INDUSTRIAL COURT MALAYSIA
CASE NO. 4/4-368/11
BETWEEN
ENCIK POOVAN A/L SINNASAMY
DAN 1 ORANG PERAYU LAIN
AND
MALAYSIAN AIRLINE SYSTEM BERHAD
AWARD NO. 1068 OF 2014
BEFORE :
Y.A. TUAN P IRUTHAYARAJ A/L D PAPPUSAMY
Chairman (Sitting alone)
VENUE :
Mahkamah Perusahaan Malaysia
Kuala Lumpur
DATE OF REFERENCE:
07.02.2011
DATES OF MENTION :
18.05.2011; 20.06.2011; 10.08.2011; 08.09.2011;
14.12.2011; 02.03.2012; 02.05.2012; 04.05.2012;
18.02.2013; 14.11.2013
DATES OF HEARING :
15.05.2012; 30.05.2012; 31.05.2012; 23.01.2013;
06.11.2013; 07.11.2013; 05.12.2013; 20.12.2013;
24.01.2014; 07.03.2014
DATES OF WRITTEN:
SUBMISSIONS
Written Submission by the Claimant filed
on 15.05.2014;
Written Submission by the Company filed on
07.07.2014;
Written Submission in Reply by the Claimant
filed on 25.07.2014.
REPRESENTATION :
Mr. Harpajan Singh of Messrs Harpajan S.
Khaulsay & Co. represented the Claimants.
Mr. Vijayan Venugopal of Messrs Shearn
Delamore & Co. represented the Company.
REFERENCE :
This is a reference by the Honourable Minister of Human Resources under
Section 20(3) of the Industrial Relations Act 1967 for an award in respect of
a dispute arising out of the dismissal of ENCIK POOVAN A/L
SINNASAMY DAN 1 ORANG PERAYU LAIN (hereinafter referred to as
“the Claimant”) by MALAYSIAN AIRLINE SYSTEM BERHAD
(hereinafter referred to as “the Respondent”).
AWARD
The parties to the dispute are Encik Poovan a/l Sinnasamy Dan 1 Orang
Perayu Lain (“the 1st and 2nd Claimants”) and Malaysian Airline System
Berhad (“the Respondent”). The dispute which has been referred to the
Industrial Court by way of a Ministerial Reference under Section 20(3) of
the Industrial Relations Act 1967 (“the Act”) is over dismissal of the
Claimant by the Company on 04.08.2009.
Introduction
The 1st Claimant’s (Poovan a/l Sinnasamy) claim had been struck off by this
Court during the outset of this matter and the case only proceeded with the
2nd Claimant’s (Sarjit Singh a/l Rajinder Singh) claim (hereinafter referred to
as “the Claimant”).
Brief Background Facts
The Claimant joined the Company as a Trainee Aircraft Maintenance
Engineer on 01.10.1980. In October 1985, he qualified as a Licensed Aircraft
Maintenance Engineer (“LAME”).
The Claimant’s main duties and responsibilities as the Lead Engineer –
Aircraft Overhaul – Production were to carry out repair, replacement and
certification work relating to aircraft maintenance.
The Claimant was scheduled to be on duty on 01.06.2009 from 7.45pm
(01.06.2009) to 4.45am (02.06.2009) at Hangar 03 MAS Complex A, Sultan
Abdul Aziz Shah Airport, Subang.
However, it was reported that the Claimant was not at his workplace at
4.05am on 02.06.2009 despite being on duty at that time. Despite not being
at the workplace at 4.05 am, the Claimant had in the Attendance Record
signed out at 7.00 am on 02.06.2009 and further claimed over time
payments from 4.45 am to 7.00am (02.06.2009). It was also reported to the
Company that other employees including Poovan a/l Sinnasamy were
found to be absent from their workplace and had also made the same
overtime claims as the Claimant.
Pursuant to the above, the Company issued a letter dated 06.06.2009 to the
Claimant seeking an explanation from him with regard to the following:-
“It’s been reported that you were not at your workplace at 0405 hrs
on Tuesday 02nd June 2009.
Based on Daily Attendance record, you’ve signed out at 0700 hrs on
the same day.”
The Claimant responded to the explanation letter vide letter dated
08.06.2009 wherein he admitted that he was not at his workplace during
his scheduled working hours and that he signed off at 7.00am (02.06.2009)
despite knowing that he did not work till 7.00am.
