Professional Documents
Culture Documents
Venue
Dates of Hearing
Representation
AWARD
A.
Introduction
1.
This was a Ministerial reference dated 11.7.2005 to the Industrial Court (IC)
under s 20(3) of Industrial Relations Act 1967 (IRA) for an award in respect of the
dismissal of Encik Lee Jern Chwee @ Lee Bee (Claimant) by Muhibbah Engineering
(M) Bhd. ( Company) on 4.12.2002.
B.
Background
2.
This case was heard initially before the previous learned Chairman of this
Court. At the commencement of the hearing of this case, learned counsel for
Claimant had applied for the Company's name to be amended to Muhibbah
Engineering (M) Bhd. (MEB).
On 1.3.2010, both
parties gave their consent for the hearing of this case be continued by me. In the
circumstances, the hearing was continued and duly completed on 29.7.2010. In this
case, both parties have been given a copy of Court's certified notes of evidence
(NOE) recorded by the previous learned Chairman and me on 22.9.2010 for
purposes of preparing their written submission.
3.
It is to be noted that vide Award No. 4 of 2011 dated 3.1.2011, the Court has
(b)
C.
Brief Facts
4.
Quarry Manager (QM) with a monthly salary of RM6000.00 vide letter dated
14.4.2000 (p.1-5 CLB and p.1-5 COB1). He was also paid hardship allowance of
US$1000.00 when working in Cambodia (clause 20 p.4 CLB and p.4 COB1). The
Claimant was posted to Cambodia on 25.5.2000. The Claimant was confirmed in his
appointment with effect from 16.8.2000 vide letter dated 7.8.2000 (p.6 COB1).
5.
The Claimant's employment was terminated by the Company vide letter dated
4.12.2002 (p.20 CLB and p.25-26 COB1) (Letter of Termination). His last drawn
salary was RM6350.00. The Letter of Termination reads as follows:
Our Ref. : PN/M/JCL/TER/02(12)/K348
December, 04th 2002
Mr. Lee Jern Chwee @ Lee Bee
149, Jalan Selasih
Off Jalan Telok Gadong
41100 Klang
Selangor Darul Ehsan
Dear Sir,
RE : TERMINATION OF CONTRACT OF EMPLOYMENT
Reference is made to our meeting on 28/11/2002 and wish to confirm that
without prejudice your service will no longer be required by the Company
with immediate effect.
We enclose herewith cheque amounting to RM14,009.37 being payment
as follows:
(a) One (1) month notice less EPF and Income Tax
RM
RM
5,331.00
6,350.00
RM
2,328.37
Total
RM 14,009.37
We wish to take this opportunity to thank you for your performance and
contribution to the Company during your service with the Company. We
wish you the best in your undertakings.
Please acknowledge receipt.
Yours faithfully,
MUHIBBAH ENGINEERING (M) BHD
- signed Mohd Turee Hj Hasbullah
Senior Personnel & Admin Manager
I acknowledge the above payment as final and further agree that I shall
not make any further claims from the company and its staff henceforth.
- signed _________________________
LEE JERN CHWEE @ LEE BEE
Date : 13-12-12
Handed personally by :
- signed MOHD. TUREE HAJI HASBULLAH
Senior Personnel & Admin. Manager .
D.
6.
The Claimant asked the Director the reason for his dismissal and told the
Director that he wanted to see MD to seek clarification. The Director did not allow
him to see MD but when he pressed for a reason for his termination, the Director
4
told him that his performance was under par. The Director told him to see COW1 to
collect one month salary without any termination letter. The Claimant insisted for a
termination letter but was not given. The Claimant did not collect the one month
salary.
8.
By way of a letter dated 1.10.2002 (p. 8 CLB and p. 7 COB1), the Company
issued a suspension letter against the Claimant for mismanaging the Company's Kg.
Cham Quarry. The Claimant was requested to give an explanation in writing before
14.10.2002 and informed him that a Domestic Inquiry (DI) would be conducted on
15.10.2002. The suspension letter was delivered to Claimant's house in Malaysia.
By a letter dated 11.10.2002 (p. 9 CLB and p. 8 COB1), the Claimant replied to the
suspension letter. Vide a letter dated 16.10.2002 (p. 10 CLB), the Claimant gave
another reply to the suspension letter regarding the guide lines for the
mismanagement issue and enquired the date of DI from COW1. The Company did
not reply to Claimant's letter dated 16.10.2002. The Claimant wrote another letter
dated 21.10.2002 (p. 11 CLB) requesting the Company to revert to him as soon as
possible.
9.
Vide a letter dated 25.10.2002 (p. 12-14 CLB and p. 10-12 COB1) COW1
replied to Claimant forwarding him the charges. The Claimant was requested to
reply to the charges in writing by 29.10.2002 and informed that the DI would be
held on 31.10.2002.
COB1), the Claimant replied to the charges proferred against him. The Claimant
attended the DI on 31.10.2002. The DI was only attended by the Claimant and
COW1.
4.12.2002 (p. 20-21 CLB and p. 25-26 COB1), the Company terminated Claimant's
services without stating any reason.
10.
simpliciter and was against all norms of equity, good conscience and was void in
law.
Company amounted to dismissal without just cause or excuse and an unfair labour
practice, depriving him of his right to livelihood. Hence, the Claimant prayed that he
be reinstated with full back wages, increments, bonus and other benefits.
11.
