Monday, March 14, 2016

MALAYSIA:::Zulkifli Bin Shahari v Telekom Malaysia Berhad Award No. 231 of 2016 (reference made under section 20 (3) of the Industrial Relations Act 1967 (Act 177) )

Date of Judgment: 04 March 2016 | Source: Industrial Court
INDUSTRIAL COURT OF MALAYSIA
CASE NO.: 13(25)(27)(25)/4-564/11
BETWEEN
ZULKIFLI BIN SHAHARI
AND
TELEKOM MALAYSIA BERHAD
AWARD NO.: 231 OF 2016
BEFORE: PUAN TAN GHEE PHAIK - Chairman
VENUE: Industrial Court Malaysia, Kuala Lumpur
DATE OF REFERENCE: 28.4.2011
DATES OF MENTION: 14.6.2011; 22.8.2011; 28.9.2011; 10.11.2011; 19.12.2011; 21.2.2012; 30.3.2012; 8.5.2012; 23.5.2012; 8.6.2012; 27.11.2012; 26.2.2013; 25.3.2013; 10.4.2013; 19.4.2013; 27.8.2013; 2.7.2014; 30.10.2014; 29.1.2015; 1.10.2015
DATES OF HEARING : 16.4.2013; 2.10.2013; 7.10.2013; 18.12.2013; 5.3.2014; 6.3.2014; 3.4.2014; 8.4.2014; 9.4.2014; 10.4.2014; 9.5.2014; 4.6.2014; 5.6.2014; 5.11.2014; 6.11.2014; 25.2.2015; 26.2.2015; 6.4.2015
DATES OF EARLY EVALUATION: 4.9.2012; 30.10.2012
REFERENCE:
This is a reference made under section 20 (3) of the Industrial Relations Act 1967 (Act 177) arising out of the dismissal of Zulkifli Bin Shahari (hereinafter referred to as "the Claimant") by Telekom Malaysia Berhad (hereinafter referred to as "the Respondent" ) on 11.6.2010.
AWARD
Background
[1] This is a reference by the Honourable Minister of Human Resources under Section 20(3) of the Industrial Relations Act 1967 (Act 177) ('IRA') on 28.4.2011 to the Industrial Court arising out of the dismissal Zulkifli Bin Shahari ('the Claimant') on 11.6.2010 by Telekom Malaysia Berhad ('the Respondent'). This case was initially heard by Industrial Court Chairman Dato' Jalaldin bin Haji Hussain prior to his retirement. After his retirement on 12.8.2014, with the consent of the parties, the continued hearing of this case proceeded before the current Chairman.
[2] At the time of his termination, the Claimant was the Assistant General Manager, Sports Event Management, Section Sports Event Management, Strategic Event Management, Integrated Marketing, TM as stated in his letter of appointment dated 10.3.2008 adduced as p 10 COB-1 and he is to report to Puan Boey Wai Fun, (COW-4) General Manager, Strategic Event Management, Section Strategic Event Management, Integrated Marketing, TM from 10.3.2008. The Claimant's contention is that he has been dismissed without just cause or excuse on 11.6.2010 after serving the Respondent for a period of about 14 years. The Claimant commenced employment with the Respondent as Head of Smart Card Unit Business Multimedia in August 1996. On the other hand, the Respondent has argued that as the Claimant was found guilty of serious charges of misconduct after the Domestic Inquiry ("DI") was carried out, the Claimant was therefore properly dismissed and hence the Claimant's dismissal is fair and justified by the facts of the case.

Documents filed in Court
[3] The Respondent filed the following documents in Court.
(i) Company's Bundle of Documents dated 26.2.2013 marked as "COB-1";
(ii) Company's Supplementary Bundle dated 22.3.2013 marked as "COB-2";
(iii) Company's Supplementary Bundle (Volume II) dated 9.4.2013 marked as "COB-3";
(iv) Company's Supplementary Bundle (Volume III) dated 16.4.2013 marked as "COB-4"; and
(v) Company's Supplementary Bundle (Volume IV) dated 9.9.2013 marked as "COB-5".
[4] The Claimant filed the following bundles of documents.
(i) Claimant's Bundle of Documents dated 4.9.2012 marked as "CLB-1";
(ii) Claimant's Bundle of Documents - Volume II dated 16.4.2013 marked as "CLB-2";
(iii) Claimant's Bundle of Documents - Volume III dated 25.9.2013 marked as "CLB-3";
(iv) Claimant's Bundle of Documents - Volume IV marked as "CLB-4"; and
(v) Claimant's Borang J and various emails marked as "CLB-5".
Witnesses
[5] All the witnesses except one of them filed Witness Statements which were tendered, marked and accepted as their evidence for the examination in chief. The Claimant called one witness to testify on his behalf and the Claimant also gave evidence on his own behalf. The witnesses for the Claimant are as follows:
(i) Puan Alvirah bt Mohd Natt ("CLW-1") who is an ex-colleague of the Claimant. No Witness Statement was filed for her examination in chief; and
(ii) the Claimant himself ('CLW-2"). His Witness Statement is marked as "CLWS-2A" and his Supplementary Witness Statement is marked as "CLWS-2B".
[6] The following witnesses testified on behalf of the Respondent:
(i) Encik Zam Ariffin Ismail, ("COW-1") who was the Chairman of the Disciplinary Appeal Committee 2010 (DAC) for the Respondent that heard the Claimant's appeal after the DI hearing and his Witness Statement is marked as "COWS-1";
(ii) Encik Mohd Yunos Bin Rakob, ("COW-2") who was a member of the DI panel that heard the case against the Claimant and his Witness Statement is marked as "COWS-2";
(iii) Encik Mohd Khalis Abdul Rahim, ("COW-3") who was the Chief Human Capital Officer, Group Human Capital Management of the Respondent at the material time and his Witness Statement is marked as "COWS-3";
(iv) Madam Boey Wai Fun, ("COWS-4") who is the General Manager, Strategic Events, Integrated Marketing for the Respondent to whom the Claimant reported to at the material time after Dato' Ranbir Singh Nanra's retirement and her Witness Statement is marked as "COWS-4";
(v) Puan Sherene Azura Binti Azli, ("COW5") who is the General Manager, Dynamic Pricing, Strategy of the Respondent and the Claimant's Line Manager at the material time and her Witness Statement is marked as "COWS-5";
(vi) Puan Hezlina Binti Hashim (COW6) who was at the material tim Assistant General Manager, Disciplinary & Grievance Management, Industrial Relations/Employee Relations & OSHE, Group Human Capital Management for the Respondent and her Witness Statement is marked as "COWS-6"; and
(vii) Encik Lee Long How, (COW7) who was the Manager, Special Affairs Unit that was responsible for undertaking the internal investigations against the Claimant. His Witness Statement is marked as "COWS-7".
The Role Of Industrial Court
[7] In the Federal Court case of Milan Auto Sdn Bhd v Wong Seh Yen [1995] 3 MLJ 537 at 542, Mohd. Azmi Kamaruddin FCJ in delivering the decision of the Federal Court has held as follows:
"As pointed out by this 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 section 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. Failure to determine these issues on the merits would be a jurisdictional error which would merit interference by certiorari by the High Court." [Emphasis Added]
[8] In accordance with the guidelines enunciated in the above case, the Court's first duty is to determine whether the misconduct complained of by the employer has been established before going on to the second step to determine if the proven misconduct merits dismissal. If the misconduct is not proven, then the employee ought to be reinstated and the Court need not go on to the second step.
[9] At para 3.2, 3.3 and 3.5 of its written submissions, the Respondent has submitted as follows:
"3.2. The duty of the Industrial Court is to consider the reason given for the dismissal, if one is given, and not examine other reasons.
3.3. The question whether the Claimant was dismissed because of alleged harassment and/or victimisation is not a relevant issue since on the facts of the case, the Claimant was punished for misconduct.
3.5. Therefore, the Company submits that based on the totality of proved and/or admitted facts and/or evidences the allegations of ulterior motive, mala fides, harassment, victimisation and/or unfair labour practice are irrelevant and hence, ought to be disregarded".
[10] At p 13 of its written submissions, the Claimant has relied on the Federal Court case of Goon Kwee Phoy v. JP Coats (M) Sdn. Bhd. [1981] 2 MLJ 129. At p 136, the Federal Court held as follows:
"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 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 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]
[11] The Industrial Court is bound by this decision. This decision means that the Industrial Court can only refer to the reason or reasons given by the Respondent for terminating the Claimant. The Industrial Court cannot look at the facts of the case and find a reason for the Respondent even though it could have been used as a reason for the termination but was not relied on by the employer as a reason or ground for the termination of the employee. However, there is no such rule or binding precedent when it is the defence or explanation given by the Claimant that the Court has to consider. No where in the above case is it stated that the Court cannot consider reasons other than those given by the Claimant during the DI or his reply to the show cause letter or for that matter, in his statement of case. The Industrial Court under s30(5) of the IRA is specifically tasked to act according to equity, good conscience and on the substantial merits of the case without regard to technicalities and legal form. Following this very specific provision, the Court must, of course consider all the reasons and evidence forwarded by the Claimant in this case to substantiate his plea that his dismissal is without just case or excuse. Otherwise, the Court is not able to fulfill its fundamental role of determining whether the misconduct complained of by the Respondent has been established or not and whether the Claimant has been dismissed with just cause or excuse. The Court, therefore, cannot accept the Respondent's submission in para 3.5 that the Court cannot consider the Claimant's plea or evidence of alleged harassment and/or victimisation. The Court is of the view that if the Claimant can prove his allegations of ulterior motive, mala fides, harassment, victimisation and/or unfair labour practice for the Court's consideration, then the Court is bound to weigh the evidence and make a decision as to whether his dismissal by the Respondent had been with or without just cause and excuse.
What the Standard of Proof is in the Industrial Court
[12] The Respondent has submitted in para 3.6 of its written submissions, that 'the test to be applied by this Honourable Court in a case like the instant case is, whether the employer had reasonable grounds for believing that employee committed offences set out in the charges of misconduct preferred against the employee andwhether the employer had acted reasonably in dismissing him'.
[13] The Respondent has also cited an Industrial Court case of Utusan Melayu (M) Berhad v. National Union of Journalists, Malaysia [1991] 2 ILR 840 (Award No. 249 of 1991) stating that 'the test is not whether the employee did it but whether the employer acted reasonably in thinking the employee did it and whether the employer acted reasonably in subsequently dismissing him.'
[14] However, at para 3.8 of its written submissions, the Respondent has also submitted that, 'it is trite Industrial Law that in a dismissal case such as the present case, the burden of proof lies on the Bank to prove on a balance of probabilities that the Claimant's dismissal was with just cause or excuse'.
[15] The Court agrees with para 3.8 of the Respondent's written submission that the burden of proof lies on the employer to prove on a balance of probabilities that the Claimant's dismissal was with just cause or excuse. Thus, the correct test to be applied to the instant case is not the reasonable employer test but whether the Respondent had proven on a balance of probabilities that the Claimant's dismissal was with just cause or excuse. The decision of the Court of Appeal in Telekom Malaysia Kawasan Utara v Krishan Kutty Sangunai Nair & Anor [2002] 3 MLJ 129, has put an end to the uncertainty as to what the standard of proof might be for an employer to establish misconduct in a dismissal case. The Court of Appeal has held that the standard of proof on the employer is on the balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature or gravity of the issue. In Telekom Malaysia Kawasan Utara, the claimant was a clerk at the bill payment counter and he had been dismissed on, inter alia, grounds of dishonesty. At page 137, the Court of Appeal has held as follows:
"... the Industrial Court should not be burdened with the technicalities regarding the standard of proof, the rules of evidence and procedure that are applied in the court of law. The Industrial Court should be allowed to conduct its proceedings as a 'court of arbitration', and be more flexible in arriving at its decision, so long as it gives special regard to substantial merits and decide a case in accordance with equity and good conscience.
