Ganason Al Arumugam V Malaysian Resources Corporation Berhad (2023) 4 ILJ 66

JOBNAME: No Job Name PAGE: 1 SESS: 3 OUTPUT: Mon Dec 11 13:46:43 2023
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66 Industrial Law Journal [2023] 4 ILJ
Ganason a/l Arumugam v Malaysian A

Resources Corporation Berhad
INDUSTRIAL COURT (KUALA LUMPUR) — AWARD NO. 404

B
OF 2023
PARAMALINGAM A/L J DORAISAMY C
23 FEBRUARY 2023
Labour Law — Industrial Court — Unfair dismissal — C

Whether claimant was constructively dismissed — Whether
the misconduct of the claimant was established — Whether
claimant’s dismissal was with just cause or excuse —
Industrial Relations Act 1967 ss 20(3) and 30(5)
D
This was a claim by the claimant arising from his dismissal
by the company on 21 November 2019. Vide letter dated 5
May 2017, the claimant was offered employment by the
Malaysian Resources Corporation Berhad (‘first company’)
as Senior Manager, Special Projects for a further seven E
months, commenced from 1 April 2017 and ending on 31
October, which the claimant accepted. Vide letter dated 17
October 2018, the claimant was informed that his
employment with the first company as Senior Manager,
Special Projects, would come to an end, upon the expiry of F
his fixed term contract of employment on 31 October 2018.
The claimant regarded the first company decision to not
renew his fixed term contract of employment upon its expiry
on 31 October 2018 as a dismissal without just cause and
excuse and proceeded to file representations for G
reinstatement to his former position, without loss of salary,
status and benefits, monetary or otherwise, at the Industrial
Relations Department. Pursuant to the efforts of the
Industrial Relations Department to resolve its dispute
between the first company and the claimant, a H
Memorandum of Agreement dated 20 February 2019 was
entered into by the first company, the claimant and the
Penolong Kanan Pengarah, Perhubungan Perusahaan
wherein the first company offered to employ the claimant to
a new post as Manager, Legal in the MRCB Builders Sdn Bhd I
(‘second company’). On 5 April 2019, the claimant was
issued with a Show Cause and Suspension Letter and was
suspended from service with effect from 5 April 2019, on five
allegations of misconduct, within six weeks of his
//ilj/2023/4/ilju2023_00119
Ganason a/l Arumugam v Malaysian Resources

Corporation Berhad (Paramalingam a/l J
[2023] 4 ILJ Doraisamy C) 67
A employment pursuant to the Memorandum of Agreement

dated 20 February 2019. The Notice of Domestic Inquiry
was conducted and the claimant was informed that the
Domestic Inquiry Panel had found him guilty on all five
charges preferred against him and that, in view of the
B seriousness of the misconduct, the claimant was dismissed
with immediate effect.
Held, dismissing claim:

(1) The court found that the relationship between the first
C
company and second company, and in particular with
regards to the claimant’s employment, was indeed
intertwined in that they operated as a single economic
unit. Thus, despite the second company being on
paper stated as the employer of the claimant at the
D
time of his dismissal, nevertheless the first company
and the second company were for all intents and
purposes the claimant’s joint employers and would be
jointly liable in the event the claimant’s dismissal was
found to have been made without just cause or excuse
E
(see para 97).
(2) The company had succeeded to prove on a balance of
probabilities that the claimant was guilty of all the five
charges set out in the charges and Notice of Domestic
F Inquiry. The claimant’s acts and/or omissions
constituted gross negligence and was not
commensurate to what was reasonably expected
from a Legal Manager with a vast experience in law.
The court was satisfied and do hereby found that the
G claimant’s dismissal by the first company/second
company was done with just cause and excuse. (see
paras 139, 144–145).
[Bahasa Malaysia summary

H Ini adalah tuntutan oleh penuntut akibat pemecatannya
oleh syarikat itu pada 21 November 2019. Melalui surat
bertarikh 5 Mei 2017, penuntut ditawarkan pekerjaan oleh
Malaysian Resources Corporation Berhad (‘syarikat
pertama’) sebagai Pengurus Kanan Projek Khas selama
I tujuh bulan, bermula 1 April 2017 dan berakhir pada 31
Oktober yang diterima oleh penuntut. Melalui surat
bertarikh 17 Oktober 2018, penuntut dimaklumkan bahawa
pekerjaannya dengan syarikat pertama sebagai Pengurus
Kanan Projek Khas akan berakhir setelah tamat kontrak
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tempoh tetap pekerjaannya pada 31 Oktober 2018. A

Penuntut menyatakan bahawa keputusan syarikat pertama
untuk tidak memperbaharui kontrak pekerjaan jangka
tetapnya apabila tamat tempoh pada 31 Oktober 2018
sebagai pemecatan tanpa sebab dan alasan yang adil dan
terus memfailkan tindakan untuk mengembalikan semula B
jawatan terdahulunya, tanpa kehilangan gaji, status dan
faedah, kewangan, di Jabatan Perhubungan Perusahaan.
Jabatan Perhubungan Perusahaan menyelesaikan
pertikaian antara syarikat pertama dan penuntut dengan
menandatangi Memorandum Perjanjian bertarikh 20 C
Februari 2019 antara syarikat pertama, penuntut dan
Penolong Kanan Pengarah, Perhubungan Perusahaan di
mana syarikat pertama menawarkan untuk melantik
penuntut ke jawatan baru sebagai Pengurus
Undang-undang di MRCB Builders Sdn Bhd (‘syarikat D
kedua’). Pada 5 April 2019, penuntut telah dikeluarkan
Surat Tunjuk Sebab dan Penggantungan dan digantung
daripada perkhidmatannya berkuat kuasa 5 April 2019, atas
lima tuduhan salah laku, dalam tempoh enam minggu
selepas bekerja menurut Memorandum Perjanjian bertarikh E
20 Februari 2019. Notis Siasatan Dalaman telah dijalankan
dan pihak penuntut dimaklumkan bahawa Panel Siasatan
Dalaman telah mendapati beliau bersalah atas kelima-lima
pertuduhan yang dikenakan terhadapnya dan
memandangkan keseriusan salah laku itu, penuntut telah F
diberhentikan secara serta-merta.
Diputuskan, menolak tuntutan:

(1) Mahkamah mendapati bahawa hubungan antara G
syarikat pertama dan syarikat kedua, khususnya
berkaitan dengan pekerjaan penuntut, adalah saling
berkaitan kerana mereka beroperasi sebagai satu unit
ekonomi tunggal. Oleh itu, walaupun syarikat kedua
dinyatakan sebagai majikan penuntut di atas kertas H
pada masa pemecatannya, syarikat pertama dan
syarikat kedua adalah majikan bersama penuntut dan
akan bertanggungjawab secara bersama sekiranya
pemecatan penuntut didapati dilakukan tanpa sebab
atau alasan yang adil (lihat perenggan 97). I
(2) Pihak syarikat telah berjaya membuktikan pada
imbangan kebarangkalian bahawa penuntut bersalah
terhadap kelima-lima pertuduhan yang dinyatakan
dalam pertuduhan dan Notis Siasatan Dalaman.
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A Tindakan dan/atau peninggalan penuntut merupakan

kecuaian besar dan tidak setimpal dengan yang
diharapkan secara munasabah daripada Pengurus
Undang-Undang yang mempunyai pengalaman luas
dalam bidang undang-undang. Mahkamah berpuas
B hati dan dengan ini mendapati bahawa pemecatan
penuntut oleh syarikat pertama / syarikat kedua
dilakukan dengan sebab dan alasan yang adil (lihat
perenggan 139, 144-145).]
C Cases referred to
Ahmad Zahri Mirza Abdul Hamid v AIMS Cyberjaya Sdn Bhd
[2020] 5 MLJ 58, FC (refd)
Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129, FC
D (refd)
Hotel Jaya Puri Bhd v National Union of Hotel, Bar &
Restaurant Workers & Anor [1980] 1 MLJ 109; [1979] 1
LNS 32 (refd)
Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 3 MLJ
E
78; [2021] 10 CLJ 663, FC (refd)
Milan Auto Sdn Bhd v Wong Seh Yen [1995] 3 MLJ 537;
[1995] 4 CLJ 449, FC (refd)
Rusli Luwi v RM Top Holdings Sdn Bhd & Ors [2004] 6 CLJ
F 353, HC (refd)
Skyworld Development Sdn Bhd v Zalam Corporation Sdn
Bhd [2019] MLJU 162, HC (refd)
Stamford Executive Centre v Dharsini Ganeson [1986] ILR
101, IC (refd)
G
Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd
And Another Appeal [1995] 2 MLJ 753, FC (refd)
Legislation referred to
H Companies Act 2016 s 466(1)(a)
Construction Industry Payment And Adjudication Act 2012 s
9
Industrial Relations Act 1967 ss 20, 20(1), (3)
I P. Jayasingam together with Reyna Lim Khong Yen (Zul

Rafique & Partners) counsel for the claimant.
Rutheran Sivagnanam together with Teh Wen Min (The
Chambers of R. Sivagnanam & Assoc) Counsel for the
Company.
//ilj/2023/4/ilju2023_00119
A
Paramalingam a/l J Doraisamy C:
REFERENCE:
This is a reference made under Section 20 (3) of the
B
Industrial Relations Act 1967 (Act 177), arising out of the
dismissal of Ganason a/l Arumugam (hereinafter referred
to as “the Claimant”) by Malaysian Resources
Corporation Berhad (hereinafter referred to as “the 1st
Company”) and MRCB Builders Sdn Bhd (hereinafter
C
referred to as “the 2nd Company”) on 21 November 2019.
AWARD
[1] The Ministerial reference in this case required the D

Court to hear and determine the Claimant’s complaint of
dismissal by the Company on 21 November 2019.
I. PROCEDURAL HISTORY
E
[2] The Court received the letters pertaining to the
Ministerial reference under section 20(3) of the Industrial
Relations Act 1967 on 17 July 2020.
[3] The matters were fixed for mention on 13 August F

2020, 25 August 2020, 7 September 2020, 12 October
2020, 23 October 2020, 31 May 2021 and 8 September
2021 by the then Chairman of Court 15 and subsequently
Court No. 6, i.e. Puan Reihana Bte. Abd. Razak.
G
[4] Upon hearing an application by the Claimant on 7
September 2020, both matters were then consolidated vide
Award No. 1271 of 2020.
H
[5] The trial proceeded before learned Chairman, Puan
Reihana Bte. Abd. Razak on 15 February 2021, 16 February
2021, 18 May 2021, 3 October 2021, 11 January 2022, 13
January 2022, 3 March 2022 and 7 April 2022.
I
[6] The file was then transferred to Court No. 22 to be
heard before me due to Puan Reihana Bte. Abd. Razak’s
transfer to the Advisory Board, Prime Minister’s Department
on 16 May 2022.
//ilj/2023/4/ilju2023_00119

A [7] The trial thereafter continued before me on 23 May

2022, 30 May 2022, 13 July 2022 and concluded on 9 August
2022.
II. The Parties’ Position On The Merits

B
(a) The Claimant
[8] By a letter dated 29 August 2014, the Claimant was

C offered and accepted permanent employment with the 1st
Company as Senior Manager, Legal in Job Grade 6. The
Claimant commenced his service with the 1st Company on
15 September 2014.
D [9] After successfully serving his probationary period, the

Claimant was confirmed in his employment with the 1st
Company vide letter dated 11 March 2015 as a Senior
Manager, Legal effective from 15 March 2015.
E
[10] Pursuant to a request by Mr. Samarasam a/l
Krishnan (General Manager, Integrity and Discipline
Department; COW-1) and Mr. Amarjit Singh Chinna (Chief
Corporate Officer) of the 1st Company on 6 September
F 2016, purportedly on the basis that the Claimant’s
relationship with his immediate successor, Pn. Nur Shazlin
binti Ahmad Kushairi (General Manager, Legal Department),
had broken down and that she did not want the Claimant to
work in her department and wanted immediate action to be
G taken against the Claimant, both COW-1 and Mr. Amarjit
Singh requested the Claimant to resign from service and
that the Claimant will be offered a fixed term contract of
employment for a period of 2 years after he resigns from
service and further that his contract will be renewed every 2
H years so long as the Claimant’s performance was up to the
expectations of the 1st Company. The Claimant thereafter
resigned from service with effect from 16 September vide
letter dated 12 September 2016.
I
[11] Vide letter dated 15 September 2016, the 1st
Company offered the Claimant a fixed term contract of
employment as Senior Manager, Special Projects, for a
period of 6 months commencing on 1 October 2016 and
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ending on 31 March 2017, notwithstanding its promise to A

offer the Claimant a fixed term contract of employment for a
period of 2 years.
[12] When the Claimant queried as to why his fixed term

contract of employment was only for a period of 6 months B
when MRCB had promised him a fixed term contract of
employment of 2 years, COW-1 informed the Claimant that
the 6 months period was merely a probationary period.
COW-1 informed the Claimant not to worry about the 6
months period and reassured the Claimant that if his C
performance was up to the 1st Company’s expectations, his
contract of employment would be extended and renewed
every 2 years. Notwithstanding the breach of the promise
made by MRCB, the Claimant accepted the offer of the fixed
term contract of employment for a period of 6 months. D
[13] Vide letter dated 5 May 2017, the Claimant was

offered employment by the 1st Company as Senior Manager,
Special Projects for a further 7 months (wrongly stated as 6
months), commencing from 1 April 2017 and ending on 31 E
October, which the Claimant accepted.
[14] Vide letter dated 30 October 2017, the Claimant was

offered employment by the 1st Company as Senior Manager, F
Special Projects, for a further period of 12 months,
commencing from 1 November 2017 and ending on 31
October 2018, which the Claimant accepted. In this regard,
the Claimant was informed that the salary would be
RM13,500.00 per month and that he would be entitled to a G
monthly fixed allowance of RM2,750.00 together with an
employer’s contribution to EPF at the rate of 13%.
[15] Vide letter dated 26 March 2018, the Claimant was

informed that, with effect from 1 January 2018, his basic H
salary was revised from RM13,500.00 to RM14,175.00. By
the same letter, the Claimant was informed that he had been
awarded a discretionary performance bonus (for the year
2017), in the sum of RM22,005.00, pro- rated according to
the length of his service in the year 2017 with the 1st I
Company.

informed that his employment with the 1st Company as
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A Senior Manager, Special Projects, would come to an end,

upon the expiry of his fixed term contract of employment on
31 October 2018.
[17] The Claimant regarded the 1st Company’s decision to

B not renew his fixed term contract of employment upon its
expiry on 31 October 2018 as a dismissal without just cause
and excuse and proceeded to file representations for
reinstatement to his former position, without loss of salary,
status and benefits, monetary or otherwise, at the Industrial
C Relations Department, pursuant to the provisions of section
20 of the Industrial Relations Act 1967.
[18] Pursuant to the efforts of the Industrial Relations

D Department to resolve its dispute between the 1st Company
and the Claimant, a Memorandum of Agreement dated 20
February 2019 was entered into by the 1st Company, the
Claimant and the Penolong Kanan Pengarah, Perhubungan
Perusahaan wherein the 1st Company offered to employ the
E Claimant to a new post as Manager, Legal in the 2nd
Company, at a salary of RM13,000.00 per month, on a fixed
term contract basis commencing on 1 March 2019 and that
renewal of the said contract would be at the discretion of the
1st Company. It was a further term of the settlement that
F the Claimant would not be required to undergo a
probationary period.
[19] Vide letter dated 21 February 2019, the 1st Company

informed the Claimant that he would be employed by the 2nd
G Company for a fixed term period of 2 years commencing on
25 February 2019 and ending on 24 February 2021 and that
his salary would be RM13,000.00 per month with an
employer’s contribution to EPF at the rate of 13%.
H [20] Pursuant to the letter dated 21 February 2019, the

