Professional Documents
Culture Documents
BETWEEN
AND
Ms. S. Sivagami
Messrs Zaid Ibrahim & Co.
Counsels for the Company
REFERENCES:
This is an order of reference dated 16.11.2015 under Section 20(3) of the Industrial
Relations Act 1967 arising out the dismissal of Lim Tian Tiang (the Claimant) by
[1] The matter was heard by the previous Chairman of Court 14 and the full trial
was completed on the 31.10.2018. Claimant’s Counsel, Ms. Marina Netto from
Messrs Christhy Marina & Associates and Ms. S. Sivagami from Messrs Zaid Ibrahim
[2] The previous Chairman of Court 14 has been transferred from the Industrial
Court to the Attorney General Chambers on the 18.09.2018. The learned President
has instructed me to continue with the hearing. In doing so, with the consent of both
parties, I have perused all the relevant documents, the pleadings, the notes of
evidence recorded verbatim by the previous Chairman before proceeding with the
trial. Accordingly, I shall now hand down the award for the case.
[3] The Claimant commenced his employment with the Company as a General
[4] The Claimant had served the Company for a period of 23 days before being
dismissed by the Company with immediate effect on 13.11.2015. The reason for the
dismissal given by the Company was that the Claimant cannot communicate with
[5] The Company pleaded 3 occasions that showed the Claimant cannot
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i) The Claimant held a meeting with all the respective stores heads to
saying that she looked pretty but she was a bit too fat and his callous
ii) Failure to leave proper instruction to Ms. Lily Chia on the urgency of
RM400.00 that he obtained from the cash sales for a licence renewal.
iii) Chastised Siti Azimah binti Basri, Sales Assistant through Ms. Lily Chia
for cutting her nails in the store and accusing her for not adhering the
Company’s policy.
iv) The Company has also got official complaints from the said team about
LAW
[6] As to the function of the Court when handling a reference under s. 20 of the
Industrial Relations Act 1967 (“the Act”), the Federal Court in Wong Yuen Hock v.
Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344 at p.
352 enunciated;
“On the authorities, we were of the view that the main and only function
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the management as the grounds of dismissal were in fact committed by
the workman, and if so, whether such grounds constitute just cause or
[7] In the case of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 LNS 30, is
binding authority for the proposition that the Court is restricted in its inquiry into the
veracity of the reason chosen by an employer for the dismissal. Raja Azlan Shah CJ
(Malaya) (as His Royal Highness then was) speaking for the Federal Court ruled:
“Where representations are made and are referred to the Industrial Court
employer chooses to give a reason for the action taken by him, the duty
has or has not been made out. If it finds as a fact that it has not been
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.
substantive right to hold the post; he holds no lien on the post and has
Michael Crosskey, Kuching [1987] 1 ILR 486; [1986] 2 ILR 866, Soon
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Seng Industrial Products Sdn. Bhd. v. Metal Industry employees Union
[1988] 2 ILR 219 and Edaran Otomobil Nasional Bhd. v. Safri Jaukarani
[8] Raja Azlan Shah CJ (as His Majesty then was) in KC Matthews v. Kumpulan
Gunthrie Sdn. Bhd. [1981] CLJ 62 (REP); [1981] CLJ 40 had quoted with approval
the principal laid down by Das Dupta J in delivering the judgment of the Indian
Supreme Court in Express Newspapers (P) Ltd. v. Labour Court & Anor AIR 1964
“There can, in our opinion, be no doubt about the position in law that an
probationer even after the period of six months if at the end of the period
probation for six months gives the employer no right to terminate the
six months period the employer can either confirm him or terminate his
[9] In Khaliah Abbas v. Pesaka Capital Corporation Sdn. Bhd. [1997] 3 CLJ 827,
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“It is our view that an employee on probation enjoys the same rights as a
the Industrial Court has the jurisdiction to interfere and to set aside such
dismissal. In the present case we find that the Industrial Court made a
finding of fact that the dismissal of the appellant was without just cause
or excuse.’
[10] In Dorsett Regency Hotel (M) Sdn. Bhd. v. Andrew Jayadass James Ambrose
[2003] 2 ILR 740 at page 751 the Learned Chairman analysed the meaning of the
above passage of the Court of Appeal in relation to a reference under Section 20(3)
of the Industrial Relations Act 1967 and the status of probationer as follows:-
of s. 20(3) of the Act in that it should not be without just cause or excuse.
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It is well settled law that at the end of the probationary period, it is
satisfied that the employee is not suitable for the job he may be
[11] In relation to a reference under section 20(3) of the Act where just cause or
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BURDEN AND STANDARD OF PROOF
[12] The burden of proving misconduct that justifies dismissal lies on the employer
[13] In Century Mahkota Hotel, Melaka & Anor v. Michele Geraldine Kessler [1999]
“It is settled law that in cases of direct dismissal such as this, the burden
just cause or excuse for taking the decision to impose the disciplinary
measure of dismissal upon the employee. The just cause must be, either
[15] In Stamford Executive Centre v. Dharsini Ganesan [1986] 1 ILR 101 (Award
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“It must be emphasized here that the employer must produce convincing
have committed and for which he has been dismissed. The burden of
proof lies on the employer. He must prove the workman guilty, and it is
not the workman who must prove himself not guilty. This is so basic a
[Emphasis Added]
ISSUES
ii) Whether such ground constitute just cause or excuse for the dismissal.
present case, the burden of proof lies on the Company, as employer to prove, on a
balance of probabilities that the Claimant's dismissal was with just cause or excuse.
