1286 2011 Eric Goh Beng - 15099 Poor Performer
1286 2011 Eric Goh Beng - 15099 Poor Performer
1286 2011 Eric Goh Beng - 15099 Poor Performer
Before
Venue
Date of Reference
: 3.5.2007
Dates of Mention
Dates of Hearing
Representation
AWARD
A.
Introduction
1.
20(3) of the Industrial Relations Act 1967 [Act 177] (IRA) in respect of the
dismissal of Encik Eric Goh Beng Tuan (Claimant) by ABB Malaysia Sdn. Bhd.
(Company) on 18.1.2007.
B.
Brief Facts
2.
a Sales Engineer with a monthly salary of RM2,300.00 per month vide letter dated
24.10.2001 (p1-4 of CLB and COB).
that upon achievement of 100% of sales objectives, the Claimant would be entitled
to Incentive Bonus of RM5,600.00 per year with a maximum of RM11,200.00. The
Claimant's last drawn basic salary was RM2,470.00.
3.
The Claimant was issued with 2 letters by the Company on 30.11.2006, i.e.,
letter entitled Final Warning for alleged poor performance (p. 5-7 of CLB and p.6264 of COB) and Show Cause Letter for allegedly coming late to office and absence
from office (p.8 -9 of CLB and p. 65-66 of COB). Subsequently, vide letter dated
18.1.2007 (p.20 of CLB and p. 81 of COB), the Claimant's appointment was
terminated by the Company. The letter of termination is as follows:
18th January 2007
performance. Prior to that, the Company carried out a three (3) month
Performance Improvement Plan in order to achieve performance
improvement. Despite these attempts you have shown no performance
improvement.
Additionally you have committed misconduct. On 1 st December 2006, you
were issued a show cause letter for late coming and absence. You failed
to reply the letter.
On 27 December 2006, a Domestic Inquiry was conducted. You failed to
provide any satisfactory explanation for your misconduct at the domestic
inquiry. The misconduct committed by you was expressly prohibited in the
ABB Employee Handbook. You had been persistent in committing the
misconduct causing them to be grave in nature.
In the circumstances, the company finds it necessary to terminate your
service with immediate effect.
All moneys due to you will be released upon you obtaining clearance from
the Human Resource Department.
Yours sincerely,
For and on behalf of ABB Malaysia Sdn Bhd
- signed Bengt Anderson
President & Country Manager
- signed Denver Ng
Senior Manager Robotics..
C.
4.
The Claimant in the Statement of Case (SOC) denied the allegations levelled
against him by the Company. The Claimant contended that the Company's action
was perverse and mala fide whereby the Company did not comply with rule of
natural justice. The Claimant further contended that his dismissal was without just
cause or excuse and prayed that he be reinstated to his former position without loss
of seniority.
5.
Claimant's performance of his job functions was unsatisfactory since the year 2004.
3
He was appraised and cautioned of the need to improve and provided several
opportunities to improve.
(b)
(c)
(d)
6.
The Company further averred that while the Company was addressing the
(b)
(c)
(d)
(e)
Law
7.
The function of the Industrial Court in a reference under s 20 IRA has been
clearly stated by the Federal Court in the case of Goon Kwee Phoy v J & P Coats
(M) Bhd. [1981] 1 LNS 30, where Raja Azlan Shah, CJ (Malaya) (as his Royal
Highness then was) held as follows:
Where representations are made and are referred to the Industrial Court
for enquiry, it is the duty of the court to determine whether the
termination or dismissal is with or without just cause or excuse. If the
employer chooses to give a reason for the action taken by him, the duty of
the Industrial Court will be to inquire whether that excuse or reason has or
has not been made out. If it finds as a fact that it has not been proved,
then the inevitable conclusion must be that the termination or dismissal
was without just cause or excuse. The proper inquiry of the court is the
reason advanced by it and that court or the High Court cannot go into
another reason not relied on by the employer or find one for it.
[emphasis added].
8.
It is trite law that the Company bears the legal burden to prove its
Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (Krishnan Kutty).
E.
Evidence
E.1
Company's case
9.
Piravakran Somasundram (COW1), who was the panel chairman of DI. COW1 gave
5
evidence in chief vide witness statement (WS-COW1). COW1 confirmed the minutes
of DI proceedings on 27.12.2006 (p.76-80, COB).
asked to explain for his coming late and absence from work. During the DI the
Claimant had said that he didn't know that the show cause letter was very serious .
