INDUSTRIAL COURT OF MALAYSIA CASE NO. 14/4-1258/07 BETWEEN ENCIK ERIC GOH BENG TUAN AND ABB MALAYSIA SDN. BHD. AWARD NO : 1286 OF 2011 Before : PUAN TAY LEE LY - CHAIRMAN Venue : Industrial Court of Malaysia, Kuala Lumpur Date of Reference : 3.5.2007 Dates of Mention : 17.8.2007, 19.11.2007, 21.1.2008, 2.7.2008, 18.7.2008, 15.6.2009, 13.7.2009, 15.12.2009, 18.1.2010 and 26.10.2010. Dates of Hearing : 14.4.2010, 28.6.2010, 5.10.2010 and 3.12.2010 Representation : Mr. Varuthan Panneer Selva from Malaysian Trade Union Congress (“MTUC”), representative for the Claimant Mr. T. Siva of Messrs T. Siva & Co., learned counsel for the Company Reference : This is a reference under section 20(3) of the Industrial Relations Act 1967 on 18.1.2007 arising out of the dismissal of Encik Eric Goh Beng Tuan ("Claimant") by ABB Malaysia Sdn. Bhd. (“Company").
Transcript
INDUSTRIAL COURT OF MALAYSIA
CASE NO. 14/4-1258/07
BETWEEN
ENCIK ERIC GOH BENG TUAN
AND
ABB MALAYSIA SDN. BHD.
AWARD NO : 1286 OF 2011
Before : PUAN TAY LEE LY - CHAIRMAN
Venue : Industrial Court of Malaysia, Kuala Lumpur
Date of Reference : 3.5.2007
Dates of Mention : 17.8.2007, 19.11.2007, 21.1.2008, 2.7.2008, 18.7.2008, 15.6.2009, 13.7.2009, 15.12.2009, 18.1.2010 and 26.10.2010.
Dates of Hearing : 14.4.2010, 28.6.2010, 5.10.2010 and 3.12.2010
Representation : Mr. Varuthan Panneer Selva from Malaysian Trade Union Congress (“MTUC”), representative for the Claimant
Mr. T. Siva of Messrs T. Siva & Co., learned counsel for the Company
Reference : This is a reference under section 20(3) of the Industrial Relations Act 1967 on 18.1.2007 arising out of the dismissal of Encik Eric Goh Beng Tuan ("Claimant") by ABB Malaysia Sdn. Bhd. (“Company").
AWARD
A. Introduction
1. This is a Ministerial reference to the Industrial Court (“IC”) under section
20(3) of the Industrial Relations Act 1967 [Act 177] (“IRA”) in respect of the
dismissal of Encik Eric Goh Beng Tuan (“Claimant”) by ABB Malaysia Sdn. Bhd.
(“Company”) on 18.1.2007.
B. Brief Facts
2. The Claimant commenced employment with the Company from 1.11.2001 as
a Sales Engineer with a monthly salary of RM2,300.00 per month vide letter dated
24.10.2001 (p1-4 of CLB and COB). It was a term in the Claimant's appointment
that upon achievement of 100% of sales objectives, the Claimant would be entitled
to Incentive Bonus of RM5,600.00 per year with a maximum of RM11,200.00. The
Claimant's last drawn basic salary was RM2,470.00.
3. The Claimant was issued with 2 letters by the Company on 30.11.2006, i.e.,
letter entitled “Final Warning” for alleged poor performance (p. 5-7 of CLB and p.62-
64 of COB) and “Show Cause Letter” for allegedly coming late to office and absence
from office (p.8 -9 of CLB and p. 65-66 of COB). Subsequently, vide letter dated
18.1.2007 (p.20 of CLB and p. 81 of COB), the Claimant's appointment was
terminated by the Company. The letter of termination is as follows:
“ 18th January 2007
Eric Goh Beng Tuan-Present-
Dear Eric
TERMINATION OF SERVICE FOR POOR PERFORMANCE AND MISCONDUCT
On 1st December 2006 you were issued a final warning for poor
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performance. Prior to that, the Company carried out a three (3) month Performance Improvement Plan in order to achieve performance improvement. Despite these attempts you have shown no performance improvement.
