INDUSTRIAL COURT OF MALAYSIA

CASE NO: 22/4-1273/13

BETWEEN AZHAR BIN MOHD. SAID

ANDDRB-HICOM DEFENCE TECHNOLOGIES SDN. BHD.

AWARD NO: 997 OF 2015

BEFORE : Y.A. DATO’ MARY SHAKILA G. AZARIAH- CHAIRMAN (Sitting Alone)

VENUE : Industrial Court, Kuala Lumpur

DATE OF : 28 August 2013 REFERENCE

DATES OF MENTION : 28 October 2013, 13 January 2014,5 May 2014, 5 June 2014,3 July 2014, 19 November 2014,26 March 2015 and 5 May 2015

DATES OF HEARING : 19 May 2014, 5 June 2014,20 October 2014, 13 April 2015,14 April 2015, 29-30 April 2015and 5 June 2015

DATE OF ORAL : 21 July 2015SUBMISSION

REPRESENTATION : Encik Ravindran of Messrs. MurugavellArumugam & Co, Counsel for Claimant.

Encik Abdullah of MEF, Representative for Company.

REFERENCES:This case is a reference under Section 20(3) of the Industrial

Relations Act 1967, arising from the dismissal of Azhar bin Mohd. Said (hereinafter referred to as “the Claimant”) by DRB-Hicom Defence Technologies Sdn. Bhd. (hereinafter referred to as “the

Company”) on 8 February 2013.

( 1 ) 22/4-1273/13

AWARD

This reference stems from the dismissal of Azhar bin Mohd.

Said (“the Claimant”) by DRB-Hicom Defence Technologies Sdn.

Bhd. (“the Company”) on 8 February 2013.

Brief Facts

The Claimant was employed by the Company in the position

of Senior Engineer vide the letter of employment dated 18 May

2011. He was selected to undergo 13 months On-Job Training in

armored vehicles technology transfer program in Thales, France.

The terms and conditions of the said training was set out in

Appendix 2 of the Scheme of Service for the development and

training programs. The Claimant avers that he never received the

said Appendix 2 at any material time during his employment with

the Company. The Claimant avers that he signed the Service

Bond Agreement dated 10 October 2011 with the Company. The

Claimant on 27 November 2012 was issued with a show cause

letter wherein it was alleged that the Claimant had returned to

Malaysia on 13 July 2012 until 21 July 2012 and from 11 August

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2012 to 28 August 2012 and by doing so had breached Section

2.1 Clause (vi) of the said Service Bond Agreement dated 10

October 2011 which states that the employee shall not abandon

the On-Job Training and transfer of technologies programme

prior to the due completion thereof without the prior expressed

written consent of DEFTECH. The Claimant denies the said

allegations and averred that the dates he returned to Malaysia

were summer off days as instructed by Thales, the training

provider in France. He also avers that other team members of the

Claimant staff also of the Company did not attend the training on

those days alleged by the Company but no action were taken

against them by the Company. The Claimant avers that he

completed his job training in Thales on 16 November 2012 and

had informed verbally his Thales Project Manager, Mr. Francois

Bertrand about his travel plans during summer off days. The

Claimant avers that there is no written policy that he would have

to get approval in writing if he intended to travel back to Malaysia

during the summer off days. The Claimant avers that a domestic

inquiry was held by the Company the panel of which found him

guilty of the Charge preferred against him by the Company. The

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Claimant avers that he was dismissed by the Company thereafter

vide the Company's letter dated 8 February 2013 stating that he

had admitted that he was guilty of the Charge. The Claimant

denies this and that his dismissal is without just cause or excuse.

The Company contends that the Claimant was found guilty

by the panel of the domestic inquiry as the Claimant had not

obtained the approval of the Company for his return to Malaysia

on 13 July 2012 until 21 July 2012 and from 11 August 2012 to

28 August 2012 and by doing so head breached Section 2.1

Clause (vi) of the said Service Bond Agreement dated 10 October

2011 and was dishonest giving false impression that he was away

at France and was paid his allowances to and by the Company.

