INDUSTRIAL COURT OF MALAYSIA

CASE NO: 16/4-2044/18

BETWEEN

UMAR BIN ABDULLAH

AND

TENAGA NASIONAL BERHAD

AWARD NO: 2363 OF YEAR 2019

Before : Y. A. PUAN SUMATHI MURUGIAH

- CHAIRMAN (sitting alone)

Venue : Industrial Court of Malaysia

Johor Branch

Date of Reference : 26.07.2018.

Dates of Mention : 10.09.2018; 08.10.2018; 17.12.2018;

11.04.2019; 29.04.2019.

Dates of Hearing : 27.02.2019; 28.02.2019.

Representation : Mr. Mohd Ashri bin Rais and

Mr. Mohd Yamin bin Ismail
From Messrs Mohd Ashri Rais & Co.
Counsels for the Claimant

Ms. Nur Elissa binti Baharudin and

Ms. Syazwani binti Suhaimy
From Messrs Zul Rafique & Partners
Counsels for the Respondent

1
Reference:

The reference under Section 20(3) of the Industrial Relations Act 1967 by

the Honourable Minister of Human Resources Malaysia, is regarding the

dismissal of Umar bin Abdullah (“the Claimant”) by Tenaga Nasional Berhad

(“the Company”) on 07.02.2018.

AWARD

Brief Facts

1. The Claimant was initially employed by the Company (previously

known as “Lembaga Letrik Negara”) as a “Buruh Am” with effect from

27.10.1981.

2. The Claimant’s last held position was “Penolong Juruteknik Tingkatan

Kanan “A” (Gred TT08)”.

3. By a Notice of Inquiry dated 05.06.2017, the Claimant was required to

attend a Domestic Inquiry (hereinafter referred to as “the DI”) on 18.07.2017

until 20.07.2017 to answer the charges of misconduct preferred against him, as

stated therein. The Notice of Inquiry is as shown below:

2
3
4. The DI against the Claimant did not commence as scheduled on

18.07.2017 and was postponed to 28.08.2017 due to the Claimant being

admitted to the hospital. The DI was then postponed the second time to

26.09.2017 because the Claimant was on medical leave.

4
5. The DI against the Claimant commenced on 27.09.2017 wherein the

Claimant pleaded not guilty to the charges of misconduct preferred against him.

The DI proceeded on 28.09.2017, 28.11.2017, 29.11.2017, 09.01.2018,

10.01.2018, 06.02.2018 and was completed on 07.02.2018.

6. The “Jawatankuasa Tatatertib Bagi Kumpulan Bukan Eksekutif, TNB”

(Disciplinary Committee for Non-Executive Staff) (hereinafter referred to as “the

Disciplinary Committee”) unanimously found the Claimant guilty of the

charges of misconduct preferred against him.

7. Thereafter on 07.02.2018, having considered the mitigating factors

submitted by the Claimant, the aggravating factors submitted by the “Pegawai

Pendakwa Tatatertib” and all other matters, including the nature and

seriousness of the Claimant’s misconduct, the Disciplinary Committee informed

the Claimant of the punishment of dismissal imposed upon him.

8. By a letter dated 07.02.2018 as shown below, the Company confirmed in

writing the outcome of the DI and the punishment of dismissal that was imposed

upon the Claimant with effect from 07.02.2018. By the same letter, the Claimant

was also informed of his right to appeal to the “Jawatankuasa Rayuan Tatatertib

Bagi Kumpulan Bukan Eksekutif TNB” (Disciplinary Appeals Committee for Non-

5
Executive Staff) (hereinafter referred to as “the Disciplinary Appeals

Committee”) against the punishment imposed on him within fifteen (15) days

from the date of receipt of the letter.

6
9. By a letter dated 21.02.2018, the Claimant appealed to the Disciplinary

Appeals Committee against the punishment of dismissal imposed on him by the

Disciplinary Committee.

10. By a letter dated 23.04.2018, the Claimant was informed that his

appeal was rejected and that the punishment of dismissal from service was

maintained.

The Company’s case

11. On 20.10.2016, Special Engagement Against Losses (“SEAL”) Team

(“Pasukan Seksyen Jaminan Hasil”), Southern Zone made an inspection at the

premise of a Chinese Temple bearing the address TL PM 70/4 Lot 1244, Kg. No.