Additionally you have committed misconduct. On 1st December 2006, you were issued a show cause letter for late coming and absence. You failed to reply the letter.
On 27 December 2006, a Domestic Inquiry was conducted. You failed to provide any satisfactory explanation for your misconduct at the domestic inquiry. The misconduct committed by you was expressly prohibited in the ABB Employee Handbook. You had been persistent in committing the misconduct causing them to be grave in nature.
In the circumstances, the company finds it necessary to terminate your service with immediate effect.
All moneys due to you will be released upon you obtaining clearance from the Human Resource Department.
Yours sincerely,For and on behalf of ABB Malaysia Sdn Bhd
- signed - - signed -Bengt Anderson Jennifer WongPresident & Country Manager Vice President – Human Resources
- signed -Denver NgSenior Manager – Robotics.”.
C. Parties' Pleaded Case
4. The Claimant in the Statement of Case (“SOC”) denied the allegations levelled
against him by the Company. The Claimant contended that the Company's action
was perverse and mala fide whereby the Company did not comply with rule of
natural justice. The Claimant further contended that his dismissal was without just
cause or excuse and prayed that he be reinstated to his former position without loss
of seniority.
5. The Company in its Statement in Reply (“SIR”) however contended that
Claimant's performance of his job functions was unsatisfactory since the year 2004.
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He was appraised and cautioned of the need to improve and provided several
opportunities to improve. Final warning for poor performance was issued on
30.11.2006. It was the culmination of the following:
(a) notification of poor performance on 1.8.2006 (p.33 – 34 COB);
(b) a performance improvement plan was implemented;
(c) the Claimant was counseled by Company's Vice President of the
Human Resource Department (“VP”) on 6.9.2006, and
(d) on 30.11.2006, the Claimant was issued a final warning on poor
performance.
6. The Company further averred that while the Company was addressing the
problem of Claimant's poor performance, the Claimant committed misconduct for
which the Company followed the disciplinary process below:
(a) on 16.8.2006, the VP issued an e-mail setting out the Claimant's
misconduct (p.37 – 38 COB);
(b) on 18.8.2006, the VP issued another e-mail on the Claimant's
misconduct (p.36 COB);
(c) on 30.11.2006, Show Cause letter for Claimant's misconduct was
issued. The Claimant did not reply to the Show Cause letter. He was
reminded to do so on 12.12.2006 (p.67 COB) and he submitted a reply
after that;
(d) the Claimant's reply was found to be unsatisfactory. A notice of inquiry
(“DI”) was issued setting out various charges vide letter dated
19.12.2006 (p.72-73 COB); and
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(e) DI was conducted on 27.12.2006 (p.74-80 COB) in accordance with the
rules of natural justice.
Wherefore, the Company prays that the Claimant's claim be dismissed.
D. Law
7. The function of the Industrial Court in a reference under s 20 IRA has been
clearly stated by the Federal Court in the case of Goon Kwee Phoy v J & P Coats
(M) Bhd. [1981] 1 LNS 30, where Raja Azlan Shah, CJ (Malaya) (as his Royal
Highness then was) held as follows:
“ Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the 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 inquire 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 inquiry 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].
8. It is trite law that the Company bears the legal burden to prove its
justification for the Claimant's termination (see Ireka Construction Berhad v
Chantiravathan A/L Subramaniam James [1995] 2 ILR 11). The Company
needs only to prove its justification for the termination on a balance of probabilities
[see Court of Appeal case of Telekom Malaysia Kawasan Utara v. Krishnan
(b) e-mail by HR executive to the Claimant (p.67 COB) dated 12.12.2006,
copied to COW3 and HR head reminding him that the show cause
letter dated 30.11.2006 was overdue;
(c) proof of sale order received by all sales personnel in the sales
department (p.4-7 COB2);
(d) Claimant's attendance record between 1.11.2006 to 28.11.2006 (p.8-
14 COB2); and
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(e) Company's Handbook (p. 15-21 COB2) which stated the policy and
instruction that all the Company's staff had to adhere to.
E.2 Claimant's case
16. The Claimant was the sole witness for his case. He gave evidence in chief
vide WS-CLW. In his evidence in chief, the Claimant testified inter alia as follows.
