9/4-2476/20

INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 9/4-2476/20

BETWEEN

NOR ATIKAH BINTI HUSSIEN

AND

USAINS HOLDING SDN. BHD.

AWARD NO. : 2522 OF 2022

Before : Y.A. PUAN SURAIYA BINTI MUSTAFA KAMAL

Chairman (Sitting Alone)

Venue : Industrial Court of Malaysia

Penang

Date of Reference : 07.10.2020

Dates of Mention : 24.11.2020, 08.01.2021, 18.02.2021, 30.03.2021,

20.04.2021, 24.05.2021, 14.06.2021, 02.07.2021,
28.07.2021, 27.08.2021, 20.09.2021, 12.11.2021,
30.11.2021, 05.07.2022, 20.10.2022, 10.11.2022

Dates of Hearing : 07.12.2021, 21.12.2021, 09.02.2022,

11.05.2022, 17.06.2022, 25.08.2022

Representation : Mr. Vijayan Veeriah (Malaysian Trades Union

Congress – MTUC) for the Claimant

Mr. Allen Miranda Emmanuel (Messrs.

Suraiya Arif, Miranda & Tan) for the
Respondent

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AWARD

[1] This is a reference from The Honourable Minister of Human

Resources, Malaysia to the Industrial Court of Malaysia pursuant to

section 20(3) of the Industrial Relations Act 1967 (hereinafter referred

to as “the IRA”) in respect of the dismissal of Nor Atikah binti Hussien

(hereinafter referred to as “the Claimant”) by her employer, Usains

Holding Sdn. Bhd. (hereinafter referred to as “the Company”) effective

9 March 2020.

[2] This Court has considered the following cause papers and

documents in handing down this Award, namely:

(a) the Claimant’s Statement of Case dated 2 February 2021:

(b) the Company’s Statement In Reply dated 23 March 2021;

(c) the Claimant’s Rejoinder dated 28 July 2021;

(d) the Claimant’s witness statement (Nor Atikah binti Hussein)

marked as “CLWS-1”;

(e) the Company’s witness statement (Natra binti Abdul Ghafor)

marked as “COWS-1”;

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(f) the Company’s witness statement (Natra binti Abdul Ghafor)

marked as “COWS-1A”;

(g) the Company’s witness statement (Juriah binti Mohd Amin

Halmi) marked as “COWS-2”;

(h) the Company’s witness statement (Mawarni binti Hussain)

marked as “COWS-3”;

(i) the Company’s witness statement (Khairol Anuar bin Hazir

Mohamed) marked as “COWS-4”;

(j) the Company’s witness statement (Normaliss binti Tahir)

marked as “COWS-5”;

(k) the Company’s witness statement (Normaliss binti Tahir)

marked as “COWS-5(a)”;

(l) the Claimant’s bundle of documents marked as “CLB-1”;

(m) the Claimant’s bundle of documents marked as “CLB-2”;

(n) the Claimant’s supplementary bundle of documents marked

as “CLB-3”;

(o) the Company’s bundle of documents marked as “COB-1”;

(p) the Company’s bundle of documents marked as “COB-2”;

(q) the Company’s bundle of documents marked as “COB-3”;

(r) the Company’s bundle of documents marked as “COB-4”;

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(s) the Company’s bundle of documents marked as “COB-5”;

and

(t) the Company’s bundle of documents marked as “COB-6”.

Brief Facts of the Case

[3] The Company is a private company limited by shares and is wholly

owned by Universiti Sains Malaysia (hereinafter referred to as “USM)”.

The Company has four active subsidiaries and three dormant

subsidiaries.

[4] Pursuant to a letter dated 28 December 2005 (hereinafter referred

to as “the Letter of Appointment”), the Claimant joined the Company

as an Assistant Accountant effective 3 January 2006 and received a

monthly basic salary of RM845.00, and was subjected to a three-months

probationary period. The Claimant was confirmed in her employment

with effect from 3 April 2006 vide a letter dated 26 April 2006 (hereinafter

referred to as “the Letter of Confirmation”).

[5] By way of a letter dated 22 January 2020 (hereinafter referred to

as “the Letter of Show Cause”), the Company informed the Claimant

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that she had committed eight acts of misconduct. The Claimant then

replied through a letter dated 29 January 2020 (hereinafter referred to

as “the Reply to the Letter of Show Cause”). The Company proffered

two charges against the Claimant and held a Domestic Inquiry on 22

February 2020 (hereinafter referred to as “the Domestic Inquiry”). The

Claimant was suspended from work between 15 February 2020 until 28

February 2020 via a letter dated 14 February 2020 (hereinafter referred

to as “the First Letter of Suspension”) and between 29 February 2020

until 8 March 2020 via a letter dated 24 February 2020 (hereinafter

referred to as “the Second Letter of Suspension”).

[6] By way of a letter dated 6 March 2020 (hereinafter referred to as

“the Letter of Termination”), the Company informed the Claimant that

she was dismissed effective 9 March 2020. The Claimant then appealed

through a letter dated 11 March 2020 (hereinafter referred to as “the

Claimant’s Letter of Appeal”).