15, PT Besar, Jalan Keluang, Batu Pahat, Johor (hereinafter referred to as “said

premise”).

12. During the said inspection on 20.10.2016, the SEAL Team, South Zone

found a meter installed at the said premise with illegal electricity supply

connection as the said premise was not registered in the Company’s system.

The SEAL Team then removed the meter from the said premise and

disconnected the electricity supply.

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13. The owner of the said premise, one Mr. Koh Kim Gan informed the

Claimant about the inspection and removal of meter conducted by the SEAL

Team. Then, on the same day which was on 20.10.2016, the Claimant had

visited the said premise and fixed direct electricity connection without a meter.

The electricity connection was fixed without the Company’s permission or its

authorisation.

14. On 07.02.2017, the SEAL Team visited the said premise for another

inspection and again found illegal electricity connected without a meter. Mr. Koh

Kim Gan informed the Company that he had tried to apply for user registration

with the Company, however he was approached by the Claimant who promised

him that he would assist in the user application with the Company and asked for

a payment of RM4,500.00 to do so.

15. Having reviewed the findings of investigations conducted by the

Company, specific charges of misconduct against the Claimant were drafted and

an inquiry was carried out to determine whether the Claimant was guilty on all

the charges preferred against him.

16. The Claimant was given the opportunity to exculpate and or defend

himself against all the charges preferred against him throughout the inquiry

8
including adducing relevant evidence or documents to support his defence on

the alleged lack of investigation by the Company.

17. Based on the findings of the DI held against the Claimant, the Company

decided to dismiss the Claimant from his employment as the Company felt that

the misconduct by the Claimant warranted a dismissal.

18. The Company had called five (5) witnesses to give evidence in support

of its case. The witnesses are as follows:

(i) Azizi bin Habibullah (COW-1) – “Ketua Unit Judiciary” in the

Company

(ii) Mohd Zulkhairry bin Mohd Zulkipli (COW-2) – “Juruteknik

Tingkatan Biasa, Seksyen Jaminan Hasil, Zon Selatan” in the
Company

(iii) Nuur ‘Aisyah binti Khairuddin (COW-3) – “ Pengurus Unit

Pengurusan Disiplin, Jabatan Integriti” in the Company

(iv) Nor Halim bin Hayon (COW-4) – “Pengurus LPC Billing” in the
Company

(v) Muhamad Adam bin Ahamaddariri (COW-5) – “Jurutera

Kendalian dan Senggaraan” in the Company

9
The Claimant’s case

19. In the Claimant’s written submission, the Claimant had raised his

objections to the inquiry proceedings conducted by the Company where the

Company was said to have breached the principle of natural justice for the

following reasons:

(i) The Company failed to give the Claimant the opportunity and fail to

remind him to call for witnesses for the inquiry;

(ii) The Claimant was denied the right to be present and present his case

before the Appeal Committee; and

(iii) The Company failed to produce the qualification of the members in the

Appeal Committee.

20. Whether the Company had succeeded in establishing all the charges

drafted against the Claimant. As such, the Claimant in this case had declared

and submitted that he has no case to answer and in his submission to the court

had quoted the case of UN Pandey v Hotel Marco Polo [1980] 1 MLJ 4 which

states:

10
“On the subject of no case to answer, a summary of the practice

of Court of England is to be found in the White Book at 35/7/2.

The last time the practice was judicially considered is in the Court

of Appeal decision in Storey v Storey.

There are however, two sets of circumstances under a defendant

may submit that he has no case to answer. In the one case,

there may be a submission that, accepting the plaintiff’s evidence

at its face value, no case has been established in law, and in the

other that the evidence led for the plaintiff is so unsatisfactory or

unreliable that the court should find that the burden of proof has

not been discharged.

In my judgment, it would be a desirable practice in courts to allow

a submission of no case to answer at the end of the plaintiff’s

case, without putting the defendant to his election, whether to call

evidence or not, if his submission fails. It is trite to say that we

have a young legal profession and a fused one. Most are small

practitioners and engage in many fields of law. The time and

effort put in litigation matters are diffused. Such a practice

therefore will ensure not only that there is a thorough preparation

of the case before trial, but also careful presentation of it at the

11
 hearing. Altogether, the practice will bring about a saving of

costs for the parties.”

