kesatuan pencantuman pekerja-pekerja tenaga nasional berhad award no: 1654 of 2012
DESCRIPTION
KESATUAN PENCANTUMAN PEKERJA-PEKERJATENAGA NASIONAL BERHAD AWARD NO: 1654 OF 2012TRANSCRIPT
INDUSTRIAL COURT OF MALAYSIA
CASE NO: 27/3-43/10
BETWEEN
KESATUAN PENCANTUMAN PEKERJA-PEKERJATENAGA NASIONAL BERHAD
ANDTENAGA NASIONAL BERHAD
AWARD NO: 1654 OF 2012
CORAM: Y.A. DATO’ MARY SHAKILA G. AZARIAH - CHAIRMAN ENCIK ABD. RAHMAN @ MARIDAN BIN RAMLI - EMPLOYERS' PANEL ENCIK RAJASEHGARAN A/L RAJAMANIKAM - EMPLOYEES' PANEL
VENUE : Industrial Court, Kuala Lumpur
DATE OF : 24 December 2009 REFERENCE
DATE OF MENTION : 10 February 2010, 19 April 2010, 20 May 2010, 25 June 2010,19 August 2010, 22 September 2010,3 November 2010, 24 January 2011,10 March 2011, 15 March 2011,27 September 2011, 14 October 2011,19 October 2011 and 20 October 2011
DATE OF HEARING : 28 March 2011, 17 August 2011,15 March 2012, 25 May 2012,28 May 2012, 6 July 2012and 30 August 2012
DATE OF ORALSUBMISSIONS : 5 October 2012
REPRESENTATION : Encik Sivananthan of MTUC, Representative for Union
Cik Janice Leo of Messrs. Shook Lin & Bok,Counsel for Respondent
REFERENCES:This is a reference made under Section 26(2) of the Industrial
Relations Act 1967 between Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad (hereinafter referred to as “the Union”) and
Tenaga Nasional Berhad (hereinafter referred to as “the Respondent”).
( 1 ) 27/3-43/10
AWARD
This reference pertains to a trade dispute between Kesatuan
Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad
(hereinafter referred to as “the Union”) and Tenaga Nasional
Berhad (hereinafter referred to as “the Respondent”).
Brief Facts
The Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional
Berhad (“the Union”) brought this dispute that centers on the
demotion of one of the Union's member, Encik Ibrahim bin Ali
Kutty (“the aggrieved employee”) by the Company, Tenaga Nasional
Berhad (“TNB”). It is the Union's pleaded case that the Claimant of
26 years service (then) with TNB was demoted from being a
Pembaik Kerosakan T/Kanan (TT07) to Tukang T/Biasa (TT06)
with effect from 20 August 2007. The aggrieved employee has
been issued with competency certificate having undergone
extensive training to enable him to work on high risk jobs of the
TNB. He contends that on 25 March 2006 out of concern for 11
staffs he approached his Senior Supervisor at the Pusat
Pengurusan Bekalan Section and raised some issues regarding
( 2 ) 27/3-43/10
safety and competency aspects involving some of the new staff who
had not been issued with the competency certificates nor were
they authorized personnels for them to carry out the high risk jobs
for the Company. He further contends that Tuan Haji Said bin
Muda overheard their conversation and raised his voice at him
asking him what does he know about safety. He contends that
Tuan Haji Said bin Muda undertook to bear all responsibilities for
their safety should anything untoward happen to the new staff.
The aggrieved employee asked Tuan Haji Said bin Muda to reduce
his undertaking in writing and for it to be given to him. The
aggrieved employee contends that after that day Tuan Haji Said
bin Muda changed his shift duty and was instructed orally not to
be in charge or to lead his Team D. The aggrieved employee was
asked to work on normal office hours. He lodged a complaint with
the Human Resources Department. On 29 March 2006 a letter
dated 27 March 2006 was given to the aggrieved employee by Tuan
Haji Said bin Muda instructing the Claimant on his working hours
that is from 8.00 am to 5.00 pm and that Team D was disbanded
with him being effectively removed as its leader. He said that Tuan
Haji Said bin Muda discredited him by reporting to the Managing
Director vide his letter dated 27 April 2007, that he was
problematic worker.