The Company in its Statement of Reply (SIR) however contended inter alia
as follows:
(a)
the Company had issued a written memo dated 1.10.2002 (p. 7 COB1)
to Claimant informing him that a DI would be held on 15.10.2002
concerning his mismanagement of Company's quarry under his charge.
The Claimant was allowed to produce his witnesses if he chose to do
so. He was given a chance to give a written explanation to Company.
The Claimant acknowledged receipt of the memo on the same day;
(b)
vide a letter dated 11.10.2002, the Claimant requested for a guide line
of the accusation of mismanagement or performance under par as
mentioned ... in order for the Claimant to reply;
(c)
the Company replied vide letter dated 5.10.2002 enclosing the charges.
The Claimant was asked to answer the charges in writing by
29.10.2002;
(d)
the Claimant replied to the charges vide letter dated 27.10.2002 which
was received by the Company on 29.10.2002;
(e)
(f)
(g)
on 3.12.2002, the Claimant came to the Company and said his decision
was to terminate the employment contract with some form of
ex gratia payment.
12.
The Company further averred that in accordance with Claimant's wishes, the
Company terminated the Claimant's employment contract with immediate effect vide
letter dated 4.12.2002.
Claimant (being a month's notice less EPF and income tax, a month ex gratia salary
and 11 days' leave balance) was enclosed. The Claimant accepted the cheque on
13.12.2002 and acknowledged payment as final and further agreed that there would
not be any further claim against the Company.
estopped from making further claim against the Company after he had accepted the
agreed ex gratia payment.
13.
The Law
14.
The function of the IC in a reference under s 20 IRA has been clearly stated
by the Federal Court (FC) 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 [IC] 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 [IC] 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].
7
15.
In Milan Auto Sdn. Bhd. v Wong Sen Yen [1995] 4 CLJ 449 (Milan
[emphasis added].
16.
It is trite law that the Company bears the legal burden to prove the
Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (Krishnan
Kutty).
17.
In Krishnan Kutty (supra), Abdul Hamid JCA (as his Lordship then was)
stated as follows:
The [IC] should not be burdened with the technicalities regarding the
standard of proof, the rules of evidence and procedure that are
applied in a court of law. The [IC] 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
decides a case in accordance with equity and good conscience.
[emphasis added].
18.
JCA at p 324 made reference to the Indian Supreme Court (SC) case of
Management of Balipara Tea Estate v Its Workmen AIR 1960 SC 191, wherein
the SC held:
In making an award in an industrial dispute referred to it, the tribunal has
not to decide for itself whether the charge framed against the workman
concerned (in this case falsification of accounts and misappropriation in
[emphasis added].
19.
(Sanduran Nehru case), the CA affirmed the principles adopted by the High
Court (HC) which stated that it is clear that the IC is not a court of law where
technicalities of the law should be its prime consideration. On the same token, in
determining the misconduct of the employee, the IC should not have proceeded as if
it is exercising the function of criminal court . It is pertinent to note that the CA at
page 268 also stated that IC had adopted a wrong standard of proof and had taken
a wrong approach in stating that the respondent has not been able to discharge
Berhad (Award No. 738 of 2010), Y.A. Puan Yamuna Menon, learned Chairman of
IC at p. 5 of her Award referred to the case of Feredo Ltd. v Barnes (EAT) [1976]
ICR 439 as well as IC case of Utusan Melayu (M) Bhd. v National Union of
[emphasis added].
F.
The Charges
21.
2.
3.
4.
That you deliberately ignored the fault on the crusher plants namely
the 'cone' resulting in slowing down production, thus increase the
production cost including diesel consumption. But instead, you had
directed your subordinates to continue the production knowing that the
plant was not operating well. (Charge 4);
5.
That you had deliberately ignored the existence of 'outsiders' taking out
our stones/boulders 6 x 9 from the Kampong Cham Quarry. This
resulted in loss of revenue to the Company. (Charge 5);
6.
10
G.
7.
8.
9.
Evidence
Company's case
22.
The Company has called the following 7 witnesses to testify in Court, namely:
(a)
(b)
Mr. Lim Phin Chye (COW2), the Plant & Asset Manager of Muhibbah
Engineering (Cambodia) Co. Ltd. (MEC), a subsidiary of Company;
(c)
(d)
Mr. Cheah Soon Lye (COW4), the General Manager (GM) of MEC
and superior officer of Claimant;
(e)
Mr. Kaing Eng Chhay (COW5), a Cambodian, who was the Deputy
Director and General Manager of Sok Heng Co. Ltd. (a Cambodian
transport company);
(f)
(g)
11
23.
COW1
i.e., to resign or terminate his employment contract. COW1 said the Claimant saw
him on 3.12.2002. The Claimant told COW1 that he wished his employment contract
be terminated with some compensation. The Claimant requested for two (2) months
salary as ex gratia payment.
The Claimant
testified that in 2002, he was directed by MD to survey Kg Cham's quarry area and
check the stock balance of stones produced at the quarry. According to COW2, the
Company was concerned with the quantity of stones produced as the supply of
stones to Road Project 7A could not be matched by the production.
Hence, a
physical survey of quantity of stock pile area at the quarry on 2.10.2002 was carried
out by Mr. Suppaiyah, Mr. John Lye and him to determine the actual quantity as
shown in p. 127 COB2A which was prepared by him. Based on the survey, the total
aggregate at stock-pile area was 21,893.17m3. According to COW2, Mr. Suppaiyah
had left the Company and Mr. John Lye had passed away.
