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INDUSTRIAL COURT OF MALAYSIA

CASE NO: 7/4-871/14

BETWEEN

KARENJIT KAUR A/P HARBANS SINGH

AND

MALAYSIAN AIRLINE SYSTEM BERHAD

AWARD NO: 860 OF 2019

CORAM : Y.A. PUAN NOOR HAYATI BINTI HAJI MAT


CHAIRMAN – Sitting alone

VENUE : Industrial Court of Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 10.11.2014.

DATES OF MENTION : 17.12.2014, 21.01.2015, 05.03.2015, 22.04.2015,


06.07.2015, 09.12.2015, 30.05.2016, 24.11.2016,
15.06.2017, 14.08.2017, 07.12.2017, 19.03.2018 &
25.06.2018.

DATE OF HEARING : 24.01.2018, 25.01.2018, 26.09.2018 & 27.09.2018.

REPRESENTATION : Mr. V. Kanagaratnam from MTUC,


Representative for the Claimant.

Ms. Vinothinii Rajoo together with Miss S. Sivagami


from Messrs Zaid Ibrahim & Co,
Counsel for the Company.

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AWARD

THE REFERENCE

[1] This is a reference under Section 20(3) of the Industrial Relation Act 1967,

made on 10 November 2014 by the Honorable Minister of Human Resource arising

from the dismissal of KARENJIT KAUR A/P HARBANS SINGH (hereinafter referred

to as “the Claimant”) by MALAYSIAN AIRLINE SYSTEM BERHAD (hereinafter

referred to as “the Company”) on 14 February 2014.

[2] The relevant cause papers before this Court are as follows:

1. Statement of Case dated 19th January 2015.

2. Statement In Reply dated 4th March 2015.

3. Rejoinder dated 18th March 2015.

4. Claimants Bundle of Document marked as CLB.

5. Company’s Bundle of Document marked as COB & COB1.

6. Claimant’s witness statements of CLWS1 & CLWS2.

7. Company’s witness statements of CO(WS)1, CO(WS)1A & CO(WS)2.

8. Company’s written submission dated 1st November 2018 & 21st November

2018.

9. Claimant’s written submission dated 20th October 2018 & 15th November

2018.

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[3] The dispute was referred to the Court on 10 November 2014. While the

matter was pending before the Court, the Company was put under administration

pursuant to the Malaysian Airline System Berhad (Administration) Act 2015. The

moratorium period expired on 25 May 2017 and the matter then proceeded for trial

on 24 January 2018.

BRIEF FACTS

[4] The Claimant has been in employment of the Company as flight stewardess

since 25 July 1996 but was terminated after 17 years of service, on 14 February

2014. Her last drawn basic salary was RM2,269.58 and RM490 as allowances.

[5] The Claimant was issued with a Letter of Allegation dated 16 January 2014

with a charge stated as follows:

“That you as a Flight Stewardess of the Company had reported sick on 27

November 2013 for flight MH147 KUL/MEL but later was found to have

participated in the NUFAM gathering in front of the Ministry of Human

Resource (MOHR) Putrajaya on the same day.

You have therefore committed an act of misconduct inconsistent with the

fulfillment of your terms and conditions of service with the Company by virtue of

Clause 13, para 13.4 and Clause 13 para 13.10 of Appendix 1, Act of

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Misconduct of MAS Book of Discipline and such act of misconduct attracts

severe punishment.”

[6] The Claimant was suspended from service with immediate effect and barred

from entering the Company premises. The Claimant was also given 7 days to reply

to the Letter of Allegation.

[7] On 27 January 2014, she replied stating as follows:

“I was given medical leave by MAS panel clinic for 4 days, from 26, 27, 28 and

29 November 2013 due to a very bad menstrual pain. This 4 days medical leave

shows that I did not preplanned to attend the crew gathering in Putrajaya.

I’m not a NUFAM member and also don’t have any intention to against the MAS

Management. On 27th morning, I was informed by my friends (cabin crew) that

crew doing gathering in front HR Ministry to give petition against MASEU. The

petition was raise against MASEU due to their failures in taking care of cabin

crew welfare and needs.

I believe that most of crew was there for the same reason, it there was crew

protesting against the MAS Management. Believe in my word, I am not part of it

and I don’t have any intention to against the MAS which is feeding me and my

family.

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17 years I’m with MAS, never had any bad remarks in my records and no

complaints was raise on my behaviors. I’m sincere in my work and never fail to

follow the MAS guide line.