The employer must produce convincing and cogent evidence to justify the dismissal
of the employee.
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[18] The first issue the Court would address is about the complaint. The Company
has laid down the complaint in the termination letter and in the Statement Of Reply.
3)
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iv) Fauziatul Emylia binti
[20] The Claimant testified in support to his claim. His witness statement is marked
as CLWS.
[21] The main witness of the Company, Quinnie was not called to give evidence
although her Witness Statement was filed in Court. Ample opportunities had been
given by the Court to accommodate her, but she and another witness failed to turn
up during trial. She is the one who signed the termination letter.
[22] The inability of the Claimant mainly addressed on the issue of cannot
[23] The first issue pleaded was during the Claimant held a meeting with all the
supervisor by saying that she looked pretty but she was a bit too fat and his callous
[24] However, the Company had failed to adduce any evidence on this issue. The
incidence happened during a casual conversation and not while he was handling any
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[25] On the part of failure to leave proper instruction to Ms Lily Chia on the
urgency of RM400.00 that he obtained from the cash sales for a licence renewal is
not an issue at all. In the course of business, the main issue is to settle any overdue
Lily Chia must refer to her superior before taking any action.
COWS 2 Chia Li Ly
“Q5 : Can you please inform this Honourable Court as to what happened
on 05.11.2015?
so that he could renew the DBKL licence for the KLCC shop. His
the RM400.00 was supposed to come from. He also did not inform
It shows the Claimant had carried out the task in his course of
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[26] The issue of chastising Siti Azimah binti Basri, Sales Assistant through Miss
Lily Chia for cutting her nails in the store and accusing her for not adhering to the
Company’s policy is not a valid reason for the termination. Even Siti Azimah cannot
remember the time of incidence. The Claimant was placed at the store room
temporarily. Cutting nails involves hygiene and it was done at the store room. The
Claimant reprimanded her through Miss Lily and not directly to her. Reprimanding
follows:-
Insiden Ketiga
Yang Menuntut pernah menuduh seorang rakan sekerja saya (Siti Azimah) bahawa
beliau melanggar prosedur Syarikat apabila beliau memotong kuku di bilik stor. Yang
Menuntut telah memarahi Siti Azimah tanpa usul periksa. Insiden tersebut berlaku di
luar waktu pekerjaan Siti Azimah dan saya Nampak beliau membersihkan tempat
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[27] The other issues about the Claimant’s attendance and bringing friends to the
Store Room are not justified at all. In the evidence of COW 2, she said the working
hours of the Claimant have not been fixed. In the termination letter, this issue was
Company was present to give evidence officially on the record of attendance. And
the issue of bringing friends to the Store Room was not supported by evidence. As
the Claimant’s room was at the Store Room, the issue did not arise at all.
“Cross Examination
kawannya tersebut?
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[28] All the witnesses were the Claimant’s subordinates. They are not reporting or
having direct dealings with him except COW2. In the trial, COW 2 testified that she
will be liaising with him about works only. Person in authority was not called to give
evidence.
melaporkan diri kepada Cik Lily Chia. Jikalau saya ada apa-apa
“Cross Examination
melakukan sesuatu.”
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Tidak, apabila saya menjalankan tugasan harian saya, saya
melaporkan diri kepada Cik Lily Chia. Jikalau saya ada apa-apa
melaporkan diri kepada Cik Lily Chia. Jikalau saya ada apa-apa
[29] The Company had not notified the Claimant of his shortcoming and had
considered the performance of the Claimant during his probationary period before
deciding to dismiss the Claimant. The evidence forwarded by the Company as the
grounds of dismissal were in fact do not constitute just cause or excuse for the
dismissal.
[30] Based on the totality of the evidence adduced, through oral testimony as well
CONCLUSION
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[31] In conclusion, taking into account the totality of the evidence adduced by both
parties and bearing in mind section 30(5) of the Industrial Relations Act 1967 to act
according to equity, good conscience and the substantial merits of the case without
regard to technicalities and legal form, this Court finds that the Claimant’s dismissal
REMEDY
[32] As for the remedy sought, it is apparent that the relationship of mutual trust
and confidence between an employee and employer no longer exists due to the
reasons for which the Claimants had been terminated. The relief of reinstatement will
not be beneficial to both parties. The Court is of the considered view that
reinstatement is not the appropriate remedy in the circumstances and facts of this
case.
[33] After considering that the Claimant has only served the Company for a period
of 23 days, the Court is of the opinion that backwages for a period of 4 months is
reasonable. The Court hereby orders that the Company to pay the Claimant through
his Solicitors Messrs Christhy Marina & Associates a sum of RM48,000.00 less
statutory deductions, if any not later than 30 days from the date of this award.
-Signed-
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