This dispute which has been referred to the Court by way of a. Ministerial ... He was then given a position as an Industrial Clerk in 1988. He then became a Store ...
INDUSTRIAL COURT MALAYSIA CASE NO. 17/4-1246/07 BETWEEN ENCIK PLANK HEE AND F & N COCA-COLA (MALAYSIA) SDN. BHD. AWARD NO: 812/2009
BEFORE
: Y.A. TUAN P IRUTHAYARAJ A/L D PAPPUSAMY Chairman (Sitting alone)
VENUE
: Mahkamah Perusahaan Malaysia, Cawangan Sabah
DATE OF REFERENCE: 03.05.2007 DATE OF HEARING: 09.04.2008; 10.04.2008; 30.07.2008; 04.08.2008; 05.08.2008; 25.09.2008; 26.09.2008 REPRESENTATION : Mr Tsen Shoon Hin @ Edward (Industrial Relations Officer) from Sabah Commercial Employees’ Union represented the Claimant. Ms Claudia Anne Lopez and Mr Jimmy Y.C. Chang of Messrs J. Marimuttu & Partners represented the Respondent.
1
REFERENCE
:
This is a reference by the Honourable Minister of Human Resources under Section 20(3) of the Industrial Relations Act 1967 for an award in respect of a dispute arising out of the dismissal of ENCIK PLANK HEE (hereinafter referred to as “the Claimant”) by F & N COCACOLA (MALAYSIA) SDN. BHD. (hereinafter referred to as “the Respondent”).
2
AWARD
This dispute which has been referred to the Court by way of a Ministerial Reference under Section 20 (3) of the Industrial Relations Act 1967 is over the alleged dismissal of the Claimant by the Respondent (the Company) on 06.01.2006
Background Facts
In his 22 years of service with the Company he had held various positions from 1983 till end of 2005. The Claimant commenced employment with the Company initially as an Industrial Worker in 1983. He was then given a position as an Industrial Clerk in 1988. He then became a Store Clerk from 1991 till 1993 and then a Charge Hand One from 1994 till 1998. He was a Store Clerk again from 1999 till end of 2005.
3
On 18.10.2005 the Company issued a letter of show cause (“the show cause letter”) to the Claimant asking him to give an explanation on the allegation that he had collaborated with one Mr Ng Yin Hee, an employee of Dahsoon Marketing (S) Sdn. Bhd. On 09.08.2005 at about 2 p.m. by falsely recording and declaring the quantity of 115 cases of empty bottles by submitting the Unloading Summary Form No. 20583.
The Claimant had by letter dated 25.10.2005 gave an explanation to the show cause letter. Being dissatisfied with the Claimant’s answer to the show cause letter, the Company issued a letter dated 02.12.2005 to the Claimant requesting him to attend a Domestic Inquiry (“D.I.”) on 09.12.2005 to answer the Charge (“the said Charge”) that had been preferred against him. Pursuant to the D.I. the Panel of the D.I. had on 14.12.2005 handed down a verdict of guilty against the Claimant with regard to the said Charge. Subsequently, the Claimant was dismissed from the employment of the Company by letter dated
4
30.12.2005 with effect from 06.01.2006. The Claimant's last drawn salary at the time of dismissal was RM2,098.00 per month.
Witnesses The following witnesses for the Company testified at the hearing of the case:(1)
Lim Sen Ngen (COW-1) the Store Supervisor who is the Claimant’s immediate superior;
(2)
Ng Yin Hee (COW-2) is the driver in the employment of Dahsoon Marketing (S) Sdn. Bhd;
(3)
Soo Kok Wah (COW-3) is the Logistics and Distribution Manager of the Company;
(4)
Leong Kar Hei (COW-4) is the Assistant Store Supervisor;
(5)
Valerian Hansen Petrus (COW-5) is the Company's Human Resource Manager;
(6)
Philip Chin Tsi Ken (COW-6) is the Company's Admin Manager; and
(7)
Ng Che Hing (COW-7) is a Sales Executive of the Company.
5
In respect of the witnesses for the Claimant only the Claimant testified.