( 3 ) 27/3-43/10
The aggrieved employee further contended that he was
instructed to explain why he did not attend to the Roll-Calls on a
number of days which he says was not compulsory by Tuan Haji
Said bin Muda. He said that he received a warning letter dated 21
June 2006 by him after being issued with a show cause letter
dated 8 June 2006 by Tuan Haji Said bin Muda. The aggrieved
employee contends that he did not receive the said show cause
letter and was therefore not aware of it. He contends that after 3
months somewhere in the middle of June 2006 the aggrieved
employee was reinstated to his original position as Pembaik
Kerosakan T/Kanan (TT07) by Tuan Haji Said bin Muda. On 26
June 2006 being his off day he was called back by the Company
for emergency work. His car was faulty and in need of repairs. He
took his car for repair the next day that is 27 June 2006 as he had
to report for duty on 28 June 2006 and had to report for work at
6.30 am. The aggrieved employee avers that on 26 June 2006 he
finished work at about 11.00 pm and because he had no transport
of his own he used his Company's van WDN 943 (“the vehicle”) to
return home and parked the said vehicle in the compound of his
Selayang Prima Quarters.
( 4 ) 27/3-43/10
The aggrieved employee contend that he tried to reach the
Supervisor of Vehicles, Mr. Karunakaran to inform him that the
Claimant wanted to use the said vehicle that night but could not
reach him. He said that at the same time he tried to contact Tuan
Haji Ismail Majid so that he could get his permission but could not
get through to him. He contends that he continued to contact Mr.
Karunakaran when he got home at about 12.10 am and Tuan Haji
Ismail but was unable to do contact them.
It is his contention that on the same day, that is 26 June
2006, Mr. Karunakaran received a short message on his
handphone from Tuan Haji Said bin Muda saying that he (the
aggrieved employee) had taken the Company's van to his quarters
at Selayang Prima. He avers that on 27 June 2006 Mr.
Karunakaran lodged a report with the Manager of Pusat
Pengurusan Bekalan Kuala Lumpur on the matter. On 28 June
2006 the aggrieved employee received a letter dated 27 June 2006
from Tuan Haji Said bin Muda alleging that he had taken the
Company's vehicle to his residence without permission and had
breached the “Prosedur Tatatertib TNB, Edisi Kelima 2006,
Perkara 35, Senarai Salah Berat Lampiran H muka surat 40”. The
( 5 ) 27/3-43/10
aggrieved employee contends that he inquired from Tuan Haji
Ismail Majid regarding the show cause letter issued by Tuan Haji
Said bin Muda and Tuan Haji Ismail retorted by saying that Tuan
Haji Said bin Muda did not wish to see him. He contends that he
forwarded his reply to the said letter giving his reasons as to why
he kept the said vehicle with him on 26 and 27 June 2006.
On 6 February 2007 TNB issued a letter dated 31 January
2007 to the aggrieved employee preferring charges against him and
requiring him to attend a Domestic Inquiry on 27, 28 and 29
February 2007 which after several postponements was finally held
on 7 and 8 June 2007. Following the said Domestic Inquiry the
aggrieved employee was demoted by TNB. On 29 August 2007 the
aggrieved employee appealed against the said decision to demote
him but it was not accepted by TNB. The aggrieved employee
contends that he had never refused to follow the instructions of
Tuan Haji Said bin Muda but his relationship with Tuan Haji Said
bin Muda had soured ever since he raised the issue of the safety of
the new staff assigned to Pusat Pengurusan Bekalan section with
him.
