06.05.2013 Views

INDUSTRIAL COURT OF MALAYSIA

INDUSTRIAL COURT OF MALAYSIA

INDUSTRIAL COURT OF MALAYSIA

SHOW MORE
SHOW LESS

You also want an ePaper? Increase the reach of your titles

YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.

<strong>INDUSTRIAL</strong> <strong>COURT</strong> <strong>OF</strong> <strong>MALAYSIA</strong><br />

CASE NO. 13/4 - 1385/2007<br />

BETWEEN<br />

PUAN PHANG SHWU YING<br />

AND<br />

BIDOR KWONG HENG SDN. BHD.<br />

AWARD NO. 646 <strong>OF</strong> 2011<br />

BEFORE : TUAN EDDIE YEO SOON CHYE - CHAIRMAN<br />

VENUE : Industrial Court Malaysia, Kuala Lumpur<br />

DATE <strong>OF</strong> REFERENCE : 03.05.2007<br />

DATES <strong>OF</strong> MENTION : 30.07.2007; 05.09.2007; 11.10.2007; 09.11.2007;<br />

10.12.2007; 04.03.2007; 11.04.2008; 15.05.2008;<br />

31.07.2008; 02.12.2008; 13.01.2009; 06.02.2009;<br />

24.08.2009; 28.09.2009; 15.10.2009; 20.11.2009;<br />

06.04.2009; 17.02.2011; 06.04.2011<br />

DATES <strong>OF</strong> HEARING : 22.10.2009; 08.06.2010; 12.08.2010; 04.11.2010<br />

DATE <strong>OF</strong> CLAIMANT'S<br />

SUBMISSIONS RECEIVED : 29.12.2010<br />

DATE <strong>OF</strong> COMPANY'S<br />

SUBMISSIONS RECEIVED : 17.03.2011<br />

DATE <strong>OF</strong> CLAIMANT'S<br />

REPLY RECEIVED : 18.04.2011<br />

REPRESENTATION : Mrs. Junaidah Binti Hasan of Messrs<br />

Wrigglesworth & Co;<br />

Counsel for the Claimant.<br />

Mr. Edward Saw Keat Leong (Mr. Andrew<br />

Saw Tsan Chuan with him) of Messrs YH<br />

Teh & Quek,<br />

Counsel for the Respondent.<br />

REFERENCE : This is a reference by the Honourable Minister of Human<br />

Resource under section 20(3) of the Industrial Relations Act 1967 on 3 May 2007<br />

arising out of the dismissal of Puan Phang Shwu Ying (hereinafter referred to as the<br />

“Claimant”) on 30 November 2006 by Bidor Kwong Heng Sdn. Bhd. (hereinafter<br />

referred to as the “Respondent”).<br />

1


A W A R D<br />

1. This is a ministerial reference to the Industrial Court under section<br />

20(3) of the Industrial Relations Act 1967 (Act 177) for an award in respect<br />

