Saravanan A/L Tanimalai v AW Faber-Castell (M) Sdn Bhd
Award No. 662 of 2015; Industrial Court
Date of Judgment: 29 May 2015 | Source: Industrial Court

INDUSTRIAL COURT MALAYSIA

CASE NO. 4/4-630/13

BETWEEN

SARAVANAN A/L TANIMALAI

AND

A.W. FABER-CASTELL (M) SDN. BHD.

AWARD NO: 662 OF 2015

BEFORE: Y.A. PUAN SAROJINI A/P KANDASAMY - Chairman (Sitting alone)

VENUE: Mahkamah Perusahaan Malaysia Kuala Lumpur

DATE OF REFERENCE: 07.03.2013

DATES OF MENTION: 21.05.2013, 26.08.2013, 07.11.2013, 17.12.2013, 30.12.2013, 24.01.2014, 05.03.2014 & 06.03.2015

DATES OF HEARING: 04.12.2014 & 05.12.2014

REFERENCE

This is a reference by the Honourable Minister of Human Resources under section 20(3) of the Industrial Relations Act 1967 for an award in respect of a dispute arising out of the dismissal of SARAVANAN A/L TANIMALAI ("Claimant") and A.W. FABER-CASTELL (M) SDN. BHD. ("Company").

AWARD

The Reference

[1] The parties to the dispute are Saravanan a/l Tanimalai ("Claimant") and A. W. Faber Castell (M) Sdn. Bhd. ("Company"). The dispute which was referred to the Industrial Court by way of a Ministerial Reference under section 20(3) of the Industrial Relations Act 1967 made on 7/3/2013 is over the dismissal of the Claimant by the Company on 27/5/2012.

Brief Facts

[2] The Claimant commenced his employment with the Company on 15/9/1997 as a general worker having a basic monthly salary of RM700.00.

[3] The Company issued to the Claimant a letter dated 25/5/2012 that stated that the Claimant was considered self-terminated from his contract of employment with immediate effect in pursuance of section 13(2) of the Employment Act 1955 due to the Claimant's absenteeism from work for more than 3 consecutive days since 23/5/2012 without informing or attempting to inform the Company.

[4] A copy of the Company's letter dated 25/5/2012 is reproduced as follows:

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[5] At the time of dismissal, the Claimant held the position of Machine Operator and his last drawn monthly salary was RM1,340.00. The Claimant had been employed by the Company for a period of approximately 15 years (1997- 2012).

DOCUMENTS

[6] For the hearing of the dispute, documents from the respective parties were marked as follows:

a) Statement of Case dated 22/8/2013 marked "SOC'';

b) Statement in Reply dated 25/9/2013 marked "SIR'';

c) Company's Bundle of Documents marked "COB'';

d) Claimant‘s Bundle of Documents marked "CLB'';

e) Company's witness statement marked "COWS-1''; and

f) Claimant's witness statement marked "CLWS-1''.

[7] An excerpt of the 3rd Collective Agreement between the Company and the National Union of Petroleum & Chemical Industry Workers ("Collective Agreement") relating to Article 16 on Absenteeism (COB p. 29) was found to be incomplete. At the hearing, the Company applied to the Court to include an additional page 29A to COB to indicate the complete provision of Article 16 on Absenteeism. Counsel for the Claimant did not object and the application was approved by the Court.

The Company's Case

[8] The Company called one witness Ms. Leong Kum Cheng (COW-1), HR/Admin Manager to prove its case of misconduct against the Claimant. Her witness statement COWS-1 was adopted as her evidence-in-chief.

[9] COW-1 averred that all members of staff in the Company were given an ID (bar-coded) card each to record their daily attendance at four (4) time clocks located on the 1st floor, ground floor, warehouse and office. All workers swiped their cards when they reported for work and when they left. The Company would then retrieve the data from the time clocks and put it into the payroll system on a weekly basis for month-end payroll processing. Although the Human Resources (HR) Department did not monitor the attendance of staff on a weekly basis, however at the end of the month, HR would know about staff attendance records. The supervisors of the respective departments would highlight to the HR Department if absenteeism is serious and bad, and the Company would take further action by counseling the worker concerned.

[10] COW-1 averred that it was the Standard Operating Procedure of the Company that when an employee was habitually late or absent without leave, he/she would be required to attend a counseling session in the presence of his/her immediate supervisor and executive officer with the occasional presence of a Human Resource Executive. Sometimes a Union Representative may also be invited to sit in for this counseling session. The proceedings of the counseling sessions were recorded in the Rekod Komunikasi Pekerja.

[11] COW-1 asserted that where leave was concerned, the Claimant's leave had to be approved by his immediate supervisor and countersigned by his Production Manager. During the Claimant's initial period of employment, his performance and punctuality was acceptable but because of his habitual lateness or sudden absence of leave without applying in advance, the Company issued warning letters to him in 2008, 2009 and 2012 coupled with counseling sessions.

[12] COW-1 stated that the Claimant's episodes of absenteeism in 2008 and 2009 were not relevant for the purpose of considering the cumulative effect of prior absenteeism to justify dismissing the Claimant for his absenteeism in 2012. This was because a warning letter will expire and have no effect at the end of eighteen (18) months from the date of its issuance. This is provided in Article 16(7) of the Collective Agreement.