The Company contended that during this period Claimant was

paid his allowance connected to his On-Job Training under the

said Service Bond Agreement.

The Charge

“That you, Azhar bin Mohd. Said, Senior Engineer, had

committed the following misconduct:

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(a) that you have left the On-Job training site at

Thales, France and returned to Malaysia from 13th

July 2012 until 21th July 2012 (9) days without

prior written approval from the Company;

(b) that you have left the On-Job training site at

Thales, France and returned to Malaysia from 11th

August 2012 until 28th August 2012 (18) days

without prior written approval from the Company;

(c) By returning to Malaysia from 13th to 21st July

2012 and/or 11th to 28th August 2012 without

obtaining prior written permission from the

Company and/or disclosing to the Company that

you were in Malaysia during the said period you

have acted dishonestly in giving the false

impression to the Company that you were still at

Thales, France during the aforesaid period when

in actually fact you were not. This is serious

misconduct in light of the fact that the training

allowances (cost of living allowances and foreign

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service allowance) were payable to you under the

Service Bond Agreement on the premise that you

remained and/or were required to be in Thales,

France during the training period.

You have breach Section 2.1 (Clause vi) of your

Service Bond Agreement and/or established

Procedures and Policies which requires you to

obtain prior approval and been subjected to a

disciplinary hearing on Thursday, 20 December

2012”.

Issues and Law

In the oft-cited case of Wong Yuen Hock v. Syarikat Hong

Leong Assurance Sdn. Bhd. & Anor. Appeal [1995] 3 CLJ 344,

Mohd. Azmi FCJ at page 352 stated:

“On the authorities we were of the view that the main

and only function of the Industrial Court in dealing

with a reference under s.20 of the Act (unless otherwise

lawfully provided by the terms of the reference) is to

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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 for

the dismissal”.

This tells me that I would have to consider the following:

(1) whether the misconduct complained of by the

Company were in fact committed by the Claimant.

(2) and, if in the affirmative, whether the proven

misconduct complained of constitute just cause or

excuse for the Company to dismiss the Claimant. In

other words whether the dismissal in the

circumstances of the case was the appropriate

punishment.

It is trite law that the burden of prove in industrial law is on

the Company to produce cogent and convincing evidence to prove

the Claimant committed the alleged misconduct.

( 7 ) 22/4-1273/13

Accordingly it falls to be determined whether the Company

in this case has discharged its burden in establishing Charges for

which the Claimant was dismissed.

In Wong Yuen Hock v. Syarikat Hong Leong Assurance

Sdn. Bhd. & Anor. (supra) has said as follows:

“… we are 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 of dismissal constitute just cause or

excuse for the dismissal. In our opinion, there was no

jurisdiction by the Industrial Court to change the scope

of reference by substituting its own”.

( 8 ) 22/4-1273/13

The Domestic Inquiry

Where a domestic inquiry has been held into the Charges of

misconduct then the Court is obliged to first consider the

adequacy or otherwise of the procedure adopted in the

proceedings for the domestic inquiry in order to determine

whether the domestic inquiry has applied the correct procedure

and had reached the correct conclusion having regard to all the

evidence adduced at the domestic inquiry. So long as at the

domestic inquiry the Rules of Natural Justice had been properly

applied and the Claimant had been given the opportunity to be

heard and to present his case then if a finding has been made

against the Claimant based on the evidence which had been

presented to the domestic inquiry, the Court ought to consider its

findings in order to conclude whether the employee has been

dismissed with just cause or excuse - see Metroplex

Administration Sdn. Bhd. v. Mohamed Elias [1998] 5 CLJ 467.

( 9 ) 22/4-1273/13

In Bumiputra Commerce Bank Bhd. v. Mahkamah

Perusahaan Malaysia & Anor [2004] 7 MLJ it was held that

where a domestic inquiry has been held the Court’s

jurisdiction is limited to considering whether there was a

prima facie case against the employee and whether the DI's

notes of proceedings were accurate. In fact in the case of

Workmen of the Motipar Sugar Factory Private Limited v.