The Claimant’s Case

[7] In her Statement of Case, the Claimant states that–

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(a) having regard to the facts that the purported grounds of her

dismissal had occurred in the year 2015 and the Letter of Show

Cause issued on 22 January 2020 but the Company had elected

not to institute any disciplinary action against her, the Company

had thus condoned the said acts of misconduct;

(b) the Company had exercised double standard against her by

imposing a disciplinary action for the same and similar

misconduct committed by the other employees; and

(c) the purported ground of her dismissal had occurred in the

year 2015 but the Company only notified all employees of the

Code of Conduct in the year 2017.

[8] In her Rejoinder, the Claimant states that–

(a) she did not breach the implied and/or express terms and

mutual trust and confidence of her employment with the

Company;

(b) she was not aware that the Company had suffered financial

losses due to her employment with the Company;

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(c) she was unfairly dismissed by the Company and her claim

against the Company was justified;

(d) she was not involved or had attempted to defraud as alleged

the Company;

(e) she was not aware of the Company’s police report against

her and there was no investigation by the police during her

employment with the Company;

(f) the Company had failed to establish any evidence against

her in respect of the allegations made against her;

(g) in respect of the Domestic Inquiry:

(i) the decision of the Board was unfair;

(ii) the Chairman and Panel of the Board did not

recommend the Management to make out the proper
punishment;

(iii) the Company had failed to call one Nor Mimiza binti
Hussein and one Rashid bin Mohd Noor to testify during
the proceeding that they had received the money as
alleged by the Company; and

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(iv) the Chairman and Panel of the Board did not request
the prosecuting officer to produce the witnesses as
stated in the First Charge and the Second Charge.

(h) in respect of the First Charge:

(i) the payment was made under the instructions of the

Head of Department of Workshop Mr. Khairol Anuar bin
Hazir Mohamed; and

(ii) she had included her sister’s name based on the

instructions of Mr. Khairol Anuar bin Hazir Mohamed
and as such, denies that she had attempted fraudulent
transactions as alleged by the Company;

(i) in respect of the Second Charge:

(i) she had complied with the work instructions given by

Mr. Khairol Anuar bin Hazir Mohamed and did not
breach any of the Company’s standard operating
procedure;

(ii) she admitted that she had received the payment due to
her extra work which was carried out after her working
hours; and

(iii) thus, her admission of receiving payment should not

amount to her guilt as concluded by the Company;

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(j) she was fully aware of the Company’s practice and

procedure and was not in breach of any of them; and

(k) on 16 August 2017, she received a memorandum of “Konflik

Kepentingan” from the Group Managing Director.

The Company’s Case

[9] In its Statement In Reply, the Company states that–

(a) at the material time, the Claimant was a long serving

employee of the Company and was attached to the Finance

Department;

(b) the Claimant who was fully conversant with the Company’s

practice and procedure relating to payment had breached the

implied and/or express terms of mutual trust and confidence of

her employment causing the Company to suffer financial losses

thus leaving the Company with no choice but to terminate her

employment; and

(c) despite being fully aware of her wrong doings the Claimant

is feigning ignorance and is “trying her luck” by falsely claiming

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wrongful termination.

[10] The Company avers that the Claimant has not come to this Court

of Equity with clean hands.

[11] On the events leading to the Claimant’s termination of

employment, the Company’s contentions are as follows:

New Management at the Company

(a) on or early 2018, a new Management team took over the

management of the Company;

(b) as part of a regular exercise to strengthen the internal check and

balances, the internal audit department was tasked to check on the

Company’s past activities with emphasis on credit control and payment

procedures;

The Claimant acting in concert with other staff

(c) during the course of the investigations and whilst remedial action

was being taken, it came to light that the Claimant was not acting alone

but was in fact acting in concert with other staff of the Company to

attempt to defraud the Company and enrich themselves;

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(d) as a result of the discovery, the Company’s representative made

a police report on 17 February 2020;

Discovery of the Claimant’s wrongdoings

(e) on or about the middle of year 2018, the Company was made

aware of discrepancies in payments which were made for “Honorarium”

claims;

(f) hence, the Company’s Audit Committee and Senior Management

decided to engage the services of BDO Governance Advisory

(hereinafter referred to as “BDOGA”) to conduct an in-depth review, ie.

Forensic Audit, pertaining to the management of the Company’s

projects and training courses in order to identify, if any, misappropriation

or abuse of the Company’s resources for personal gain or interest;

The Letter of Show Cause

(g) the Forensic Audit and the internal investigation conducted by the

Company’s management team revealed that the Claimant had

committed several acts of misconduct and breach of trust;

(h) hence, the Letter of Show Cause dated 22 January 2020 was

issued on the Claimant stating eight acts of misconduct against her;

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The Reply Letter of Show Cause

(i) on 29 January 2020, the Claimant filed the Reply to the Letter of

Show Cause;

Further investigation by the Company

(j) upon examination of the Claimant’s Reply to the Letter of Show

Cause, the Company proceeded to conduct further investigation and

found that the Claimant had acted in breach of the terms and conditions

of the “Staff Handbook on Terms and Conditions of Service”, in

particular, clause 3 of “Code of Conduct”;