of the dismissal of Puan Phang Shwu Ying (“the Claimant”) by Bidor<br />

Kwong Heng Sdn. Bhd. (“the Respondent”) on 30 November 2006.<br />

2. The hearing of this case commenced on 20 October 2009 and the<br />

hearing was duly concluded on 4 November 2010. The Claimant's solicitors,<br />

Messrs Wrigglesworth & Co filed the Written Submissions on 29 December<br />

2010 and Submissions in Reply on 18 April 2011. The Respondent's<br />

solicitors, Messrs YH Teh & Quek filed their Written Submissions on<br />

17 March 2011.<br />

FACTS <strong>OF</strong> THE CASE<br />

3. The Claimant commenced employment as a Sales Representative in<br />

the Respondent Company with effect from 1 April 2005 with a basic salary<br />

and fixed overtime of RM1,600 a month pursuant to a letter of appointment<br />

exhibited in CLB-1, page 1.<br />

2


4. The Respondent Company is in the business of manufacturing sauces<br />

such as soya sauce, oyster sauce and chilli sauce. The Company's brands<br />

are “Angel”, “Dewa Perempuan” and “Bunga” and supplies, markets and<br />

sells its products to supermarkets, hypermarkets, provision shops,<br />

convenience stores and medical halls.<br />

5. The Claimant was confirmed to her appointment as Sales<br />

Representative with effect 1 July 2005 based on the Claimant's good<br />

performance during the 3 months probation. (see Letter of Confirmation<br />

dated 21 June 2005 at exhibit CLB-1, page 5). According to the Claimant's<br />

Sales Performance Appraisal Form For 2005 (CLB-1, page 7) the Claimant's<br />

Overall Performance Rating was 'B' as good and consistently meets<br />

requirements.<br />

6. The Respondent Company sent a show cause letter signed by Mr. Lee<br />

Kok Tan, Executive Director dated 16 November 2006 (CLB-1, page 9) to<br />

the Claimant in relations to the Inquiry on Falling Sales Revenue, Work<br />

Performance and Complaints. The said letter is reproduced as below:<br />

“ RE: Inquiry on Falling Sales Revenue, Work Performance and Complaints<br />

Referring to the above mentioned matters, please make a written reply to<br />

me on the following issues/problems:<br />

3


1. Judging from sales performance for January – October 2006<br />

period, among seven (7) Sales personnel in KL Branch, sales in<br />

areas of your direct responsibilities have dropped the most<br />

significant, at -11.07%. Your personal sales is also the only one<br />

among seven that fell in double digits in terms of percentage, all<br />

others either improve or drop less than 10%. Please explain<br />

why and how are you going to improve.<br />

2. You have the lowest active accounts rate (i.e. Customer<br />

accounts which have active transactions with us within the last 6<br />

months verses total customer accounts in one's areas of<br />

responsibilities), please explain why and how are you going<br />

improve.<br />

3. You were instructed by your Sales Executive in November 2005<br />

to service Banting / Teluk Panglima areas in Selangor, which are<br />

close to your area of responsibility Klang, Selangor but until<br />

today, there has not been any significant effort on your part to<br />

do that. In addition, Fajar Retail Enterprises Sdn. Bhd., Banting,<br />

Selangor had faxed in a complaint about return goods not being<br />

taken care of since September 2006 (please refers to<br />

Attachment 'A'). Please explain why.<br />

4. Mydin Supermarket buyer complained in October 2006 that he<br />

had tried to contact you many times for supply to Mydin outlet<br />

in USJ Subang, Selangor but you didn't visit him. Please explain<br />

why.<br />

5. KL Branch received a Purchase Order from Mydin USJ Subang,<br />

Selangor on 2 nd November 2006 morning and noticed that the<br />

price for 475g Angel Taucu stated in the Purchase Order was<br />

incorrect. You were then instructed by your Sales Executive to<br />

immediately inform Mydin's buyer to correct the 475g Angel<br />

Taucu price as incorrect pricing will affect collection of payment<br />

but until 8 th November 2006, you have not contacted Mydin to<br />

correct the price, please explain why.<br />

Please be reminded that you are required to reply in writing with 7 days<br />

from the date of this letter. ”<br />

7. The Claimant replied to the above letter vide a letter dated<br />

19 November 2006 (exhibit CLB-1, page 10). The Claimant's letter is<br />

reproduced as follows:<br />

4


“ RE: Inquiry on Falling Sales Revenue, Work Performance and Complaints<br />

I refer to your letter dated 16-11-06 and hereby replying your content of<br />

your letter.<br />

1) In view of the market trend the buying power on my sets of gone<br />

down. Further, more supermarkets is now focussing on inventory<br />

control of stocks. Slow payments by supermarket also contribute the<br />

drop of sales.<br />

In order to improved on the sales, the following will be implemented with<br />

immediate effect<br />

a) Planning more promotion during the coming festive seasons.<br />

b) Increased the frequency call of supermarket to weekly.<br />

c) Negotiate for early payment.<br />

2) Accounts rates have lowest active rate due to some outlets have<br />

high inventory or slow of take, which at times supermarket carry<br />

high inventory of our stocks.<br />

Improvement plan: Proposed Sales Executive to assist me in promotion<br />

and work with me which was not done before. Sales Executive will assist<br />

me in opening new outlets and this was also not done.<br />

3) I was being informed by the sales executive not to service Banting<br />

and Teluk Panglima reason given: sales volume and buying power<br />

too small. The sales executive have informed to ask Dep Hong Klang<br />

wholesalers to service this two area.<br />

In addition, Fajar Banting return goods, I have consulted the sales<br />

executive on this issue i.e. as we have no outstanding accounts with them<br />

as per the sales executive instruction she says that not to bother on this<br />

matter. And the sales executive says she will think about it and will settled<br />