We do not think that representations by the minister to the Industrial Court should be classified as 'civil' or 'criminal' and apply different burden of proof in respect of each classification as is done in the court of law when finally the awards that follow are the same: dismissal or whatever. Such an exercise would also mean that it is more difficult to dismiss an employee who commits a more serious wrong than a less serious one. That does not appear to be right to us. It also means that no disciplinary action can be taken against an employer (sic) (employee) who had been charged for a criminal offence in court but was acquitted'.
[16] Further, at page 141 of the Telekom Malaysia Kawasan Utara case, the Court of Appeal has pronounced as follows:
"In our view, the passage quoted from Administrative Law by HW R Wade and CF Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on the balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature of gravity of the issue. But, again, if we may add, these are not 'passwords' that the failure to use them or if some other words were used, the decision is automatically rendered bad in law.
The Industrial Court should be allowed to discharge its functions as it was intended to be by statute. The Industrial Court should be more flexible to enable it to regulate the relations between employers and workmen and to prevent and settle differences and disputes arising from their relationship. That is what it is meant to be".
[17] Needless to say, the Court is bound by the above decision. Thus, based on the above Telekom Malaysia Kawasan Utara case, it is settled law that the standard of proof to be borne by the Respondent in proving the misconduct of the Claimant in the instant case in the Industrial Court is on a balance of probability. Therefore, the reasonable grounds test in Utusan Melayu (M) Berhad cannot be applied as the Industrial Court is bound by the decision of the Court of Appeal but not a decision from another division of the Industrial Court.
Background Facts About the Claimant's Employment.
[18] The Court will set out the facts pertaining to the Claimant's employment only for the period that is immediately preceding the DI. Vide a letter dated 14.7.2001 as adduced at p7 COB1, the Claimant was retained in his position as the Assistant General Manager - Application & Content Development, MSC Business Development, Bahagian Major Business & Government. As part of the restructuring in the Respondent company, the Claimant was informed via a letter dated 8.5.2007 that effective from 1.5.2007, the Claimant has been appointed the Assistant General Manager, TM Sports marketing, Group Marketing, and he is to report to Dato' Ranbir Singh Nanra ("Dato' Ranbir") from the date of the letter as adduced at p 8 COB-1. It is not disputed by the parties that at the time of the alleged misconduct by the Claimant, the immediate superior of the Claimant to whom he was reporting to is Dato' Ranbir.
[19] On 3.12.2007 at p9 COB-1, the Claimant was informed that from 1.1.2008, he has been transferred to Integrated Marketing Division and will hence be reporting to the Vice President, Integrated Marketing, Puan Zainab binti Hashim. Dato Ranbir had retired from the Respondent company in January 2008.
[20] With effect from 1.4.2008, the Claimant was transferred to the position of Assistant General Manager, Sports Event Management, Section Sports Event Management, Strategic Event Management, Integrated Marketing in the Respondent company. He is to report to COW-4 who is the General Manager, Strategic Event Management, Section Strategic Event Management, Integrated Marketing. The letter of transfer dated 10.3.2008 is adduced at p10 COB-1. The Claimant's submission is that since the change in the Respondent's management in 2008, he had been victimised. The Claimant's contention is that even though he qualified for a promotion, he was not promoted but COW4 who is more junior and has no experience of doing events was promoted and the Claimant was required to report to her. In para 8(iv) and (v) of the Claimant's written submissions, it is stated that COW4 gave the Claimant an unfair rating of 2 when in the past, he had obtained higher ratings from Dato Ranbir. COW4 also overruled the Claimant's rating given to a subordinate named Mohd Azmi Shah ("Azmi") and subsequently promoted Azmi to the Claimant's post after the Claimant was transferred out.
[21] By a memorandum dated 15.9.2008 as adduced at pp1-2 COB-2, COW-4 requested the Chief Group Internal Auditor for a special internal audit into the Agreement for the Design, Development and Management of Sports Content between the Respondent and Football Channel Sdn Bhd ("FCSB") dated 4.9.2006 which was referred to in the memorandum as the "Master Agreement" ("Agreement dated 4.9.2006"). As at the date of the Agreement dated 4.9.2006, the Claimant was the Assistant General Manager, Group Marketing Division of the Company and headed the FAM/MSL Liaison reporting to Dato' Ranbir .
[22] On the Claimant's part, he has stated that he had acted upon the instructions and with the knowledge of Dato' Ranbir in executing the Agreement dated 4.9.2006 and the Addendum whereas at p 9 para 2.14(a), the Respondent's submission is that 'the Claimant executed the Master Agreement, without obtaining the approval of Dato' Ranbir Singh Nanra for the said purchase/procurement given the value of direct award of TM Football Channel Portal to FCSB. Dato' Ranbir Singh Nanra only became aware of the direct award to FCSB after the Claimant executed the Master Agreement [COB-1, pp 34-44]'.
[23] Both the Agreement dated 4.9.2006 and the Addendum dated 19.9.2006 became the basis of the disciplinary action taken against the Claimant in this case. The Respondent's case against the Claimant is that he had signed the Agreement dated 4.9.2006 and the Addendum without authority and without following the Respondent's Company Procurement Policy. COW-4 had reported a discrepancy to the Chief Group Internal Auditor and stated that the discrepancy arises pertaining to the "authority of the signatory to represent TM in a business arrangement valued at RM430,000.00".
[24] In view of the question posed by COW-4 to the Internal Auditor, it is very clear to the Court that the issue in this case is whether the Claimant has the authority to sign the Agreement dated 4.9.2006 and the Addendum dated 19.9.2006 with a value of RM430,000.00 on behalf of the Respondent. The Respondent's position is that the Claimant does not have the authority to do so. As a result of this, 5 charges were preferred against the Claimant arising out of the same incident. A preliminary issue that has arisen is whether the Claimant has been given a fair hearing before he was dismissed and the Court will deal with this preliminary issue first before dealing with the substantive issues as it is important that the Claimant ought to have been dismissed only after a fair hearing although being dismissed without a Domestic Inquiry ("DI") does not ipso facto make the dismissal unfair or unjust in certain circumstances.
Whether the Claimant Was Given A Fair Hearing
[25] A total of 5 charges were preferred against the Claimant for the DI. On 14.8.2009, the Claimant was issued a Show Cause letter asking the Claimant to show cause within 5 days from the date of the letter why disciplinary action should not be taken against him based on the 5 allegations of misconduct set out in the letter as adduced at pp 22-24 COB-1. The Claimant sent in his reply to the show cause as at pp 25-30 COB-1 and on 8.12.2009, the Claimant was issued a charge letter setting out the 5 charges against him. He was also informed that he has to be present for a DI on 23.12.2009 and that should he fail to be present, the DI panel will nevertheless proceed as scheduled without his presence based on the evidence put forward by the Company.
[26] In para 4.5 and 4.6, the Respondent submitted as follows:
"It is also undisputed that the Claimant was given due notice of the Domestic Inquiry and the particulars of the charges of misconduct preferred against him [COB-1, pages 31 - 33].
The Inquiry scheduled on 23.12.2009 did not proceed and was postponed on 6 occasions on the Claimant's application. The Inquiry finally proceeded on 4.5.2010".
[27] The Respondent further submitted that on 4.5.2010, the Claimant attended the DI, but requested to be excused from the said proceedings and that the Claimant further informed the DI panel that he wished to abstain from the DI proceedings and reserved his rights in the matter after which the Claimant voluntarily walked out of the DI. The DI then proceeded ex parte on 4.5.2010 and the Claimant was found guilty of four charges of misconduct preferred against him but he was found not guilty of the 5th charge. At para 4.9, the Respondent had submitted as follows:
"Based on the totality of the evidence adduced, it is clear that the Claimant had out of his own free will declined to participate in the Inquiry despite being given every opportunity to do so as he did not want to answer the charges preferred against him. That the Claimant did not avail himself fully of this opportunity is no fault of the Company".
[28] In paragraphs 6 and 7 of the Claimant's Written Submissions, the Claimant has questioned the validity of the DI and submitted that he did not have the opportunity to fully and properly prepare and/or present his appeal against his dismissal as the Respondent and/or panel had failed to provide and/or to ensure that the Claimant had been provided with the relevant documents set out at para 5 of his Written Submissions. From the Claimant's testimony, it is also clear that the Claimant did not agree and/or consent to the DI proceeding ex parte contrary to what had been submitted by the Respondent. The decision to proceed with the DI whether or not the Claimant was fit to attend the DI has already been made by the DI panel at the last DI hearing date on 20.4.2010 so it is immaterial whether the Claimant has sought an adjournment or not. The Court will proceed to examine if the Claimant had been given the opportunity to fully and properly prepare and/or present his appeal against his dismissal.
The first time the DI was fixed on 23.12.2009
[29] A perusal of CLB-2 will show the long running tussle between the Claimant and the Respondent to fix a suitable hearing date for the DI. The Respondent did not want to grant any adjournment for the DI once the date has been fixed. The Claimant had requested a postponement of the DI fixed on 23.12.2009 on the following grounds:
(a) he needs more time to prepare for his defence;
(b) he is not familiar with the DI procedures;
(c) he needs IR to furnish him with any information pertaining to the DI proceeding process; and
(d) he needs to consult and / or engage peers who are not around or are planning their holidays.
[30] COW6 rejected the Claimant's application for a postponement on behalf of the Respondent on the ground that he had been given ample time to prepare for his case. The Claimant was informed that the DI panel 'shall proceed ex parte/without your presence based on evidence put forward by the Company'. The Claimant was further informed that he is allowed to be represented by his colleagues or to produce evidence or witnesses.
[31] The first DI hearing was eventually postponed on 23.12.2009 when the Claimant's mother was hospitalised for surgery on 19.12.2009 as the Claimant is the care giver/guarantor for his mother's medical bill upon check-in to the hospital for the surgery. The DI was postponed to 12 and 13 January 2010. The Court has perused the facts leading to the postponement of the DI hearing for the 1st time and is of the view that the notice of the DI issued on 8.12.2009 informing the Claimant of the DI hearing on 23.12.2009 which in effect gives the Claimant only 14 days to prepare to defend his means of livelihood to be far too short. Not only was he unable to get any one of his peers or the in-house union to assist him in his representation at the DI. Furthermore, he was being charged for events that took place between 1.1.2006 and 3.9.2006 only in the year 2009 and it is evident that he needs time to recollect the events and look for documents such as minutes of meeting or letters that are relevant in order to answer to the charges. It is to be noted that the Respondent itself took from 3.11.2008 until 5.3.2009 as shown on p 35 COB-2 to complete the internal audit report. There has been no evidence adduced that the file pertaining to the signing of the Agreement dated 4.9.2006 and the Addendum dated 19.9.2006 had been made available to the Claimant in order to enable him to prepare for the DI. Thus, the Court is of the view that the postponement ought to have been granted by the DI panel even if the Claimant's mother had not been hospitalised for surgery.
The second time the DI was fixed on 12 and 13.1.2010
[32] On 10.1.2010, the Claimant was admitted to KPJ Damansara Specialist Hospital ("the hospital") for "Tonsillar hypertrophy with OSA". The operation was carried out on 11.1.2010. After the operation, the Claimant remained in the hospital until 12.1.2010 and was then given medical leave from 13.1.2010 until 18.1.2010. Thus, for the second time the DI that has been fixed on the 12th and 13th January 2010 will have to be postponed due to the Claimant's medical condition.