Pursuant to the
explanation provided by the Claimant, the Company had decided to issue
a Letter of Allegation wherein the Claimant was required to provide his
explanation as to why disciplinary action should not be taken against him
for the following charges of misconduct:
Charge No.1
“That you, as a Lead Engineer of the Company on 02 June 2009 at
Hangar 03 MAS Complex A, Sultan Abdul Aziz Shah Airport,
Subang, Selangor, had been absent from your workplace from about
0400 hours without permission whilst rostered for duty from 1945
hours till 0445 hours.
You have therefore committed an act of misconduct inconsistent
with the fulfillment of your terms and conditions of service with the
Company by virtue of Clause 1, Para 1.1 AND Clause 15, Para 15.10
of Appendix A, Acts of Misconduct of the MAS Disciplinary
Procedure and such an act of misconduct attracts severe
punishment.”
Charge No.2
“That you, as a Lead Engineer of the Company on 02 June 2009 at
Hangar 03, MAS Complex A, Sultan Abdul Aziz Shah Airport,
Subang, Selangor, had made a fraudulent overtime claim from 0445
hours till 0700 hours despite not performing the job whilst rostered
for duty from 1945 hours till 0445 hours.
You have therefore committed an act of misconduct inconsistent
with the fulfillment of your terms and conditions of service with the
Company by virtue of Clause 7, Para 7.1, Clause 8, Para 8.1 and
Clause 15, Para 15.10 of Appendix A, Acts of Misconduct of the MAS
Disciplinary Procedure and such an act of misconduct attracts
severe punishment.”
The Claimant responded vide letter dated 13.07.2009, wherein he suddenly
claimed that he was under duress when he issued the 1 st letter dated
08.06.2009 to the Company.
The Company considered the Claimant’s explanation and was of the view
that the same was unacceptable and also in view of the Claimant’s earlier
admission in his 1st letter to the Company. Due to the seriousness of the
misconduct, the Company dismissed him from his services. The Claimant
was informed of the Company’s decision vide Punishment Order dated
04.08.2009 and the Claimant was informed that he was entitled to appeal
against the decision of the Company to dismiss him.
The Claimant submitted his appeal against the decision of the Company to
dismiss him vide letter dated 18.09.2009.
The Disciplinary Appeal Committee considered the Claimant’s appeal and
decided to maintain the decision to dismiss him. As such, vide letter dated
20th October 2009, the Claimant was informed that his appeal was
dismissed.
Issues
The issues for determination are as follows:(a)
Whether the Claimant was dismissed by the Company;
(b)
If so, whether the dismissal of the Claimant by the Company was
with just cause or excuse.
The Law
The function of the Industrial Court has been propounded by Mohd. Azmi
FCJ in the Federal Court case of Milan Auto Sdn. Bhd. v Wong She Yen
[1995] 4 CLJ 449 (“Milan case”) which is as follows:-
“As pointed out by this Court recently in Wong Yuen Hock v Hong Leong
Assurance [1995] 3 CLJ 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.”
In the case of Goon Kwee Phoy v. J & P Coats (M) Sdn. Bhd. [1981] 2 MLJ
129 (“Goon’s case”) the Federal Court enunciated the following principle:“….. 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]
It is trite law that the Company bears the burden to prove that the Claimant
had committed the alleged misconduct and that the misconduct warrants
the Claimant’s dismissal [see Ireka Construction Berhad v. Chantiravathan
a/l Subramaniam James [1995] 2 ILR 11 (Award No. 245 of 1995)].
The Company need only to prove misconduct justifying the dismissal or
termination on the balance of probabilities [see Telekom Malaysia
Kawasan Utara v Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 CLJ
314 (CA)].
Let me now deal with the following issues:(A)
Whether the Claimant was dismissed by the Company in the first
place?
The answer to this question is in the affirmative since the Claimant was
dismissed by the Company vide Punishment Order dated 04.08.2009.
(B)
Whether the dismissal of the Claimant by the Company was with
just cause or excuse?
Let me now deal with each of the charges:Charge No.1
“That you, as a Lead Engineer of the Company on 02 June 2009 at
Hangar 03 MAS Complex A, Sultan Abdul Aziz Shah Airport,
Subang, Selangor, had been absent from your workplace from about
0400 hours without permission whilst rostered for duty from 1945
hours till 0445 hours.