the issues on her ownself.<br />

4) Mydin have never call me or contact me. As we at that time have no<br />

account with them. Should Mydin have contact me or being<br />

informed by my superior I will surely attend this issue urgently.<br />

5) The tauchu pricing in Mydin USJ, I was instructed by the sales<br />

executive that she will attend to this matter. Further more, this<br />

account have passed to Sally to service. When transferring the<br />

accounts of Mydin I was not being informed by my superior. ”<br />

5


8. The Claimant was dismissed vide letter dated 30 November 2006 in a<br />

letter of dismissal (exhibit CLB-1, page 15) signed by the Human Resource<br />

Manager. The said letter of dismissal is reproduced as follows:<br />

“ BIDOR KWONG HENG SDN. BHD.<br />

MS PHANG SHWU YING<br />

No 11 – 2 – 3 Blok 11<br />

Desa Cheras, Cheras<br />

56000 Kuala Lumpur.<br />

Date : 30 – 11 – 2006<br />

Dear Ms Phang,<br />

With reference to the domestic inquiry held in the Company Conference<br />

Room on 24 – 11 – 2006 at 3.32 pm. We have carefully gone through<br />

your explanation in writing dated 19 th November 2006 and also the<br />

report of conclusion after inquired on 24 th November 2006. The related<br />

documents and the findings of the inquiry panel and we agree with its<br />

findings that on the evidence recorded at the inquiry, the charges<br />

against you which have been proved. Please refer to the conclusion<br />

report dated 29 th November 2006 to you by Mr KT Lee.<br />

As the charges proved against you are grave, we regret to inform you<br />

that under the circumstances, the company finds it necessary to<br />

dismiss you from service with immediate effect from the date of this<br />

letter.<br />

Please ensure that you return the following property in your possession<br />

by today.<br />

1) Company Sales Record Card Files ( All Including Supermarket )<br />

2) Temporary Receipt Book & Cash Voucher<br />

3) Company Name Card<br />

4) Shell Card<br />

5) Customer Cash Cheque or Collection ( Cash In Hand )<br />

6


The computation of what will pay to you is as follow :<br />

1) Salary for one month of November …...................... RM 1751.25<br />

2) 1 month salary in lieu of contractual notice …........... RM 1941.00<br />

3) Annual leave balance 3 days for the years 2006 …... RM 170.20<br />

Total amount of computation amounting to ….......... RM 3861.45<br />

Deduction for Advance Prepayment ….................... RM 300.00<br />

Balance amount of computation …......................... RM 3562.45<br />

We wish you all the best in your endeavours and thank you for the<br />

service with Bidor Kwong Heng Sdn Bhd. Enclosed herewith the HLBB<br />

cheque No. 074380 amounting RM 3562.45 for the above payment.<br />

Yours faithfully,<br />

sgd.<br />

…....................<br />

HR Manager ”<br />

9. The Claimant in the Statement of Case (paragraph 18) contended<br />

inter alia that the dismissal was without just cause or excuse and was<br />

carried out in bad faith and/or an act of victimization and/or unlawful labour<br />

practice and contrary to the role of natural justice and utterly<br />

unconscionable.<br />

7


THE LAW<br />

10. It is trite law that for dismissal cases the burden of proof rests on the<br />

company as employer to prove on a balance of probability that the dismissal<br />

of Claimant as employee was with just cause or excuse. The standard of<br />

proof is on a balance of probabilities. see Telekom Malaysia Kawasan<br />

Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314.<br />

11. The function of the Industrial Court is succinctly explained in the case<br />

of Goon Kwee Phoy v. J. & P. Coats (M) Bhd [1981] 2 MLJ 129 at<br />

page 136 where the Federal Court decided inter alia as follows:<br />

“Where representations are made and are referred to the Industrial<br />

Court for enquiry, it is the duty to that court to determine<br />

whether the termination or dismissal is with or without just<br />

cause or excuse. If the employer chooses to give a reason for the<br />

action taken by him the duty of the Industrial Court will be to enquire<br />

whether that excuse or reason has or has not been made out. If it<br />

finds as a fact that it has not been proved, the inevitable conclusion<br />

must be that the termination or dismissal was without just cause or<br />

excuse. The proper inquiry of the court is the reason advanced by it<br />

and that court or the High Court cannot go into another reason not<br />

relied on by the employer or find one for it.”<br />

[Emphasis added]<br />

12. The function of the Industrial Court in a section 20(3) reference such<br />

as this is two-fold; first, to determine whether the misconduct complained of<br />