(k) as such, the Company decided to proceed on Charge 2 and

Charge 6 as stated in the Letter of Show Cause against the Claimant

and she was then suspended from work between 15 February 2020 until

28 February 2020 vide the First Letter of Suspension;

The Domestic Inquiry

(l) on 22 February 2020, the Domestic Inquiry was held and the

Claimant was further suspended from work between 29 February 2020

until 8 March 2020 vide the Second Letter of Suspension with full pay;

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The Recommendations of Panel of the Domestic Inquiry

(m) the Board of Panel of the Domestic Inquiry had deliberated on the

facts evidence adduced at the Domestic Inquiry and was of the view

that the Claimant was guilty of the two Charges proffered against her

and recommended the Management to mete out the proper

punishment;

The Company’s decision and the Claimant’s Appeal

(n) in view of the seriousness of the misconduct committed by the

Claimant, the Company could no longer repose any further trust and

confidence in the Claimant and the services of the Claimant was

accordingly terminated effective 9 March 2020 vide the Letter of

Termination dated 6 March 2020; and

(o) the Company was unable to entertain the Claimant’s Letter of

Appeal dated 11 March 2020.

The Law

Role and Function of the Industrial Court

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[12] Reference is made to the decision of the Federal Court in Goon

Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129 at page 136 where

His Lordship Raja Azlan Shah, CJ (Malaya) (as His Royal Highness then

was) opined that –

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 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.

[13] In Milan Auto Sdn Bhd v. Wong She Yen [1995] 4 CLJ 449, His

Lordship Mohd Azmi bin Kamaruddin, FCJ explained the role of the

Industrial Court under section 20 of the IRA as follows–

As pointed out by this court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ
344; [1995] 2 MLJ 753, the function of the Industrial Court is
dismissal cases on a reference under s.20 is two-fold firstly, to
determine whether the misconduct complained of by the employer
has been established, and secondly whether the proven misconduct

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constitutes just cause or excuse for the dismissal. Failure to

determine these issues on the merits would be a jurisdictional error.
…

Burden of Proof

[14] When a company had caused the dismissal of any of its

employee, it is incumbent on the company to discharge the burden of

proof that the termination was with just cause or excuse by producing

convincing evidence (see judgment of the Federal Court in Goon Kwee

Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 135).

Standard of Proof

[15] The onus or burden of proof on the company is based on a

standard of proof on the balance of probabilities as laid down by the

Court of Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty

Sanguni Nair & Anor [2002] 3 CLJ 314 wherein His Lordship Abdul

Hamid Mohamad, JCA opined:

Thus, we can see that the preponderant view is that the Industrial
Court, when hearing a claim of unjust dismissal, even where the
ground is one of dishonest act, including “theft”, is not required to

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be satisfied beyond reasonable doubt that the employee has

“committed the offence”, as in a criminal prosecution. On the other
hand, we see that the courts and learned authors have used such
terms as “solid and sensible grounds”, “sufficient to measure up to
a preponderance of the evidence”, “whether a case … has been
made out”, “on the balance of probabilities” and “evidence of
probative value”. In our view the passage quoted from
Administrative Law by H.W.R. Wade & C.F. Forsyth offers the
clearest statement on the standard of proof required, that is civil
standard based on the balance of probabilities, which is flexible, so
that the degree of probability required is proportionate to the nature
of gravity of the issue. But again, if we may add, these are not
“passwords” that the failure to use them or if some other words are
used, the decision is automatically rendered bad in law.

Issues

[16] It follows therefore that the issues to be determined in this case

are as follows:

(a) whether the Claimant was dismissed effective 9 March 2020;

and

(b) whether the Claimant was dismissed with just cause or excuse

effective 9 March 2020.

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Evaluation of Evidence and Findings of the Court

(a) Whether the Claimant was dismissed effective 9 March 2020

[17] Pursuant to the Letter of Termination, the Claimant was informed

by the Company that she was dismissed effective 9 March 2020. The

relevant paragraphs of the Letter of Termination are re-produced

herewith as follows:

6 Mac 2020

Kepada : Puan Nor Atikah binti Hussien

Jawatan : Pembantu Kanan
Jabatan : Kewangan & Akaun
Syarikat : Usains Holding Sdn Bhd

Puan Nor Atikah,

KEPUTUSAN SIASATAN DALAMAN

Merujuk kepada Laporan Audit Forensik bertarikh 6 Ogos 2019,

Notis Siasatan Dalaman No. Rujukan: UHSB/PEN/HR/20/024
bertarikh 14 Februari 2020 dan sesi Siasatan Dalaman yang
diadakan pada 22 Februari 2020 dan perkara di atas adalah
berkaitan.

Dimaklumkan bahawa pihak pengurusan syarikat telah memeriksa

laporan siasatan, dokumen-dokumen berkaitan penemuan panel
siasatan dalaman bahawa pertuduhan terhadap anda telah
dibuktikan dalam sesi siasatan dalaman tersebut.

