MAHKAMAH PERUSAHAAN MALAYSIA - Industrial Court

INDUSTRIAL COURT OF MALAYSIA
CASE NO: 27(20)(29)/4-1146/07
BETWEEN
ENCIK MOHD. RASHID BIN MOHD. LASIM
AND
TECHNOCOM SYSTEMS SDN. BHD.
AWARD NO: 662 OF 2011
BEFORE : Y.A. TUAN SAMSUDIN BIN HASSAN
- CHAIRMAN (Sitting Alone)
VENUE : Industrial Court, Johore
DATE OF : 13 April 2007
REFERENCE
DATE OF MENTION : 23 July 2007, 28 August 2007,
25 September 2007, 24 October 2007,
12 December 2007, 16 January 2008,
29 January 2008, 18 February 2008,
23 July 2008, 21 August 2008,
11 December 2008, 9 April 2010
and 21 October 2010
DATE OF HEARING : 27 April 2009, 16 July 2009,
29 September 2009, 24 November 2009
and 21 January 2010
DATE OF CLAIMANT
WRITTEN SUBMISSIONS: 30 April 2010
DATE OF COMPANY
WRITTEN SUBMISSIONS: 10 June 2010
REPRESENTATION : Encik Boscko Augustin of MUTC,
Counsel for Claimant.
Encik Vinoben of Messrs. Reginald
Vallipuram & Co,
Counsel for Company.
REFERENCES:
This case is a reference under Section 20(3) of the Industrial
Relations Act 1967, arising from the dismissal of Encik Mohd. Rashid
bin Mohd. Lasim (hereinafter referred to as “the Claimant”) by
Technocom Systems Sdn. Bhd. (hereinafter referred to as “the
Company”) on 20 June 2006.
( 1 ) 27(20)(29)/4-1146/07

AWARD
This reference stems from the dismissal of Encik Mohd.
Rashid bin Mohd. Lasim (“the Claimant”) by Technocom Systems
Sdn. Bhd. (“the Company”) on 20 June 2006.
This reference has been transferred from Court 20 to Court
27 for the writing of the Award as the former Chairman of Court
20 has since been appointed as the Judicial Commissioner. This
Award is now penned by Court 27 with the consent of the
Solicitors for both the Company and the Claimant.
Brief Facts
The Claimant commenced employment on 7 October 2002
as a Production Supervisor with the Company and at the time of
his dismissal he held the post of Senior Supervisor. He was
suspended by the Company and a Domestic Inquiry was held on
6 June 2006 against him. The allegations leveled against him by
the Company was that he “transport out female operator, Zalina
binti Seman 021138 to the entertainment centers during her
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working hours and enjoying at the entertainment center with a
few female operators including Zalina binti Seman, Ann, Ayu and
Murniyati during their working hour”. Despite the Claimant's
plea that he was not guilty his employment was terminated by the
Company after the said Domestic Inquiry.
The Company contends that the Claimant was charged with
2 charges and that the Claimant vide is letter dated 26 May 2006
was informed of it. It was its contention that the charges were
leveled against the Claimant by the Company after it had carried
out investigations based on the complaint of one of the
Company's production leader that certain operators of the
Company were frequently going missing during night shift work.
The Company avers that the Panel of the Domestic Inquiry found
the Claimant guilty of the second charge and recommended that
the Claimant be dismissed. It is the Company's contention that
because of the seriousness of the offence committed that it
dismissed the Claimant.
( 3 ) 27(20)(29)/4-1146/07