[13] On 16/8/2011 the Claimant was involved in an accident on his way back home after work and he was on medical leave (18/8/2011- 20/10/2011) and 4 days annual leave thereafter. COW-1 asserted that the Company had no issue with regards to the medical leave taken by the Claimant.

[14] COW-1 alleged that the Claimant was absent from work without notice for more than 3 consecutive days since 23/5/2012. Mr. Chan Kam Yeon, the Acting Factory Manager, issued a letter dated 25/5/2012 (COB p. 14) declaring that pursuant to section 15(2) of the Employment Act 1955, the Claimant was deemed to have broken his contract of service, and by virtue of section 13(2) of the same Act he was considered selfterminated with immediate effect from the date of the letter.

[15] COW-1 further alleged that the Claimant was a serial absentee worker and despite being cautioned and counselled many times over a period from 2008, 2009 and 2012, the Claimant chose to remain indifferent and did not change for the better. He also set a bad example to the other production staff and came to work as and when he liked.

The Claimant's Case

[16] The Claimant's evidence-in-chief is reflected in his witness statement CLWS-1. No other witnesses were produced to give evidence on his behalf.

[17] The Claimant averred that at all material times, he contacted his immediate supervisor, and notified him of his intention to take emergency leave and obtained his prior approval.

[18] The Company issued to the Claimant a letter dated 25/5/2012 stating that in view of the Claimant's absenteeism from work without prior notice or approval for more than 3 consecutive days on 23/5- 25/5/2012, the Claimant was deemed to be self-terminated with immediate effect.

[19] The Claimant alleged that on 27/5/2012 when he attempted to report for duty at the Company's premises, he was informed by the Company's representative that since he had been absent from work for more than 3 consecutive days, his employment had been terminated and therefore he was asked to leave the Company's premises. The Claimant averred that he attempted to serve a letter informing the Company that from 23/5/2012 to 25/5/2012 he was absent from work because his wife had undergone an abortion. The Claimant further alleged that he had informed his immediate supervisor, Mr. Selvaraju (Mr. Raju) of this fact.

[20] The Claimant also averred that he had obtained a medical time-slip dated 23/5/2012 (8.30am-1.00pm) from Klinik Kesihatan Medan Maju, Petaling Jaya, wherein he had sought out-patient treatment for a stomach upset (CLB p. 4). The Claimant also obtained a medical certificate dated 25/5/2012 from Klinik Kesihatan Kapar, Kelang wherein he was given medical leave on 25/5/2015 due to hip pain (CLB p. 5).

[21] The Company did not issue a show cause letter to the Claimant or conduct a domestic inquiry in respect of his absenteeism from work without prior notice or approval for more than 3 consecutive days on 23/5- 25/5/2012.

[22] The Claimant prayed to be reinstated to his former position without any loss of seniority, wages or benefits, monetary or otherwise.

The Law

[23] In Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd and Another Appeal [1995] 3 CLJ 344, the Federal Court at p.352 held:

"On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under s. 20 of the Act (unless otherwise lawfully provided by the terms of the reference) is to determine whether the misconduct or irregularities complained of by the management as to the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constituted just cause or excuse for the dismissal.".

[24] The function of the Industrial Court has been propounded by Mohd. Azmi FCJ in the Federal Court case of Milan Auto Sdn Bhd v Wong Seh Yen [1995] 4 CLJ 449 which is as follows:

"As pointed out by this court recently in Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd and Another Appeal [1995] 3 CLJ 344, the function of the Industrial Court in dismissal cases on a reference under s 20 is twofold: first, 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 dismissal.".

[25] It is trite law that the Company bears the burden to prove that the Claimant had committed the alleged misconduct and that the misconduct warrants the Claimant's dismissal. In Ireka Construction Berhad v Chantiravathan Subramaniam James [1995] 2 ILR 11 (Award No. 245 of 1995) it was stated as follows:

"It is the basic principle of industrial jurisprudence that in a dismissal case, the employer must produce convincing evidence that the workman committed that offence of which the workman is alleged to have been dismissed. The burden of proof is on the employer to prove that he has just cause or excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be, either a misconduct, negligence or poor performance based on the case.".

[26] The Company needs only to prove misconduct justifying the dismissal or termination on a balance of probabilities (see Telekom Malaysia Kawasan Utara v Krishnan a/l Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 ).

Absence of Domestic Inquiry

[27] COW-1 stated that no domestic inquiry was conducted against the Claimant because he did not report for work after 23/5/2012. The question before this Court is whether there must be a domestic inquiry as propounded by the Claimant's learned counsel.

[28] Dr. Dunston Ayadurai in his text Industrial Relations in Malaysia: Law and Practice 3rd Edn. at page 351 states the following:

"While it is true that no ‘due inquiry' need be held under section 15(2) [unlike under section 14], the person who decides whether the employee has indeed breached his contract must decide wisely on the facts, observe the law, and act equitably and in good conscience.".

[29] Further in Lim Giat Eng v Farlim Group (M) Bhd [2011] 6 CLJ 101, the defendant dismissed the plaintiff for being absent from work for more than two consecutive days without prior vacation leave approval wherein the defendant contended that it was adopting the provisions of s 15(2) of the Employment Act 1955 when it dismissed the plaintiff. Noraini Abdul Rahman JC concluded as follows:

"With the facts and the law as stated above, I have come to a conclusion that this is not a case of unlawful dismissal by the defendant but rather the plaintiff had brought it upon himself the consequences of his absence from work. Therefore, there is no need for the defendant to hold a domestic inquiry as this is not a case of misconduct leading to unlawful termination or dismissal of the plaintiff...".

