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A. REFERENCE :
Wan Mohd Razif Bin Wan Abdul Ra’of (“the Claimant”) by his employer,
30.11.2010.
Chairman, Yang Arif Puan Hapipah Binti Monel who had retired from the
Industrial Court. I have now taken over the conduct of this matter as the
new Chairman of this Court. I have been requested to deliver and prepare
the Award for this matter. Parties have on 06.10.2016 given their consent
for me to deliver and prepare the Award without the need for the case to
Sdn. Bhd. v Sukhdev Singh Pritam Singh & Anor, (2011) 2 CLJ 534 where
the Court held that s.23(6) of Industrial Relations Act 1967 (“IRA”) allows
Binti Monel and gleaned from the documents made available to me.
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B. FACTS
worked for the Company for exceeding 19 years before he was dismissed
Sometime in July 2010, the Company wanted to dispose and sell off
sourced for interested buyers for the aforesaid scrapped items and
and yellow partitions from the compressor room located at 1 st Floor of the
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It was the Claimant’s contention that he was under the wrong
impression / believe that the yellow partitions and the tables which were
removed from the Engineering Building and loaded onto his lorry on 21-
07-2010, were part of the scrapped items sold by the Company to OCK.
The Claimant contended that he and one, Haji Mohd Nor Kadir (“Mat
Nor”), who was the Purchasing Officer of the Company had wanted to buy
some of the scrapped items which OCK had bought from the Company
by the Company for the incident that took place on 21-07-2010. The
Charge 1
That you had on 21 July 2010, without authority, caused the loading
Karjali Bin Zait from Weng Foo Sdn. Bhd. onto a truck bearing registration
number WMQ6433 with the intention of removing the items from the
Company’s premises.
Charge 2
That you had on 21 July 2010, without authority, caused the loading
of 11 tables, which were not designated as scrap items, by Karjali Bin Zait
from Weng Foo Sdn. Bhd, onto a truck bearing registration number
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WMQ6433 with the intention of removing the items from the Company’s
premises.
Charge 3
Charge 4
At the same time, the Claimant was suspended from work from 13
aforesaid show cause letter. The Company being unsatisfied with the
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The Company issued a Notice of Domestic Inquiry dated
DI.
Domestic Inquiry
Tuan Haji Yunus Abdul Wahab and the Claimant was represented by one,
Haji Ishak bin Ahmad. Witnesses were called by the Company and the
from the footage of CCTV recordings of the incident that took place on
21.07.2010.
The Company called Carole Tai as their 1 st Witness at the DI. She
was the person in charge of issuing letter of award for the sales of inter
alia the used/old pink partitions, chairs & tables, located at 3 rd floor of the
Company’s Main Building to OCK. She confirmed that there was no other
scrap items sold to OCK save for the aforesaid items located at 3 rd floor.
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She testified that Mat Nor had approached her wanting to buy the
partitions at the 3 rd Floor for the tuition centre, jointly owned by him and
the Claimant. Mat Nor also asked her about the yellow partitions at the
compressor room and she had directed Mat Not to speak to the Project
Engineering, Tey Lay Kuan as she did not have knowledge of the yellow
Ong Chin Heng (“OCH”) from OCK was called as a witness for the
Company at the DI. He gave evidence that the Claimant and Mat Nor did
approach him to buy the pink partitions from OCK at the material time for
their tuition centre but OCK had not sold the same to them as the price
had not been agreed upon. OCH testified that the Claimant did not inform
him that he wants to take the pink partitions at the time when they met on
21.07.2010. He also confirmed that the Claimant did not ask him about
The Company called Tey Lay Kuan (“TLK”) as the 3 rd witness at the
DI. He confirmed that Mat Nor asked him about the partitions at the
compressor room. TLK also testified that he was informed by Yew Jun
Xian (“YJX”) there were some cubicles (partitions in good condition) left
over from the project which were stored in the compressor room and he
witness at the DI. He was the employee of Weng Foo Sdn. Bhd. which
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and/or scrapped items from the Company’s premises and to clean the
Company’s premises. During the DI, Kardjali gave evidence that the
Claimant instructed him to bring down the pink partitions from the 3 rd floor
of the Main Building as they had been purchased by OCK. He also gave
evidence that the Claimant instructed him to bring down the yellow
floor of the Engineering Building and load onto the Claimant’s lorry.