by the employer has been established and, secondly, whether such proven<br />

8


misconduct constitutes just cause or excuse for the dismissal (see Wong<br />

Yuen Hock v. Hong Leong Assurance Sdn Bhd [1995] 3 CLJ 344 and<br />

Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 499).<br />

THE RESPONDENT'S CASE AND SUBMISSIONS<br />

13. The Respondent called the following witnesses to testify in this case:<br />

COW-1- Linda Wong Tok Chin, 47 years old<br />

Sales Executive Kepong; and<br />

COW-2 - Lee Kok Tan, 46 years old<br />

Executive Director.<br />

14. COW-1 testified in Court on 22 October 2009, 8 June 2010 and<br />

12 August 2010. The relevant evidence-in-chief of COW-1 are as follows:<br />

Q: Who was the Sales Executive who was responsible for servicing<br />

Mydin, USJ?<br />

A: The Claimant was responsible for servicing Mydin, USJ as it<br />

was under her portfolio. Sometime in October 2006 the Mydin<br />

account was handed over to a new Sales Representative who<br />

had just joined. Her name was Sally Tang.<br />

9


Q: In or around October 2006 were there any incidences involving<br />

the Claimant and Mydin?<br />

A: Yes, on 12 th October 2006, the then new Sales Representative,<br />

Ms. Sally Tang, had reported to me that she had gone to Mydin<br />

USJ and discovered that the Company's products were no<br />

longer on their shelves. She was informed that this was<br />

because the Buyer had tried to contact the Claimant (who was<br />

then responsible for servicing them) since June 2006 for<br />

service but the Claimant was uncontactable and never came to<br />

Mydin, USJ. As a result Mydin, USJ stopped ordering the<br />

Company's products. Ms. Sally Tang then asked them for a list<br />

of the products that they had been ordering from the Company<br />

and Mydin USJ gave her a Supplier Product Summary. She<br />

then brought this Supplier Product Summary back to me and<br />

told me about this.<br />

Q: Did anything else happen with regards to Mydin, USJ?<br />

A: Yes. After the Ms. Sally Tang had re-established contact with<br />

Mydin, USJ they began to order from us again. I received a<br />

purchase order from Mydin on 2.11.2006 and I noticed that<br />

their prices quoted for the 475 g Angel Taucu were lower than<br />

10


the current price. I then realized that the price quoted was the<br />

old price pre price revision which took place in July/August<br />

2005. This meant that the Claimant had never gone to Mydin,<br />

USJ since the price revision to update the price in their<br />

database. As a result we could not deliver immediately to<br />

Mydin because of the discrepancy in the pricing. I quickly<br />

raised this with the Claimant and told her to go and update the<br />

price because it was her responsibility to do so since the price<br />

revision. Her response was that it was not her problem any<br />

more because the account had been passed over to Sally Tang.<br />

15. COW-2 testified in Court on 12 August 2010. The relevant evidence-<br />

in-chief of COW-2 are as follows:<br />

Q: Did Ms. Linda Wong raise any issues pertaining to the<br />

performance or the attitude of the Claimant?<br />

A: Not specifically. During that period when Ms. Linda Wong was<br />

reporting to me it would be normal for me to call or meet with<br />

Ms. Linda Wong to ask how the branch was doing and how the<br />

Sales Representatives were doing and whether there were any<br />

general problems they were facing. Once in a while during<br />

these conversations Ms. Linda Wong would mention in passing<br />

some issues she faces with the Claimant and that sometimes<br />

11


the Claimant was not very cooperative. These were general<br />

complaints which I left to Ms. Linda Wong to handle.<br />

Q: Were you in a position to assess the Claimant's performance as<br />

a Sales Representative?<br />

A: Only from the aspect of sales because that is what the Sales<br />

Representative is employed to do. When there is a need we<br />

would hold a Sales Conference where all the Sales personnel<br />

will meet to brainstorm on ways to improve the Company's<br />

sales. During these Sales Conferences the sales figures of<br />

each Sales Representative would be reviewed individually and<br />

will be discussed at the Sales Conference.<br />

Q: Please refer to page 13 to 14 of the Company's Bundle of<br />

Documents. What is this document?<br />

A: This is the Claimant's response dated 19.11.2006 which I<br />

received on 20.11.2006.<br />

Q: What was your reaction to the Claimant's response?<br />

A: From the Claimant's response it was clear that the Claimant<br />

was making the same excuses for her decline in sales blaming<br />

it on the market trends and slow payments from customers. I<br />

did not find these reasons acceptable because the retail<br />

12


industry had been growing and there was no reason why the<br />

Claimant's sales should have been declining. On the other<br />

matters like Mydin and Fajar the Claimant pushed the blame to<br />

the Sales Executive Ms. Linda Wong.<br />

Q: Did the inquiry take place on 24.11.2006?<br />

A: Yes. The inquiry did take place on the 24.11.2006. I chaired<br />

the inquiry together with Mr. Chan Fook Cheon who was the<br />

Human Resource Manager and Ms. Low Yit Voon who was the<br />

then Quality Assurance Executive.<br />

Q: After the inquiry did the inquiry panel meet to discuss this<br />

matter?<br />

A: Yes. Immediately after the inquiry and after the Claimant had<br />

left the room the 3 of us stayed back to discuss the matter.<br />

We were unanimous in finding that the Claimant's explanations<br />

wholly unacceptable and we found that the Claimant had been<br />

incompetent and lackadaisical in her work attitude.<br />

Q: Please refer to page 21 of the Company's Bundle of<br />

Documents. What is this document?<br />

A: These are the conclusions of the panel which were conveyed to<br />

the Claimant vide the Company's letter dated 29.11.2006.<br />

13


Q: What happened next?<br />

A: After sending the conclusions to the Claimant on 29.11.2006<br />

I and Mr. Chan Fook Cheon, the Human Resource Manager,<br />

discussed on what action to be taken against the Claimant.<br />

Having considered the Claimant's work attitude, her sales<br />

figures and her excuses we found that the Claimant was not<br />