[30] Thus this Court finds that there is no requirement under section 15(2) of the Employment Act 1955 for the Company to hold a domestic inquiry in respect of the Claimant's absence from work without prior notice or approval on 23/5-25/5/2012.

Issues

[31] The Claimant's employment with the Company was terminated by a letter dated 25/5/2012 due to the Claimant being absent from work without prior notice or approval for more than 3 consecutive days from 23/5/2012. The termination letter stated that pursuant to section 15(2) of the Employment Act 1955, the Claimant was deemed to have broken his contract of service, and by virtue of section 13(2) of the same Act, he was considered self-terminated with immediate effect from the date of the letter.

[32] For the purposes of clarity, the relevant provisions of the Employment Act 1955 are stated for consideration:

‘Section 13(2) of the Employment Act 1955:

"Either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service."

Section 15(2) of the Employment Act 1955:

"An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence." '.

[33] At the outset, it is worthy to note that the termination letter dated 25/5/2012 stated that the Claimant was "absent without informing or attempting to inform the Company for more than 3 consecutive days since May 23, 2012". However in actual fact the Claimant was absent for 3 consecutive days, namely 23/5-25/5/2012. The Court finds that although the Company made a mistake in stating the period of the Claimant's absenteeism as being more than 3 consecutive days, nevertheless that period of absence was within the provisions of section 15(2) of the Employment Act 1955 which stipulates "continuous absence from work for more than 2 consecutive working days without prior leave from his employer". Even though both learned counsels did not plead this fact, the Court believes that this is a non-fatal mistake on the part of the Company and it is appropriate to make a note on this issue so as to state correctly the provisions of section 15(2) of the Employment Act 1955.

[34] In Pan Global Textiles Berhad Pulau Pinang v Ang Beng Teik [2002] 1 CLJ 181, the Federal Court stated as follows:

"And as to absence of employee without permission, B.R. Ghaiye, at p. 712 of the same book, said:

"No employee can claim as a matter of right leave of absence without permission and when there might not be any permission for the same. Remaining absent without any permission is, therefore, gross violation of discipline...". (emphasis added).".

[35] OP Malhotra in his book The Law on Industrial Disputes, Vol. 2 Sixth Ed. , stated the following:

"An employee is under an obligation not to absent himself from work without good cause during the time at which he is required to be at work by the terms of his contract of service.". (page 1135)

"No employee can claim leave of absence as a matter of right and remaining absent without leave will constitute violation of discipline. The mere fact that he had applied for leave would not be a good defence when the leave was refused by the employer in exercise of his discretion ...". (page 1136)

[36] In Nila Ponnan v UCM Industrial Corporation Bhd [2010] 1 MELR 915, the following was stated at paragraphs 10 and 11:

"In the reported case of Kong Brothers Engineering Works Sdn. Bhd. v Daniel Anmany Susemaikam [2003] 3 MELR 793; [2004] 1 ILR 744 (Award No. 908 of 2003) the court remarked that the act of leaving the work place without leave or deliberately staying away from work is a violation of discipline and amounts to willful insubordination. These are serious misconducts.

Quoting again from BR Ghaiye in Misconduct in Employment (supra) at pp. 708, 712 states:

The expression ‘leave' means leave of absence, that is to say, the permission obtained by an employee from his employer relieving him from the duty of attending to work. The dictionary meaning of the word ‘leave' being permission is given or the leave sought is granted, it cannot be said that the person seeking leave can absent himself from duty in an unauthorized manner... When an employee requires leave, it is necessary to apply for leave even if he has some just cause for absence... No employee can claim as a matter of right leave of absence without permission and when there might not be any permission for the same. Remaining absent without any permission is therefore a gross violation of discipline... When a workman remains absent for a number of days and it is his defence he was permitted to do so by the management, the burden lies on him to prove the said permission and he has to give proper evidence of the same.". [Emphasis added]

[37] In respect of the issue of "self-termination", Dr. Dunston Ayadurai in his text Industrial Relations in Malaysia: Law and Practice 3rd Edn. At pages 350/351 stated the following:

"The company's letter of termination is a classic example of ‘statutory termination', ie of treating a breach of contract as being synonymous with a termination of employment. It reads: ‘You have yourself terminated your services'. There is no such thing under section 15(2). Assuming for a moment that the claimant cannot avail herself of the ‘defences' available under the section (ie that she had a reasonable excuse for her absence, and that she had informed or attempted to inform the company of it prior to or at the earliest opportunity during her absence) she has only broken her contract, ie breached it. If the company is satisfied that she has breached her contract (because she failed to rebut the presumption in section 15(2) by proving that she had a reasonable excuse and had informed or attempted to inform the company of it) then it is the company which must terminate her employment (if it so wishes to do) under section 13(2). Even then, not every breach justifies termination - it must a ‘willful breach'...".