12
25.
In relation to Charge 4,
Crusher taken by him at the site of Kg. Cham's quarry (p. 36-38 COB1) on
1.10.2002.
showed that the cone crusher unit part was broken because it was worn out.
According to COW2 if these parts were broken, the cone crusher cannot work and
operate efficiently because the settings were out. Hence, the unit must be replaced
immediately in order for it to operate efficiently. COW2 also identified the purchase
requisition (PR) dated 16.11.2001 (p. 124 COB2A), which was requested by the
Claimant for Kg Cham's quarry. COW2 admitted that it was the responsibility of his
department (Plant & Asset Department) to supply the items requested. COW2 also
identified the acknowledgement for the items requested on 20.5.2002 (p. 125
COB2A) and the pictures of the new unit requested for and delivered (p. 38 COB1).
COW2 testified that when he went to Kg Cham quarry site on 1.10.2002 and took
the pictures of the damaged and new cone crusher part, he saw that the new cone
crusher part has yet to be installed.
According to COW2, the Claimant claimed that the item was not
delivered to his site. Hence, COW2 had personally went to the site to check. COW2
was very surprised and perplexed to find that the installation was not carried out
despite the item was long delivered to site.
pictures of Secondary Jaw Crusher and its main bearing and parts which were worn
out very badly and cannot run the plant at the site of Kg. Cham quarry. (p. 39 to 42
COB1) taken on 1.10.2002. COW2 explained that if the bearing and parts of the
Secondary Jaw Crusher were worn out badly, it would not run the plant and would
affect stones production at the quarry.
26.
did not agree with the amount of 56,439.21m 3 shown in Kampong Cham Quarry
Production, Sales and Balance (PSB) record as at 30.09.2002 (p 45 of COB 2A) as
it was not a true reflection of the quarry's stock balance.
there was a big variance between the amount surveyed by him with the amount
stated in PSB as at 30.9.2002.
bring
In relation to Charge 4, COW3 testified that when he first reported for work,
Mr John Lye and COW2 came to see him and told him they had to change the Cone
Crusher part (i.e., concrete and mantle) and Secondary Jaw crusher ( i.e., plate and
bearing). COW3 then followed to see them change the Cone Crusher part and
Secondary Jaw Crusher. It was also COW3's evidence that there was a need to
change the Cone Crusher Part and Secondary Jaw Crusher because they were
damaged and not properly maintained.
28.
the quarry was water-logged which was a problem he had to solve as a new QM.
COW3 said after he thought about it, he managed to solve the problem by pumping
out the water using existing water pumps. He also used additional pumps which he
requested from Plant & Asset Department. The additional pumps were delivered to
the quarry within 2 to 3 days. After the water had been pumped out, COW3 had to
drill holes into the ground and plant explosives inside the blast to extract stones.
The extracted stones from the area were then transported to Road 7A Project by
dump truck provided by a transport contractor, named Sok Heng Company. COW3
said he personally witnessed the lab personnel measured the bucket of the dumptrucks and the capacity of the dump-trucks was about 14 m 3 to 15 m3 each truck.
29.
assisted COW1 when COW1 came to Cambodia. COW4 gave COW1 the necessary
information on Claimant's performance as QM of Kg Cham and Road 7A Project
when COW1 was instructed to draft the charges.
14
Project in Cambodia was a project undertaken by MEC in year 2001 to 2002. It was
a project to build roads for Cambodian Government. For this project, the stones
were extracted from Kg. Cham quarry and delivered to project site for building the
roads. The Project Manager for Road 7A Project was Mr. Suppaiyah.
30.
management was not pleased with the project because the stone supply was slow
and insufficient to complete the roads but he thought the roads were overcompacted.
stones from Kg Cham quarry did not match the quantities delivered to the project
site. COW4 said he was surprised because the initial PSB reports of Kg Cham
seemed to be in order. However, when Mr. Suppaiyah insisted that the figures were
not correct, COW4 highlighted the problem to the Claimant. COW4 said he gave the
Claimant verbal instructions to find the root of the problem but the Claimant insisted
that there was nothing wrong with his production and delivery reports. As such, the
management had no choice but to do physical survey of the stock-pile area at Kg
Cham quarry and investigate the delivery of stones to project site.
31.
appointed COW2, Mr. John Lye, QM of Kg Speu (Mr. John) and Mr. Suppaiyah [who
was assisted by 2 project surveyors, Mr. Om Met (Mr. Om) and Pen Sek Thay (Mr.
Pen)] to conduct a physical survey of the quantity of stones at stock- pile at Kg
Cham Quarry.
They (COW2, Mr. John and Mr. Suppaiyah) surveyed the stock pile
COW4 in Q and A20 of WS-COW4 said that PSB report as at 30.9.2002 was
confirmed and identified the monthly PSB reports of the aggregate stock balance (p.
46, 48, 50, 52, 53, 54, 55 and 57 COB2A) from Kg Cham which were prepared and
signed by Ny Kimseik and were also signed by the Claimant as QM. COW4 in Q and
A21 of WS-COW4 admitted that PSB report as at 30.9.2002 was prepared and
signed by Ny Kimseik and the Claimant as QM was supposed to approve it but the
signature column was left blank. COW4 did not know why the Claimant did not sign
PSB report as at 30.9.2002 but COW4 knew the Claimant was on leave in Malaysia
from 23.9.2002 onwards. COW4 in Q and A28 of WS-COW4 said that even though
the place for Claimant's signature was left blank, he would still accept PSB report as
at 30.9.2002 to be accurate and truthful because the Company had records of the
Closing Stock and Opening Stock column from all the previous months reports.