committed to acting in the best interests of the Company. By<br />

not servicing her customers which were large supermarket<br />

chains such as Mydin and Fajar we were faced with the risks of<br />

our products being delisted at their outlets which would cause<br />

losses in terms of business and business opportunities and we<br />

simply could not afford that. As such we had lost trust and<br />

confidence in her and therefore we decided to dismiss her.<br />

16. Learned counsel for the Respondent, Mr. Edward Saw Keat Leong<br />

submitted inter alia the following:<br />

(i) the Claimant's dismissal on 30 November 2006 was premised<br />

on her incompetent, lackadaisical and indifferent attitude<br />

towards her job responsibilities;<br />

(ii) the Claimant did not make any effort to develop the Company's<br />

business by opening new outlets in Teluk Panglima Garang or<br />

14


Banting and the Claimant did nothing whatsoever to service<br />

Mydin at least from June 2006;<br />

(iii) the Claimant's sales performance had declined drastically by<br />

11.07%; and<br />

(iv) the Respondent had reasonable grounds to dismiss the<br />

Claimant and therefore her dismissal was with just cause or<br />

excuse.<br />

THE CLAIMANT'S CASE AND SUBMISSIONS<br />

17. The Claimant testified in Cantonese on 4 November 2010 in this case<br />

and her evidence-in-chief is produced and marked as CLWS-1. The brief<br />

evidence of the Claimant are as below:<br />

Q: What is the scope of works and job descriptions for you as the<br />

Sales Representative of the Company?<br />

A: I have to promote the Company's products such as soya sauce<br />

and ketchup, to supply Company's product to hypermarket,<br />

mini market, grocery shop, and all other places, to conduct<br />

survey for the business partners, to assist and accommodate<br />

consumer needs and requirements and to meet all sales<br />

15


targets fixed by the Company and other jobs/works instructed<br />

by the Company from time to time.<br />

Q: What were the allegations raised by the Company?<br />

A: The Company raised five issues.<br />

Firstly, the Company alleged that my personal sales under<br />

areas of my coverage have dropped at 11%.<br />

Secondly, I have the lowest active accounts rate.<br />

Thirdly, the Company alleged that I did not make any<br />

significant effort to service and explore Banting / Teluk<br />

Panglima areas in Selangor as instructed by the Sales<br />

Executive in November 2005. Also, there was a complaint<br />

about return goods not being taken care of since September<br />

2006 from Fajar Retail Enterprises Sdn. Bhd., Banting,<br />

Selangor.<br />

Fourthly, there was another complaint from Mydin USJ<br />

Supermarket in October 2006 that I have failed to visit them<br />

despite their attempt to contact me.<br />

Lastly, the Company alleged that I have failed to update the<br />

new price of 475 g Angel Taucu to Mydin USJ as instructed by<br />

my Sales Executive.<br />

16


Q: What were all these allegations about?<br />

A: Those allegations were made against me to show that the<br />

Company have not satisfied with my work performance and<br />

requested me to improve.<br />

Q: And what is your explanation to the Company's 1 st and 2 nd<br />

allegations?<br />

A: I have replied via my letter dated 19 th November 2006 stating<br />

the market trend and I also suggested that the Sales Executive<br />

(Linda Wong) to assist me in opening new outlets as I am<br />

willing and ready to improve myself.<br />

Q: And what is your explanation to the Company's allegations that<br />

you have failed to collect the returned goods from Fajar<br />

Banting?<br />

A: After I received a call from Fajar Banting, I consulted Linda<br />

Wong. Linda Wong asked me not to bother about it as she will<br />

settle everything on her own as she had already instructed me<br />

to stop servicing Banting and Teluk Panglima Garang areas.<br />

17


Q: And what is your explanation to the Company's 4 th allegations.<br />

A: I have never received any call from USJ Mydin at that point of<br />

time and if I ever received any call from them, I will definitely<br />

attended to tem as I was regularly servicing Mydin Kepong.<br />

Q: And what is your explanation to the 5 th Company's allegations?<br />

A: I have explained to the Company that I have updated all<br />

revised price for all the Company's goods except the price for<br />

475 g Angel Taucu – Since the account had already assigned to<br />

Sally Tang somewhere in October 2006, therefore Sally Tang<br />

had the responsibility to check whether the price quoted is the<br />

updated price or the old price. And if there is any discrepancy<br />

in the price, the person in charge for the aforesaid amount<br />

have to attend to the discrepancies.<br />

Q: How you describe your performance in the Company<br />

throughout your tenure of employment with the Company?<br />

A: The Company never called me personally to discuss about my<br />

performance in the Company except during Sales Conference.<br />

Instead, the Company had on 16 th September 2006 paid an<br />

incentives either in group or personally to me.<br />

18


18. Learned counsel for the Claimant, Mrs. Junaidah Binti Hasan in the<br />

Written Submissions contended the following:<br />

(i) the Claimant was dismissed without just cause or excuse as<br />

the Respondent had failed to prove all the five (5) allegations<br />

made by the Respondent against the Claimant;<br />

(ii) the Claimant has achieved 88.7% from the 2005 sales target in<br />

the year 2006 and the Respondent dismissed her without any<br />

reminder or warning;<br />

(iii) the Claimant had a large area of coverage and has 148 active<br />

accounts (COB, page 3). There is no target imposed on the<br />

number of active account for the Claimant to maintain;<br />

(iv) if the Claimant's performance is poor, why the Respondent still<br />

award bonus and increment to the Claimant?; and<br />

(v) the Claimant was not accorded sufficient time to improve and<br />

DOMESTIC INQUIRY<br />

there no warning letter was given to the Claimant.<br />

19. Where a domestic inquiry had been held, as in the instant case, the<br />

Industrial Court's jurisdiction is limited to considering whether there is a<br />