21. Since the Claimant had declared that he has no case to answer, he did

not produce any witnesses to substantiate his case. The Claimant himself chose

not to give any evidence. The Claimant’s written submission also made no

mention of and had not addressed all the explanations, defences and

statements made in his pleadings prior to the written submission. As such, the

court is of the opinion that the Claimant in the light of his stand of no case to

answer had chosen to abandon the issues raised in his pleadings.

The Domestic Inquiry (DI)

22. The Company had conducted a DI against the Claimant on 27.09.2017,

28.09.2017, 28.11.2017, 29.11.2017, 09.01.2018, 10.01.2018, 06.02.2018 and

07.02.2018.

23. The Industrial Court is required at the onset to examine the notes of the DI

and verify whether the DI was valid, whether the notes were accurate and

whether a prima facie case has been made out against the Claimant

(Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia &

Anor [2004] 7 CLJ 77).

12
 “ The Industrial Court's jurisdiction, in instances where a domestic
inquiry has been held, was limited to considering whether there
was a prima facie case against an employee. Thus, in the present
case, the Industrial Court should have first considered whether or
not the domestic inquiry was valid and the notes accurate. In the
absence of such considerations, the Industrial Court's action in
proceeding to decide the matter without any regard to the notes of
inquiry could not be described as anything more than an error of
law.”

24. The Claimant had contended that the DI was conducted in breach of the

rules of Natural Justice. This court refers to the case of Kahan Singh v. Air

Asia Berhad [2015] 2 LNS 1303 (Award No. 1303 of 2015) where the

followings were stated:

“ In evaluating the process of the Dl, I am minded that the decision

making process must comply with the basic principle of Natural
Justice. The principle of Natural Justice composed 2 pillars which
has been explained by the Privy Council in B Surinder Singh
Kanda v. Government of Federation of Malaya [1962] MLJ 169
as:

1) The rule of hearing or principle of audi alteram

partem meaning that no one is to be condemned
unheard.

13
 2) The rule against bias; or nemo judex in causa sua
meaning no one should be a judge in his own cause...”

25. The concept stated in the case of Skypak International (M) Sdn Bhd v.

Foong Kah Tin [1987] 1 ILR 495 (Award No. 161 of 1987) is also being

referred to by this court, where the followings were stated;

“the principles of natural justice in the context of an industrial

disciplinary inquiry may be stated to be as follows:

(a) That the workman whose conduct or misconduct is being

inquired into must have a reasonable notice of the case he
has to meet.

(b) That he must have reasonable opportunity of being heard

in his own defence according to the maxim 'audi partem
alteram', and this includes, inter alia, the opportunity to face
and challenge his accusers, witnesses, and whatever
evidence there is against him.

(c) That the hearing must be by an impartial tribunal, i.e. a

person who is neither directly nor indirectly the party to the
case: 'nemo debet esse judex in propria causa', that is to say,
no man shall sit in judgment in his own cause or that in which
he has an interest.”

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26. The Claimant’s contention that the DI was in breach of natural justice

because the Company failed to give the Claimant the opportunity and fail to

remind him to call for witnesses for the inquiry.

27. In Maimunah Aminuddin’s Termination of Employment,

Understanding The Process at page 207, the author had stated the

following:

“When preparing for a domestic inquiry, one of the most important

tasks, other than informing the accused employee of the charges
and issuing a notice of inquiry, is the appointment of a panel of
inquiry. Any experienced employee can be appointment as a
panel member for the purpose of a domestic inquiry. The criteria
for selection are that the members must be:

 Unbiased and neutral;

 Not directly involved in the case, whether as witness,
complainant or in any other capacity;
 Unaware of the details of the case;
 More senior in rank than the accused employee, or if
necessary, when there is no other suitable person available, of the
same rank.”

28. Similar requirements pertaining to the criteria to be applied when selecting

DI panel members as shown above can also be found in the book, Law of

15
Dismissal by Nalini Pathmanathan, Siva Kumar Kanagasabai and

Selvamalar Alagaratnam at page 232.