Claimant reported for duty on 26 February 2019 at the
Engineering, Construction & Environment Division and the
Legal Department of the 2nd Company, reporting to the
General Manager, Legal (Pn. Nur Shazlin binti Ahmad
I Kushairi), which was the same department and superior
that he had reported to at the time of his resignation from
service from the 1st Company with effect from 16
September 2016, notwithstanding the fact that the 1st
Company had earlier informed the Claimant that his
//ilj/2023/4/ilju2023_00119
relationship with his immediate superior, Pn. Nur Shazlin, A

had broken down and that she did not want the Claimant to
work in her department and wanted immediate action to be
taken to remove him.
B
[21] Vide letter dated 5 April 2019 issued by the 1st
Company and signed by the General Manager, Integrity and
Discipline Department of the 1st Company, i.e. COW- 1, the
Claimant was issued with a Show Cause and Suspension
Letter and was suspended from service with effect from 5 C
April 2019, on five allegations of misconduct stated therein,
within 6 weeks of his employment pursuant to the
Memorandum of Agreement dated 20 February 2019. By
this letter, the Claimant was required to provide his
response to the Show Cause and Suspension Letter on or
D
before 11 April 2019.
[22] Vide letter dated 10 April 2019, which was received

by the 1st Company on 11 April 2019, the Claimant
categorically denied the frivolous and baseless allegations E
levelled against him in the Show Cause and Suspension
Letter dated 5 April 2019, and provided his written
explanations (with supporting evidence) therein.
[23] On 6 May 2019, En. Mohd. Khusyairi bin Mohd Sapiai F

(Senior Manager, Integrity and Discipline Department of the
1st Company), sent the Claimant a WhatsApp message
which requested the Claimant to meet up on Wednesday, 8
May 2019 at 4.00 pm. The Claimant responded on 6 May
2019 and agreed to meet up as requested. G
[24] On 8 May 2019, En. Mohd. Khusyairi informed the

Claimant that “Sam will c u at restaurant original kayu nasi
kandar”. The Claimant agreed to the said request vide his
WhatsApp message also dated 8 May 2019. H
[25] On 8 May 2019, at approximately 4.00 pm, the

Claimant met with COW-1 at the Restaurant Original Kayu
Nasi Kandar at the NU Sentral shopping centre as planned.
I
At the meeting, the following was discussed:-
i. The Claimant asked COW-1 why this meeting was
occurring at the restaurant and not in the offices of
the 1st Company/2nd Company. COW-1 informed the
//ilj/2023/4/ilju2023_00119

A Claimant that he was more comfortable with meeting

the Claimant outside the office;
ii. COW-1 further informed the Claimant that he had
concluded the investigation and that he had
B recommended to the Management that no action be
taken against the Claimant and that the Management
had agreed to COW-1’s recommendations and signed
off on his recommendations;
iii. COW-1 further stated that the Management had
C requested the Claimant to wait until early June 2019
to ensure that the Claimant’s former superior, Pn. Nur
Shazlin, who left the 1st Company on 1 April 2019, had
not filed any action against the 1st Company at the
Industrial Relations Department within 60 days of her
D leaving the services of the 1st Company. COW-1
further informed the Claimant that if Pn. Nur Shazlin
did not file any representations at the Industrial
Relations Department, the Claimant can come back to
work;
E
iv. When the Claimant queried COW-1 as to what Pn. Nur
Shazlin’s representations at the Industrial Relations
Department had got to do with his employment,
COW-1 refused to give the Claimant any reasons for
F this. In this regard, COW-1 informed the Claimant
that he was not able to tell the Claimant all
information on the 1st Company’s strategy against Pn.
Nur Shazlin. However, COW-1 did inform the Claimant
that the 1st Company would also take legal action
G against Pn. Nur Shazlin as she had caused a lot of
damage to the 1st Company;
v. When the Claimant queried COW-1 as to what will
happen if Pn. Nur Shazlin filed her representation at
the Industrial Relations Department within 60 days of
H
1 April 2019, COW-1 responded by informing the
Claimant that the Claimant can still come back to work
in early June 2019;
vi. When the Claimant asked COW-1 if the 1st
I Company/2nd Company intended to terminate his
employment, COW-1 responded by stating that the
1st Company/2nd Company will not terminate the
Claimant’s employment. COW-1 also informed the
Claimant that the Claimant might be sent to the
//ilj/2023/4/ilju2023_00119
Contract Department or even back to the Legal A

Department and that En. Mohd Imran bin Mohamad
Salim (Group Manging Director of the 1st Company)
had even identified Records Management to be
handled by the Claimant. The meeting then ended.
B
[26] On 12 June 2019, En. Khusyairi sent another
WhatsApp message to the Claimant requesting for a
meeting on 13 June 2019. The Claimant responded on 13
June 2019 to confirm that he was able to meet with En.
Khusyairi as requested. C
[27] On 13 June 2019 at about 2.45 pm, the Claimant met

with En. Khusyairi as planned at PappaRich restaurant at NU
Sentral shopping centre. At this meeting, the following was
D
discussed:-
i. En. Khusyairi informed the Claimant that the
management of the 1st Company/2nd Company
wanted the Claimant to wait a little longer to finalise
the issues involving Pn. Nur Shazlin and that he would E
be able to come back to work in early July 2019. The
Claimant informed En. Khusairi that the 60 days for
Pn. Nur Shazlin to file her representations under the
Industrial Relations Act 1967 was over and queried
him as to why the 1st Company/2nd Company had not F
allowed him to come back to work as promised earlier
by COW-1. En. Khusyairi informed the Claimant that
this involves top management’s strategy in handling
Pn. Nur Shazlin’s matter. The Claimant then asked En.
Khustairi whether the 1st Company/2nd Company G
intended to terminate the Claimant’s employment.
En. Khusyairi informed the Claimant that the 1st
Claimant/2nd Claimant will not be terminating his
employment;
H
ii. En. Khusyairi then produced 3 letters, prepared by the
1st Company/2nd Company and asked the Claimant
to sign 2 of the said letters. The 3 letters which the 1st
Company/2nd Company prepared and which En.
Khusyairi asked the Claimant to sign 2 of them are as I
follows:-
a. A letter purportedly from the Claimant to COW-1
dated 12 June 2019 inquiring about the status of
the investigation and findings of the allegations
//ilj/2023/4/ilju2023_00119

A of misconduct levelled against him vide Show

Cause and Suspension letter dated 5 April 2019;
b. A letter from the 1st Company to the Claimant
dated 13 June 2019 signed by En. Khusyairi
B purportedly in response to the Claimant’s letter
dated 12 June 2019 to inform the Claimant that
the investigation is still ongoing and to ensure
that the investigation is done accurately and
fairly, the management requires additional time
C to conclude the investigation;
c. A letter purportedly from the Claimant to COW-1
dated 14 June 2019 which stated that the
Claimant had taken note of the Company’s
extension of time to conclude the investigation
D
and that the Claimant had no objections to the
extension.
iii. The Claimant asked En. Khusyairi as to why he
needed to sign the pre-prepared letters dated 12 June
E 2019 and 14 June 2019 whereupon En. Khusyairi
responded that this was a mere formality and he
assured that the Claimant could return to work in
early July 2019;
F iv. With the assurance given by En. Khusyairi that the 1st
Company/2nd Company would not terminate the
Claimant’s services and that the Claimant could return
to work in early July 2019, the Claimant signed the
letters prepared by the 1st Company and/or the 2nd
G Company dated 12 June 2019 and 14 June 2019 on 13
June 2019. The meeting then ended.
[28] On 17 July 2019, En. Khusyairi sent another

WhatsApp message to the Claimant, asking if the Claimant
H was free for En. Khusyairi to call. The Claimant spoke to En.
Khusyairi and a meeting was set up for 11.00 a.m. on 18 July
2019. En. Khusyairi sent a WhatsApp message on 17 July
2019 to confirm the meeting at 11.00 a.m. on 18 July 2019
at En. Khusyairi’s office. The Claimant then went to meet En.
I Khusyairi at his office on 18 July 2019.
[29] At approximately 11.00 a.m. on 18 July 2019, the

Claimant met with En. Khusyairi at his office as planned.
Also present at this meeting were COW-1 and Tunku Siti
//ilj/2023/4/ilju2023_00119
Raudzoh binti Tunku Ibrahim (Head, Human Resources A

Department of the 1st Company). At this meeting, the
following was discussed:-
i. Tunku Siri Raudzoh informed the Claimant that the
Company could not keep the Claimant on ‘garden
B
leave’ forever and that they had to protect the
Company. She further informed the Claimant that
they do not know when Pn. Nur Shazlin was going to
take action against the 1st Company, but that they
expected it would happen;
C
ii. Tunku Siri Raudzoh further informed the Claimant
that En. Mohd. Imran Bin Mohamad Salim (Group
Managing Director) has bent over backwards to get
the Claimant interviews from friend’s company to try
and take the Claimant on board, and they wanted the D
friend’s company call the Claimant to go for interview,
upon them calling the Claimant for the said
interviews. Tunku Siti Raudzoh asked the Claimant
whether he was prepared to go for certain interviews
and get a job with the friend’s company. She further E
informed the Claimant that at the moment the 1st
Company/2nd Company was not cutting any of the
Claimant’s ‘garden leave’ out;
iii. COW-1 had told the Claimant that Pn. Nur Shazlin will
F
be taking the Companies on on the employment
matters and that En. Mohd Imran felt that it would be
better to park the Claimant “somewhere first, get you
a job somewhere, friendly party and things like that,
until this thing is over and then probably we can take
G
you back”;
iv. COW-1 also assured the Claimant that they were all
friends and that they had to work together in that the
Claimant will be a key witness for the Companies.
After that, probably they would take the Claimant H
back;
v. COW-1 told the Claimant to go for the interviews with
the other friendly companies;
vi. The Claimant informed the 1st Company/2nd I
Company’s representatives that he needed time to
think the idea over, whereupon COW-1 responded
that the Claimant cannot take too long as “the guys
are waiting”.
//ilj/2023/4/ilju2023_00119

A [30] Between 19 July 2019 and 23 July 2019 Tunku Siti

Raudzoh and the Claimant communicated via WhatsApp
messages as follows:-
i. On 19 July 2019 at 12.06 p.m.: “Hi Ganesan, This is
TC from the HR dept MRCB”
B
ii. On 19 July 2019 at 12.31 p.m.: “The company that
wants to meet you is Armada. They hv worked with us
at bukit jalil & they know that you are our internal
counsel at MRCB”;
C
iii. On 19 July 2019 at 12.31 p.m.: “Tell me if you are
ready to meet them”.
To which the Claimant responded:-
i. On 22 July 2019 at 9.31 a.m.: “Hi TC, good morning”
D
ii. On 22 July 2019 at 9.33 a.m.: “What is Armada’s full
name please”
Tunku Siti Raudzoh then replied to the Claimant:-
E i. On 22 July 2019 at 10.54 a.m.: “Armada Baiduri”

ii. On 22 July 2019 at 2.05 p.m.: “Pls think quickly. We
need to set up the interview”.
The Claimant then responded the same day:-
F i. At 7.10 p.m.: “Hi TC, I wish to know how MRCB will guarantee
security of tenure of my employment with Armada Baiduri.
Please allay my concern”.
Tunku Siti Raudzioh responded the following day, i.e. 23 July
G 2019:-
i. At 6.54 p.m.: “Nobody will guarantee security of
tenure. We are all on contract. Our contract renewal is
based on performance”
H ii. At 6.56 p.m.: “Do you want to try out for the position
or not? GMD bent over backwards for you. You are
sounding very unreasonable”
The Claimant then ceased communication with Tunku Siti

I Raudzoh.
[31] On 6 August 2019, En. Khusyairi and the Claimant

communicated via WhatsApp and by telephone to arrange a
meeting that same day:-
//ilj/2023/4/ilju2023_00119
From En. Khusyairi to the Claimant:- A
i. At 11.09 a.m.: “Hi Ganason, tried calling u but no answer.

Please return call”.
ii. At 12.34 p.m.: “Hi Ganason, tried calling again but no answer
or return call. Please be informed u are to attend today meeting B
at 4pm at our office. For any clarification, please contact me or
Mr. Sam”.
To which the Claimant replied:

C
i. At 3.08 p.m.: “Hi Khusyairi, as spoken, I am not feeling well.
Please reschedule the meeting”.
En. Khusyairi responded to the Claimant:
i. At 9.09 p.m.: “Hi Ganason, as per your request the meeting D

is on Thrusday at 930am”
En. Khusyairi messaged the Claimant on 8 August 2019:
i. At 9.17 a.m.: “Ur here?”

E
To which the Claimant replied:
i. At 9.21 a.m.: “On the way”.
F
[32] The Claimant attended the meeting as scheduled on
8 August 2019. Also in attendance at the meeting were En.
Khusyairi, Tunku Siti Raudzoh and COW-1. At the meeting
the following was discussed:-
G
i. COW-1 informed the Claimant that the Companies
were trying to help the Claimant as much as possible,
trying to arrange interviews etc. and that even though
they had a case against the Claimant, they did not
want to take any action. At which Tunku Siti Raudzoh H
interjected reminding the Claimant that he had asked
for a guarantee on the job and that no one is going to
guarantee a job, to which COW-1 agreed. Tunku Siti
Raudzoh informed that the interview was not set up
whereupon COW-1 informed the Claimant that this I
was because “your response was not right”;
ii. COW-1 then informed the Claimant that there is one
more place where they have some influence. i.e. Quill,
who does REITs for the 1st Company;
//ilj/2023/4/ilju2023_00119