I hope management will accept this clarification on my act on 27th Nov 2013. I,

requesting apologies to MAS Management for the inconvenience and believe

that MAS management will give me chance to continue my service”

[8] The Company was not satisfied with her explanation and thereafter issued a

Punishment Order dated 14 February 2014 against the Claimant dismissing her with

immediate effect. The Claimant was given the right to appeal to the Disciplinary

Appeal Committee within 60 days. The Claimant appealed against her dismissal via

letter dated 9 April 2014 but her appeal was dismissed by the committee on 15 April

2014.

ISSUES TO BE DECIDED

[9] Issues to be decided by this Court are as follows:

A. Whether the Claimant participated in the said gathering which

constitutes a serious misconduct.

B. Whether such misconduct constitutes just cause and excuse for the

dismissal.

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THE LAW AND BURDEN OF PROOF

[10] It is trite law that the Company bears the burden to prove that the Claimant

had committed the alleged misconduct and such misconduct warrants the Claimant’s

dismissal.

[11] This principle of Industrial Law is laid down by his Lordship Justice Raja Azlan

Shah, CJ (Malaya) in the case of Goon Kwee Phoy vs J&P Coats (M) Bhd. (1981)

2 MLJ 129 at page 136 which reads as follows:

"Where representations are made and are referred to the Industrial Court for

enquiry, it is the duty of the court to determine whether the termination or

dismissal is with or without just cause or excuse. If the employer chooses to

give a reason for the action taken by him, the duty of the Industrial Court will be

to enquire whether that excuse or reason has or has not been made out. If it

finds as a fact that it has not been proved, then the inevitable conclusion 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"

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[12] To discharge the onus of proof, the Company must adduce cogent and

concrete evidence, whether oral or documentary, to prove the facts and

circumstances which they contend constitute just cause or excuse for terminating

employment of the Claimant.

[13] The standard of proof is on a balance of probabilities. See the case of

Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor

[2002] 3 CLJ 314) and Ireka Construction Berhad v Chantitavathan

Subramaniam james (1995) 2 ILR 11.

[14] Further, the Federal Court in decision of Wong Yuen Hock v. Syarikat Hong

Leong Assurance Sdn. Bhd. & Anor (1995) 2 MLJ 753 had this to say with

regards to the function of the Industrial Court:

“On the authorities, we were of the view that the main and only function of the

Industrial Court in dealing with a reference under Section 20 of the Act (unless

otherwise lawfully provided by the terms of the reference), is to determine

whether the misconduct or irregularities complained of by the Management as

the grounds of dismissal were in fact committed by the workman, and if so,

whether such grounds constitute just cause or excuse for the dismissal.”

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EVALUATION AND FINDINGS

Whether the Claimant participated in the said gathering which constitutes a

serious misconduct.

[15] Witnesses for the Company testified and states in evidence that the Claimant

was spotted attending the gathering on 27 November 2013 in front of the Ministry of

Human Resource, Parcel D, Putrajaya. Such gathering was anticipated by the

Company due to issues between the Company and the President of the trade union.

This was reflected in a circular from the Company via email to all cabin crews on the

26 November 2013.

[16] The circular “Conformance to Code of Ethics” is reproduced below for ease of

reference.

~ the remainder of the page is left blank intentionally ~

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[17] The Claimant denies having knowledge of this email because she was on

medical leave from 26 to 29 November 2013 and unable to retrieve her emails.

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[18] The Claimant, states in her evidence before this court that she was unaware

of the nature of the gathering and her presence was not preplanned; this however

contradicted her statement in her letter of reply dated 27 January 2014 where she

states:

“On 27th morning, I was informed by my friends (cabin crew) that crew

doing gathering in front HR Ministry to give petition against MASEU. The

petition was raise against MASEU due to their failures in taking care of

cabin crew welfare and needs”.

[19] The Claimant denies participating in the said gathering. She merely states

her presence was due to her passing by and curiously wanting to know after seeing

familiar faces at the gathering. She also alleges for being a mere bystander.

[20] Did she participated in the said gathering? Pictures taken by the Company’s

witness clearly shows her attendance. This was not denied. But she was also seen

and confirmed positively by COWS 2, Nik Muhammad Ridhwan Bin Che Ab Malik,

the Senior Security officer being the person holding a banner at the gathering. This

is obviously an act of participation.

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[21] This court is guided by referring to section 142 of the Penal Code which

states:

“Being a member of an unlawful assembly

142. Whoever, being aware of facts which render any assembly an unlawful

assembly, intentionally joins that assembly, or continues in it, is said to be a

member of an unlawful assembly.”

