INDUSTRIAL COURT OF MALAYSIA

CASE NO. 5/4-411/08

BETWEEN

ENCIK LOO WAI LUNN

AND

VADS BERHAD

AWARD NO. 1750 OF 2011

BEFORE : Y.A. PUAN ASLINA BINTI JONED - CHAIRMAN

VENUE : Industrial Court Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 05.03.2008.

DATES OF MENTION : 06.05.2008; 06.06.2008; 30.06.2008; 07.07.2008; 8.10.2008;

DATES OF HEARING : 10.12.2008; 11.12.2008; 05.05.2009; 06.05.2009; 29.07.2009;

DATE OF CLAIMANT'S
SUBMISSIONS RECEIVED : 25.04.2011.

DATE OF COMPANY'S
SUBMISSIONS RECEIVED : 25.08.2011.

DATE OF CLAIMANT'S
REPLY SUBMISSION RECEIVED : 19.10.2011.

REPRESENTATION : Claimant in Person.

: Ms. Elizabeth Loo of Messrs Lee Hishamuddin

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REFERENCE: This is a reference by the Honourable Minister of Human Resource
under section 20(3) of the Industrial Relations Act 1967 on 14 September 2005 arising
out of the dismissal of Encik Loo Wai Lunn (hereinafter referred to as the
“Claimant”) on 05 March 2008 by Vads Berhad (hereinafter referred to as
the“Company”).

AWARD

This trial was started by YA Tuan Chew Soo Ho on 10 December 2008 and continued

on several dates, the last being 29.07.2009 before he was elevated as a Judicial

Commissioner. Both parties consented for me to continue with the trial which I

started on 22.07.2010 and finally completed on 25.08.2010.

Background:

1. This dispute arose over the termination of the Claimant's service with effect

from 14.09.2007.

2. The Claimant commenced employment with the Company on 17.07.2007 as its

Bussiness Development Manager with a monthly salary of RM7,500.

3. He was also placed on a commission plan which depended on sales he

generated to complete his remuneration package.

4. On 07.09.2007 at approximately 6.48pm, the Claimant sent an email to one Yap

Huey Shan (COW1) the Company's Business Development Director and his

immediate superior requesting for leave on the following Monday, Tuesday

and Wednesday. (10,11 and 12 September 2009).

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5. The Claimant subsequently applied for leave officially on the following day

08.09.2007 which was a Saturday through the Company's intranet. The

Company's policy stipulates that one (1) week notice was required for leave

application.

6. On Monday 10.09.2007, the Claimant,s superior, COW1 sent the Claimant a

text message informing him that his leave was not approved. He was

instructed to return to work the following day 11.09.2007.

7. Despite his superior's instruction, the Claimant replied the text message

informing COW1 that he will be leaving for Philippines that same night and

will therefore not returning to work.

8. On Wednesday 12.09.2007 the Claimant sent another email to COW1

requesting for an extended leave for 13.09.2007 despite being fully aware that

he was scheduled to attend Sales Training on 13.09.2007 and 14.09.2007. In the

same email the Claimant represented that he will be attending the sales

Training on 14.09.2007.

9. No approval for leave was granted and despite his representation the

Claimant failed to attend the pre-arranged Sales Training on 14.9.2007.

9. On 14.9.2007 the Company sent a Release Letter and a Contract of Service

Repudiated Letter to the Claimant informing him he has abandoned his

position and thereby repudiated his contract of service. The letter reads as

follows:

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The Claimant avers that his dismissal was without just cause or excuse and or an

unfair labour practice. The company maintains that it is justified to dismiss the

Claimant under the circumstances as his absence without leave was considered by

the company as abandonment of the service of the company and repudiatory breach

of his contract of employment.

The Law

The burden of proof rests on the Company as employer to prove on a balance of

probabilities that the dismissal of Claimant as employee was with just cause or

excuse. The question of standard of proof is closely connected with the question of

finding of facts. The Court of Appeal in Telekom Malaysia Kawasan Utara v.

Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 decided as follows:

“Thus in hearing a claim of unjust dismissal, where the employee was

dismissed on the basis of an alleged criminal offence such as theft of

company property, the Industrial Court is not required to be satisfied

beyond a reasonable doubt that such an offence was committed. The

standard of proof applicable is the civil standard, i.e., proof on a balance of

probabilities – which is flexible so that the degree of probability required is

proportionate to the nature and gravity of the issue.”

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The function of the Industrial Court is succinctly explained in the case of Goon

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

Court decided inter alia as follows:

“Where representations are made and are referred to the Industrial Court for

enquiry, it is the duty to that court to determine whether the termination or

dismissal is with or without just cause or excuse. If the employer chooses to

give a reason for the action taken by him the duty of the Industrial Court will

be to enquire whether that excuse or reason has or has not been made out. If it

finds as a fact that it has not been proved, 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.”

The function of the Industrial Court in a section 20(3) reference such as this is two-

fold; first, to determine whether the misconduct complained of by the employer has

been established and, secondly, whether such proven misconduct constitutes just

cause or excuse for the dismissal. The Federal Court in Wong Yuen Hock v. Hong

Leong Assurance Sdn Bhd [1995] 3 CLJ 344 decided as follows:

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 “Thus even where there was a breach of contractual or statutory duty to hold

an inquiry, the Industrial Court should proceed and determine, firstly,

whether the misconduct complained of was in fact committed, and if so,

whether it constitutes just cause or excuse for the dismissal.”

The Federal Court in the case of Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ

449 decided inter alia:

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

s. 20 is two-fold. It has 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.”

The Evaluation And Findings

The issues that merit consideration in this case are:

1. Whether the the claimant's misconduct as alleged by the company has been

established (see Milan Auto,supra)

2. Whether the proven misconduct constitutes just cause or excuse for the

dismissal (see Milan Auto,supra)

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Misconduct

The fact pertaining to the non approval of his leave is not disputed by the Claimant.

Neither did he deny his failure to return in time for the training which he promised

to attend on 14.9.07.

The Federal Court in the case of Pan Global Textiles Bhd Pulau Pinang v. Ang Beng

Teik [2002] 1 CLJ 181 at page 198 decided on the absence of employee without

permission as follows:

“No employee can claim leave of absence as a matter of right, and remaining

absent without leave will itself constitute gross violation of discipline. Hence,

continued absence from work without permission will constitute misconduct

justifying the discharge of a workman from service. (OP Malhotra on The Law

of Industrial Disputes 2nd edition.)”

The Industrial Court in the case of Penerbangan Malaysia Berhad (MAS) v.

Zainudin Mohd. Nor [2005] 1 ILR 147 at page 152 decided as follows:

“The conclusion that the claimant was absent without leave was made having

regard to the passage from Misconduct in Employment (2nd Edition) by BR

Ghaiye. The author at p. 712 stated as follows:

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 Whenever an employee requires leave, it is necessary for him to send the

leave application even if an employee has just cause for absence.... . No

employee can claim as a matter of right leave of absence without permission

and when there might not be any application for the same. Remaining absent

without application is, therefore, a gross violation of discipline...”

In Tong Teng Kee v Nik Mamat Jasa Piling Sdn Bhd [2006] 1 CLJ 1199 at page 1207,

the Court of Appeal noted the following:

“[20] On the issue of the absence of the appellant from work from May 1992 to

17 may 1992 we agree with the finding of the learned judge that the burden

was still on the appellant to prove that his application for leave dated 29 April

1992 vide the ordinary post had been accepted and approved by respondent

when the second witness (COW2) testified that he was not sure whether he

has received the said letter.”

In the case of Mohamad Noor Bin Johari v. The Valspar (M'sia) Corp. Sdn. Bhd.

[Award No. 1231 of 2011 Case No. 25 (14)/4-1222/05] at page 42 the learned

Chairman of the Industrial Court YA Dato' Jalaldin bin Haji Hussain had this to

say :-

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 “In fact, the law is clear that in an application for leave, until and unless there

is an express approval by the employer, the employee cannot go on leave. If

the employee contends otherwise, the burden of proof is on the employee.”

From the above discussion it is clear that permission for leave is not an employee's

right but only a privilege. The claimant's absence without leave is a gross violation

of discipline constituting misconduct which justifies a dismissal as laid down by the

Federal Court in Pan Global Textiles Bhd Pulau Pinang v Ang Teik Beng,supra.