COW4 explained that in August 2002, the Closing Stock column was 49,542.71m 3 .
The stock balance of 49,542.71m3 was brought forward to month of September
2002 in Opening Stock column as 49,542.71m 3. COW4 further explained that by
taking into account the stock balance of 49,542.71m 3 from the month of August
2002, it was quite possible and believable to have a balance of 56,439.21m 3 at the
end of September 2002.
Stock was 53,238.04 m3 and the amount of 53,238.04m3 was brought forward to
the next month (August 2002) as the Opening Stock.
33.
COW4 said that he was shocked because the variance was too big even if he
were to ignore the balance stock quantity as per PSB report as at 30.9.2002. COW4
said this was because the stock as PSB for month of August 2002 (which was
49,542.71 m3 ) was duly approved by the Claimant himself.
Suppaiyah's complaint had a basis. It was COW4's evidence that he did not doubt
the figure of 21,893.17 m 3 recorded by COW2 because the figure was physically
surveyed by 3 senior personnel with the assistance of 2 surveyors. Besides that,
when COW3 took charge of Kg Cham Quarry on 3.10.2002, he personally did
another physical survey of the aggregate stock balance on the same day before
starting work. The quantity surveyed was 23,131.38 m 3 and was recorded in the
B/F column in the PSB as at 29.10.02 (p. 44 COB2A).
16
34.
personally.
quarry.
According to COW4, Ny Kimseik had left the Company for a better job offer. COW4
also identified the report on investigation and revision of Kg. Cham quarry (p. 1-34
COB4) prepared by COW6 and Ny Kimseik's written statement and signature at p. 3
COB4.
35.
COW1 that the Claimant has ordered Ny Kimseik to amend the recording for delivery
of crusher run mixed from the actual to figure to 20m 3 per load in order to cover
the shortage quantity in stock.
investigation it was reported to him that Ny Kimseik had admitted to that shortage
and had agreed to sign on a written statement in English on 1.10.2002 (p. 3 COB4).
It was COW4's evidence that he had personally been to Kg. Cham quarry and had
seen the dump-trucks that were used to transport stones from Kg. Cham to project
site and the capacity was about 12 m3 to 17 m3 of stones for each load.
37.
that he visited Kg Cham quarry and had personally seen outsiders ( i.e., people who
were not workers of Kg. Cham quarry) went into the quarry. According to COW4, the
Claimant told him the outsiders were workers from the local military General's father
and they had been operating there even before the existence of Kg. Cham quarry.
When they carried the stones, they passed through the access in the quarry and it
looked as if they were taking stones from Kg. Cham quarry. COW4 said he was not
17
satisfied with Claimant's explanation. COW4 told the Claimant that he should build
an alternative access to segregate the outsiders from the quarry for security reasons
and avoid confusion and accusation of outsiders taking Company's stones.
According to COW4, the Claimant however did not do anything.
however was solved when COW3 took over as the new QM.
The problem
initiative to fence up the quarry area and built an alternative access. COW3 also
spoke to the General's father asking him to advise his workers not to use Company's
access as the quarry activities might be dangerous to their safety.
38.
In relation to Charge 6, COW4 testified that it came to his knowledge that the
Company's explosives and detonating chord were loaned to Sre Siam Quarry without
his approval. COW4 said when he found out about it, he warned the Claimant to be
more responsible when he rendered assistance to Sre Siam Quarry and he must
documented it properly to show the explosives and detonating chord were returned.
According to COW4, after his advice, the Claimant prepared a receipt dated
16.9.2002 (p. 20 COB1) but knew later from one Mr. Srun Samnang of Sre Siam
Quarry (Mr. Samnang) that the Claimant had earlier sold explosives to him on
15.7.2002 and 17.7.2002 (p.21-22 COB1).
he knew this when Mr. Samnang informed Mr Khieng Hann, one of MEC's directors
(not called as witness) and Mr Khieng Hann had informed him. COW4 identified a
letter dated 29.6.2007 written in Khrmer language (p. 35 COB4) by Mr. Samnang
and translated to English on 14.9.2007 (p. 36 COB4).
that Mr. Samnang had previously around 5.5.2002 purchased explosives and paid for
them in cash to the Claimant.
39.
proposed to the management to look for a new quarry as the Claimant alleged that
the Kg. Cham quarry could not produce enough stones for the road project because
the Kg. Cham was always water-logged and hence, not enough stones could be
extracted. COW4 in Q and A75 of WS-COW4 said the quarry was water-logged
because the water was not pumped out urgently and efficiently. COW4 in Q and
A80 of WS-COW4 also said that he had seen Kg. Cham quarry being water-logged
many times even before Claimant went back to Malaysia on 23.9.2002. A water18
logged quarry would result in poor productivity of stones and if the water was not
pumped out, it was obvious that the stones could be extracted. According to COW4,
after COW3 took over the Kg. Cham quarry as the new QM on 3.10.2002, he
managed to supply sufficient stones from Kg. Cham to Road 7A project until its
completion without having to acquire a new quarry as proposed by the Claimant.