29. In this case, based on the “Surat Tuduhan” dated 05.06.2017, the

contents of the letter shows that the Claimant had been informed that he was

allowed to produce inter alia witnesses in order to assist him in establishing his

case. The paragraph referred to in this letter is as below:

“Tuan adalah dibenarkan membawa apa-apa bukti, saksi, seorang rakan

sekerja (sekiranya tuan tidak menjadi mana-mana ahli kesatuan) atau

seorang wakil kesatuan (sekiranya tuan adalah ahli kesatuan) untuk

membantu tuan di dalam sesi ini.”

30. The Company had called the Chairman of the DI (COW-1) to testify at the

hearing and according to him, the Claimant was represented at the DI as stated

in COW-1’s witness statement:

“9. S: Adakah Yang Menuntut diwakili oleh mana-mana pihak dalam

Sesi Siasatan Dalaman?

J: Ya, Yang Menuntut telah diwakili oleh Naib Presiden Kesatuan

Percantuman Pekerja-Pekerja (“KPPP”) TNB, Encil Ahmad Bin

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 Abdullah dan Setiausaha Kewangan/Pengerusi Tatatertib KPPP

TNB, Encik Abdul Mutalib Gultom Bin Mohamed Salleh”

Based on the evidence given by COW-1 as stated above, the court is of the view

that since the Claimant was indeed represented at the DI, his claim that he was

not informed and reminded to call witnesses for the DI has very little weight to it.

The Claimant has also not produced any evidence to substantiate this

allegation. Therefore, it is the court’s view that the DI proceeding is valid and not

against the principles of Natural Justice.

31. Nevertheless, be as it may, the evaluation and findings on this matter will

thus be premised upon the evidence adduced and admitted during the course of

the hearing before the court as guided by the case of Dreamland Corp (M) Sdn

Bhd v. Choong Chin Sooi & Industrial Court Of Malaysia [1988] 1 CLJ 1;

[1988] 1 CLJ (Rep) 39 where the following was said:

“India, we were told, has statutory provisions similar to those in

our Act. The following passage from a Supreme Court decision in
Workmen of the Motipur Sugar Factory Private Limited v. The
Motipur Sugar Factory Private Limited AIR [1965] SC 1803 is
relevant:

Where an employer has failed to make an inquiry before

17
 dismissing or discharging a workman it is open to him to
justify his action before the Tribunal by leading all relevant
evidence before it. The entire matter would be open
before the Tribunal. It will have jurisdiction not only to go
into the limited questions open to a Tribunal where
domestic enquiry has been properly held, but also to
satisfy itself on the facts adduced before it by the
employer whether the dismissal or discharge was justified.
The important effect of omission to hold an enquiry is
merely that the Tribunal would not have to consider only
whether there was a prima facie case but would decide for
itself on the evidence adduced whether the charges have
really been made out.”

32. The court is also guided by the principles enunciated in the case of

Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals

[1997] 1 CLJ 665; where Gopal Sri Ram JCA as he then was said the following:

“The fact that an employer 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 binding upon the Industrial Court which rehears the matter
afresh. ”

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The Issues

33. Based on both the parties' case as stated above, it is apparent that the two

questions which the court has to ask itself are:

(i) was there a dismissal; and

(ii) if the answer to (i) is in the affirmative, was the dismissal with or
without just cause or excuse.

34. As stated in the case of Wong Chee Hong v. Cathay Organisation (M)

Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 by the then Supreme

Court as follows:

“ When the Industrial Court is dealing with a reference under S

20 , the first thing that the court will have to do is to ask itself a
question whether there was a dismissal, and if so, whether it was
with or without just cause or excuse.”

35. In this case, the fact of dismissal is not disputed. Therefore, the only issue

which is left to be deliberated before this court is whether the dismissal of the

Claimant by the Respondent was with just cause or excuse.

36. Having established that there is a dismissal, the principals in the Federal

Court case of Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn.

19
Bhd. & Anor [1995] CLJ 344 is now being referred. In this case it was held

that :-

“On the authorities, we were of the view that the main and only
function of the Industrial Court is dealing with a reference under
section 20 of the Act (unless otherwise lawfully provided by the
terms of the reference), is to determine whether the misconduct or
irregularities complained of by the Management as the grounds of
dismissal were in fact committed by the workman, and if so,
whether such grounds constitute just cause or excuse for the
dismissal.”