You have therefore committed an act of misconduct inconsistent
with the fulfillment of your terms and conditions of service with the
Company by virtue of Clause 1, Para 1.1 AND Clause 15, Para 15.10
of Appendix A, Acts of Misconduct of the MAS Disciplinary
Procedure and such an act of misconduct attracts severe
punishment.”
In respect of Charge 1 the following issues must be determined:-
(i)
Was the Claimant a Lead Engineer of the Company on 02.06.2009 at
the Hangar while on duty?
Claimant’s contention
The Claimant’s contention is that the Claimant was not a Lead Engineer.
The Company’s sole witness COW-1, Mr Melvyn testified that there was an
error in drafting the charge and that the Claimant was not a Lead Engineer.
He said ‘the terminology of Lead Engineer is incorrect’. COW-1 further stated
that the said appointment is by way of a letter and the allowance of RM145
for the position of Lead Engineer will be reflected in the salary slip. He
confirmed that no such letter of appointment was issued and neither was
the RM145 reflected in the salary slip. One is either a Lead Engineer or not
at all. There can be no substitute names, especially not when no payment
of RM145 is made as the definition of Lead Engineer is specifically
provided for in the Collective Agreement.
It is not disputed that the Claimant was not paid the Lead Engineer’s
allowance of RM145. The respondents have conceded this through their
sole witness COW-1 that the Claimant was indeed not a Lead Engineer.
According to the Claimant this defect is fatal and renders the 1 st Charge
defective.
Company’s contention
The Company on the other hand relied on the evidence before the Court
and contended that the Claimant is the Lead Engineer on 01.06.2009 and
02.06. 2009 based on the following evidence:-
(i) The other crew members who were dismissed by the Company had
also failed a claim of unfair dismissal which was referred to the
Industrial Court and registered as Malaysia Airlines System Bhd
v Nik Akhbarhafidz bin Bik Mustafa & 5 Ors 19/4-1050/11. In
their Statement of Case on pages 1 – 48 of COB-2 the claimants had
alleged as follows:“5.4
……..The Claimants aver that they had been instructed
and/or allowed and/or given the clearance by their team leader on
2.6.2009 one Mr. Sarjit Singh who had given them permission and
clearance to leave their workplace after the full completion of
their required and/or assigned task.”
5.5The Claimants also deny that they had made fraudulent
overtime claims on 2.6.2009 as they were permitted and given
clearance by their team leader one Mr. Sarjit Singh to make the
aforesaid overtime claim until 7.00 o’clock in the morning after
their tasks had been completed.”
(ii)
CLW-2 testified during cross examination as follows:“Q59:
A:
Look at page 28 and 29 of CLB-1, Do you know whether Sarjit
or someone else was in charge of this shift on 1st June until 2nd
June 2009 based on these pages? Know or don’t know?
For this shift, Sarjit had taken the lead charge.
Q60:
A:
Does lead charge mean he was in charge of this particular shift?
Yes.”
(iii) CLW- 3 testified during cross examination as follows:“Q62:
A:
Do you agree Mr. Sarjit was the most senior engineer in the a/c
crew during the night shift on 1st and 2nd June 2009?
Yes.”
(iv) COW-1 testified during examination in chief as follows:“Q19:
A:
If you were not aware, why is he described as such?
Based on my investigations, the Claimant took over the shift
from the previous engineer. That is why we termed him as “the
Lead Engineer”.
Court’s Evaluation
In my view based on the evidence the Claimant was not a Lead Engineer
when he was doing his duty on 1st and 2nd June 2009. The fact that the
terminology of describing the Claimant as Lead Engineer is incorrect that
does not per se render Charge 1 defective. What is relevant is that the
subject matter of the said charge refers to the Claimant himself as an
employee and to that extent Charge 1 remains valid.
(ii)
Was the 2nd Claimant absent from his work place on 02.06.2009 from
about 0400 hours without permission whilst rostered for duty from
1945 hours till 0445 hours?