A iii. The Claimant asked for a few days to consider the

proposal, to which COW-1 responded by asking why
the Claimant need time to think it over and whether
he was thinking of some other alternatives. The
Claimant relied that he just wanted to continue
B working for the Company;
iv. COW-1 then informed the Claimant that they had no
confidence in him as he had made a lot of mistakes.
COW-1 asked the Claimant to suggest what other
C alternatives does he want, to which the Claimant once
again responded that he needed a few days to decide.
The Claimant proceeded to remind COW-1 of the
promises that he had given subsequent to the
issuance of the suspension letter and also as to what
D transpired at the meeting at Original Kayu Nasi
Kandar, to which COW- 1 and En. Khusyairi could not
deny having the said conversations;
v. The Claimant told COW-1 that events within the
E preceding 4 years had given cause for worry and that
is why he sought a guarantee of tenure. However,
COW-1 told the Claimant that he is unable to give
anything in writing pertaining to a guarantee of tenure
and that the Claimant is being unappreciative over
F their efforts in trying to find the Claimant an
alternative employment;
vi. Tunku Siti Raudzoh then told the Claimant the other
option is a separation package, upon which the
Claimant informed them that he will listen and
G thereafter see a lawyer and the Industrial Relations
Department officer;
vii. COW-1 thereafter told the Claimant to come back to
them with regards to the first option by the following
H Tuesday, as suggested by Tunku Siti Raudzoh. The
second option is to go into a mutual separation
scheme. The third option is termination.
viii. After much discussion, Tunku Siti Raudzoh told the
Claimant that it would be either the second or the
I
third option. She offered 6 months’ salary for the
mutual separation, i.e. the second option, to which
the Claimant refused to accept;
ix. Tunku Siti Raudzoh then told the Claimant they will go
//ilj/2023/4/ilju2023_00119
for the third option, i.e. termination. Claimant A

responded by saying “I leave it to you”.
[33] On 28 August 2019, En. Khusyairi and the Claimant

communicated via WhatsApp:-
B
From En. Khusyairi:
i. At 12.40 p.m.: “Dear Ganason, a meeting have been

arrange tomorrow at 10am at lvl33, HQ office. Your
presence is requested. For any clarification, please don’t C
hesitate to contact me personally”
ii. At 4.25 p.m.: “Hi Ganason, as you have read the above
message, we take it you will attend tomorrow meeting”
D
The Claimant responded on the same day:
i. At 5.33 p.m.: “Hi Khusyairi”
ii. At 5.36 p.m.: “Can you kindly reschedule the meeting to E

another date., perhaps next week. I am not well.
Appreciate your kind consideration. Kindly let me know
the next date. Thank you”
There was no response to the Claimant’s request by En. Khusyairi. F
[34] On 4 September 2019, the Claimant received the

following message from En. Khusyairi at 3.50 p.m.: “Dear
Ganason, please find attached letter for your information G
which is self-explanatory. Kindly note that we will post the
same letter to your home address”. A document entitled
“Letter to Ganason dated 4Sep19.pdf” followed the message
putting on record the following:-
i. The Claimant had asked to reschedule the meeting H
initially planned for 6 August 2019, which was
communicated to the Claimant on 6 August 2019;
ii. The Claimant had asked to reschedule the meeting
initially planned for 29 August 2019, as I
communicated to the Claimant on 28 August 2019.
Vide the same letter, the Claimant was required to submit
supporting documents to justify his absence on 6 August
2019 and 29 August 2019, by 11 September 2019. The
//ilj/2023/4/ilju2023_00119

A Claimant was also informed that he was required to attend a

meeting on 6 September 2019 at 5.00 p.m. at the Integrity
& Discipline Department meeting room, Level 33, Menara
Allianz Sentral, No. 203, Jalan Tun Sambanthan, Kuala
Lumpur.
B
[35] The Claimant responded vide letter dated 10
September 2019 enclosing the requested supporting
documents. He also responded to En. Khusyairi to confirm
C his attendance at the meeting on 6 September 2019.
[36] On 6 September 2019, the Claimant attended the

meeting at the time and place specified in the letter dated 4
September 2019. Also in attendance were En. Khusyairi,
D Tunku Siti Raudzoh and COW-1. At the meeting, the
following were discussed:-
i. Tunku Siti Raudzoh and COW-1 told the Claimant that
since he was not accepting the employment arranged
E with the other companies, the Company had decided
to charge him. The Company will issue a show cause
letter and then proceed to hold a domestic inquiry;
ii. COW-1 then instructed the Claimant to come back on
F 10 September 2019 to receive the documents with
regard to the domestic inquiry;
iii. The Claimant told the Companies’ representatives
that he had come with a proposal and proposed an
amicable solution by way of fair compensation.
G
COW-1 asked the Claimant for the amount of
compensation sought but the Claimant asked for time
to propose the amount, to which COW-1 responded
that the Claimant could take his time but the process
H for domestic inquiry would begin. The Claimant was
then escorted out of the meeting room by En.
Khusyairi;
iv. As they were walking towards the elevator, En.
Khusyairi asked the Claimant how much
I
compensation he was seeking. The Claimant replied
that he could propose compensation in the sum of 18
months’ salary, being the balance period of his fixed
term contract of employment dated 21 February
//ilj/2023/4/ilju2023_00119
2019. En. Khusyairi suggested that the Claimant A

should inform COW-1 and Tunku Siti Ruadzoh of his
proposal at that time;
v. At this suggestion, the Claimant returned to the
meeting room and proposed compensation for the B
balance contract period as fair compensation to
COW-1 and Tunku Siti Raudzoh. COW-1 responded
that that is not a fair compensation but instead it was
a full compensation;
vi. Tunku Siti Raudzoh then asked the Claimant if he was C
willing to hear a counter offer, to which the Claimant
agreed. Before Tunku Siti Raudzoh could continue,
COW-1 interrupted her and said that “the Company
will decide”. Tunku Siti Raudzoh then said “at least we
have a starting point”. The meeting then concluded D
and the Claimant left the office;
[37] As instructed by COW-1 at the meeting on 6

September 2019, the Claimant returned to the same
meeting room on 10 September 2019. This meeting was E
attended by En. Khusyairi, Tunku Siti Raudzoh and COW-1.
At this meeting, the following transpired:-
i. The Claimant was served with a Notice of Domestic
Inquiry dated 10 September 2019, which set out 5 F
charges of misconduct against the Claimant, despite
being informed by Tunku Siti Raudzoh on 6
September 2019 that he would be issued with a show
cause letter before the 1st Company/2nd Company
would proceed with a domestic inquiry; G
ii. Tunku Siti Raudzoh informed the Claimant that his
proposal communicated at the meeting on 6
September 2019 was not acceptable. She said that
they could only take into account the Claimant’s H
current contract with the 2nd Company, and not his
previous employment with the 1st Company. Tunku
Siti Raudzoh then proposed a settlement in the sum of
3 months’ salary plus 3 months’ salary in lieu of notice
of termination as provided for in the Claimant’s I
contract of employment;
iii. The Claimant stated that he had proposed
compensation in the sum of 18 months’ salary, being
the balance contract period, and asked again what the
//ilj/2023/4/ilju2023_00119

A counter offer was. COW-1 replied that the counter

offer was still 3 months’ salary plus 3 months’ salary in
lieu of notice of termination, and that if the Claimant
had any counter offer, he ought to inform the 1st
Company/2nd Company as the preparations for the
B Domestic Inquiry was already being made.
[38] The Notice of Domestic Inquiry required the Claimant

to be present on 24 September 2019 at 9.30 a.m. in the PJ
Sentral Meeting Room, Level 30, Menara Allianz Sentral, No.
C 203 Jalan Tun Sambantahan, Kuala Lumpur. The Claimant
was also informed that he would be given every opportunity
to conduct his defence by examining his witnesses and
cross-examining the Company’s witnesses. The Claimant
was further informed that he would continue to be
D suspended from service until further notice.
[39] After receiving the Notice of Domestic Inquiry, the

Claimant began his preparation for the Domestic Inquiry. In
the course of his preparation, the Claimant discovered that
E
he would require certain documents, which he did not have
in his possession, in order to adequately prepare his
defence. The Claimant wrote to COW- 1 requesting the
following:-
F i. All the documents the Company intended to refer to or
tender as evidence at the Domestic Inquiry;
ii. All the Claimant’s incoming and outgoing emails for
the period from 25 February 2019 until 5 April 2019,
when the Claimant was suspended from service,
G
together with the attachments thereto;
iii. All the documents relating to:
a. An Adjudication Under the Construction Industry
H Payment And Adjudication Act 2012 Between
Malaysian Resources Corporation Berhad
(Claimant) And Desaru Peace Holdings Club Sdn
Bhd (Respondent) AIAC/D/ADJ/2059-2018;
b. Kuala Lumpur High Court Winding Up Petition No.
I WA- 28NCVC-260-03/2019 dated 21 March 2019
Southern Builders (J) Sdn Bhd & Winding Up
Petition No. WA-28NCC- 101-02/2018 Southern
Builders (J) Sdn Bhd v MRCB Builders Sdn Bhd;
and
//ilj/2023/4/ilju2023_00119
c. Kuala Lumpur High Court Suit No. A

22NCVC-73-02/2015 & 3519/RK: KLHC Suit NO.
22NCVC-17-01/2015 in the matter of 59Inc Sdn
Bhd
iv. The names and position/designation of the witnesses B
that the Company intended to call at the Domestic
Inquiry;
v. The names and position/designation of the chairman
and members of the Domestic Inquiry Panel; and C
vi. The name and position/designation of the Prosecuting
Officer.
The Claimant also requested that the Domestic Inquiry
hearing be postponed in order to allow the Company to D
furnish the Claimant with the requested documentation,
pursuant to Clause 1(c), Suspension And Notice Of Inquiry,
Policies & Procedures; Handling Disciplinary Problems,
Manual Title; Human Resource Department manual Ref. No.
MRCB/HR.M05-0001 (“the 1st Company/2nd Company’s E
Human Resource Department Manual, Handling Disciplinary
Problems”).
[40] Vide letter dated 23 September 2019, the Claimant

was informed that:- F
i. His allegations that the charges against him were

baseless and frivolous were denied;
ii. The Claimant’s proposal for a settlement sum of 18
months’ salary was considered to be unreasonable, G
and that the Company was open to a possible
amicable settlement;
iii. The Claimant would be allowed to access to the
related documents to defend himself and accordingly H
he would be granted access to the Company’s emails;
iv. The names and position/designation of the Chairman,
Members of the Panel, Witnesses and Prosecuting
Officers will be provided to the Claimant at the
I
Domestic Inquiry hearing; and
v. Pursuant to his request for an adjournment, the
Company would notify him of the new date and time
of the Domestic Inquiry hearing.
//ilj/2023/4/ilju2023_00119

A [41] On 24 September 2019, vide WhatsApp message

from En. Khusyairi, the Claimant was granted access only to
the emails and attachments thereto, by providing him with
the password to access his emails remotely.
B [42] Vide letter dated 26 September 2019, the Claimant

was informed of the new date and time of the Domestic
Inquiry hearing, which had been rescheduled for 9 October
2019 at 9.30 a.m.
C [43] At the Domestic Inquiry hearing on 9 October 2019,

the Claimant raised his objection to the Prosecuting Officers
appointed to conduct the case on the ground that he
intended to call both En. Khusyairi and Mr. Venkitesan VN
Venugopal (both of whom had been appointed as the
D Prosecuting Officers) as witnesses in his case. Mr.
Venkitesan responded that the Claimant had raised his
objection only at the last minute, and that he should have
done so much earlier so that the Company would be able to
arrange for another officer to be appointed as the
E Prosecuting Officer. The Claimant informed that he had
already requested for the name and position/designation of
the Prosecuting Officers much earlier vide his letter dated 20
September 2019. Notwithstanding the objection, the Panel
Chairman directed the hearing to proceed.
F
[44] The Claimant thereafter made an application to the
Panel to direct the Company to furnish the documents that
he had requested for vide letter dated 20 September on the
ground that he had only been given access to the emails and
G
attachments but not the other documents requested for. En.
Khusyairi objected to the request and queried the Claimant
as to why he did not submit another request for the
documents that he wanted but not furnished with. The
Domestic Inquiry hearing was then adjourned to 18 October
H
2019 to enable the Company to provide the documents to
the Claimant.
[45] On the same day the Claimant received a letter dated

I 9 October 2019 signed by COW-1 and on the 1st Company’s
letterhead which stated, inter alia, that:-
i. The Claimant’s allegation that he had not been
provided with the requested documents was
baseless;
//ilj/2023/4/ilju2023_00119
ii. That the Company had given the Claimant one month A
to prepare for the hearing, which was “more than
enough time”; and
iii. Notwithstanding the above, the Claimant was now
requested to provide the list of documents he required
B
for the Domestic Inquiry.
[46] Vide letter dated 10 October 2019, the Claimant

responded by stating the following:-
i. he had applied to the Panel for a direction that the C
Prosecuting Officers, i.e. En. Khusyairi and Mr.
Venkitesan, should not be the Prosecuting Officers as
he intended to call them as his witnesses;
ii. he had already submitted a request for the relevant D
documents vide his letter dated 20 September 2019;
iii. the Company’s statement that the Claimant’s
allegations were baseless was in fact untrue, as the
Company had not provided the requested documents
E
to the Claimant;
iv. the Claimant put on record that if the Company had in
fact provided him with the requested documents, the
Domestic Inquiry hearing would not have been
adjourned; and F
v. notwithstanding the time given to the Claimant to
prepare his defence, the fact that he did not have the
requested documents meant that he had been unable
to prepare his defence. G
[47] However, until the date of the hearing on 18 October

2019, the Claimant had not been provided with any
additional documents other than the access to his email. The
hearing commenced on 18 October 2019. Midway through H
the hearing, the Claimant had requested and perused the
notes of proceeding as recorded by the Secretary and found
them to contain so many errors and/or omissions. The
Claimant had also objected to the change of one of the Panel
Chairman, i.e. from Mr. Richard Anthony to Mr. Devan I
Kumar.

informed that the Domestic Inquiry hearing would continue
//ilj/2023/4/ilju2023_00119

A on 31 October 2019. The Claimant thereafter wrote a letter

dated 30 October 2019 placing on record several instances
of procedural impropriety at the Domestic Inquiry hearing
on 18 October 2019.
B [49] Vide email dated 31 October 2019, the Claimant

informed the 1st Company/2nd Company that he was unable
to attend the Domestic Inquiry hearing scheduled for 31
October 2019 as he was on medical leave. The Claimant
attached his medical certificate to that email. Vide letter
C dated 31 October 2019, the Claimant was informed that the
Domestic Inquiry hearing had been adjourned to 1
November 2019 at 9.30 a.m.
[50] The Domestic Inquiry hearing proceeded on 1

D November 2019. However, the Claimant again raised
objections in the manner the proceedings were conducted,
in particular the manner in which the witnesses were being
called. When the proceedings recommenced after lunch, the
Claimant objected to the fact that one of the Panel Member,
E i.e. En. Hasnol bin Abdul Hadi, was absent and that the
hearing should not continue without his presence. The
proceedings became heated thereafter and the hearing was
then adjourned to 4 November 2019 at 11.00 a.m.
F
[51] The hearing continued for the fourth session on 4
November 2019. En. Hasnol was again absent at this
session. The Claimant raised an objection but it was
however overruled by the Panel Chairman, i.e. Mr. Devan
Kumar.
G
[52] Vide letter dated 21 November 2019, on the 1st

Company’s letterhead, entitled “Termination of
Employment”, the Claimant was informed that the Domestic
H Inquiry Panel had found him guilty on all 5 charges preferred
against him and that, in view of the seriousness of the
misconduct, the management was dismissing the Claimant
with immediate effect.
I [53] Vide letter dated 27 November 2019, the Claimant

lodged an appeal against the decision of the 1st Company to
dismiss him from service on the grounds stated therein.
[54] Vide letter dated 14 January 2020, the 1st

//ilj/2023/4/ilju2023_00119
Company/2nd Company responded to the Claimant’s appeal A

letter, to inform him that, inter alia:-
i. a Review Committee had been set up to consider his
appeal; and
ii. that the Review Committee had decided to dismiss his B
appeal.
[55] Notwithstanding the fact that the Group Managing

Director, i.e. En. Mohd Imran Salim, was one of the main C
complainants who lodged a complaint against the Claimant
as set out in Charges No. 1 and 2 of the Charge Sheet and
Notice of Domestic Inquiry, and a relevant witness at the
Domestic Inquiry hearing, En. Mohd Imran was also the
deciding authority in the Review Committee which decided D
to reject the Claimant’s appeal.
[56] Further, notwithstanding the fact that Mr. Kwan Joon