[38] As expounded in the case of Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129, the Court is restricted in its inquiry into the veracity of the reason chosen by an employer for the dismissal. Raja Azlan Shah CJ (as he then was) speaking for the Federal Court ruled:

"...Where representations are made and are referred to the Industrial Court for enquiry it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him the duty of the Industrial Court will be to enquire whether that excuse has or has not been made out. If it finds as a fact that it has not been proved then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High court cannot go into another reason not relied on by the employer or find one for it.". [Emphasis added]

[39] It is not disputed that the Company had terminated the employment of the Claimant in pursuance of section 13(2) of the Employment Act 1955. In the article entitled "Absence Without Official Leave (AWOL)" [2015] 1 ILR xvii by Dr. Ashgar Ali Ali Mohamed, the following was stated:

"Absenteeism constitutes a fundamental breach of contract and is a justifiable ground for dismissal of an employee, after an adequate opportunity has been given to the employee to refute the allegations framed against him. Section 15(2) of the Employment Act 1955 provides that an employee who absents himself from work for a continuous period of two days or more without prior permission or approval of the employer or without notifying the employer of such absence among others, constitutes a gross violation of discipline... ".

[40] Section 15(2) of the Employment Act 1955 is a deeming provision that does not in itself provide for the termination of a contract of service. It merely provides the justification for such termination; which may then be exercised under section 13(2) of the same Act in circumstances of wilful breach of the contract. In Azizul Ariffin v Yamakoh Precision (M) Sdn Bhd [2008] 2 LNS 0552 (Award No. 552 of 228) the constituents of "wilful breach under s.13(2) of the Employment Act 1955" was discussed, and the following was stated:

‘In Syarikat Precico Sdn Bhd and S Ramadas (Award 145 of 1989), the Industrial Court has explained the application of section 15(2) and 13(2) of the Employment Act in the following:-

"In P Ramasamy (Pemborong) Ladang Batu Arang and Kesatuan Kebangsaan Pekerja-Pekerja Ladang (Award 52 of 1985), it was said:-

'Absence without leave for more than two consecutive working days is deemed to be a breach of the contract of service by section 15(2).......The employer can either terminate the employee's contract of service under section 13(2) or deal with him under section 14 after due inquiry on the grounds of misconduct. (See also Gim Aik Estate and National Union of Plantation Workers (Award 55 of 1982)'.

In Lian Yit Engineering Works Sdn Bhd v Loh Ah Fon [1974] 1 LNS 75; [1974] 2 MLJ 41, Abdul Hamid J said:-

"In the light of sections 13 and 15 of the EA, it would seem clear that a worker who continuously absents himself from work for more than two working days without reasonable excuse commits a wilful breach of his contract of service for which the employer may terminate without notice.".

It would appear from Ramasamy and Lian Yit that absence from work for more than two consecutive working days without prior leave or reasonable excuse would constitute a wilful breach under section 13(2) . Each case will, however, be governed and qualified by its particular facts. The claimant's absence on two consecutive working days only and not more in good sense cannot be construed as a 'wilful breach' under section 13(2) in the light of the above decisions.'. [Emphasis added]

[41] Thus from the above authorities, continuous absence from work for more than 2 consecutive working days would constitute a wilful breach under section 13(2) of the Employment Act 1955. It constitutes a gross violation of discipline and is a justifiable ground for dismissal of the employee.

[42] Consequently, as the dismissal of the Claimant by the Company is undisputed, it is thus the duty of this Court to enquire whether the reason for the dismissal as advanced by the Company has been made out. It is for this Court to analyse the evidence produced before it and to determine whether the allegations of absence from work without prior notice or approval has been committed by the Claimant. If the Court makes a finding of fact that the allegations against the Claimant has been made out, then the Court has to determine whether this reason constitutes a just cause or excuse for his dismissal.

Evaluation of Evidence and Findings of Court

Whether the allegations against the Claimant has been established?

[43] The Claimant in evidence stated that when he needed to take emergency leave he would notify his immediate supervisor of his intention to take emergency leave and obtain his prior approval. Upon his return from emergency leave, he would submit the leave application form to be approved by his immediate supervisor and counter-signed by the Production Manager. This was the procedure for the application of emergency leave that he followed since joining the Company and the Claimant's learned counsel submitted that the communication between the Claimant and his immediate supervisor was deemed good notice to the Company as to the Claimant taking emergency leave.

[44] The Claimant's learned counsel further submitted that the above practise in notifying the Claimant's immediate supervisor prior to taking emergency leave was verified by the Company as follows:

‘Rekod Komunikasi Pekerja dated 14/2/2012 -

"...(c) Ketua/Penyelia : Pemerhatian/Cadangan/Komen If operators have an emergency call supervisor or line leader to confirm annual leave..." '.

[45] In the event there was no prior notification and approval of his immediate supervisor, then the Claimant would be deemed to be absent from work. COW-1 in evidence confirmed that the above is the Company's practise in respect of applying for emergency leave.

[46] In the course of evidence adduced during the hearing, the Claimant stated that he orally notified his immediate supervisor, Mr. Selvaraju (Mr. Raju), and obtained his prior approval before taking emergency leave on 23/5-25/5/2012. However the Company in its pleadings stated that the immediate supervisor, Mr. Selvaraju (Mr. Raju), had confirmed that the Claimant was absent from work without informing the Company at all.

[47] COW-1 in evidence stated that the Claimant was absent for more than three (3) consecutive days from 23/5/2012, and there was no news from him not even a phone call, and no clocking-in by him for that period. The Company issued a letter dated 25/5/2012 to the Claimant where in pursuance of section 13(2) of the Employment Act 1955 the Claimant was considered self- terminated with immediate effect from the date of the letter, that is 25/5/2012.