prima facie case against the Claimant. This approach was advocated in the<br />

19


case of Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan<br />

Malaysia & Anor [2004] 7 CLJ 77, and in the Court of Appeal case of<br />

Jye Tai Precision Industrial Court (M) Sdn Bhd v. Victoria a/p<br />

Arulsamy [2008] 1 CLJ 760.<br />

20. The duty of the Court is to first consider whether or not the domestic<br />

inquiry was valid and whether the inquiry notes were accurate. Further, if<br />

the rules of natural justice had been duly observed and the inquiry finding<br />

was based on the evidence presented to it, this Court ought then to consider<br />

such finding in order to conclude whether the Claimant had been dismissed<br />

with or without just cause or excuse (see Metroplex Administration Sdn<br />

Bhd v. Mohamed Elias [1998] 5 CLJ 467).<br />

EVALUATION AND FINDINGS<br />

21. The Claimant was given due Notice of the Domestic Inquiry dated 21<br />

November 2006 as reflected in COB, page 15. The Notes of Domestic<br />

Inquiry held on 24 November 2006 is exhibited in COB, page 20. The Notes<br />

of Domestic Inquiry merely states what was discussed during the Inquiry<br />

which was chaired by COW-2 and attended by Chan Fook Cheon, Low Yik<br />

Voon and the Claimant. COW-2 in a letter dated 29 November 2006 (COB,<br />

page 21) on the Conclusions After Inquiry on 24 November 2006 to the<br />

Claimant outlined the charges on the Claimant outlining the facts and<br />

20


conclusions. What is paramount now for the Court's consideration is<br />

whether there were sufficient evidence before the Board of Inquiry to justify<br />

its finding of guilt as charged against the Claimant as reflected in the Board<br />

of Inquiry Findings found in the dismissal letter dated 30 November 2006 at<br />

page 15 of CLB-1.<br />

22. It is pertinent to note that albeit there being a Domestic Inquiry by<br />

the Respondent to investigate the charges against the Claimant, this Court<br />

rehears the matter afresh. This Court has to make a finding of fact<br />

premised on the evidence available as to whether a case of misconduct has<br />

been established against the Claimant by the Respondent on the balance of<br />

probabilities.<br />

23. The Court of Appeal in Hong Leong Equipment Sdn. Bhd. v. Liew<br />

Fook Chuan & Other Appeals (1997) 665 at page 716 inter alia decided<br />

as follows:<br />

“The fact that an employer has conducted a domestic inquiry against<br />

his workman is, in my judgement, an entirely irrelevant consideration<br />

to the issue whether the latter had been dismissed without just cause<br />

or excuse. The findings of a domestic inquiry are not binding<br />

upon the Industrial Court which rehears the matter afresh.<br />

However, it may take into account the fact that a domestic inquiry<br />

had been held when determining whether the particular workman<br />

was justly dismissed.”<br />

21


24. This Court will determine on the merits of the case as to whether the<br />

Respondent has on the balance of probabilities based on the evidence<br />

adduced that the Claimant was guilty of charges preferred against her and<br />

secondly the misconduct constituted just cause or excuse for the dismissal.<br />

Accordingly, the Court shall now deal with the respective charges against<br />

the Claimant.<br />

25. The Claimant's services with the Respondent Company was<br />

terminated on 30 November 2006 in a dismissal letter (supra). The question<br />

for the Court's determination now is whether the Claimant was dismissed<br />

with just cause or excuse. It was explicitly clear from the dismissal letter<br />

