4-743/06 between encik adar bin ya and proton ... - Industrial Court

INDUSTRIAL COURT OF MALAYSIA
CASE NO: 26(28)/4-743/06
BETWEEN
ENCIK ADAR BIN YA
AND
PROTON EDAR SDN. BHD
AWARD NO: 64 OF 2011
Before : AHMAD TERRIRUDIN BIN MOHD SALLEH -
CHAIRMAN (Sitting Alone)
Venue : Industrial Court Malaysia, Kuala Lumpur
Date Reference : 30.12.2005
Dates of Mention : 25.05.2006, 28.06.2006, 04.08.2006, 04.09.2006,
03.09.2007, 18.01.2008, 04.08.2008, 24.04.2009,
27.04.2009, 11.05.2009, 20.10.2010, 01.11.2010
& 16.11.2010
Date of Hearing : 04.10.2007 & 05.10.2007
Representation : Mr. Abdul Razak b. Abu Bakar of Messrs.
Hazman.Tan, Counsel
for the Claimant
Mrs. Tang Miaw Tiang of Malaysian Employers
Federation, Representative
for the Respondent/Company
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Reference:
The reference of the Honourable Minister of Human Resources, Malaysia
is regarding the dismissal of Encik Adar bin Ya (“the claimant”) by Proton
Edar Sdn. Bhd. (“the company”).
AWARD
(NO: 64 OF 2011)
This is a Ministerial reference to the Industrial Court under section 20 (3)
of the Industrial Relations Act 1967 (“the Act”) made on 17 March 2006
for an award in respect of the dismissal of Adar bin Ya (“the claimant”)
by Proton Edar Sdn Bhd (“the company”).
Background
The case was heard by the previous Y.A. Chairman of Industrial Court No.
28 and he has been transferred from Industrial Court effective in March
2009. As such, the learned President of the Industrial Court transferred
the matter to this Division on 8 December 2010. It is pertinent to note
that counsel for both parties on 16 November 2010 have agreed for this
Court to deliver the award.
After having carefully perused, examined and considered the notes of
evidence from both the company as well as the claimant, the Court does
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not find any problem in handing down the Award, as the issue is
straightforward, plain and clear.
Brief Facts Of The Case
The claimant commenced employment with the company as a Workshop
Manager on 5 April 1996 at a salary of RM2,600.00. The claimant alleged
that he was unfairly dismissed by the company on 6 May 2004. The
claimant's last drawn salary was RM5,022.00 per month. However, the
company did not agree with the claimant's allegation and contends that
the claimant was dismissed for committing two serious misconducts. It is
important to note that a domestic inquiry was conducted by the company
against the claimant on 22 April 2004 and the domestic inquiry panel
found him guilty on charges no. 2 and no. 3. For ease of reference the
notice for domestic inquiry is reproduced below:
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The Law
In relation to misconduct the court refers to the case of Menara
Panglobal Sdn. Bhd. v. Arokianathan Sivapiragasam [2006] 2 CLJ 501 a
case again by the Court of Appeal which reiterated the principle that the
main and only function of the Industrial Court in dealing with a reference
under section 20 of the Act is to determine whether the misconduct or
irregularities complained of by the company as to the grounds of
dismissal were in fact committed by the workman and if so, whether such
grounds constitute just cause or excuse for the dismissal.
It is trite and a well known jurisprudence that for dismissal cases, the
employer bears the burden of proof that the dismissal was with just
cause or excuse on a standard of proof which is on a balance of
probabilities; see Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 LNS
30; [1981] 2 MLJ 129; Telekom Malaysia Kawasan Utara v. Krishnan Kutty
Sanguni Nair & Anor [2002] 3 CLJ 314.
Issues
Before proceeding further, it is mundane to state here that the Court will
only determine the validity of the claimant's dismissal in accordance with
his termination letter. In Gan Chee Ming v. TN Forklift Holdings Sdn.
Bhd. & Anor [2001] 6 CLJ 13, His Lordship Faiza Tamby Chik J said at p.
18 of the following:
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“It is trite that the Industrial Court's jurisdiction is limited to
deciding whether the company had just reasons to dismiss the
employee at the time of dismissal. The company cannot depend on
events after the dismissal to justify the dismissal.”.
Following the case of the Federal Court in the case of Milan Auto Sdn.
Bhd. v. Wong Sen Yen [1995] 4 CLJ 449, the Court will determine two
issues.
Firstly 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.
Evidence By The Parties
Company's Case
The company called 3 witnesses. The first witness for the company is Zul
Emran bin Yaakob (COW1). He testified orally in Court that at the
material time he was the Marketing Executive for Tsubasa System
Company. He confirmed that he did prepare a written report (page 12 of
enclosure 7) regarding the incident involving the claimant and Mr.