( 6 ) 27/3-43/10
The aggrieved employee contends that as a Team D leader he
was an authorized relief driver and normally parks the said vehicle
at the Company's parking bay at Pusat Pengurusan Bekalan and
the keys are always kept by him. He contends that this has been
the practice of the Company. He avers that the said vehicle was
kept at his quarters from about 11.30 pm 26 June till the morning
of 28 June 2006 and at about 6.15 am on 28 June 2006 he drove
it to his place of work. It is his contention that upon returning
home on 26 June 2006 and until the morning of 28 June 2006 he
did not use the vehicle for his personal use and the said vehicle
was parked throughout the period at the Selayang Prima Quarters
car park. He contends that Tuan Haji Said bin Muda manipulated
the situation to inflict the punishment on him and that he was a
victim of a grudge by Tuan Haji Said bin Muda. He avers that he
apologized to TNB for the taking home of the said vehicle without
its permission. He said owing to the personal vendetta on the part
of Tuan Haji Said bin Muda against him that his apology was
rejected. The aggrieved employee avers that the punishment
meted out was too excessive resulting in inter alia his salary also
being reduced. He contends that his 25 years of loyal service
( 7 ) 27/3-43/10
Award to TNB that was to be given to him was differed for 3 years
and that to date he has not been considered for the loyal service
award. His prayer to the Court is that he be reinstated to his
former position as a Pembaik Kerosakan T/Kanan (TT07) with
effect from 20 August 2007 and that his arrears of salary
differences, wages, bonuses, seniority and monetary benefits from
the date of his demotion that is 20 August 2007 to the date of
determination be awarded by the Court.
It is TNB's contention that the aggrieved employee was
demoted after a due inquiry where the panel had found him guilty
of his misconduct. TNB avers that prior to his demotion the
aggrieved employee was suspended from work for 3 days on 23
March 1995, warned on 5 May 1995, 23 March 1995, 5 May 1995
and 21 June 2006 for his various acts of misconduct. TNB
contends that by taking the said vehicle home without
authorization the aggrieved employee had abused TNB's property
which is a serious misconduct. It is their contention that if the
aggrieved employee could not contact his superior and/or officers
in charge of the vehicle he should not take it home. TNB contends
( 8 ) 27/3-43/10
that the punishment meted out commensurates with the aggrieved
employee's misconduct and avers that what the aggrieved
employee did could have had serious ramifications on TNB in that
it deprived TNB of the vehicle's usage in the event of an emergency.
Evidence, Findings and Evaluation
TNB's evidence was led through their witnesses CW.1, CW.2
and CW.3. CW.1 viz Tuan Haji Said bin Muda, was the Technical
Executive at the Pusat Pengurusan Bekalan. He testified that on
26 June 2006 he received the SMS from one of the employees of
TNB. Encik Nasir bin Ahmad informing him that he saw the
vehicle registration number WDN 943 (“the said vehicle”) parked at
the Selayang Prima Quarters. He said he instructed Encik Nasir to
obtain whatever information he could get on the matter. He
testified that he then asked Encik Karunakaran via SMS whether
he had authorized the aggrieved employee to take the said vehicle
back home with him. He testified that he was told that he did not.
CW.1 further testified that on 27 June 2006 he asked Encik
Karunakaran to confirm whether the said vehicle had been
returned to TNB's premises and was told that it was not so. It was
( 9 ) 27/3-43/10
his testimony that he instructed Encik Karunakaran to file a
report with the Manager on the matter and to take a photograph of
the said vehicle parked at the Selayang Prima Quarters. CW.1
testified that he issued the show cause letter dated 27 June 2006
to the aggrieved employee. He said that the aggrieved employee
admitted having taken the said vehicle home without approval. It
was his testimony that he reported the matter to the disciplinary
Committee TNB. He said that in taking home the said vehicle and
keeping it for 2 days at his premises the aggrieved employee had
deprived TNB of the vehicle's usage for 2 days.
It was his evidence during cross-examination that he was the
Senior Supervisor of the aggrieved employee. He testified when
asked that he was handed the responsibility to issue the show
cause letter to the aggrieved employee. He confirmed that the
aggrieved employee stayed at the quarters belonging to TNB. He
agreed when it was put to him that the said quarters was part of
TNB's premises. It was his testimony that the Claimant was the
head of his team since 2006 and that initially his working hours
was from 7.00 am to 11.00 pm and was given overtime work all the
( 10 ) 27/3-43/10
time. He said that he had no issues with the way the aggrieved
employee worked. CW.1 agreed that the aggrieved employee was
grounded from 1 April 2006 and was asked to work from 8.00 am
to 5.00 pm. It was his evidence that the aggrieved employee was
taken off as Team Head because he did not want to work with new
employees and could not form a team. CW.1 agreed that when the
complains were lodged with Tuan Haji Ismail by the aggrieved
employee the new workers did not have the certificates. He agreed
that he had told the aggrieved employee that these new workers
could still work. He agreed that when the matter of the change in
his duties and working hours was taken up with the General
Manager the aggrieved employee was given back his old position
and his working hours.