Witness Statements The Witness Statements for the witnesses were marked as follows:COW-1
WSCOW-1
COW-2
WSCOW-2
COW-3
WSCOW-3
COW-4
WSCOW-4
COW-5
WSCOW-5
COW-6
WSCOW-6
COW-7
WSCOW-7
The Law The function of the Industrial Court has been propounded by Mohd. Azmi FCJ in the Federal Court case of Milan Auto Sdn. Bhd. v Wong She Yen [1995] 4 CLJ 449 (“Milan case”) which is as follows:-
6
“As pointed out by this Court recently in Wong Yuen Hock v Hong Leong Assurance [1995] 3 CLJ 344, the function of the Industrial Court in dismissal cases on a reference under s 20 is twofold: first, to determine whether the misconduct complained of by the employer has been established and secondly whether the proven misconduct constitutes just cause of excuse for the dismissal.”
In the case of Goon Kwee Phoy v. J & P Coats (M) Sdn.Bhd. [1981] 2 MLJ 129 (“Goon’s case”) the Federal Court enunciated the following principle:-
“….. Where representations are made and are referred to the Industrial Court for enquiry it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him the duty of the Industrial Court will be to enquire whether that excuse has or has not been made out. If it finds as a fact that it has not been proved then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High court cannot go into another reason not relied on by the employer or find one for it.” [Emphasis added]
7
It is trite law that the Company bears the burden to prove that the Claimant had committed the alleged misconduct and that the misconduct
warrants
the
Claimant’s
dismissal
[see
Ireka
Construction Berhad v. Chantiravathan a/l Subramaniam James [1995] 2 ILR 11 (Award No. 245 of 1995)].
The Company need only to prove misconduct justifying the dismissal or termination on the balance of probabilities [see Telekom Malaysia Kawasan Utara v Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 CLJ 314 (CA)].
I shall now deal with the said Charge
The said Charge
The said Charge contained in the Notice of Disciplinary Inquiry dated 28.09.2004 for which the Claimant was found guilty and dismissed on 30.12.2004 reads as follows:-
8
“That you had on 9th August at or about 2.00 p.m. alleged to have collaborated with Mr Ng Yin Hee, the lorry driver of Dahsoon Marketing (S) Sdn Bhd by falsely recording and declaring the quantity of 115 cases of empty bottles by submitting the Unloading Summary form no. 20583.”
At the outset I must state that I am bound by the authority of the Federal Court in Goon’s case to limit my inquiry into the said Charge (reason) for which the Claimant was found guilty and subsequently dismissed.
It is a fact that the Claimant was dismissed from employment based upon the Company’s letter of dismissal dated 30.12.2004. Before I proceed any further on the issue of the Claimant’s dismissal, the Court would need to examine as to whether the Company had complied with the rules of natural justice when it conducted the D.I.
9
The law is that in cases where D.I. had been conducted the Court should first consider whether or not the D.I. was valid and whether the D.I. notes are accurate. (Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ).
The Claimant had submitted that the D.I. was unfairly held inter-alia for the following reasons:(i)
the said Charge was conjectural without any cogent proofs or evidence;
(ii)
it was an unshaken evidence as adduced in Court that COW-2 could have attended the D.I. had the Company called him to do so;
(iii)
the 'Surat Akuan' or Statutory Declaration produced in the D.I. was totally baseless, bias and unfair.
The Company on the other hand had submitted that the D.I. was properly conducted inter-alia for the following reasons:-
10
(i)
The said Charge was properly framed against the Claimant giving date, time and nature of misconduct;
(ii)
The Claimant was given an opportunity to defend himself by giving evidence and also by calling his witness to testify;
(iii)
The Panel of the D.I. having considered all the evidence before them had come to a fair conclusion;
(iv)
COW-2 was not called to give evidence at the D.I. because the Company had no power to compel him to attend the D.I. as he had refused to attend being in a private Company;
(v)
Since COW-2 refused to attend the D.I. the next thing the Company did was to record a statement and had him sign a 'Surat Akuan'.
Having analysed the submissions of both parties on the issue of the alleged breach of natural justice with regard to the D.I. my view is as follows:-
11
1.