Issues
The pleadings resolves that the only issues to be tried by the
Court is whether the Claimant was guilty of the charge/s that
was preferred against him by the Company and whether the
charge/s were a just cause or excuse to warrant the dismissal of
the Claimant.
Law
It was held by Lord Donaldson in the case of Union
Construction Allied Traders & Technicians v. Brain [1981] 1
RLR 224 that:
“The employer has to show why he in fact dismissed
the employee. This is no great burden upon him since
he will know why he dismissed the employee. It is also
for the above reasons that the employer is asked to
begin his case first calling his witnesses and adducing
evidence whether oral or documentary to prove the
facts and circumstances which he contends constituted
just cause or excuse for dismissing the employee”.
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Following the case of Wong Chee Hong v. Cathay
Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ
(Rep) 298 the foremost question to be asked is whether there was
a dismissal. In Milan Auto Sdn. Bhd. v. Wong She Yen (1995)
4 CLJ 449 the function of the Industrial Court in a reference
under s.20 of the Industrial Relations Act 1967 was stated as
follows:
“… 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 constitute just cause or
excuse for the dismissal”.
Evidence, Evaluation and Findings
The Company's evidence was given by 3 witnesses viz, CW.1,
CW.2 and CW.3. CW.1 was the director of the Company providing
cleaning services for the Company. He testified that he was
asked as regards the Claimant by the Company whether he had
gone out with any of the staff including the Claimant? He said
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that he had told the Company that he had met the Claimant at
“Handle Bar and Bongo Bar at Blueware Hotel”. He elaborated
that he went out with them once a week. It was his testimony
that he would see the Claimant there once in a awhile. He
testified that he would normally meet them at about 10.00 pm or
10.30 pm. And that the Claimant together with other staff of the
Company would be there before that and that they would finish at
about 2 or 3 am. CW.1 would meet up with the girls there.
When he was cross-examined CW.1 said that he dealt with
the Facility Department of the Company and would liaise with the
Production Department. He testified when asked that the
Claimant never asked him to go out with him to the bars.
The second witness for the Company, CW.2 testified that she
joined the Company on 14 May 2007. She testified that she was
guided by the documents to which she had access to as a Senior
Human Resource Officer of the Company. She confirmed that the
Claimant was charged for 2 acts of misconduct and that after a
Domestic Inquiry (“DI”) he was found guilty of the 2 nd charge only
( 6 ) 27(20)(29)/4-1146/07

viz “Enjoying at entertainment centers with a few female
operators including Zalina binti Seman, Ann, Ayu and Murniyati
during her working hour” (“the 2 nd Charge”). It was her evidence
that the Company had preferred the 2 charges against the
Claimant after conducting an investigation upon receiving a
complaint from one of the Company's production leader that
certain operator(s) of the Company were frequently going missing
during the night shift work. It was also her testimony that the
Claimant attended the said DI and denied the charges. She
testified that after the Panel of the DI found the Claimant guilty of
the 2 nd charge and having recommended that he be dismissed,
the Claimant was dismissed by the Company on 26 June 2006.
When she was cross-examined CW.2 testified that the
complaint letter by the production leader was not in evidence
before the Court. She did not know the name of the said
production leader when asked.
( 7 ) 27(20)(29)/4-1146/07

CW.3 who testified next was the Senior Human Resource
Officer of the Company at the material time. She testified that
she conducted the investigation into the complaint against the
Claimant. She testified that one of the production leader of the
Company (a female) had lodged the said complaint. She said that
she questioned Murniyati from the production line who was
implicated as one of the workers that were missing during the
night shift and was told that she would go out at night during
working hours. It was Murniyati's testimony that one Sebastian
her supervisor would call them to go out at night to the Bluewave
Bongo Pub around 9-11 pm. She said that Murniyati told her
that she would sometimes go out with Ayu, Ann Umi and Zalina
and not the Claimant. It was CW.3's testimony that she
submitted a report on this to her management. She confirmed
that 2 charges were leveled against the Claimant and that a DI
was held against the Claimant. She said that the Claimant was
found guilty of only the 2 nd charge and was terminated by the
Company. She also testified that the other manager and officers
that were involved in this were also terminated from service by
the Company with the exception of one employee who tendered in
his resignation.
( 8 ) 27(20)(29)/4-1146/07

When cross-examined CW.3 said that she did not interview
the Claimant. She said that the written statements of Zalina and
Murniyati were not before the Court. She said that that she could
not remember whether any disciplinary action was taken against
Zalina and Murniyati by the Company. It was her testimony that
at the DI the Claimant was not allowed to question these 2
women who testified for the Company as they were scared of him.
The Claimant (CLW) testified that that he worked as a
Senior Supervisor before he was dismissed by the Company. He
said that he was served with a notice and was asked to attend the
DI on 6 June 2006. He testified that at the said DI he was
charged with the said 2 acts of misconduct. It was his testimony
that he denied both charges.
CLW testified with regards to the 1 st charge that the said
charge did not state the time and how he is said to have taken the
female operators to entertainment centers during working hours
and out of the Company's premises during working hours. He
said that he was not guilty of the alleged offence and was not
found guilty of the said charge.
( 9 ) 27(20)(29)/4-1146/07