Hoe (COW-3) was one of the main complainants who lodged
E
a complaint against the Claimant as set out in Charges No.
4 and 5 of the Charge Sheet and Notice of Domestic Inquiry
and one of the material witnesses at the Domestic Inquiry
hearing, and Tunku Siti Raudzoh was involved in the
investigation and interviews against the Claimant, both F
COW-3 and Tunku Siti Raudzoh were part of the Review
Committee which gave their opinion to En. Mohd Imran to
dismiss the Claimant’s appeal.
[57] On 3 February 2020, the Claimant filed his G

representations pursuant to section 20 of the Industrial
Relations Act 1967.
(b) The Company

H
st
The Claimant’s Employment With the 1 Company and
2nd Company
[58] The Claimant’s employers under his respective I

tenures are as follows:-
i. The 1st Company for the period 15 September 2014 to
15 September 2016;
//ilj/2023/4/ilju2023_00119

A ii. The 1st Company for a fixed term period from 1

October 2016 to 31 October 2018 over 3 respective
contracts; and
iii. The 2nd Company for a fixed term period from 25
B February 2019 to 24 February 2021.
[59] The Claimant was, until his termination of

employment on 21 November 2019, an employee of the 2nd
Company. His last held position was Manager, Legal in the
C division of Engineering, Construction & Environment/Legal,
in the 2nd Company (“Legal Division”).
Claimant’s Tenure With The 1st Company from 15

September 2014 to 15 September 2016
D
[60] Vide letter dated 29 August 2014, the Claimant was
employed by the 1st Company as a Senior Manager, Legal of
Job Grade 6, with effect from 15 September 2014. He was
confirmed in his position vide letter dated 11 March 2015
E with effect from 15 March 2015.
[61] Vide letter dated 1 April 2016, the Claimant was

placed under the Performance Improvement Plan (PIP) for a
F period of 6 months, i.e. from 1 April 2016 to 30 September
2016, wherein the Claimant was subject to structured
assessment and evaluation in all the critical elements in his
position. The areas of concern included the Claimant’ poor
Year-End performance which was given a rating of “C” or
G “Poor Performance”.
[62] The Claimant vide letter dated 13 April 2016 alleged,

inter alia, that his superior was preparing for his exit and
requested that the placement of PIP be withdrawn. The 1st
H Company rejected the Claimant’s request and took the
position that the Claimant was expected to improve in his
work and performance as required. The 1st Company was
within its rights to do so which was consistent and
compatible with the object and purpose of the Claimant’s
I employment.
[63] Vide letter dated 3 May 2016, the Claimant was

issued a Show Cause letter for being caught sleeping during
working hours. This constituted a misconduct under the
//ilj/2023/4/ilju2023_00119
express and/or implied terms and conditions of A

employment. The Claimant replied to the Show Cause letter
alleging that it was irregular and that he was being
victimised and unfairly treated by the 1st Company.
B
[64] Vide meeting on 6 September 2016 between the
Claimant, the Chief Corporate Officer (Mr. Amarjit Singh
Chhina) and the General Manager, Integrity & Discipline
(COW-1), the Claimant was put on notice on various
complaints raised by his immediate superior concerning his C
unsatisfactory performance and other work related matters.
The Claimant was also informed that it may be necessary for
the management to proceed with disciplinary proceedings
against him. The 1st Company/2nd Company contend that
both its representatives and the Claimant had explored D
alternative measures on mutually agreed terms with a view
to reach an amicable solution.
[65] Vide letter dated 12 September 2016, the Claimant

had tendered his resignation, which was duly accepted by E
the 1st Company. However, as a measure of goodwill and
sympathy, the 1st Company vide its letter dated 15
September 2016 proposed, inter alia, that:-
i. The Claimant resign with immediate effect; F
ii. The 3-months’ notice period shall be waived;

iii. The Claimant to be employed as Senior Manager,
Special Projects for a fixed term period of 6 months
G
commencing 1 October 2016 and any renewal thereof
shall be at the absolute discretion of the 1st Company.
[66] The 1st Company’s proposal was duly and voluntarily

accepted by the Claimant on 15 September 2016. There H
were no challenges made by the Claimant on this
transaction under the Industrial Relations Act 1967. The
Claimant was in all circumstances aware that his status
being a permanent employee had ceased and converted into
that of a fixed term contract. I
//ilj/2023/4/ilju2023_00119

A Claimant’s Tenure With The 1st Company From 1

October 2016 to 31 March 2017 (1st Fixed Term
Contract)
B [67] Vide letter dated 15 September 2016, the Claimant

was employed by the 1st Company as a Senior Manager,
Special Projects in Special Projects Division on a fixed term
contract basis for a period of 6 months, i.e. from 1 October
2016 to 31 March 2017. The Special Project in question
C refers to the Kuala Lumpur Sports City (“KLSC”) Project.
[68] The Claimant was expected to perform duties in

accordance with the rules and regulations in his course of
D
employment. The Claimant’s functions encompassed
project and administration support.
Claimant’s Tenure With The 1st Company From 1 April

2017 to 30 September 2017 and 1 November 2017 to
E 31 October 2018 (2nd and 3rd Fixed term Contracts)
[69] Vide letters dated 5 May 2017 and 30 October 2017,

the Claimant was employed as Senior Manager, Special
F
Projects in Executive Director’s Office Division for 6 months,
i.e. 1 April 2017 to 30 September 2017 and for a subsequent
period of 1 year, i.e. from 1 November 2017 to 31 October
2018. The Claimant had duly served out the said fixed term
contracts without protest or reservation.
G
[70] In a meeting held 1 June 2018 between the Claimant,
the General Manager of Special Projects and Head of Human
Resources, the Claimant was informed of the non-renewal of
his contract as the project in which the Claimant was
H involved in had come to an end. There was no further
position that could accommodate the Claimant and his
qualifications. Vide letter dated 17 October 2018, the
Claimant was formally notified of the non-renewal of the
contract upon its expiry on 31 October 2018.
I
[71] Vide letter dated 23 October 2018, the Claimant had
requested for the renewal of his tenure and/or that he be
transferred/assigned to other companies within the Group.
However, the 1st Company was unable to accede to the
//ilj/2023/4/ilju2023_00119
Claimant’s request and reiterated its reasons for A

non-renewal via letter dated 30 October 2018.
[72] Following the non-renewal of his 3rd fixed term

contract, the Claimant had on 12 December 2018 filed a
B
representation for dismissal. The Claimant and the 1st
Company had reached a Settlement in the Industrial
Relations Department vide “Memorandum Persetujuan”
dated 20 February 2019.
C
Claimant’s Tenure With The 2nd Company From 25
February 2019 Until His Dismissal On 21 November
2019
D
[73] Arising from the Settlement at the Industrial
Relations Department, via letter date 21 February 2019 the
Claimant was appointed as Manager, Legal In Engineering &
Construction & Environment/Legal Division in the 2nd
Company for a period of 2 years, i.e. 25 February 2019 to 24 E
February 2021.
[74] The Settlement at the Industrial Relations

Department has material implications on the following:-
F
i. The nature of the Claimant’s contract is a genuine
fixed term contract for period 25 February 2019 to 24
February 2021 which does not recognise his past
service;
ii. The parameters of any right of reinstatement is G
confined to the parameters of the Claimant’s contract.
The Claimant cannot claim a remedy that is larger
than what he possessed, i.e. a fixed term contract for
period 25 February 2019 to 24 February 2021;
H
iii. The Claimant agreed to a lower position and a lower
salary which is indicative of an acceptance by him of
fault which is attributable to the various incidences of
poor performance.
I
nd
[75] The 2 Company contends that it reposed trust and
confidence in the Claimant and relied upon his judgment,
competence and integrity to carry out the legal function
competently. In this respect, the Claimant was expected to
//ilj/2023/4/ilju2023_00119

A demonstrate technical reliability, quality of his interaction

with various key stakeholders in delivery of his key functions
and performance.
[76] Vide letter dated 5 April 2019, the Claimant was

B issued a Show Cause and Suspension letter in regard to the
following allegations of misconduct:-
i. Delay in forwarding the Adjudication Claim to Rajesh’s
office (the 1st Company’s Legal Representative in an
C Adjudication Proceeding);
ii. Dereliction of duties and failure to promptly notify the
management of a winding up petition filed against the
2nd Company;
D iii. Dereliction of duties and failure to provide proper
advice to the management and to take immediate
action to manage the winding up petition;
iv. Dereliction of duties and performance failure in
E
respect of Kuala Lumpur High Court civil suits on
59Inc Sdn Bhd; and
v. Gross negligence for providing incorrect information
to Group Chief Operating Officer (“GCOO”) of the 1st
Company.
F
The Claimant was placed under suspension on full pay
until further notice.
G [77] The Company contends that the various

conversations and discussion between May 2019 and
September 2019 between the Claimant and the Companies’
representatives were personal initiatives undertaken in
good faith to achieve an amicable conclusion.
H
[78] The 2nd Company issued a Notice of Domestic Inquiry
on 10 September 2019 against the Claimant and further
suspended his service on full pay. 5 charges were preferred
against the Claimant.
I
[79] Upon the conclusion of the Domestic Inquiry hearing
and after due deliberation by the Panel Members, the
Inquiry Panel found that the 5 charges against the Claimant
had been sufficiently proven. The facts and evidence which
//ilj/2023/4/ilju2023_00119
came to light disclosed a serious and material dereliction of A

duties which gave rise to just cause or excuse to dismiss the
Claimant. The decision to dismiss the Claimant was
communicated to him vide letter dated 21 November 2019.
[80] The Claimant lodged an appeal against the Panel’s B

decision, citing inter alia various procedural irregularities in
the Domestic Inquiry hearing. However, vide letter dated 14
January 2020, the Claimant was informed that the Review
Committee, which was established to deliberate upon his
appeal, had decided to dismiss his appeal as his grounds for C
appeal does not negate the basis for dismissal.
III. The Function of the Industrial Court & The Burden of

Proof
D
[81] It is established law that the function of the Industrial
Court in a Section 20(3) Industrial Relations Act 1967 is
two-fold, i.e. to determine:-
(i) whether the misconduct of the employee alleged by E
the employer has been established; and
(ii) whether the proven misconduct constitutes just cause
or excuse for the dismissal.
F
[82] In the case of Milan Auto Sdn Bhd v Wong She Yen
[1995] 4 CLJ 449 the Federal Court held (vide judgment of
Mohd Azmi Bin Kamaruddin FCJ (at pp. 12-13):-
“As pointed out by this Court recently in Hong Leong Assurance G

Sdn Bhd v Wong Yuen Hock [1995] 2 MLJ 753, the function of
the Industrial Court in dismissal cases on a reference under s.
20 is two-fold firstly, to determine whether the misconduct
complained of by the employer has been established, and
secondly whether re proven misconduct constitutes just cause
or excuse for the dismissal”. H
[83] And in the case of Goon Kwee Phoy v J & P Coats (M)
Bhd [1981] 2 MLJ 129 the Federal Court (vide the judgment
of Raja Azlan Shah CJ) held:- I
“Where representations are made and are referred to the
Industrial Court for enquiry, it is the duty of that court to
determine whether the termination or dismissal is with or
without just cause or excuse. If the employer chooses to give a
//ilj/2023/4/ilju2023_00119

A reason for the action taken by him, the duty of the Industrial
Court will be to enquire 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 enquiry of the court is the reason advanced by it and
B
that court or the High Court cannot go into another reason not
relied on by the employer or find one for it”.
[84] The burden of proof in an unfair dismissal claim lies

C on the employer to prove on a balance of probabilities that
the employee had committed the misconduct complained of.
This principle was expounded by the Industrial Court in the
case of Stamford Executive Centre v Dharsini Ganeson
[1986] ILR 101:-
D
“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. He
must prove the workman guilty and it is not the workman who
E must prove himself not guilty. This is so basic a principle of
industrial jurisprudence that no employer is expected to come
to this Court in ignorance of it”.
Iv Issues To Be Decided
F
[85] The issues to be determined in this case are:-
(i) who was the Claimant’s employer at the time of
dismissal;
G
(ii) what was the reason for the dismissal;
(iii) whether the charges of misconduct levelled against
the Claimant are proven on a balance of probabilities;
H
(iv) whether the misconduct, if proven, constitutes just
cause or excuse for the dismissal.
v The Court’s Findings And Reasons
I
(i) Who was the Claimant’s employer at the time of
dismissal?
[86] The Claimant commenced his employment with the

1st Company on 15 September 2014 until 15 September
//ilj/2023/4/ilju2023_00119
2016 under a permanent employment. He was thereafter A

placed on 3 fixed term employment contracts with the 1st
Company ranging between 1 October 2016 to 31 October
2018.
[87] The Claimant’s fixed term contract with the 1st B

Company was not renewed when it expired on 31 October
2018. Dissatisfied with the non-renewal of his contract, the
Claimant took the matter up to the Industrial Relations
Department. At the Industrial Relations Department, both
parties reached an amicable settlement where the Claimant C
was offered a fixed term employment contract with the 2nd
Company from 25 February 2019 to 24 February 2021.
[88] The fixed term employment contract with the 2nd D

Company was not completed as the Claimant was found
guilty of misconduct and dismissed on 21 November 2019.
[89] It is evident from the documents before the Court,

and in particular the Memorandum Agreement entered into E
between the Claimant and the 1st Company before the
Industrial Relations Department on 20 February 2019 that
the Claimant in fact was not being reinstated to his former
position in the 1st Company. The settlement envisaged by
both parties was in fact that the Claimant was offered a new F
position in the 2nd Company, which is a subsidiary of the 1st
Company. Thus, the Claimant’s position in this case that
there was no break in his employment with the Companies is
misconceived. The break occurred when his 3rd fixed term
contract expired on 31 October 2018. Subsequent to G
negotiations thereafter, he entered into a new employment
with the 2nd Company on 25 February 2019. The
Memorandum of Agreement also states clearly that there
will be no payment of backwages as the fixed term contract
with the 1st Company had already expired. The Claimant, H
being a legal officer, was fully aware of the terms of the
settlement. In the circumstances, the Claimant’s
employment with the 2nd Company was indeed a genuine
fixed term contract for the period 25 February 2019 to 24
February 2021. I
[90] The Claimant contends that the 1st Company and the
2nd Company was operating as a group of companies and
that they were the Claimant’s joint employers. To fortify his
//ilj/2023/4/ilju2023_00119

