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

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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 14
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 15
Page 1 and 2: INDUSTRIAL COURT OF MALAYSIA CASE N
Page 3: not find any problem in handing dow
Page 6 and 7: “It is trite that the Industrial
Page 8 and 9: incident between the claimant and S
Page 10 and 11: Vide his written statement (CLWS2 (
Page 12 and 13: contradict them. This appears in al
Page 16 and 17: “parang” but it was done with a

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

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