The Company's gross indifference and failure to call COW-2 (who is the key witness in this case) to testify at the D.I on a collaboration charge to enable the Claimant to cross-examine him is indeed a major defect of the D.I and certainly a gross breach of natural justice. The Company's explanation given through COW-5 that the Company had no power to compel him to attend the D.I as he had refused to attend the said D.I is not credible since COW-2 himself had testified that he was not at all aware of the D.I. It appears that if COW-2 was informed to attend the D.I. he may have attended the D.I. It is beyond my understanding how is it that the Company was ever able to get COW-2 to record the `Surat Akuan' for his responses to 24 question in CO-10 from pages 59 to 64 of COB as prepared by the Company and yet no evidence was ever adduced that he had been asked to come for the D.I. This is indeed amazing.
12
(2)
As regards the status of the 'Surat Akuan' firstly,the production of 'Surat Akuan' without the presence of COW-2 at the D.I. and also without the opportunity for the Claimant to cross examine COW-2 is a gross breach of natural justice and as such the 'Surat Akuan' would be invalid. Secondly, the 'Surat Akuan' contains numerous leading questions such as question numbers 10, 11, 13, 15, 16, 18, 19, 20, 21, 22 and 24 and as such it would be grossly unfair to admit it. Thirdly having read the alleged 24 questions in the 'Surat Akuan' as formulated by the Company and COW-2's response thereto it appears that the manner in which the questions were formulated would only require COW-2 to provide a 'Yes' or 'No' answer. Put differently, the Company had fed COW-2 with the necessary answers and it only required COW-2 to agree or disagree with them. This is in my view not a genuine 'Surat Akuan' but a tailored and biased one which is inadmissible in evidence.
13
In view of the above mentioned reasons the D.I. conducted by the Company has been grossly flawed by flagrant breach of natural justice. As such I hereby make a finding and accordingly rule that the said D.I is invalid. In fairness to all parties concerned the Court shall base its finding and conclusion on the evidence adduced at the trial in the Court instead. Since I have ruled that the D.I is invalid, accordingly the Court will also not rely on the notes of the D.I. even though they have been signed by the parties concerned. I shall therefore rely on the evidence adduced at the trial of this action. Let me now deal with the Claimant's dismissal which is in issue.
WHETHER THE CLAIMANT`S DISMISSAL WAS WITH JUST CAUSE OR EXCUSE
In determining this issue the question that needs to be examined carefully is whether there was in fact any alleged collaboration between the Claimant and COW-2 (the lorry driver) of Dahson Marketing (s) Sdn Bhd by (i) falsely recording and declaring the
14
quantity of 115 cases of empty bottles by (ii) submitting the Unloading Summary Form No 20583 (Exhibit C0-3).
Let me now examine whether the above elements mentioned in the said Charge had been made out by the Company on the balance of probabilities.
(i) Meaning of the word 'Collaboration'
The Concise Oxford Dictionary (10th Edition Edited) by Judy Pearline defines the word 'collaboration' as 'work jointly on an activity or project'. Therefore in the instant case the Company has to prove that the Claimant and COW-2 had jointly worked by falsely recording and declaring the quantity of 115 cases of empty bottles through the submission of the Unloading Summary Form No. 20583 (“the US Form”) (CO-3)
15
(ii) Does the Company have a written procedure on the receiving of empty bottles returned from outlets by the Distributor?
In dealing with the said Charge there is a need to examine the Company's procedure regarding the counting and recording of cases of empty bottles received from the outlets, unloading of the empty bottles as well as when completing the US Form (CO-3) since the said Charge makes clear reference to false recording and declaring of 115 quantity of empty bottles. This obviously requires the need to determine how that 'falsity and declaration' came about. Hence the need to examine the Company's procedure on this subject.
Based on the evidence the Company did not adduce any clear written documentary evidence of the existence of Company's procedure (if any) on receiving of empty bottles returned from the outlets including the filling of the US Form (CO-3) in the instant case. There is however a documentary written procedure at page 55 of
16
COB which is only in relation to the 'the issuance of unloading check sheet' procedure and not on the procedure of receiving empty bottles.
In the circumstances I have to ascertain from the evidence of the witnesses in their oral testimony of the existence (if any) of any such Company established procedure on receiving of empty bottles from the outlets and if so how reliable are such testimonies in terms of their veracity. COW-1 and COW-4 had stated in their respective witness statements on the Company's procedure of receiving empty bottles from its Distributors. The issue here is whether a checker must check and verify the total quantity of empty bottles at the Guardhouse.