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Dari siasatan dalaman yang diadakan, pihak pengurusan

mendapati bahawa anda didapati bersalah oleh panel siasatan
dalaman untuk pertuduhan nombor satu (1) dan dua (2). Di
penghujung siasatan dalaman tersebut, telah terbukti tanpa
keraguan bahawa anda memang telah melakukan perbuatan
salahlaku seperti pertuduhan.

Oleh kerana tuduhan-tuduhan yang dibuktikan terhadap anda

adalah sangat serius, pihak pengurusan syarikat tiada mempunyai
pilihan lain tetapi terpaksa menamatkan perkhidmatan anda
berkuatkuasa 9 Mac 2020. Gaji anda akan dikreditkan ke dalam
akaun bank anda dalam tempoh tujuh (7) hari selepas penamatan
dan semua barangan hak milik anda yang terdapat di pejabat
syarikat akan dihantar kepada anda dalam tempoh tujuh (7) hari
bekerja dari surat ini dikeluarkan.

Sekian, harap maklum.

Yang benar,
USAINS HOLDING SDN BHD

FARID WAJIDI MAT YUSOFF

Pengarah Urusan Kumpulan

[18] In CLWS-1, the Claimant does not dispute the fact that she had

been dismissed by the Company effective 9 March 2020 by way of the

Letter of Termination.

[19] Hence, this Court is satisfied and finds that there was termination

of the Claimant’s services by the Company.

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(c) Whether the Claimant was dismissed with just cause or excuse

effective 9 March 2020

[20] The two charges proffered against the Claimant which were

Charge 2 and Charge 6 as stated in the Letter of Show Cause read as

follows:

First Charge

Pada 15.5.2015 jam lebih kurang 11.18 pagi anda telah

menerima sejumlah wang bernilai RM2,000.00 melalui akaun
CIMB Investment Bank Berhad bernombor 07140129488528
di atas pemilik akaun bernama Nor Mimiza binti Hussien.
Kejadian ini berlaku semasa anda bertugas sebagai Eksekutif
Akaun (S5) di Jabatan Kewangan & Akaun di Usains Holding
Sdn Bhd. Pembayaran berkenaan direkodkan di bawah Projek
kod K872 Program Pra Sekolah di bawah kelolaan USM, Pulau
Pinang.

Second Charge

Pada 15.7.2015 jam lebih kurang 8.49 pagi anda telah

menerima sejumlah wang bernilai RM3,250.00 melalui akaun
Malayan Banking Berhad bernombor 157054648881 di atas
pemilik akaun bernama Rashid bin Mohd Noor. Kejadian ini
berlaku semasa anda bertugas sebagai Eksekutif Akaun (S5)

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di Jabatan Kewangan & Akaun di Usains Holding Sdn Bhd.

Pembayaran berkenaan direkodkan di bawah Projek kod C215
Program LOA & Asia Development di bawah kelolaan USM,
Pulau Pinang.

First Charge

[21] In the Company’s Statement In Reply, details of the Claimant’s

acts of misconduct with regard to the First Charge are stated, inter alia,

as follows:

(a) manipulating the Company’s “bulk payment” system to

include names of persons and/or company which should not be

included; and/or

(b) failure to adhere to the Company’s processes which were in

place in relation to payment;

(c) inserting her sister by the name of Nor Mimiza in the “bulk

payment” system; and/or

(d) signing at the “Checked By” column of the Company’s “Bulk

Payments” payment voucher knowing fully well that her sister Nor

Mimiza was included in the payment, contrary to the Company’s

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practice and procedure; and

(e) inserting her sister Nor Mimiza’s account CIMB Investment

Bank Berhad number 07140129488528 as a person to receive a

sum of RM2,000.00.

[22] In COWS-5, the Company’s Senior Supervisor of the Human

Resource and Administration Department Puan Normaliss binti Tahir

(hereinafter referred to as “COW5”) states that there was an attempt to

make payment for the sum of RM2,000.00 to the Claimant’s sister Puan

Nor Mimiza binti Hussien (hereinafter referred to as “Nor Mimiza)”

through CIMB Investment Bank account number 07140129488528

(see: page 168 of COB-2) for “Program Pra Sekolah” under code K872

(see: page 163 of COB-2). According to COW5, this transaction was

part of “Bulk Payments” comprising of 50 transactions and the Claimant

was charged for her involvement in the said transaction based on her

position as an Assistant Accountant in the Company at that material time

where she was responsible for, amongst other, honorarium payment

and payments made to suppliers (see: page 62 of COB-1). COW5

further states that based on the Claimant’s name which appeared as the

“Maker User ID” she had checked the amount which was to be paid to

Nor Mimiza and sent it for approval (see: pages 163 and 164 of COB-

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1). According to COW5, the Claimant had testified at the Domestic

Inquiry that she was aware of Nor Mimiza’s name in the list when the

checking was carried out by her. This fact was confirmed by the

Claimant during cross-examination which is now reproduced herewith

as follows:

S17: Semasa Domestic Inquiry, Puan telah menyatakan bahawa

Puan sedar atau aware bahawa nama kakak Puan adalah
dalam senarai semasa Puan check. Setuju?
J17: Setuju.