A contention, the Claimant relies on the following facts:-

i. The letter offering the employment with the 2nd
Company dated 21 February 2019 (at pp. 36-40 of
CLB-1) was in fact issued by the 1st Company;
B ii. The Show Cause and Suspension Letter dated 5 April
2019 (at pp. 41- 45 of CLB-1) and Charge Sheet and
Notice of Domestic Inquiry (at pp. 175-179 of CLB-1),
including all preceding and subsequent letters, were
also issued by the 1st Company, whilst the Claimant
C was still in employment with the 2nd Company;
iii. The party to the adjudication claim which resulted in
Charge No. 1 being preferred against was in fact the
1st Company, and not the 2nd Company;
D iv. The meeting on 8 May 2019 at the Restaurant Original
Kayu Nasi Kandar at NU Sentral was between the
Claimant and the Head/General manager or Integrity
& Discipline Department of the 1st Company, i.e.
COW-1;
E
v. The meeting on 13 June 2019 at PappaRich restaurant
at NU Sentral to discuss the suspension relating to the
alleged misconduct was between the Claimant and
the Senior Manager, Integrity and Discipline
Department of the 1st Company, i.e. En. Khusyairi;
F
vi. The meeting on 18 July 2019 at En. Khusyairi’s office
to discuss the Claimant’s suspension and ‘garden
leave’ was conducted by the employees of the 1st
Company, i.e. En. Khusyairi, COW-1 and the Head,
G Human Resources Department, Tunku Siti Raudzoh;
vii. The meeting on 8 Augsut 2019 at En. Khusyairi’s office
to discuss the 3 options proposed, i.e. (1)
employment with another company; (2) mutual
H separation; and/or (3) termination, was conducted by
the employees of the 1st Company, i.e. En. Khusyairi,
COW-1 and Tunku Siti Raudzoh;
viii. The meeting on 6 September 2019 and 10 September
2019 at the Integrity & Discipline Department
I meeting room where, inter alia, the Claimant was
served with the Charge Sheet and Notice of Domestic
Inquiry dated 10 September 2019, was conducted by
the employees of the 1st Company, i.e. En. Khusyairi,
COW-1 and Tunku Siti Raudzoh;
//ilj/2023/4/ilju2023_00119
ix. The Panel Members and Prosecuting Officers in the A

Domestic Inquiry held on 9 October 2019 were
employees of the 1st Company;
x. Save for the Consultant, Human Resources, Mr.
Devan Kumar, the Panel Members and Prosecuting
B
Officers in the Domestic Inquiry held on 18 October
2019, 1 November 2019 and 4 November 2019 were
employees of the 1st Company;
xi. In the course of events leading to the Claimant’s
dismissal, the correspondences to the Claimant were C
issued on the 1st Company’s letterhead and signed for
and on behalf of the 1st Company by COW-1;
xii. Crucially, the termination letter was issued to the
Claimant on 21 November 2019 on the letterhead of
D
the 1st Company and signed by COW-1 for and on
behalf of the 1st Company.
[91] The facts in paragraph 89 above could not be

disputed by the 1st Company/2nd Company. It is evident E
from the facts put forth before this Court that the 1st
Company and/or its employees were actively involved with
regards to the Claimant’s employment in the 2nd Company.
[92] In Hotel Jaya Puri Bhd v National Union of Hotel, Bar F

& Restaurant Workers & Anor [1979] 1 LNS 32 the lifting of
the veil of incorporation to expose an essential unity of
group enterprise first came into prominence when the High
Court (vide the judgment of Salleh Abas J) held:-
G
“It is true that while the principle that a company is an entity
separate from its shareholders and that a subsidiary and its
parent or holding company are separate entities having
separate existence is well established in company law, in recent
years the Court has, in a number of cases, by-passed this
principle if not made an inroad into it. The Court seems quite H
willing to lift “the veil of incorporation” (so the expression goes)
when the justice of the case so demands. Thus the facts of the
case may well justify the Court to hold that despite separate
existence a subsidiary company is an agent of the parent
company or vice versa as was decided in Smith, Stone and I
Knight v Birmingham Co [1938] 4 All ER 116; Re FG (Films)
Ltd.[1955] 1 WLR 483 and Firestone Tyre & Rubber Co. v
Llewlyn [1957] 1 WLR 464 Professor Gower in his Principles of
Modern Company Law, 3rd Edn., p. 213, said that the Courts
are coming to recognise the essential unity of a group
//ilj/2023/4/ilju2023_00119

A enterprise rather than the separate legal entity of each

company within the group. Other examples of this can be
found. In The Roberta [1937] 58 Ll LR 159, a parent
company was held liable on a bill of lading signed on behalf of
its wholly owned subsidiary, the Court saying that the
B subsidiary was ‘a separate entity...in name alone and probably
for the purposes of taxation’. In another case, Spittle v Thames
Grit & Aggregates Ltd. [1937] 4 All ER 101, the Court found no
difficulty in treating the subsidiary as ‘to all intents and
purposes’ the same as the parent company which held 900 of its
shares. A licensing authority in exercise of its discretion has
C
been held entitled to have regard to the fact that a parent and
subsidiary company, though technically separate legal persons,
in fact constituted a single commercial unit (Merchandise
Transport Ltd. v British Transport Commission [1962] 2 QB
173, Devlin LJ at p. 202)... A good example of this is Bird & Co.
D v Thos Cook & Son [1937] 2 All ER 227, in which an
indorsement of a cheque to ‘Thos Cook & Son Ltd.’ was treated
as an indorsement to the allied but separate company of Thos
Cook & Son (Bankers) Ltd. by regarding it as a mere
misdescription to be ignored under the principle falsa
E demonstratio non nocet”.
It is clear therefore that the approach taken by the
President of Industrial Court is not without any legal
support when he placed an emphasis on the essential
unity of group enterprise which in this case consists of
F the Hotel and the Restaurant, especially when Datuk NA
Kularajah who is the Managing Director of the Hotel was
also the Managing Director and later a Director of the
Restaurant and had the ultimate authority over the
employees. Thus, the practice of treating the employees
of the Restaurant as being separate from the employees
G of the Hotel such as the Union having been told that they
were so, their salaries, their EPF and SOCSO
contributions being paid by the Restaurant, does not
detract from the fact that the employees in question
were in fact working in one group enterprise. In my
H judgment, by giving recognition to this fact, the
President did not cause any violence to the sanctity of
the principle of separate entity established in Salomon v
Salomon & Co. [1897] AC 22 but rather gave effect to the
reality of the Hotel and the Restaurant as being in one
enterprise. I find nothing unreasonable in the finding of
I
the President by by-passing this principle. He did no more
than to comply with the wishes of the Legislature that in the
making of an award substantial merits of the case, the public
interest and any matters which are necessary or expedient for
the purpose of settling the dispute are among the factors which
//ilj/2023/4/ilju2023_00119
should be taken into consideration by the Court. In my view, A

the finding by the President is in no way against the principle of
separate entity and I am therefore not prepared to interfere
with the award on this account”.
(Emphasis added)
B
[93] In the High Court case of Rusli Luwi v RM Top

Holdings Sdn Bhd & Ors [2004] 6 CLJ 353 it was held by
Faiza Thamby Chik J:-
C
“Although the first respondent and the second respondent were
separate legal entities, at that material times, both the
respondents were operating as one business enterprise. Based
on the facts and circumstances of the instant case, the
arrangement whereby the second respondent appointed the D
applicant and subsequently transferred him to work in the first
respondent is clearly a mere management practice between the
first respondent and the second respondent, which practice
should not be of any concern to the applicant and to the
Industrial Court in determining the applicant’s rights. The E
applicant therefore ought not have been prejudiced by the said
arrangement agreed to by the respondents, prejudice which
occurred when the Industrial Court erroneously found that the
applicant’s true employer was the second respondent. I think
that when two companies, one of which is a subsidiary of the F
other are operating as one business enterprise, the court
should lift the veil of incorporation and hold the parent
company to be liable for the liabilities arising out of the
employment relationship entered between the subsidiary and
an employee. This approach is well-supported by the
authorities and thus, in Hotel Jaya Puri v National Union of G
Hotel, Bar & Restaurant Workers & Anor. [1980] 1 MLJ 109, the
Federal Court held thus at p. 112:
It is true that while a principle that a company is an entity

separate from its shareholders and that a subsidiary and its H
years the court has in a number of cases, by-passed this
principle if not made an inroad into it. The court seems quite
willing to lift the “veil of incorporation” (so the expression goes)
I
case may well justify the court to hold that despite separate
company or vice versa as was decided in Smith Stone and
Knight v Birmingham Corporation; Re F.G. (Films) Limited; and
//ilj/2023/4/ilju2023_00119

A Firestone Tyre & Rubber Co. v Llewelyn. Professor Gower in his

Principles of Modern Company Law, 3rd Edition, page 213, said
that the courts:
are coming to recognise the essential unity of a group

enterprise rather than the separate legal entity of each
B company within the group. Other examples of this can be
found. In The Roberta [1937] 58 L1. L.R. 159, a parent
company was held liable on a bill of lading signed on behalf of
its wholly owned subsidiary, the court saying that the
subsidiary was ‘a separate entity... in name alone and probably
C for the purposes of taxation’. In another case, Spittle v Thames
Grit & Aggregates Ltd. [1937] 4 All ER 101, the court found no
difficulty in treating a subsidiary as ‘to all intents and purposes’
the same as the parent company which held 90 percent of its
shares. A licensing authority in expertise of its discretion has
been held entitled to have regard to the fact that a parent and
D
subsidiary company, though technically separate legal persons,
in fact constituted a single commercial unit (Merchandise
Transport Ltd. v British Transport Commission [1962] 2 QB
173, Devlin LJ at page 202)... A good example of this is Bird &
Co. v Thos. Cook & Son [1973] 2 All ER 227, in which an
E indorsement of a cheque to ‘Thos. Cook & Son Ltd.’ was treated
as an indorsement to the allied but separate company of Thos.
Cook & son (Bankers) Ltd. by regarding it as a mere
misdescription to be ignored under the principle falsa
demonstration non nocet.’
F
In this respect the Industrial Court in Jimsburg Services Sdn
Bhd v Rostam Wahidin [1999] 2 ILR 334, the learned Chairman
stated thus at pp. 332 and 333:
The evidence led before the court shows that although JS and
G JC are separate legal entities in law, they essentially functioned
as one business enterprise. The Claimant’s remuneration and
expenses are disbursed by both entities although there was in
place an arrangement for JS to be reimbursed for payments
made by them to the claimant by JC. He performed work for
both of them. It was conceded by the claimant that JC was to
H
pay his salary.
The court would have had little hesitation to hold that when two
companies one of which is the subsidiary of the other are
operating as one business enterprise, the court should lift the
I corporate veil and hold the parent company to be liable for the
liabilities arising out of the employment relationship entered
into between the subsidiary and an employee. This approach is
well- supported by the authorities. Thus in Hotel Jaya Puri Bhd
v National Union of Hotel, Bar & Restaurant Workers & Anor.
[1980] 1 MLJ 109, the Federal Court held:
//ilj/2023/4/ilju2023_00119
It is true that while the principle that a company is an entity A

separate from its shareholders and that a subsidiary and its
years the court has in a number of cases, by-passed this
principle if not made an inroad into it. The court seems quite B
willing to lift the “veil of incorporation” (so the expression goes)
case may well justify the court to hold that despite separate
company or vice versa as was decided in Smith Stone and
C
Knight v Birmingham Corporation; Re F.G. (Films) Limited; and
Firestone Tyre & Rubber Co. v Llewlyn. Professor Gower in his
Principles of Modern Company Law, 3rd Edition, page 213, said
that the courts:
are coming to recognize the essential unity of a group D

enterprise rather than the separate legal entity of each
company within the group. Other examples of this can be
found. In the Roberta [1937] 58 L1 LR 159, a parent company
was held liable on a bill of lading signed on behalf of its wholly
owned subsidiary, the court saying that the subsidiary was ‘a E
separate entity in name alone and probably for the purposes of
taxation’. In another case Spittle v Thames Grit & Aggregate
Ltd. [1937] 4 All ER 101, the court found no difficulty in treating
a subsidiary as ‘to all intents and purposes’ the same as the
parent company which held 90 percent of its shares. A licensing F
authority in exercise of its discretion has been held entitled to
have regard to the fact that a parent and subsidiary company,
though technically separate legal persons, in fact constituted a
single commercial unit (Merchandise Transport Ltd. v British
Transport Commission [1962] 2 QB 173, Devlin LJ at page 202) G
A good example of this is Bird & Co. v Thos. Cook & Sons [1973]
2 All ER 227, in which an indorsement of a cheque to ‘Thos.
Cook & Sons Ltd.’ Was treated as an indorsement to the allied
but separate company of Thos. Cook & son (Bankers) Ltd. by
regarding it as a mere misdescription to be ignored under the
H
principle falsa demonstration non nocet.’
On the approach above, and if JC had been a subsidiary

company of JS it makes no difference whether JS or JC is the
employer of the claimant. However, in this case JC is not a
subsidiary or even an associate company of JS, the latter I
holding no shares in the former. The two companies were
operating as one enterprise due to the fact that both companies
had common individual shareholders and directors in the
persons of COW1 and the late Alexander David. The court will
//ilj/2023/4/ilju2023_00119

A accordingly have to make a finding based on the evidence as to

which one of the two companies was the real employer of the
claimant.
In the instant case since the first respondent held shares in the
B second respondent and both the companies are managed by
members of the same family, it made no difference whether the
first respondent or the second respondent is the employer of
the applicant and the Industrial Court erred in law when it failed
to appreciate this fact based on the facts and circumstances of
C the case. Although, at all material times, it had been applicant’s
contention that both the first respondent and second
respondent were liable in respect of his dismissal from service,
the applicant had in fact maintained that it was the first
respondent who was his true employer. This fact is not only
D corroborated by the applicant’s testimony (p. 71, lines 5 to 6; p.
72, lines 16 to 19 and p. 73, line 3 of exh. RBL1 attached to
encl. 4) but by the representations made by the applicant to the
second respondent wherein the applicant only made a
complaint against the first respondent as his employer, which
E resulted in the Honourable Minister of Human Resources
referring the dispute between the first respondent and the
applicant to the Industrial Court for adjudication. It is observed
that the need for the joinder and subsequent joinder of the
second respondent as a party to the proceedings before the
Industrial Court resulted from the first respondent’s pleading in
F
the Industrial Court (pp. 19 to 21 of exh. RBL3 attached to encl.
3). The joinder of the second respondent was necessary so as
to enable the Industrial Court to arrive at a true decision on the
facts relating to the applicant’s employment, work and
dismissal. The Industrial Court erred in law when it failed to lift
G the veil of incorporation of the second respondent and hold both
the first respondent and second respondent liable for the
applicant’s dismissal from service”.
H [94] The law with regards to group of companies is settled

now in that a court may lift the corporate veil where the
relationship between companies in the same group is so
intertwined that they should be treated as a single entity to
reflect the economic and commercial realities of the
I
situation. This principle was laid down in the Federal Court
case of Ahmad Zahri Mirza Abdul Hamid v AIMS Cyberjaya
Sdn Bhd [2020] 5 MLJ 58 where it was held (vide the
judgment of Mohd Zawawi Salleh FCJ:-
//ilj/2023/4/ilju2023_00119
“A court may lift/pierce the corporate veil where the A

relationship between companies in the same group is so
intertwined that they should be treated as a single entity
to reflect the economic and commercial realities of the
situation. An argument of “group enterprise” is that in
certain circumstances a corporate group is operating in
B
such a manner as to make each individual entity
indistinguishable, and therefore it is proper to lift/pierce
the corporate veil to treat the parent company as liable
for the acts of the subsidiary. Lifting/piercing the
corporate veil is one way to ensure that a corporate
group, which seeks the advantages of limited liability, C
must also accept the corresponding responsibilities.
In the employment law perspective, the application of the
“single economic unit” test or “functional integrality” test is
particularly significant in ascertaining the continuity of
employment for the scope of dismissal protection (see Manley D
Inc v Fallis (1977), 2 BLR 277 (Ont CA)]. It recognises the
complexity of modern corporate structures and that the
corporate veil must only be pierced in exceptional
circumstances. On the other hand, such complexity should not
be an obstacle to defeat the legitimate entitlements of E
wrongfully dismissed employees. This approach has its root on
the general notions of fairness, equality and proportionality in
the treatment of vulnerable employees. It serves to balance
fairness with evolving commercial realities.
F
Reverting back to the mainstream of the present appeal, we are
of the considered opinion that ADC and the respondent were
part and parcel of the same group. There was “an essential
unity of group enterprise”
G
For all the aforesaid reasons, we are of the considered view
the Court of Appeal was wrong when it held that ADC and
the respondent were two separate legal entities and
failed to treat the appellant’s/claimant’s contract of
employment as a continuous one from ADC to the
respondent. In our view, the doctrine, whether is H
categorised as ‘essential unity group enterprise’ or
‘common employer’, its purpose is to permit the
corporate veil to be pierced in order to establish or
identify the true labour relationship between parties in
terms of the existing labour relation realities. The Court I
of Appeal’s failure to identify the employer-employee
relationship runs contrary with the fundamental
purposes of the Industrial Relations Act 1967”.
(Emphasis added)
//ilj/2023/4/ilju2023_00119