According to Kardjali, at that time he was in the canteen with Rizal who
and syrup room. Kardjali also confirmed that the Claimant asked him to
bring down the yellow partitions and load them onto the Claima nt’s lorry
for weighing before bringing down the chairs. When asked by the
Claimant during DI, Kardjali denied telling the Claimant that both the pink
evidence that it was the Claimant who instructed him to load the yellow
partitions into the lorry and weigh them at the weighbridge. He testified
that the security guards confronted him when he was waiting for the
issuance of the gate pass and instructed him to drive to the guardhouse
to unload the goods as the gate pass could not be issued. The Claimant
alleged that he had instructed Hassan to turn back to unload the goods
when he was driving to the guardhouse but Hassan denied hearing such
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Rizal was also called to give evidence and his evidence
bring down the yellow partitions at the compressor room and load them
call from the Claimant when he was in the canteen with Kardjali. The
Claimant had informed him that gate pass for the chairs is ready and the
Claimant asked Kardjali to bring down the partitions from the compressor
room. Rizal further testified that when went to the compressor room, he
also saw the Claimant giving instruction to Kardjali to bring down the
that time, in charge of issuance and approval of gate pass for the removal
of inter alia the used chairs from the Company’s premises gave evidence
at the DI that:-
(a) On 21.07.2010, the Claimant had given him a gate pass for the
removal of chairs and he had duly approved the gate pass to the
requested him to issue the gate pass for the removal of the yellow
Mat Nor for confirmation whether approval has been granted for the
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removal of the yellow partitions. Christine had informed him that it
(c) The Claimant called him to ask why the gate pass has not been
(d) After 5 to 10 minutes later, the Claimant called him again telling him
partitions. At that time the security guards were there, ordering the
Mat Nor, who was the Company’s Purchasing Officer gave evidence
and confirmed that the Claimant and him are business partners and they
were looking for chairs and partitions for their own business an d
chairs and pink partition at the 3 rd Floor but denied asking anyone on the
aware of the Claimant’s lorry loaded with the yellow partitions and he
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Shanmugam also confirmed that he went to inspect the lorry and
his superior, the Company’s National Security Manager who was also
corroborate the evidence given by the witnesses. This was done by the
The Claimant called his first witness, Ahmad Zaibidi bin Mokhtar
and was informed by the Claimant that if he wants to buy the things in the
time, he was under the impression that the goods in the compressor room
belongs to OCK.
complete set of pink partitions together with the pink tables from OCK.
The Claimant was then asked what makes him changed his mind in taking
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“Pada masa itu, saya sudah confirm akan beli dari OCK yang
apabila dia disahkan, saya kata ambil di sini saja sebab lori
dah ada dan cakap dgn ock saya ambil yg partition ini. Pada
Kardjali.”
[Emphasis added]
The Claimant claimed that he did not know that the yellow partitions
were not part of the scrapped items purchased by OCK as he had relied
fully on what he was allegedly told by Kardjali that the yellow partitions
and pinks partition are the same. Therefore, he decided to take the yellow
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partition instead of the pink partition since his lorry was there at that time.
The Claimant said he intended to inform OCK of his decision to take the
consideration.
the compressor room into his lorry with the intention of r emoving them
from the Company’s premises and instructed Sanjeev to issue gate pass
Accordingly the Claimant was found guilty of all charges levelled against
him.
contended that his dismissal from employment was without just cause and
excuse.
There followings were the grounds given by the DI Panel for their
findings:
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Charge 1 – Guilty
letter dated 19 th July 2010 (CO-2). No items other than on the 3 rd floor to
accused.
has all the evidence that the accused has all the intentions to remove
Being a senior manager in the company the accused did not make
Charge 2 – Guilty
Tables at the 3 rd floor were up for sales to OCK through letter dated 19 th
July 2010 (CO-2). No items other than on the 3 rd floor to be sold as scrap
item to OCK.
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Instruction was given by the accused to Weng Foo worker without
has all the evidence that the accused has all the intentions to remove
Being a senior manager in the company the accused did not make
Charge 3 – Guilty
letter dated 19 th July 2010 (CO-2). No items other than on the 3 rd floor to
loaded from 1 st floor compressor room which items was not authorized by
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Based on all the witness statements and the evidence, the accused
has all the intention to remove those 30 yellow partitions from the
Charge 4 – Guilty
Tables at the 3 rd floor were up for sales to OCK through letter dated
19 th July 2010 (CO-2). No items other than located on the 3 rd Floor Main
by accused to prepare a gate pass for 11 tables which was loaded from
Based on all the witness statements and the evidence, the accused
has all the intention to remove those 11 tables from the Company’s
Being a senior manager in the company the accused did not make
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C. EVALUATION AND FINDINGS OF THE COURT
revolve around the incident that took place on 21.07.2010. The Company
them from the Company’s premises and instructed his colleague, Sanjeev
premises.