Claimant’s contention
The Claimant had submitted that there was no proof that the Claimant was
“absent from his work place from about 0400 hours”. The Company never
produced any evidence to prove that the Claimant was in fact absent from
his workplace at or from 4 am. In fact, no evidence was produced to prove
that the Claimant was absent from the workplace at all. When COW-1 was
asked, “How do you know that the Claimant had been ‘absent from your
workplace from 0400 hours without permission’”, he replied, ‘We based this on
the report of complaint from the Claimant’s head of department’ [crossexamination Q61]. Yet, this head of department was not called to give
evidence to prove the truth of the contents of the charge. According to the
Claimant since the report of the complaint was not tendered as evidence
during proceedings, it will be deemed that no such report existed for
COW-1 to base his charges upon.
Company’s contention
The Company on the other hand had firstly relied on the absence of denial
of the Claimant that he was absent from his workplace at 4.00 am on
02.06.2009.
Secondly the Company had also relied on the Claimant’s
response letter dated 08.06.2009 wherein he also regretted his actions and
apologised to the Company.
Court’s Evaluation
Based on the overall evidence adduced at the trial, I am of the firm view
that firstly, eventhough the Claimant’s head of department was not called
to testify in this regard nevertheless it is recognised that COW-1 relied on
the report of complaint from the Claimant’s head of department and
therefore it is not without any basis.
Secondly, it is reasonable to consider the Claimant’s denial of his absence
from the workplace in his response letter dated on 08.06.2009 as a piece of
reasonable evidence to prove that he was not at his workplace at the said
hours of work. Thirdly, the Claimant had in his response letter dated
08.06.2009 besides not denying that he was absent from his workplace at
4.00 am on 02.06.2009 had also stated that he regretted his actions and
apologised to the Company. This is also a reasonable piece of evidence to
show that he was absent from his workplace otherwise why should he have
regretted and apologized to the Company.
If the Claimant was indeed present at his workplace from about 4 am on
02.06.2009 as rostered, he would have vehemently denied such an
allegation from the Company, instead of him merely giving his excuse of
leaving the workplace earlier than scheduled and had also apologized for
his actions. As a matter of fact none of the Claimant’s three (3) witnesses
could testify on whether the Claimant was present at his workplace on
02.06.2009 or whether they had worked through their meal break as none
of them were rostered with the Claimant on the same day/time.
Based on the evidence it is my considered view that the Company had
proven on balance of probabilities that the Claimant was absent on
02.06.2009 at about 4 am despite being rostered to work until 4.45 am on
02.06.2009.
Hence, Charge 1 has been made out against the Claimant.
Charge No.2
“That you, as a Lead Engineer of the Company on 02 June 2009 at
Hangar 03, MAS Complex A, Sultan Abdul Aziz Shah Airport,
Subang, Selangor, had made a fraudulent overtime claim from 0445
hours till 0700 hours despite not performing the job whilst rostered
for duty from 1945 hours till 0445 hours.
You have therefore committed an act of misconduct inconsistent
with the fulfillment of your terms and conditions of service with the
Company by virtue of Clause 7, Para 7.1, Clause 8, Para 8.1 and
Clause 15, Para 15.10 of Appendix A, Acts of Misconduct of the MAS
Disciplinary Procedure and such an act of misconduct attracts
severe punishment.”
With regard to Charge 2 on making false overtime (OT) claim it is an
undisputed fact that the Claimant had been rostered for duty from 7.45 pm
on 01.02.2009 to 4.45 am on 02.06.2009 and that he had submitted an
overtime (OT) claim to the Company from 4.45 am to 7 am on 02.06.2009
based on the following:(i)
The Daily Attendance/Overtime Sheet for 01.02.2009 (page 16 of
COB) clearly shows that all the employees listed (which included
the Claimant) had made an OT claim until 7 am (02.06.2009).
(ii)
The Claimant in his letter of response on page 7 of COB had stated
as follows in paragraph 6:“After completing housekeeping and shutting down aircraft power, I told
the men to wash up and I signed out at 0700 hours as it has been
practiced in the past”
(iii) During cross examination the Claimant testified as follows:“Q43:
Refer to page 16 of COB column 7, do you agree that according
to this document, you represented to the company, that you
A:
commenced work at 7.36pm (4th column vertical timing 1936)
on 1st June 2009 and worked until 7am 2nd June 2009?
Yes.”
The Company had therefore submitted that in view of the fact that the
Claimant was not at his work place at about 4am on 02.06.2009 as per
Charge 1 above, the Claimant cannot claim OT from 4.45am to 7am on
02.06.2009 as he was not at work during that material time.
