Yong Mee King v Kasyaf Bina Sdn Bhd
Award No. 227 of 2015; Industrial Court
Date of Judgment: 27 February 2015 | Source: Industrial Court

INDUSTRIAL COURT OF MALAYSIA

CASE NO : 3(28)/4-1836/12

BETWEEN

YONG MEE KING

AND

KASYAF BINA SDN. BHD.

AWARD NO: 227 OF 2015

Before: PUAN ANNA NG FUI CHOO - Chairman (Sitting Alone)

Venue: Industrial Court Malaysia, Kuala Lumpur

Date of Reference: 23.10.2012

Dates of Mention: 21.12.2012, 21.2.2013, 14.3.2013, 25.4.2013, 23.5.2013, 17.6.2013, 23.7.2013, 15.8.2013, 21.8.2013, 29.11.2013, 12.12.2013, 11.2.2014, 27.3.2014, 21.4.2014, 10.6.2014; Date of Hearing: 15.10.2014; Skeletal Submissions of Claimant and Company: 13.11.2014; Oral Submission of Claimant and Company: 13.11.2014

Reference:

This is a reference made under section 20 (3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of Ms Yong Mee King (hereinafter referred to as "the Claimant") by Kasyaf Bina Sdn. Bhd. (hereinafter referred to as "the Company") on 21 June 2011.

AWARD

[1] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint over her dismissal by the Company on 21 June 2011.

Facts

[2] The Claimant was appointed by the Company as a Purchasing Executive on 3 March 2010 with a salary of RM4,600.00 per month (inclusive of the Claimant's basic salary and fixed allowances) - Letter of Appointment as exhibited on pages 1 to 4 of the Claimant's Bundle of Documents (CLB). On 21 June 2011, the Claimant received a Notice of Termination of Service from the Company. The said Notice gave the Claimant 24 hours' notice of termination of her employment. The said Notice was enclosed with a cheque amounting RM4,770.75 payable to the Claimant, purportedly for payment in lieu of the three (3) months' notice required to be given by the Company. The Claimant refused to accept the payment, citing that the Company had failed to comply with clause 9 of her letter of appointment (page 3 of CLB) and that all the allegations against her were baseless.

[3] The Company's Notice of Termination of Service of the Claimant dated 21 June 2011 stated (page 8 of CLB):

"RE: NOTICE OF TERMINATION OF SERVICE

-------------------------------------------------

The above matters refers.

Please be informed that we found your service to be unsatisfactory and your performance as Purchasing Executive is below the expectation of our company.

We found that you, as Purchasing Executive had in several occasions, without due care and reasonable diligent, negligently made purchasing order for and on behalf of the company thereby causing the company to suffer and to incur loss.

We also found that you, as Purchasing Executive had in several occasions, influenced other employees of the company to act against the company.

The company views the above as serious and untenable which you had breached your own undertaking given to the company.

Therefore we exercise our rights as per clause 9 of the Appointment Letter dated signed by you to give you 24 hours notice to terminate your service. Herewith we enclose you BIMB check no 864163 amount RM4,770.75 to you.".

The said letter was signed by Dato' Zamri Bin Mohamad (COW1), the Managing Director of the Company.

The Function of the Industrial Court

[4] The function of the Industrial Court under section 20 of the Act was clearly stated in the Federal Court case of Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449, as follows:

"As pointed out by the Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd [1995] 2 MLJ 753, 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 the dismissal.".

[5] In the case of Goon Kwee Phoy v. J & P (M) Bhd [1981] 2 MLJ 129, his Lordship Raja Azlan Shah CJ Malaya (as his HRH then was) at page 136 impressed upon the court its duty and expressed:

"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 the excuse or reason 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 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.".

The Hearing

[6] There were two (2) witnesses called in the hearing before this court and it was the Company's Managing Director and the Claimant who testified for her own case. The documentary evidence of the Company found in the Company's Bundle of Documents (COB) related to the crux of the entire case led to support the Company's allegations against the Claimant. It was to the effect that she had on several occasions, without due care and reasonable diligence, negligently made purchasing orders for and on behalf of the Company thereby causing the Company to suffer and incur losses. The fact that the Company had issued a Notice of Demand (pages 31 and 32 of COB) against the supplier called TWT Hardware Sdn. Bhd that some 139,565 tonnes of steel bar had not been delivered is not disputed. What has to be proved by the Company, on a balance of probabilities, is that the Claimant had been negligent and without due care and reasonable diligence made purchase orders for the Company causing the Company to suffer and to incur loss. These were among the reasons proffered by the Company for the Claimant's dismissal, the others being her performance and alleged defamatory remarks against the Company.