[33] From 22.1.2010 until 26.1.2010, the Claimant was readmitted to hospital due to a tear in his tonsil operation causing quite a lot of bleeding. This can be verified from the photographs at pp 29-31 CLB-2. The hospital then extended the Claimant's medical leave from 27.1.2010 until 29.1.2010.
[34] The Court finds that it is unavoidable for the Claimant to find himself in such a situation and that he had asked for the postponement of the DI hearing for a second time on a valid ground. The DI hearing fixed for the second time has to be postponed due to the Claimant's ill health which turned out to be quite serious in nature. The medical certificates tendered by the Claimant for the postponement of the DI hearing on the second occasion were issued by the consultant ear, nose & throat surgeon from the hospital.
The third time the DI was fixed on 11 and 12.2.2010
[35] The DI notes for the 11th and 12th February 2010 have been adduced at pp 252-307 COB-2. At the outset of the DI hearing on 11.2.2010, the Chairperson informed the parties of the ground rules and the 5 charges were read to the Claimant to which he pleaded 'Not guilty'. Immediately after that, at p 258 COB-2, the Claimant informed the DI panel that he is requesting for a postponement of the DI hearing for that date. According to the DI notes at p 259 COB-2, the Claimant informed the DI panel that he is supposed to be represented by Dato' Ir Zaini, PET President ("PET President") which was the in-house Union, and En Mohd Amin ("En Amin") but both of them were not present at the DI. The Claimant was informed that the PET President is on leave in Japan and En Amin is pre-occupied with a workshop organised by Mr. Jeremy Khoo. The Claimant informed the DI panel that since it is his first DI case, he needs guidance. Since his counsel who is the PET President and En Amin were not present to assist him, he requested for a postponement. This is borne out by the DI notes on pp 252-253 COB-2. It is noted that there is a 'pegawai pendakwa' ("prosecuting officer/PO") and 'pembantu pegawai pendakwa' ("assistant prosecuting officer") but there is no 'pegawai pembela' ("defence officer/DO") or 'pembantu pegawai pembela' ("asssistant defence officer").
[36] In addition, the Claimant also tendered a letter from his cardiologist attesting to his poor health condition and that he should refrain from strenuous stressful conditions for at least two months from the date of the letter until the cardiologist can reassess his health condition as the cardiologist has started him on new drugs. The Claimant informed the DI panel that he has given a copy of the letter and 'a recent picture of his recent condition' to COW-5 and the Human Resource Department ("HR"). The PO objected to the Claimant's request for adjournment on these grounds and the DI panel took time off to consider the Claimant's request. After the break, the DI panel resumed and found a discrepancy in the date of the cardiologist's letter. When queried, the Claimant informed the DI panel that there has been a mistake in the date of the letter and that his tonsil operation is inter-related to his heart problem as the tonsil is actually blocking the passageway and that had caused his heart to work harder. The DI chairperson then made a decision to allow the Claimant to go and get a letter from his doctor. The decision of the chairperson is that if the Claimant gets the letter from his doctor, then the DI panel will postpone the hearing according to what the doctor advises. If there is no letter from the doctor on that day, then the DI panel will continue with the hearing the next day on an ex parte basis.
[37] On 12.2.2020, in the absence of the Claimant, the DI chairperson informed the parties present, that the doctor has given the Claimant a twodays Medical Certificate for 11.2.2010 and 12.2.2010 which the Claimant has submitted to the Respondent. The DI chairperson stated that the letter submitted by the Claimant the day before has not specified what kind of strenuous situation the Claimant should avoid and since it is not specific, the DI panel has decided to proceed with the DI hearing on 24.2.2008 instead of acceding to the Claimant's request for a two month adjournment as per his cardiologist's letter. The DI chairperson also informed the parties that the Claimant is to be informed to bring along his representatives for the next DI session, failing which the DI panel will proceed without the representatives.
[38] The DI has to be postponed for the 3rd time again due to the Claimant's poor health as shown by the medical certificates issued by the cardiologist. The Court finds that the adjournment was correctly granted due to the medical certificate given by the cardiologist and in view of the Claimant's inability to get representatives to assist him in his defence. It is not argued by the Claimant that it is the duty of the Respondent to ensure the attendance of his appointed representatives and to relieve those appointed representatives of their daily duties in order to allow them to represent him even though this ought to have been the case. As it turned out, he was left to fend for himself as his other colleagues were unable or declined to represent him. See p 5 CLB-2 and p 23 CLB-2.
The fourth time the DI was fixed on 24.2.2010
[39] On 23.2.2010, the Claimant was examined by the cardiologist and given medical leave for 24th and 25th February 2010. The DI panel accepted the medical certificate issued by the Claimant's cardiologist and agreed to postpone the DI hearing for the fourth time. A letter was also issued by the cardiologist on 25.2.2010 stating that the Claimant has significant coronary disease as at p 13 CLB-2. The cardiologist further stated that he has commenced the Claimant on newer medications and that it is important for his well being that he does not undergo any stressful situation and that it will take at least two months for him to determine the Claimant's improvement with the newer medication.
[40] A letter from the Respondent dated 11.3.2010 to the Claimant written by COW-6 adduced at p 16 CLB-2 stated that notwithstanding what was written by the Claimant's cardiologist in the cardiologist's letter dated 25.2.2010, the Claimant has not been given any medical certificate for 2 months and since he has not been certified unfit to work, the Respondent "is unable to accede to your request for a further 2 months' postponement of the inquiry".
[41] On 24.2.2010, the DI had to be postponed for a fourth due time as the time lapse between the third date of hearing for the DI and the fourth date of hearing is only 12 days instead of the 2-month adjournment requested by the Claimant based on his cardiologist's letter. As for the fifth date for the DI hearing, the Claimant was informed that the Respondent is only prepared to provide a final adjournment of 1 month and the next date of the DI was fixed on 13.4.2010. The Claimant was also given advanced notice by COW-6 on behalf of the Respondent at p 17 CLB-2 that if he fails to attend the DI as scheduled, 'the inquiry shall proceed in your absence and the necessary action shall be taken against you'.
The fifth time the DI was fixed on 13.4.2010
[42] The DI hearing that was fixed 13.4.2010 for the fifth time was adjourned at the request of the DI panel. This is stated in the letter written by COW-6 dated 7.3.2010 adduced at p 18 CLB-2. The DI hearing was then fixed for the sixth time on 20.4.2010.
The sixth time the DI was fixed on 20.4.2010
[43] The Claimant again requested for an adjournment on account of the fact that he is a heart patient and that his cardiologist has advised him to go for follow up checks on the 26-27 April 2010 for him to do more tests on the Claimant. The DI chairperson granted the adjournment sought and the next DI hearing was fixed for 4.5.2010. The DI panel decided that before the commencement of the seventh DI hearing on 4.5.2010, the Claimant will be examined by the Respondent's appointed doctor before the hearing. At p 268 COB-2, the DI chairperson said:
"So, if let's say you are still unable to proceed during that session, because this is going to be the last postponement, we will proceed ex parte, ya. This is last postponement and we will proceed ex-parte if let's say you fail to turn up or you fail to... you are not fit, even though you are not fit to proceed with an inquiry, it's either, or either any of the conditions. Either you fail to turn up, or either you are not fit with inquiry, fit to proceed the inquiry as verified by the doctor, we will proceed with the [inquiry] ex-parte. Ok".
[44] Whilst it may appear as if the Claimant is unnecessarily delaying the DI hearing with his constant applications for adjournments, the applications are not, in the Court's view, without basis and appear to be unavoidable in light of his surgery and his heart problem, and the cardiologist's efforts at stabilising his chronic high blood pressure with some new drugs. It will not be considered wise to further burden the Claimant with more stress than what he is already undergoing in view of his poor health during this period of time and his difficulty in getting help from fellow colleagues to assist him in his case as stated by the Claimant at p 23 CLB-2 where the PET President told him that PET could no longer assist him as it is no longer recognised by the Respondent even though in each letter informing the Claimant of the new date for the DI, the Claimant was informed that he is allowed to be represented by his colleagues or to produce evidence or witnesses. However, this appears to be something the Claimant is unable to obtain without the assistance of the Respondent.
[45] The Court has perused the medical certificates and medical reports issued by the doctors and find that the doctors had issued the medical certificates and medical reports responsibly and there has been no suggestion by the Respondent that they have not been so issued. If the Claimant had feigned illness in order to frustrate the attempts of the Respondent to carry out the DI, then the Court will not hesitate to take him to task but as it turns out, even the Respondent's own panel of clinic doctor would not certify that the Claimant was fit to attend the DI hearing on 4.5.2010. The letter from the Respondent's own doctor is tendered at p 26 CLB-2. The Respondent's doctor had examined the Claimant and the doctor has noted that his blood pressure is high at 160/100 despite the new medication given by the cardiologist. It is noted that the cardiologist has stated that despite his efforts, the Claimant's blood pressure is still high and hence he should not be put under strenuous conditions. The Respondent's doctor has also stated in his medical report to the chairperson of the DI that in view of the medical history of the Claimant and "the BP today it is advisable not to put him under strenuous condition". According to the Claimant's email on 4.5.2010 to COW-6, he decided not to participate in the DI which to him is the 'strenuous condition' which the Respondent's doctor had advised that he be not put under.
[46] The Court has further perused the letter for the Respondent's doctor and find that even though it is not a medical certificate or MC as submitted by the Respondent, it is advisable and not unreasonable to give the Claimant a little more time to recover from his medical condition. The Court is of the view that having to defend himself and having to recall incidents which happened in 2006 and knowing that his means of livelihood is at stake will certainly increase the pressure on the Claimant and put him under strenuous conditions. If it were not so, the independent doctor would have no problem giving a medical report to state that undergoing the DI does not amount to a 'strenuous condition'. But he was careful not to do so being professionally qualified. In as much as the Court abhors delays in the delivery of justice, the medical opinions of health professionals must be given due consideration and not be viewed willy-nilly.
[47] As stated by the Claimant in the same email on 4.5.2010 to COW-6,, the decision by the DI panel to proceed ex parte on 4.5.2010 is a decision that has been made at the last session of the DI and it was also conveyed by COW-6 to the Claimant via her email dated 28.4.2010 at p 28 CLB-2. In fact from the very first time the notice of the DI was issued to the Claimant, he had been told at p 32 COB-1, p17 CLB-2 and p 18 CLB-2 that the DI hearing will proceedex parte in his absence should he fail to attend the DI. Thus it is not entirely true for the Respondent to submit that the Claimant had requested to abstain himself from the DI and that he had agreed that the DI should proceed on ex parte without his presence. In view of the doctors' assessments on his medical condition, it would have been advisable if the Claimant be given the two month adjournment he requested for in the first place until the Respondent's own doctor had found him fit to face the charges and proceed with the DI. In light of the reasons tendered for the adjournments of the DI hearings, the Court is of the view that the Claimant was not given the right of hearing and the right of representation during the DI.