The Claimant in answer to question 4 of WS-CLW testified that since he joined the
Company, he reported to Mr. Calvin Kuan, Assistant VP until April 2002, and
thereafter he reported to COW3. The Claimant said his job functions included–
(a) selling ABB robots;
(b) carrying out product promotions via exhibitions, magazines and
advertisement;
(c) finding new customers other than repeating customers;
(d) identify new markets;
(e) presentations on robots;
(f) quotations;
(g) follow ups;
(h) close orders; and
(i) assist business partners who wished to integrate robots into their
machinery, etc.
17. As regards his alleged poor performance and final warning letter (p.62-64
COB), the Claimant testified that no show cause letter was issued to him prior to the
final warning letter. According to the Claimant, the final warning letter was the only
warning letter issued to him. The Claimant further explained that he was given up
to end of December 2006 to meet his sales target and the Company issued a letter
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entitled “Notice of Enquiry” dated 19.12.2006. He was surprised that the Company
judged him before the target date. The Claimant also said that although he had
showed improvement in his main role as a Sales Engineer, the Company kept
focusing on his “In/Out” records instead of his performance, which the Claimant felt
was unfair.
18. It was also the testimony of the Claimant that he was given a target of RM2
million in sales target in Consumer Product manufacturing industries and his total
sales was RM2.2 million by 2006 year end closing account. However due to COW3's
unclear direction, he was only briefed on his responsibilities and work scope. Since
the briefings were conducted in June 2006, he had less than 6 months to achieve 12
months' target. The Claimant said he had put in great effort and dedication to the
Company to achieve a sales of RM2 million by November 2006. Hence, the Claimant
hoped that his main function in ABB could be considered despite his alleged
indiscipline.
19. As regards the show cause letter for his lateness and absenteeism in the
month of November 2006 (p.65-66 COB), the Claimant testified that he had replied
via e-mail that he was busy following up with the customers as there were few
customers who planned to provide orders by December 2006. According to the
Claimant as a technical Sales Engineer, he had to study system cases with these
system-integrating customers. He also explained that there was no push-button
provided for visitors to exit the office area and as the person sitting nearest to the
door, he took the initiative to open the door for them not realizing that he was
recorded as exiting the office. The Claimant further said that he had explained to
the HR but they kept asking for whom the Claimant opened the door. The HR could
not accept the fact that he could not recall or know the visitors. The Claimant in
answer to question 14, further explained as follows:
“14. Q. With reference to the allegation that your attendance was bad in the month of November 2006, were you either not in the office for the 8 hours you were required to work or not present (absent) at all?
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A. It was reaching critical date-line for hitting the balancing 50% target, all my focus was on the Company's business. I may have over-looked this. I would say, I should be either with the end-user customers or with the system-integrator customers.”
[emphasis added].
F. Evaluation and Finding
20. The issues to be determined are -
(a) whether there was a dismissal of the Claimant; and
(b) if so, whether the dismissal was with just cause or excuse.
F1. Whether Claimant was dismissed by the Company
21. In this case, the answer to this issue was in the affirmative as it was not in
dispute that the Claimant's service was terminated with immediate effect vide
Company's letter dated 18.1.2007 (p.20 CLB).
F2. Whether Claimant's dismissal was with just cause or excuse
22. Based on the Claimant's termination letter, the Claimant's service was
terminated for 2 reasons, i.e., poor performance and misconduct of lateness and
absence.