A [95] After having perused and analysed the facts and

evidence, the Court finds that the relationship between the
1st Company and 2nd Company, and in particular with
regards to the Claimant’s employment, is indeed
intertwined in that they operated as a single economic unit.
B Thus, despite the 2nd Company being on paper stated as the
employer of the Claimant at the time of his dismissal,
nevertheless the 1st Company and the 2nd Company are for
all intents and purposes the Claimant’s joint employers and
would be jointly liable in the event the Claimant’s dismissal
C
is found to have been made without just cause or excuse.
(ii) What was the reason for the dismissal?
D [96] The Termination Letter (at p. 421 of CLB-1) states

that the Claimant was being dismissed for serious
misconduct after being found guilty of all 5 charges
preferred against him:-
E “We refer to the Domestic Inquiry (DI) held on 9 October 2019,

18 October 2019, 31 October 2019, 1 November 2019 and 4
November 2019.
Please be informed, the Panel of the DI have concluded that you
are GUILTY on all the charges as meted out in the Charge and
F Notice of Domestic Inquiry letter dated 10 September 2019.
In view of the seriousness of the misconduct, the Management
have decided to Terminate your services with immediate effect
and your last working day is on 21st November 2019”.
G
[97] The 5 charges contained in the Charges and Notice of
Domestic Inquiry dated 10 September 2019 (at p. 175-179
of CLB-1), premised on the allegation of misconduct,
H against the Claimant is spelt out as follows:-
“1. Delay in forwarding the Adjudication Claim to Rajesh’s

office.
In an email dated 18 March 2019 at 5:01 pm from Mr. Rajesh
I Kumar of that you, the Manager Legal of Engineering &
Construction Division delayed in the submission of documents
to the Company’s legal representative, Messrs. Vicknaraj, R.D.
//ilj/2023/4/ilju2023_00119
Ratnam, Rajesh Kumar & Associates in the matter of the A

“Adjudication claim between MRCB Builders Sdn Bhd v Desaru
Peace Holdings Club Sdn Bhd”.
In the email, it was stated as follows:-
B
• They have been chasing for the adjudication claim from
Ganason Arumugam, Manager Legal since morning of 18
March 2019 and their staff/dispatch have been at the
Company’s office since 3.00pm.
C
• The documents of the adjudication claim were only given
at 3:53pm.
• That it is impossible to deliver the hardcopies to the

adjudicator and the respondent by 4 pm, when they
D
receive the documents at 3:53pm.
• They manage to serve the adjudication claim to the

adjudicator and the respondent after 4:35pm.
E
• They have emphasized that the documents must be
delivered before 4pm.
• Further stated that in normal litigation practise, any

documents received after 4pm will be construed as being F
only delivered on the next day hence does not comply
with requirements of form 7 of the Construction Industry
Payment and Adjudication Act (CIPAA) 2012. It is
possible for the Respondent to argue that the
adjudication was served out of time and will move the
G
adjudication to strike out and disregard the said
adjudication claim.
It is alleged that despite the seriousness and the consequences
of the delay in forwarding the Adjudication Claim, you had failed
to do enough to interrupt your superior, Nur Shazlin Ahmad
H
Kushairi, the General Manager Legal between 10.00am to
11.20am to immediately obtain her signature and approval of
the memo. By failing to respond in a prompt manner in respect
of above matters, you had also failed to act in the best interest
of the Company and/or had failed to carry out your duties
efficiently. Your above conduct is a serious misconduct I
and constitutes gross negligence.
2.Dereliction of duties and failure to promptly notify
Management on Winding Up petition filed against MRCB
Builders Sdn Bhd
//ilj/2023/4/ilju2023_00119

A On 22 March 2019, MRCB Builders Sdn Bhd was served with

Winding Up Petition No WA-28NCC-260-03/2019 dated 21
March 2019 (“Winding Up Petition”) by the solicitors for
Southern Builders (J) Sdn Bhd You received a copy of the said
petition and cause papers on the same date. Despite the
B seriousness and far reaching consequences of the Winding Up
Petition, you have failed to promptly and urgently report the
said Winding Up Petition to the Top Management of MRCB, such
as the Group Managing Director and Group Chief Operating
Officer.
C By your failure to promptly report this matter to the Group
Managing Director and Group Chief Operating Officer, you had
failed to act in the best interest of the Company and therefore
exposing MRCB Builders Sdn Bhd and/or MRCB to unnecessary
risk. Your above conduct is a serious misconduct and
D constitute gross negligence.
3.Dereliction of duties and failure to provide proper advice to
the management and to take immediate action for solutions in
managing the Kuala Lumpur High Court Winding Up Petition No.
WA-28NCvC-260-03/2019 In an email dated 22 March 2019 at
E 7:11 pm from you to Mr. Lok Ngai Hey, the Acting Chief
Executive Officer of Engineering, Construction & Environment,
En. Zul Bahari Bin Abu Bakar, the Executive Vice President
GCOO’s Office, and Mr. Vincent Tan Hui Sheng, the Head
Commercial, whereby you stated the following:
F
“The petition is fixed for case management on 4 April 2019 and
hearing on 20 June 2019. We are required to file opposing
affidavit to oppose the petition7 days before 20 June 2019
failing which an order for winding up will be made against us.”
G You have given the impression that the Company have to

submit the opposing affidavit 7 days before 20 June 2019 and
the winding up order will only occur only if we failed to do so. As
you are aware the Winding Up Petition was advertised on 28
March 2019 and have damage the reputation of the Company.
H You, as the Manager Legal of MRCB’s Engineering &
Construction Division being negligent in your duties in failing to
provide proper advice to the management and take immediate
action for solutions, such as recommending to file a Stay, to
ensure that the Company’s legal interests are protected. Your
I above conduct is a serious misconduct and constitutes
as gross negligence.
4.Dereliction of duties in respect of Kuala Lumpur High Court
Suit No. 22NCvC-73-02/2015 & 3519/RK: KLHC Suit No.
22NCvC-17-01/2015 on the matter of 59Inc Sdn Bhd
//ilj/2023/4/ilju2023_00119
On 26 March 2019 at 5.45pm, Mr. Rajesh Kumar sent an email A

to you informing that the hearing for the above matter was
fixed on 2nd and 3rd April 2019. You were required to manage
the company’s witness, which is Mr. Kwan Joo Hoe, the Group
Chief Operating Officer (GCOO), and inform him of the hearing
date. B
We found that you only manage to inform the GCOO on 28th
March at 6.36pm, which is two (2) days after you received the
email from Mr. Rajesh.
It is alleged that you, as the Manager legal of MRCB’s
Engineering & Construction Division had acted in dereliction of C
your duties by your failure for being negligent in carrying out
your duties properly and immediately to ensure that the
Company’s legal interests are protected. Your conduct is a
serious misconduct and gross negligence of your duties.
5.Gross Negligence by you for providing incorrect information D
to GCOO
In an email dated 28th March 2019 at 6.36pm from you to
GCOO, you stated the following;
“This is to inform that you need to be present as witness during E

the hearing for 53Inc Sdn Bhd’s assessment of damages in the
above matters as follows:
Date: 3rd and 4th of April 2019
Time: 9.00 am F
Venue: Kuala Lumpur High Court”
We note that the information that you provided in the

mentioned email of the Company’s name and date of the
hearing is incorrect. The actual Company name is ‘59Inc Sdn G
Bhd’ and the actual date of hearing as per Mr. Rajesh’s email is
on 2nd and 3rd of April 2019. Your conduct of providing the
incorrect information to GCOO is a serious misconduct
and gross negligence of your duties”.
(Emphasis added) H
[98] It is clear that the said 5 charges against the

Claimant was premised on misconduct. However, the
Company contends and in fact relies on the Claimant’s
purported poor performance during his tenure with the 1st I
Company which had spilled onto his tenure with the 2nd
Company as one of the reasons for the Claimant’s dismissal.
The Court is however unable to accept the Companies’
contention for the reasons stated hereinafter.
//ilj/2023/4/ilju2023_00119

A [99] Firstly, none of the 5 charges contained in the

Charges and Notice of Domestic Inquiry relate to poor
performance. The 1st Company had clearly spelt out all the
charges premised on serious misconduct. The Termination
Letter in fact states that the Claimant was dismissed for
B serious misconduct and that is what was on the mind of the
Companies when they dismissed him.
[100] In the recent case of Maritime Intelligence Sdn Bhd

C v Tan Ah Gek (2021] 10 CLJ 663 it was held by the Federal
Court that the Industrial Court can only enquire into the
reason for termination as premised on matters and events
at the time of dismissal, and not subsequently raised in the
pleadings. The Federal Court held (vide the judgment of
D Nallini Pathmanathan FCJ):-
“By virtue of the clear statutory content of s. 20(3), the function

of the Industrial Court is tied inextricably to the representations
of the workman of a dismissal without just cause or excuse.
E Those representations are made by the workman at the time of
his dismissal, for reasons which he feels are without any
reasoned basis or for reasons that are insufficient to warrant a
dismissal. The focus of the enquiry of the Industrial Court
under s. 20(3) of the Act, is therefore premised on matters and
events as they occurred at the time of the dismissal. The
F
reasons operating in the mind of the employer, which preceded
the decision to terminate, and resulted in the decision to
terminate, comprise the matters to be considered and
adjudicated upon by the Industrial Court under s. 20(3).
G By way of elaboration of this point, specific factors,

events or reasons would have operated on the
employer’s mind, prior to the employer deciding to
terminate the workman’s services. It is those reasons,
factors or events which comprise the basis for the
dismissal. And the workman makes his representation or
H complaint of dismissal without just cause or excuse
based on those reasons, factors or events only under s.
20(1). It therefore follows that the representations based on
those limited reasons, factors or events only, can comprise the
basis for assessment and adjudication by the Industrial Court
I under s. 20(3).
The term “representations” therefore ties the jurisdiction of the
Industrial Court down to the reasons, factors or events
operating in the mind of the employer at the time of dismissal
resulting in the representation.
//ilj/2023/4/ilju2023_00119
In a situation where the employer gave no reasons whatsoever A

for dismissing the workman, the scope of the Industrial Court’s
adjudication is still tied to the representations and thereby to
the factors operating in the mind of the employer at the time of
the dismissal. The fact that those reasons have not been
articulated does not alter the object and effect of s. 20(1) or
B
20(3). The Industrial Court is bound to restrict the inquiry to
that extent. This issue is considered in further detail below.
There is no provision for the Industrial Court to consider
matters outside of the representation by the workman,
under s. 20(3). Matters outside of the representation C
would include matters which were not operative in the
employer’s mind when the decision to dismiss was
taken, but which the employer chooses to put forward
post-dismissal at a subsequent stage in the Industrial
Court, to justify the decision to dismiss the workman, ex
post facto. The very specific wording of s.20 does not D
prescribe or allow an overarching survey by the
Industrial Court of any and all matters both pre and post-
dismissal, in an effort to ascertain whether the
workman’s representations are made out.
In summary, on this point, it is the statutorily prescribed E
function of the Industrial Court to examine, investigate the
representations of the workman and then hand down an award
under s. 20(3). It is not the function of the Industrial Court to
decide otherwise than prescribed by the Act. The Act implicitly
prescribes an investigation into facts and events and reasons at F
the point and/or time of dismissal. There is no provision in the
Act for the industrial tribunal to embark on a far-ranging survey
to ascertain whether given matters which the employer has
discovered subsequently and not put to the workman, it is
justified in dismissing the workman.
G
A further point which lends weight to the construction above is
that the jurisdiction of the Industrial Court is to ascertain
whether the dismissal was or without just cause or excuse. It
follows that the “just cause or excuse” giving rise to the
dismissal, circumscribes the precise area that the Industrial
Court is jurisdictionally allowed to examine. H
Any such “just cause or excuse” can only refer to the reason
resonating in the employer’s mind, prior to, or preceding the
decision to dismiss. Those words do not envisage the
investigation or contemplation of matters or reasons that the
employer discovers subsequently or which operate on the I
employer’s mind post-dismissal.
These subsequent matters may well go to the issue of the
moulding of the relevant relief such as contributory conduct, or
comprise basis to refuse reinstatement and reduce or refuse
//ilj/2023/4/ilju2023_00119

A compensation in lieu. But such subsequent and fresh evidence

cannot be utilised retrospectively to justify a termination which
was not effected for those reasons or on that basis. It is
reiterated that this is because such “cause” did not operate on
the employer’s mind at the material time.
B Therefore, both a literal and purposive statutory construction of
s. 20 does not envisage the employer seeking to justify the
termination utilising post-dismissal reasons.
Equally, it defies a proper construction of s. 20 of the Act, to
conclude that an employer dismissing a workman for a
C particular reason or series of events, can then rely on a wholly
different or additional matters, to justify the same dismissal at
the Industrial Court, in an effort to bolster or put forward what
the employer feels, or may be advised, is a “stronger” defence.
For these reasons, we are of the view that a literal and
D purposive statutory construction of the provisions of s. 20
clearly support the legal position that the Industrial Court is
statutorily circumscribed in its jurisdiction to examine,
adjudicate and hand down an award as to whether the
dismissal was with or without just cause or excuse premised on
matters operating in the mind of the employer at the time of the
E dismissal. As such the underlying matters relied upon as
comprising “just cause or excuse” cannot and do not refer to
matters discovered or chosen to be utilised post-dismissal, in
order to justify the dismissal at the Industrial Court”.
(Emphasis added)
F
[101] The Federal Court decision in Maritime Intelligence

Sdn Bhd v Tan Ah Gek [supra] echoes another earlier
Federal Court decision in Goon Kwee Phoy v J & P Coats (M)
G Bhd [1981] 2 MLJ 129 where it was held that the Industrial
Court is to enquire only into the reason as advanced by the
employer in the employee’s termination and that the Court
cannot go into another reason not relied on by the employer
or find one for it.
H
[102] Poor performance relates to the employee’s work
performance that is deemed to be unsatisfactory to the
employer. It is quite distinct from an allegation of
misconduct, which in most cases connotes wrong-doing. In
I this case, the Companies have alleged that the Claimant had
been grossly negligent in carrying out his duties, which is
misconduct.
[103] Secondly, the Companies have relied on the