COW-1 and COW-4 in attempting to explain the Company's procedure on receiving empty bottles from its Distributor stated in their respective witness statements that the Distributor's Driver after filling up a Declaration Form (“the DF”) (CO-2) at the Company's
17
gate is to call a checker which is either one of the Company's Store Clerks or COW-4 or COW-1 to verify the number of crates of empty bottles that are on the truck. The Checker must verify the number of crates on the truck while the truck is still near the Guardhouse. It is also their evidence that after counting the empty bottles on the truck, the Checker must write the total number of crates of empty bottles on the top left side of the US Form (CO-3).
The evidence of the key witness in this case namely Mr Ng Yin Yee COW-2 who had been expressly referred to in the said Charge to have allegedly collaborated with the Claimant testified to the contrary. COW-2 testified in cross examination that for the past 15 years ever since he started transporting back the empty bottles returned from the outlets ,there were no checkers being called to check and verify the total quantity at the Guardhouse. This is what he said in cross examination:
18
“Q10 : Honestly speaking for the past 15 years when you drove the truck to F&N had any checkers being called to check and verify the actual total quantity of empty bottles whenever your truck arrived at the Guardhouse? A:
No.
COW-2 in examination in chief testified that the Claimant was called by him to check and verify the total quantity of empty bottles which he had brought in at the Guardhouse. In my view the evidence of COW-2 that he called the Claimant to check and verify the empty bottles at the Guardhouse on 09.08.2005 is not credible since he had in cross examination testified that for the past 15 years no checker had ever been called to check and verify the actual quantity of empty bottles when his truck arrived at the Guardhouse. That being his evidence I am unable to see why on this particular occasion on 09.08.2005 there was a sudden need to have called the Claimant to the Guardhouse by COW-2 to carry out the checking and verifying. Furthermore it is also the evidence of COW-2 in cross examination that when he entered the Guardhouse he saw the Claimant standing 19
at the
loading bay
standing at
but he did not say that the Claimant was
the Guardhouse.
In fact the Claimant himself had
denied that he was called to check and verify the empty bottles at the Guardhouse. Further more the Claimant himself testified that he did check the exact total quantity of RGB at the loading bay and not at the Guardhouse. Taking the evidence as a whole I believe the evidence of the Claimant that he was not called to check and verify the empty bottles at the Guardhouse and not as what COW-2 had stated in his testimony. In short COW-2 is not a credible witness in this regard. I am unable to understand how is that the Company does have and did produce written documentary evidence on ISSUANCE OF UNLOADING CHECK SHEET found at Exhibit CO-1 (pages 54 to 55 of COB) but did not have a written procedure on the complete set of procedure as regards the Company alleged procedure of receiving of empty bottles from its Distributors as explained by COW-1 and COW-4 in their respective witness statements.
20
In cross-examination COW-1 admitted that he does not have any proof on the fact that the Claimant was called to check and verify the total quantity of empty bottles on the truck at the Guardhouse. He was relying merely on what COW-2 had told him about it. Furthermore, he did not have personal knowledge nor personally witnessed whether the Claimant was physically present at the Guardhouse on that particular day in question. As a matter of fact he also testified that he cannot remember whether he had conducted routine check every time COW-2 unloaded his empty bottles for the past years.
COW-4 had testified that he was on leave on 09.08.2005. The question therefore is how then did he know that the Claimant was called to do the checking and verification on the total quantity of empty bottles brought in by COW-2 at the Guardhouse on 09.08.2005. He merely relied on the Claimant's signature appearing on the US Form (CO-3) and not because he had witnessed the physical presence of the Claimant
21
as a checker on 09.08.2005 at the Guardhouse. The signing of the US Form (CO-3) does not ipso facto mean that the Claimant had signed it after checking and verifying the empty bottles brought in by COW-2 at the Guardhouse. The Claimant had testified that he had signed CO-3 at the 'Prepared By' column after checking the exact total quantity of RGB at the loading bay and not at the Guardhouse. Based on the evidence I am of the view that the evidence of COW-1 and COW-2 and COW-4 is not at all credible to substantiate (i) that it was the procedure of the Company that the checker was required to check the total quantity of empty bottles on the truck at the Guardhouse (ii) and the alleged fact that the Claimant was in fact called by COW-2 to have been called to check and verify the total quantity of empty bottles at the Guardhouse.