(a) Whether reasons have been established by the Company
23. In this case, the Company conducted the DI on 27.12.2006. It is trite law
that whenever a DI was conducted, the Court should first consider whether or not
the DI was valid and the inquiry notes were accurate, see the decision of Raus Sharif
J (as his Lordship then was) in the High Court case of Bumiputra Commerce
Bank Bhd. v Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77
(“Bumiputra Commerce”). Subsequently, Raus Sharif J (as his Lordship then was) in
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another High Court case of Plaintree Wood Products Sdn. Bhd v Mahkamah
Perusahaan Malaysia & Muhammad Safarudin Che bin Abdullah [R1-25-42
Tahun 2005] (“Plaintree”), clarified as follows:
“ Di dalam kes Bumiputra Commerce, apa yang saya putuskan adalah mengenai kegagalan Mahkamah Perusahaan untuk mengambilkira nota keterangan domestic inquiry yang telah dikemukakan sebagai keterangan. Mahkamah Perusahaan di dalam kes itu tidak langsung merujuk kepada nota keterangan domestic inquiry dalam membuat penilaian fakta dan kegagalan itu telah saya putuskan sebagai suatu kesilapan undang-undang. Di dalam kes pemohon ini, keadaan adalah berbeza. Kes pemohon di Mahkamah Perusahaan adalah masih diperingkat pembicaraan. Pada saya, responden kedua adalah bebas untuk membentangkan kesnya ini dan untuk menyokong dakwaan bahawa beliau telah dibuang kerja tanpa alasan yang munasabah. Di pihak pemohon pula, jika terdapat keterangan mengenai domestic inquiry, terpulanglah kepada pemohon untuk mengemukakannya. Tugas Mahkamah Perusahaan ialah untuk membuat keputusan berpandukan keseluruhan keterangan yang dikemukakan melalui keterangan-keterangan saksi yang dikemukakan oleh kedua-dua pihak. Sudah tentu Mahkamah Perusahaan tidak semata-mata terikat kepada nota prosiding di dalam domestic inquiry.”
[emphasis added].
24. Bearing in mind the principle in Bumiputra Commerce and Plaintree's
cases, my observation as regards DI in the present case is as follows:
(a) the Claimant in paragraph 9 SOC stated that the Company did not
conduct the DI in the manner so required and thereby was prejudiced
against the Claimant in and/or his interest, but did not plead the
particular manner in which the Claimant was prejudiced. In this
regard, the Court is mindful of established principle of law that parties
are bound by their pleadings [see Ranjit Kaur S. Gopal Singh v
(b) it was submitted by Claimant's representative that the DI was flawed
as it was not conducted in respect of allegation of poor performance.
On this aspect, it is clear that a defective DI or failure to hold a DI is
not fatal as it can be cured by way hearing before the IC (see
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Dreamland Corporation (M) Sdn. Bhd. V Choong Chin Sooi &
Industrial Court of Malaysia [1988] 1 CLJ (Rep) 39 and Wong
Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Anor
Appeal [1995] 3 CLJ 344);
(c) in this case, even if the Court finds that the DI had been validly held
and the notes of the DI proceedings were accurate, the Court should
still proceed to hear evidence of all the witnesses for both parties in
determining whether the Claimant's dismissal was with just cause or
excuse;
(d) the Claimant was given DI's notice on 19.12.2006 (see p.72 and 73
COB) which was 8 days before DI, with particulars of the charges. The
Claimant was also informed that he would be given the opportunity to
conduct his defence by calling witnesses, tendering documents and
cross-examining Company's witnesses;
(e) the proceedings were recorded by the secretary named Sri Vidya (p.
76-80 COB). The Claimant was given the opportunity to defend
himself; and
(f) under cross-examination, the Claimant admitted -
(i) that he was given DI notice on 19.12.2006 and a show cause
letter on 30.11.2006;
(ii) that he did not deny by memo or e-mail to Charge 1;
(iii) that he did not deny to Charge 2, which states “on 8.11.2006,
you left the office at 9.39 a.m for customer visit but failed to
return work after the customer visit”;
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(iv) that he did not deny to Charge 3 which states “on 10.11.2006,
you left the office at 9.34 a.m for customer visit but failed to
return work after the customer visit”; and
(v) the statement made by him at page 77 COB as follows:
“I actually spoken to Jennifer Wong and the main issue here is my attendance and punctuality … which as a sales guy sometimes … I don't scan in and out of office … sometimes forget to scan … visiting customer … meeting for breakfast, follow-up and have lunch or dinner together … so … time is manageable … and I don't know the importance of DI. As an engineer, I didn't know that the show cause letter is very serious … I took it very easily ...”.
25. Having perused minutes of the DI proceeding, Claimant's reply at DI and the
manner in which the whole DI was conducted as well as the submission of both
parties, it is my considered view that rules of natural justice had been complied with.