37. Based on the foregoing para 33 - 36 herein above, this court has a duty to
consider the followings:-

i. Whether the Claimant is guilty of the allegations of

misconduct levelled against her by the Company; and

ii. If the allegations of misconduct had been proven by the

Company against the Claimant, whether that misconduct
is serious enough to warrant a dismissal of the Claimant by
the Company.

The Law

38. In the case of Shell Malaysia Trading Co. Sdn Bhd v. National Union of

Petroleum & Chemical Industry Workers [1986] 1 ILR 677, the Industrial

20
Court stated that:

"The company cited various authorities from Soonavala's The

Supreme Court on Industrial Law (1979 Edition).... But one
authority relied on by the company goes on to add:
It is for the management to determine whether the act of the
workman constitutes misconduct and whether it merits an order of
dismissal. However, in determining whether there has been such
misconduct, it must have facts upon which to base its conclusions
and it must act in good faith without caprice or discrimination and
without motive of victimization or intimidation or resorting to unfair
labour practice and there must be no infraction of the accepted
rules of natural justice. When management does have facts from,
which it can conclude misconduct, its judgement cannot be
questioned provided the above mentioned principles are not
violated."

39. In the case of Ireka Construction Berhad v. Chantiravathan

Subramaniam James [1995] 2 ILR 11 (Award No. 245 of 1995) the following

was stated:

“It is a basic principle of industrial jurisprudence that in a dismissal

case the employer must produce convincing evidence that the
workman committed the offence or offences the workman is
alleged to have committed for which he has been dismissed. The
burden of proof lies on the employer to prove that he has just

21
 cause and excuse for taking the decision to impose the
disciplinary measure of dismissal upon the employee. The just
cause must be, either a misconduct, negligence or poor
performance based on the facts of the case.”

40. Having the burden of proving, the standard in which the employer has to

prove that the act of terminating the employee was carried out with just cause or

excuse is on a balance of probabilities. The principals of setting the standard of

proof can be seen in the case of Telekom Malaysia Kawasan Utara v.

Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314, wherein it was stated

as follows:-

“... it is quite clear to us that the Industrial Court should not be

burdened with the technicalities regarding the standard of proof,
the rules of evidence and procedure that are applied in a court of
law. The Industrial Court should be allowed to conduct its
proceedings as a "court of arbitration", and be more flexible in
arriving at its decision, so long as it gives special regard to
substantial merits and decide a case in accordance with equity
and good conscience.
Thus, we can see that the preponderant view is that the Industrial
Court, when hearing a claim of unjust dismissal, even where the
ground is one of dishonest act, including "theft", is not required to
be satisfied beyond reasonable doubt that the employee has
"committed the offence", as in a criminal prosecution... The
standard of proof required, that is the civil standard based on the

22
 balance of probabilities, which is flexible, so that the degree of
probability required is proportionate to the nature of gravity of the
issue.
As such, there is no question of the employer proving that the
employee had committed the offence beyond reasonable doubt.
There is ample authority for saying that the test is not whether the
employee did it but whether the employer acted reasonably in
thinking the employee did it (see: Ferado Ltd. v. Barnes [1976] 439
ICR). In order for the employer to establish reasonable grounds,
they must show that they had made reasonable enquiries and did
not form their belief hastily and that they had given employee a
fair opportunity to explain himself (see: W. Weddel & Co. Ltd. v.
Tepper[1980] IRLR 76).”

41. As a Court of arbitration, Section 30(5) of the Industrial Relations Act 1967

(Act 1977) requires the Court to decide a case in accordance with equity and

good conscience. Gopal Sri Ram JCA's decision in Harris Solid States (M)

Sdn Bhd & Ors v. Bruno Gentil Pereira & Ors (1996) 4 CLJ 747 CA had

stated that it is incumbent upon the court to have regard to substantial merits of

the case rather than to technicalities.

Evaluation and Findings

42. Since the court heard the case afresh, whether the Claimant has

committed any misconduct has to be proven by the Company by way of

23
pleadings and evidence produced in court. It is trite that the Claimant is not the

one who must prove that he was not guilty of misconduct [see the case of

Stamford Executive Centre v. Dharsini Ganesan [1986] 1 ILR 101 (Award

No. 263 of 1985). That burden is cast squarely upon the Company.