In this regard will CLW-2's log book shed any light on the unloading of empty bottles? CLW-2 was given a log book by COW-1, Mr Lim Sen Ngen the Store Supervisor to record the exact quantity of empty
22
bottles unloaded from the truck. This has become part of his job as assigned and instructed by COW-1. The document CL-3 at page 75 of CLB showed that the total quantity of empty bottles unloaded on 09.08.2005 was 115 crates and that COW-2's truck arrived at the Company's loading bay at 2.07 pm. It is also his evidence that besides COW-2's truck, he also received other trucks as well. The said log book has in fact ascertained the exact quantity of RGB unloaded on 09.08.2005 was 115 crates and that COW-2's truck arrived at the Company's unloading bay at 2.07 pm. In fact I believe the evidence of CLW-1 as he had been doing this job for many years under the former store supervisor , Mr Thomas Lo who had retired. The Company's contention that the log book is not considered part of the official record is without any merit. In my view since COW-1 is an important management staff under whose order and authority CLW1 had to record the existence of the total empty bottles obviously the said log book has to be part and parcel of the official record of the Company. After examining the evidence there was no written
23
procedure on the receiving of empty bottles from the outlets by the Company's Distributor and neither are the testimonies of COW-1 and COW-4 as given in their respective WSCOW-1 and WSCOW-4 reliable.
(iii) Was there false recording and declaration of 115 cases of empty bottles in the Unloading Summary Form No. 20583 (CO-3)through collaboration between COW-2 and the Claimant ?
The Company primarily relied on the evidence of COW-2 to substantiate this element. There are 2 matters to be considered namely, (i) the issue regarding the 115 crates of empty bottles and (ii) and the recording of the 115 crates of empty bottles in the US Form (CO-3). I shall deal with both these issues together as they are linked.
The Company's case in this regard is that COW-2 in actual fact brought and returned a total of 35 crates of empty bottles on 09.08.2005 and not 115 as the Claimant had written on the US Form (CO-3). In supporting this contention the Company relied on COW-
24
2's testimony in examination in chief where he essentially stated that :-
(i)
After having handed the DF (CO-2) to the guard at the F&N Guardhouse, COW-2 registered his name, took a pass and brought the vehicle inside;
(ii)
he then called the Claimant to count and verify the empty bottles that he had brought in his truck and the Claimant counted the empty bottles on the truck.
(iii)
he had written 115 crates of empty bottles in CO-2 whereas the actual no of crates of empty bottles that he had brought in into F&N on 09.08.2005 was 35 and that the scribbling of the figures 17, 7 and11 marked in circle in CO-2 totalling 35 crates were from 3 different customers;
25
(iv) the Claimant filled in the US Form (CO-3) and both the Claimant and COW-2 signed it;
(v)
the purpose of the US Form (CO-3) serves as a proof that COW2 had unloaded a total of 115 empty bottles (i.e. 6+107+2);
(vi)
the Claimant had testified that he counted and verified the figure of 115 and then recorded it in the US Form (CO-3). COW-2 on the other hand had earlier stated that the actual quantity of crates of empty bottles that he brought in was 35 is because the Claimant asked him to add additional 2 pellets of crates of empty bottles to make it 115 (i.e. 1 pellet 40 crates of empty bottles x 2 pellets) and after that COW-2 added the 80 together with the 35 crates and that is how the figure of 115 in the DF (CO-2) was stated.
26
(vii) after COW-2 had added the 2 pellets to the 35 crates of empty bottles then he recorded the figure of 115 in the DF (CO-2).
In my view COW-2's version of the event as regards the bringing in of 35 crates of empty bottles is not a cogent and credible testimony for the following reasons:-
(a)
In the first place the alleged figure of 35 crates of empty bottles was not part of the said Charge. Only the figure of 115 was mentioned in the said Charge. If the figure and description of 35 crates as a material particular was crucial to this case to show alleged false recording and declaration in the US Form (CO-3) in order to establish collaboration then in all fairness the alleged figure 35 crates of the alleged figure ought to have been included in the said Charge otherwise the said Charge is grossly defective. Since the figure of 35 crates was not
27
mentioned in the said Charge I am not bound to consider the alleged figure of 35 crates per se.