The DI panel had acted professionally and the Claimant had been given full
opportunity to be heard. In light of the above, the Court finds that the DI was
validly conducted and DI notes were accurate.
26. Having said that, this Court is also mindful of the decision of the Court of
Appeal case of Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan &
Other Appeals [1997] 1 CLJ 665 at page 671, wherein the court held, inter alia,
that -
“ The fact that an employer has conducted a domestic inquiry against his workman is an entirely irrelevant consideration to the issue whether the latter had been dismissed without just cause or excuse. The findings of a domestic inquiry are not binding upon the Industrial Court which rehears the matter afresh. However the Industrial Court may take into account the fact that a domestic inquiry has been held when determining whether the particular workman was dismissed.”
[emphasis added].
27. Based the above said authorities, the Court would take into account the fact
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that a DI was validly held, the fact that DI notes were accurate and all evidence
adduced at this trial as a whole in determining whether or not the Claimant had
been dismissed with just cause or excuse.
(i) Allegation of poor performance
28. As regards poor performance, the IC in Project Sdn. Bhd. v Tan Lee Seng
[1987] 1 ILR 165, stated as follows:
“ Dismissal for unsatisfactory work or incompetency should almost invariably have been preceded by warnings.
In the event of poor performance being the reason for the dismissal one should always endeavour to show that the work complained of was performed subsequent to the warnings.”.
29. In Amsteel Mills Sdn. Bhd. V Koh Cheng Siew [1997] 1 ILR 216, the IC
held that to justify a workman's dismissal on the ground of poor or unsatisfactory
performance, the employer has to establish -
(a) the workman was warned about his poor performance;
(b) the workman was accorded sufficient opportunity to improve; and
(c) notwithstanding the above, the workman failed to improve sufficiently
in his performance.
(see also Sri Andaman Sdn. Bhd. v Rahmah Bidin [2001] 1 ILR 260 and
Citibank Berhad v Cheng Kam Choy [2007] 1 ILR 332).
30. Reverting to the present case, based on oral and documentary evidence
tendered in Court, the Court finds that on a balance of probabilities the Company
has established that the Claimant has been warned of his poor performance. The
Claimant was also accorded sufficient opportunity to improve. However, as regards
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the issue whether the Claimant had failed to improve his performance, the Court
found it difficult to hold that the Claimant had not achieved his target for year 2006
in light of the following:
(a) the last paragraph of Company's letter entitled “Sub:Final Warning” to
the Claimant dated 30.11.2006 (p. 62-64 COB and p. 5-7 CLB), it was
stated as follows:
“ You are hereby given up to 28 December 2006 to demonstrate your capacity to improve performance with reference to the targets for generating RM2 million orders and for obtaining 5 new customer accounts . ”
[The Company's final warning letter showed that the Claimant was
given up to 28.12.2006 to achieve the target of RM2 million orders and
obtain 5 new customers.]; and
(b) the testimony of COW3 during cross-examination where he agreed
with the Claimant's representative that the sales performance of the
Claimant for the year 2006 was above RM2 million. The portion of
COW3's evidence is as follows:
“Q41 : What was the sales target set for the Claimant for the year 2006?
A : RM2 million.
Q42 : What was the sales achieved? Refer to p.62, 63 and 64 of COB. Refer to 3rd para. p.62 – Sales Target. Tell Court where figures derived from?
A : We have submitted another bundle to prove the sales target – COB2. This target were captured at p.4 and p.5 the underline – there are 6 underline which mentioned Claimant's name together with customer's name and project name and order booking as recorded.
Q43 : From here, it is my instruction that the last entry on p.4, this particular sales amounting to RM1.3 million was brought in by the Claimant – agree? As such the total sales for that year brought in by Claimant was RM 2.2 million?
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A : I agree.
Q44 : Put to you – that the sales performance of the Claimant for year 2006 was above the target set at RM 2 million.
A : I agree.
Q45 : Put to you – this letter with reference to sales figure (reference to p.62 COB – under para “Sales Target”) is not accurate?
A : I disagree.
Q46 : Why you disagree?
A : The letter dated 30.11.2006 final way as mention in Sales Target order received to date showed at RM1,042,250. Means as of 30.11.2006 the remaining orders actually came in during December.”.
