sundram a_l muthusamy v indah water konsortium sdn bhd _ mltic

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Employment Law > Judgments & Rulings > Industrial Court

Sundram a/l Muthusamy v Indah Water Konsortium Sdn BhdAward No. 495 of 2015; Industrial Court

Date of Decision: 27 April 2015 | Source: Industrial Court

INDUSTRIAL COURT OF MALAYSIA

CASE NO.: 12/4-1897/12

BETWEEN

SUNDRAM A/L MUTHUSAMY

AND

INDAH WATER KONSORTIUM SDN. BHD.

AWARD NO.: 495 OF 2015

Before: Y.A. TUAN GULAM MUHIADDEEN BIN ABDUL AZIZ - Chairman (Sitting Alone)

Venue: Industrial Court Malaysia, Kuala Lumpur

Date of Reference: 7.12.2012

Dates of Mention: 4.2.2013, 4.3.2013, 20.3.2013, 22.4.2013, 22.5.2013, 13.6.2013, 1.7.2013, 1.8.2013, 6.1.2014, 18.3.2014,

28.11.2014, 13.1.2015, 29.1.2015

Dates of Hearing: 5.5.2014, 6.5.2014, 2.6.2014, 3.6.2014, 23.9.2014

Reference

This is a reference made under section 20 (3) of the Industrial Relations Act 1967 (the Act) arising out of the dismissal of Sundram a/l

Muthusamy (hereinafter referred to as "the Claimant") by Indah Water Konsortium Sdn. Bhd. (hereinafter referred to as "the Company") on

5 March 2012.

AWARD

[1] This is a reference by the Honourable Minister of Human Resources made under Section 20(3) of the Industrial Relations Act 1967

regarding the dismissal of Sundram a/l Muthusamy ("the Claimant") by Indah Water Konsortium Sdn. Bhd. ('the Company") on 5 March 2012.

Brief Facts Of The Case

[2] The Claimant joined the Company on 5 January 2004 as a Supervisor (Grade 7) at the Desludging Department at Seremban Branch. TheClaimant's last drawn basic salary was RM2,177.00 per month.

[3] On 3 January 2012 the Company issued a Show Cause Letter to the Claimant which is reproduced as follows;

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[4] The Claimant replied to the Show Cause Letter as follows;


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[5] The Company being unsatisfied with the Claimant's explanation, issued a Notice of Domestic Inquiry and the charges on 18 January

2012. Domestic Inquiry was held on 8 February 2012 which was recorded on tape and the transcript enclosed at pages 54-94 of COB.

[6] The Inquiry Panel found the Claimant guilty of all the three charges.

[7] The Company then issued a dismissal letter dated 5 March 2012 as follows;


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The Law


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[8] As to the function of the Court when handling a reference under s. 20 of the Industrial Relations Act 1967 ("the Act"), the Federal Court in

Wong Yuen Hock v. Syarikat Hong Long Assurance Sdn Bhd and Another Appeal [1995] 3 CLJ 344 at page 352 enunciated;

"On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with the reference under s. 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.".

[9] The same principle was followed by the Federal Court in Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449 in relation to the two-fold function of the Court.

[10] From the aforesaid legal proposition, the issues to be determined by the Court are:

(i) whether the misconduct complained of by the Company was in fact committed by the Claimant i.e., whether the Claimant is guilty of

the alleged misconduct; and

(ii) if so, whether the proven misconduct constitutes just cause or excuse for the bank to dismiss the Claimant i.e., whether dismissal is

the appropriate punishment.

[11] The learned author, CP Mills in Industrial Dispute Laws In Malaysia (2nd edn.) at page 78 said;

"Unless there is clear evidence to support the charge of misconduct, the employer's decision against the workman will not be

upheld by the Court. Mere suspicion is not enough. Even where there were reasonable grounds before the employer for concluding that

the workman was guilty of the misconduct alleged against him, but in the proceedings before the Court the evidence does notpermit any firm conclusion that the workman did commit the acts in question, the dismissal will not be sustained.

[Emphasis Added]

[12] On the authorities cited, it is clear that the onus is on the bank on a balance of probabilities to produce cogent and convincing evidence

to prove that the Claimant committed the alleged misconduct.

Evaluation And Decision

[13] The Claimant were alleged to have committed the following 3 charges, i.e. in essence;

(i) made overtime claims for September 2011, which was false;

(ii) made meal allowance claims for September 2011 which were false by showing distance travelled more than the actual distance;

(iii) failed to reply to the Show Cause Letter as required, though given reasonable time period to do so, i.e. 7 days to reply but tookadditional 3 days without seeking an extension.

