures on it at all.

[15] The process of issuing of a TT was explained by COW1. The Court finds that

the conduct of the Claimant in issuing of the TT was against the established process

as evidenced by COW1. On the same note, it is the case of the Company that the

Claimant had series of warnings in the past (from his time in MacFood) for the

failures to follow the Company’s Standard Operating Procedure (SOP) which can be

gleaned at pages 13-14 of the Company’s Written Submission. The Court is

agreeable with the submission of the Company that these warnings ought to be

considered in determining the misconduct committed by the Claimant.

[16] On the issue of the element as regards “Kegagalan menepati piawaian kerja –

kegagalan yang berulang-ulang bagi menepati piawaian kerja” which had been

submitted by the Claimant that this was not proven by the Company, the Court finds

that the Claimant’s failures to follow the standard or established processes and

procedures at the Company amounted to “kegagalan yang berulang-ulang”. The

Court finds that although the exact misconduct which had been committed by the

Claimant as can be seen at pages 8 to 11 COB were different from each other, the

core issue is still the fact that the Claimant failed to adhere to the established

process and/or work flow.

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THE CLAIMANT’S CASE, SUBMISSION AND FINDING OF THE COURT:

[17] The Claimant was a sole witness in his case and he tendered his written

statement (“CLWS1”). The crux of the Claimant’s case as stated in his evidence and

reflected in his “Surat Penjelasan” dated 10.10.2012 was that his conduct was a

mistake and he promised not to repeat the same. The Claimant made a reference to

Lampiran A Kod 40.1(A) Buku Panduan Syarikat MacFood which was contained in

the Letter of Termination (“Surat Penamatan Perkhidmatan”) dated 22.10.2012

issued by the Company, where it states:

“Kegagalan menepati Piawaian Kerja – Kegagalan yang berulang-ulang bagi

menepati piawaian kerja, kerja bermutu rendah yang disebabkan oleh kecuaian
kerja, ketidakcekapan atau ketidaklayakan”.

[18] In this regards, the Claimant contends that there was no repeated failures to

fulfil the labour standard of the Claimant to enable the Company to terminate the

service of the Claimant. It was also submitted that the warning letters as appeared

at pages 6 to 11 COB did not connect with the labour standard as the said letters did

not refer to the labour standard as claimed by the Company. As such, those letters

should not be considered by this Court. Nonetheless, the Court dismissed this

contention. This argument has no merit as the said warnings formed part of the

repeated failures to fulfil the labour standard.

CONCLUSION:

[19] After taking into account the totality of the evidence adduced by both parties

and bearing in mind section 30(5) of the Industrial Relations Act 1967 to act

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according to equity, good conscience and the substantial merits of the case without

regard to technicalities and legal form, it is the finding of this Court that on a balance

of probabilities the Company had successfully produced cogent and convincing

evidence that the Claimant had committed the misconduct as per charge presented

in the “Surat Tunjuk Sebab”.

[20] The Company had operated within the limits of its management prerogative in

disciplinary matters and there was a genuine and lawful exercise of a power to

discipline and punish the Claimant, for his proven misconduct. Taking into account

the Claimant’s position as well as his years of service, track record and the nature of

the misconduct committed by him, the punishment of dismissal is a fair labour

practice and appropriate in the circumstances.

[21] In addition, the Claimant in this case had been issued with series of warnings by

the Company in the past (from his time in MacFood) for his failures to follow the

Company’s SOP. The Court is agreeable with the submission of the Company that

those warnings should be considered by the Court in determining that the

misconducts of the Claimant warrants the punishment of dismissal. As explained by

COW2, the fact that the Claimant got promoted ought to count against him because

him, being a senior member of the Company, has demonstrated that he is in the

habit of flouting the standard or established process and procedures of the

Company.

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[22] The Court finds that the Claimant’s dismissal was a punishment that would have

been taken by any reasonable employer placed in similar circumstances. The

punishment meted against the Claimant was proportionate to the nature and gravity

of the misconduct committed by him. There was no valid reason for the Company to

have considered a punishment of lesser gravity. Hence, the Court finds that the

Company had discharged its burden of proving that the Claimant was dismissed with

just cause or excuse.

HANDED DOWN AND DATED DAY OF 1ST APRIL 2019

-Signed-

(DATO' MOHD DUSUKI BIN MOKHTAR)

CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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