Q47 : In reference to p.4 COB2 why is this particular sales – last line p.4 put under your name?
A : During December, the Claimant was under Domestic Inquiry, therefore the responsibility of this customer has to be taken care of by myself as the head of sales.
Q48 : Claimant was dismissed effective 18.1.2007. Did you attempt to correct this anomaly?
COW 3 - requests for counsel to repeat question.
Q : You as his superior – did attempt to correct or put up to management that this sales is by Claimant?
A : During the month of December, the Claimant was under Domestic Inquiry. therefore it is important as the Head of Sales for Robotic Division, I have to be responsible to follow up these enquiries and as well as assumed the responsibilities to negotiate and to close the sales until receiving of purchase orders from the customer.
Q49 : So you did not bring up to management that sales was done by Claimant?
A : I have said in my earlier answer the reasons, therefore I did not bring it up.”; and
(c) the submission of Company's learned counsel concerning “Claimant's
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sales performance based on p. 4 COB2 had met and exceeded the
target.”, is as follows:
“ COW3 answered this allegation when he explained that by the time this payment accrued to the Company the account was no longer under the Claimant as he was already facing disciplinary proceedings. It is unclear from the evidence if that revenue was attributable solely to the Claimant, even if it was, the Claimant's performance had been poor for far too long ... .”
[emphasis added].
[The Court is of the view that the benefit of doubt ought to be given
to the Claimant.]
31. Based on the foregoing, the Court finds that the Company has failed to prove
on a balance of probabilities that the Claimant has not achieved the target as stated
in the Company's letter dated 30.11.2006.
(ii) Allegation of misconduct of coming late coming and absence from office
32. It was stated in the Claimant's letter of termination that-
“ Additionally you have committed misconduct. On 1st December 2006, you were issued a show cause letter for late coming and absence. You failed to reply the letter.
On 27 December 2006, a Domestic Inquiry was conducted. You failed to provide any satisfactory explanation for your misconduct at the domestic inquiry. The misconduct committed by you was expressly prohibited in the ABB Employee Handbook. You had been persistent in committing the misconduct causing them to be grave in nature.”
33. The show cause letter (p. 8-9 CLB and p. 65-66 COB) stated as follows:
“ In fact record shows that in November 2006, your attendance has deteriorated further. We have checked your absenteeism record against the Robotics Sales Administration (Visit Schedules) database and there is no record of customer visits on the following days:
Date Time In Time Out
14 November 2006 11.08 am 2.13 pm
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15 November 2006 8.06 am 12.25 pm
16 November 2006 8.45 am 1.41 pm
17 November 2006 11.08 am 5.33 pm
22 November 2006 8.19 am 12.18 pm
23 November 2006 2.36 pm 4.31 pm
24 November 2006 2.56 pm 5.37 pm
In addition, on 8th and 10th November 2006, you left the office at 9.39 am and 9.34 am respectively for customer visit but failed to turn up to work after the visit.
Your conduct is considered by management as acts of misconduct. Kindly refer to the Company Employee handbook, Chapter 6, Topics 6.2 Misconduct, 6.2.1 Absences, 6.4 Attendance
You are hereby required to submit your written explanation to the above-mentioned allegations by 7 December 2006 before 12.00 noon. If you fail to do so, the company will proceed with further investigation and domestic inquiry, if necessary”.
34. It was undisputed that the Claimant did not reply by 7.12.2006 (12.00 noon).
The HR officer (En. Aziz) vide email dated 12.12.2006 at 5.31 pm had informed the
Claimant as follows:
“ Reference made to Show Cause letter dated 30.11.2006 and the meeting held on 1.12.2006.
The reply to the show cause is now overdue.”.
35. The Claimant replied vide e-mail dated 13.12.2006 at 9.08 am to En. Aziz as
follows:
“Thanks for your mail but as you know that I was on leave and has no access to LN till yesterday and I have some issue to follow up. So the due date provided was actually impossible to reply in time.
Anyway I can't recall why my RFID database has recorded in such that I was not around as stated in the letter. All that I can remember is that my place is the nearest to the entrance and most of the time if not all I will be the one to opening the door for people without the RFID, to go out.