43. On the first and second charges drafted against the Claimant, the first

paragraphs of both the charges bears the alleged conduct whilst the rest of the

paragraphs of the charges are the breaches due to the conduct which

tantamount to a misconduct. Since the Claimant had declared that he has no

case to answer at the hearing in this court, the evidence given by the Company

through its pleadings, documents and witnesses will be referred to and

evaluated by the court.

44. On both these charges, the Claimant had himself admitted that he did take

the monies as per stated in the charges from one Koh Kim Gan in both the

Claimant’s “Percakapan Dalam Pemeriksaan” and during the DI as shown

below:

“The Claimant’s “Percakapan Dalam Pemeriksaan” (statements

during investigation)

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“S.5: Seorang pengguna bernama Encik Koh Kim Gan, pemilik

Tokong Nin Kuan Fu Pu Chi Miao di alamat TL PM 70/4,

Lot 1244 Kg, No. 15, Parit Besar, Jalan Kluang, Batu

Pahat, Johor mengatakan Encik telah berjumpa dengan

beliau pada 4 September 2016 di tokong beliau itu serta

meminta wang sebanyak RM4500.00 dengan alasan

untuk membantu beliau membuat permohonan masuk

bekalan elektrik ke tokong beliau itu… Apakah

penerangan Encik tentang perkara tersebut?

J.5: … Saya telah meminta wang sebanyak RM4500.00

daripada Encik Koh Kim Gan tetapi beliau hanya

memberikan kepada saya wang sebanyak RM2500.00

sahaja dengan mengatakan kepada saya bahawa saya

perlu membawa dan menunjukkan borang permohonan

masuk bekalan elektrik yang berkaitan kepada beliau

terlebih dahulu untuk tandatangani barulah wang bakinya

sebanyak RM2000.00 itu beliau berikan kepada saya.

Pada 11 September 2016, jam lebih kurang 9.30 pagi,

saya telah pergi ke tokong Encik Koh Kim Gan… dan

meminta wang baki sebanyak RM2000.00 itu daripada

Encik Koh Kim Gan dan menyimpannya.

25
 *******************

Domestic Inquiry Notes of Proceeding (Examination-in-chief )

13. PB: Dari dokumen atau ekshibit yang dibentangkan, Encik Umar ada

menerima wang sebanyak RM4500.00 dari pemilik tokong.

Untuk apakah kegunaan wang tersebut?

ST1: … Saya nak membantu pengguna atasi masalah yang

sebelum ini, tetapi pengguna ini Encik Koh, saya rasa dia

tak faham yang dia ingat benda ini untuk urusan

permohonan bekalan. Saya cuba terangkan kepada Encik

Koh macam mana boleh jadi begini. Duit itu untuk

permohonan bekalan baru yang Encik Ismail tetapkan dan

disaksikan oleh Encik Koh, rakannya dan saya.

Domestic Inquiry Notes of Proceeding (Cross examination)

4. P: Setuju atau tidak saya katakan Encik Umar menerima

wang dari Encik Koh, pemilik tokong sebanyak

RM4,500.00

STI: Setuju.

5. P: Dimanakah wang yang Encik Umar terima daripada

Encik Koh?

26
 STI: Pada saya.

6. P: Setuju atau tidak saya katakan video rakaman iaitu

PO4, Encik Umar terima wang dari rakan Encik Koh di

tokong.

STI: Setuju.

11. P: Setuju saya katakan wang RM4,500 masih lagi di

tangan Encik Umar?

STI: Setuju.”

45. The Company also produced a video recording of the Claimant receiving

and counting the monies given to him by Koh Kim Gan. COW-2 had given

evidence as follows pertaining to the video recording:

“ Examination-in-chief of COW-2

“Q: Sila rujuk jawapan anda di soalan nombor 12 pada

Penyata Saksi anda. Sila sahkan adakah video yang
akan dimainkan adalah video yang ditunjukkan kepada
anda oleh penghuni premis tersebut, Encik Koh Kim
Gan pada 20.10.2016?

A: Ya, saya sahkan.