The Motipar Sugar Factory Private Limited AIR 1965 SC 1803

it was held that if an inquiry has been held the Court should

not interfere unless they want the inquiry to be fair. The

Court is also to consider whether the decision of the panel of

inquiry was perverse or otherwise.

In Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan

& Other Appeal [1997] 1 CLJ 665 at page 716 it was held that:

“The fact that an employee has conducted a domestic

inquiry against his workman is, in my judgment, an

entirely irrelevant consideration to the issue whether

the latter had been dismissed without just cause or

excuse. The findings of a domestic inquiry are not

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binding upon the Industrial Court which rehears the

matter afresh. However it may take into account the

fact that a domestic inquiry had been held when

determining whether the particular workman was

justly dismissed”.

In the case of Plaintree Wood Products Sdn. Bhd. v.

Mahkamah Perusahaan Malaysia & Muhammad Safarudin

Chew bin Abdullah (Application for Judicial Review, High

Court Kuala Lumpur, No. R1-25-42 of 2005) (unreported), his

Lordship Raus Sharif J. said that the duty of the Industrial Court

is to hand down a Award by referring to the evidence and

testimonies of the witnesses adduced by the parties. His

Lordship held that the Industrial Court was not tied down to the

notes of proceedings of the domestic inquiry. This would mean

that in arriving at a decision the Industrial Court is not to treat

the notes of proceedings of the domestic inquiry held by the

employer as the sole determining consideration in determining

whether the employee was dismissed with just cause or excuse.

This also meant that the findings of the domestic inquiry is not

( 11 ) 22/4-1273/13

binding on the Industrial Court whose duty on a case referred to

it for adjudication by the Honourable Minister pursuant to

section 20 of the Industrial Relations Act 1967 is to hear and to

decide based on the principles of equity and good conscience

having regard to the substantial merits of the case.

The Company’s Domestic Inquiry of 3rd January 2013

Straddled with the aforesaid propositions of law I now

consider the validity of the said domestic inquiry that was held

against the Claimant by the Company in the instant case and the

accuracy of its ensuing notes.

In Bharat Forge Co. Ltd. v. A.B. Zodge and Another

(1996-11-LLJ-643) (SC) the Court had held that a domestic

inquiry may be vitiated by either for non-compliance of the

rules of natural justice or for perversity. Any disciplinary

action thus taken on the basis of a vitiated inquiry does not

stand on a better footing than a disciplinary action with no

inquiry. Two principles emerge from this that is, that the

principles of natural justice must have been adhered to at

( 12 ) 22/4-1273/13

the Domestic Inquiry stage and where the Domestic Inquiry

has been vitiated for some reason the Court can hear the

case de novo.

The Company's witness COW.3 tendered the verbatim report

of the domestic inquiry proceedings in Court during the Hearing.

The said witness testified that the Claimant was given the

opportunity to defend himself at the domestic inquiry and that

the panel found the Claimant guilty of the Charges leveled against

him by the Company.

The said verbatim report of the domestic inquiry shows that

no witnesses were called by the Company in support of the 3

Charges that was preferred against the Claimant by the

Company. The Court notes that the Company's case of dismissal

of the Claimant which it alleges was for a just cause or excuse

hinges on the interpretation of Section 2.1. (Clause vi) of the

Service Bond Agreement signed with the Claimant. If the

Claimant is found to be in breach of the said section then the

question arises whether the decision to dismiss the Claimant

( 13 ) 22/4-1273/13

taken by the Company was reasonable given the facts of the case.