I seriously ask for your attention that the RFID should only be used as a
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reference and not an official record for attendance purposes, which in anyway not stated in anywhere in the HR policies.”.
36. En. Aziz replied to Claimant vide e-mail dated 13.12.2006 at 9.09 am as
follows:
“Please put your concern in the reply to the show cause.”.
37. The Claimant vide e-mail dated 13.12.2006 at 9.14 am to En. Aziz as follows:
“My apology. I can't understand what you meant below. Kindly advice the procedure.”.
38. En. Aziz replied to Claimant vide e-mail dated 13.12.2006 at 9.16 am as
follows:
“ You are required to reply the show cause letter given. If you wish to state anything please put it in the reply.”.
39. It was undisputed that the Claimant did not reply to show cause letter.
Hence, a DI notice was issued to the Claimant. The DI notice dated 19.12.2006 (p.
11-12 CLB and p. 72-73 COB) stated as follows:
“ NOTICE OF INQUIRY
We refer to the show cause letter dated 30th November 2006 and note that you have failed to submit any reply to it. The Company therefore has decided to hold a Domestic Inquiry to give you an opportunity to explain yourself against the following charges:
The Charges(s):
1. That you were absent from work without leave during working hours on the following dates, when your attendance record was as follows:
Date Time In Time Out
14 November 2006 11.08 am 2.13 pm
15 November 2006 8.06 am 12.25 pm
16 November 2006 8.45 am 1.41 pm
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17 November 2006 11.08 am 5.33 pm
22 November 2006 8.19 am 12.18 pm
23 November 2006 2.36 pm 4.31 pm
24 November 2006 2.56 pm 5.37 pm
2. On 8th November 2006, you left the office at 9.39 am respectively for customer visit but failed to return to work after the customer visit.
3. On 10th November 2006, you left the office at 9:34 am respectively for customer visit but failed to return to work after the customer visit.
The allegations against you are in breach of your express and/or implied conditions of service, with reference to the HR Handbook, Chapter 6: Code Conduct; Topic 6.2.1 Absence. 6.4 Attendance.”.
40. The Claimant's letter of appointment (p.2 of COB and p. p.2 of CLB ) stated
the working hours as follows:
“ WORKING HOURS
Your normal working hours shall be from 8.00 a.m to 5.30 p.m., Monday through Friday. It is the Company practice that all employees irrespective of rank, clock-in as they enter and clock-out as they leave the office. Lunch break is from 12.30 p.m. to 1.30 p.m..”.
41. It was undisputed that Claimant's coming late and leaving the office early
were recorded in the Cardholder Events Report shown at p. 13-19 CLB and p. 8-14
COB2. The Claimant was also informed vide e-mail dated 16.8.2006 (p. 37 COB) by
VP regarding punctuality as follows:
“ .... Punctuality basically relates to conduct and all employees are expected to adhere to the company's working hours. Failure to do comply tantamount to misconduct and the company can take appropriate disciplinary action. Every employee is expected to abide by this unless he has the approval of his manager. In this case, your manager has clearly not given you any approval to report for duty late. Hence, you are expected to be at your desk at 8 am during workdays.
Punctuality can affect productivity and hence performance which is why it is included in the plan.”.
42. Claimant's evidence during evidence in chief in Q and A14 as regards his bad
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attendance in November 2006 has admitted that “I may have overlooked this.”.
Under cross-examination, the Claimant gave the following evidence:
(a) the Claimant acknowledged that he received En. Aziz's e-mail but he
did not reply to the show cause letter. The relevant portion of
Claimant's evidence is as follows:
“Q46 : Refer p.69 COB, Aziz replied to you on 13.12.2006 at 9.09 am after you wrote the e-mail at p.68 COB. Aziz wrote back to you. Did you reply to show cause?
A : No. I did not.
Q47 : There is another e-mail from Aziz dated 13.12.2006 at 9.16 a.m. Did you receive the e-mail?
A : Yes, I did.”;
(b) the Claimant admitted that he did not deny the charges proferred
against him. His evidence is as follows:
“Q49A : Did you any where in memo or e-mail deny the charge?
A : No, I did not deny.