40.
interpreter. COW5's evidence was in relation to Charge 3. COW5 testified that his
company, i.e., Sok Heng Co. Ltd. (Sok Heng) transported all kinds of rocks from Kg
Cham quarry to Road 7A and 7B project site since 2001 and 2002. The vehicles that
Sok Heng used to transport the rocks were dump trucks. According to COW5, he
personally supervised the transportation of the rocks from the quarry to project site
and the capacity of dump trucks used were mostly 14m 3 and the biggest was 17m 3.
COW5 identified the D.O used by the quarry (p. 140-163 COB2A).
COW5 said he
did not sign any of the DO's and were prepared by staff like Ny Kimseik, Lindet and
Keorithy. When asked with reference to the quantity 20m 3, 19m3 or 18m3 stated in
the DO's, COW5 said the dump trucks could not carry such quantities and he did
not know why the DO stated as such.
41.
COW5 testified that he gave a statement on 4.10.2002 (p. 30-33 COB4) which
reads
My name is Kaing Eng Chhay, sex male, age 32. I'm a Deputy Director of
Sok Heng Co.. I have received an order to transport the rock, sand, laterite
and compact the rock for Muhibbah Company for the Project of 7A and 7B.
In this transportation of the rock from the Portheat quarry to the National
Road 7A. Our Sok Heng Co. has appointed a representative and a driver to
transport the rock for the quarry of Mr. Lee. Every order of the rock
transported I did not focus on how many cubic meters. Only the driver
knows how many buckets that the dump truck can carry. And the numbers
of how many cubic meters is written from the quarry site. From the
beginning of the transportation from the quarry to the road we have also
discussed about the loss of the rock. The discussion was between the Sok
Heng Co. and Project 7A.
After the discussion we found out that the rock loss, then the Project 7A
called to Mr. Lee then after the problem was find out the Project 7A told me
that they are in the same Muhibbah Company.
19
For me I did not focus on how many cubic and I focussed is on the project
paid. I did not care about the number of the cubic I only care about my
payment. And only my dump truck can load from 12 to 17 cubic.
But at that time the delivery order was stated from 14 to 20 cubic. And the
20 cubic my dump truck cannot load. That's all. .
42.
COW6 gave evidence vide WS-COW6. COW6 testified that he had worked for
Claimant's poor technical knowledge had caused low production of stones and
comparatively high expenditure based on PSB and fuel-oil consumption of 3 quarries
from January-August 2002 (p. 52 COB3).
43.
COW6 said that he was asked by the Director to investigate and report to
him.
44.
COW6 in his evidence in chief also testified that he translated the statements
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
45.
(a)
the jaw plates were broken and COW7 asked the Claimant to see and
change the jaw plates but the Claimant did not allow him to do so;
(b)
once when the bearing of the second crusher could not run, COW7
asked the Claimant's permission to repair or change it but the Claimant
ignored and asked to further 'run' the crusher; and
(c)
the jaws of the cone crusher were broken and the spare jaws were
available but the Claimant did not allow COW7 to change.
46.
COW7 further identified the picture of Nakayama Cone crusher (p. 36 COB1),
picture of locking thread, body cone cave and cone cave (p. 37 COB1), picture of
mantle unit and the new mantle unit (p. 38 COB1), picture of secondary cone
crusher size 36 x 24 (p. 39 COB1), picture of bearing of secondary cone crusher
showed signs of wear out as well as picture of jaw crusher (p. 40 COB1) and picture
of broken bearing, picture of bushing, metal ring and parts of the bearing which
were worn out badly (p. 41 and 42 COB1) . COW7 testified that he brought the
Claimant to see the broken cone crusher and asked to replace a new one but the
Claimant just ignored and keep using the old one. COW7 also said that he had seen
the new mantle in the store as it was available but he didn't know when it was
eventually installed. COW7 said that his last working day was end of September
2002 and after that, he was transferred to headquarters in Phnom Penh by Mr.
Suppaiyah.
Claimant's case
47.
Claimant was the sole witness for his case. He gave evidence in chief vide
witness statement (WS-CLW). His evidence in chief inter alia is as follows. At the
time when he was appointed by the Company, he had a Bachelor of Science Degree
in Mechanical Engineering from Cheng Kung University, Taiwan. He is also a member
of the Board of Engineers, Malaysia and is an affiliate member of Institute of Mining
& Metallurgy, U.K.
22
48.
he wanted the Company to state formally the reason for his dismissal instead of a
verbal dismissal. He further said that he did not accept the verbal reason given by
the Director that his performance was under par. The Claimant in answer to Q18,
testified that he did not return to Cambodia after the incident on 23.9.2002 as he
was actually waiting to receive his termination letter from the Company. Instead, he
received the suspension letter for mismanaging Kg. Cham Quarry and was requested
to give explanation in writing before 14.10.2002.
The Claimant testified that he replied to the suspension letter vide letter
dated 11.10.2002 (p.9 CLB). In his letter he stated inter alia So, please give me a
(p.12-14
CLB), attaching the charges and he was requested to answer the charges in writing
by 29.10.2002. He was also informed that the DI was rescheduled to 31.10.2002.
The Claimant testified that he replied to the charges vide letter dated 27.10.2002
(p.15-19 CLB) but the Company did not reply as to whether his explanation was
acceptable.