When he was cross-examined CW.1 was not sure that on 26
June 2006 the aggrieved employee was off-duty but was called
back by him to work overtime. He agreed however when it was put
to him that on the 26 June 2006 the aggrieved employee was
asked to work overtime from 7.00 am to 3.00 pm as it was his off-
day. He further agreed when it was put to him that the aggrieved
( 11 ) 27/3-43/10
employee was asked to continue to work overtime until 11.00 pm
on 26 June 2006. He said that he did not know that the aggrieved
employee had come to work that day having hitched a ride from
his friend. He said that he did not know that the aggrieved
employee's wife was unwell that day and had requested that he
came home that night where else his original plans was to stay the
night at the workplace as he had no transport to go back home.
He said that before the aggrieved employee took the said vehicle
back to his home that night he did not know that he had tried to
contact Tuan Haji Ismail and Mr. Karunakaran to seek their
permission for the usage of the said vehicle but could not get
through to them. CW.1 agreed that he knew that the Claimant
had problems with his car on 26 June 2006. He also agreed that
he had sent a SMS to Mr. Karunakaran at about 23.38 pm on 26
June 2006 about the incident. He further agreed that the
aggrieved employee returned the said vehicle to the premises on 28
June 2006 at 6.30 am. It was his evidence that on the 26 June
2006 there was no emergency situation that warranted the usage
of the said vehicle.
( 12 ) 27/3-43/10
It was his evidence when asked as to why he did not ask the
aggrieved employee to return the said vehicle the next day CW.1
said that he did not have the authority to seize the said vehicle
that was in the aggrieved employee's charge. When questioned by
the Court as to why he did not ask the aggrieved employee to
return the said vehicle as soon as he came to know that he had
taken it back home with him CW.1 said that he did not know what
to do. CW.1 testified that he was not sure whether the aggrieved
employee had used the said vehicle for his personal use except
that it was taken back home by him.
Then 2nd witness of the Company, CW.2, Encik Karunakaran
testified that he told CW.1 when he received his SMS that he did
not authorize the aggrieved employee to the use the said vehicle
that night to return home. He said that he had reported to CW.1
on 27 June 2006 that the said vehicle was not parked at TNB's
premises that day and that the aggrieved employee was not
working on 27 June 2006. CW.2 testified that he lodged a report
with the Manager as instructed by CW.1 to do so and directed one
of his staff to go to the quarters and take a photograph of the said
( 13 ) 27/3-43/10
vehicle that was parked at the aggrieved employee's flat. It was his
testimony that the said vehicle could be used by the staff provided
they had obtained approval for its usage from the supervisor by
filling up the form provided by TNB. He testified that the aggrieved
employee did not fill up the said form.
It was his testimony during cross-examination and to a
question posed by the Court that he had submitted a report on the
incident at the material time as he was instructed to do so by
CW.1. He agreed that the said report was submitted to CW.1.
CW.2 testified that he did not receive any SMS or telephone calls
from the aggrieved employee on 26 June 2006. He agreed that 27
June 2006 was the aggrieved employee's off-day and that he did
not ask the aggrieved employee as to why he had taken the said
vehicle home on 26 June 2006. He said that he was a good friend
of the aggrieved employee.
CW.3, the investigating officer, testified that he was asked to
investigate into this matter by the Manager. He said that the
aggrieved employee was charged for having taken the said vehicle
( 14 ) 27/3-43/10
home without the approval of TNB. He said that the aggrieved
employee had admitted having done so as his personal car had
broken down that day and he did not have enough money to take a
taxi to go back home that night after work. He said that the
aggrieved employee had told him that he had tried to contact CW.2
to get his permission but could not get through to him. CW.3
testified that the aggrieved employee had agreed that what he did
was against the disciplinary procedure of TNB but he was
compelled and pressured that day to do so. It was his testimony
that after he had taken down the statements from CW.1, CW.2 and
others he concluded that the charge against the aggrieved
employer was true.