(b)
Notwithstanding my view for not taking into account the 35 crates as stated in item (a) above there was no evidence adduced that COW-2 had written these 2 additional pallets in the DF (CO-2).
(c)
Furthermore there were also blatant contradictions in the testimony of COW-2 with regard to DF (CO-2) at the Guardhouse. In the examination in chief COW-2 testified that he filled the DF (CO-2) with the hand written numbers marked in circle by himself when he arrived at the F&N Guardhouse and submitted it to the said Guardhouse. However, in cross examination he testified that he had stated that he did not fill the DF at the Guardhouse initially. This is what he testified in cross examination:
28
“Q12 :On 9th August 2005 when you have already declared 115 crates of empty bottles in the declaration form CO-2 which was deposited in the deposit box under key and locks at the guard house. How the Claimant could steal and ask you to add another 2 pallets of empty bottles in the declaration forms as testified by you in this Court yesterday?
A
(d)
: Apabila saya sampai di guardhouse saya nampak Plank Hee berdiri di loading bay dan saya faham memang boleh buat sahabat dengan saya. Semasa saya turun dari guardhouse ambil pass dan tidak isi declaration form di guard house, masuk ke peti simpanan oleh saya.” [Emphasis added]
The issue of the alleged 35 crates that the Claimant had stated that he had allegedly brought in and had it scribbled on his DF (CO-2) has never been corroborated in so far as its accuracy is concerned. It is simply COW-2's own uncorroborated version of having written the figures in circle in the DF (CO-2) and nothing more than that.
On the issue of signing the US Form (CO-3) there were also some disputes on it. The Claimant did admit that he signed the 'Prepared
29
By' column and he did check and verify the empty bottles not at the Guardhouse but at the loading bay. Counsel for the Company somehow very conveniently avoided asking the Claimant whether the checking and verification of empty bottles returned took place at the Guardhouse or at the loading bay. There was no doubt that the Claimant was the one who wrote the figure 115 on the top left hand side of the US Form (CO-3) as well as the figures 6, 107, and 2 in the US Form (CO-3) and he also confirmed that 115 crates was the right figure that he had counted. The signature at the 'Checked By' column at the Unloading Summary Form appearing at page 73 of CLB belonged to COW-4 as admitted by him in cross examination. COW-4 signed it when he returned from leave the next day after 09.08.2005. COW-4 stated that he signed the 'Checked By' column only to confirm the figure written on left hand side of 115 at page 53 of COB tallies with the total figure of (6+107+2).
30
In my view COW-4's evidence in this regard is without any merit. The Company does not need COW-1 or COW-4 just to added simple figures such as 6+107+2 = 115. The truth of the matter is this. The Claimant's job was to check and count the total quantity of empty bottles unloaded and he then prepares the US Form (CO-3) as he had done on 09.08.2005. In compliance with sub-clause 6.3 of the Company's “Issuance of Unloading check sheet” procedure found at page 55 of COB then it is for the Claimant's supervisors COW-1 and or COW-4 who would be responsible to recheck and to reconfirm the physical total quantity of empty bottles unloaded before signing the 'Checked By' column in the US Form (CO-3) on the said date. The fact of the matter is that they actually did not recheck to confirm whether there were any discrepancies on the exact total quantity of empty bottles. On the facts of this case since COW-4 was on leave on the said date it is only logical for COW1 to have physically counter checked whether the figures stated in the US Form (CO-3) tallied with the physical counting of the empty bottles. This he did not do. It
31
was COW-4 who signed the US Form (CO-3) after he returned from leave the next day which is 10.08.2005. How could COW-4 sign the 'Checked By' column when in the first place he never did any physical checking of the number of empty bottles to ensure that the figures stated therein by the Claimant tallied with his checking. It was totally wrong and absurd for the Company to have allowed COW-4 to sign the 'Checked By' column even though he did not conduct any physical check of the empty bottles and yet there was no evidence of any action been taken against COW-4 or COW-1 in this regard. A fair sense of justice must prevail in all circumstances. But this was not the case here.