The Claimant in
According to the
Claimant, the Company did not give him any letter stating that he was found guilty
of the charges. With reference to sub-paragraph 5(g) SIR, the Claimant in answer
to Q42 of WS-CLW testified that he never went to the Company on 3.12.2002 and
never informed the Company of his wishes to terminate his employment contract
with some form of ex gratia compensation.
H.
51.
In dealing with a reference under s 20 IRA, the first thing the IC has to
affirmative, then the next question which IC must consider is whether the dismissal
was with just cause or excuse (see the SC case of Wong Chee Hong v Cathay
52.
In respect of this issue, the Company did not deny that the Company had
terminated Claimant's employment contract vide Letter of Termination. Nor had the
Company raised any issue that the Claimant had resigned voluntarily from the
Company. In the circumstances, the answer to the first issue is clearly in the
affirmative, i.e., the termination of the Claimant's employment amounted to a
dismissal.
H(2)
Preliminary issue on DI
53.
It is observed that the Claimant had not raised any particular issue pertaining
only the Claimant and COW1 were present at the DI. The Claimant pleaded not
guilty of the charges.
DI will be held on 15.10.2002 and that the Claimant is allowed to produce witnesses
if he so chooses..
Claimant met with COW1 on 31.10.2002 where the charges and Claimant's reply
were discussed.
In the
Assurance Sdn. Bhd. & Anor [1995] 3 CLJ 344; Milan Auto (supra) v Wong
She Yen [1995] 4 CLJ 449; Ganesan G. Suppiah v Mount Pleasure Corp Sdn.
Bhd. [1998] 1 CLJ 637; Ngeow Voon Yean v Sungei Wang Plaza Sdn. Bhd. &
Anor [2004] 1 CLJ 8 and Encik Soh Tong Hwa v Malaysian Oxygen Berhad
(Award No. 469 of 2008)].
Estoppel
54.
It is trite that the [IC] must act according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal form.
The doctrine of estoppel, hence, is not to be applied in industrial
adjudication. The learned Judge was therefore entirely correct in his
observation that the [IC] had erred in law when it applied the doctrine of
estoppel to the process of industrial adjudication before it ....
[emphasis added].
(see also Nadarajah v Golf Resort (M) Bhd [1992) 1 MLJ 506 at p. 511).
55.
balance of probabilities that the termination was with just cause or excuse.
In
ascertaining whether the termination was with just cause or excuse, the Court will
first consider the issue whether the misconduct complained of by the Company has
been established in Court [see Milan Auto (supra)]. In this case, the Letter of
Termination did not specify the reason for the termination but referred to a meeting
on 28.11.2002.
28.11.2002, the Claimant was informed that the management had duly considered
his reply but found him guilty on most of the charges . In the circumstances, the
25
Court will now evaluate based on the evidence adduced during the trial before the
Court in relation to the charges to determine whether the termination was with just
cause or excuse.
(i)
Charge 1
56.
deceived the Management/Company into believing that there was a stock balance of
56,451.21 m3 quarry stones as per Claimant's PSB Report as at 30.9.2002 to the
Management/Company.
It
was
also
stated
in
Charge
that
the
the Claimant was on annual leave in Malaysia from 23.9.2002 and was
not in Kg. Cham after 23.9.2002 onwards;
(b)
(c)
the Claimant had not approved PSB Report as at 30.9.2002 and hence,
had not signed the report although his name appeared on the report;
(d)
(e)
(f)
and survey report done on 2.10.2002 (i.e., 21,929 m3) (p.127 COB2A)
by Mr. Suppaiyah with the assistance of the 2 surveyors, Mr. Om and
Mr. Pen. Mr. Suppaiyah and the 2 surveyors were also not called to
testify; and
(g)
the Claimant had signed PSB reports of previous months, i.e., June to
August 2002.
58.
Concerning Charge 1, the Company submitted that the Company had proven
Hence, the Claimant would have approved the PSB for the month of
(b)
60.
The Court is unable to agree with the submission presented by the Company
element, it is pertinent that the PSB report as at 30.9.2002 ought to be verified and
signed by the Claimant himself before he could be held to be responsible for it.
Besides that, the Company ought to have called the Claimant's administrator, Ny
Kimseik who prepared and signed PSB report as at 30.9.2002 to testify in Court. In
the circumstances, the Court holds that that the Company has not established the
misconduct as stated in Charge 1.
Charge 2
61.
submission of both parties in respect of Charge 2, it is also the view of this Court
that the Company had failed to establish the misconduct as stated in Charge 2.
From the evidence of COW1, COW2 and COW6, it is clear that the Claimant held the
position as QM of Kg. Cham only with effect from 1.9.2001 and not from June 2000.
Charge 3
63.
deliberately instructed his administrator Ny Kimseik and the office staff to amend the
recording for delivery of crusher run mixed from the actual figure to 20m 3 per load in
order to cover the shortage in stock. Test was made on the maximum load per
truck was around 13.5 m3 and the Claimant was well aware of this fact. Hence,
Claimant's action had misled the Management/Company.
64.
(a)
(b)
(c)
(d)
the DO's prepared by the staff of the Claimant including Torn Linda,
Keo Rithy or Ny Kimseik (p.1-15, p. 23 -43, p. 16-49 of COB3). The
DO's between 30.4.2002 to 13.5.2002 (p.1-15 COB3) showed a load of
14 m3 stated in the column of Quantity on
65.