It was CW.3's evidence during his cross-examination that the
aggrieved employee had taken the car back home on 26 June 2006
because his situation on that day was compelling.
The aggrieved employee testified that at the material time his
immediate superior was CW.1. He said that owing to the
breakdown of his car he took a lift from his friend that day to
( 15 ) 27/3-43/10
work. He said that he was told to work overtime on the 26 June
2006 that is from 3.00 pm to 11.00 pm. He testified that this was
unplanned and it meant that he was going to work some 16 hours
on 26 June 2006. It was his evidence that because he did not
have sufficient monies to take a taxi back home after his work he
tried to call CW.2, 3 times to get his permission to use the said
vehicle to go back home. He said that he was unsuccessful at
getting through to him however. He testified that he then tried
unsuccessfully to get in touch with Tuan Haji Ismail Majid his
Foreman Head, to get his approval. He testified that owing to his
pressing situation he took the said vehicle back home that night.
It was his testimony that when he reached home that is the TNB
Quarters at Selayang Prima, he used the public telephone to try
and reach CW.2 again but to no avail. It was his testimony that he
kept the said vehicle from the night of 26 June 2006 to the
morning of 28 June 2006. He said that during the said period the
said vehicle was parked at the said quarters of TNB and he
returned it when he went to work on 28 June 2006 as he was
scheduled to work from 7.00 am to 3.00 pm that day.
( 16 ) 27/3-43/10
The aggrieved employee testified that 27 June 2006 was his
rest day. He said that he contacted CW.2 at about 12.00 pm that
day and told him that he had taken the said vehicle back with him
and that it was parked at the said quarters. He said that CW.2
answered him “it is too late”. It was his evidence that he did not
use the said vehicle for his own personal use whilst it was with
him.
The aggrieved employee testified further that he was given the
show cause letter dated 27 June 2006 on 28 June 2006. He said
that CW.1 as his head did not ask him anything about the said
matter. He testified that he replied the said show cause letter
saying that he had to use the said vehicle to get back home that
night as his own car had broken down and that he had tried to
contact CW.2 to get his approval but was not successful. He
testified that he was charged by TNB vide its letter dated 31
January 2007 and was asked to attend the DI that was scheduled
for the 27 February 2007 to 29 February 2007. He said that the
said DI was postponed and was held from 7 June 2007 to 8 June
2007. It was his evidence that by taking the said vehicle back
home on 26 June 2006 the operations of TNB was not affected at
all.
( 17 ) 27/3-43/10
When cross-examined the aggrieved employee testified that
on 26 June 2006 he had no choice but to take the said vehicle
back home with him as he had no other means of getting back
home that night. He stressed that he was suddenly asked to work
overtime and that it was not planned. He agreed that after he had
finished his shift he realized that none of his friends living at the
same quarters as he did were going his way. To a question posed
by the Court the aggrieved employee said that this was the first
time that he had done such a thing in the 29 years he had been
with TNB. It was his testimony when the question was posed to
him that when he kept the said vehicle on 27 June 2006 it did not
deprive TNB of the usage of the said vehicle as every driver had its
own vehicle and there were ample spare vehicles for use. He said
that the vehicle that he took back was under his care.
It was his testimony during cross-examination that what was
recorded in the Notes of Proceedings of the DI was inaccurate. He
said that some of the things he said at the DI was not recorded.
He explained when cross-examined that on 26 June 2006 he
received a telephone call from his wife after he had finished his
( 18 ) 27/3-43/10
shift telling him that she was unwell. He had originally planned to
stay back after 11.00 pm as he knew he had no transport to go
home and to return home the next day only. He said that because
of his wife's ill-health he decided to return home. He said that he
had told CW.3 this when he was questioned by him. The aggrieved
employee testified that he knew that taking the said vehicle
without approval was wrong. He said that in his years of service
he knew that this had happened before with the other staff using it
for their personal use but TNB had taken no action against them
so he could not understand why TNB reacted this way towards
him. He said he did not have documents to prove that this had
happened before but he has witnessed it personally.