Sugimoto (Sugimoto). In his oral evidence and written report he stated
that on 22 March 2004 at about 1.30 pm to 2.00 pm while sitting at his
place the claimant and Sugimoto came to his office. Then he said he
heard the claimant raised his voice to Sugimoto and the quarrel started
between them. COW1 said that he went out of the office and informed
Mr. Hatai (Hatai) and Hatai took them out of the office and brought them
to the car park behind the office. However, after 2 to 3 minutes later,
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Miss Zarina (Zarina) shouted to him that the said two are starting to fight
so he went to the place and try to break the scuffle. At that place also
he saw Mr. Mahadi (Mahadi) was lying on the floor with a screwdriver in
his hand and Sugimoto was still kicking him. COW1 then managed to stop
Sugimoto and brought him to the front portion of the area and while
waiting for the car he said the claimant came to them with a “parang”
and the claimant also told Sugimoto not to come again to the shop. After
the car came, COW1 said they left the place with Hatai. COW1 also
admitted that he did give evidence during the DI. During examination in
chief, COW1 testified that when Sugimoto and Mahadi were fighting the
claimant was nearby and he only observed and did not do anything. COW1
further testified that he did not see Sugimoto kicked or hit the claimant.
To give a clearer picture of the incident, the claimant also drew a sketch
plan (enclosure 11) of the area indicating the place where the claimant
came with a “parang” ( the place was marked as “Z” in the sketch plan).
According to COW1, the claimant was angry when he spoke to Sugimoto
and at that time he was showing the “parang” to Sugimoto. COW1
confirmed that Sugimoto did not harm the claimant but was more
interested to go back to the where Mahadi was. He also confirmed that
he did not see Sugimoto hitting the claimant. The second witness for the
company is Zarina binti Che Omar @ Mahmud. COW2 also gave oral
evidence in court. In her oral testimony, she said that at the material
time she worked as the Administrative Assistant of the company.
Pertaining to the said incident, COW2 confirmed that she had prepared a
written report (page 11 of enclosure 7) and also gave evidence as a
witness in the Domestic Inquiry (DI) against the claimant. Regarding the
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incident between the claimant and Sugimoto, COW2 supported the
testimony of COW1. COW2 further added that she did not see Sugimoto
punching the claimant. She also remembered that the claimant did point
the “parang” to Sugimoto and told him in angry tone to go back and if he
did not the claimant said he will chop Sugimoto. The last witness for the
company is Mohd Aswan bin Abdullah (COW3). Vide his witness statement
(COWS3 (a)), COW3 said that when the DI was convened he was the Sales
Manager for Jalan Ipoh Branch, Kuala Lumpur. COW3 confirmed that the
DI was convened on 22 April 2004 and apart from YM Engku Ahmad
Kamel and Encik Suhairi Saad, he was also one of the panel members for
the DI. COW2 said that the DI panel followed the procedures and the
claimant also was given the opportunity to cross-examine the witnesses
for the company. He further added that during the said DI also the
claimant called 5 witnesses. As for the DI notes (enclosure 8), COW3
confirmed that the notes recorded was what exacly taken during the DI
proceeding. Finally, he said the DI panel found the claimant guilty only
on 2 nd and 3 rd charges and recommended that the claimant be dismissed.
Claimant's Case
Vide his witness statement (CLWS1 (a), the claimant stated that on 22
March 2004, the company's workshop received a polishing and body
coating order for Proton Waja with registration number WLN 5849.
However, due to the mistake done by one of the company's technician
during the polishing process, there were some scratches at the front
bumper. He further stated that the scratches needed to be repainted
and as a result the delivery of the car to the customer had to be delayed.
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According to the claimant, upon knowing this, Sugimoto who is the
coordinator of the company became upset and scolded him for the
mistake done by the technician. He further alleged that despite politely
explaining the situation to Sugimoto he is still not satisfied and rudely
pointed finger at him. The claimant then requested Sugimoto not to
point his finger at him and not to interfere with operation of the
workshop. At that time he said Hatai came and took both of them
outside the workshop and again he requested Sugimoto to talk to him
politely and not to point finger at him. The claimant alleged that when
he tried to leave Sugimoto and walked back to his office Sugimoto
grabbed his shirt around his shoulder but he told Sugimoto to let him go
and he further said to Sugimoto that should he wish to talk to him he
must do it properly. However, he said Sugimoto was not happy with his
explanation and grabbed him by the collar and lifted him off his feet with
his right hand. At the same time he said Sugimoto's left hand was
clenched into a fist and was poised to give him a punch to his face or
head. Acting in self defence, the claimant said he brandished a “parang”
which he took out from the car boot at Sugimoto and warned him not to
come any closer. The claimant denied that the “parang” was displayed in
an aggressive attacking manner and claimed that it was done as a self
defence and in fear of grave physical harm by Sugimoto.