Furthermore the Claimant’s own evidence regarding this issue is riddled
with the following inconsistences which had severely impacted his
credibility:(i)
The Claimant had failed to dispute in all his correspondences with
the Company that he was not present at his workplace at about
4am on 02.06.2009 as alleged in Charge 1.
(ii)
At first the Claimant during cross examination had testified that
he did not work continuously as follows:-
“Q48:
A:
(iii)
Did you work continuously from 7.36om on 1 st June 2009 until
7am on 2nd June 2009?
Not continuously.
Then the Claimant testified during cross examination that he
worked continuously from 4am to 7am on 02.06.2009 as follows:“Q51:
A:
(iv)
Is it your evidence that you were at your work place
continuously from about 4am until 7am on 2nd June 2009?
Yes, Yang Arif.”
Thereafter the Claimant testified during cross examination that he
left before 7am on 02.06.2009:“Q66:
A:Yes
Did you leave early on 2nd June 2009 before 7am?
Q67:
A:
What time did you leave on 2nd June 2009?
Must be after 6am. Between 6am to 7am.
Q68:
Are you sure that at 7am you were no longer working at the
work place?
I can’t recall.”
A:
(v)
The Claimant thereafter during re-examination went on to testify
as follows:
a) That he left around “6-ish”,
b) That he left about 6am
c) That he may have left before 7am.
Based on the Claimant’s own submission it shows that the Claimant on the
one hand claims that there is a practice that an employee can leave the
workplace earlier than scheduled and to claim OT and therefore his action
cannot constitute misconduct. On the other hand the Claimant disputes
the fact that he left his the workplace earlier than the scheduled working
hours. This two line of arguments raised by the Claimant are contradictory
to one another and this shows that the Claimant is not telling the truth.
It is clear from the evidence adduced before this Court and I believe that
the Claimant had left work before 7am on 02.06.2009 despite signing off
purportedly at 7am on 02.06.2009 on the Attendance Sheet to claim for
overtime.
Hence, Charge 2 has also been made out against the Claimant. In the
addition to Charges 1 and 2 there are other issues that needed to be
addressed as well:-
(a)
Was there a past practice of an employee being able to claim
overtime even if he leaves earlier than the scheduled time?
The Claimant had alleged that there was a purported practice in the
Company that they were allowed to leave the workplace earlier than the
scheduled time and to claim for overtime. In my view the Claimant has
failed to prove such practices before this Court through documentary or
testimony evidence.
The following Claimant’s own witnesses’ testimonies allude to the fact that
such practices were not allowed and they are not aware if such practices
are approved by the management of the Company:(i) CLW-1 had testified as follows:“Q56: The last oral question. Question 17 onwards of the additional
questions. Question 17, “Is there a practice in MAS, claim OT,
Your answer is, yes there is a practice.” My question is, is this
practice allowed by the company?
No, not allowed.
A:
Q57:
A:
Q58:
A:
Q59:
A:
Q60:
A:
(ii)
Assume that someone is working a shift from 7pm to 7am. They
managed to finish all their work early, say at 5am. Can they claim
OT from 5am to 7am even though there were not working. Are they
allowed to do that?
No, they can’t.
Assuming their shift is from 7pm to 7am. They finish work early, let
say 5am. Can they claim OT from 7am onwards?
No, they are not allowed to.
You said there is a practice, referring to question 17. I am putting it
to you that there is no such practice authorized by the Company. Do
you agree or disagree?
Agreed.
Refer to question 18, additional question, “does the engineering
department know of this practice, you answered that I guess they
know.”I am suggesting to you by your answer, you yourself are not
sure about their knowledge.
I agree.”
CLW-2 testified in cross examination as follows:“Q64:
A:
Look at question 9, I am putting it to you that your answer
here is not correct?
Disagree.
Q65:
A:
Do you have proof of your answer in question 9?
No, I don’t have proof.
…….
Q71:
A:
(iii)
I am putting it to you all that is not allowed ?
I don’t know.”
CLW-3 testified in cross examination as follows:“Q103: Do you have any proof of this alleged practice? Yes or no?
A:
No.
Q104:
A:
I am putting it to you that this alleged practice is not allowed
by the management?
I don’t know.”
The Claimant went on to alleged that the Collective Agreement provided
that the Claimant could have made such OT claims and relied on Article 35
(7) on page 74 of CLB-1 which provides as follows:“(a) The Company shall be entitled to:(i)
Require employees to take their meal breaks if their services are
not required during such meal breaks; and
(ii)
Provide an alternative break of the one (1) hour any time before
or after the meal period concerned to employees who are not
provided with one hour’s break during the meal period.