The Claimant has actually breached the Company's leave application policy namely

the Company's HR policy and Procedure which provides:

“Application to take leave must be submitted to the immediate superior for

approval via the Leave System at least a week before the leave is due to be

taken.”

The Company submitted that the Claimant had committed acts of serious

misconduct namely :

1. absenteeism and abandonment of duties by failing to attend work from

10.09.2007 until 14.09.2007

2. misleading the Company into believing that he will attend at the Sales

Training scheduled on 14.09.2007 and

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 3. Insubordination in failing to return to work when instructed to do so by his

superiors.

COW1 testified that when she returned to office on Monday 10.09.2007 she

discovered that the Claimant had applied for leave. COW1 had immediately sent an

SMS to the Claimant and followed up with an email informing him that his leave

was not approved. Despite instruction to return to work, the Claimant failed to do

so. The Claimant also failed to turn up to work on 13.09.2007 and 14.09.2007 which

were days that he had not applied for leave via the Company's intranet.

According to COW3 while the Company does recognize “emergency leave” the

Company was of the opinion that the reason for leave given by the Claimant would

not amount to emergency. COW3 further testified that “As reflected at clause 25.2 (1)

(b), the management has the sole prerogative for approval of such emergency leave

application. In the management's opinion emergency is deemed as serious sickness

in the family, calamity, hospitalization of family members, car accidents and such

similar unforeseen circumstances.”

It was submitted that as the Claimant's application for leave was not approved and

the circumstances surrounding the leave would not entitle him to emergency leave,

the Claimant was therefore absent from work from 10.09.2007 to 14.09.2007 without

leave and this would also amount to abandonment of employment.

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The Claimant's testimony shows that he was aware that his leave application for

10.09.2007 to 12.09.2007 was not approved. His meek justification was he only got

the sms from COW1 about 6 hours later of which time he was already in Singapore

on his way to the Philippines.

When asked by the Company's learned Counsel the Claimant agreed that since he

only plans to return to office on 14.09.2007 he had in fact asked for an extra day. He

also readily agreed that the Company never approved the extra day. The Claimant

also agreed that despite his promise he failed to attend the training on 14. 09.2007.

His excuse was that it was already late at night and he could not catch a bus to Kuala

Lumpur.

The Claimant tried to justify his absence without leave stating that on 07.09.2007 he

had emailed one Yap Huey Shan the Company's Business Development Director and

his direct superior; after official working hours requesting that he be allowed to take

leave on 10,11,and 19 September 2007. To this email there was no reply approving

his request for annual leave. The following day , a Saturday (which is not a working

day for the Company), the Claimant submitted his Annual Leave Application via

intranet requesting for annual leave from 10.09.2007 to 12.09.2007. The reason he

gave for the leave was “to attend urgent personal matters” it was made two (2) days

before the supposed leave application. However the Claimant did mention the

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reasons for his absenteeism in his email requesting for an extension of his leave by

which time he was already in the Phillipines.

This Court finds that the Claimant's feeble justification failed to discharge his burden

to prove that he was not absent without leave as highlighted by the foregoing

authorities by the Court of Appeal and the other Division of the Industrial Court.

Based on the foregoing discussion and the Claimant's own admission, this Court

finds that the Company has established on a balance of probabilities that the

Claimant was guilty of absenteeism and abandonment of his duties by failing to

attend work from 10.9.2007 to 14.9.2007 despite clear instruction from his immediate

superior to return to work the next day (11.9.2007) This Court concludes that the

misconduct complained of against him as charged warrants a dismissal as laid down

by Pan Global Textiles v Ang Beng Teik,supra. As such this Court concludes the

answer to the first question has to be in the affirmative.

Proportionality and Moulding Relief

Since the answer to the first question was in the affirmative it is for this court to

determine whether the dismissal was with just cause or excuse. If it was in the

negative whether this court is entitled to disturb the punishment meted out against

the Claimant and replace the punishment to a less severe one?