With regards to the DI, the claimant alleged that Sugimoto was not called
during the inquiry. He also claimed that he knew one of the panel
members that is Suhairi Saad for almost ten years since he has worked
with in the company. The claimant's second witness is Mahadi bin Ariff.
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Vide his written statement (CLWS2 (a)), he informed the court that at the
material time he worked with the company as Technician Class 3.
Pertaining to the incident, CLW2 confirmed that he is the Mahadi referred
to by COW1 and COW2 in their evidence. He further confirmed that the
claimant did brandish a “parang” to Sugimoto but it was done after
Sugimoto refused to leave the workshop.
Evaluation and Findings
In this case, it is not disputed that the company did hold a DI against the
claimant on 22 April 2004. Therefore, it is imperative to note that in
instances where a DI has been held, the Industrial Court's jurisdiction was
limited to considering whether there was a prima facie case against the
delinquent employee; see Bumiputra Commerce Bank Bhd. v. Mahkamah
Perusahaan Malaysia & Anor [2004] 7 CLJ 77, where the High Court had
also laid down the guidelines that the Industrial Court should first
consider whether or not the DI was valid and whether the DI notes are
accurate.
After perusing the DI notes as in enclosure 8 (pages 1 to 18), the court
discovers that the said notes as the accurate record of the proceeding.
However, on the issue of the validity of the proceedings of the DI, the
court finds that the conduct of the DI was improper or wanting. This is
because the court notes that after reading the charges and before
recording his plea, COW3 or any of the panel members did not ask the
claimant whether he understood the charges. Secondly, based on the DI
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notes also, the court discovers that although the claimant was given the
right to cross-examine the witnesses in the said DI but the DI notes did
not indicate whether that the claimant was given the opportunity to
explain his side of the story. In fact based on the DI notes, the court finds
that after all the witnesses have given their evidence the DI panel
straight away proceeded with the submissions by the parties. Thus, the
court is of view that such conduct cannot be said to be in line with a fair
hearing to the claimant but that it was more inclined to be unfair and/or
prejudicial to the claimant. This court is further of the view that even
though a DI proceeding cannot be equated with any court proceedings
with the technicalities regarding the standard of proof, the rules of
evidence and procedure that are applied and the fact that each
organization may conduct a DI in a manner convenient to them,
nevertheless, the very fundamental principle of natural justice is that an
employee accused of any misconduct must be given a fair hearing, by fair
hearing it includes the conduct of the hearing of the DI to be unbiased
and fair and that the employee be given the opportunity of being heard
of his defence which includes the opportunity to face and challenge his
accuser. In B Surinder Singh Kanda v. The Government of the Federation
of Malaya [1962] 1 LNS 14, Lord Denning in delivering the judgment of
the Privy Council stated as follows:
“If the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to know
the case which is made against him. He must know what evidence
has been given and what statements have been made affecting him:
and then he must be given a fair opportunity to correct or
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contradict them. This appears in all cases from the celebrated
judgment of Lord Loreburn, L.C. in Board of Education v. Rice down
to the decision of their Lordships' Board in Ceylon University v.
Fernando. It follows, of course, that the judge or whoever has to
adjudicate must not hear evidence or receive representations from
one side behind the back of the other. The court will not enquire
whether the evidence or representations did work to his prejudice.
Sufficient that they might do so. The court will not go into the
likelihood of prejudice. The risk of it is enough.”.
The next question for the court is what is the effect of an improperly
conducted DI ? It is trite law that irregularities that occur during a DI and even
the absence of a DI itself would not per se render a dismissal as unfair. The law
is clearly set out in the case of Wong Yuen Hock v. Syarikat Hong Leong
Assurance Sdn. Bhd. & Anor [1995] 3 CLJ 344; [1995] 2 MLJ 753 where Mohd.
Azmi FCJ had this to say at page 767:-
"The Industrial Court was not competent to declare the dismissal
void for failure to comply with the rules of natural justice. The
very purpose of the inquiry before the Industrial Court was to give
both parties to the dispute an opportunity to be heard irrespective
of whether there was a need for the employer to hold a
contractual or statutory inquiry. We are confident that the
Industrial Court as constituted at present was capable of arriving
at a fair result by fair means on all matters referred to it. If
therefore there had been a procedural breach of natural justice
committed by the employer at the initial stage, there was no
reason why it could not be cured at the re-hearing by the
Industrial Court.".
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Based on the authority as cited above, the court will proceed to hear the
case afresh to see if the company has succeeded in proving, on a balance
of probabilities, the allegations of misconduct against the claimant.
In this case, it is germane to note that the court will only deal with
charges which the company relied when terminating the services of the
claimant against the claimant (see: Mohd Firdruz Mohamad Nari & 2 Ors
v. MJSB Resorts Sdn Bhd [2008] 2 LNS 1551 (Award No. 1551 of 2008) that
is charge no.2 and no.3.