27
 Q: Sila rujuk jawapan anda di soalan nombor 8 pada
Penyata Saksi anda dan video yang telah dimainkan.
Kenapa anda mengatakan bahawa Encik Koh Kim
Gan menyerahkan wang kepada Yang Menuntut tetapi
video tersebut hanya menunjukkan Yang Menuntut
sedang mengira duit?

A: Ini kerana penghuni premis tersebut iaitu Encik Koh

Kim Gan yang memaklumkan kepada saya bahawa
beliau telah menyerahkan wang kepada Yang
Menuntut dan beliau telah merakam Yang Menuntut
sedang mengira wang selepas menerima wang
tersebut.”

Re-examination of COW-2

“Q: Sila jelaskan kenapa anda tidak bersetuju bahawa

video itu tidak menunjukkan/ menceritakan apa-apa.
Apakah sebenarnya yang video itu ceritakan?

A: Yang Arif, dalam video tersebut menunjukkan

penyerahan wang yang sedang dikira oleh si penuntut
dan pemilik tokong menceritakan dia ada
menyerahkan sejumlah wang kepada penuntut. Wang
tersebut dikatakan untuk kos pemasangan meter di
premis tokong tersebut.”

28
46. Based on the video recording and the Claimant’s own admission of

receiving the monies as per stated in both the first and second charges, the

conduct of the Claimant has been established. Since the Claimant had not

produced any evidence to show that he had the authority to receive the monies

from Koh Kim Gan, by his conduct the Company has established the breaches

he had committd via his conduct which tantamount to a misconduct as per the

allegation made against him. As such, the court is of the view that the Company

has successfully established the allegations made against the Claimant for both

the first and second charges.

47. As for the third charge, the Claimant had admitted to the conduct as

stated in the third charge. His admission is seen as stated below:

“ Domestic Inquiry Notes of Proceeding (Cross examination)

“8. P: Setuju atau tidak Encik Umar telah membuat

penyambungan terus di tokong tersebut.

ST1: Setuju.

P: Setuju atau tidak Encik Umar telah membuat

pengakuan penyambungan elektrik secara terus di

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 tokong Encik Koh semasa lawatan Encik Nor Halim

serta pegawai penyiasat di tokong tersebut pada 7

Feb 2017.

ST1: Setuju.”

48. Since the Claimant had admitted to carrying out this conduct which

tantamount to a misconduct, as per specified in the third charge. Now, having

established the misconduct, the issue which needs to be determined is whether

the misconduct by the Claimant warrants a dismissal.

49. In this case, the Company had not only drafted all three (3) charges

against the Claimant describing the alleged conduct of the Claimant but had

also listed down for each charge the breaches committed by such a conduct

which tantamount to a misconduct in accordance to the “Prosedur Tatatertib

Tenaga Nasional Berhad (Edisi Keenam, 2013) as listed in all the three (3)

charges respectively. In the case of Arkema Pte. Ltd [Formerly Known As Elf

Atochem SA Representative Office, Malaysia] & Anor v Tang Swee Nien

[2009] 2 LNS 0738, wherein the Claimant was found guilty of demanding and

receiving monies from the Company’s agent, the Industrial Court held that the

misconduct was serious and warranted the punishment of dismissal:

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 “27. Here, in this case the Claimant had received money

from the agent and had received the said money for

his personal interest. The Claimant's contention that

Seca Dyme Sdn. Bhd. had given the Claimant interest or a

gratuitous payment for taking a loan from the Claimant

clearly showed that the Claimant had acted in

contravention of his implied term of contract.

28. Having evaluated the evidence of the Company’s

witnesses and in the Claimant’s evidence, this Court finds

that there is a prima facie case of misconduct. In equity,

good conscience and based on the substantial merits of

the case, this Court finds that the dismissal of the Claimant

by the Company was with just cause and excuse.”

50. With regards to the Third Charge i.e causing direct electrical connections

without a meter amounted to theft of electricity which caused the Company

losses in terms of revenue, the case of Tenaga Nasional Bhd v. Asharuddin

Hanifullah [2003] 3 ILR 743 is being referred to as the Industrial Court in this

case held that:

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 “[3] The illegal connection of electricity without installation

of a meter amounted to theft of electricity which

resulted in loss to the company; this was theft of the

company's property, the company being a provider of

electricity. The claimant's misconduct, a breach of items

(67) and (68) of TNB "D", was a serious misconduct in the

company's "disciplinary procedure". The claimant had

previously committed a similar misconduct in 1987. These

factors were sufficient reasons to justify the dismissal

of the claimant.