[48] Further COW-1 in evidence stated that the letter dated 25/5/2012 was sent via Nationwide Express courier to the latest address that the Claimant had given the Company. But the letter was returned undelivered on 6/6/2012. Apparently, it was subsequently revealed during the hearing that the Company sent the letter to the Claimant's old address, although the Claimant had informed his immediate supervisor, Mr. Selvaraju(Mr. Raju), about the change of his address. The Claimant during the hearing stated that it was the Company's procedure that the Claimant would inform such matters to his immediate supervisor who would subsequently inform the HR Department about this matter. However the Claimant failed to prove before this Court that he had informed his immediate supervisor about the change in his address and subsequently that the immediate supervisor had informed the HR Department of that fact. As stipulated in section 103 of the Evidence Act 1950, the burden of proving a fact is on the party that wishes the court to believe its existence.

[49] The Claimant asserted that he went personally to the HR Department to collect the letter on 26/7/2012. During cross-examination by his learned counsel regarding the delay in collecting his termination letter, the Claimant responded as follows:

" Q4. Boleh terangkan mengapa pergi ke syarikat 2 bulan selepas anda diberhentikan untuk mengambil surat.

A. Saya tak dapat surat. Alamat saya telah tukar selepas kahwin, saya maklum HR tapi masih hantar ke alamat lama.

Q5. Bila anda beritahu syarikat tentang tukar alamat?

A. 2011. Saya maklumkan kepada supervisor En. Selvaraju. Supervisor akan maklum HR. Kita tidak boleh pergi terus ke HR.".

[50] The Court finds that the Claimant failed to explain adequately the reason for the delay in collecting his termination letter. He should have contacted the HR Department earlier and not wait until 26/7/2012 to collect the termination letter from the said department bearing in mind that he had known of his termination on 27/5/2012.

[51] During the course of the hearing, the Company's learned counsel confirmed that he would not be calling the Claimant's immediate supervisor, Mr. Selvaraju (Mr. Raju), as a witness for the Company. The Claimant's learned counsel in her submissions asked the Court to invoke an adverse inference against the Company under section 114(g) of the Evidence Act 1950 because the failure of the Company to call the immediate supervisor to testify in respect of the Claimant's prior notification of emergency leave to him is deemed a suppression of facts.

[52] The Company's learned counsel submitted that he did not call the Claimant's immediate supervisor as a witness for the Company because he was present in all the counseling sessions concerning the Claimant which were documented in the Rekod Komunikasi Pekerja. The Claimant had also attended all these sessions and signed all the Rekod Komunikasi Pekerja wherein it was stated that the Claimant was absent "without information", "tanpa memberitahu supervisor" and "without any approved document from him". As there is no denial of the contents of the above Rekod Komunikasi Pekerja by the Claimant, the Company's learned counsel submitted that there is no need whatsoever to call the Claimant's immediate supervisor who was present at the counselling sessions with the Claimant.

[53] The Company submitted that in Kumaran a/l Sappani v Public Prosecutor [2012] 6 MLJ 153, the Federal Court ruled that when there is no break in the chain of events and there is also no suppression of evidence, it is not necessary to invoke adverse inference under section 114(g) of the Evidence Act 1950. Thus much like the case before this Court, there is no break in the chain of events and the Company has not attempted to suppress any evidence. Hence, there is no basis for the Claimant to insist that his immediate supervisor must be called as everything has been laid bare before this Court.

[54] The case of Kumaran a/l Sappani v Public Prosecutor is a criminal case wherein the issue of concern for the purposes of the Company's submission is the non-production of Lim (a witness) who had been arrested and was released on police bond. Lim was not charged but a statement was recorded from him as a witness. Lim had absconded and the statement was tendered as an exhibit on behalf of the defence through the police officer in charge of investigations. The statement was admitted as the Court held that there was no break in the chain of evidence and there does not occur any suppression of evidence that would warrant the application of section 114(g) of the Evidence Act 1950.

[55] The case before this Court is differentiated from the above case as this case is not a criminal case wherein the burden of proof is that of "beyond reasonable doubt". The immediate supervisor concerned could have been called as a witness at any time and the immediate supervisor did not make a statement in the course of investigations. In fact the counseling sessions as documented in the Rekod Komunikasi Pekerja could not by any stretch of imagination be equated to a statement made in the course of investigations.

[56] It is the finding of this Court that the Rekod Komunikasi Pekerja as deliberated upon by the Company's learned counsel at paragraph 52 above is in respect of counseling sessions for prior episodes of absenteeism that do not relate to the Claimant's absenteeism on 23- 25/5/2012. Thus this Court is of the view that the submission by the Company's learned counsel concerning the invocation of adverse inference under section 114(g) of the Evidence Act 1950 due to the failure of the Company to call the Claimant's immediate supervisor has no relevance to the matter at hand, that is, the Claimant's absence from work on 23/5-25/5/2012.

[57] The courts have often ruled that it is not in each and every instance that a witness must be called in a hearing. It must be an important and material witness as was stated by His Lordship Mohamad Azmi FCJ in Munusamy Vengadasalam v. PP [1987] 1 CLJ 205; [1987] CLJ (Rep) 221; [1987] 1 MLJ 492 at p. 494:

"It is essential to appreciate the scope of s. 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.".