The said notes of the domestic inquiry proceedings and the

evidence adduced by the Company through COW.3 does not

permit me to say that it sets up a prima facie case against the

Claimant. It is does not reflect whether the Principles of Natural

Justice was complied with and whether the notes were a verbatim

of what was actually said as the hand written notes are not

adduced. Moreover the pages of the said notes of the domestic

inquiry proceedings are not signed by the Claimant. The Court

cannot tell whether it is accurate or not. One thing is glaring is

that during the proceedings the Claimant did not examine any

witnesses as none were called. The panel's decision was solely

based on the fact that the Claimant did return to Malaysia on the

said dates and receiving the allowances whilst back in Malaysia

without prior approval from the Company. The panel did not

consider his reason for doing so and that the time/s he returned

was during his summer break when there was no lectures and

that he returned to Thales, France thereafter to finish his training

and was given his certificate of completion by the Institute at

Thales, France. These facts were not considered by the panel who

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interpreted the section of the Service Bond Agreement in question

as meaning that the Claimant was not entitled to leave the place

of training without prior permission from his superior that is

COW.4. The word used in the said Service Bond Agreement was

“meninggalkan...” and it was construed to mean that he could not

leave the On-Job Training site at Thales, France. Having perused

the notes of the domestic inquiry proceedings and the evidence of

COW.3 which the Court finds to be scanty the Court finds that it

cannot rely on it or consider itself bound by it for on the face of it

appears to be perverse and in breach of Natural Justice. Hence

the Court proceeds to hear the case de novo and will arrive at its

conclusion as to whether the Claimant misconducted itself and

whether his misconduct warranted a dismissal of himself by the

Company. In fact COW.3 testified during cross-examination that

there was no evidence of dishonesty but yet found that the

Charges were established against the Claimant.

( 15 ) 22/4-1273/13

The Charges

The Company's Evidence

COW.4 the Company's witness was the manager of the On-

Job Training Program that was carried out by the Company in

which the Claimant was involved in. He testified that the

Claimant and 5 others were chosen to undergo the training for 13

months at Thales, France commencing 14 October 2011 by the

Company. He testified that the employees were briefed on 30

June 2011 at Kuantan and this was followed by discussions and

question and answers sessions with the employees concerned to

ensure that the program went on smoothly. It was his evidence

that the briefings and discussions focused on the terms of the

Service Bond Agreements amongst others. He was unaware that

the Claimant returned to Malaysia and was made aware of this at

the domestic inquiry.

COW.4 when cross-examined testified that during the

Summer Holidays the institute at Thales, France was closed and

the Claimant together with the other employees were required to

vacate their accommodation provided to them and were required

( 16 ) 22/4-1273/13

to stay outside the place of training. When he was referred to the

email from Francois Bertrand the Trainer at Thales, France he

agreed that the email indicated that the Claimant was required to

take off from 13 August 2012 to 17 August 2012 and from 16

July 2012 to 20 July 2012 and from 20 August 2012 to 28

August 2012. He maintained however that the Claimant was

required to obtain the approval of himself if he wanted to take off

to Malaysia during this period. He agreed when it was put to him

that the Claimant was required to leave Thales, France during

this period. He also agreed when it was put to him that the

rationale of Section 2 of the Service Bond Agreement was that the

Claimant was to focus on the training that he was undergoing at

Thales, France. When asked whether the Claimant was briefed by

the Company before they left for France for the training on what

they were required to do during the summer break he said that he

did not know as he did not conduct the said briefing.

( 17 ) 22/4-1273/13

It was the evidence of COW.5 the Company's 5th witness that

the Claimant was sent to Thales, France by the Company to

undergo On-Job Training for a period of 13 months and that he

left the country on 14 October 2011 and was expected to return

to Malaysia in November 2012. It was his evidence that having

examined the passports of all the employees who were sent to

Thales, France for the said training including that of the Claimant

he discovered that the Claimant had left his place of training

without having informed COW.4 and the Company as he was

required to do so. It was his evidence that they were required to

inform the Company and COW.4 of their movements. He testified

that they could only leave the site with the permission of the

Company or COW.4. It was his evidence that they were

furthermore aware of this requirement. COW.5 testified that 3 of

the employees were sent for training to Thales, France were

terminated because they had left the place of training or did not

attend the training without the Company's approval. He said that

this was necessary as the Company was responsible for their

safety and therefore their movements had to be known by the

Company at all times. It was his testimony that at the time of

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signing of the said Service Bond Agreement the intention of the

Company was that the employees concerned were not to the place

of training as they like without notifying and getting the approval

of the COW.4 and Company. It was his evidence that this applied

to them even if they were on holiday. COW.5 testified that the

Claimant did obtain the Company's approval when he wanted to

return to Malaysia from 13 April 2012 to 24 April 2012 so that he

could attend an exhibition at the PWTC Kuala Lumpur, Malaysia

and from 21 May 2012 to 2 June 2012 when his mother was

taken ill. It was his evidence that during this period he was paid

his overseas allowances.