Now I shall deal with other issues raised by the Company during the trial besides the main issue as per the said Charge. They are (i) the allegation that the Claimant benefited monetarily by collaborating with COW-2 ,(ii) the allegation that Dahsoon's invoices, the Company's Unloading Summary Form and Declaration were
32
doctored and (iii) the probative value of the CCTV photographs (“other issues').
In dealing with the other issues I must state that these material particulars were never made part of the said Charge. On this ground alone I am not bound to consider these matters. I shall nevertheless consider these matters for the sake of completeness and deal with them together.
COW-2 admitted in evidence that he did not tell or discuss with the Claimant about his alteration and falsification of Dahsoon Invoice Nos. 310044424 (CO4) and 310044443 (CO11). In this regard COW-2 responded as follows in his cross-examination: “Q 19 :
A
:
Knowing this was definitely against the Company policy, did you tell or discuss with the Claimant about this I nvoice No. 310044424 at CO-4 and falsification of this I nvoice No. 31004443 (CO-11)? Tiada
33
At this juncture, it is incredible to imagine how collaboration for pecuniary gain could have taken place between COW2 and the Claimant on 9th August 2005 when COW2 did not even tell or discuss with the Claimant on the alleged falsification of these invoices. Since COW2 was the only one who had knowledge on the falsification, it must be for his own personal gain, and had nothing to do with the collaboration with the Claimant. Evidentially, it is clear that COW-2 did not specify the alleged exact amount he gave to the Claimant on 9th August 2005 while leaving the Company's unloading bay. The Company also did not produce any corroborative evidence to substantiate that such an incident took place. Throughout the trial, he could only assume the amount he gave to the Claimant without any solid evidence. COW-2's allegation of alleged pecuniary gain lacks complete probative value.
Even COW6 Mr. Philip Chin, the Admin Manager in his investigation had failed to prove that the Claimant had received payment from
34
COW2 Ng Yin Hee when he responded in cross-examination as follows:-
“Q 8 :
A:
Q 9:
A: Q10:
A: Q11:
A:
I refer to your answer to question 16. Can you tell the court here how Ng Yin Hee (COW2) managed to collect RM 269.24 from the outlet Sinar Indah since it has ceased selling the Company product pack in RGB since January 2005? The collection of RM 269.24 is made from sale of other pack sizes from the cans. Have you confirmed with Ng Yin Hee (COW2) that he had pocketed RM 204.80 and shared this amount with the Claimant? No. Have you queried the Claimant whether he had received any payment from Mr. Ng Yin Hee (COW2) from this amount RM 204.80 during your investigation? No. I put it to you that the Claimant did not receive any money from this sum RM204.80 from Ng Yin Hee (COW2). Do you agree? I do not know. “
35
As far as the CCTV photographs are concerned the Company had admitted that the original footage of the alleged CCTV had been corrupted. COW-6 Mr Philip Chin in his evidence had stated that there was no CCTV camera at the Unloading bay at the material time on 09.08.2005. Under this grossly doubtful circumstances the alleged salvaged still shots of the CCTV cannot be relied on with certainty. The Company produced photographs 'G' and 'H' (COB p 81) thereby attempting to prove as to whether the Claimant or any checker were called to check and verify the total quantity of empty bottles brought in at the Guardhouse on 09.08.2005. In my view I have examined the said photographs and I was not able to see any any checker including the Claimant being present at all at the Guardhouse on the said date. Furthermore, the truck plate number and the driver were also not visible. The truck in the fuzzy photographs appeared to be carrying cartons of some goods and not crates of empty bottles. As a matter of fact even the industrial worker CLW-2 En Juning Bin Gunsayau could say that the contents did not look like the RGB (Returned Glass
36
Bottles). The blur image of these photographs G & H casts doubt whether this was really COW-2's truck at the material date and time. Based on the reasons mentioned it is completely unsafe to rely on these unclear photographs for the purpose for which they were produced by the Company.
The credibility issue pertaining to COW-2, COW-3 ans COW-5 in particular.