S18: Rujuk COB-2, muka surat 149 dan rujuk silang COB-2, muka
surat 167. Di muka surat 149, “Panel (2): Page 5, Lampiran
3, masa Atikah sign, are you aware nama kakak ada dalam
senarai?. Atikah: Tak aware. Panel (1): Kalau tak aware, apa
yg di’check’? Atikah: Check nama & semua detail. Okey,
saya aware.”. Jadi, Puan sahkan pada masa Domestic
Inquiry bahawa Puan sedar atau aware nama kakak Puan
ada dalam senarai?
J18: Ya.

During cross examination, the Claimant confirmed that Nor Mimiza is in

fact her sister having the said CIMB Bank account. The relevant

paragraphs during her cross-examination are reproduced herewith as

follows:

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S12: Rujuk COB-2, muka surat 134 hingga 136 dan rujuk silang
COB-2, muka surat 168. Pada muka surat 134, Pertuduhan
Pertama, perenggan pertama, baris ke-7 “Pada 15.5.2015
jam …” dan pada muka surat 168, transaction details 26.
Nama Nor Mimiza adalah nama kakak Puan.
J12: Ya.

S13: Ini adalah emel kakak Puan?

J13: Ya, betul.

S14: Nama bank iaitu CIMB dan nombor yang tercatat

merupakan nama dan nombor akaun kakak Puan?
J14: Ya.

[23] COW5 further states that, however, such payment to Nor Mimiza

was subsequently removed together with other transactions (see: pages

168 to 169 of COB-2) and hence, the Claimant had attempted to defraud

the Company.

[24] Based on these oral and documentary evidence, this Court is

satisfied and thus finds that with regard to the First Charge the Company

had merely proven that there was an attempt by the Claimant to defraud

the Company.

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Second Charge

[25] In the Company’s Statement In Reply, details of the Claimant’s

acts of misconduct with regard to the Second Charge are stated, inter

alia, as follows:

(a) manipulating the Company’s “bulk payment” system to

include names of persons and/or company which should not be

included; and/or

(b) failure to adhere to the Company’s processes which were in

place in relation to payment; and/or

(c) “processing” for payment, the invoice from the Company

“Iyris Global” invoice number 150411/15A for 10 pieces of

pewter. There is no record that these pewters were actually

received by the Company or by any recipients; and

(d) manipulating the Company’s “bulk payment” system to

change the email notification from “iyrisglobal” to the Claimant’s

own email address, contrary to the Company’s practice and

procedure;

(e) inserting the NRIC number of Rashid Mohd Noor;

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(f) failure to obtain the “online payment form, completed by

Vendor”; and/or

(g) processing payment to iyrisglobal when the company, ie.

Iyris Global, was not registered when the invoice and/or when the

payment was made; and/or

(h) acting in concert with Asyikin to manipulate the payment

system.

[26] In the Reply to the Letter of Show Cause, the Claimant admitted

that she had received the sum of RM500.00 as payment for work done

outside her working hours and returned the balance sum to the person-

in-charge.

[27] In COWS-5, COW5 states that the Claimant had made payment

of RM3,250.00 to one Encik Rashid bin Mohd Noor (hereinafter referred

to as “Rashid”) through a Maybank account number 157054648881

(see: page 181 of COB-2) for an invoice from Iyris Global dated 10 April

2015 for the purchase of 10 pieces of pewter for sum of RM3,250.00

(see: page 180 of COB-2). However, the Company has no record for

the said purchase of 10 pieces of pewter as there was no delivery order

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nor proof of acknowledgement receipt. According to COW5, the

Claimant was charged for the said purchase of 10 pieces of pewter as

her email address of atikah@usainsgroup.com was stated as the

notification email for Vendor Number I-R068 under Rashid’s name as

appeared in the A/P Vendor system (see: page 193 of COB-2) and

details of the said information were entered on 14 July 2015 based on

the “Start Date” in the system whereas payment for the sum of

RM3,250.00 to Rashid was made on 15 July 2015.

[28] COW5 further states that Iyris Global’s name under Vendor

Number V-1031 also appeared in the A/P Vendor system and the email

address of iyrisglobal@gmail.com was stated as the notification email

(see: page 189 of COB-2). Based on the “Start Date” in the system,

details of the said information were entered on 1 September 2015.

Hence, according to COW5, the payment of RM3,250.00 which was

made to Rashid on 15 July 2015 took place before Iyris Global’s details

were actually entered into the A/P Vendor system on 1 September 2015.

[29] With regard to the relationship between the Claimant and Rashid,

COW5 states in COWS-5 that the Claimant and Rashid may be related

based on a Facebook information (see: pages 202 to 209 of COB-3).

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During cross examination, the Claimant confirmed that Rashid is in fact

her brother-in-law, ie. husband to her sister Nor Mimiza. The relevant

paragraphs during her cross-examination are reproduced herewith as

follows:

S38: Rujuk COB-2, muka surat 135. “Oleh yang demikian,

…Rashid bin Mohd Noor”. Adakah Puan atau mana-mana
ahli keluarga Puan mempunyai tali persaudaraan dengan
Rashid bin Mohd Noor?
J38: Ya.