Whether there was a breach of natural justice
[48] The Respondent further submitted at para 4.7 that during cross examination, the Claimant agreed to the following:
(i) On 4.5.2010, the Claimant attended the Inquiry and did not apply for a postponement;
(ii) On 4.5.2010, the Claimant was required by the Inquiry Panel to be examined by an independent Panel Doctor to ascertain whether he was medically fit to go through the Inquiry;
(iii) On 4.5.2010, the Claimant was examined by the independent Panel Doctor, but he was neither issued any medical certificate to excuse him from the Inquiry nor any document stating he was "medically unfit" on 4.5.2010, as alleged by him in A.5(c) of CLWS- 2A;
(iv) On 4.5.2010, the independent Panel Doctor issued CLB-2 page 26, which was not a medical certificate;
(v) By CLB-2 page 26, the independent Panel Doctor merely states that "it is advisable not to put him under strenuous condition";
(vi) there was no doctor who certified him unfit to attend the Inquiry on 4.5.2010 contrary to A.5(c) of CLWS-2A;
(vii) the Claimant excused himself from the Inquiry as stated in A.5(c) of CLWS-2A;
(viii) On 4.5.2010, the Claimant agreed with the Inquiry Panel Chairman that the Inquiry Panel could proceed in his absence [COB- 2, page 268 (bottom) in particular, page 269]; and
(ix) On 4.5.2010, the Claimant agreed for the matter to proceed ex parte pursuant to the question posed by the Inquiry Chairman and pursuant to his answer to the Inquiry Chairman, he took no further part in the Inquiry process'.
[49] The Respondent relied on the case of Idris Tahir v. Malayan Banking Berhad, [2011] 2 ILR 395 where the Industrial Court had held that the Claimant was not denied an opportunity to be heard where there was a DI and he had chosen to squander the opportunity to defend himself. In that case, the claimant had approved overdraft facilities to a non-existent company. The Claimant had refused to testify at the DI after the Bank had closed its case. He was then found guilty of 3 of the charges brought against him and dismissed from service. In Idris Tahir, the claimant was present throughout the DI and had not only cross examined the bank's witnesses and called 2 witnesses to testify on his behalf and when he was asked to present himself as a witness, he refused to do so. The situation in Idris Tahir is completely different from that in the instant case and the finding of the learned Industrial Court Chairman cannot be applied to this case.
[50] The Respondent's submission is that based on the totality of the evidence adduced, it is clear that the Claimant had out of his own free will declined to participate in the DI despite being given every opportunity to do so as he did not want to answer the charges preferred against him. That the Claimant did not avail himself fully of this opportunity is no fault of the Company. The Court's view is that the DI was held to ensure that the Claimant has been given the right to be heard. By proceeding ex parte on the day in question despite the medical report made by the Respondent's own doctor, and to slavishly insist on a medical certificate despite the medical reports by both the Claimant's cardiologist and the Respondent's own doctor and by making the decision to proceed ex parte prior to the hearing date as set out above, whether or not the Claimant is medically fit or not, the DI panel has denied the Claimant of his right to be heard. In their book Judicial Review of Administrative Action by Mark Arouso et al 3rd Edition Lawbook Co. 2004, at p 370, 371, the authors have stated as follows:
"There are two traditional rules of natural justice. The hearing rule requires a decision-maker to hear a person before making a decision affecting the interest of that person. The bias rule provides for disqualification of a decision maker where circumstances raise a doubt as to that decision maker's impartiality. These rules can be described as procedural, in a broad sense, in that they address the manner in which a decision is made, and not the merits of the decision itself. ...it can be a breach of the hearing rule to deny a person an opportunity to to be heard, even where that person happens to have nothing to contribute which would be relevant to the decision.
[51] In Malaysian Airline System Berhad v Wan Sa'adi @ Syed Sa'adi bin Wan Mustafa, (Rayuan Sivil 02(F)-15-04/2013(N) Unreported overruling Court of Appeal decision [2014] 2 ILR 516) on the issue of whether the Appellant had been denied the right to a fair hearing and whether the Industrial Court had breached the requirements of procedural fairness by asking the appellant to leave the court room during the cross examination of the complainant leaving only his counsel to do the cross examination, the Federal Court held that there had been no breach of natural justice on the basis of denial of procedural fairness. At paras 24, 25 and 27, the Federal Court set out the principles of procedural fairness as follows:
"24. Now, procedural impropriety is said to have occurred when a decision maker (including an administrative tribunal or an arbiter) empowered by public law in the form of legislation or common law (that is, prerogative power), in coming to a decision (including his refusal to make a decision) with consequences affecting 'some person or (body of persons)' fails:
(i) to observe the 'basic rules of natural justice';
(ii) 'to act with procedural fairness towards the person who will be affected by the decision',; or
(iii) 'to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice'.
25. The basic rules of natural justice are generally understood to mean the right to be heard, the rule against bias and the duty to act fairly. However, the scope of the 'duty to act fairly' should be considered on a case to case basis depending on the facts and circumstances governing the relationship of those involved prior to the decision being made.
27. In Ketua Pengarah Kastam v Ho Kwan Seng [1977] 2 MLJ 152 at p 154 Raja Azlan Shah FCJ (as His Majesty then was) said this:
In my opinion, the rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled 'judicial', 'quasi-judicial', or 'administrative' or whether or not the enabling statute makes provision for a hearing".
[52] The principles of natural justice have been entrenched in our judicial system and no punishment can be meted out before the person is given the right of hearing. In Public Prosecutor v Tengku Mahood Iskandar & Anor [1973] 1 MLJ 128 Raja Azlan Shah J (as His Majesty then was), held as follows:
"... the complainants were involved in smuggling goods into this country. Were they 10 times involved, or were they 100 times involved, that did not justify the respondent to inflict brutal third-degree practices on the three of them. The law is sedulous in giving them the right to a fair trial and to be defended by counsel. Those fundamental rights must always be kept inviolate and inviolable, however crushing the pressure of incriminating proof".
[53] The Court is of the view that applying the above legal principles to the facts of the instant case, the Claimant has been condemned unheard and there has been a breach of natural justice occasioned by the DI panel's decision to proceed with the DI ex parte whether or not the Claimant was fit to attend the DI hearing and therefore he cannot be said to have been fairly dismissed.
[54] The time line from the time the Agreement dated 4.9.2006 was signed until the DI was held is as follows:
DATEEVENTTIME LAPSE
4.9.2006Signing of Agreement between Respondent and Football Channel Sdn Bhd (FCSB) as adduced at pp33-44 COB-1
19.9.2006Date of Addendum to Agreement dated 4.9.2006 adduced at p 46 COB-1Signed on 18.12.2006, about 3 months after Agreement dated 4.9.2006 was signed.
10.11.2006Sports Marketing Meeting & Budget Review where Dato' Ranbir approved the RM500K budget for the portal.About 2 months after the signing of the 4.9.2006 Agreement and 1 month prior to the signing of the Addendum
15.9.2008Memorandum from COW-4 to Group Internal Audit requesting for special internal audit on 4.9.2006 Agreement.Request made more than 24 months after the Agreement dated 4.9.2006 was signed.
5.3.2009Date of Special Review on TM Football Channel Portal completed by the Internal Audit Team which commenced on 3.11.2008.Audit report was concluded almost 6 months from date of request on 15.9.2008.
14.8.2009Claimant received a Show Cause Letter@ pp 22-24 COB-1Show cause letter was issued more than 5 months after the audit report was completed.
24.8.2009Claimant replied to Show Cause Letter @ pp 25-29 COB-1Claimant's reply was made 10 days after the issuance of the Show Cause letter.
8.12.2009Claimant received a Charge Letter @ pp 31-33 COB-1 setting out 5 charges against C and notice of Domestic Inquiry fixed on 23.12.2009.The Charges were received more than 3 months after Claimant's reply to the Show Cause Letter and over 9 months after the Audit Report was finalised and more than 39 months after the 4.9.2006 Agreement was signed.
23.12.2009Date of 1st DI hearing. Postponed because Claimant's mother was hospitalised to undergo surgery.Claimant got 14 days' notice to prepare for his DI from 8.12.2009
12.1.2010, 13.1.2010.Date of 2nd DI hearing Postponed because of Claimant's surgery. Claimant was on medical leave for Tonsillar hypertrophy with OSAThe time lapse is 20 days from 23.12.2009.
11.2.2010, 12.2.2010Date of 3rd DI hearing. Postponed because Claimant was on medical leave suffering from cardiac problem and high blood pressure (BP).The adjournment from 13.1.2009 is about 1 month. Claimant asked for 2 months' adjournment which was not allowed.
24.2.2010Date of 4th DI hearing. Postponed because Claimant was on medical leave.Lapse of 12 days from 12.2.2010.
13.4.2010Date of 5th DI hearing. This adjournment is at the request of the DI panel.Lapse of about 6 weeks from 24.2.2010.
20.4.2010Date of 6th DI hearing. Postponed because Claimant was on medical leave.Lapse of 7 days from previous date fixed for DI hearing.
4.5.2010Date of 7th DI hearing. The DI hearing proceeded ex parte after the Respondent's doctor advised that the Claimant's BP for the day is high and he is not to be put under 'strenuous conditions'Lapse of 14 days from previous date fixed for DI hearing.
11.6.2010The DI panel found that 4 of the 5 charges against C have been proven. C's appeal against the DI panel's decision was dismissed.Lapse of more than a month after DI hearing.
[55] From the above table it could be seen that the Respondent took about 5 months from the time the Audit Report was ready to issue a Show Cause letter to the Claimant. The Audit Team took a little less than 6 months to complete the report. In total, it took about 11 months. It took the Respondent more than seven months from the date of the Audit Report to charge the Claimant. It therefore appears unreasonable that the Respondent would not allow the Claimant a little more time to prepare his defence and to allow his medical condition to stabilise as advised by his cardiologist. Instead of adjourning the DI hearings for 7 days, 10 days, or 14 days, or 20 days, or a month at a time, thereby resulting in many sittings and adjournments, it would have been more prudent to adjourn it for the 2 months as requested by the cardiologist as that would have caused less disruption to the Respondent's daily running of its business and to the Claimant's overall health condition by not increasing his anxiety resulting in a higher BP and giving him ample time to prepare for his defence. Most importantly, it would not have resulted in so many adjournments as averred by the Respondent. It is noted that the overall time taken up by the adjournments requested by the Claimant on valid grounds did not stretch to 11 months. At para 4.6 of its Written Submissions, the Respondent has submitted that throughout the period after 23.12.2009, the Claimant was paid salary by the Respondent. It is not certain what the Respondent means by that because if the Respondent is entitled not to pay the Claimant's salary, it is not submitted. On the contrary, the Claimant has at p 35 of its Written Submission stated that he is not charged for serious misconduct and was never suspended and so the Respondent does not appear to have any reason or ground not to pay the Claimant his salary until he has been found guilty of the misconduct as charged and the decision to terminate him is final.
Whether The Appeal Panel Addressed The Claimant's Appeal Fairly
[56] The Respondent's Disciplinary Appeal Committee (DAC) that deliberated on the Claimant's appeal on 20.7.2010 comprised 2 persons who are COW-1 and Puan Sharifah Khadijah binti Syed Yusof who was then the General Manager of High Speed Broadband. In his answer to Q20, COW1 stated that the DAC convened on 20.2.2010 to consider the Claimant's appeal and 'after careful deliberation and consideration of the grounds and mitigation submitted by the Claimant as well as the documents relating to his disciplinary case, the DAC was unable to accept the said grounds as concrete grounds to set aside or reduce the punishment of dismissal from service with effect from 11.6.2010 that was imposed on him'.
[57] The Minutes of the meeting of the DAC is contained in pp 318-328 COB-2. It is noted that at p 318 COB-2, the time for the meeting is stated as '4.00 - 5.00 pm but at p 328 COB-2 it is stated that "Mesyuarat ditangguhkan pada jam 4.30 petang. At p 327 COB-2 in the first paragraph of para 4.0, it appears that the DAC's attention was drawn to the fact of the Claimant being given sufficient time to defend the charges against him and in the second paragraph, the DAC took note of the fact that the Claimant chose not to defend himself even though on 4.5.2010, there was no information given by the doctor that to state that the Claimant could not attend the DI ("tidak boleh hadir untuk sessi siasatan dalaman ini"). The Court notes that nothing was stated about the fact that the doctor had certified that the BP of the Claimant was high for that day and that he should not be put under 'strenuous conditions'.