(b)
When an alternative meal break is not given an employee concerned
will be paid overtime for the one hour concerned.”
In my view nowhere in the said article provides that an employee is
allowed to leave the workplace earlier than scheduled and claim for
overtime.
Article 35 (7) of the Collective Agreement provides that only Company is
entitled to provide an alternative meal break time and that it was not up to
the employees to decide when they want to take the alternative meal break.
CLW- 3 had also testified to this effect during cross examination as
follows:“Q67:
A:
Q68:
A:
Look at paragraph 7 (a) (ii) at page 74 CLB -1 , at 7 (a) the
Company shall be entitled. I am suggesting to you that
paragraph 7 (a) (ii) is up to the Company to decide not the
employee?
Agree.
So where then does it say that when a crew work through one
hour meal break, they can have it any time later during their
working time and it is up to the team to decide?
It is not there.
Q69:
A:
Does it state in any other document?
No”
Even if the Court were to consider the Claimant’s own argument on
paragraphs 38 and 39 of the Claimant’s submissions, that he was allegedly
allowed to claim 1 hour overtime as per the above article (which is strictly
denied), it was pointed out that the Claimant and the rest of the crew had
claimed overtime of 2 ¼ hours as can be seen on the Daily Attendance/
Overtime Sheet on page 16 of COB. As such, even the Claimant’s own
argument shows that the Claimant had committed a misconduct of falsely
claiming OT.
I find it hard to imagine that any organisation would have allowed for such
a practice whereby its employees would claim for OT even though they
had left earlier than the scheduled working hours unless expressly stated.
It simply does not make sense.
For purposes of argument even if such practice existed (which is strictly
denied), the Company had no knowledge of it. This is consistent with the
fact that in this instance when the Company discovered the action, the crew
members, a total of twenty (20) employees were dismissed for the same
charge as the Claimant. With regards to this, COW-1 testified as follows
during re-examination:“Q12: Refer to cross examination question 78. You confirmed that there
were 20 employees and all 20 employees were dismissed for the same
charge. Were there only 20 employees involved in this or more than
20?
A:
Only these 20.
Q:
A:
And all 20 were dismissed?
Yes.”
In my considered view the Claimant failed to discharge his burden to proof
that such practice existed in the Company and whether such practices were
approved or not by the management. The burden lies on him to prove such
an assertion.
(b)
Are the charges of misconduct against the Claimant effective?
The Claimant had alleged that the charges of misconduct were defective
because the Claimant was allegedly not the “Lead Engineer” at the
material time. In my view the Claimant’s designation could not affect the
validity of the charges of misconduct here. The main thrust of the two (2)
charges of misconduct against the Claimant is that he left the workplace
earlier than scheduled and despite leaving the workplace earlier than
scheduled he claimed OT from the Company. That is the crux of the matter.
In fact, in a case of misconduct like in the instant case, what is important is
that the employee concerned must know what they are charged for by the
company. This was held to be the case by the High Court in Faber Group v
Y.M Raja Mohar bin Raja Zainal Abidin (R2-25-58-96 wherein the court
held as follows:“Sayugia diingat pertuduhan terhadap tindakan tatatertib tidak
boleh disamakan tarafnya dengan pertuduhan terhadap tindakan
jenayah yang dilakukan oleh Pendakwa Raya yang memerlukan
butir-butir terperinci di dalam pertuduhan tersebut. Di dalam
pertuduhan tatatertib, apa yang penting ialah orang yang dituduh
tahu mengenai perkara yang dituduh terhadapnya. Dari keterangan
yang ada Responden mengetahui butir-butir Pertuduhan Pertama
ini. Ketiadaan butir-butir terperinci di dalam pertuduhan tatatertib
itu tidak sepatutnya dianggap fatal seperti yang diputuskan oleh
Mahkamah Perusahaan.”
The above decision by the High Court was subsequently upheld by the
Court of Appeal.
It is clear from the correspondences by the Claimant to the Company that
he was very well aware of the nature of the misconduct which he was
charged with by the Company. Furthermore, the Claimant had not sought
any clarification from the Company of the details of the charges nor did he
inform the Company that there were details in the charges of misconduct
which were lacking.