//ilj/2023/4/ilju2023_00119
Claimant’s record of unsatisfactory performance during his A

tenure with the 1st Company. However, the Companies
cannot be blowing hot and cold. On one hand, the Company
contends that his employment with the 2nd Company is a
fresh employment as his fixed term contracts with the 1st
Company had expired. Surely the Companies cannot be B
heard to argue now that his past record during the
Claimant’s tenure with the 1st Company becomes relevant
all of a sudden during his tenure with the 2nd Company.
C
[104] It is also evident that the 1st Company never took
any action against the Claimant for his purported poor
performance during his tenure with the 1st Company. He
was placed on a Performance Improvement Plan (PIP) but
nothing really came out of it. Whatever issues of D
performance that the Claimant may have had with the 1st
Company ended on 31 October 2018 when his last fixed
term contract with them expired.
[105] The Companies cannot rely on the ground of poor E

performance as a reason for the Claimant’s dismissal. They
had elected to premise their grounds for dismissal on
misconduct in all the 5 charges.
(iii) Whether the charges of misconduct levelled against the F

Claimant are proven on a balance of probabilities
[106] Since the charges against the Claimant is premised

on misconduct, the Court will now proceed to analyse each G
charge as to whether it has been proven on a balance of
probabilities against the Claimant.
Charge No. 1
H
[107] Charge No. 1 in the Charges and Notice of Domestic
Inquiry dated 10 September 2019 (at pp. 175-176 of CLB-1)
is worded as follows:-
“Delay in forwarding the Adjudication Claim to Rajesh’s office. I

In an email dated 18 March 2019 at 5:01 pm from Mr. Rajesh
Kumar of that you, the Manager Legal of Engineering &
Construction Division delayed in the submission of documents
to the Company’s legal representative, Messrs. Vicknaraj, R.D.
//ilj/2023/4/ilju2023_00119

A Ratnam, Rajesh Kumar & Associates in the matter of the

“Adjudication claim between MRCB Builders Sdn Bhd v Desaru
Peace Holdings Club Sdn Bhd”.
In the email, it was stated as follows:-
B
• They have been chasing for the adjudication claim from
Ganason Arumugam, Manager Legal since morning of 18
March 2019 and their staff/dispatch have been at the
Company’s office since 3.00pm.
C
• The documents of the adjudication claim were only given
at 3:53pm.
• That it is impossible to deliver the hardcopies to the

D adjudicator and the respondent by 4 pm, when they
receive the documents at 3:53pm.
• They manage to serve the adjudication claim to the

adjudicator and the respondent after 4:35pm.
E
• They have emphasized that the documents must be
delivered before 4pm.
• Further stated that in normal litigation practise, any

F documents received after 4pm will be construed as being
only delivered on the next day hence does not comply
with requirements of form 7 of the Construction Industry
Payment and Adjudication Act (CIPAA) 2012. It is
possible for the Respondent to argue that the
G adjudication was served out of time and will move the
adjudication to strike out and disregard the said
adjudication claim.
It is alleged that despite the seriousness and the consequences
of the delay in forwarding the Adjudication Claim, you had failed
H to do enough to interrupt your superior, Nur Shazlin Ahmad
Kushairi, the General Manager Legal between 10.00am to
11.20am to immediately obtain her signature and approval of
the memo. By failing to respond in a prompt manner in respect
of above matters, you had also failed to act in the best interest
I of the Company and/or had failed to carry out your duties
efficiently. Your above conduct is a serious misconduct and
constitutes gross negligence”.
[108] The Claimant alleges that Charge No. 1 is defective

//ilj/2023/4/ilju2023_00119
as the wrong company was named in the charge, i.e. the 2nd A
Company, instead of the 1st Company. However, from the
evidence before the Court, the Claimant clearly knew that it
was the 1st Company that had filed the adjudication claim
against Desaru Peace Holdings Club Sdn Bhd, and not the
2nd Company. There was in fact no prejudice occasioned to B
the Claimant in the preparation of his defence to Charge No.
1.
[109] The Companies contend that the Claimant had

failed to act with urgency with regards to the submission of C
the adjudication claim and that the fact of the delay in
submission of the same did not cause rejection is irrelevant
in the circumstances.
[110] The Companies have alleged that the Claimant had D

waited until the last day, i.e. 18 March 2019, to present for
submission the signed Adjudication claim. In this respect, it
would be helpful to look at what actually transpired.
E
[111] The 1st Company filed the Notice of Adjudication
against Desaru Peace Holdings Sdn Bhd on 1 November
2018. On 4 March 2019, the adjudicator, i.e. Mr. Thurai Das
Thuraisingham, directed the 1st Company to serve the
Adjudication claim within 10 working days in accordance F
with section 9 of the Construction Industry Payment And
Adjudication Act 2012 (“CIPAA”) (at pp. 1-3 of COB-3),
whereby the last day would be 18 March 2019.
[112] On 15 March 2019 at 12.48 p.m., one Ms. Joni Chu G

of Contract Solutions-I (who was preparing the Adjudication
Claim) had emailed to Pn. Nur Shazlin (at pp. 4- 5 of COB-3)
informing her that the Adjudication Claim will be due on 18
March 2019 and that the papers will be dispatched by 15
March 2019, which happens to be a Friday. The email was H
also directed to the Claimant. Thus, both Pn. Nur Shazlin
and the Claimant had full knowledge that the Adjudication
claim was due and being sent over by Contract Solutions-i.
[113] However, Ms. Joni Chu of Contract Solutions-i only I

emailed the Adjudication Claim to the Claimant on 16 March
2019 (which was a Saturday) at 2.40 p.m. The Claimant,
instead of anticipating the arrival of the Adjudication claim,
opted to be away for the weekend, i.e. in Ipoh. From the
//ilj/2023/4/ilju2023_00119

A Claimant’s response to the Show Cause And Suspension

letter (at p. 47 of CLB-1), he had admitted that he did not
see Ms. Joni Chu’s email until the morning of 18 March 2019
(i.e. the last day for the submission of the Adjudication
Claim).
B
[114] Quite apart from the fact that Pn. Nur Shazlin and
En. Zul Bahari were copied in Ms. Joni Chu’s email dated 16
March 2019 (which enclosed the Adjudication Claim) and
ought to have known of the urgency of the submission of the
C Adjudication Claim, this still would not absolve the
Claimant’s liability in ensuring that all the necessary steps
had been taken beforehand on 15 March 2019 to get the
necessary officers on stand-by and ready to execute the
Adjudication Claim in the morning of 18 March 2019.
D Instead, the Claimant only saw the Adjudication Claim in the
morning of 18 March 2019 and thereafter went about
printing the papers and seeking Pn. Nur Shazlin’s and En.
Zul Bahari in order to review the papers. From the
Claimant’s own admission, he did not know who was to sign
E the Adjudication Claim until the morning of 18 March 2019,
which happened to be the very first time he opened Ms. Joni
Chu’s email. Central to this need to submit this Adjudication
Claim is the fact that the officer who was authorised to sign
the same was the Group Chief Operating Officer, i.e. Mr.
F Kwan Joon Hoe (COW-3). COW-3 was not copied in either of
Ms. Joni Chu’s emails of 15 March 2019 or 16 March 2019,
and thus was unaware that he was to sign the Adjudication
Claim by 18 March 2019 and that there was an urgency in
doing so.
G
[115] As a Legal Manager, the Claimant would reasonably
have known or taken the initiative to find out who was the
officer authorised to sign the Adjudication Claim.
H There is no evidence which shows he had set about clarifying
with anyone at all from Contract Solutions-i or even with the
Companies’ solicitors, Messrs. Vicknaraj R D Ratnam Rajesh
Kumar & Associates, of any uncertainties he had about the
submission of the Adjudication Claim when he received Ms.
I Joni Chu’s email of 15 March 2019.
[116] The Claimant in fact left it very late to make the

arrangements for the reviews on the Adjudication Claim
papers and thereafter to obtain the signature of COW-3. Pn.
//ilj/2023/4/ilju2023_00119
Nur Shazlin reviewed and sent back the Adjudication Claim A

papers only at 12.20 p.m. on 18 March 2019. En. Zul Bahari
only came into office at 1.45pm on that day and reviewed
the papers. Subsequently, the Claimant gave the papers to
COW-3’s secretary. COW-3, who was out of the office earlier,
only came into office and signed off the Adjudication Claim B
papers at 3.25 p.m. on 18 March 2019. The Adjudication
Claim papers was handed over to the Companies’ solicitors
at 3.53 p.m. on 18 March 2019. The documents were
eventually served on Desaru Peace Holdings Sdn Bhd at
C
4.45 p.m., the adjudicator at 4.35 p.m. and the Asian
International Arbitration Centre at 4.55 p.m. All these
last-minute run-around could have been avoided if only the
Claimant had made the necessary pre-arrangements as
early as 15 March 2019 when he received Ms. Joni Chu’s D
email.
[117] The Claimant contends that the Companies had

erroneously referred to the Rules of Court 2012 with regards
to the cut-off time for submission of the documents (i.e. by E
4.00 p.m.), in that the Rules of Court 2012 would not be
applicable in this matter. Instead, the Claimant has relied on
the case of Skyworld Development Sdn Bhd v Zalam
Corporation Sdn Bhd [2019] MLJU 162 in that a calendar day
means a day of 24 hours and that anything done within any F
time on that day is considered done on that day. Thus,
service after 4.00 p.m. for CIPAA proceedings will not be
deemed as service on the next day. This Court is however
not in agreement with the Claimant’s contention as here we
G
are dealing with the duties and responsibilities of the
Claimant as a Legal Manager and ensuring that the legal
cause papers were prepared in a timeous manner.
[118] The Court in fact agrees with the explanation given H

by the Companies’ counsel, Mr. Rajesh Kumar a/l Gejinder
Nath (COW-4), when he testified that the need to submit
and/or serve the Adjudication Claim papers by 4.00 p.m. is,
amongst other things, a matter of good prudence (COWS-4;
Q & A No. 10):- I
//ilj/2023/4/ilju2023_00119

A “Q10: You mentioned that there was a cut-off time at 4pm,

what was the basis of your statement?
A10: The basis for that statement is this:
i. We must take into account that the same date itself is

B
the last date to submit the adjudication claim and the
supporting documents;
ii. Upon receiving the documents from MRCB, it is our

standard practice to peruse and verify the said
C
documents before we proceed to send the same out to
the respective parties. Therefore, our dispatch will need
to send the documents back to my office and my staff
will go through and confirm the same before we proceed
to send the same to the respective parties. This will take
D some time.
iii. It is also a matter of good prudence and not to rush

things. For me, I do not prefer to do things at the last
minute. There are obvious risks in doing so. Therefore
E normally, I will allocate some additional timeframe for us
to expect the unexpected so that we can
manouevre/deal with the unexpected when the same
arises.
Those were the reasons why I informed MRCB that we should
F work on the basis of a cut-off time at 4pm”.
[119] Knowing fully well the deadline was 18 March 2019,

the Claimant ought to have made the necessary
G arrangements with all the relevant individuals to ensure
sufficient time was given for the review, execution and
submission of the Adjudication Claim papers. It is indeed
reckless for the Claimant to even suggest that the
submission can be done at any time of the day on 18 March
H 2019 up to 11.59 p.m.
[120] The Court finds, after analysing the documentary

evidence as well as the oral testimony of the witnesses, that
the 1st Company/ 2nd Company have succeeded in proving
I Charge No. 1 against the Claimant.
Charges No. 2 and 3
[121] Charge No. 2 in the Charges and Notice of

//ilj/2023/4/ilju2023_00119
Domestic Inquiry dated 10 September 2019 (at p. 176 of A

CLB-1) is worded as follows:-
“Dereliction of duties and failure to promptly notify

Management on Winding Up petition filed against MRCB
Builders Sdn Bhd On 22 March 2019, MRCB Builders Sdn Bhd B
was served with Winding Up Petition No
WA-28NCC-260-03/2019 dated 21 March 2019 (“Winding Up
Petition”) by the solicitors for Southern Builders (J) Sdn Bhd
You received a copy of the said petition and cause papers on the
same date. Despite the seriousness and far reaching C
consequences of the Winding Up Petition, you have failed to
promptly and urgently report the said Winding Up Petition to
the Top Management of MRCB, such as the Group Managing
Director and Group Chief Operating Officer.
By your failure to promptly report this matter to the Group D
Managing Director and Group Chief Operating Officer, you had
failed to act in the best interest of the Company and therefore
exposing MRCB Builders Sdn Bhd and/or MRCB to unnecessary
risk. Your above conduct is a serious misconduct and
constitute gross negligence”. E
[122] Whereas Charge No. 3 in the Charges and Notice

of Domestic Inquiry dated 10 September 2019 (at p. 177 of
CLB-1) is worded as follows:- F
“Dereliction of duties and failure to provide proper advice to the
management and to take immediate action for solutions in
managing the Kuala Lumpur High Court Winding Up Petition No.
WA-28NCvC-260-03/2019 In an email dated 22 March 2019 at
7:11 pm from you to Mr. Lok Ngai Hey, the Acting Chief G
Executive Officer of Engineering, Construction & Environment,
En. Zul Bahari Bin Abu Bakar, the Executive Vice President
GCOO’s Office, and Mr. Vincent Tan Hui Sheng, the Head
Commercial, whereby you stated the following:
H
“The petition is fixed for case management on 4 April 2019 and
affidavit to oppose the petition7 days before 20 June 2019
failing which an order for winding up will be made against us.”
I
You have given the impression that the Company have to
submit the opposing affidavit 7 days before 20 June 2019 and
the winding up order will only occur only if we failed to do so. As
you are aware the Winding Up Petition was advertised on 28
March 2019 and have damage the reputation of the Company.
//ilj/2023/4/ilju2023_00119

A You, as the Manager Legal of MRCB’s Engineering &

Construction Division being negligent in your duties in failing to
provide proper advice to the management and take immediate
action for solutions, such as recommending to file a Stay, to
ensure that the Company’s legal interests are protected. Your
above conduct is a serious misconduct and constitutes
B
as gross negligence.
[123] Both Charges No. 2 and 3 pertain to the Claimant’s

failure to act promptly and to provide solutions with regards
C to the Winding Up Petition filed by Southern Builders (J) Sdn
Bhd against the 2nd Company in the Kuala Lumpur High
Court Winding Up Petition No. WA-28NCvC-260-03/2019.
Thus, both these charges will be looked at together.
D [124] The 2nd Company was served with the Winding Up