[58] In the third paragraph of para 4.0 at p 327 COB-2 , the DAC noted that the Claimant's appeal letter was mainly with regards to the grievance he had about the grade he received from his superior officer. According to the DAC, there was no information regarding the appeal made by him against the charges preferred against him (Tiada sebarang maklumat yang dikemukakan untuk dipertimbangkan berkaitan dengan pertuduhan yang dikenakan ke atas beliau). In perusing the Claimant's letter of appeal to the DAC at p144-146, COB-1, the Court found that the Claimant did state as follows:
"The 5 inter-related charges are actions taken in September 2006 to May 2007. I had explained in my reply to the alleged charges the context of the action. I had followed instruction and the actions was with the full knowledge and consent of my then superior Dato' Ranbir Singh Nanra. The Domestic Inquiry had failed to produce Dato' Ranbir, who would be in this case, the only witness who can refute my claims".
[59] In view of the above, the DAC ought to at least have looked at the statement given by Dato' Ranbir to COW7 during the investigation to see if the Claimant's ground of appeal could be borne out by Dato' Ranbir's statement as set out in pp 228-231 COB-2 bearing in mind that Dato' Ranbir was not called as a witness to testify against the Claimant. But it is clear that the DAC did not do so. Neither did the DAC look into the Claimant's reply to the show cause letter as requested by him in his appeal letter which is set out in pp 25-30 COB-1 or to his reply in his statement to COW-7 at pp 128-132 COB-1. Thus the Court holds that in dealing with the Claimant's appeal, the DAC had failed to take into account salient points and had failed to look into the relevant documents. If the DAC had done so, it would certainly have been stated so in para 4.0 at p 327 COB-2 and the time taken by the DAC in its deliberations would definitely be much longer than 30 minutes or an hour.
[60] In the last paragraph of para 4.0 at p 327 COB-2, the DAC stated that what was done by the Claimant constitute a 'serious offence' but the DAC did not venture to look into the Respondent's own Domestic Inquiry Procedures & Policies at pp 146-157-a CLB-3 as submitted by the Claimant at para (a) of his written submission at pp 34-35. The Claimant's contention is that following Appendix 1 as shown at p 31 COB-5 of the Respondent's own Domestic Inquiry Policies and Procedures, the nature of the misconduct alleged against the Claimant show or at the very least suggest that the 4 misconduct were minor and are merely breaches of process/company policy. Item 3 in Appendix 1 of the Respondent's Domestic Inquiry Policies and Procedures states, under "Kesalahan Ringan", as follows:
"Sebarang tindakan yang bertentangan dengan peraturanperaturan yang ditetapkan."
[61] Therefore, the Claimant's submission is that "all 4 (charges) did not involve misappropriation, dishonesty, fraud or violence" and are not major misconduct falling under Appendix II as shown on p 33 COB-5 as "Kesalahan Berat". On this point, it is contended by the Claimant that
"Item 3 of the Company's Domestic Inquiry Policies and Procedures requires employees charged for serious misconduct to be suspended. This is clear from the wording of the same, which states:
Major Misconduct (see Appendices I & II)
In cases of major misconduct, a Suspension Letter shall be issued simultaneously, with the issuance of the Show-Cause Letter (or a Charge Letter - please see 4 (b) below)...
[62] The use of the word "shall" shows that it is mandatory for suspension of employees where there has been serious misconduct. The fact that C was never suspended clearly shows that the charges did not involve serious misconduct".
[63] Having perused the Respondent's Domestic Inquiry Policies and Procedures, the Court is of the view that the DAC did not fully consider the appeal made by the Claimant and merely went through the Claimant's appeal in a perfunctory manner. The issue of proportionality of punishment ought to have been considered by the DAC at this stage in view of the fact that the misconduct was labelled by the Respondent as 'Kesalahan Ringan' in Appendix 1 at p 31 COB-5. The DAC also ought to have given its reasons as to why it differed from the DI panel members who had clearly stated that the Claimant was not solely to be blamed for the poor contract management and the DI panel had recommended that the Claimant is to be given an appropriate punishment not amounting to a dismissal.
[64] There is also a doubt as to what could have been the existing procedure at that point of time. Dato' Ranbir who was the Claimant's direct superior at that time did not think that the appointment of Football Channel Sdn Bhd (FCSB) for the Tmfootballchannel.com portal was in contravention of the Respondent's procurement process. This is clear from his answer in bold to Q6 at p 229 COB-2 as follows:
"Q6:The appointment of Football Channel Sdn Bhd for the Tmfootballchannel.com portal was a direct award which is not in accordance with TM's procurement process. Were there any justifications put up by Zulkifli Shahari before he signed the Agreement with FC? Not sure if it contravenes TM's procurement process. My view is that it did not contravene any procurement process".
[65] The DAC also did not consider the findings of COW7 at p 57 COB- 2 where there was acceptance and condonation by Dato' Ranbir of the actions of the Claimant. At para 6.3,-6.5 it is stated as follows:
"6.3 According to Dato Ranbir, when he found out that En Zulkifli had on his own initiative executed the Agreement with FCSB, Dato Ranbir had given him a good bashing. Nevertheless, Dato Ranbir admitted that the said portal was a requirement at that time, aim (sic) to bring all the local football fans together by providing services under one portal, namely exclusive Liga Malaysia news and video streams, international football news, football forum and punter's guide and fan club blogs and fantasy football.
6.4 Dato Ranbir agreed to go ahead with the portal and had approved an allocation of RM500K at the Sports Marketing Meeting & Budget Review held on 10 Nov 2006 (refer Appendix 5, para 3.6).
6.5 On the Addendum (Appendix 3) accepted by En Zulkifli on 16 Dec 2006, i.e. about three months after the Agreement was signed, Dato' Ranbir confirmed that he has no knowledge of it at all. He only came to know of the Addendum when the recording officer (I/O) showed it to him. Nevertheless, Dato Ranbir admitted that he would have approved and accepted the FSCB letter (Appendix 3a) and its attachment (Appendix 3b) as Addendum to the Agreement had En Zulkifli referred them to him then". [Emphasis Added]
[66] The Court finds that based on Dato' Ranbir's own admission to COW-7, the Agreement with FCSB has to be executed as the football portal is necessary for the Respondent's business and he had already allocated RM500,000.00 for the portal. He has clearly indicated that he agreed to go ahead with the portal. Thus whatever that was done by the Claimant to get the portal going which, even if it did not have his prior approval, was later agreed to by him as he had told COW-7 that he would have approved and accepted the terms of the Agreement and the Addendum for the portal. Therefore, the contention made by the Claimant that he had obtained the approval of Dato' Ranbir would be correct. The DAC ought to have considered these factors seeing that the Claimant specifically mentioned Dato' Ranbir in his appeal letter. The Court finds that on these grounds alone, the Claimant ought not to have been dismissed.
[67] In any event, notwithstanding that the Court has found that the Claimant's appeal had not been dealt with in a proper manner by the DAC, the Court will also deal with the substantive merits of the case.
Whether There Is Only One Agreement or Two Agreements
[68] The Charges preferred against the Claimant are as follows:
"That you, Encik Zulkifli Shahari, (NRIC Number: 630314-10- 7211) while holding the position of Assistant General Manager, TM Sports Marketing, Group Marketing, is alleged to have committed offences contrary to your express and implied terms and conditions of service. Details are as follows:
Charge No. 1 [COB-1, page 31]
That you between 1 January 2006 and 3 September 2006 had failed to ensure that the direct negotiation/procurement with vendor Football Channel Sdn Bhd for a portal job known as www.TMfootball.channel.com was in compliance with provisions 7.1 and 7.2 March 2006 on Direct Negotiation/Procurement (Perolehan/Rundingan Terus) before executing the document titled "Agreement for the Design, Development and Management of Sports Content" dated 4 September 2006 with the said vendor."
Charge No. 2 [COB-1, page 31]
That on 4 September 2006, you had failed to ensure that the approval of Group Chief Procurement Officer was obtained before executing the document titled "Agreement for the Design, Development and Management of Sports Content" with a vendor named, Football Channel Sdn Bhd of which the Agreement was without limit in value (kontrak tanpa had nilai) thereby contravening the provisions 7.1.3 of the Company's Procurement Policy, reference number: BPM/PRC/CG/010M dated March 2006 on Contract Guide (Panduan Kontrak)."
Charge No. 3 [COB-1, page 31]
That you, on 4 September 2006, had acted beyond your authority limit by signing on behalf of TM the Agreement for the Design, Development and Management of Sports Content" with a vendor named, Football Channel Sdn Bhd, whereby you have not been delegated to sign the said document, thus contravening provision 9.17.2 of the Company's Business Process Manual commonly known as Manual Process Perniagaan (MPP) on Financial Administration (Pentadbiran Kewangan)."
Charge No 4.
That on 16 December 2006, you had acted beyond your authority limit by confirming and accepting on behalf of TM an undated letter with an attachment dated 19 September 2006 from Football Channel Sdn Bhd, deemed as addendum to the Master Agreement dated 4 September 2006 of which the Addendum value was RM430,000, whereby you failed to obtain review and approval from the Legal and Intellectual Property (LSIP) Division of Telekom Malaysia thus contravening provision 7.10.1 of the Company's Procurement Policy, reference number: BPM/PRC/010M dated March 2006 on Contract Guide (Panduan Kontrak)."
Charge No 5.
That you, between 30.5.2007 and 3.12.2007, had negligently supported for approval four (4) Applications for Local Order, i.e. Local Order No. 000427, 000855, 000930 and 001006 totalling RM500,000, being quarterly payments for the 'www.TMfootball.channel.com' portal job when you ought to have known that the actual costing was only RM430,000 vide the Addendum confirmed and accepted by you on 16 December 2006 and because of your inefficiency and irresponsibility, you had caused the company to overpay RM70,000 to the Vendor, Total Sports Sdn Bhd.
[69] After the DI, the DI panel found the Claimant guilty of Charges 1-4 and found him not guilty of Charge 5. At p 138 COB-1, the DI panel had concluded as follows:
"Panel membuat kesimpulan bahawa tertuduh telah tidak mengawal dan mengurus kontrak secara rundingan terus dengan baik dan juga tidak memastikan bahawa setiap polisi dan prosedur pengurusan kontrak dipatuhi sepenuhnya.
Walaupun demikian, bukanlah kesilapan tertuduh sematamata yang menyebabkan lebihan amaun terlebih bayar pada mulanya. Tertuduh sendiri telah mengambil initiative untuk mendapatkan kembali amaun tersebut dan tiada kerugian yang ditanggung oleh pihak Syarikat pada akhirnya.
Dengan ini, Panel mengesyorkan bahawa tertuduh hendaklah dijatuhkan satu hukuman yang setimpal dengan kesalahannya tetapi tidaklah sehingga hukuman pembuangan kerja".