[14] As regard the first charge, the false overtime claim can be found at page 114 of COB. Mohd Iskandar Dzulkarnain ("COW-1") testified

that on 7 September 2011 the Claimant had claimed 2.33 hours for overtime. However, from the computer print out (pages 115-124 of COB)

of the Industrial and Financial System ("IFS") indicates that there were no record of any activities done by the Claimant. All the recordings of

the IFS were entered by the Claimant himself. Based on the IFS it is clear that the Claimant had made the following overtime claims for the

month of September;

(i) on 7 September 2011 - 5.10pm to 7.30pm for 2.33 hours to do IFS works. But as per IFS works, "Entered Date" at pages 119 and 120

of COB prepared by the Claimant, there was no IFS work done on 7 September 2011;

(ii) on 8 September 2011, claims overtime from 5.10pm to 7.30pm for 2.33 hours to do IFS work. However as per IFS, "Entered Date" at

pages 119 and 120 of COB, prepared by Claimant, there was no IFS work done on 8 September 2011;

(iii) on 15 and 21 September 2011, Claimant claimed to have worked overtime 2.33 hours and 1.67 hours to do IFS work. But at pages

115 of COB, "Entered Date", there is no IFS work done on the said two dates at all;

(iv) on 28 September 2011, Claimant claimed to have worked over time of 2.5 hours to do IFS work but looking at pages 117 - 118 of

COB, he did IFS work only during normal working hours and no overtime done on the stated date.

[15] COW-1 further tendered the summary of the Claimant's attendance (page 126 of COB) for the month of September 2011. The 1st

column is the Claimant's Overtime Claim, 2nd column "the time that the office were closed by the last person" and the second last column is

"the recording of the ADC system" i.e. a system that records the exit and enter the office. The last column is the time the Claimant exited the

office.

[16] Based on the summary and comparing the Claimant's overtime claim with the last recording of the exit by the Claimant through the ADC

system clearly shows that the Claimant had made several overtime claim after his exit time on several dates in September.

[17] The above are written records which speaks for itself. It clearly shows that the Claimant had made the false overtime claims for the

month of September 2011.

[18] The Claimant in his evidence merely denied the records and states that he actually did the overtime. He testified as follows;


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Q 50: Refer to page 114 of COB; on 7.9.2011 you claim overtime from 5.10 - 7.30 pm - 2.33 hours; purpose: IFS work and collect CSR

enquiry, and now look at pages 115 - 124 and in particular at page 119, there is no work done between 5.10 - 7.30pm, therefore your

claim is false?

A: I did IFR work but no record at page 119.

Q 51: Refer to page 114 of COB, 8.9.2011 - overtime claim from 5.10pm - 7.30pm - IFS work. Refer to page 115, there is no entry date

for 8.9.2011?

A: I did IFS work but no entry date. I am not very sure.

Q 52: Why 7.9.2011 and 8.9.2011 entry missing?

A: The system is not perfect system. All supervisor facing this problem.

Q 57: Page 114 of COB; 15.9.2011 and IFS Report; Entered Date at the last column at page 115, 4th line is 9.8.2011 and the next is on

26.9.2011. Is there any work done on 15.9.2011?

A: I do the work but there is no entered date, i.e. it is not recorded because may be somebody manipulate.

[19] Based on the above Claimant's evidence, it is obvious to the Court that the Claimant's reply to the 1st charge is a bare denial without any

supporting evidence. He alleged that he did the IFS work but it was not entered into the system because the system is not a perfect system

and later contends that somebody might has manipulated the system. However, the Claimant failed to adduce any evidence to the effect and

further these contention of the Claimant was not pleaded. It is clearly an afterthought.

[20] For the above reason, this Court finds the Claimant guilty of the first charge.

Second Charge

[21] The Claimant is alleged to have make false meal allowance for September 2011. On 10 September 2011, 19 September 2011, 26

September 2011 and 28 September 2011, the Claimant claimed RM12.00 each when under the Company's rules, he did not qualify for meal

allowance. According to the Company rules, an employee must travel in excess of 50km one way and more than 4 hours performing duty to

qualify for meal allowance. The Claimant was alleged to falsely recorded mileage travelled in excess of 100km to qualify for the said

allowance.