When the Claimant was told that the show cause letter was a serious issue, the
Claimant replied show cause letter was a waste of time (p.77-78 COB).
The
reason given by the Claimant was unsatisfactory and unacceptable. The DI panel
found the Claimant had ignored the show cause letter. So the Claimant was given a
week to submit a proper reply. The Claimant was advised that if he failed to do so,
management would take appropriate disciplinary action against him.
10.
Company's second witness was Fan Ooi Yuen (COW2), who assumed the
(b)
(c)
(d)
Claimant's e-mail reply to the show cause letter (p.68 COB); and
(e)
11.
of 90 days. PIP shows area for improvement and a set of plan to help the employee
to achieve a higher level of performance. Only employees who are consistently poor
performer would be placed on PIP.
12.
Company's third witness was Mr. Denver Ng Khek Tong (COW3), Claimant's
The charges
concerned his absence without leave for 7 days in November 2006 and for leaving
early from office.
13.
failed to achieve targets set by the Company. The Company revised his target (p.5-6
COB) in year 2004. The Company vide letter dated 1.9.2004 to the Claimant (p.7-8
COB) issued PIP, aimed to improve, guide and counsel the Claimant on his poor
performance. Subsequently, the Company issued letter dated 12.10.2004 (p.12-17
COB) after the implementation of PIP.
The
monthly reviews showed that the Claimant had no improvement in his performance.
7
Hence, the Claimant was issued the final warning dated 30.11.2006 (p.62-64 COB)
due to his continuous poor performance since the year 2004 as he had showed no
improvement despite all the guidance and counseling carried out by the Company to
help him perform better.
14.
follows.
issues raised by Claimant. The HR Manager had on 11.8.2006 e-mailed (p.39 COB)
the summary of that discussion to Claimant.
mailed (p.37 COB) to the Claimant to inform him that PIP would be initiated. In that
e-mail the Claimant was also informed about his misconduct in respect of his lack of
punctuality.
Claimant (p.36 COB) to remind him that he needed to attend a discussion with
COW3. Finally, in the 4 th e-mail dated 6.9.2006 the HR manager again reminded the
Claimant that the review meeting with COW3 was scheduled on 7.9.2006. COW3
testified that he was aware of the 4 e-mails to the Claimant because the HR
Manager had copied the e-mails to him.
15.
(b)
(c)
(d)
(e)
Company's Handbook (p. 15-21 COB2) which stated the policy and
instruction that all the Company's staff had to adhere to.
E.2
Claimant's case
16.
The Claimant was the sole witness for his case. He gave evidence in chief
vide WS-CLW. In his evidence in chief, the Claimant testified inter alia as follows.
The Claimant in answer to question 4 of WS-CLW testified that since he joined the
Company, he reported to Mr. Calvin Kuan, Assistant VP until April 2002, and
thereafter he reported to COW3. The Claimant said his job functions included
(a)
(b)
(c)
(d)
(e)
presentations on robots;
(f)
quotations;
(g)
follow ups;
(h)
(i)
17.
As regards his alleged poor performance and final warning letter (p.62-64
COB), the Claimant testified that no show cause letter was issued to him prior to the
final warning letter. According to the Claimant, the final warning letter was the only
warning letter issued to him. The Claimant further explained that he was given up
to end of December 2006 to meet his sales target and the Company issued a letter
9
entitled Notice of Enquiry dated 19.12.2006. He was surprised that the Company
judged him before the target date. The Claimant also said that although he had
showed improvement in his main role as a Sales Engineer, the Company kept
focusing on his In/Out records instead of his performance, which the Claimant felt
was unfair.
18.
It was also the testimony of the Claimant that he was given a target of RM2
million in sales target in Consumer Product manufacturing industries and his total
sales was RM2.2 million by 2006 year end closing account. However due to COW3's
unclear direction, he was only briefed on his responsibilities and work scope. Since
the briefings were conducted in June 2006, he had less than 6 months to achieve 12
months' target. The Claimant said he had put in great effort and dedication to the
Company to achieve a sales of RM2 million by November 2006. Hence, the Claimant
hoped that his main function in ABB could be considered despite his alleged
indiscipline.
19.
As regards the show cause letter for his lateness and absenteeism in the
month of November 2006 (p.65-66 COB), the Claimant testified that he had replied
via e-mail that he was busy following up with the customers as there were few
customers who planned to provide orders by December 2006.
