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CASE NO:
22/4-1273/13
BETWEEN
AZHAR BIN MOHD. SAID
AND
DRB-HICOM DEFENCE TECHNOLOGIES SDN. BHD.
AWARD NO:
997 OF 2015
BEFORE
VENUE
DATE OF
REFERENCE
28 August 2013
DATES OF MENTION
DATES OF HEARING
DATE OF ORAL
SUBMISSION
21 July 2015
REPRESENTATION
REFERENCES:
(1)
22/4-1273/13
AWARD
Brief Facts
The Claimant was employed by the Company in the position
of Senior Engineer vide the letter of employment dated 18 May
2011. He was selected to undergo 13 months On-Job Training in
armored vehicles technology transfer program in Thales, France.
The terms and conditions of the said training was set out in
Appendix 2 of the Scheme of Service for the development and
training programs. The Claimant avers that he never received the
said Appendix 2 at any material time during his employment with
the Company.
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The
(3)
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The Claimant
denies this and that his dismissal is without just cause or excuse.
The Charge
That you, Azhar bin Mohd. Said, Senior Engineer, had
committed the following misconduct:
(4)
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(a)
(b)
(c)
prior
written
permission
from
the
acted
dishonestly
in
giving
the
false
This is serious
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Bond
Agreement
and/or
established
(6)
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whether
the
misconduct
complained
of
by
the
(2)
and,
if
in
the
affirmative,
whether
the
proven
words
circumstances
whether
of
the
the
case
dismissal
was
the
in
In
the
appropriate
punishment.
(7)
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(8)
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or
otherwise
of
the
procedure
adopted
in
the
So long as at the
with
just
cause
or
excuse
see
Metroplex
(9)
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In
Bumiputra
Commerce
Bank
Bhd.
v.
Mahkamah
domestic
inquiry
has
been
held
the
Courts
The
( 10 )
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His
Lordship held that the Industrial Court was not tied down to the
notes of proceedings of the domestic inquiry. This would mean
that in arriving at a decision the Industrial Court is not to treat
the notes of proceedings of the domestic inquiry held by the
employer as the sole determining consideration in determining
whether the employee was dismissed with just cause or excuse.
This also meant that the findings of the domestic inquiry is not
( 11 )
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Any disciplinary
( 12 )
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If the
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taken by the Company was reasonable given the facts of the case.
The said notes of the domestic inquiry proceedings and the
evidence adduced by the Company through COW.3 does not
permit me to say that it sets up a prima facie case against the
Claimant. It is does not reflect whether the Principles of Natural
Justice was complied with and whether the notes were a verbatim
of what was actually said as the hand written notes are not
adduced. Moreover the pages of the said notes of the domestic
inquiry proceedings are not signed by the Claimant. The Court
cannot tell whether it is accurate or not. One thing is glaring is
that during the proceedings the Claimant did not examine any
witnesses as none were called. The panel's decision was solely
based on the fact that the Claimant did return to Malaysia on the
said dates and receiving the allowances whilst back in Malaysia
without prior approval from the Company.
consider his reason for doing so and that the time/s he returned
was during his summer break when there was no lectures and
that he returned to Thales, France thereafter to finish his training
and was given his certificate of completion by the Institute at
Thales, France. These facts were not considered by the panel who
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The Charges
The Company's Evidence
COW.4 the Company's witness was the manager of the OnJob Training Program that was carried out by the Company in
which the Claimant was involved in.
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( 17 )
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( 18 )
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( 19 )
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He
Claimant left France for Malaysia during the summer break it had
no impact on the Company save that it was technically in breach
of the said Service Bond Agreement. He agreed when it was put
to him that the Company's main concern was that the employees
focused on the On-Job Training and complete the same and not
leave the site as they pleased.
( 20 )
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from the training site during the said period. The Claimant
testified that he had verbally informed Thales Project Manager,
Francois Bertrand about his travel back to Malaysia on those said
dates.
( 21 )
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He testified that
( 22 )
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It was his evidence that he did not breach section 2.1 of the
said Service Bond Agreement as he had completed the On-Job
Training. He testified that the Company stopped paying him his
allowances from October to November 2012 though he was still at
Thales, France undergoing his training. It was his evidence that
the Company victimised him as they fail to take action against the
other members who had also traveled out of Thales, France
during the said period and against Mohamed Fauzy bin Harun
who had returned to Malaysia during the training period.
( 23 )
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Court's Evaluation
The Charges
Here's a case where the Claimant does not dispute that he
had returned to Malaysia thus leaving the training site on 2
occasions without prior approval from the Company.
The
( 24 )
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The Company
however contend and have led evidence to say that the Claimant
had breached Section 2.1 of the Service Bond Agreement when he
left the training site at Thales, France on both occasions stated in
the Charges. The Company interprets the section to mean that
regardless of whether it is summer break or not the Claimant was
required to inform and obtain the prior permission of COW.4 who
was then in Charge of the training project when he wanted to
leave the training site at Thales, France. The Company further
contends that by so returning to Malaysia without the Company's
approval and being paid the allowances under the Service Bond
Agreement the Claimant had acted dishonestly in giving the false
impression to the Company that he was still at Thales, France
during the aforesaid period when in actually fact he was not. The
Company contends that this was a serious misconduct in light of
the fact that the training allowances (cost of living allowances and
foreign service allowance) were payable to him under the Service
Bond Agreement on the premise that he remained and/or were
required to be in Thales, France during the training period.
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( 26 )
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main aim of the said Clause 2.1 of the Service Bond Agreement
was that the employees focused on the On-Job Training and they
complete it with excellence which the Claimant did. It was their
evidence that this was the rationale of the said Clause 2.1 of the
Service Bond Agreement and rightly so.
The
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The Company's witness, COW.3 had agreed when crossexamined by the Claimant's Counsel that there was no evidence
of dishonesty found during the domestic inquiry held against the
Claimant.
( 28 )
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Court will have to decide whether the reasons given for the
termination of the Claimant is a just cause or excuse for his
termination.
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( 32 )
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from the Company during the center's summer off days the
Company should have been astute in the making decision it
made. Terminating the Claimant under these circumstances and
coupled with the fact that 3 other employees on training at Thales
who also were away from Thales, France during the summer off
days but are still employed by the Company, does not appear to
be what a reasonable and fair employer would have done in all
the circumstances.
( 33 )
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Relief
The Court has taken into consideration the fact that the
Claimant was sent by the Company for special training at Thales,
France which he has completed the Court opines that his services
may be beneficial to the Company. The facts and evidence do not
allude to any trust and confidence in the Claimant being lost as
the Claimant was not dismissed from poor performance or serious
acts of misconduct by the Company. Given his age and training
the Court opines that reinstalling the him will serve towards
justice achieved.
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