It was his evidence when cross-examined that the Claimant

according to the Company's show cause letter had “abandoned”

his training at Thales, France. When asked by the Court as to

whether “abandon” was the correct translation in English for the

word in Bahasa Malaysia “meninggalkan” his answer was “No.”

He testified that it should be “leave” and not “abandon” and that

the Human Resource Department who drafted the said show

cause letter had made a mistake in the drafting of the allegations

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against the Claimant. He testified that the decision to dismiss the

Claimant that was made by the Company's Chief Executive

Officer was based on the records and the alleged admission of

guilt by the Claimant. He agreed when it was put to him that the

Claimant had honestly filled up in his declaration form that he

had left Thales, France and had returned to Malaysia. He

answered “No” when asked whether the Claimant had made any

false representations as to his whereabouts that he was in France

when he was in Malaysia. It was his evidence that when the

Claimant left France for Malaysia during the summer break it had

no impact on the Company save that it was technically in breach

of the said Service Bond Agreement. He agreed when it was put

to him that the Company's main concern was that the employees

focused on the On-Job Training and complete the same and not

leave the site as they pleased.

( 20 ) 22/4-1273/13

The Claimant's Evidence

The Claimant testified that he was to undergo On-Job

Training at Thales, France. It was his evidence that pursuant to

the Company's letter dated 12 October 2011 it was stated that the

terms and conditions of the training would be set out in Appendix

2 of the Scheme of Service for the development and training

programs but he had never received the said Appendix 2 at any

material time during his employment with the Company. It was

his evidence that he had only signed the Service Bond Agreement

dated 10 October 2011. The Claimant testified that he received

the show cause letter dated 27 November 2012 alleging that he

had been absent from work and had returned to Malaysia on 13

July 2012 until 21 July 2012 and from 11 August 2012 to 28

August 2012 and by doing so had breached Section 2.1 (Clause

vi) of the Service Bond Agreement. It was his evidence that he

replied stating that he had not breached the said Service Bond

Agreement as they were summer off days as instructed by Thales,

France. He added that other team members were also absent

from the training site during the said period. The Claimant

testified that he had verbally informed Thales Project Manager,

Francois Bertrand about his travel back to Malaysia on those said

dates.

( 21 ) 22/4-1273/13

The Claimant testified that he was called to attend the

domestic inquiry which he did on 20 December 2012. He testified

that there is no written policy that he would need to get the

approval of COW.4 or the Company if he wished to return to

Malaysia during the summer off days. It was his evidence that

the Company took no action against his other team members who

visited Europe during the summer off days and another team

member Fauzy bin Harun had also returned to Kuala Lumpur

during the training period that is from 2 December 2012 to 11

December 2012 but no action was taken against him by the

Company. The Claimant testified that he was dismissed after the

domestic inquiry found him guilty of the Charges leveled against

him by the Company. He testified that he had never admitted to

the said Charges as alleged by the Company. He testified that

vide his letter dated 2 February 2013 he had informed the

Company that he never pleaded guilty during the said domestic

inquiry.

( 22 ) 22/4-1273/13

It was his evidence that he did not breach section 2.1 of the

said Service Bond Agreement as he had completed the On-Job

Training. He testified that the Company stopped paying him his

allowances from October to November 2012 though he was still at

Thales, France undergoing his training. It was his evidence that

the Company victimised him as they fail to take action against the

other members who had also traveled out of Thales, France

during the said period and against Mohamed Fauzy bin Harun

who had returned to Malaysia during the training period.

The Claimant testified when he was cross-examined that he

interpreted the Section 2.1 of the Service Bond Agreement to

mean that he needed to get the approval of the COW.4 and or

Company if he were to leave the training and not training site

during holidays or off days.