Charge No. 2
As for this charge it is pertinent to note that it falls upon the court to
inquire into all aspects of the scuffle before determining whether the
claimant did threat Sugimoto with a “parang”. In Steelform Industries
Malaysia Sdn. Bhd. V. Foo Fook Ban [1991] 1 ILR 442 (Award No. 126 of
1991) the learned chairman observed:
“Material facts and relevant evidence in any case of assault or
fighting should include the causes, reasons and motives that led to
the fight to determine the various degrees of culpability of the
persons involved in the fight, and if there is any justification to
exonerate the innocent victim.”.
In this case also, the court notes that parties have filed statement of
agreed facts (enclosure 9) and briefly both parties did not dispute that
there was a scuffle between Sugimoto and the claimant. After evaluating
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oth the evidence of the company through the evidence of COW1 and
COW2 and COW3 and the evidence of the claimant and CLW2, on the
balance of probability, this court agrees and accepts the evidence of
COW2 and COW3 that the claimant had used the “parang” to threat
Sugimoto. This is because COW2 and COW2 did not play any part in the
scuffle and both of them in their written reports which were made
immediately after the incident consistently said that they saw the
claimant brandishing the “parang” against Sugimoto and threatened him
that if he did not go back he will chop him. Furthermore, the claimant
during cross-examination admitted that he did threat the claimant with
the “parang”. The Court also considers the evidence of CLW2 when he
said the claimant did brandish the said “Parang”. Now the question is,
did the claimant act in self defence?. This is because in his evidence the
claimant said the “parang” was wielded in self defence and in fear of
grave physical harm. In this regard, the court after scrutinizing
thoroughly the evidence of the both parties believes the evidence of
COW1 and COW2 when both of them corroborated each other by
testifying in court that at the material time Sugimoto did not kick or even
harm the claimant as he was more interested to fight with Mahadi. Based
on the evidence also, the court finds that the claimant's life at that
material time was no longer in danger since Sugimoto was being calmed
down and restrained by COW2 and Hatai and they were waiting for the
car to leave the premises. The court further finds that the claimant also
during the cross-examination did admit that at the material time there
was no physical harm by Sugimoto but he did it just because he thought
Sugimoto is going to repeat his scuffle with Mahadi. In other words there
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is no evidence that the claimant could not have walked away from the
situation or scene of the incident. Further, the claimant at the material
time has gone back to his office. Thus, there is already a cooling off
period and Sugimoto at the material time was no longer a threat to the
claimant. Therefore, the court is of the view the situation does not
warrant the claimant to threaten Sugimoto with a “parang”.
Based on the above mentioned of the evidence adduced the court is of
the view that the company on the balance of probabilities had succeeded
in proving the 2 nd charge against the claimant.
Charge No.3
The misconduct in this charge centers around the alleged possession of
lethal weapon i.e. “parang” within the company' s premises. It is not
disputed by the claimant that at the material time he did keep a
“parang” in his car boot. However, the claimant said he was having
“parang” in his car boot because he has a farm in Bentong and will go
there on Sundays. He further stated that usually he keeps all his farming
utensils including the “parang” in the car boot to be washed and cleaned
at the workshop the next day which is Monday.
As for this charge, it is not disputed that based on the company's policy it
is a gross misconduct on the part of the employee to possess a lethal
weapon in the company's premises. The Court notes that the claimant
did not deny that at the material time he was in possession of the said
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“parang” but it was done with a justified reason. However, the court
cannot accept the claimant's reason for having the said “parang” since
there is a clear company's policy on the matter and the claimant has
breached it.
Thus, in light of the above the court finds on the balance of probabilities
that the third charge against the claimant is also proven.
The next question is whether the two misconducts constitute just cause
or excuse?
It is recognised that an employer owes a contractual obligation to his
employees, female or otherwise, to ensure that he provides a safe and
conducive working environment in which they can function. It cannot be
emphasised strongly enough that the employee cannot take the law into
his own hands. There are remedies available to redress his alleged
grievances. In court's view that claimant ought to know better than to
take the law into his own hands. To say that it was done in the heat of
the moment and in self defence is no excuse.
To allow such a conduct to go unpunished would be detrimental to the
morale and discipline of the company. It is a conduct which is very much
against the grain of industrial peace and harmony. An employee cannot
be expected to work in environment shrouded in fear, physical violence in
a working environment should be abhorred. The punishment of dismissal
in this instance cannot be said to be excessive.
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The court is satisfied that in the circumstances and on the evidence, the
dismissal is with just cause and excuse. As such, this court orders that
the claimant's claim be dismissed.
HANDED DOWN AND DATED THIS 12 DAY OF JANUARY 2011
SIGNED
AHMAD TERRIRUDIN BIN MOHD SALLEH
CHAIRMAN
INDUSTRIAL COURT
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