According to the
Claimant as a technical Sales Engineer, he had to study system cases with these
system-integrating customers.
provided for visitors to exit the office area and as the person sitting nearest to the
door, he took the initiative to open the door for them not realizing that he was
recorded as exiting the office. The Claimant further said that he had explained to
the HR but they kept asking for whom the Claimant opened the door. The HR could
not accept the fact that he could not recall or know the visitors. The Claimant in
answer to question 14, further explained as follows:
14.
Q.
With reference to the allegation that your attendance was bad
in the month of November 2006, were you either not in the office
for the 8 hours you were required to work or not present (absent) at
all?
10
A.
It was reaching critical date-line for hitting the balancing 50%
target, all my focus was on the Company's business. I may have
over-looked this. I would say, I should be either with the end-user
customers or with the system-integrator customers.
[emphasis added].
F.
20.
(b)
F1.
21.
In this case, the answer to this issue was in the affirmative as it was not in
dispute that the Claimant's service was terminated with immediate effect vide
Company's letter dated 18.1.2007 (p.20 CLB).
F2.
22.
terminated for 2 reasons, i.e., poor performance and misconduct of lateness and
absence.
(a)
23.
that whenever a DI was conducted, the Court should first consider whether or not
the DI was valid and the inquiry notes were accurate, see the decision of Raus Sharif
J (as his Lordship then was) in the High Court case of Bumiputra Commerce
11
another High Court case of Plaintree Wood Products Sdn. Bhd v Mahkamah
[emphasis added].
24.
the Claimant in paragraph 9 SOC stated that the Company did not
conduct the DI in the manner so required and thereby was prejudiced
against the Claimant in and/or his interest, but did not plead the
particular manner in which the Claimant was prejudiced.
In this
Hotel Excelsior (M) Sdn. Bhd. [2010] 3 CLJ 310 (Ranjit Kaur )];
(b)
in this case, even if the Court finds that the DI had been validly held
and the notes of the DI proceedings were accurate, the Court should
still proceed to hear evidence of all the witnesses for both parties in
determining whether the Claimant's dismissal was with just cause or
excuse;
(d)
the Claimant was given DI's notice on 19.12.2006 (see p.72 and 73
COB) which was 8 days before DI, with particulars of the charges. The
Claimant was also informed that he would be given the opportunity to
conduct his defence by calling witnesses, tendering documents and
cross-examining Company's witnesses;
(e)
the proceedings were recorded by the secretary named Sri Vidya (p.
76-80 COB).
himself; and
(f)
(ii)
(iii)
13
(iv)
(v)
25.
manner in which the whole DI was conducted as well as the submission of both
parties, it is my considered view that rules of natural justice had been complied with.
The DI panel had acted professionally and the Claimant had been given full
opportunity to be heard. In light of the above, the Court finds that the DI was
validly conducted and DI notes were accurate.
26.
Having said that, this Court is also mindful of the decision of the Court of
Appeal case of Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan &
Other Appeals [1997] 1 CLJ 665 at page 671, wherein the court held, inter alia,
that The fact that an employer has conducted a domestic inquiry against his
workman is 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 binding upon the Industrial Court which
rehears the matter afresh. However the Industrial Court may take
into account the fact that a domestic inquiry has been held when
determining whether the particular workman was dismissed.
[emphasis added].
27.
Based the above said authorities, the Court would take into account the fact
14
that a DI was validly held, the fact that DI notes were accurate and all evidence
adduced at this trial as a whole in determining whether or not the Claimant had
been dismissed with just cause or excuse.
(i)
28.
As regards poor performance, the IC in Project Sdn. Bhd. v Tan Lee Seng
29.
In Amsteel Mills Sdn. Bhd. V Koh Cheng Siew [1997] 1 ILR 216, the IC
(b)
(c)
(see also
Sri Andaman Sdn. Bhd. v Rahmah Bidin [2001] 1 ILR 260 and
tendered in Court, the Court finds that on a balance of probabilities the Company
has established that the Claimant has been warned of his poor performance. The
Claimant was also accorded sufficient opportunity to improve. However, as regards
15
the issue whether the Claimant had failed to improve his performance, the Court
found it difficult to hold that the Claimant had not achieved his target for year 2006
in light of the following:
(a)
[The Company's final warning letter showed that the Claimant was
given up to 28.12.2006 to achieve the target of RM2 million orders and
obtain 5 new customers.]; and
(b)
: RM2 million.