[70] From this passage alone, it is clear that the DI panel did not think that it is solely the mistake of the Claimant that resulted in the overpayment in Charge 5. The DI panel also recognised the initiative taken by the Claimant to recover the overpayment from the vendor. It is to be noted that the Claimant had acknowledged the mistake made by him and his team in his reply to the show cause letter at p30 COB-1. He had also stated that the vendor shares the same responsibility for not invoicing the correct amount. When the Claimant became aware of the wrong invoicing, he had immediately instructed his staff to reclaim the overpaid sum of RM70,000.00 from the vendor and the amount wrongly invoiced has since been returned to the Respondent. The rationale of the DI panel in finding the Claimant not guilty of the Charge is important in four aspects. One is that he is not solely responsible for the wrong invoicing and payment and the second aspect is that there is no loss to the Respondent as the sum has been recovered and the third aspect is that the DI did not find any criminal intent on the part of the Claimant even though there were administrative policies and procedures that he did not follow.
[71] The fourth aspect is that the final contract value for the football portal is RM430,000.00 which is well within the allocated budget of RM500,000.00 set by Dato' Ranbir. This is in line with what has been stated by the Claimant in his reply to the show cause letter at p 30 COB-1 and Dato Ranbir's reply to COW7 at para 6.4 at p 57 COB-2 as set out above. The final contract value of RM430,000.00 is as stated in p 46 COB-1 which is the Addendum to the Agreement dated 4.9.2006 and in Charge 5 itself. Thus the Respondent cannot alter this fact by submitting that there are two agreements, one of which is without a value and another is RM500,000.00.
[72] It is noted that all the 5 charges emanate from one incident and one agreement, that is, the Agreement dated 4.9.2006 with the Addendum to the Agreement dated 19.9.2006. It is the Respondent's contention that there are 2 agreements which is a Master Agreement with no value and an Addendum which did not get the approval of the Respondent's Legal and Intellectual Property Division (LSIP). In A 10 of her witness statement marked as COWS4, COW4 had replied that the deliverables with the total costs are in the letter dated 19.9.2006 at p 15 COB2. This answer makes it very clear that there is only one agreement: the Agreement dated 4.9.2006 has only general and broad provisions and the Addendum is the one containing the deliverables and the value. The Court has perused both the documents and made a finding of fact that there is only one Agreement dated 4.9.2006 for which no value was incorporated and the specific details on the type of services to be rendered and other details on payment were not stated therein. The letter incorporating the value of the contract and the type of services to be rendered and other details are stated in the document dated 19.9.2006 as adduced at p 20 COB-1. This is to be an addendum to the Agreement dated 4.9.2006. Without the Addendum, the Agreement dated 4.9.2006 is not workable.
[73] This is very much like the situation in a tenancy agreement where all the provisions are set out in the agreement whereas the date of commencement, the duration, the amount of rental and even the names of the landlord and the tenant, the address of the premises to be rented out are stated in the Appendix or Addendum to the agreement. The only difference is that the Appendix or Addendum to the tenancy agreement would have been prepared at the same time as the agreement. It is undisputed that the Agreement dated 4.9.2006 had been referred to the Respondent's LSIP. It is noted that the LSIP had given the green light to the Agreement without asking for the details or deliverables as set out in the Addendum even though the Agreement dated 4.9.2006 is incomplete without the details in the Addendum. It would appear in view of Dato' Ranbir's statement to COW7 that the value of the contract was not incorporated in the Agreement dated 4.9.2006 because the value was agreed to by Dato' Ranbir subsequently when 'Dato Ranbir agreed to go ahead with the portal and had approved an allocation of RM500K at the Sports Marketing Meeting & Budget Review held on 10 Nov 2006'. In light of the Court's findings that there is in fact only one agreement and not two separate agreements, the Court finds that the Charges as set out in Charge 1, 2 and 4 are not proven by the Respondent.
Charge 3
[74] The contract value is RM430,000.00 as per the Addendum for the whole portal and that is the sum paid by the Respondent for the portal. This has also been confirmed by the Respondent's own wordings in Charge 5. This is also the view of the DI panel and it is also contained in the memorandum from COW4 to COW7. According to Schedule 20 at p 158 COB-2, under the heading 'Kuasa Menandatangani Kontrak/Perjanjian', for amounts below RM500,000.00, the designated persons who can sign the contract on behalf of the Respondent is 'Penolong Pengurus Besar/Pengurus Seksyen'. In this case, it is undisputed that the Claimant is an Assistant General Manager at the material time and as submitted by the Claimant in its written submission, this value is well within the Claimant's authority to sign.
[75] In para 6(e) at p 19 of its written submissions, the Claimant has submitted as follows:
"Further or in the alternative, it is submitted that in reality and in essence, there was only 1 agreement, in 2 parts - the Master Agreement and the Addendum. The value of this agreement was RM430,000.00. Referring back toSchedule 20, this value of RM430,000.00 is well within C's authority to sign, as he was an Assistant General Manager at the time. This would mean C did not require a written delegation of authority and cannot therefore be found guilty of this charge".
[76] The Court accepts the above submission and the Court does not agree with the Respondent's submission that there must be delegation of authority from Dato' Ranbir and for a copy of such delegation of authority to be submitted to the relevant financial units of the Respondent. The Court cannot accept the Respondent's submissions with regards to the application of the Company's Manual Proses Perniagaan (MPP) dated April 1996 at pp 100-101 COB-1. Para 9.17.2 at p 100 COB-1 states that that the authorized officers can delegate in writing to officers below them the powers given to them but that does not absolve the authorised officers from their responsibilities. In the instant case, there is no need for Dato Ranbir to delegate any powers to the Claimant as the Claimant has the authority to sign the Agreement dated 4.9.2006 as stated in para 9.17.3 which states as follows:
"Had Kuasa Melulus Jenis Urusniaga
Pegawai-pegawai seperti di jadual berikut adalah diberikuasa meluluskan (menandatangan) urusniaga berkaitan".
JADUAL 20 - KUASA MENANDATANGANI KONTRAK/PERJANJIAN
img1
[77] The 'jadual' is in fact the same Schedule referred to by the Claimant in its submissions as set out above. The monetary limit for an Assistant General Manager to sign a contract as shown above, is for contract amounts below RM500,000.00. The value of the Agreement dated 4.9.2006 is RM430,000.00 and is well within the Claimant's authority limit and hence he is authorised to sign the Agreement without further authorisation in writing from Dato' Ranbir. The Court also finds that the Respondent has failed to prove that the Company's Business Process Manual commonly known as Manual Process Perniagaan (MPP) on Financial Administration (Pentadbiran Kewangan) where the monetary limits had been revised had already come into force on 4.9.2006 as there is no clear evidence on the date that it had come into force. Even Dato' Ranbir has denied that the appointment of FCSB has contravened any of the Respondent's procurement procedures. After perusing the documents and considering the submissions of the Respondent, the Court finds that the Respondent has not proven Charge 3 and the Claimant cannot be found guilty of Charge 3.
Whether Respondent Should Have Called Dato' Ranbir As Its Witness
[78] In para 7.10 at p 53 of its written submission, the Respondent has submitted that the Claimant has the burden to produce Dato' Ranbir as his witness to prove his primary pleaded defence. For this reason, adverse inference under section 114(g) of the Evidence Act 1950 ought to be invoked against the Claimant. On the other hand, the Claimant has argued at para (d) at p 56 of the Claimant's written submissions that he does not bear the burden of calling Dato' Ranbir. The Claimant's position is that he has adduced evidence under oath and the Respondent has to rebut the evidence. Therefore, the Claimant's submission is that it is the Respondent that has to call Dato' Ranbir to rebut the Claimant's evidence.
[79] At para 2.14 (a) of its written submissions, the Respondent has submitted that the Claimant executed the Master Agreement i.e. the Agreement dated 4.9.2006 "without obtaining the approval of Dato' Ranbir Singh for the said purchase/procurement given the value of the direct award of TM Football Channel Portal to FCSB. Dato' Ranbir Singh only became aware of the direct award to FCSB after the Claimant executed the Agreement dated 4.9.2006".
[80] Further at para 8.3 at p 56 of its written submission, the Respondent has stated as follows:
"The Claimant's primary pleaded defence in respect of Charge No.4 [COB-1, page 31] is that he had followed instructions and the said actions were with full knowledge and consent of his superior, Dato' Ranbir Singh Nanra [paragraph 3 of the Statement of Case dated 18.11.2011]. This is also apparent from the Claimant's Show Cause Reply dated 24.8.2009 [COB-3, page 15] where he confirmed that when the final costs was negotiated, it was brought to the attention of Dato' Ranbir Singh Nanra and added on as an addendum to the contract".
[81] The Respondent must bear in mind that the burden is upon the Respondent to prove that the dismissal of the Claimant was with just cause and excuse. Therefore, the Court is of the view that the Respondent must prove that Dato' Ranbir did not approve of the award of the Agreement dated 4.9.2006 to FCSB as submitted by the Respondent above and that the Claimant has acted against Dato' Ranbir's clear instructions in doing so or that there was no subsequent condonation by Dato' Ranbir before the Claimant can be found to be guilty of the misconduct as charged.
[82] In trying to establish this fact, the Respondent has relied on the investigation and testimony of COW7 who in turn relied on the unsigned statement given to him during the investigation as adduced at pp 228-231 COB-2 and some other statements made to COW7 which formed part of his findings at para 6.3, 6.4 and 6.5. These findings show that whilst Dato' Ranbir had given a good bashing to the Claimant for taking his own initiative to execute the Agreement dated 4.9.2006 and the Addendum, Dato' Ranbir admitted that the said portal was a requirement at that time, and Dato' Ranbir agreed to go ahead with the portal and had approved an allocation of RM500,000.00 for the portal. If Dato' Ranbir had been called by the Respondent as a witness, it goes without saying that he will not deny these admissions which he had made to COW7 and the whole case scenario will change to one where there is condonation of the Claimant's actions at the very least and not one where there is misconduct by the Claimant. In view of the fact that the Respondent had failed to call Dato' Ranbir as a witness, the adverse inference will be drawn against the Respondent and not the Claimant. In the Court's view, it is very unfair for the Claimant to be charged with misconduct in 2009 when the action he took in 2006 had been subsequently approved by his superior Dato' Ranbir in 2006 or 2007.
[83] At p 233 COB2, Mohd Azmi bin Mohd Shah's answer to COW7 during his investigation on who approved the 4.9.2006 Agreement is that during the 'Sports Marketing Meeting & Budget Review (part 1) dated 10 Nov 2006 @ 0930 hrs where in this meeting the WWW.TMfootballchannel.com was discussed and Dato Ranbir has agreed to a budget allocation of RM500,000.00. This minute was prepared by Shelly Mohammed of TSA who had already resigned. Present at the meeting were Dato Ranbir and En Zulkifli on behalf of Sports Marketing. The others were reps from TSA and Sportworks. I would presume that the Agreement was approved by Dato' Ranbir. The minutes was only sighted in 2008. (Witness produced the minutes of meeting for reference." From this and from Dato Ranbir's own admission, it is very clear that if he had not approved of the 4.9.2006 Agreement or the Addendum, he would not have approved the budget for the football channel. At p 241 COB2, Raja Azura Shamin bt Raja Mohd Zamani was asked by COW7 the question, namely 'There was a budget allocation of RM500,000.00 for year 2007 for this tmfootballchannel portal, how was the budget applied and who applied for it". Her answer is that 'As far as I know, the budget was applied in 2006 by Shamini by filling in the budget application template and there is no working or proposal papers to support it. After filling in the template, it was handed over to En Zulkifli and he dealt with the rest of it. All I know it was approved in the 2007 budget '. The Court is of the view that if a working or proposal paper is required, why then was the budget approved by the marketing or finance or whichever division that is in charge of approving the budget instead of returning the application to the Claimant asking him or his division to comply with the requirement before approval is given or the budget allocated. The Respondent cannot approve the budget and then turn around a few years later and claim that no proposal or working paper was prepared to support the budget. It is clear that with the budget approval and allocation, the employees will assume that the tmfootballchannel.com portal have been approved by the management of the Respondent. This is also the position taken by Nor Izham Ismail at p 245 of his answer to COW7 during the investigation.