Petition on 22 March 2019 (at p. 90 of CLB-1). As a senior
officer trained in the letters of the law, the Claimant ought to
have known the serious repercussions that stem from the
filing of a Winding Up Petition, in that the 2nd Company’s
E finances and operations would be sent into semi-paralysis.
Despite this, the Claimant merely shot out an email on 22
March 2019 (at p. 107 of COB-3) stating the following:-
“Dear Sirs,
F Please be informed that we have today 22/3/2019 received
petition for winding up against MRCB Builders Sdn Bhd from
Southern Builders (J) in respect of a judgment sum of
RM10,701,405.66. The petition and the supporting affidavit are
attached herewith.
G
The petition is fixed for case management on 4 April 2019 and
affidavit to oppose the petition 7 days before 20 June 2019
failing which an order for winding up will be made against us.
H We shall attend to this matter”.
[125] The nonchalant manner in which the Claimant had

written the said email was what irked the Companies.
Knowing the seriousness of the matter, the Claimant merely
I informed that the 2nd Company was required to file an
Affidavit In Opposition within 7 days prior to the hearing
date for the winding up petition. He had altogether failed to
inform the Companies of the seriousness of the
Advertisement for the Winding Up Petition which is akin to a
//ilj/2023/4/ilju2023_00119
death knell for companies, in that it had the consequence of A

its banks, creditors and/or customers to pull out any
facilities given and the accounts to be frozen.
[126] No advice was also given to the 2nd Company on the

next course of action since the service of the Winding Up B
Petition, other than to file an Affidavit In Opposition within 7
days prior to the hearing date. The 2nd Company was
hypothetically left out in the open, waiting to be devoured by
vultures.
C
[127] The Claimant contends that an application for a
Fortuna injunction (i.e. an injunction to restrain the filing of
a winding up petition) had already been filed in the High
Court when the 2nd Company was served with the statutory D
notice under Section 466(1)(a) of the Companies Act 2016.
The Fortuna injunction application was however dismissed
by the High Court, as a result of which an appeal was filed
and whilst pending the appeal to be heard, an Erinford
injunction was being sought after. This was what the E
Claimant meant when he testified that a stay application had
already been filed.
[128] There was much argument before the Court during

the trial on whether an application can be made to stay a F
winding up petition. However, it is important not to detract
from the main crux of the charge, in particular Charge No. 3,
that the Claimant failed to give any advise (other than to file
an Affidavit In Opposition) on the steps to be taken and the
necessary applications to be made (such as a striking out G
application) in order to prevent the Company from being
wound up pursuant to Southern Builders (J) Sdn Bhd’s
winding up petition. The Fortuna injunction and the Erinford
injunction applications is only relevant as far as it relates to
restraining the filing of a winding up petition pursuant to a S. H
466(1)(a) CA 2016 notice. The winding up petition had
thereafter been filed, rendering the Erinford injunction
academic. What then was the next step for the 2nd
Company? This is where the Claimant, as the 2nd Company’s
Legal Manager, came short when he failed to give proper I
advise on the implications and the next step to be taken to
halt the winding up petition from proceeding further.
[129] The Court finds, after analysing the documentary

//ilj/2023/4/ilju2023_00119

A evidence as well as the oral testimony of the witnesses, that

the 1st Company/2nd Company have succeeded in proving
Charge No. 1 against the Claimant.
Charges No. 4 and 5

B
[130] Charge No. 4 in the Charges and Notice of
Domestic Inquiry dated 10 September 2019 (at pp. 177-178
of CLB-1) is worded as follows:-
C “Dereliction of duties in respect of Kuala Lumpur High Court
Suit No. 22NCvC-73-02/2015 & 3519/RK: KLHC Suit No.
22NCvC-17-01/2015 on the matter of 59Inc Sdn Bhd
On 26 March 2019 at 5.45pm, Mr. Rajesh Kumar sent an email
to you informing that the hearing for the above matter was
D fixed on 2nd and 3rd April 2019. You were required to manage
the company’s witness, which is Mr. Kwan Joo Hoe, the Group
Chief Operating Officer (GCOO), and inform him of the hearing
date.
We found that you only manage to inform the GCOO on 28th
E March at 6.36pm, which is two (2) days after you received the
email from Mr. Rajesh.
It is alleged that you, as the Manager legal of MRCB’s
Engineering & Construction Division had acted in dereliction of
F your duties by your failure for being negligent in carrying out
your duties properly and immediately to ensure that the
Company’s legal interests are protected. Your conduct is a
serious misconduct and gross negligence of your duties”.
G [131] Charge No. 5 in the Charges and Notice of

Domestic Inquiry dated 10 September 2019 (at p. 178 of
CLB-1) is worded as follows:-
“Gross Negligence by you for providing incorrect information to

H GCOO In an email dated 28th March 2019 at 6.36pm from you
to GCOO, you stated the following;
“This is to inform that you need to be present as witness during

the hearing for 53Inc Sdn Bhd’s assessment of damages in the
above matters as follows:
I
Date: 3rd and 4th of April 2019
Time: 9.00 am
Venue: Kuala Lumpur High Court”
//ilj/2023/4/ilju2023_00119
We note that the information that you provided in the A

mentioned email of the Company’s name and date of the
hearing is incorrect. The actual Company name is ‘59Inc Sdn
Bhd’ and the actual date of hearing as per Mr. Rajesh’s email is
on 2nd and 3rd of April 2019. Your conduct of providing the
incorrect information to GCOO is a serious misconduct B
and gross negligence of your duties”.
[132] Charges No. 4 and 5 pertain to a civil suit brought

by a group of squatters against 59Inc. Sdn Bhd, i.e. a
wholly-owned subsidiary of the 1st Company at the Kuala C
Lumpur High Court Suit No. 22NCvC-17-01/2015 and
22NCvC-73-02/2015 and thus both these charges will be
analysed together.
[133] Firstly, with regards to Charge No. 4, the Claimant D

had on 28 March 2019 sent an email to the GCOO (at pp.
139-140 of COB-3), i.e. COW-3 to inform that COW-3 need
to be present as a witness in both the suits for the
assessment of damages on 3 & 4 April 2019 at the Kuala
Lumpur High Court at 9.00 a.m. E
[134] COW-4, i.e. the Companies’ counsel, had in fact

sent an email to the Claimant on 26 April 2019 (at p. 140 of
COB-3) stating that the hearing was on 2 & 3 April 2019 and F
to ensure the presence of the witness in Court on the
scheduled dates. The Claimant however took 2 days to
inform COW-3 and that too erroneously stating the hearing
dates as 3 & 4 April 2019.
G
[135] The Claimant takes the position that since the
matter involves 59Inc Sdn Bhd, thus he is not responsible.
However, it was the Claimant who undertook to inform
COW-3 when COW-4 gave the instructions to him. At all
material time, the Claimant never responded by saying that H
it was not his responsibility as he was the Legal Manager for
the 2nd Company and not 59Inc Sdn Bhd Furthermore, the
stand taken flies in the face of the Claimant’s contention at
the outset that the 1st Company and its subsidiaries were
operating as a group of companies. I
[136] The Claimant also explained the 2 days’ delay in

informing COW-3 in that he had tried to sought the
instruction of his superior, Pn. Nur Shazlin. It was not
//ilj/2023/4/ilju2023_00119

A disputed that the Claimant had a less than comfortable

working relationship with Pn. Nur Shazlin. But that still does
not explain why was there a need for the Claimant, as the
Legal Manager, to seek further instructions from Pn. Nur
Shazlin just for the simple matter of reminding COW-3 the
B hearing dates for the civil suits.
[137] As regards Charge No. 5, it could not be disputed by

the Claimant that the information provided was indeed
C erroneous. In fact, he had even apologised to COW- 3 for the
mistake (at p. 139 of COB-3). The Claimant contends that
the mistake was corrected within 26 minutes on 28 March
2019 and furthermore COW-3 was aware of the actual
hearing dates and had postponed those dates as he was
D overseas on 2 April 2019 and engaged in an Annual General
Meeting on 3 April 2019. However, the carelessness and the
delay on the part of the Claimant to inform COW-3 of the
actual hearing dates would have caused COW-3 to be absent
on the first hearing date, i.e. 2 April 2019.
E
[138] In the circumstances, the Court finds that the 1st
Company/2nd Company has succeeded in proving that the
Claimant is guilty of Charges No. 4 and 5.
F (ii) Whether the allegations of misconduct constitute just

cause or excuse for the Claimant’s dismissal.
[139] As can be seen from the findings above, the

G Company has succeeded to prove on a balance of
probabilities that the Claimant is guilty of all the 5 Charges
set out in the Charges and Notice of Domestic Inquiry.
[140] The Domestic Inquiry had also found the Claimant

H guilty of all 5 charges. The Court has analysed the Domestic
Inquiry Notes (at pp. 160-368 of COB-2) and the findings of
the Inquiry Panel (at pp. 142-147 of COB-2) and agrees with
the findings made by the Domestic Inquiry Panel and there
is thus no reason for this Court to depart from the same. The
I conclusion reached by the Inquiry Panel was correct based
on the evidence adduced before it.
[141] The Claimant contends that there had been a

breach of the principles of natural justice at the Domestic
//ilj/2023/4/ilju2023_00119
Inquiry based on the following grounds:- A

i. The prosecuting officers at the Domestic Inquiry were
material witnesses to the Claimant’s case;
ii. No list of documents and witnesses were provided to
the Claimant prior to the Domestic Inquiry hearing; B
st
iii. The 1 Company/2nd Company had substituted the
original Panel Chairman, i.e. Mr. Richard Anthony
(who was an employee) to a non- employee, i.e. Mr.
Devan Kumar on the ground that Mr. Richard Anthony
C
knew the Claimant;
iv. There were discrepancies between the handwritten
notes and the typewritten notes for the Domestic
Inquiry;
D
v. The Claimant was not given a chance to present his
case and to call his witnesses;
vi. The decision making of the Review Committee was
tainted as Tunku Siti Raudzoh (who was involved in
the investigation and interviews against the Claimant) E
and En. Mohd. Imran Salim (who was one of the main
complainants against the Claimant) sat on the Review
Committee and recommended to the Group Managing
Director to dismiss the Claimant’s appeal.
F
[142] It is trite law however that any procedural breach of
natural justice could be cured at the hearing before the
Industrial Court as the Industrial Court hears the matter de
novo. This principle was laid down by the Federal Court in
the case of Wong Yuen Hock v Syarikat Hong Leong G
Assurance Sdn Bhd And Another Appeal [1995] 2 MLJ 753
wherein Mohd Azmi FCJ held:-
“It was therefore the function of the Industrial Court in this

particular case to determine on the available evidence whether H
Wong had misconducted himself by his involvement in the sales
of the two motor car wrecks against the unwritten rules of Hong
Leong which prohibited its staff from such activity. Since the
answer was in the positive, the next question for the Court to
ask itself was whether such misconduct constituted a just cause
I
or just excuse for the dismissal? It was not within the ambit of
the reference for the Industrial Court to determine whether
Hong Leong ought to be punished for failing to hold a domestic
inquiry. The Industrial Court was not competent to declare the
dismissal void for failure to comply with the rule of natural
//ilj/2023/4/ilju2023_00119

A justice. The very purpose of the inquiry before the Industrial

Court was to give both parties to the dispute an opportunity to
be heard irrespective of whether there was a need for the
employer to hold a contractual or statutory inquiry. We were
confident that the Industrial Court as constituted at present
was capable of arriving at a fair result by fair means on all
B
matters referred to it. If therefore there had been a procedural
breach of natural justice committed by the employer at the
initial stage, there was no reason why it could not be cured at
the rehearing by the Industrial Court”.
C
[143] And in the recent decision of Celcom Networks
Sdn Bhd v Ismail Bin Ahmad & Anor [Federal Court
Case No. 01(F)-13-04/2022(W)], the Federal Court in
its broad grounds held:-
D
“This is our decision. Having heard the parties, we are of the
unanimous view that the appeal should be allowed. The Court
of Appeal erred in law in failing to conform to the long line of
cases commencing from Dreamland v Choong Chin Sooi [1988]
1 MLJ 111, and expanded in Wong Yuen Hock, Milan Auto and
E Hong Leong Finance vs. Liew Fook Chuan which have
established that even where the employer has failed to comply
with the rules of natural justice by failing to hold a Domestic
Enquiry (DI), it is open to the Industrial Court (ICt) to hear the
matter afresh and allow the employer to establish the basis for
F dismissal. In this case, the Industrial Court did precisely that
and concluded that substantively the dismissal was with just
cause and excuse. The High Court correctly affirmed the
decision of Industrial Court by dismissing the application for
Judicial Review..”
G
[144] The Claimant’s acts and/or omissions constitute
gross negligence and is not commensurate to what is
reasonably expected from a Legal Manager with a vast
experience in law.
H
[145] Upon analysing the evidence and facts of the case in
its entirety, the Court is satisfied and do hereby find that the
Claimant’s dismissal by the 1st Company/2nd Company was
done with just cause and excuse.
I
VI. Conclusion
[146] The Company’s action in terminating the Claimant’s

employment was done with just cause and excuse.
//ilj/2023/4/ilju2023_00119
[147] The Claimant’s case is hereby dismissed. A
Claim dismissed.
Reported by Azham Marwan B

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JOBNAME: No Job Name PAGE: 1 SESS: 3 OUTPUT: Mon Dec 11 13:46:43 2023

66 Industrial Law Journal [2023] 4 ILJ

Ganason a/l Arumugam v Malaysian A

INDUSTRIAL COURT (KUALA LUMPUR) — AWARD NO. 404

Labour Law — Industrial Court — Unfair dismissal — C

Ganason a/l Arumugam v Malaysian Resources

A employment pursuant to the Memorandum of Agreement

Held, dismissing claim:

[Bahasa Malaysia summary

68 Industrial Law Journal [2023] 4 ILJ

tempoh tetap pekerjaannya pada 31 Oktober 2018. A

Diputuskan, menolak tuntutan:

Ganason a/l Arumugam v Malaysian Resources

A Tindakan dan/atau peninggalan penuntut merupakan

I P. Jayasingam together with Reyna Lim Khong Yen (Zul

70 Industrial Law Journal [2023] 4 ILJ

[1] The Ministerial reference in this case required the D

[3] The matters were fixed for mention on 13 August F

Ganason a/l Arumugam v Malaysian Resources

A [7] The trial thereafter continued before me on 23 May

II. The Parties’ Position On The Merits

[8] By a letter dated 29 August 2014, the Claimant was

D [9] After successfully serving his probationary period, the

72 Industrial Law Journal [2023] 4 ILJ

ending on 31 March 2017, notwithstanding its promise to A

[12] When the Claimant queried as to why his fixed term

[13] Vide letter dated 5 May 2017, the Claimant was

[14] Vide letter dated 30 October 2017, the Claimant was

[15] Vide letter dated 26 March 2018, the Claimant was

[16] Vide letter dated 17 October 2018, the Claimant was

Ganason a/l Arumugam v Malaysian Resources

A Senior Manager, Special Projects, would come to an end,

[17] The Claimant regarded the 1st Company’s decision to

[18] Pursuant to the efforts of the Industrial Relations

[19] Vide letter dated 21 February 2019, the 1st Company

H [20] Pursuant to the letter dated 21 February 2019, the

74 Industrial Law Journal [2023] 4 ILJ

relationship with his immediate superior, Pn. Nur Shazlin, A

[22] Vide letter dated 10 April 2019, which was received

[23] On 6 May 2019, En. Mohd. Khusyairi bin Mohd Sapiai F

[24] On 8 May 2019, En. Mohd. Khusyairi informed the

[25] On 8 May 2019, at approximately 4.00 pm, the

Ganason a/l Arumugam v Malaysian Resources

A Claimant that he was more comfortable with meeting

76 Industrial Law Journal [2023] 4 ILJ

Contract Department or even back to the Legal A

[27] On 13 June 2019 at about 2.45 pm, the Claimant met

Ganason a/l Arumugam v Malaysian Resources

A of misconduct levelled against him vide Show

[28] On 17 July 2019, En. Khusyairi sent another

[29] At approximately 11.00 a.m. on 18 July 2019, the

78 Industrial Law Journal [2023] 4 ILJ

Raudzoh binti Tunku Ibrahim (Head, Human Resources A

Ganason a/l Arumugam v Malaysian Resources

A [30] Between 19 July 2019 and 23 July 2019 Tunku Siti

E i. On 22 July 2019 at 10.54 a.m.: “Armada Baiduri”

The Claimant then ceased communication with Tunku Siti

[31] On 6 August 2019, En. Khusyairi and the Claimant

80 Industrial Law Journal [2023] 4 ILJ