[22] COW1 testified on the Claimant's mileage and meal allowance claim which were false as follows;

(i) for example page 112, 10 September 2011 he claimed travelling from Reporting Centre (RC) Tasik Jaya to Padang Kota and claimed

102km (return trip) and RM12.00 meal allowance; but the actual distance is 40km one way and 80km return trip. Therefore the mileageand meal allowance are false;

(ii) page 112, 19 September 2011 he claimed travel from Seremban Unit Office to RR Kota, 116km return and RM12.00 meal allowance

whereas the actual distance is 40km one way and 80km return. Therefore his mileage and meal allowance claims are false;

Further, on page 105, during the investigations, Claimant admitted that he travelled further away towards Tampin for meals (not for duty)

thus exceeding 50km and thus to qualify for meal allowance;

(iii) page 112, 21 September 2011 he claimed travel from Seremban office to RR Kota 116km. return, and RM12.00 meal allowance

whereas the actual distance is 40km one way and 80km return;

However, during his investigations he admitted that he deliberately travelled further in excess of 50km to have meals and to qualify for

meal allowance;

(iv) similarly at page 113, 26 and 28 September 2011 where he claimed 102km each trip and meal allowance, are also equally false.

[23] COW-3, Encik Munawir, the Claimant's immediate superior agreed that he endorsed the Claimant's claims at pages 111 to 113 of COB in

trust and good faith as he did not suspect anything at that point of time. He only found serious irregularities during the investigations on or

about 10 October 2011 on the Claimant's monthly claims for September 2011. The investigation report is at pages 105 to 107 of COB. COW-

3 were of the view that the claims were "wrongful and highly irregular".

[24] The Claimant in his evidence admitted that he knew that only when he travelled a distance above 50km (one way) or 100km (return), he

can claim meal allowance. At the Domestic Inquiry he states;

"Only when my distance is above 50km that I claim but it is up to the Company's prerogative to approve or otherwise. If I can't claim then

I slash out that date.".

[25] In the Investigation Report and interview with the Claimant (pages 105 to 107 of COB) under the caption "Jawapan dari Sundram",

Claimant states;

"Untuk makan tengah hari, saya pergi keluar ke arah Tampin menyebabkan jumlah mileage menjadi lebih daripada 50km (pergi - balik

lebih 100km) dan ini melayakan membuat tuntutan elaun makan tengah hari.".


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[26] The above evidence is clear that the Claimant had travelled further away to Tampin to have his lunch and had claimed for meal

allowance although the travel was not for official duties but to have lunch. In this regard the Claimant during the cross-examination testified as

follows;

Q 38: For meal allowance, did you travel further away to Tampin to increase your mileage to make up to 50km?

A: Depends on my HOS - immediate superior approval.

Q 39: Can you show any proof to show your HOS approval?

A: That's why he signed the Meal Allowance claim.

Q 40: You recall the evidence of HOS. He trusted you. Only after the investigation the truth came out?

A: My HOS knows better of km and distance and the location one work. And that's why he signed the claim.

Q 49: How would you explain that you went further to Tampin to claim for the Meal Allowance?

A: HOS is aware of this.

[27] Claimant is attempting to justify the claim by stating that his HOS (COW-3) has approved his meal allowance, thus the claim is justified.

COW- 3 has earlier testified that he approved the claim based on trust and good faith. Claimant has worked with the Company for more than

9 years and is fully aware of his entitlement for meal allowance is only for official distance of 50km and 4 hours working on site. COW-3

further states that the Claimant can go anywhere to eat during his lunch time but it is personal and non-official. Thus, he cannot claim the

mileage for non-official trip.

[28] Based on the above reasons, the Court find the Claimant guilty of the second charge.

Third Charge.

[29] The Claimant is charged for his failure to reply to the Show Cause Letter within the 7 days but took additional 3 days without seeking an

extension.

[30] During the Domestic Inquiry, after the charge was read to him, the Claimant admitted that he was late to reply and it was his fault. The

Panel of Inquiry then recorded it as a plea of guilty by the Claimant of the third charge. Claimant has also failed to seek any extension of time

to reply.

[31] It is not disputed that the Claimant had not replied to the Show Cause Letter within the 7 days time to do so but took additional 3 days

without seeking an extension from the management. The Claimant explained that he was busy with the staff appraisal and had informed his

superior to provide further time to reply. However COW-3 has denied that the Claimant has requested for an extension of time from him.

[32] The Court find the Claimant guilty of third charge.

Whether Dismissal Was The Appropriate Punishment

[33] The Claimant had over the years been issued Warning Letters and Stern Warning Letters because of his misconduct. The letters are set

out as follows;

(i) Warning Letter dated 9 March 2010.

(ii) Warning Letter dated 23 September 2009.

(iii) Stern Warning Letter dated 19 November 2008.

(iv) Warning Letter dated 24 October 2007.

(v) Stern Warning Letter dated 2 October 2007.

(vi) Reminder Letter dated 4 July 2007.

(vii) Warning Letter dated 11 January 2007.

(viii) Reminder letter dated 25 September 2006.

