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

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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, 6
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 7
Page 1 and 2: INDUSTRIAL COURT OF MALAYSIA CASE N
Page 3: not find any problem in handing dow
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 14 and 15: oth the evidence of the company thr
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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