[84] In Nadiah Zee Abdullah & Another v TT Electrical Electronics Corporation (M) Sdn Bhd and Akira Sales & Services (M) Sdn Bhd [2012] 2 LNS 0976, the issue of whether the claimants or the company should call a particular witness arose in the course of the proceedings. The claimants had been dismissed by the company for opening an account without the authority of the board of directors and kept from the company's knowledge payments deposited into the account. The claimants' stand is that they had informed Mr Theu, the new executive director of the opening of the account and all accounting records were properly kept and entered into the accounting system. The Claimants also testified that Mr Theu had refused to accept their explanations and had not acknowledged nor returned their letter of explanation. Neither the company nor the claimants called Mr Theu as a witness as he had left the employment of the company. On the issue of which party should be calling Mr Theu as a witness, the learned Industrial Court Chairman held as follows:
"[48] Both parties submitted that the opposing party should have called Mr Theu as a witness, failing which an adverse inference should be drawn under section 114(g) of the Evidence Act 1950. He would definitely have assisted the Company's case in many ways as he was the 'caretaker' of the Company since his appointment as the Executive Director. He was also the one handling the investigations of the Claimants' alleged misdeeds. He had signed the Claimants' Letters of Termination and was the best person to relate why the Claimants were dismissed by the Company. Reasons were not proffered for his absence in court and an adverse inference should be drawn against the Company for not calling him as its witness, not the Claimants".
[85] The High Court had quashed the decision of the learned Industrial Court Chairman in the above case. The main ground advanced by the High Court for its decision is that the Industrial Court had wrongly drawn an adverse presumption against the company for not calling Mr Theu, as its witness. On appeal by the claimant, the Court of Appeal has on 7.8.2014 affirmed the decision of the Industrial Court and reinstated the Award of the Industrial Court. Bearing in mind the fact that the Respondent is the party that must prove the charges on a balance of probability, the Court is of the view that the Respondent bears the burden of calling Dato' Ranbir as a witness to prove its submission that the Claimant has acted without obtaining the approval of Dato' Ranbir Singh for the said purchase/procurement of TM Football Channel Portal to FCSB or that there had been no subsequent approval given to the Claimant to proceed with the portal or that the value of the Agreement signed by the Claimant exceeded the amount the Claimant was allowed to sign at the material time. As the Respondent had failed to call Dato' Ranbir as a witness, the adverse inference will be drawn against the Respondent.
Whether there was condonation by the Respondent
[86] At p 57 COB2, the findings of the investigation carried out by COW7 are reported. These answers are repeated in COWS7, which are the answers given by COW7 as his evidence in his examination in chief. The position taken by Dato Ranbir is that he had been aware that the Claimant had been dealing directly with FCSB regarding the portal even at the initial stages. COW7 has made findings that Dato Ranbir did not give any approval to the Claimant to sign the Agreement dated 4.9.2006 on behalf of the Respondent but that subsequently Dato' Ranbir had agreed to go ahead with the portal and had approved an allocation of RM500K at the Sports Marketing Meeting & Budget Review held on 10.11.2006. The other finding made by COW7 is that Dato' Ranbir had no knowledge of the Addendum that was signed by the Claimant on 16.12.2006 but when he was shown a copy of the Addendum, Dato' Ranbir admitted that he would have approved and accepted the Addendum had the Claimant referred it to him. As stated earlier, the Court therefore finds that there is condonation of the Claimant's acts by the Respondent at the very least. If Dato' Ranbir had not agreed to any of these actions by the Claimant, he would have not have hesitated to lodge complaints against the Claimant at that time. Instead he said he was aware of the negotiations and approved a budget for it. Without the benefit of Dato Ranbir's presence as a witness, the Court can only rely on the statements made by COW7 that Dato' Ranbir did not give any approval to the Claimant to sign the Agreement dated 4.9.2006 and has no knowledge of the Addendum even though Dato' Ranbir also acknowledged that the portal was needed at that time. However, these statements become of little or no relevance at all in view of the approval of the budget and the acceptance of the Addendum by Dato' Ranbir. This acceptance points to the fact that there is condonation in 2006 and 2007 given by Dato' Ranbir on behalf of the Respondent for the Claimant's actions at the very least. Dato' Ranbir also approved payments to FCSB and the Agreement dated 4.9.2006 read together with the Addendum had been allowed to run its full course.
[87] At p 14 and p 25 of its written submissions, the Claimant has submitted that there is condonation and that there has been unreasonable delay in the Respondent taking action against him thereby extinguishing the right of the Respondent to punish him. The Claimant has submitted a few cases where the delay in punishing the employee extinguished the right of the employer to subsequently punish the employee. In Bank Bumiputra (M) Bhd v George Thomas [1987] ILR 242, there was a delay of about 6 months before the Bank acted to charge the claimant for his alleged failure to service the staff salary of 2 major customers of the Bank. The claimant denied the allegations and contended that his dismissal was without just cause and excuse and in breach of the rules of natural justice. The court questioned the delay by the Bank in preferring the charge against the claimant and held that the Bank should have acted within a reasonable time to charge the claimant and that if it is insufficiently explained as in this case whereby the time taken by the Bank extended beyond the time within which the employer might reasonably be expected to make up his mind, it shows an election to retain the employee. At para 28-30, the court found that the charge has not been made out against the claimant.
[88] On the issue of condonation, the court held at para 31 p 246 as follows:
"31. Once an employer has condoned any misconduct which would have justified dismissal or fine, he cannot after such condonation go back upon his election to condone and claim the right to dismiss the employee or impose a fine or any other punishment in respect of the offence which has been condoned. When an employer finds himself entitled to dismiss his employee for misconduct he should exercise his right within a reasonable time. What is reasonable time must vary according to circumstances. If it is insufficiently explained as in this case and extends beyond the time within which the employer might reasonably be expected to make up his mind, it shows an election to retain the employee."
[89] In ECS Computers v Azizan Bin Kadir [1993] 1 ILR 396, there was a delay of 4 to 5 months by the company in taking action to dismiss the claimant. This delay means that the company has retained the claimant's services, and such an act is in itself inconsistent with an intention to dismiss the claimant. The court held that the company's inordinate delay in taking action to dismiss the claimant amounts to condonation. At p. 398, the court was of the view that the determination of the issue of condonation will decide whether the dismissal of the claimant was with or without just cause or excuse. At p 399, the court held that there were cases where a delay in one day in taking action against the employee amounted to condonation.
[90] The court in ECS Computers relied on the definition of "condonation" in the case of United Traction Co. Sdn. Bhd. Butterworth v Transport Workers Union [1986] ILR 1233 wherein the Court held as follows:
"Condonation is generally described as a permission granted to an employee retroactively to cover a prior misconduct of breach of duty. And the uniform rule is that an employer who continues to keep an employee in employment with full knowledge that the latter has committed a breach of duty condones the breach and such waiver or retroactive permission prevents the employer from later punishing the employee for it. Once a master has condoned any misconduct which would have justified dismissal or fine, he cannot after such condonation go back upon his election to condone and claim the right to dismiss the servant or impose a fine or any other punishment in respect of the offence which he has condoned".
[91] The learned Industrial Court Chairman in ECS Computers further referred to Law of Dismissals by Chakraveti 7th Edition, where the learned author referred to the case of Madura Devesthanam v Sundram Annawi (pg. 488) which states that:
"No doubt when an offence has been condoned or dealt with and the offender is retained in service, it is not open to the employer to subsequently dismiss him for the same offences, but if the servant offends again it is perfectly justifiable for the employer to consider the prior offences in determining in what manner he should be dealt with for the subsequent offences".
[92] In Sunmugam Subramaniam v JG Containers (M) Sdn Bhd and Anor [2000] 6 CLJ 521, there was a delay of 7 days from the date of the alleged misconduct to the date when charges were preferred against the claimant. At p 541, the learned High Court judge held that the Industrial Court erred in law in failing to apply the doctrine of condonation and held as follows:
"If the applicant had committed a misconduct which was so serious as to amount to a repudiation of the contract of service, why was there a delay of seven days. ... A delay in taking action was a factor that the Industrial Court should have considered in deciding, first, whether there was a misconduct, and second, whether, if there was a misconduct, it was serious enough to warrant dismissal. The court totally omitted this point. It therefore failed to take into account a relevant fact. The delay would have meant that the doctrine of condonation would apply. This doctrine had been applied in the case of Azman bin Abdullah v Ketua Polis Negara [1977] 1 CLJ 257. The Industrial Court has consistently applied this doctrine in its decisions, but in this instant case the chairman failed to apply the same. No consideration was even given to the delay. Thus, the Industrial Court had committed an error of law".
[93] In the instant case, the delay from the time the 4.9.2006 Agreement and Addendum were signed until the time the show cause letter dated 14.8.2008 was issued to the Claimant by the Respondent is well over 23 months. The explanation given by the Respondent for the delay cannot be accepted by the Court. The Court is of the view that with the acceptance and approval given by Dato' Ranbir to the portal, the Respondent cannot after such acceptance and approval or condonation go back upon Dato' Ranbir's election to approve and accept the 4.9.2006 Agreement and Addendum and claim the right to dismiss the Claimant in respect of the alleged misconduct which Dato' Ranbir has condoned. Therefore based on this ground alone in line with the authorities cited above, the Court could have held that the dismissal of the Claimant is without just cause and excuse.
Charge 5
[94] For the sake of completeness, the Court will also deal with Charge 5 in this Award. The DI panel has found the Claimant not guilty of Charge 5 and the Court is of the same view. Thus it is surprising that the Respondent has continued to lead evidence regarding the 'loss' suffered by the Respondent in respect of the invoicing and overpayment in regards to the portal to FCSB in the evidence given by COW4. In answer 15 COWS4, the evidence given is that the costs to be borne by the Respondent was RM430,000.00 per year. COW4 then inquired into how much had been paid and discovered that the total payment made for the said Portal between January 2007 and December 2007 was in fact more than the contract value of RM430,000.00 as stated in the Addendum. Hence, in her testimony, COW4 concluded that the payment was unjustifiable.
[95] From the evidence available, payments were made by the Respondent via local orders. According to COW4, in her answer 17, p10 COWS4, 'the applications for local order were prepared and checked by the Claimant's subordinates namely, the Assistant Manager, Sports Marketing, Puan Azura Sharmin bt Raja Mohd Zamani and Manager, Sports Marketing, Encik Mohd Azmi Mohd Shah, who signed off as "Penyokong" and were finally approved by Dato' Ranbir who was then the Senior Vice President, Group Marketing".
[96] At para 6.10, p 58 COB2, the findings made by COW7 regarding how the payments were made to FCSB is basically the same as that stated by COW4. The Court has summarised it as follows:
1. Local Orders prepared by Raja Azura, Assistant Manager of Sports Marketing
2. En Mohd Azmi Mohd Shah, Manager Sports Marketing to be checked and signed off as "Pemohon"
3. Claimant to be checked and signed of as "Penyokong"
4. Dato' Ranbir for approval SVP Group Marketing as "Pelulus".
[97] At para 7.5 p 60 COB2, COW7 concluded as follows:
"that En Zulkifli (the Claimant) has acted negligently when approving the Application for Local Order(Appendix 6b, 7b, 8b & 9b) when he should be aware of the actual costing per quarter ie RM107,500 because he was the one who confirmed and accepted the Addendum (Appendix 3) which clearly states the costing of RM430,000.00 per year for the said portal".