[7] All the allegations against the Claimant were brought forth in the evidence in chief of COW1's witness statement. He stated that on 11 January 2011 (2 orders), 7 April 2011 and 23 May 2011, the Claimant made purchases for steel bars from TWT Hardware Sdn. Bhd. It was alleged that the Claimant had recommended to the management of the Company that payments were to be made to TWT Hardware Sdn. Bhd. Consequently, the Company had paid the amount of RM559,153.99 in various payments to TWT Hardware Sdn. Bhd. All the deliveries of the steel bars were made to the Company's project at the construction site in Nibong Tebal, Penang. It was later discovered that for the second purchase order dated 11 January 2011, only 137.41 tonnes worth RM290,733.18 were delivered to the construction site. It was alleged that the Claimant had concealed that fact and had also made another purchase order even though the second purchase of the steel bars had not been fully delivered to the site. The Company suspected that the Claimant had collaborated with TWT Hardware Sdn. Bhd to cheat the Company. Consequently, the Company lodged a police report against the Claimant (pages 1 and 2 of COB).

[8] COW1 also accused the Claimant of making purchases from the supplier whose prices were much higher than other suppliers. The Claimant was also alleged to have defamed the Company by spreading false stories to the Company's staff about the Company's financial status and that the Company has a management that is bad and weak and had many debts. COW1 said those statements were untrue, wrong, embarrassing and jeopardised the reputation, good name and credibility of the Company. He added that the one month bonus paid to the Claimant in April 2011 was made after much persuasion and requests by the Claimant after the Company had initially decided not to pay her any bonus. He said it was out of sympathy as the Claimant was going to deliver a baby and it was not due to her good performance in her work as she had averred. He claimed that other staff in the Company were paid higher bonuses than the Claimant.

[9] The Claimant denied all the allegations against her and contended that the reason she was terminated was because she was pregnant at that time and was due to deliver on 29 September 2011. It was also in evidence that for every intended purchase of steel bars for the Company, she had put in three quotations of different suppliers and it was for the Company to choose, through COW1 who had chosen the lowest. Furthermore, every purchase order had to be approved by COW1 and these could be seen in the purchasing orders in the Company's bundle of documents. Regarding the allegation that she had made orders though there were steel bars that had not been delivered, she said she worked in the office in Kuala Lumpur while requests for orders from the site in Penang were sent to her via emails or faxes. Furthermore, goods were delivered to the site and received by people at the site so she had no idea if there was any shortage when no one from the site had notified her of any shortage.

Jurisdiction

[10] The Claimant was posed the question during cross-examination if she was seeking reinstatement from the Company and she had replied "No". The Company's learned counsel has submitted that the court ceases to have jurisdiction over this matter as pursuant to section 20 (1) of the Act, the primary remedy available to the Claimant at the Industrial Court is for the Claimant to be reinstated to her original position/designation. Hence, the court will have to decide if it has the jurisdiction to hear this case since the Claimant is not seeking for reinstatement to her previous job with the Company. This court has decided on the issue of jurisdiction in an earlier award in case No. 28(2)/4-986/05 between Wan Akmar bin Abdul Wahab v Affin Bank Berhad (Award No : 123 of 2012) that the court has the jurisdiction to continue hearing the case till finality and stands by that decision. This court has reiterated the same in the case of Andrew Farayi Hodges v. Farrel Longbridge (M) Sdn. Bhd [2014] 3 ILR 575. A recent decision of another division of the Industrial Court in the case of Mapula Francis Ramashala & Ors v. Malaysian Airline System Berhad [2015] 1 ILR 121 sheds light on whether the court's jurisdiction should be ousted when a claimant rejects an offer of reinstatement from the employer. The arguments forwarded are relevant in this case as the Claimant does not want to be reinstated to her former position with her previous employer because she is now employed.

[11] The Court of Appeal had also confirmed the issue of the Industrial Court's jurisdiction when a claimant declined reinstatement in the case of Malayan Banking Bhd. v. Mohd Bahari Mohd Jamli [2003] 3 CLJ at page 660 held:

"Secondly, we also agree with the learned judge of the High Court (as he then was) in this appeal that the fact that the Industrial Court at the end of the inquiry may not or cannot make an order for reinstatement does not oust the Industrial Court's jurisdiction to proceed with the inquiry. The Court has ample power to make an order of compensation in lieu of reinstatement. The primary issue for the determination of the Industrial Court is not whether reinstatement may be ordered or not but whether the respondent was dismissed without just cause or excuse. That is the primary issue that the Industrial Court has to decide and it can only decide after a full inquiry. Whatever remedy that the respondent may be entitled to will follow from the ruling.". (emphasis added)

Evaluation of Evidence and Findings

[12] Having ruled on the above issue, the court will proceed to evaluate the evidence and decide if the Company has discharged its onus in proving the case against the Claimant. The Claimant had expressed in her evidence that all purchases made and the amount of purchases concluded were based on the requests from the construction site which were requests from the Company. The Claimant's duty was to place the relevant orders based on the requests received. Thus, it was not the duty of the Claimant to verify if the requests made were necessary. Furthermore, COW1 also agreed that all purchase orders made by the Claimant were first verified by him which was also stated in paragraph 3 of the Company's Statement in Reply.