As to the 2 nd charge CLW testified that he was not guilty of
this charge as well. He said that he was off-duty when he went to
the said entertainment centers. He also said that when he
arrived at the said entertainment center the ladies named were
already there together with Senior Manager Willie Boo and
Superintendent Encik Adnan. He testified that on 20 June 2006
the Senior Human Resource Manager Encik Kasim Ali bin Mydin
had asked him to admit that he was guilty and to voluntarily
resign and that if he did so the Company would give him some
benefits. He said that he rejected the said offer as he was not
guilty of the alleged charge. It was his testimony that all the
officers who were involved in the said alleged acts had resigned.
CLW testified that on 20 June 2006 he received the Company's
letter terminating him from his service and stating that he was
found guilty.
It was his evidence that at the said DI he was not given the
opportunity to cross-examine the witnesses called by the
Company. He testified that he wanted to call his own witnesses
at the DI but was stopped by Jeanne Lau whilst the Panel kept
( 10 ) 27(20)(29)/4-1146/07

quiet. He said that he was told that they had their own
procedure. He also testified that he did not see the DI notes
before this Hearing nor before his dismissal. He said that he was
not found guilty of the 1 st Charge but found guilty for the 2 nd
charge by the DI panel.
The Claimant further testified that he was actually told by
the Senior Manager Willie Boo to meet him at the entertainment
center. He said as a Senior Supervisor he followed his
instructions. He said that the other ladies named in the charge
were not directly under his supervision. He said that some were
not even in his department whilst Zalina and Murniyati was
directly under Sebastian. He said that he did not know the hours
of work for the said ladies as they were on shift duties. He said
that he only knew that the said ladies were out during their
working hours when he was suspended.
( 11 ) 27(20)(29)/4-1146/07

When he was cross-examined CLW said that he did not
know Zalina and Murniyati save that he had seen them in the
Company. He said that he was higher in rank than them. He
testified that he had only met Willie Boo once at the
entertainment center. It was his testimony that the others he met
there apart from Willie Boo and Encik Adnan was Tengku Faisal
and Encik Sam who was the General Manager of Greenland
Cleaning Services. CLW denied when it was put to him that he
had knowledge that Zalina and Murniyati were out of the
Company during working hours. He also denied that he had been
out more than once with them.
The 2 nd charge against the Claimant read as follows
“enjoying at entertainment centers with a few female operators
including Zalina Seman, Ann, Ayu and Murniyati during their
working hours”. A DI was held and its panel after Hearing the
evidence of Zalina and Murniyati found the Claimant guilty of the
2 nd Charge only. The Claimant it is noted was not allowed to
cross-examine the Company's witnesses. Nor were witnesses
called by the Claimant in his defense. There is nothing tendered
( 12 ) 27(20)(29)/4-1146/07

y way of evidence by the Company to show that the Claimant
though given the opportunity to call witnesses at the DI declined
to do so. Accordingly the Court can only conclude that the
Claimant was not given the opportunity to do so nor was he told
by the Company that he could call witnesses in his defense. This
renders the DI held improper. The Court will not go by its
decision and would itself inquire into the facts and evidence to
see whether the Company had discharged its burden on a
balance of probabilities as it is required to do and show that the
Claimant's dismissal was with just cause or excuse. In any event
the Company in its submissions through its Solicitors concede
that the DI was flawed but nevertheless submitted based on the
evidence adduced during the Hearing de novo of the case that the
dismissal of the Claimant was with just cause or excuse.
On the facts and it is not disputed by the Claimant that he
did visit the entertainment centers. He was not cross-examined
or was he challenged when he said that he would visit the joints
when he was off-duty. In any event it was not the charge that he
was seen at the entertainment centers during his working hours.
( 13 ) 27(20)(29)/4-1146/07

Needless to be said what a worker does during his off work hours
is his own business and cannot be controlled by his employer as
to what he should do or where he can go. The 2 nd charge however
accuses the Claimant to have been at the entertainment centers
enjoying with some of the female workers during their working
hours. Two of the said female workers were in the same
department as the Claimant and who in fact were under his
supervision though not directly. The Claimant does not deny that
he was at the entertainment center. His evidence is that he was
asked by his superior to meet him there viz, Willie Boo and
Adnan. This was again not challenged by the Company at the
Hearing.
COW.3 who investigated into the complaint that was
received from one of the Company Production Line Leaders, said
that she interviewed Murniyati who had told her that her
supervisor Sebastian had called her to go out to the
entertainment center. She said that Murniyati met the Claimant
and the rest there and that this happened more than once. The
statements of Zalina and Murniyati whom she interviewed were
( 14 ) 27(20)(29)/4-1146/07