[98] In paragraphs 6.11 and 6.12, of his Findings at p 58 COB2, COW7 has found that it was TSA that had claimed the quarterly payments by RM17,500.00 per quarter. Instead of claiming RM107,500.00 per quarter, TSA had claimed RM125,000.00 per quarter. 'En Mohd Rafee Md Aris, the TSA Business Development Director when confronted explained that he was aware of the RM430,000 fees charged by FCSB as evidenced by FCSB Invoice. En Mohd Rafee claimed that TSA marked up the fees by charging TM RM500,000.00 per year because of the extra work done to supervise and monitor the work on the portal prepared by FCSB. According to him,TSA had employed a dedicated staff to attend to the said portal and attend to all the requirements of Sports Marketing related to the portal. At para 6.8 of his Findings on page 58, COB2, COW7 had stated as follows:
"On the relationship between TSA and FCSB, Dato' Ranbir had explained that when the Agreement was signed with FCSB, ie on 4.9.2006, TSA was yet to be appointed by TM as one of its BTL agencies. TSA was only appointed on 28.9.2006 by Group Procurement and upon its appointment, Dato' Ranbir said he instructed that all football related activities prior to TSA's appointment be now parked under TSA and this includes the Tmfootballchannel.com portal."
[99] After reviewing the evidence, the Court finds that the approval for payment is as stated by the 2 witnesses above and is a 4 step process. Thus it is not right that the entire blame for the over billing and over payment is laid on the Claimant. Raja Azura is the Assistant Manager in charge of the processing and preparation of the local orders as stated above and she is not a mere clerk and Mohd Azmi is a Manager and so the 2 of them should bear some responsibility in checking the accuracy of the invoive before putting up the local order for payment to the vendor instead of laying the entire responsibility on the Claimant. Thus having found out that there is a 4 step process, it is not entirely fair for COW7 to conclude that only the Claimant was negligent. In any event, the DI panel has found the Claimant not liable to Charge 5. The DI panel at p 325 COB2 also found that the Claimant signed as a "Penyokong" only and not as the "Pelulus". The DI panel agreed that there was no loss suffered by the Respondent as the overpaid sums were recovered from FCSB through the initiative of the Claimant. The Court will agree with the DI panel that there was no loss incurred by the Respondent and Charge 5 is not proven.
[100] The evidence above also shows that the Audit conducted by COW7 had found that TSA had overclaimed as Dato' Ranbir had put all football related activities prior to TSA's appointment under TSA. Therefore, TSA had marked up its quarterly invoice to the Respondent to cover its cost of its services in supervising the portal. This again shows that the overpayment is not entirely due to the Claimant's negligence as found by the DI panel. Therefore, the Court will uphold the finding of the DI panel on Charge 5. The Court also notes that the DI panel had recommended that the Claimant be not dismissed and that a lesser punishment be meted out to the Claimant.
[101] COW4 stated in Answer 15 COWS4 that the Respondent was left with a portal that is not fully functioning as it ought to and had impacted the Respondent's reputation. The Court notes that COW4 has made a general allegation without specifying any details or giving any evidence to back up the allegation as to the manner in which the Respondent's reputation had been impacted.
[102] In her Answer 16, COW4 continued as follows:
"When TM sponsors an investment like football, it is to firstly stake ownership over the football space, then to derive additional revenue streams through various on-ground opportunities and exclusive content. Through the said Portal, new online content was to be generated and subsequently sold either through a one-off payment or a long-term subscription service.
The loss of database of the said Portal's members leading to loss of potential revenue from such members, affected the Company's efforts to monetise from its investment in football through the said Portal, which should have been Malaysia's football portal and the Claimant was responsible for this".
[103] From the answer above, it is clear that COW4 is trying to pin whatever loss on the Claimant. However, she did not state that the Claimant is solely responsible for generating the new online content. In the Court's view, there must be a team that is responsible for generating the new online content. At p 243 COB2, Raja Azura Shamin had during the investigation told COW7 that 'The monitoring of the development of the said portal is managed by En Nor Izham Ismail'. The Court has perused the deliverables in the Addendum at p 46 COB1 and find that the deliverables do not include generating new online content from the portal. Since the Claimant had been removed from his position, it will be quite impossible for him to further develop the database assuming that it had been his duty to do so in the first place and to generate new online content. From 1.7.2009 the Claimant was told to report to COW5 without a portfolio. Even his staff refused to obey his requests for information as shown by the emails as there is confusion as to what he is responsible for and if he still is their head. In any event, there is no charge against the Claimant for poor performance so the evidence is not relevant to the Charges preferred against him.
[104] The Court finds that it is not necessary to deal with the issues on victimisation and performance appraisal as the issues set out above are more than sufficient grounds to hold that the Claimant's dismissal is without just cause and excuse, except to state that no monetary loss has been proven to have been caused by the Claimant to the Respondent as charged in Charge 5. This has also been the finding of the DI panel.
Remedy
[105] As the Court has found that the Claimant's termination is without just cause or excuse the Court must order an appropriate remedy. Needless to say, the requirements of equity and good conscience must be intrinsic in any Award of the Court as laid down by the Industrial Relations Act 1967 (IRA). In coming to its decision, the Court has weighed the pros and cons of the remedies sought by the Claimant and taken into consideration the factors stated in the Second Schedule of the IRA and the Respondent's submissions on the same. First and foremost, the Court is of the view that the alleged misconduct does not warrant the termination of the Claimant. The punishment is too harsh and excessive. Even in the Respondent's own company policy, such misconduct is not listed as serious misconduct. InNorizan bin Bakar v Panzana Enterprise Sdn Bhd [2013] 6MLJ 605 at 623, the Federal Court held as follows:
"[36] 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 (sic) its powers under s 30(5) of the IRA based on the principle of equity, good conscience and substantial merit of the case."
[106] In Goodyear Malaysia Berhad v National Union of Employees in Companies Manufacturing Rubber Products [1986] 1 ILR 522, the learned Industrial Court Chairman held at 526, 527 as follows:
" 21 . It must be noted that not all misconduct deserves dismissal which has been described as the capital punishment in industrial relations. Important circumstances which mitigate the offence of the workman should be taken into account by the employer before he can be said to have made a fair and reasonable decision to dismiss. For example, a workman's past record of good service or the management's own actions or omissions which contributed to the misconduct are mitigating factors which any reasonable Company would take account of before dismissing.
23. Length and quality of service, good untainted record, and past service awards and recognition must also be taken as extenuating circumstances when an employer decides the appropriate punishment in misconduct.
24. ... We feel that ordinary common sense, if unimpeded by extraneous considerations, would have been enough to guide the Company to impose a lesser punishment on each of the Claimants."
...
[107] The Court is also reminded by a passage in The Law of Industrial Disputes Volume II by O.P. Malhotra, Fifth Edition Universal Law Publishing Co Pvt Ltd where at p 1028, the learned author has stated as follows:
"The right of the employer to inflict punishment of discharge or dismissal is not unfettered. The punishment must be commensurate with the gravity of the act of misconduct proved against the delinquent workman"....
[108] This passage reflects what has been held by the Federal Court in the Panzana case cited above. Further the learned author has cited passages from the case of R.M. Parmar v Gujarat Electricity Board [1982] Lab. I.C. 1031 (1034-35) (Guj.), (D.B.), per Thakkar, CJ. The Gujarat High Court has laid down 9 guidelines to be followed when the employer is inflicting punishment particularly dismissal. Some of the guidelines relevant to the instant case are as follows:
"3. It is not expedient in the interest of the administration to visit every employee against whom a fault is established with the penalty of dismissal and to get rid of him. It would be counter-productive to do so for it would be futile to expect to recruit employees who are so perfect that they would never commit any fault.
4. In order not to attract the charge of arbitrariness it has to be ensured that the penalty imposed is commensurate with the magnitude of the fault.
5. When different categories of penalties can be imposed in respect of the alleged fault, one of which is dismissal from service, the disciplinary authority perforce is required to consult himself for selecting the most appropriate penalty from out of the range of penalties available that can be imposed, having regard to the nature, content and gravity of the default. Unless the disciplinary authority reaches the conclusion that having regard to the nature, content and magnitude of the fault committed by the employee concerned, it would be absolutely unsafe to retain him in service, the maximum penalty of dismissal cannot be imposed. If a lesser penalty can be imposed without seriously jeopardising the interest of the employer the disciplinary authority cannot impose the maximum penalty of dismissal from service. He is bound to ask the inner voice and rational faculty why a lesser penalty cannot be imposed.
6. It cannot be overlooked that by and large it is because the maximum penalty is imposed and total ruination stares one in the eyes that the employee concerned is obliged to approach the Court and avail of the costly and time-consuming machinery to challenge in desperation the order passed by the disciplinary authority. If a lesser penalty was imposed, he might not have been obliged to take recourse to costly legal proceedings which result in loss of public time and also result in considerable hardship and misery to the employee concerned".
[109] The Claimant had been terminated at age 49 and is presently 52 years old. There are elements of alleged victimisation and clearly misunderstanding of the requirements of the Division during the tenure of the previous SVP. The Claimant's untainted long service of about 14 years and past service awards should have been taken into consideration. The subsequent changes made to the Respondent's signing policies to replace Schedule 20 remain unclear such that even COW7 is confused as to what the actual policy might have been. Dato' Ranbir also stated that he is unaware that there had been a contravention of TM's procurement procedures. The Claimant had been unable to find equivalent or better employment and has not been offered permanent employment due to his dismissal by the Respondent. The country is now facing challenging economic times and it will not be easy for the Claimant to get a similar or equivalent job in view of his age.
[110] Taking all the above factors and the legal principles into consideration, the Court hereby orders that
(a) the Claimant be reinstated to an equivalent position in the Respondent company with effect from 1.4.2016 without any loss of seniority together with adjustments for yearly increments, bonus, allowances, and other benefits;
(b) the Claimant be paid backwages @ RM13,901.00 x 24 = RM333,624.00. The amount of RM13,901.00 as shown at p175 COB1 includes a fixed allowance of RM400.00 for his car and forms part of the Claimant's last drawn pay;
(c) all monetary payments due to the Claimant under this Award are to be paid through his solicitors within one month from the date of this Award;
(d) the Claimant's solicitors shall ensure that the Claimant clears his income tax due to the Inland Revenue Board before transmitting the monies awarded by the Court to the Claimant; and
(e) no deduction is ordered from the amount of backwages due to the Claimant, bearing in mind the principles in the Federal Court case of Dr. James Alfred (Sabah) v Koperasi Serbaguna Sanya Bhd (Sabah) & Anor[2001] 3 CLJ 541, that there need not be a mathematical exercise in deduction for post dismissal income, in view of the fact that the amount earned by him after his termination as shown by the Respondent in para 13.5 of its written submission is very much below the amount that he would have earned with the Respondent and he had been dismissed since 11.6.2010 but due to the restriction in the Second Schedule of the IRA, the Court is unable to award him backwages for the full period from the date of his dismissal until the date of his reinstatement. Further, in view of the fact that the Claimant would have been unable to enjoy other privileges offered by the Respondent such as the costs of medical services as the time has passed, the Court finds that it will not be fair to make any further deductions to the backwages awarded.
HANDED DOWN ON THE 4 DAY OF MARCH 2016
...
PUAN TAN GHEE PHAIK
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR
Mr. Sunil Vijayan From The Chambers Of Sunil Vijayan,Counsel for the Claimant
Mr. P. Jeyasingam with Miss. P. Thavaselvi,From Messrs Zul Rafique & Partners,Counsel for the Respondent
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