51. As such, the court concurs with the Company’s submission that the

Claimant’s action of taking and receiving monies from the Customer (the First

Charge and the Second Charge) and causing direct electrical connections

without a meter without the Company’s permission (the Third Charge) are acts

of dishonesty towards the Company amounting to gross misconduct which had

broken the trust and confidence of the Company towards the Claimant as one of

the Company’s technician.

52. As stated in B.R. Ghaiye in Misconduct in Employment Chapter XIX at

page 650 states:

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 "The relation between an employer and an employee is of a fiduciary

character. The word "fiduciary" means belonging to trust or trustee-

ship. 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."

53. In Pearce v. Foster [1886] (vol XV11) QBD 536 the Queen's Bench

Division it was held as follows:

"The rule of law is that where a person has entered into the position

of servant, if he does anything incompatible with the due or faithful

discharge of his duty to his master, the latter has a right to dismiss

him. The relation of master and servant implies necessarily that the

servant shall be in a position to perform his duty duly and faithfully,

and if by his own act he prevents himself from doing so, the master

may dismiss him.”

And Lopes LJ in the same case at page 542 stated as follows:

"If a servant conducts himself in a way inconsistent with the faithful

discharge of his duty in the service, it is misconduct which justifies

immediate dismissal."

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54. Therefore, by a careful assessment of the evidence taken as a whole,

grounded upon equity, good conscience and the substantial merits of this case

pursuant to Section 30(5) of the Industrial Relations Act 1967, it is the finding of

the court that the Company has established, on a balance of probabilities, the

appropriateness of the Company’s action against the Claimant. In the

circumstances of this case, it is the considered view of the court that it is

unreasonable to expect the Company to have continued the Claimant’s

employment.

55. The Claimant's claim is hereby dismissed.

Cases referred to :

1. UN Pandey v Hotel Marco Polo [1980] 1 MLJ 4

2. (Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia &

Anor [2004] 7 CLJ 77)

3. Kahan Singh v. Air Asia Berhad [2015] 2 LNS 1303 (Award No. 1303 of
2015)

4. B Surinder Singh Kanda v. Government of Federation of Malaya

[1962] MLJ 169

5. Skypak International (M) Sdn Bhd v. Foong Kah Tin [1987] 1 ILR 495
(Award No. 161 of 1987)

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6. Maimunah Aminuddin’s Termination of Employment, Understanding The
Process at page 207

7. Law of Dismissal by Nalini Pathmanathan, Siva Kumar Kanagasabai and

Selvamalar Alagaratnam at page 232

8. Dreamland Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial Court Of
Malaysia [1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39

9. Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals
[1997] 1 CLJ 665

10. Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45;
[1988] 1 CLJ (Rep) 298

11. Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Anor
[1995] CLJ 344

12. Shell Malaysia Trading Co. Sdn Bhd v. National Union of Petroleum &
Chemical Industry Workers [1986] 1 ILR 677

13. Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995]

2 ILR 11 (Award No. 245 of 1995)

14. Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor
[2002] 3 CLJ 31

15. Harris Solid States (M) Sdn Bhd & Ors v. Bruno Gentil Pereira & Ors
(1996) 4 CLJ 747 CA

16. Stamford Executive Centre v. Dharsini Ganesan [1986] 1 ILR 101 (Award
No. 263 of 1985)

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17. Arkema Pte. Ltd [Formerly Known As Elf Atochem SA Representative
Office, Malaysia] & Anor v Tang Swee Nien [2009] 2 LNS 0738

18. Tenaga Nasional Bhd v. Asharuddin Hanifullah [2003] 3 ILR 743

19. Misconduct in Employment Chapter XIX at page 650

20. Pearce v. Foster [1886] (vol XV11) QBD 536 the Queen's Bench Division

HANDED DOWN AND DATED THIS 27th DAY OF AUGUST 2019.

signed

( SUMATHI MURUGIAH )
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
JOHOR

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