whereby a detailed scrutiny of the dismissal letter indicated that the<br />

Respondent's Human Resources Manager states the following as the reason<br />

for the Claimant's dismissal:<br />

“As the charges proved against you are grave, we regret to inform<br />

you that under the circumstances, the company finds it necessary to<br />

dismiss you from service with immediate effect from the date of this<br />

letter.”<br />

The allegations and charges against the Claimant were reflected in the<br />

Respondent's letter dated 16 November 2006 (supra) to the Claimant<br />

pertaining to the Inquiry on Falling Sales Revenue, Work Performance and<br />

Complaints. Now, the Court's duty is to enquire whether the excuse or<br />

reason advanced by the Respondent Company has been made out. If, the<br />

22


Court finds as a fact that it has not been proven, then the inevitable<br />

conclusion must be that the dismissal was without just cause or excuse.<br />

26. C.P. Mills in Industrial Disputes Law in Malaysia, 2nd Edition<br />

1984 at page 78, states the following:<br />

“Unless there is clear evidence to support the charge of misconduct,<br />

the employer's decision against the workman will not be upheld by<br />

the Court.<br />

Even where there were reasonable grounds before the employer for<br />

concluding that the workman was guilty of the misconduct alleged<br />

against him, but in the proceedings before the Court the evidence<br />

does not permit any firm conclusion that the workman did commit the<br />

acts in question, the dismissal will not be sustained.”<br />

Allegation 1: Sales in areas under the Claimant's coverage dropped<br />

at 11.07%<br />

27. The Respondent in the show cause letter dated 16 November 2006<br />

states that “Judging from sales performance for January – October 2006<br />

period, among seven (7) Sales personnel in KL Branch, sales in areas of your<br />

direct responsibilities have dropped the most significant, at -11.07%.” The<br />

Respondent produced the 2006 Half Yearly Sales Collections Targets as<br />

reflected in COB, page 3. In cross-examination of COW-2 states as follows:<br />

Q: What is the expectation of the Company regarding the<br />

Claimant's performance?<br />

23


A: The target already conveyed to the Claimant in early 2006. I<br />

gave her some thoughts as to how she can improve the sales.<br />

There was documentary proof produced in Court to reflect the sales target<br />

set by the Respondent for the Claimant to achieve. There was not an iota of<br />

evidence adduced by the Claimant to rebut the allegations by the<br />

Respondent that the sales in areas under the Claimant's coverage dropped<br />

at 11.07%.<br />

Allegation 2: Lowest active accounts rate<br />

28. The Respondent in the show cause letter dated 16 November 2006<br />

states that “You have the lowest active accounts rate (i.e. Customer<br />

accounts which have active transactions with us within the last 6 months<br />

verses total customer accounts in one's areas of responsibilities).” The 2006<br />

Half Yearly Sales Collections Targets clearly shows that the Claimant's active<br />

accounts was 148 from the list of the Respondent Company's personnel. The<br />

Claimant's counsel submissions that there was no target imposed on the<br />

number of active account for the Claimant to maintain is therefore devoid of<br />

merits. If the sales in areas under the Claimant's coverage had declined by<br />

11.07%, how could the Claimant achieve a high active accounts rate?<br />

24


Allegation 3: Banting/Teluk Panglima Garang<br />

29. The Respondent in the show cause letter dated 16 November 2006<br />

states that “You were instructed by your Sales Executive in November 2005<br />

to service Banting/ Teluk Panglima areas in Selangor, which are close to<br />

your area of responsibility Klang, Selangor but until today, there has not<br />

been any significant effort on your part to do that. Fajar Retail Enterprises<br />

Sdn. Bhd., Banting, Selangor had faxed in a complaint about return goods<br />

not being taken care of since September 2006.” Counsel for the Claimant<br />

asked COW-1 the following questions:<br />

Q41: Is there any complaint from Fajar Banting?<br />

A: Yes, the Claimant did not collect the damaged goods.<br />

Q67: Who is responsible to explore the new outlet in Banting and<br />

Teluk Panglima Garang?<br />

A: The Claimant.<br />

The Claimant's lack of interest and initiative is exemplified in cross-<br />

examination of the Claimant as follows:<br />

Q8: You are waiting for Linda Wong to move?<br />

A: I asked Linda Wong when she would be going then I follow<br />

her.<br />

25


Q17: Is is true that you expected Linda Wong to assist you to open<br />

A: Yes.<br />

new outlets?<br />

Q20: Linda Wong had already accompanied you to survey the three<br />

areas?<br />

A: Yes.<br />

It was crystal clear that COW-1 referred to the Goods Returned Advice<br />

(COB, pages 6 – 9) issued by Fajar to the Respondent in September 2006.<br />

COW-1 confirms that the Claimant was the Sales Representative responsible<br />

for servicing Fajar.<br />

Allegation 4: Mydin<br />

30. The Respondent in the show cause letter dated 16 November 2006<br />

states that “Mydin Supermarket buyer complained in October 2006 that he<br />

had tried to contact you many times for supply to Mydin outlet in USJ<br />

Subang, Selangor but you didn't visit him.” COW-1 categorically states that<br />

on 12 October 2006, Ms. Sally Tang, the new Sales Representative reported<br />

to COW-1 that she discovered the Respondent's Company products were no<br />

longer on their shelves when she visited Mydin USJ. The Buyer from Mydin<br />

USJ had tried to contact the Claimant since June 2006 for service. However<br />

the Claimant was uncontactable and never came to Mydin USJ. As a result,<br />

26


Mydin USJ stopped ordering the Respondent's Company products. Ms. Sally<br />

Tang had to re-establish contact with Mydin USJ.<br />

Allegation 5: Failure by Claimant to update new price<br />

31. The Respondent in the show cause letter dated 16 November 2006<br />

states that “You were then instructed by your Sales Executive to<br />

immediately inform Mydin's buyer to correct the 475g Angel Taucu price as<br />

incorrect pricing will affect collection of payment but until 8 th November<br />