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This Court notes that the Claimant was a probationer who was barely into his

second month of working with the Company. He has yet to prove his worth and

loyalty to the Company. His nonchalant attitude and lack of regard to the

Company's interest show that he puts his interest above the Company. He was not

sensitive to the Company's current need namely the COW'1's advanced stage of

pregnancy which would mean that he may have to take over COW1's duty should

she go on maternity leave. His lack of respect in abiding the COW3's instruction to

come to work shows that his attitude is wanting. He could have canceled the leave

while still in Singapore but he chose not to. He explained that he could not inform

the actual reason for taking leave and going to Philippines as his telephone was shut

off. It is difficult to comprehend that a senior official like the Claimant who was

aware that his leave was not approved did not make effort to keep his

communication tools reachable.

The learned counsel for the Claimant invited this Court to treat this as the proper

case to substitute the penalty and mould the proper relief for the Claimant as it does

not warrant a dismissal. He finds support for his argument in the Indian Supreme

Court case of Der Singh v. Punjab Tourism Development Corporation Ltd. & Anor

[2003] A.I.R. 3712 S.C. where Mr. Justice Santosh Hedge held at page 3713.

“ A perusal of the above judgments clearly shows that a Court sitting on

appeal against a punishment imposed in the disciplinary proceedings will not

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 normally substitute its own conclusion on penalty, however if punishment

imposed by the disciplinary authority or the appellate authority shocks the

conscience of the Court, then the Court would appropriately mould the relief

either by directing the disciplinary/appropriate authority to reconsider the

penalty.......It is also clear from the above noted judgments of this Court, if the

punishment imposed by the disciplinary authority is totally disproportionate

to the misconduct proved against the delinquent officer, then the Court

would interfere in such a case”

The learned Counsel for the Claimant further pointed out that clause 22.6 stipulates

for a punishment of salary deduction on such offence but the Company had chosen

to impose the harsh punishment of dismissal instead.

The Company's learned Counsel highlighted that the Claimant had committed a

willful breach of clause 22.6 of the Company's HR Policy & Procedures entitling the

Company to terminate the contract. He also finds support in the case of Delcom

Services v Parameswara Rajah Krishna [1999] 3 ILR 7 which decided that absence

without leave constitutes serious misconduct and as such termination is not without

just cause or excuse.

This Court agrees with the learned Counsel for the Company's argument as the

Company has the right to terminate the Claimant who was still under probation at

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the material time for his misconduct. The court recognizes the company' right to

retain the best talent with the right attitude in order to stay competitive in their

business. The Company is justified in taking action against the serious misconduct in

order not to set precedent for similar disciplinary breach by other employees. The

company also cited that it cant afford to allow such repeat incident.

This court is mindful of binding precedents set by the apex courts in determining

proportionality of punishment.

On whether the punishment of dismissal is proportionate, it is trite law that the

choice of punishment is a prerogative of the employer (see Federal Court decision in

Ng Hock Cheng vPengarah Am Penjara & Ors [1998] 1 MLJ 153). See also R.

Ramachandran v Industrial Court of Malaysia & Anor. [1997] 1 CLJ 147)

In Southern Bank Bhd. v. Kamarudin Othman & Anor [2005] 6 CLJ 379, Wan Arfah

Ibrahim JC (as her Ladyship then was) reiterated that the Industrial Court should

not substitute its own view as to what was the appropriate penalty for the

employee's misconduct.

Likewise this Court does not see it fit to interfere with the punishment meted out to

the Claimant as the Company through COW-1 maintained that it could no longer

repose the necessary trust and confidence in the

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Claimant. Given the circumstances of the case moulding alternative relief is not

appropriate as the Company knows what is best for their enterprise.

Conclusion

In conclusion, acting according to equity, good conscience and the substantial merits

of the case without regard to technicalities and legal form,[section 30(5) Industrial

Relations Act 1967 (Act 177)] this court is satisfied that the dismissal had been with

just cause or excuse. The Claimant's case is accordingly dismissed.

HANDED DOWN AND DATED THIS 29 NOVEMBER 2011

-signed-
( ASLINA BINTI JONED )
CHAIRMAN
INDUSTRIAL COURT MALAYSIA
KUALA LUMPUR

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