It was the aggrieved employee's evidence when he was re-
examined that he was not asked by either CW.1 or CW.2 to return
the said vehicle. He said neither attempted to get in touch with
him to ask him why he had taken the said vehicle and to have
returned.
( 19 ) 27/3-43/10
The Union's representative submitted that TNB had been
harsh in demoting the aggrieved employee for the wrong that he
did. The demotion also meant that the aggrieved employee saw his
salary reduced by RM150.00 per month. The Union's
representative submitted that the aggrieved employee had 31 years
of unblemished record and the mitigating circumstances were not
taken into account by TNB when the punishment was decided
upon. Moreover he stressed that the said vehicle was not used for
his personal use except to get back home that night and he had
parked it at all times at the quarters which was designated as part
of the Company's premises. He submitted that TNB did not
produce the person responsible for making the decision that the
aggrieved employee should be punished in this manner as a
witness or the members of the panel who sat in judgment of the
aggrieved employee during the said DI. Their evidence was
important and therefore he submitted that the Court should rely
on section 114(g) of the Evidence Act 1950. It was further
submitted by the Union's representative that the aggrieved
employee had been victimized by CW.1 and TNB.
( 20 ) 27/3-43/10
TNB's Counsel submitted that the punishment was right as it
was within the band of punishment that they could impose on the
aggrieved employee for the serious misconduct that he had
committed. The Counsel referred to TNB's “Prosedur Tatatertib”
(“the said Manual”) in support of her submissions. She submitted
that it was provided by the said Manual that the band of
punishment ranged from “Turun Gaji Hingga Buang Kerja”. It was
her submission that it was well within and reasonable to have
imposed the punishment on the aggrieved employee for the
misconduct he had committed. It was her submission in a
nutshell that the punishment of demotion was proportionate to the
aggrieved employee's misconducts he had complete disregard to
the property belonging to the Company. She stressed that he did
not return it at the first opportunity he had that is on 27 June
2006 and not even when he was told that his superior was
displeased with him. Relying on the decided cases that she quoted
TNB's Counsel submitted that the Court ought not to substitute its
own views as to what was appropriate penalty for the employee's
misconduct since the Company would be the best judge of the
seriousness of the misconduct of its employees.
( 21 ) 27/3-43/10
The cases that Counsel for TNB relied upon were cases
decided on their own facts which facts are certainly
distinguishable from the facts before me and my learned panel
members though we are guided by their dicta. The aggrieved
employee does not deny the charge preferred against him by TNB.
He however contended that extenuating circumstances led him to
take the said vehicle home without first obtaining the approval of
his superiors. The Court finds that the aggrieved employee had
been a truthful witness regardless of what TNB's Counsel might
have to say. The Court does not think that it is right to take what
was said at the DI by the aggrieved employee ought of contexts or
to read more into some of his open ended statements. For example
TNB's Counsel submitted that he had said that he took his wife on
27 June 2006 to Sg. Buloh and therefore could not return the said
vehicle on 27 June 2006 meant that he had used the said vehicle
for his own personal use in ferrying his wife in it to Sg. Buloh. The
aggrieved employee testified that he did not do so in Court. To the
Court it simply meant that he could not return the said vehicle on
27 June 2006 as he had taken his wife on the said date to Sg.
Buloh and nothing more. It obviously did not mean as submitted
by TNB's Counsel that he had used the vehicle to take his wife to
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Sg. Buloh. This interpretation is consistent with what CW.2 had
testified that he had sent his officer on 27 June 2006 to take a
snap shot of the vehicle which photograph showed that the said
vehicle was parked at the quarters at Selayang Prima which falls
within the definition of “kawasan syarikat” pursuant to clause 4.2
of the said Manual.
The issue that the Court is faced with is to decide whether
the demoting the aggrieved employee under the prevailing
circumstances was just and equitable having regard to the
substantial merits of the case. In the book, Law Relating to
Dismissal Discharge and Retrenchment Under Labour Law,
1997 edition (Reprint 1999), HL Kumar stated as follows:
“The fundamental principle that should be kept in view
while awarding punishment is that the punishment
should be commensurate with the nature of the offence.