The Claimant, on the other hand, submitted that the Company had failed to
the Company did not establish the different elements of Charge 3 (see
the Company did not call Ny Kimseik or any other office staff to
confirm that the Claimant had allegedly instructed them to amend DO's
recording from actual figures to 20m3;
(c)
29
(d)
COW5 had testified that he did not focus on how many cubic metres
that was transported in each DO and only the driver knew how many
buckets the dump truck can carry.
66.
After reviewing all the relevant evidence and submission of both parties in
respect of Charge 3, the Court finds that the Company has proven Charge 3 on a
balance of probabilities. In this case, even though Ny Kimseik was not called to
testify, it is sufficiently clear from Claimant's own explanation that the amendment
was clearly on his instruction. The Claimant's explanation to Charge 3 which was
stated in his reply to show cause dated 27.10.2002 (p. 16 CLB), reads as follows:
The amendment was my instruction. This is due to some 4 to 5 units of
all the dump trucks supplied by the contractor engaged by the site personnel
from Road 7A Project are of 20m 3 capacities. For the rest of the dump trucks
from the mentioned contractor are of 14.0m 3 capacities. This issue can be easily
identified from the signed and verified [DO's]. Therefore, the clerk was
instructed to correct the figure from 14.0 m 3 to 20 m3 per load for the 4 to 5
units of dump trucks. There is no manipulation as per your charges. Other than
that, there is no further instruction on this matter..
67.
The Court finds that the Claimant's explanation (that the amendment was due
to the fact that some 4 to 5 units of the dump trucks supplied by the contractor
engaged by site personnel from Road 7A Project, were of 20m 3 capacity) was not
probable. The Company had called COW5 from Sok Heng (transport contractor).
The Court noted that although COW5 had testified that he did not focus on on how
many cubic metres the dump truck transported in each DO, COW5 was consistent in
his testimony during examination in chief and under lengthy cross-examination that
all dump trucks could only load a maximum of 17 m 3 . Besides that, it is important
to note the following:
(a)
(b)
The Claimant
the material crusher run produced is still under the quality check by
the consultant. Therefore the plant is running on trial basis and after
14.5.2002 with the approval of the consultant, this particular truck
1147 in quality the truck started to load 20m3 each and a total of 30
31
over trucks there are about 4 dump trucks which are able to carry 20
over m3 and 1147 is one of them start to load 20m 3 onwards from 14
May, was never put to any of the Company's witnesses. Hence, it was
an afterthought.
Charge 4
68.
For Charge 4, the Company alleged that the Claimant had deliberately ignored
the fault on the crusher plants, namely the 'cone' which had caused a slow down of
production and an increase in the production cost (including diesel consumption).
Charge 4 further alleged that the Claimant had instead directed his subordinates to
continue with production despite knowing that the plant was not operating well.
69.
COW1 and COW2, the Company had not led any evidence pertaining to (a)
(b)
(c)
70.
and A22-33 of WS-COW2) and COW7 (p. 177 to 180 NOE), the Company had proven
that
(a)
the Nakayama Cone Crusher at the site of Kg. Cham Quarry had been
broken. These parts had been broken because they were been worn
out. The pictures of the Nakayama Cone Crusher were taken by COW2
on 1.10.2002 (p.36-38 COB1);
(b)
(c)
(d)
despite the arrival of the new replacement unit, the Claimant had not
taken the initiative, immediate steps or give instructions to have the
defective unit replaced; and
(e)
the new replacement unit was found to be still lying at the store area
when COW2 arrived at Kg. Cham Quarry some five (5) months later
i.e. on 1.10.2002.
The Claimant in his reply to show cause (p.17 CLB) stated that
The 'cone' referred to is the secondary plant.
72.
After evaluating all the evidence related to Charge 4 including the evidence of
33
Charge 5
73.
The Company relied on the evidence of COW3 and COW4 and submitted that
break weathered rocks to their customers, they will have to pass through our quarry
to deliver and this creates a scenario that the product comes from our quarry ..
75.
The Court after scrutinising the evidence of COW3 and COW4, found that
there was no evidence to support Charge 5 that alleged 'outsiders' had taken the
Company's 6 x 9 stones/boulders from the Kampong Cham Quarry. Besides that,
there was also no evidence led as regards any loss of revenue suffered by the
Company.
In the circumstances, the Court finds that the Company had not
established Charge 5.
Charge 6
76.
allowed to sell/loan/give explosive item namely 250 kg detonating chord and 300 kg
amunium
nitrate
to
Sam
Nang,
Company's/Management permission.
Sre
Seam
Quarry
without
the
Claimant's act was detrimental to Company's regulation and the country's law.
77.
The Claimant submitted that Charge 6 should fail because of the contradiction
between the charge and the evidence relied on by the Company is relying, i.e., p. 16
34
COB4 where the author of the document (Mr. Hun Sokmony) stated that we (a
reference to the Kg Cham quarry and the Claimant by extension) borrowed from Mr.
Samnang. In other words, it was the Claimant who had borrowed the explosives
from Mr. Samnang.
78.
The Company, however, submitted that Charge 6 was proven based on the
following evidence:
(a)
(b)
(c)
79.
80.
It was also submitted by the Company that the Claimant did not call Mr.