16
: I agree.
Q44 : Put to you that the sales performance of the Claimant for
year 2006 was above the target set at RM 2 million.
A
: I agree.
: I disagree.
Did you
(c)
17
[emphasis added].
[The Court is of the view that the benefit of doubt ought to be given
to the Claimant.]
31.
Based on the foregoing, the Court finds that the Company has failed to prove
on a balance of probabilities that the Claimant has not achieved the target as stated
in the Company's letter dated 30.11.2006.
(ii)
32.
33.
The show cause letter (p. 8-9 CLB and p. 65-66 COB) stated as follows:
In fact record shows that in November 2006, your attendance has
deteriorated further. We have checked your absenteeism record against
the Robotics Sales Administration (Visit Schedules) database and there is
no record of customer visits on the following days:
Date
Time In
Time Out
14 November 2006
11.08 am
2.13 pm
18
15 November 2006
8.06 am
12.25 pm
16 November 2006
8.45 am
1.41 pm
17 November 2006
11.08 am
5.33 pm
22 November 2006
8.19 am
12.18 pm
23 November 2006
2.36 pm
4.31 pm
24 November 2006
2.56 pm
5.37 pm
In addition, on 8 th and 10th November 2006, you left the office at 9.39 am
and 9.34 am respectively for customer visit but failed to turn up to work
after the visit.
Your conduct is considered by management as acts of misconduct. Kindly
refer to the Company Employee handbook, Chapter 6, Topics 6.2
Misconduct, 6.2.1 Absences, 6.4 Attendance
You are hereby required to submit your written explanation to the abovementioned allegations by 7 December 2006 before 12.00 noon. If you fail
to do so, the company will proceed with further investigation and domestic
inquiry, if necessary.
34.
It was undisputed that the Claimant did not reply by 7.12.2006 (12.00 noon).
The HR officer (En. Aziz) vide email dated 12.12.2006 at 5.31 pm had informed the
Claimant as follows:
Reference made to Show Cause letter dated 30.11.2006 and the meeting
held on 1.12.2006.
35.
The Claimant replied vide e-mail dated 13.12.2006 at 9.08 am to En. Aziz as
follows:
Thanks for your mail but as you know that I was on leave and has no
access to LN till yesterday and I have some issue to follow up. So the due
date provided was actually impossible to reply in time.
Anyway I can't recall why my RFID database has recorded in such that I
was not around as stated in the letter. All that I can remember is that my
place is the nearest to the entrance and most of the time if not all I will be
the one to opening the door for people without the RFID, to go out.
I seriously ask for your attention that the RFID should only be used as a
19
36.
follows:
Please put your concern in the reply to the show cause ..
37.
The Claimant vide e-mail dated 13.12.2006 at 9.14 am to En. Aziz as follows:
My apology. I can't understand what you meant below. Kindly advice the
procedure..
38.
follows:
You are required to reply the show cause letter given. If you wish to state
anything please put it in the reply..
39.
It was undisputed that the Claimant did not reply to show cause letter.
Hence, a DI notice was issued to the Claimant. The DI notice dated 19.12.2006 (p.
11-12 CLB and p. 72-73 COB) stated as follows:
NOTICE OF INQUIRY
We refer to the show cause letter dated 30 th November 2006 and note that
you have failed to submit any reply to it. The Company therefore has
decided to hold a Domestic Inquiry to give you an opportunity to explain
yourself against the following charges:
The Charges(s):
1.
That you were absent from work without leave during working hours
on the following dates, when your attendance record was as follows:
Date
Time In
Time Out
14 November 2006
11.08 am
2.13 pm
15 November 2006
8.06 am
12.25 pm
16 November 2006
8.45 am
1.41 pm
20
17 November 2006
11.08 am
5.33 pm
22 November 2006
8.19 am
12.18 pm
23 November 2006
2.36 pm
4.31 pm
24 November 2006
2.56 pm
5.37 pm
2.
On 8th November 2006, you left the office at 9.39 am respectively for
customer visit but failed to return to work after the customer visit.
3.
The allegations against you are in breach of your express and/or implied
conditions of service, with reference to the HR Handbook, Chapter 6: Code
Conduct; Topic 6.2.1 Absence. 6.4 Attendance..