The punishing authority has to ensure that the
punishment is not shockingly disproportionate, regard
being had to the particular conduct and the past record
of the workman charged”.
( 23 ) 27/3-43/10
It is certainly significant to consider the length of service and
the unblemish record that the aggrieved employee had. In the case
of Chartered Bank v. National Union of Bank Employees [1983]
2 ILR 111 it was held that the Claimant having had more than 26
years of blameless unblemished record of service with bank that
his dismissal was too harsh having regard to equity good
conscience and the substantial merits often case. In Goodyear
Malaysia Berhad v. National Union of Employees in Companies
Manufacturing Rubber Products [1986] 1 ILR 522 the Industrial
Court considered the length and quality of good service, a good
unattained record and past service awards and recognition as
extenuating circumstances which the employer has to take into
account before deciding the appropriate punishment. The
aggrieved employee in his long service with the Company had not
taken the said vehicle back home with him or use it for his
personal use prior to this.
( 24 ) 27/3-43/10
It is also stated in the said Manual that the clean record of
service of the workman shall be considered to reduce the
punishment that may otherwise be meted out by the Disciplinary
Committee pursuant to the said Manual for a serious misconduct
that he commits. On the facts and evidence before it the Court
opines that the aggrieved employee should not have been charged
at all though this is the management prerogative. This was the
first time he had taken the said vehicle back without approval from
his superiors. His reasons for doing so was genuine and
reasonable and should have seen as mitigating his wrong. On the
facts and evidence the Court is satisfied that the aggrieved
employee was a victim of CW.1's manipulations and scheme. The
aggrieved employee has shown that he did not have a good
relationship with CW.1 who prior to the framing of this charge
against him, took the Claimant off as a Team Leader and off shift
work until his superior intervened to reinstate him back to his
original position and working hours. CW.1 seized the opportunity
again by going hard on the aggrieved employee when he came to
know that he had taken home the said vehicle on the night of 26
June 2006. This accounts for the speed in which the show cause
letter was issued that is on the 27 June 2006 itself and neither
him nor CW.2 asking the aggrieved employee as to why he had
( 25 ) 27/3-43/10
taken home the said vehicle or for him to return the same. This
could have been easily done as CW.2 had spoken to the aggrieved
employee on 27 June 2006 and also came to know about the
matter on 26 June 2006 from CW.1. CW.2 submitted a report to
the Management. He did not think it was important that he asked
the aggrieved to bring the said vehicle back at once. It seems it did
not matter to CW.1 or CW.2 that the aggrieved employee kept the
said vehicle because it was going to strengthen CW.1's cause
against the aggrieved employee. On the facts and evidence it
seems clear that the action taken the aggrieved employee was
tainted with malice in so far as CW.1 the perpetrator of what was
to follow against the aggrieved employee was concerned. The
aggrieved employee could have been given a chance to explain
himself even before the show cause letter was issued and perhaps
warned and told not to do it again. The issuance of the show
cause letter and the ensuing DI into the charge that was leveled
against him could have been obviated if CW.1 had dealt with the
matter in a more humane manner. It was stated at the DI that
was convened against the aggrieved employee by his 3rd witness,
Encik Jalaluddin Md. Yusuf that CW.1 was a revengeful person by
nature and that he would punish a workman without first
inquiring or investigating into the matter.
( 26 ) 27/3-43/10
The Court agrees with the Union's representative's
submission that by not calling the decision maker of the
punishment meted out or any one of the panel members viz the
members of the Jawatankuasa Tertib to testify in Court during the
Hearing TNB had shut out from Court some important evidence
that could assist the Court in understanding why TNB had acted
in the manner they did. The Court cannot agree with the panel's
findings on this matter. It would seem that they ignored altogether
the extenuating circumstances that caused the aggrieved employee
to take the said vehicle back to his quarters. The Court is unable
to understand why these facts did not mitigate the misconduct of
the aggrieved employee.