(ix) Letter of Complaint from IWK Employee Union dated 12 February 2010.

(x) Police Report on Claimant by Dr. Rajindeer Singh dated 22 November 2006.

(xi) Police Report on Claimant by Munawir Bin Mohamed - IWK employee dated 15 February 2012.

(xii) Police Report on Claimant by Munawir Bin Mohamed dated 10 January 2012.

[34] All the above past misconducts, punishments, warnings and police reports are exhibited from pages 1 to 53 of COB.

[35] In the case of Kamala Loshanee Ambalavanar v. Jaffnese Cooperative Society [1998] 1 LNS 339, Nik Hashim J held as follows;


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"... The previous warnings could not be considered as 'spent', even though the final warning was issued some twelve (12) years prior to

the incident. Since the final warning was breached by the Applicant's misconduct, the Respondent society could not be expected to

overlook the past bad record of the Applicant and to continue itself to the particular incident of this case. Thus the learned Chairman of

the Industrial Court was right to take the past misconduct as a relevant consideration for the purpose of determining the

appropriate punishment for the subsequent misconduct.".

[Emphasis Added]

[36] In the case of Southern Bank Bhd v. Azmi Ali [2003] 1 ILR 614, the Industrial Court referred to the Law of Dismissal by SuranjanChakraverti 6th edn. at page 617 where the learned author stated;

"That the Court in Madura etc, Devasthanam v. Sundaram Annavi and others, expressed;

No doubt when an offence has been condoned or dealt with and the offender retained in service, it is not open to the employer to

subsequently dismiss him for the same offence, but if the servant offends again, it is perfectly justifiable for the employer to

consider the prior offences in determining in what manner he should be dealt with for the subsequent offences.".

[Emphasis Added]

[37] The dishonest act of the Claimant in submitting the false mileage claim and overtime claim has breached the fiduciary relationship of

trust between the Company and the Claimant.

[38] B.R. Ghaiye in his book on Misconduct In Employment at pages 650 and 651 had the following to say on the relationship between an

employer and an employee;

"The relation between an employer and an employee is of fiduciary character. The word "fiduciary" means belonging to trust or

trusteeship. It means that whenever an employer engages a worker he puts trust that the worker will faithfully discharge the service and

protect and further the interest of the employer. A fiduciary relationship exists between employer and employed; (a) whenever the former

entrusts the latter with property, tangible or intangible, e.g., confidential information and relies upon the other to deal with such property

for the benefit of the employer, or for purposes authorized by him, and not otherwise, (b) whenever the employer entrusts the employee

with a task to be performed, e.g., the negotiation of a contract, and relies on the servant or agent to procure the best terms available. If

the employee does an act which is inconsistent with the fiduciary relationship, then that will be an act of bad faith for which his services

can be terminated. The said obligation is an implied obligation, i.e. an obligation attached to every contract of service even when

there is no express mention in the contract. The obligation to serve his master with good faith and fidelity arises out of

necessary implication which is deemed to be engrafted on each and every contract of service. This implied condition is

recognized on account of realization of the need of full confidence between the employee and the employer and this implied condition

continues even after an employee has left the service. If an employee continues in service, then one of the obvious remedies for breach

of faith is to dismiss him.".

[Emphasis Added]

[39] In the light of what the Claimant did, the Company could no longer place its trust and confidence in the Claimant. The trust and

confidence that the Company had in the Claimant had diminished by virtue of his misconduct. What he did in submitting the false mileage and

overtime claim is an act of bad faith which is inconsistent with his fiduciary relationship with his employer. The Court is of the view that under

the circumstances and after taking the Claimant's past misconduct into account, the punishment accorded to the Claimant is not unduly harsh

and is justified.

Conclusion

[40] Going by equity and good conscience and the substantial merits of the case, this Court holds that the Company had just cause or

excuse to dismiss the Claimant. The Company had adduced cogent and convincing evidence to prove, on a balance of probabilities, the guiltof the Claimant in the alleged misconduct. There is therefore no reason for this Court to interfere in and overturn the decision of the Company

in dismissing the Claimant.

[41] Accordingly, the claim of the Claimant is hereby dismissed.

HANDED DOWN AND DATED THIS 27 DAY OF APRIL 2015

...

GULAM MUHIADDEEN BIN ABDUL AZIZ

CHAIRMAN

INDUSTRIAL COURT, MALAYSIA

KUALA LUMPUR

Mr. V. Kanagaratnam, From Malaysian Trades Union Congress (MTUC), Representative for the Claimant

Mr. T.M. Varughese, From Messrs T.M. Varughese & Co Counsel for the Company


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sundram a_l muthusamy v indah water konsortium sdn bhd _ mltic

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