40.
The Claimant's letter of appointment (p.2 of COB and p. p.2 of CLB ) stated
Your normal working hours shall be from 8.00 a.m to 5.30 p.m., Monday
through Friday. It is the Company practice that all employees irrespective
of rank, clock-in as they enter and clock-out as they leave the office.
Lunch break is from 12.30 p.m. to 1.30 p.m...
41.
It was undisputed that Claimant's coming late and leaving the office early
were recorded in the Cardholder Events Report shown at p. 13-19 CLB and p. 8-14
COB2. The Claimant was also informed vide e-mail dated 16.8.2006 (p. 37 COB) by
VP regarding punctuality as follows:
.... Punctuality basically relates to conduct and all employees are expected
to adhere to the company's working hours. Failure to do comply
tantamount to misconduct and the company can take appropriate
disciplinary action. Every employee is expected to abide by this unless he
has the approval of his manager. In this case, your manager has clearly
not given you any approval to report for duty late. Hence, you are
expected to be at your desk at 8 am during workdays.
42.
Claimant's evidence during evidence in chief in Q and A14 as regards his bad
21
attendance in November 2006 has admitted that I may have overlooked this..
Under cross-examination, the Claimant gave the following evidence:
(a)
(b)
Q47
: Yes, I did.;
the Claimant admitted that he did not deny the charges proferred
against him. His evidence is as follows:
(c)
Q49A :
Q50
No.
Q51
No.;
the Claimant admitted that the Company had highlighted to him the
seriousness of lack of punctuality prior to the show cause; and
(d)
22
77 COB namely, I actually spoke to Jennifer Wong [VP] and the main
43.
During re-examination, the Claimant clarified that the DI panel did ask him to
submit his reply to the show cause letter but he did not do so.
44.
In this case, the Claimant had failed to submit his reply to DI panel and failed
In the
circumstances, based on the evidence adduced, the Court finds that the Company
has proven on a balance of probabilities the charges relating to Claimant's
misconduct.
(b)
45.
Having established the Claimant's misconduct, the next question the Court
has to consider is whether the proven misconduct warrants the Claimant's dismissal.
As regards lateness, Chapter 6.2 of the Company's Handbook stated as follows:
6.2.1
Absence
46.
The Court noted that during re-examination of Claimant which was almost the
close of the Claimant's case, the Claimant had raised the issue that there were
several revisions to the Company's Handbook and the revisions could have been
made without his knowledge. In this regard, the Court finds that this is clearly an
afterthought as it was never put or raised during the cross-examination of
23
Company's witnesses.
47.
In Leo Burnett Advertising Sdn. Bhd. v Teh Bee Bee [2005] 1 ILR 141,
Lateness is absence without leave for the period between the time the
employee is required to arrive and the time he actually does arrive, and as
a species of unauthorised absence, it too, is misconduct. It is no excuse
that though she was late she had always accomplished her work on time.
It is the court's view that the company has the right to demand the
claimant to be present at the starting time in the morning. It is irrelevant
that the claimant was late to work only for a few minutes. It is still
misconduct, especially when she had been warned to be punctual. The
misconduct aggravates when lateness is persistent..
48.
Employment, 2nd Edition at page 144, states that an employee can be dismissed
for habitually coming late to office.
49.
In our present case, it is sufficiently clear that the Claimant was late in coming
In these circumstances,
the Court is satisfied that Claimant's misconduct is a serious one which warrants his
dismissal.
50.
It was also the submission of the Claimant's representative that the Claimant's
dismissal was without just cause or excuse as it was riddled with mala fide and
contrary to principles of natural justice and unfair labour practice. As may be
observed, the Claimant in the SOC had also pleaded the same but failed to plead any
particulars of mala fide or unfair labour practice. As such, this Court will disregard
such an allegation (see the High Court case of Kamala Loshanee a/p
G.
Conclusion
51.
as submissions made and also having regard to equity and good conscience as well
as substantial merits of the case without regard to technicalities and legal form, this
Court finds that the Company has proven on a balance of probabilities the
misconduct against the Claimant and the misconduct was serious to warrant the
Claimant's dismissal. Accordingly, this Court holds that the dismissal of the Claimant
by the Company was with just cause or excuse.
hereby dismissed.
( TAY LEE LY )
CHAIRMAN
INDUSTRIAL COURT
KUALA LUMPUR
25