The aggrieved employee's 3rd witness had inter alia testified at
the DI that he himself and several other workmen had taken TNB's
vehicle back after work to his or their respective place of residence
without the approval of his superiors but was not subjected to
such disciplinary actions. It would have been necessary for the
Court and/or its panel members to inquire from these members if
they testified at the Hearing as to why no importance was given to
( 27 ) 27/3-43/10
these facts that were adduced at the DI. If these statements were
true then TNB would be guilty of selective punishment which is
altogether an unfair labour practice and reinforces the Court's
findings that the aggrieved employee has been singled out and
victimized. It is the Court's findings that the decision maker as
well as the panel members of the DI were crucial witnesses and
without them the Court was deprived of the opportunity to seek
elucidation and clarification on some important aspects of this
dispute. So the Court is left with no alternative but to give the
benefit of the doubt to the Union and the aggrieved employee and
finds that in the light of the facts and evidence before it the
demotion was altogether harsh and unmerited. It is the Court's
view that some thoughts/consideration should have been given to
the extenuating circumstances that led to the aggrieved employee
taking the said vehicle back with him at about 11.00 pm on 26
June 2006. The DI panel seemed to have rejected the aggrieved
employee's narration of the circumstances that forced him to take
the vehicle back home with him, his contention that he did not use
the vehicle after it was parked at his quarters which was also part
of the “kawasan syarikat” where the vehicles were to be parked at
( 28 ) 27/3-43/10
all times, his 3rd witness's evidence and the possibility that he
could have been the victim of the strained relationship that existed
between CW.1 and himself. The DI panel seemed to have rejected
the fact that the aggrieved employee tried to contact his superiors
to seek their permission for the usage of the said vehicle. It is
however the Court's view that this, inter alia, are mitigating
circumstances for his action. It is the Court's findings that on the
facts and evidence that was before the panel of the DI their
findings as to the guilt of the aggrieved employee is perverse and
unsubstantiated. In any event the Court shall not consider it
bound by its decision. In the case of Hong Leong Equipment
Sdn. Bhd. v. Liew Fook Chuan [1997] 1 CLJ 665 it was held
that the findings of the DI panel is not binding on the Industrial
Court which rehears the case afresh.
( 29 ) 27/3-43/10
It is the considered view of the Court based on the facts and
evidence before it that TNB has not discharged the burden to show
that their decision demoting the aggrieved employee for the wrong
he did was justified. It is unfortunate that the Court does not
share the same view as TNB given the material facts and evidence
before it. The Court is guided by the considerations of equity, good
conscience and the substantial merits of the case. Its decision is
one that has been arrived at having perused the salient facts of the
case which the Court feels was perhaps cursorily dealt with by the
aggrieved employee's supervisor (CW.1) and the DI panel. On facts
the demotion of the aggrieved employee is unwarranted. In fact
the Court has gone a step further to say that on the facts and
evidence the aggrieved employee ought not to have been charged in
the first place. There were mitigating circumstances for taking the
said vehicle back home with him at 11.00 pm on 26 June 2006
and his return of the said vehicle at about 6.15 am on 28 June
2006. The decision taken by TNB was indeed far too harsh and
excessive let alone unreasonable. This Court is guided by the
considerations of equity and good conscience and substantial
merits of the case.
( 30 ) 27/3-43/10
On the facts the aggrieved employee was punished twice viz
he was demoted to a lower grade and was denied any increment for
5 years. This is harsh based on the facts of the case.
In the light of the conclusion it has reached based on the
totality of the facts and evidence of the case the Court with the
concurrence of its panel members decides this dispute in the
Union's farvour and orders that the aggrieved employee be restored
to his position as Pembaik Kerosakan T/Kanan (TT07) and as a
Team Leader with effect from 20 August 2007 and that the arrears
of the difference of his salary inclusive of increments, bonuses,
seniority, and all other monetary benefits be paid to him accruing
from the date of his demotion to the date hereof.
HANDED DOWN AND DATED THIS 3 DAY OF DECEMBER 2012
Signed
( DATO’ MARY SHAKILA G. AZARIAH )CHAIRMAN
INDUSTRIAL COURT, MALAYSIAKUALA LUMPUR
( 31 ) 27/3-43/10