[58] In the case of Yip Huay Sin v Sheraton Perdana Resort Langkawi [2009] 2 LNS 0121 (Award No. 121 of 2009) the learned Chairman of the Industrial Court said as follows:

‘...In PP v Guan Sheng Trading Sdn Bhd [1997] 4 MLJ 20, the High Court stressed that an adverse inference can only be drawn if there is withholding of evidence and not merely on account of failure to obtain evidence.

In the Singapore case of Yeo Choon Huat v PP [1998] 1 SLR 217 (CA) 231, the High Court held that:-

"As far as the prosecution's failure to obtain evidence from the telecommunication authorities of Malaysia, it is well established that an adverse inference will be drawn against the prosecution under section 116 illustration (g) (in pari materia with Malaysian section 114 (g) of the Evidence Act 1950) only if it withholds certain evidence which it possesses and not merely on account of its failure to obtain certain evidence.".

It cited the Indian Supreme Court case of Srichand v State of Maharashtra AIR 1967 SC 450 which held:-

"An adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain evidence. When no such evidence has been obtained, it cannot be said what that evidence would have been and therefore no question of presuming that that evidence would have been against the prosecution under section 114(g) can arise." '. [Emphasis added]

[59] The Claimant's immediate supervisor, Mr. Selvaraju(Mr. Raju), is an important witness for the Claimant to prove that he had obtained his prior approval before he took emergency leave on 23/5-25/5/2012. The burden of proof thus shifts to the Claimant to call his immediate supervisor to prove his assertion that he had obtained his immediate supervisor's prior approval before he went on emergency leave. In Tenaga Nasional Bhd v Sugumaran Johanson Sundram [2003] 3 ILR 1041 (Award No. 758 of 2003) the Industrial Court held that where the Claimant was absent from work, the burden shifted to the Claimant to justify his absence. In Etonic Garment Mfg. Sdn. Bhd. v Kalaimagal Muthusamy [1998] 3 ILR 698, where the Claimant asserted that she had obtained approval for leave from her superior, the burden of proof rests on the Claimant to call her superior and did not lie with the Company.

[60] In Jeremy Swee Teck Heanne & Anor v Low Han Neo & Ors [2014] 1 LNS 449, the learned Judicial Commissioner in addressing the invocation of an adverse inference under section 114(g) of the Evidence Act 1950 stated as follows:

"The Court of Appeal in Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 had occasion to consider sections 101, 102 and 103 of the Evidence Act which deal with the issue of which party bears the burden of proof. ... In drawing an adverse inference against the plaintiff for not calling a witness, Siti Norma Yaakub JCA said (at page 635):

"...For this very reason, the adverse inference under s. 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under s. 114(g) is invoked against the appellant...." '.

[61] The Claimant's learned counsel failed to call the Claimant's immediate supervisor to prove that the Claimant had obtained his prior approval before he took emergency leave on 23/5-25/5/2012. Unfortunately the Claimant's learned counsel did not attempt to do so to the detriment of the Claimant's case and adverse inference under s. 114(g) is invoked against the Claimant.

[62] On 27/5/2012 when the Claimant reported for duty at the Company's premises, he was informed by the Company's representative that since he had been absent from work for 3 consecutive days, his employment had been terminated and therefore he was asked to leave the Company's premises. The Claimant attempted to serve a letter informing the Company that from 23/5-25/5/2012 he was absent from work because his wife had undergone an abortion. The Claimant in evidence asserted that he had phoned his immediate supervisor, Mr. Selvaraju (Mr. Raju) to inform him of this fact. However the Claimant could not prove this assertion as he claimed that he had lost his handphone. Since the burden of proof rests on the Claimant to prove this assertion, the Claimant should have called his immediate supervisor, Mr. Selvaraju (Mr. Raju), to prove his assertion that he had informed him of the reasons for his absence during the period 23/5-25/5/2012. (See Tenaga Nasional Bhd v Sugumaran Johanson Sundram and Etonic Garment Mfg. Sdn. Bhd. v Kalaimagal Muthusamy). The Claimant's learned counsel did not attempt to do so to the detriment of the

Claimant's case.

[63] The Claimant asserted that he had obtained a medical time-slip dated 23/5/2012 (8.30am-1.00pm) from Klinik Kesihatan Medan Maju, Petaling Jaya, and a medical certificate dated 25/5/2012 from Klinik Kesihatan Kapar, Kelang. COW-1 stated that she had no knowledge of these documents and only came to know of their existence when she perused the documents in the Claimant's Bundle of Documents during the course of preparation for this hearing. The Claimant failed to explain the reasons for not informing the Company at the earliest opportunity during his absence the reasons for his absence from work as being due to his wife undergoing an abortion or that he had obtained a medical time-slip and medical certificate.

[64] In Crowne Plaza Riverside Kuching v Mohamad Zulkarnaen Suhaili (Award No. 354 of 2000) the following was stated:

"On the matter of absence from work, industrial jurisprudence developed through the course of industrial adjudication has laid down clear and comprehensive principles which employers and employees will do well to observe. These principles have evolved from the application of section 15(2) of the EA. Although not of general application in the sense that the said piece of legislation applies only to scheduled employees in Peninsular Malaysia and not at all in Sabah and Sarawak, the Industrial Court considers the underlying principles in the provision to be most helpful in dealing with the issue of absenteeism as an employment misconduct. The subsection read as follows.....It will immediately be obvious that mere absence from work for two or more days consecutively does not constitute a breach of contract under the EA; or, for the purpose of industrial adjudication under section 20 of the IRA, a disciplinary offence. An absent workman misconducts himself if he is either absent from work without reasonable excuse or, if he has a reasonable excuse, fails to inform or attempt to inform his employer of such excuse prior to or at the earliest opportunity during his absence .... .