not tendered to Court by the Company however. Both Zalina and
Murniyati did not testify at the Hearing either. Therefore the
Court will not know to what extent this is what was told to
COW.3 by them and it deprives the Claimant of the right to cross-
examine them let alone the Court being deprived of the chance to
seek clarifications from them. Hence the Court shall not attach
much weight to this part of the evidence of COW.3. It was not her
testimony that both Zalina and Murniyati told her that they
enjoyed themselves with the Claimant at the entertainment
center. Her testimony was that they had told her that they saw
him there. COW.3 testified that she knew that the Claimant was
enjoying himself at the entertainment center because that was
the purpose for going there. This was her presumption. The
evidence of COW.1 was that he would see the Claimant once in a
while at the entertainment center whenever he went there with
the others. Neither COW.1 or COW.3 testified that the Claimant
was there enjoying with the girls with the knowledge that they
were out during their working hours. This valuable piece of
information or should I say fact was missing from the evidence of
both COW.1 and COW.3. Both girls interviewed by COW.3
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allegedly said that they went with others to the entertainment
centers and not with the Claimant. On the evidence and facts
before it the Court finds that there is a dearth of evidence to
establish the 2 nd charge. If the misconduct is not establish viz
that the Claimant was enjoying with the named female workers
during their working hours it would simply mean that his
dismissal is without just cause or excuse.
The Court's conclusion is further fortified by the fact that
the Claimant was not challenged by the Company's Solicitors
when he testified that he did not know that the female workers
that he met at the entertainment center were there during their
working hours. It makes sense that he would not want to ask
them whether they were absconding from work that night when
the senior managers Willie Boo, Tengku Faisal and Adnan were
there. Neither was he cross-examined on his testimony that he
was there at the entertainment center to meet his boss, Willie
Boo. It was not put to him during his cross-examination that he
was lying.
( 16 ) 27(20)(29)/4-1146/07

Employee discipline I agree is never an easy matter to deal
with in any employer environment. There are many types of
employee misconduct-some obvious and some not so obvious.
But the burden is the same on the employee in that he is required
on a balance of probabilities to establish the act/s of misconduct
and to show that it justified terminating the employee. The Court
takes cognizance of the fact that off-duty conduct by an employee
can result in discipline matters if there is a material, adverse
nexus to the employer's business.
Accordingly after a careful consideration of the evidence and
facts before the Court finds that the termination is without just
cause or excuse as the 2 nd charge as not been established in
Court by the Company. As for the 1 st charge it is the pleaded
case of the Company that the panel of inquiry found the Claimant
not guilty of the 1 st charge but guilty of the 2 nd charge. Hence the
Court shall not look at the evidence to see whether the Company
has made out this charge leveled against the Claimant
notwithstanding that the Company's dismissal letter states that
the Claimant was that “as the charges proved against you...”.
( 17 ) 27(20)(29)/4-1146/07

On the assumption that the 2 nd charge had been proven if at
all, the Court opines that the punishment of dismissal that the
Company had meted out against the Claimant was unjust in the
light of the facts and evidence. It is the Court's view that before
an employer can decide on what action to take against an
offending employee it its responsibility to see whether the off-the-
job/off-duty misconduct of an employee affects the Company's
work and whether if the employee has been had a long tenure
with the Company he was warned and given a chance to desist
from his actions.
Relief
The 2 nd charge on the facts and evidence has turned out to
be unfounded and the ensuing dismissal of the Claimant by the
Company is therefore without just cause or excuse. Though the
Claimant seeks reinstatement the Court is of the view based on
the facts that it would not be desirable that he should be
reinstated and makes the following orders as such:
(1) Compensation in lieu of reinstatement
The Court orders the Company to pay the Claimant the
sum of RM8,700.00 derived as follows:
RM2,900.00 x 3 months = RM8,700.00
(2) Backwages
RM2,900.00 x 24 months = RM69,600.00
( 18 ) 27(20)(29)/4-1146/07

Rescaling
The backwages of RM69,600.00 otherwise payable to the
Claimant by the Company is reduced by 35% by the Court taking
into account his post dismissal earnings and the fact the
Claimant did contribute to the Company acting in the manner he
did against the Claimant thus leaving the sum of RM45,240.00
derived as follows:
RM69,600.00 x 65% = RM45,240.00
Final Order
The Company is ordered to pay the Claimant the sum of
RM53,940.00 (RM45,240.00 + RM8,700.00) only less any
statutory deductions to the Claimant via his Solicitors within 30
days from the date hereof.
HANDED DOWN AND DATED THIS 10 DAY OF MAY 2011
Signed
( DATO’ MARY SHAKILA G. AZARIAH )
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR
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