Besides the views expressed by this Court on other issues it is rather relevant and pertinent for me to express my views on the behaviour, credibility and demeanor of some of the Company witnesses. In this regard I shall express my views on the demeanor, credibility and responses of COW-3, COW-2 and COW-5 (“credibility issue”) in particular which are as follows:-
(i)
It was clearly evident that COW-3 the Logistic and Distribution Manager and COW-5 the Company's Human Resource Manager never interrogated the Claimant when they conducted 37
their investigation. Hence, the so called investigation is a biased one. In all probability COW-3 had a possible motive in trying to get rid of the Claimant since the Claimant had contented that he had knowledge of COW-3's constant abusing of his position in disposing of all Company's re-cycled of empty cans for COW-3's personal gain. This allegation by the Claimant of COW-3 was never challenged by the Company. COW-3's motive became more
prominent when he testified that he
sensed something was amiss when he saw the Claimant merely putting his hand around the shoulder of COW-2. It was COW-3 who reported this matter to COW-5. As to whether such a testimony has any substantive bearing on the said Charge was never challenged by the Company.
(ii)
COW-5 is not a credible witness because firstly he testified that COW-2 refused to attend the D.I. as the Company had no power to compel him to do so but the truth of the matter is that
38
COW-2 was not aware of the D.I. in the first place. Secondly, COW-5 even lied in Court when he stated that there was no illegal 4D activity operated in the Company when COW-2 himself admitted that he did operate such illegal activity in the premises. (iii) As I had stated earlier COW-2's evidence is not credible for the reasons stated earlier.
In my view the alleged evidence in so far as the other and credibility issues are concerned the Court is unable to derive any probative value from both due to their uncorroborated or shallow evidence even if the Court were to consider them for the sake of completeness .
CONCLUSION After having considered the evidence in its totality, based upon equity and good conscience as well as substantial merits of the case
39
the Court holds the view that Claimant's dismissal is without just cause or excuse.
REMEDY The Court has examined the industrial relations climate that is prevailing in the Company during the course of the trial and is of the view that it is not conducive for the Claimant to be reinstated. In the circumstances, the Claimant instead will be awarded compensation under 2 heads, namely, back wages and compensation in lieu of reinstatement.
Back wages I find that this is an appropriate case to apply the Industrial Court Practice Note 1 of 1987 and maximize back wages to 24 months. The payment of back wages may be subject to scaling down for definite reasons. The heads under which such scaling down may be effected
40
are contributory conduct of the part of the Claimant, gainful employment after dismissal and delay in the hearing of the trial.
Contributory Conduct In my view based upon the facts of this case I am unable to make any firm finding of contributory conduct of the part of the Claimant. Hence, there is no scaling down under this head.
Gainful Employment There is some evidence that the Claimant was gainfully employed at Eignretep (M) Sdn. Bhd. from May 2006 until March 2008 as a store worker at a salary of RM730.00 per month. In line with the principle of law as laid down by the Federal Court in Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd. (Sabah) & Anor [2001] 3 CLJ841, this Court will take into account the Claimant’s post dismissal employment and earnings in assessing the quantum of award of back
41
wages to the Claimant. In this case a sum of 20% will be deducted for post dismissal earnings.
Delay In my view neither party occasioned any delay with the hearing of this reference nor were there any unwarranted delays by the Court or the Ministry of Human Resources. Hence, there is no scaling down under this head. The Court therefore orders as follows:(i)
Back wages is limited to 24 months: RM 2,098.00 per month x 24 months Less 20% for gainful employment
= RM50, 352.00 RM10,070.40 = RM40,281.60
Add (ii)
Compensation in lieu of reinstatement of one month’s salary for each completed year of service (1983 till 6.01.2006) which is 22 years in total.
42
RM2,098.00 x 22 months =
Total
RM46,156.00 RM40,281.60 ============ RM86,437.60 ===========
This Court finds that the award in the sum of RM86,437.60 is fair and reasonable in the circumstances of this case. The Company is therefore ordered to pay the Claimant vide a cheque made in his name the sum of Ringgit Malaysia: (Eighty Six Thousand Four Hundred Thirty Seven and Cents Sixty Only) less statutory deductions within 30 days from the date of this Award hereunder. The said cheque shall be handed to the Claimant through the Counsel for the Claimant Mr Tsen Shoon Hin @ Edward from the Sabah Commercial Employees' Union. HANDED DOWN AND DATED THIS 7th DAY OF JULY 2009.
(Y.A. P IRUTHAYARAJ A/L D PAPPUSAMY) PENGERUSI MAHKAMAH PERUSAHAAN MALAYSIA CAWANGAN SABAH
43