Q50 : See charge no. 2. On 8.11.2006 you left the office. Did you deny that?
A : No.
Q51 : 3rd charge “On 10th November 2006, you left the office at 9.39 am respectively for customer visit but failed to return to work after the customer visit.”. Did you deny?
A : No.”;
(c) the Claimant admitted that the Company had highlighted to him the
seriousness of lack of punctuality prior to the show cause; and
(d) the Claimant admitted the statement made by him during the DI at p.
22
77 COB namely, “I actually spoke to Jennifer Wong [VP] and the main
issue here is my attendance and punctuality …which as a sales guy
sometimes … I don't scan in and out of office …sometimes forget to
scan … visiting customer … meeting for breakfast, follow-up and have
lunch or dinner together so … time is manageable .. and I don't know
the importance of DI. As an engineer, I didn't know that the show
cause letter is very serious … I took it very easily...”.
43. During re-examination, the Claimant clarified that the DI panel did ask him to
submit his reply to the show cause letter but he did not do so.
44. In this case, the Claimant had failed to submit his reply to DI panel and failed
to substantiate his evidence during the hearing before the Court. In the
circumstances, based on the evidence adduced, the Court finds that the Company
has proven on a balance of probabilities the charges relating to Claimant's
misconduct.
(b) Whether proven misconduct warranted a dismissal
45. Having established the Claimant's misconduct, the next question the Court
has to consider is whether the proven misconduct warrants the Claimant's dismissal.
As regards lateness, Chapter 6.2 of the Company's Handbook stated as follows:
“ 6.2.1 Absence
Habitual late coming shall be considered a major misconduct warranting dismissal. Leaving the work place without prior permission or authorization is also a misconduct.” .
46. The Court noted that during re-examination of Claimant which was almost the
close of the Claimant's case, the Claimant had raised the issue that there were
several revisions to the Company's Handbook and the revisions could have been
made without his knowledge. In this regard, the Court finds that this is clearly an
afterthought as it was never put or raised during the cross-examination of
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Company's witnesses.
47. In Leo Burnett Advertising Sdn. Bhd. v Teh Bee Bee [2005] 1 ILR 141,
the IC states as follows at page 144:
“ This Court is satisfied that the claimant has been a habitual late comer. Lateness is absence without leave for the period between the time the employee is required to arrive and the time he actually does arrive, and as a species of unauthorised absence, it too, is misconduct. It is no excuse that though she was late she had always accomplished her work on time. It is the court's view that the company has the right to demand the claimant to be present at the starting time in the morning. It is irrelevant that the claimant was late to work only for a few minutes. It is still misconduct, especially when she had been warned to be punctual. The misconduct aggravates when lateness is persistent.”.
48. In addition to the above, B.R. Ghaiye in the book “Misconduct in
Employment”, 2nd Edition at page 144, states that an employee can be dismissed
for habitually coming late to office. As regards leaving work early, the learned
author at page 145 further states as follows:
“ Leaving the work earlier without permission is treated somewhat more seriously than the act of late coming.”.
49. In our present case, it is sufficiently clear that the Claimant was late in coming
to work and had also left work early without permission. In these circumstances,
the Court is satisfied that Claimant's misconduct is a serious one which warrants his
dismissal.
50. It was also the submission of the Claimant's representative that the Claimant's
dismissal was without just cause or excuse as it was riddled with mala fide and
contrary to principles of natural justice and unfair labour practice. As may be
observed, the Claimant in the SOC had also pleaded the same but failed to plead any
particulars of mala fide or unfair labour practice. As such, this Court will disregard
such an allegation (see the High Court case of Kamala Loshanee a/p
Ambalavanar v Jaffnese Co-operative Society [1998] 1 LNS 339).
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G. Conclusion
51. As an epilogue, based on totality of evidence adduced by both parties as well
as submissions made and also having regard to equity and good conscience as well
as substantial merits of the case without regard to technicalities and legal form, this
Court finds that the Company has proven on a balance of probabilities the
misconduct against the Claimant and the misconduct was serious to warrant the
Claimant's dismissal. Accordingly, this Court holds that the dismissal of the Claimant
by the Company was with just cause or excuse. Hence, the Claimant's claim is