( 23 ) 22/4-1273/13

Court's Evaluation

The Charges

Here's a case where the Claimant does not dispute that he

had returned to Malaysia thus leaving the training site on 2

occasions without prior approval from the Company. The

Claimant contends that on both occasions stated in the Charges

the training site at Thales, France was closed for the summer

break and all trainees from the Company were asked to leave the

training site and the place of residence and live elsewhere by their

instructor. The Claimant testified that he informed Thales Project

Manager, Francois Bertrand about his travel back to Malaysia on

those said dates. It was in evidence that the Claimant had prior

to these 2 occasions returned to Malaysia with the permission of

the Company and this was when the training was on at Thales,

France. His actions to the Court is a reflection of the fact that he

interpreted Section 2.1 of the Service Bond Agreement to mean

that he needed to get the approval of the COW.4 and or Company

if he were to leave the training and not training site during

holidays or off days when they were required to leave the training

center at Thales, France and live elsewhere. This is consistent

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with his testimony given during the Hearing. The Company

however contend and have led evidence to say that the Claimant

had breached Section 2.1 of the Service Bond Agreement when he

left the training site at Thales, France on both occasions stated in

the Charges. The Company interprets the section to mean that

regardless of whether it is summer break or not the Claimant was

required to inform and obtain the prior permission of COW.4 who

was then in Charge of the training project when he wanted to

leave the training site at Thales, France. The Company further

contends that by so returning to Malaysia without the Company's

approval and being paid the allowances under the Service Bond

Agreement the Claimant had acted dishonestly in giving the false

impression to the Company that he was still at Thales, France

during the aforesaid period when in actually fact he was not. The

Company contends that this was a serious misconduct in light of

the fact that the training allowances (cost of living allowances and

foreign service allowance) were payable to him under the Service

Bond Agreement on the premise that he remained and/or were

required to be in Thales, France during the training period.

( 25 ) 22/4-1273/13

It is the Court's view that the Claimant knew that he

required the permission of the Company if he was to returned to

Malaysia during the training period prior to its completion. This

is evidenced by the fact that he sought the Company's permission

to return to Malaysia once before the dates referred to in the

Charges that is on 21 May 2012 to visit his ailing mother. But it

is necessary to note that when he returned during this period his

training was on at Thales, France and to him Clause 2.1 of the

Service Bond Agreement required him to obtain the prior approval

of the Company. When the Company issued the show cause

letter dated 27 November 2012 to the Claimant the Company had

translated Clause 2.1 of the Service Bond Agreement which was

drafted in Bahasa Malaysia in the following manner:

“That the employer shall not abandon the On-Job Training

and Transfer of Technologies Programme prior to the due

completion thereof without the prior expresses written

consent of DEFTECH”.

( 26 ) 22/4-1273/13

The Court concurs with this translation of the said clause

into English and this is what the Claimant understood the clause

as meaning and hence when he returned to Malaysia during the

summer off days and when the training site at Thales, France was

closed he did not think he was required to obtain the Company's

written consent before his return to Malaysia during the summer

break. In fact the witnesses for the Company agreed that the

main aim of the said Clause 2.1 of the Service Bond Agreement

was that the employees focused on the On-Job Training and they

complete it with excellence which the Claimant did. It was their

evidence that this was the rationale of the said Clause 2.1 of the

Service Bond Agreement and rightly so. Accordingly the Court

finds that the Claimant had not misconducted himself under

these circumstances when he returned to Malaysia on the dates

referred to in the Charges framed against him by the Company.

On the interpretation of the Clause 2.1 of the Service Bond

Agreement which states that the employee shall not abandon the

On-Job Training and Transfer of Technologies Programme prior to

its completion thereof the Court fails to understand the merits

underlying the Company's Charges especially (a) and (b). The

Court's decision is supported further by the fact that the

Claimant completed the On-Job Training successfully and in fact

( 27 ) 22/4-1273/13

was assessed by the Training Provider to have been efficient and a

good leader. The Charges as seen in the show cause letter of the

Company alludes to the fact that the Claimant abandoned the

On-Job Training at Thales, France which was not the case.