[13] The police report by the Company alleging the Claimant's wrongdoing was lodged on 6 September 2011 which was two and half months after the Claimant's Notice of Termination. COW1 had admitted in cross-examination that the police report was lodged due to the Company's claim against TWT Hardware Sdn. Bhd. Both parties confirmed that there was no police investigation against the Claimant. If the Claimant had been guilty of breach of trust which is a serious crime, as alleged by the Company, surely the police would have taken action to initiate investigations. The fact that the police report was made months after the Claimant had been terminated substantiate the Claimant's contention that what the Company had done was an after thought to support her unfair dismissal. Even though the Claimant has been employed by TWT Hardware Sdn. Bhd. since 16 April 2014 which was about three years after her dismissal, the very Company she was accused to have collaborated with against the Company, the court is unable to find any evidence that the Claimant had been negligent or committed breach of trust as alleged by the Company. The court cannot find any evidence that the Claimant had worked with TWT Hardware Sdn. Bhd to deceive the Company. Whatever purchases she had made for the Company had been endorsed by the Company.

[14] The Company had alleged that the Claimant had made certain bad remarks against the Company to the other employees of the Company. COW1 said these remarks were defamatory in nature and had cited this as a further ground of termination of the Claimant's employment. The Claimant asserted that never at any time had she made such defamatory remarks against the Company. Except for COW1's evidence, there was no other evidence brought by the Company through the Company's staff that they had heard the Claimant had indeed uttered those comments. The court would think that if she had done so, the Company's staff who had heard those remarks would be the best people to attest that the Claimant had done so. The failure of the Company to call any witnesses to prove that the Claimant had made those remarks would render the allegations baseless and entirely hearsay.

[15] Similarly, the Company has failed to prove that the Claimant's services were unsatisfactory and her performance was below the expectations of the Company. If she had been a poor performer, the Company should have counselled, mentored and issued her warnings rather than issuing her a termination letter at the very instance of the alleged 'poor performance'. There was no evidence adduced in any form that the Claimant had indeed been counselled or told of her poor performance. On the other hand, she was paid one month's bonus which was a year after she joined the Company. Although the Company said it was paid out of compassion because the Claimant was pressing for it and she was expecting a baby, the court finds that difficult to believe. This is reinforced by the fact that COW1 had said other employees' were paid higher bonuses than the Claimant but he failed to bring any documentary evidence that the Company had indeed paid higher bonuses to other employees. The court opines that this was merely an after thought of the Company.

Decision

[16] The court finds that the Company has failed to prove the case against the Claimant with the reasons it had given against the Claimant in her termination letter. Since the misconduct of the Claimant has not been proved, this renders the Claimant's dismissal without just cause or excuse. Accordingly, the Claimant's claim is allowed by the court. This decision is arrived at after the court has considered the evidence in its totality. It is also having regard to the court acting according to equity and good conscience and the substantial merits of the case without regard to technicalities and legal form.

[17] Before deciding whether the Claimant should be reinstated to her former position, the court has been informed that the Claimant is now employed and does not wish to be reinstated. The court has considered the industrial harmony of the parties and if that could be maintained should the Claimant be reinstated. Having considered the circumstances that the Claimant was terminated almost four (4) years ago, the fact that the Company had even lodged a police report against her and her present employer is TWT Hardware Sdn. Bhd, it is definitely not in the interests of industrial harmony to reinstate the Claimant to her former employment in the Company.

[18] The Claimant was unemployed for nine (9) months after her dismissal. She worked with Makro Resources Sdn Bhd after that and on 16 April 2014, she commenced employment with her second employer after the dismissal, that is TWT Hardware Sdn. Bhd. There was no evidence led by the Company and the Claimant on what the Claimant was earning with the two employers after her dismissal. Taking into account the above considerations and the Second Schedule of the Act, this court hereby makes an award for the Claimant to be paid back wages (basic pay and fixed allowances) for the nine months that she was unemployed and compensation in lieu of reinstatement to be paid to the Claimant. There shall be no deduction made as the court has not found that the Claimant had contributed to the misconduct alleged against her. The award shall be:

Back wages:    
RM5,012 x 9 months =  RM 45,108.00
Compensation in lieu of reinstatement of one month's pay for each year of completed service:    
RM5,012.00 x 1 month (3 March 2010 to 21 June 2011) =  RM 5,012.00
     ---------------
Total =  RM 50,120.00
     =========

 

[19] The amount, after deducting the necessary statutory deductions is to be paid by the Company to the Claimant through the Claimant's counsel Messrs Thiru Jegatish & Associates within 30 days from the date of this award.

HANDED DOWN AND DATED THIS 27 DAY OF FEBRUARY 2015

ANNA NG FUI CHOO
CHAIRMAN
INDUSTRTIAL COURT, MALAYSIA
KUALA LUMPUR

Mr. T. Thirunaaukarasu From Messrs Thiru Jegatish & Associates Counsel for the Claimant

Encik Zulhasmi bin Zakaria From Messrs Termizi & Co Counsel for the Company

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