S39: Apakah tali persaudaraan itu?

J39: Saudara saya.

S39A: Saudara yang macam mana?

J39A: Abang ipar iaitu suami kakak saya bernama Nor Mimiza.

[30] COW5 also states that subsequent transactions would have the

same information unless such information was deliberately changed.

According to COW5, changes in the information can be carried out by

anyone having access to the A/P Vendor system including the Claimant,

and there is no requirement for prior approval before any changes can

be made to the information in the system. During cross examination, the

Claimant confirmed that she in fact had access to the A/P Vendor

system and any staff can make amendments to the system including

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herself. The Claimant also confirmed that atikah@usainsgroup.com

was her official email during her employment with the Company. The

relevant paragraphs during the Claimant’s cross-examination are

reproduced herewith as follows:

S41: Rujuk COB-2, muka surat 133. Jawapan Surat Tunjuk

Sebab bertarikh 29.1.2020. Tandatangan di bahagian
bawah surat ini adalah milik Puan?
J41: Ya.

S42: Rujuk COB-2, muka surat 130 hingga 132. Pertuduhan 6.

Rujuk silang COB-2, muka surat 133. Jawapan 7. “Bagi
pernyataan ke-6, saya …”. Puan sahkan ini jawapan Puan?
J42: Ya.

S43: Rujuk COB-2, muka surat 152. “Chairman minta penjelasan

iaitu …”. Puan sahkan bahawa Puan menjawab “Ya, betul.”
Semasa Domestic Inquiry?
J43: Tak pasti.

S44: Rujuk COB-2, muka surat 189. Semasa Puan bekerja di

Usains, Puan mempunyai akses kepada sistem komputer di
mana Puan boleh masukkan data seperti Vendor Name,
Address dan emel. Setuju?
J44: Setuju, semua boleh.

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S45: Rujuk COB-2, muka surat 193. Puan ada akses di mana
Puan boleh masukkan data seperti Vendor Name, Address
dan emel. Setuju?
J45: Saya key-in document untuk expenses Usains sahaja.
Tetapi dokumen ini melibatkan Education and Training.
Setuju, semua boleh.

S46: Emel atikah@usainsgroup.com merupakan emel Puan?

J46: Ya, emel official.

[31] With regard to Iyris Global, COW5 gives evidence that this sole

proprietorship was established on 10 July 2015 (see: pages 221 of

COB-3) and owned by one Nurul Asyikin binti Abdul Rahim who was a

former employee of the Company (see: pages 69 to 74 of COB-1).

According to COW5, the invoice from Iyris Global for the purchase of 10

pieces of pewter for sum of RM3,250.00 was dated 10 April 2015 and

payment to Rashid was made on 15 July 2015. Hence, such payment

was made three months after the invoice was issued by Iyris Global and

five days after Iyris Global was established. COW5 further states that,

based on the A/P Vendor system, information on Rashid with the email

address of atikah@usainsgroup.com being stated as the notification

email was entered into the system on 14 July 2015 (see: page 235 of

COB-3) and was subsequently amended to Iyris Global’s with the email

address of iyrisglobal@gmail.com being stated as the notification email

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on 1 September 2015 (see: page 233 of COB-3).

[32] Based on these oral and documentary evidence, this Court is

satisfied and thus finds that the Company had proven the Second

Charge against the Claimant.

The Claimant’s 1st Defence

[33] The Claimant gives evidence in CLWS-1 that the dates of the

alleged misconduct in the First Charge and the Second Charge were

stated as 15 May 2015 and 15 July 2015 respectively but the Company

only proffered the said Charges against her after five years had lapsed

when it issued the Letter of Show Cause in 2020. As such, according to

the Claimant, the incidents as stated in the First Charge and the Second

Charge occurred prior to the issuance of the Memorandum entitled

“Konflik Kepentingan” (hereinafter referred to as “the Memorandum”) on

16 August 2017. On this issue, learned counsel for the Claimant referred

to the doctrine of condonations and the case of Azman bin Abdullah v.

Ketua Polis Negara [1997] 1 MLJ 263.

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[34] Nevertheless, this Court agrees with the submissions of the

learned counsel for the Company that the present case can be

distinguished from Azman bin Abdullah wherein the Court of Appeal

decided that–

The issue of condonation in this case stemmed from the fact that
the appellant had on 1 December 1990 applied to retire optionally
on 1 December 1991 and the police department had written to the
Public Services Department on the matter on 26 March 1991
furnishing all the documents and stating in no uncertain terms that
it was confirmed that the appellant was free from any disciplinary
action. The statement that the appellant was free of any disciplinary
action was written on 26 March 1992, and investigations on the
alleged charges had in fact commenced by then. Although at that
point of time there were no disciplinary proceedings taken against
the appellant as yet, the police department was already aware of
the wrongdoings of the appellant which would necessitate
disciplinary action being taken. The delay in taking action must
surely, in these circumstances based on the authorities, be an act
of condonation. Therefore, in view of the doctrine of condonation,
the charge against the appellant could not stand. ...