[22] The Claimant although was not charged under the Penal Code but the above

stated section was referred to as a guide on how a person be regarded being a

member of an unlawful assembly under the code. The element of “being aware of

facts”, “intentionally joins” and “continues in it” was reflected in the Claimant’s Letter

of Reply for having knowledge of the fact that there will be a gathering protesting

certain issues between the trade union and the Company and her act of stopping at

the scene, joining the crowd and continuing in it for a certain period of time coincide

with the definition of “a member of an unlawful assembly”. The pictures showing her

attendance, standing and holding a banner conform with the element of having

knowledge and intention for being part of the gathering.

[23] Thus, it is the finding of this Court that the Claimant did participated in the said

gathering. Next question would be, whether this act be considered as a serious

misconduct on the part of the Claimant?

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Whether such misconduct constitutes just cause and excuse for the dismissal.

[24] According to the Letter of Allegation, the Claimant’s act of misconduct was

inconsistent with MAS Book of Discipline, Clause 13. It was also submitted that this

particular act of misconduct was against grievance procedures provided under

Article 13 of the Collective Agreement 2011 between MASEU and the Company

which was not denied by the Claimant.

[25] Participating in an “unauthorized gathering” as it was not condoned or allowed

by the Company, was no doubt against the grievance procedures and the Claimant,

although not being an active MASEU member are still bound by it.

[26] The Company further alleges that the Claimant, being on medical leave for 4

days but yet able to be present at the gathering was in fact neglecting her work as

she was unable to fulfill her flight duty MH147 KUL/MEL which was scheduled on the

27th.

[27] Cases below was cited by the Company, with approval, as authority that the

Claimants’ act was indeed a misconduct and had intentionally neglected her work

which justify her termination.

(a) In Ambank Berhad v. Rasidah Othman [2007] 4 ILR 656, the claimant

came into work on the morning of the 4 December 2002, and subsequently

left to go to the bank’s panel clinic from which she managed to obtain a

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medical certificate. On the very same day, two other officers of the bank

spotted the claimant in the KOMTAR shopping complex carrying a few bags.

The Industrial Court held as follows:

“[31] Thus after analyzing and evaluating the evidence in totality in relation to the

facts and overwhelming incriminating circumstances of the case and guided by the

relevant law, the court finds that the respondent company (bank) had proven its case

against the claimant for malingering. Her dismissal was with just cause or excuse.”

(b) In General Tyre Retreaders Sdn. Bhd. v. Vadiveloo Munusamy [1996] 2

ILR 1419, the Claimant was seen at the D & C Bank when he ought to have

been resting at home since he was on medical leave. The Industrial Court

held:

“The company is not disputing the doctor’s competence nor is the company

challenging the doctor’s professionalism. What the company is contending is that the

claimant at the material time induced the procurement of medical leave by misleading

the doctor as to the cause of his alleged backache. The company, in fact, conceded

that employees do fall sick and are entitled to medical leave that is under scrutiny and

suspicion. In my view it is reasonable for employers to go behind a sick note when

there are reasonable grounds and where an employee has a past track record of

taking excessive medical leave, that will be one of the valid grounds for suspicion.

The company’s belief that the claimant had obtained medical leave under false

pretense was further strengthened when the claimant was seen at the bank while on

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sick leave. Such behavior, in my view, gave rise to suspicion of feigned sickness

and is not consistent with the faithful discharge of his duty in the employment.

Such conduct is prejudicial to the interests of the company and punishable.

After careful evaluation of the facts and circumstances in the present case this Court

comes to the finding that medical leave obtained by the claimant from 8 November

1993, was obtained in order not to perform his duties. Such an act amounts to

misconduct and the company had acted reasonably in dismissing the claimant. The

dismissal is, therefore fair and with just cause.”

(c) In The Regent Kuala Lumpur v. Gerad A/L Anthony [1996] 1 ILR 658, the

Claimant was found to have attended family day although he was on medical

leave. The Industrial Court held as follows:

“This was more so when on 1 August 1993 he was seen at the hotel’s family day. If

he actually was sick he should have been resting at home but instead he attended

the family day. He said he was at the V.I. field at about 1.30 p.m. with his children

and went back at about 2.30 p.m. but according to Aziah, COW6, she saw the

claimant at the V.I. field at about 3.40 p.m. and according to Mohd Zulkifli, COW7,

he saw the claimant at the V.I. field and spoke face to face with him. COW7 was at

the family day from 10.00 a.m. to 11.00 a.m. and therefore the claimant was not

telling the truth that he was at the V.I. field around 1.30 p.m. to about 2.30 p.m. and

he even said at the D.I. that he did not attend the thanks giving day of his mother-in-

law. As such he would have obtained the medical leave on false pretences of being ill

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to enable him to attend the hotel family day and was also considered malingering. In

Employees’ Misconduct by Alfred Avins (supra) at page 488, it was said that:

Malingering. The Supreme Constitutional Court of Cyprus has held that an

employee may be disciplined for malingering, which consists of obtaining

leave on the false pretence of being ill.