The hotel has proven that the claimant's absence was without its prior permission. The onus now shifts to the claimant to prove that he had a reasonable excuse for his absence, and that he had attempted to inform the hotel at the earliest opportunity of the same. Having proceeded on the basis that he had prior approval, the claimant did not attempt to establish such reasonable excuse. Neither was he able to show that he did make reasonable attempts to inform the hotel as soon as he could do so of his absence and his reasons therefor. The claimant had failed to comply with a basic obligation of an employee, whose principal duty it is to be present at his employer's workplace to render the services expected of him; and even if he had an excuse for being absent, to undertake that basic duty which is pure common sense and the legitimate expectation of any employer, to inform the hotel of his inability to turn up for work for three consecutive days at a time when the hotel needed all available staff.". [Emphasis added]

[65] As modern modes of telecommunications such as handphones and e-mails are easily accessible and widely used, there is no excuse for the Claimant at not being able to inform the Company of his absence from work due to illness or other exigencies as soon as possible, and in any case within 48 hours from the commencement of his leave.

[66] Further it was submitted by the Claimant's learned counsel that the Company's learned counsel did not cross-examine the Claimant in respect of the medical time-slip dated 23/5/2012, the medical certificate dated 25/5/2012 and the facts concerning his wife undergoing an abortion. On the other hand, the Company's learned counsel in his submissions raised matters pertaining to the veracity of these documents/facts.

[67] The Court holds that the issue of cross-examination by the Company's learned counsel to establish the truthfulness of the documents/facts at paragraph 63 would have been important if these documents/facts were submitted to the Company at the earliest possible opportunity by the Claimant during his absence from work. In this case, the documents/facts only came to the knowledge of the Company when the Claimant's Bundle of Documents was served on the Company for the purposes of this hearing. Thus it serves no purpose at this point of time to establish the truthfulness of the documents/facts as it has been overtaken by events.

[68] The Claimant's learned counsel also submitted that the Company did not attempt to contact the Claimant on 23/5- 25/5/2012 to inquire as to his whereabouts or whether he would be returning to work. This issue was never pleaded by the Claimant at all. On this ground alone, this Court disregards this submission as this matter was not subject to crossexamination during the hearing. The Federal Court in the case of R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 is cited to support the contention that it is trite law that a party is bound by its pleadings.

[69] It is the finding of this Court that on a balance of probabilities the Claimant was absent without prior notice or approval for 3 consecutive days from 23/5-25/5/2012 and he failed to inform the Company at the earliest opportunity during the absence of the reasons for his absence from work. Thus in pursuance of section 15(2) of the Employment Act 1955, the Claimant is deemed to have broken his contract of service. This Court also holds that the Company then terminated his employment in pursuance of section 13(2) of the Employment Act 1955 due to the wilful breach of the contract of employment, namely the continuous absence from work for more than 2 consecutive working days without prior leave.

Was the Claimant's Dismissal with Just Cause or Excuse?

[70] In considering the above, the Court will determine whether the dismissal of the Claimant was harsh in the circumstances of the case. 71. The Federal Court in Norizan Bakar v Panzana Enterprise Sdn Bhd [2013] 4 ILR 477 at pages 496 and 497 held as follows:

"...Thus, in reference to the questions posed to us, we are of the view that the Industrial Court has the jurisdiction to decide that the dismissal of the appellant was without just cause or excuse by using the doctrine of proportionality of punishment and also to decide whether the punishment of dismissal was too harsh in the circumstances when ascertaining the award under s. 20(3) of the IRA. We are further of the view that the Industrial Court in exercising the aforesaid functions can rely to its powers under s. 30(5) of the IRA based on the principle of equity, good conscience and substantial merits of the case.

...Pertinent to note that, under the IRA itself there is an inbuilt mechanism through Item 5 of the Second Schedule to consider the doctrine of proportionality of punishment. Item 5 provides as follows:

Any relief given shall take into account contributory misconduct of the workman.

.....it is clear that the Industrial Court can go on to decide on the relief to be granted by taking into account contributory misconduct and as such we are of the view that the doctrine of proportionality of punishment is already inbuilt into the IRA. Thus, the Industrial Court can substitute its own view as to what is the appropriate penalty for the employee's misconduct, for the view of the employer concerned.....".

[72] In the High Court case of Kamala Loshanee a/p Ambalavanar v Jaffanese Cooperative Society [1988] 7 MLJ 61, repetition of past similar acts of misconduct is a relevant factor to be taken into consideration of which the cumulative effect may justify dismissal.

[73] In the case of Sri Bayanaemas Road Feeder Services Sdn Bhd v Rohani Abd Rahman [2007] 3 ILR 582 (Award No. 1340 0f 2007) the court stated at page 596:

"It is settled law that a management can take into account instances of similar misconduct when deciding on the type of punishment for the subsequent same misconduct.".