As in the present case, the Company had no knowledge of the

Claimant’s alleged acts of misconduct in 2015 and had become aware

of it as a result of the information provided by a whistle blower as testified

by the Company’s Head of Department of the Human Resource and

Administration Department Puan Natra binti Abdul Ghafor (hereinafter

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referred to as “COW1”) in COWS-1 and as confirmed by COW5 during

re-examination. Further, it is established facts that the new Management

had taken over the management of the Company somewhere early 2018

during which a regular exercise by the internal audit department was

carried out to check on the Company’s past activities with emphasis on

credit control and payment procedures resulting in a police report being

made by the Company on 17 February 2020 for alleged attempt to

defraud the Company by its employees.

[35] This Court further agrees with the submission of the learned

counsel for the Company that the Company must be aware of the

alleged acts of misconduct in 2015 before the Claimant’s plea of

condonation can be sustained.

The Claimant’s 2nd Defence

[36] On the issue raised by the Claimant that she was acting under

the instructions of the Company’s Head of Department of the Education

and Training Department Mr Khairol Anuar bin Hazir Mohamed

(hereinafter referred to as “COW4”), it is stated in COWS-4 that such

instructions were never given to the Claimant. According to COW4, he

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was only responsible to make confirmations for the submitted claims but

he had no authority to give instructions for payments to be made for

such claims. COW4 also states that payments would only be made

subsequent to complete documents being submitted and specifications

as set out by the Finance and Accounts Department being satisfied. In

his evidence, COW4 consistently denies that he had given any

instructions to the Claimant to make payment to her sister.

[37] During cross-examination, the Claimant confirms that COW4 was

not her Head of Department and that she did not work in the Education

and Training Department but gives evidence that she did receive the

instructions from COW4 to make payment to her sister. The relevant

paragraphs during the Claimant’s cross-examination on this issue are

reproduced herewith as follows:

S22: Sekitar April 2015 hingga Ogos 2015, adakah Puan tidak
bekerja di Bahagian Jabatan Latihan dan Pendidikan.
Setuju?
J22: Setuju.

S23: Pada masa transaksi dalam pertuduhan berlaku sekitar April

2015 hingga Ogos 2015, Encik Khairol bukan HOD Puan.
Setuju?
J23: Setuju.

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S24: Encik Khairol telah memberikan keterangan bahawa beliau

tidak pernah mengarahkan Puan membuat apa-apa
bayaran kepada kakak Puan.
J24: Ya lah.

S25: Encik Khairol telah memberikan keterangan bersumpah

bahawa beliau tak pernah minta Puan buat bayaran kepada
kakak atau adik kerana Atikah bvukan staf Encik Khairol.
J25: Memang bukan dia tapi tandatangan dia untuk saya masuk
ke channel saya, channel akaun. Dia adalah Ketua Jabatan
Education and Training. Apa-apa dokumen kena ada
tandatangan Encik Khairol kerana dia adalah Head. Dia
akan pass kepada AP E and T. Mereka akan check dan key-
in semua dan cop tuntutan tidak melebihi belanjawan.

S25A: Puan bukanlah dalam Jabatan Education and Training.

J25A: Ya.

The Claimant’s 3rd Defence

[38] With regard to the issue raised by the Claimant that the payments

were monies due to her because of the additional works she had done

for the Company, this Court agrees with the submission of the learned

counsel for the Company that such payments should have been made

directly to her and not her sister, Nor Mimiza.

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The Claimant’s 4th Defence

[39] In CLWS-1, the Claimants states that on 16 August 2017 she

received the Memorandum from the Group Managing Director where all

staffs were reminded of clause 3 of the Code of Conduct of the Staff

Handbook on Terms and Conditions of Service (hereinafter referred to

as “clause 3 of the Code of Conduct”) which reads as follows:

3. Devote his career to the Company and not engage directly

or indirectly in any other gainful activities, employment,
business and any dealings that may conflict with his
employment with the Company, even on a part time basis.

According to the Claimant, all staffs were reminded by the Memorandum

that effective 17 August 2017 failure to abide by such Code of Conduct

would result in a serious disciplinary action being taken including

termination of service.

[40] This Court agrees with the submission of the learned counsel for

the Company that the Claimant should be fully aware of clause 3 of the

Code of Conduct as she was a long service employee of 14 years for

the Company. Hence, the issuance of the Memorandum on 17 August

2017 should act as a mere reminder to all staffs, including the Claimant,

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to devote their career to the Company and not be engaged directly or

indirectly in any other gainful activities, employment, business and

dealings that may conflict with their employment with the Company.

[41] In COWS-5(a), COW5 states that the Claimant was aware of the

Staff Handbook on Terms and Conditions of Service (see: pages 9 to

59 of COB-1) way back in 2015 as she had made a claim for dental

treatment on 22 January 2015 (see: page 276 to 277 of COB-6). During

cross-examination, the Claimant was questioned on her entitlement for

dental claim in 2015 of which she admits that she was aware of the

amount of RM500.00 that she was entitled to claim at that material time.

The relevant paragraphs during the Claimant’s cross-examination on

this issue are reproduced herewith as follows:

S67: Rujuk COB-6, muka surat 276. Puan telah membuat

tuntutan perubatan dental pada tarikh 22.1.2015. Setuju?
J67: Setuju.