In Flour Mills Emp. U. v. Karachi Steam Roller F.M., 1963 Pak. Lab. L. Cas 698 (W.

Pak. Ind. Ct.) found in Employees’ Misconduct by Alfred Avins (supra), page 489, it

was held:

The West Pakistan Industrial Court has concluded that obtaining a medical

certificate to get sick leave through a false representation, and then using

the leave to go to a fair, is a disciplinary offence.”

(d) In Rajeendran Varathan lwn. PPG Coatings (M) Sdn Bhd [2010] 2 LNS

057227, the claimant was spotted at a picket while he was on medical leave.

The Industrial Court also referred to The Regent Kuala Lumpur v. Gerad

A/L Anthony and General Tyre Retreaders Sdn. Bhd. v Vadiveloo

Munusamy. In this regard, the findings of the Industrial Court were as

follows:

“Telah dibuktikan bahawa Yang Menuntut walaupun dalam cuti sakit pada 24

Februari 2004 telah hadir berpiket. Yang Menuntut bukan sahaja hadir di piket

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tersebut beliau juga mengambil bahagian dengan tanda kertas yang mengandungi

perkataan-perkataan “PPG Coating never follow Malaysian Law.” Alasan yang

diberikan oleh Yang Menuntut bahawa kehadirannya di piket tersebut secara tidak

sengaja kerana mengikut kawan yang ditumpanginya untuk ke bank sukar untuk

dipercayai. Mahkamah juga mendapati bahawa cuti sakit yang diperolehi sengaja

diambil oleh Yang Menuntut dengan tujuan supaya beliau tidak perlu bertugas pada

hari tersebut dan dengan itu beliau dapat sama-sama berpiket.”

[28] The Claimant further submit that due inquiry was not held and thus the

Company failed to abide proper disciplinary procedures against her.

[29] As a general rule, it is important to remember that no employee should be

dismissed for misconduct unless the employee concerned has been given an

opportunity to defend himself/herself or has been given an opportunity to be heard.

[30] In order to allow employees to properly defend themselves, employers can

hold a domestic inquiry which will help them decide whether the misconduct was

committed and what sort of punishment should be meted out.

[31] However, the law does not require that the Company were to set up a

domestic inquiry before it amounts to a “due inquiry”. Sufficient for the Claimant to

be given the right to be heard by allowing her to explain or reply to the allegations

against her.

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[32] In this case, she was spotted red handedly by a group of security officers and

pictures were taken which identity of the Claimant being present at the gathering was

not an issue. She was then given 7 days to reply and later 60 days to appeal on the

dismissal. The Claimant was given sufficient opportunity to defend herself and thus

failure to conduct a proper domestic inquiry does not make this dismissal procedure

manifestly unjust.

[33] Upon evaluating all evidence presented before this Court, the Court is

satisfied that the Company had proven its case on a balance of probabilities that the

Claimant was dismissed with just cause and excuse. The Claimant was indeed

participated at the gathering which was against the Company’s direction for the

Claimant to adhere to proper decorum and rules and procedures of the Company

including showing respect towards the management of the Company. The act of

attending such public rally resulted in the Company unable to repose the necessary

trust and confidence in the Claimant for her to continue her duties diligently.

[34] Based upon the whole of the evidence presented in this case and applying s.

30 (5) of the Act thereupon, and having considered carefully the written submissions

of both the learned Counsels and applying the relevant jurisprudence to this case, it

is the considered view of this Court that the Company has by its evidence at trial, on

a balance of probabilities, proven that the Claimant had committed the misconduct

as alleged that warranted termination.

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[35] As such, it is the finding of this Court that this dismissal was with just cause or

excuse. In the circumstances, this case does not require the intervention of this

Court on behalf of the Claimant.

THE FINAL ORDER

[36] The claim by the Claimant is hereby dismissed.

HANDED DOWN AND DATED THIS ON 05th MARCH 2019

-signed-

(NOOR HAYATI BINTI HAJI MAT)


CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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