[74] The Company presented evidence of past episodes of absenteeism by the Claimant in 2012 as follows:

(a) The Claimant was absent from work without prior approval on 9, 10 and 13/2/2012. He was issued a 1st warning letter on 17/2/2012 and he acknowledged receipt of the letter which stated as follows:

"This serves as a 1st warning to you and disciplinary action will be taken against you should this happen again.";

(b) The Claimant was absent without prior approval on 24 & 25/4/2012. He was issued a 2nd warning letter dated 26/4/2012 and he acknowledged receipt of the letter which stated as follows:

"This serves as a Final warning to you and disciplinary action will be taken against you including dismissal.";

(c) The Claimant was absent without prior approval on 10 & 11/5/2012. It was submitted by the Company's learned counsel that on 11/5/2012 the Claimant failed to clock-in but only turned up at 11.30 am and he was immediately directed to attend another counseling session. On the other hand, the Claimant's learned counsel submitted that the Company had contacted the Claimant and instructed him to come to work to attend a counseling session on 11/5/2012 wherein the Claimant had complied with the Company's instructions.

Be that as it may, the Claimant acknowledged that he was absent without prior notification on 10 & 11/5/1012 and he attended the counseling session on 11/5/2012. He was issued a warning letter dated 14/5/2012 and he acknowledged receipt of the letter which stated as follows:

"Please note that no further chance will be given to you should this happen again including instant dismissal which agreed by your goodself."; and [Emphasis added]

(d) The Claimant's episode of absenteeism was further corroborated by his performance appraisal for 1/4/2011 to 31/3/2012 wherein it was remarked "Very poor attendance need to improve".

[75] The above episodes of absenteeism are evidence of the Claimant's past misconduct of absenteeism. This inferred that the Claimant knew of the importance of obtaining prior approval of his immediate supervisor before going on emergency leave. In spite of that the Claimant still proceeded to go on emergency leave without the prior approval of his immediate supervisor.

[76] The Company had in all the above warning letters emphasised the high absenteeism of the Claimant and the fact that he had been given several verbal warnings of his poor attendance, to which the Claimant had acknowledged through his receipt of these letters. COW-1 had also stated that on other days of his absence no warning letters were issued as they were "one-off" days wherein on and off he would be absent.

[77] The Court in considering the punishment meted out by the Company is satisfied that the Company had given the Claimant adequate warning that if he persists in being absent again, action will be taken against him. The Company asserted that the last episode of absenteeism (23/5-25/5/2012) was so serious that a reasonable employer would regard it as the "last straw to break the camel's back" in a series of similar acts of misconduct. The Company also gave him counseling sessions after each episode of absenteeism as evidenced above to try to change his work ethics, but to no avail.

[78] The Claimant did not heed the warnings especially the warnings in the last letter dated 14/5/2012 in which it was stated that if he was absent again without prior approval or notification the Company could dismiss him instantly as agreed to by him during the counseling session on 11/5/2012. The Claimant during the hearing denied that he agreed as such during the counseling session and the words "Kalau tidak berubah, company boleh terus buang kerja saya" were inserted in the Rekod Komunikasi Pekerja without his knowledge. However if that was so, the Claimant should have objected to such statement as the same statement was embodied in the warning letter dated 14/5/2012 to which he acknowledged receipt without any objection. No subsequent objection with respect to the contents of the letter dated 14/5/2012 was lodged with the Company by the Claimant.

[79] The Court is satisfied that the Company had reasonably taken into account instances of the Claimant's absenteeism in 2012 to decide on the punishment for absenteeism on 23/5-25/5/2012. In so doing, this Court finds that on a balance of probabilities the punishment meted out to the Claimant is not harsh and is reasonable in the circumstances of the case.

[80] In this case it is observed that the Company raised some issues concerning the Claimant being a serial absentee worker and that he had set a very bad example to other production staff ("Additional Grounds"). Be that as it may, it is also undisputed that the Company never issued any disciplinary letter or had taken any disciplinary action against the Claimant on the Additional Grounds.

[81] The Court finds that the Company had never proven the Additional Grounds on a balance of probabilities as the Additional Grounds had not been substantiated by the Company. The letter of termination dated 25/5/2012 issued by the Company did not mention the Additional Grounds and COW-1 had confirmed in evidence that the reason for the Claimant's termination was because of his absence from work prior notice or approval on 23/5-25/5/2012.

Decision

[82] Absenteeism may appear to be a minor misconduct but when it is prolonged and employers are not notified of the emergency leave that has not been applied for or the unexplained leave afterwards of the employees as in the case of the Claimant, it can subsequently become a serious problem. The result is that employers are left in lurch having to find other staff to cover the absent employees' work and this naturally will cause disharmony in the work place. At the same time, the employer's business operational needs will be compromised as absenteeism will inevitably disrupt the employer's work schedule which in turn affects his customer commitments and in the long run his profits.

[83] Taking into consideration the totality of the evidence adduced by both parties, the principles and the reasons enunciated above and bearing in mind s 30(5) of the Industrial Relations Act 1967 to act according to equity, good conscience and the substantial merits of the case without regard to the technicalities and legal form, this Court finds on a balance of probabilities that the Claimant's dismissal was with just cause or excuse. Accordingly the Claimant's case is dismissed.

HANDED DOWN AND DATED THIS DAY 29th MAY 2015.

- signed -
SAROJINI A/P KANDASAMY
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

Cik Alicia Loh Yun Ping of Messrs Sandosh, Anandan - Counsel for Claimant

Encik Ch'ng Kim Hock of Messrs Ch'ng, Kim Hock & Associates - Counsel for Company

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