2006, you have not contacted Mydin to correct the price.” It was crystal<br />

clear from the evidence of COW-1 that “After Sally Tang had re-established<br />

contact with Mydin, USJ they began to order from us again. I received a<br />

purchase order from Mydin on 2.11.2006 and I noticed that their prices<br />

quoted for the 475 g Angel Taucu were lower than the current price. I then<br />

realized that the price quoted was the old price pre price revision which took<br />

place in July/August 2005. This meant that the Claimant had never gone to<br />

Mydin, USJ since the price revision to update the price in their database.”<br />

32. In order to justify the Claimant's dismissal on the ground of poor or<br />

unsatisfactory performance, the Respondent has to establish that the<br />

Claimant was warned about her poor performance and the Claimant was<br />

accorded sufficient opportunity to improve. COW-2 in cross-examination<br />

(Question 11) states that the Respondent asked the Claimant to improve<br />

27


and that the Respondent gave the Claimant time to improve when he<br />

noticed the Claimant's sales decreased. COW-2 states further as follows:<br />

Q45: Before the show cause to the Claimant, was there any<br />

warning?<br />

A: No official warning. There was verbal discussion. We<br />

reminded her to improve.<br />

Q46: Have you given the Claimant any time frame to improve?<br />

A: Between June – October 2006. We pointed out that her sales<br />

dropped by 11% and her active customers list has the lowest<br />

number.<br />

33. In response to the Claimant's reply dated 19 November 2006, COW-2<br />

categorically states in his evidence that it was clear that the Claimant was<br />

making the same excuses for her decline in sales blaming it on the market<br />

trends and slow payments from customers and COW-2 do not find these<br />

reasons acceptable because the retail industry had been growing and there<br />

was no reason why the Claimant's sales should have been declining. The<br />

Claimant owes a duty to the Respondent to exercise reasonable care in the<br />

performance of her duties. It was clear from the evidence adduced in Court<br />

that the Claimant failed to perform her duties when required to do so.<br />

34. The Court is inclined to agree with the submissions of the learned<br />

counsel for the Respondent that the Claimant's dismissal on 30 November<br />

2006 was premised on her incompetent, lackadaisical and indifferent<br />

28


attitude towards her job responsibilities and that the Respondent had<br />

reasonable grounds to dismiss the Claimant. The Respondent simply could<br />

not afford to lose any customers like Mydin USJ for reasons of inadequacy of<br />

service by the Claimant. It is therefore unreasonable to expect the<br />

Respondent to continue retaining the Claimant in their employment. The<br />

argument and submissions by the learned counsel for the Claimant that the<br />

Claimant was dismissed without just cause or excuse as the Respondent had<br />

failed to prove all the five allegations made by the Respondent Company<br />

against the Claimant are therefore clearly devoid of merits.<br />

35. On the totality of the evidence adduced and having considered all the<br />

written submissions of both parties, it is the finding of this Court based on<br />

the facts and circumstances of this case, that the reason or excuse<br />

advanced by the Respondent to the Claimant that “As the charges proved<br />

against you are grave, we regret to inform you that under the<br />

circumstances, the company finds it necessary to dismiss you from service<br />

with immediate effect from the date of this letter” has been made out. On<br />

the balance of probability, this Court finds that the inevitable conclusion<br />

must be that the dismissal of the Claimant was with just cause or excuse.<br />

36. It is a finding of the Court that the incompetence, ineptitude or the<br />

dereliction of duty on the part of the Claimant necessitated her dismissal as<br />

the Claimant in this case was not acting in the best interest of the<br />

29


Respondent. The Claimant as a Sales Representative was in a position of<br />

trust and confidence to sell and promote the Respondent's products. Based<br />

on the aforesaid reasons in the factual matrix and circumstances of this<br />

case, a meaningful employer-employer relationship between the Respondent<br />

and the Claimant could no longer be sustained. The Court will therefore not<br />

interfere with the Respondent's decision to terminate the Claimant's<br />

employment.<br />

CONCLUSION<br />

37. Based on the totality of evidence, written submissions of both parties<br />

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

according to equity and good conscience and the substantial merits of this<br />

case, it is the Court’s finding that the Claimant's dismissal was with just<br />

cause or excuse. Accordingly, the Claimant's case is hereby dismissed.<br />

HANDED DOWN AND DATED THIS 9 TH MAY 2011.<br />

( EDDIE YEO SOON CHYE )<br />

CHAIRMAN<br />

<strong>INDUSTRIAL</strong> <strong>COURT</strong> <strong>MALAYSIA</strong><br />

KUALA LUMPUR<br />

30

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!