The Company's witness, COW.3 had agreed when cross-

examined by the Claimant's Counsel that there was no evidence

of dishonesty found during the domestic inquiry held against the

Claimant. Charge (c) states that the Claimant had been

dishonest in giving false impression to the Company that he was

still at Thales, France during the periods he had returned to

Malaysia during the summer of days. On the evidence and facts

the Court finds that the Claimant had not been dishonest. In fact

when he was asked to make a declaration of his movements

during the period of the training he divulged that he was in

Malaysia during the summer off days and that was how the

Company came to know about his return to Malaysia. Again the

Court fails to understand the merits underlying Company's

Charge (c).

( 28 ) 22/4-1273/13

On the evidence and facts it is then the Court's findings that

the Claimant did not commit any acts of misconduct by returning

to Malaysia without first seeking the written consent of the

Company on both occasions. Neither is he guilty of being

dishonest in giving the false impression that he was at Thales,

France when he was in Malaysia. There is no cogent evidence to

support such a claim by the Company and the Court does not

agree with the Company's subsequent change in their stand, that

is, after issuing the show cause letter to the Claimant that the

Clause 2.1 of the Service Bond Agreement is to be interpreted to

mean that the employees were required not to leave as opposed to

abandon the training at Thales, France. The latter being the

meaning and intent of clause 2.1 of the Service Bond Agreement.

It is the Court's view that the Clause itself in Bahasa Malaysia

does not convey that meaning and that the literal meaning as

adopted by the Company when they charged the Claimant is

unsupported by any evidence that was the intention of the parties

to the contract and that this was intimated to the employees at

the time of the execution of the contract. It is to the Court rather

unclear whether that was what all parties understood it to be viz

at anytime whilst the employees were at Thales, France they

could not leave France be it during the training period or summer

break imposed by the Instructors at Thales, and not just Thales

( 29 ) 22/4-1273/13

and/or France without prior approval of the Company. Therefore

in accordance with the contra proferentum rule of construction

any ambiguities will be resolved against the party seeking to rely

on it viz the Company.

Was Terminating The Claimant Justified?

If the Claimant has not misconducted himself when he

returned to Malaysia in July and August and had not dishonestly

given false impression to the Company that he was still at Thales,

France during that period as alleged by the Company any

termination of the Claimant for these reasons is unjustified. The

Company did not adduce the Chief Executive Officer as a witness

to testify as to why he decided to terminate the Claimant's

services. Even if the Claimant's actions in returning to Malaysia

during the summer off days without first obtaining the written

consent of the Company was contrary to Clause 2.1 of the Service

Bond Agreement which is not what the Court opines here on the

facts and evidence, the Court will have to consider the issue of

whether it was reasonable for the Company to decide to terminate

the Claimant under these circumstances. In other words the

Court will have to decide whether the reasons given for the

termination of the Claimant is a just cause or excuse for his

termination.

( 30 ) 22/4-1273/13

It is said that decisions to terminate a workman be it for

misconduct or performance must have a justification. This would

mean that where processes are followed and decision - making

processes are robust and the outcome is fair and reasonable the

Courts uphold a decision to discipline or dismiss. The dismissal

of the workman in other words must be substantively justified

and must be conducted in a procedurally fair manner in that the

employer must follow a fair process before termination and the

outcome must be one that a reasonable and fair employer could

have reached in all the circumstances. In the case of Norizan

bin Bakar v. Panzana Enterprise Sdn. Bhd. [Rayuan Sivil No.

01(f)-29-11-2011] it was held that under the scheme section 20

of the Industrial Relations Act 1967 the Industrial Court is

clothed with the powers to consider whether the misconduct if

proved warrants the punishment of dismissal or otherwise. The

powers of the Industrial Court has been clearly elucidated by the

Federal Court it was held in Wong Yuen Hock v. Hong Leong

Assurance Sdn. Bhd. (1995) 2 MLJ 753 and Milan Auto Sdn.