Khieng Hann to testify concerning Mr. Khieng Hann's alleged instruction to him to
assist Mr. Samnang. Secondly, the Company also submitted that COW4 had testified
that the Claimant did not inform him and had not obtained his approval before
loaning out the explosives or detonating chord to Mr. Samnang.
81.
With respect, the Court is unable to agree with Claimant's submission on the
35
powder 300 kgs then on July 15, 2002 we borrowed 1 roll of DC/SF. On
September 16, 2002 I borrowed
TNT from Srun Samnang, he (Srun
Samnang) returned explosive powder 300 kgs and 1 roll of DC/SF. .
82.
Besides the above, it is important to note that DO No. 007025 (p. 22, COB1)
36
Based on the all the relevant evidence adduced for Charge 6, the Court finds that it
is sufficiently clear that the Company has established Charge 6 on a balance of
probabilities.
37
Charge 7
83.
In relation to this charge, the Company alleged that the Claimant had allowed
his subordinate staff, Hun Sokmony to receive/collect money from other workers of
Kampong Cham Quarry as a gratitude for helping them to get jobs in the Quarry.
84.
(b)
the purported written statement of Hun Sokmony (p. 23-23 COB4) did
not reveal anything concerning Charge 7; and
(c)
85.
The Court after evaluating the evidence presented concerning this Charge,
finds that the Company had failed to establish the misconduct as stated in Charge
7.
Charge 8
87.
This charge alleged the Claimant's failure to do anything to collect the rocks
submerged in waterlogged area of Kg Cham Quarry. This charge also alleged that
the Claimant's act had caused loss of revenue to the Company.
88.
The Company submitted that Charge 8 was proven through the evidence of
89.
The Claimant in his reply to show cause letter had explained as follows:
Extraction of rocks from the second layer had been started since middle of
August 2002. The actual thickness of rock is between 1.5 to 2.0 meters.
Pumps were used to de-water the pond where the rocks were submerged.
Additional pumps were requested in the Management meeting held
on the 7.9.2002 from Plant and Asset Dept. in order to fasten the
drying of the pond. No remedy action was taken on my request..
90.
The Claimant's learned counsel submitted that Charge 8 had not been
(b)
the evidence of COW4 did not shed any light on the details of loss of
revenue to the Company as stated in Charge 8; and
(c)
91.
Based on all the evidence presented concerning this charge and submission of
both parties, the Court finds that the Company has failed to establish on a balance
of probabilities the misconduct as stated in Charge 8.
Charge 9
92.
It was submitted by the Company that Charge 9 is the cumulative effect of all
and any of the misconduct of the Claimant which had brought disrepute to the
Company.
The Claimant however submitted that this charge must fail as the
Company had failed to establish any of the earlier 8 charges against the Claimant. It
39
was further submitted by the Claimant that there was no evidence whatsoever of the
Company suffering any disrepute.
94.
In respect of Charge 9, the Court is of the view that the Charge is superfluous
learned counsel, the Company had not adduce any evidence of disrepute suffered by
the Company in order to support this charge. In the circumstances, the Court finds
Charge 9 has no basis.
Court's observation
95.
testified that he did not return to Cambodia after 23.9.2002. The Claimant in his
written submission (p. 5) had stated that Claimant was given 3 days to reply to the
charges, whilst the Claimant was still in Malaysia without access to documents
in Cambodia and at p. 7 stated that It was undisputed that the Claimant never
went back to Cambodia. ....
addition ..., and when you reply. Question : When you wrote
explanation at October 2002 did you have benefit of stock balance
report?
Q26
: Yes..
40
(ii)
96.
6, the next question the Court has to consider is whether such proven misconduct
warrants the Claimant's dismissal.
97.
The Claimant in this case had invited the Court to consider the
reasonableness of his dismissal. On this aspect, the Claimant submitted that the
punishment of dismissal imposed on him was extremely harsh, disproportionate and
excessive. In support of his submission, the Claimant cited cases, such as Johnson
Matthey Metals ltd. v Harding [1978] IRIR 248 (Johnson); Dev Singh v
Punjab Tourism Development Corporation Ltd. & Anor AIR 2003 SC 3712
(Dev Singh) and Rameshbai Atmaram Patel v Factory Manager, New
Shorrock Mills Ltd. [2001] III LLJ (Suppl) 723. The case of Johnson (supra) had
been adopted by our High Court in Sunmugam Subramaniam v JG Containers
(M) Sdn. Bhd. & Anor [2000] 6 CLJ 521 (Sunmugam) and Chartered Bank v
National Bank Union of Employees [1983] 2 ILR 111.
98.
distinguished from the present case. In Johnson 's case (supra), the Claimant had
worked more than 27 years with a blameless or unblemished record of service with
the Bank. In the case of Sunmugam (supra), the Claimant was charged with 7
charges but was found guilty of only the 1st charge, i.e., the Claimant had used
derogatory language
appellant had served with the respondent Corporation for nearly 20 years with an
unblemished service before the charge of misconduct of misplacement of a file was
levelled against him.
99.
In the present case, the Court finds that the Claimant's misconduct as stated
41
I.
Conclusion
100.
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 as stated in Charges 3, 4 and 6 against the Claimant and such
misconduct warrants the Claimant's dismissal. Accordingly, this Court holds that the
dismissal of the Claimant by the Company is with just cause or excuse. Hence, the
Claimant's claim is hereby dismissed.
( TAY LEE LY )
CHAIRMAN
INDUSTRIAL COURT
KUALA LUMPUR
42