(c)
Does the failure to hold a Domestic Inquiry makes the dismissal
unfair?
COW-1 testified that one of the reasons why the domestic inquiry was not
held is due to the fact that there was an element of admission in the
Claimant’s correspondences with the Company.
There is no doubt that the Collective Agreement 2008 between Malaysian
Airline System Berhad and Malaysian Airline System Employee’s Union of
Peninsular Malaysia (“the CA”) provides that the Company may terminate
the employee after due inquiry (refer to page 64 of CLB-1).
On this issue the law is established that the non holding of a domestic
inquiry prior to dismissal is not fatal since the proceedings before this
Court is by way of a rehearing. Therefore in the event domestic inquiry is
not held by the Company, this could be cured at the rehearing at the
Industrial Court as decided by the Federal Court in Wong Yuen Hock v
Syarikat Hong Leong Assurances Sdn Bhd and Another Appeal [1995] 2
MLJ 753 and Milan Auto Sdn Bhd v Wong Sek Yen [1995] 3 MLJ 537.
Therefore, it is my considered view that even if a domestic inquiry was not
held prior to the dismissal that in itself would not result in an otherwise
fair dismissal to be unfair.
(d)
Is there any merit in the Claimant’s allegation that there was a
manpower shortage during his shift on 1st and 2nd June 2009?
This purported issue was never raised to the Company until the Claimant
responded to the letter seeking explanation on 08.06.2009. If there was a
shortage as alleged by the Claimant (which is strictly denied), the Claimant
surely as the most senior employee of the crew would have escalated the
matter either during the shift or any time after the shift had ended which
he failed to do only goes to show that these allegations are merely an
afterthought which were raised only because of the charges of misconduct
had been levelled against the Claimant by the Company. Hence, there is no
merit in this purported issue.
(e)
Is the punishment of dismissal justified in the circumstances of the
case?
After reviewing the evidence in relation to the nature of the charges, I am
of the firm view that the charges of misconduct as a whole against the
Claimant amounted to a serious misconduct which warrants the
Claimant’s dismissal as this involved the Claimant’s honesty and integrity
in making a fraudulent overtime claim. Even the Claimant agreed that the
misconduct were serious in nature when he testified as follows:“Q111. I am putting it to you that making a fraudulent overtime claims is
a serious misconduct?
A:
Yes.
Q112:
A:
Therefore, I am putting it to you that the allegation in charges 1
and 2 are serious in nature?
Yes.”
In Pearce v Foster [1886] QBD 536, Lord Esher MR, held as follows:-
“The rule of law is that where a person has entered into the position
of servant, if he does anything incompatible with the due or faithful
discharge of his duty to his mater, the latter has a right to dismiss.
The relation of master and servant implies necessarily that the
servant shall be in a position to perform his duty and faithfully, and
if by his own act he prevents himself from doing so, the master may
dismiss him…”
Similarly in the case of Yuvaneswaran Tachanamorty v Tetuan Shearn
Delamore & Co [2012] 2 LNS 1256 held that honesty and integrity is
amongst the key characteristic an employee should possess as follows:"The Court asks itself whether in this case it was reasonable for the
Respondent to dismiss the Claimant. The answer to this question
must be in the affirmative as the Claimant had committed the acts of
misconduct, which were clearly inconsistent with the fiduciary
relationship between the employer and an employee. The Claimant's
conduct of submitting false claims justifies the managerial decision
to dismiss the Claimant as this involves the Claimant's honesty and
integrity. The Court is of the view that honesty and integrity are
amongst the key characteristics that any employee should possess,
no matter what form of employment the employee is engaged in."
Conclusion
After having taken into account the totality of the evidence adduced by
both parties and bearing in mind s30(5) of the Industrial Relation Act 1967
to act according to equity, good conscience and substantial merits of the
case without regard to technicalities and legal form, this Court finds that
the Company had proved its case against the Claimant on the 2 said
Charges on balance of probabilities and as such the dismissal of the
Claimant was with just cause or excuse. Accordingly the Claimant’s claim
is hereby dismissed.
HANDED DOWN AND DATED THIS DAY 12th SEPTEMBER 2014
- signed (P IRUTHAYARAJ A/L D PAPPUSAMY)
PENGERUSI
MAHKAMAH PERUSAHAAN MALAYSIA
KUALA LUMPUR