Bhd. v. Wong Sek Yen (1995) 3 MLJ 537. In Wong Yuen Hock

(supra) it was pointed out that the functions of the Industrial

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Court in dismissal cases on a reference under section 20 of the

Industrial Relations Act 1967 is two-fold that is to determine

whether the misconduct has been established and whether the

misconduct proved warrants the punishment of dismissal. It was

further held that the Industrial Court has the jurisdiction to

decide that the dismissal of a workman was without just cause or

excuse by using the doctrine of proportionality of punishment of

dismissal was too harsh in the circumstances of the case and in

the exercise of its functions the Industrial Court can rely on its

powers under section 30(5) of the Industrial Relations Act

1967 viz equity, good conscience and substantial merits of the

case.

If these principles are applied to the facts of the given case

the Court would find that it would not be substantively justified

that the Claimant be dismissed by the Company under these

circumstance and if at all, he had misconducted himself. Given

that the Claimant applied for the written permission in May that

same year to return to Malaysia and given that his return in July

and August that year again but without seeking prior permission

( 32 ) 22/4-1273/13

from the Company during the center's summer off days the

Company should have been astute in the making decision it

made. Terminating the Claimant under these circumstances and

coupled with the fact that 3 other employees on training at Thales

who also were away from Thales, France during the summer off

days but are still employed by the Company, does not appear to

be what a reasonable and fair employer would have done in all

the circumstances. The Company's failure to produce the

passports of these employees who are currently employed by the

Company despite their travels outside Thales, France during the

summer off days without approval of the Company would not

have augured well for it. COW.4 testified that he requested these

documents from the Human Resource Department of the

Company but they refused to give it to him. The documents if

produced would have assisted the Court in understanding

whether the Claimant had committed a serious act of misconduct.

It would have also dispelled any doubts the Court might have had

as regards the selective punishment of the Claimant by the

Company and whether he was being unfairly treated and

discriminated against.

( 33 ) 22/4-1273/13

So, in the light of the foregoing paragraphs facts and

evidence adduced during the Hearing the Court would have

reiterated that the Company's decision to terminate the Claimant

is without merits and basis.

The Court reiterates that on the evidence and facts the

Claimant has not misconducted himself by returning to Malaysia

during that summer break at Thales, France as he did not breach

clause 2.1 of he Service Bond Agreement because he did not

abandon his On-Job Training at Thales, France. Neither has he

been dishonest as claimed by the Company. The Company has

failed to establish the Charges against the Claimant. The Court

sets aside the dismissal and makes the following orders for relief

for the Claimant. This is the Court's decision acting on the

principles of equity and good conscience and having had regards

to the substantial merits of the case.

( 34 ) 22/4-1273/13

Relief

The Court has taken into consideration the fact that the

Claimant was sent by the Company for special training at Thales,

France which he has completed the Court opines that his services

may be beneficial to the Company. The facts and evidence do not

allude to any trust and confidence in the Claimant being lost as

the Claimant was not dismissed from poor performance or serious

acts of misconduct by the Company. Given his age and training

the Court opines that reinstalling the him will serve towards

justice achieved.

Accordingly the Court deems it fit to order that the Claimant

be reinstated to his former position in the Company so that he

could put his training and knowledge gained to good use for the

Company's benefit. The Court orders that the Company

reinstates the Claimant within 30 days from the date of service of

this Award without loss of salary, seniority and other benefits,

monetary or otherwise. The Court orders that the Claimant be

paid back wages from the date of dismissal based on the last

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drawn salary of the Claimant together with all other monetary

benefits less statutory deductions if any. The Claimant is ordered

to report back to the Company not later than 30 days from the

date of the service of this Award. The Court orders that all

monetary benefits be paid to the Claimant within 30 days from

the date hereby through his Solicitors Messrs. Murugavell

Arumugam & Co.

HANDED DOWN AND DATED THIS 17 DAY OF AUGUST 2015

Signed

( DATO’ MARY SHAKILA G. AZARIAH )CHAIRMAN

INDUSTRIAL COURT, MALAYSIAKUALA LUMPUR

( 36 ) 22/4-1273/13