S68: Puan telah bayar Smile Bay Dental Surgery di mana resit
adalah di COB-6, muka surat 277.
J68: Setuju.

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S69: Rujuk COB-1, muka surat 9 hingga 59. STAFF

HANDBOOK. Di muka surat 37, perenggan terakhir (ii) “Only
staff are eligible for dental treatment up to RM500.00 per
annual.” Apa yang dinyatakan adalah treatment claim up to
RM500.00. Setuju?
J69: Setuju.

S70: Rujuk COB-1, muka surat 9 hingga 59 dan rujuk silang COB-
6, muka surat 277. Resit iaitu jumlah Puan bayar Smile Bay
adalah RM545.00. Puan hanya membuat tuntutan sebanyak
RM500.00. Saya menyatakan Puan hanya menuntut
RM500.00 kerana Puan sedar jumlah tuntutan menerusi
Staff Handbook hanyalah setakat RM500.00 sahaja.
Setuju?
J70: Setuju.

S71: Rujuk COB-1, muka surat 9 hingga 59 dan rujuk silang COB-
6, muka surat 276. Puan sedar mengenai apa yang
terkandung dalam Staff Handbook ini sejak 22.1.2015.
Setuju?
J71: Setuju.

S72: Berdasarkan tuntutan dental Puan yang berlandaskan had

di dalam STAFF HANDBOOK, Puan memang tahu
berkenaannya sebagai di COB-1, muka surat 9 hingga 59.
J72: Memang dah lama tahu.

However, when further cross-examined, the Claimant denies that she

had the knowledge of clause 3 of the Code of Conduct and answered

that she only had the knowledge of her entitlement for dental treatment

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only. The relevant paragraphs during the Claimant’s cross-examination

on this issue are reproduced herewith as follows:

S73: Puan tahu berkenaan Code of Conduct seperti di COB-1,

muka surat 15. Setuju?
J73: Tak tahu. Tak setuju. Tahu dental sahaja.

As such, this Court is satisfied and finds that the Claimant had the

necessary knowledge and was aware of the Company’s Staff Handbook

on Terms and Conditions of Service during her employment with the

Company.

The Claimant’s 5th Defence

[42] On the Claimant’s claim that the Company had practised double

standard when imposing disciplinary action against the Claimant, this

Court refers to COWS-4 wherein COW4 states that the Company had

exercised reasonable evaluation on each of its employees who were

faced with charges of acts of misconduct before punishments were

meted out against them.

[43] In this respect, this Court now refers to the judgment of the

Federal Court in the case of Ranjit Kaur a/p S Gopal Singh v. Hotel

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Excelsior (M) Sdn Bhd [2016] 6 MLJ 1 wherein His Lordship Raus

Sharif, FCJ opined–

[23] All the above are relevant matters which the Industrial Court
had failed to take into consideration. Instead, it took into
consideration other irrelevant matters. A clear example was when it
took into account the fact that the respondent’s action in not taking
action against another employee for a similar misconduct amounted
to a display of double standard. With utmost respect, such
conclusion is a clear error. As rightly pointed out by the learned High
Court judge that such consideration was irrelevant as it was not for
the appellant to question why the respondent as the employer
should take disciplinary action against her and not another.

As such, it is the Company’s prerogative to decide on the disciplinary

action taken against the Claimant.

Proportionality of the Punishment of Dismissal

[44] In Norizan Bakar v. Panzana Enterprise Sdn. Bhd. [2013] 9 CLJ

409, the Federal Court in confirming that the Industrial Court could apply

the doctrine of proportionality of punishment which is already inbuilt into

the IRA in determining whether the termination was harsh, decided that

the dismissal of the employee was reasonable and fair but the Industrial

Court had failed to direct its mind to all the matters it should have taken

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into account.

[45] This Court has considered the submissions by both learned

counsels and this Court does not wish to comment on each and every

part of the said submissions. Following Norizan Bakar, this Court is thus

satisfied and finds that the Company had rightfully dismissed the

Claimant.

[46] Hence, based on the oral evidence of the witnesses and relevant

documentary evidence this Court is satisfied and finds that the Claimant

was dismissed with just cause or excuse effective 9 March 2020.

Conclusion

[47] As provided under subsection 30(5) of the IRA, this Court shall

decide this case according to equity, good conscience and its

substantial merits without regard to technicalities and legal form.

[48] In the circumstances, on the totality of the facts of this case and

the evidence adduced by both parties, this Court finds the dismissal was

warranted as the Company could no longer repose the necessary trust

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and confidence in the Claimant. As such, given the seriousness of the

misconduct by the Claimant and as guided by the established principles

of industrial relations as outlined above, this Court is satisfied and do

hereby finds that the Company had proved its case on the balance of

probabilities that the Claimant was dismissed with just cause or excuse.

[49] The Claimant’s case is hereby dismissed.

HANDED DOWN AND DATED THIS 29th DAY OF NOVEMBER 2022.

-signed-

(SURAIYA BINTI MUSTAFA KAMAL)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG

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