Having examined the notes of the DI, the Court is satisfied that the
domestic inquiry was properly conducted and the Claimant was given the
justice. The Claimant was represented by one, Haji Ishak bin Ahmad
during the DI. He and his representative were given the opportunity to
examine the Company’s witnesses. He was given the rights to call his
witness during the DI and he did so by calling Ahmad Zaibidi bin Mokhtar
as his witness to support his contention that he was under the mistaken
believe that the items at the compressor rooms belonged to OCK. The
Claimant had also signed on the notes of the DI, confirming the contents
of the same.
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The Claimant’s Representative in his submission disputed the
decision of the DI Panel on the basis that the 2 nd panel member did not
panel member did not sign on the written decision of the DI Panel. The
were caught by surprise as the Claimant did not raise this issue in his
pleadings previously.
one, with 2 out of 3 panel members have signed on the written decision of
the DI Panel. That to me is sufficient and it was not erroneous for the
In any event, this Court is not bound by the decision or the outcome
of the DI Panel’s findings. This Court will still have to embark on the fact
only charged with the duty to find out whether natural justice has been
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Section 14(1) of the EA) but by virtue of Section 20(3) of the Industrial
Relations Act 1967, a duty is also placed on the Industrial Court itself to
serve the cause of natural justice by proceeding to hold its own enquiry
(through evidence led before it) to find whether the dismissal of the
employee was without just cause and excuse, that is, in short, it has to
consider the substantial merits of the case, namely why the employee
was dismissed. [See Malayawata Steel v M Yusof bin Abu Bakar and Anor
Commerce Bank Bhd v Mahkamah Perusahaan & Anor (2004) 7 MLJ 441
and submitted that should this Honourable Court conclude s that the DI did
not suffer from any procedural infirmities and provided the Claimant with
determining whether there was a prima facie case against the Claimant.
Mahkamah Perusahaan Malaysia & Anor (2005) 1 LNS 283, whereby the
same learned Justice Raus Sharif explained and clarified his earlier
all evidence adduced by all parties including the notes of evidence of the
domestic inquiry.
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The burden of proof remains with the Company to prove that the
Claimant was dismissed with just cause and excuse. In the case of Milan
Auto Sdn. Bhd. v Wong She Yen (1995) 4 CLJ 449, Federal Court, Mohd
Syarikat Hong Leong Assurance Sdn. Bhd. & Anor (1995) 3 CLJ 344 , held
whether the proven misconduct constitutes just cause or excuse for the
dismissal.
Kutty Sanguni Nair & Anor (2003) CLJ 314], the Court of Appeal held that
that both the yellow partitions at the compressor room and the pink
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partitions at the Main Building are the same, in the sense they belong to
OCK and the Claimant may opt for either of these partitions.
Bhd. which was the contractor engaged by the Company to unload the
clean the Company’s premises. He was not even the worker of OCK. Of
course, the Claimant in his evidence during the DI claimed that he was
Kardjali specifically denied during the DI and trial that he did so. During
kamu kata SAMA SAMA (the yellow partitions and the pink partitions)”.
Kardjali answered “Tak ada”. Kardjali has always maintained that it was
the Claimant who instructed him to remove the yellow partitions fro m the
compressor room and load them onto the lorry. The relevant part of
kerusi dari bilik ‘compressor” (terdapat sepuluh (10) buah kerusi di dalam
[Emphasis added]
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The evidence by Rizal at the DI corroborated Kardjali’s testimony
that it was the Claimant that instructed him to remove the yellow partitions
Moreover, for the Claimant who was holding the position of a Senior
Kardjali is an outsider and only a manual worker of Weng Foo Sdn Bhd.
Even if Kardjadi did tell the Claimant that both partitions (yellow and pink)
are the same, I do not think it is open for the Claima nt to say that he
property.
It ought to be noted that the pink partitions and the yellow partitions
the pink partitions and they had not sold the pink partitions to the
Claimant at the material time albeit parties were discussing on the sales
of the pink partitions. OCH who was OCK’s employee gave evidence
view the pink partition and the Claimant did not ask him about any other
Both Carole Tai and TLK gave evidence at the DI that Mat Nor
asked them about the yellow partitions at the compressor room. This
shows that Mat Nor knew about the yellow partitions prior to 21.07.2010
and the Claimant too would have known about it by way of imputed
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knowledge since they were sourcing for chairs, partitions and tables
did not call anyone to verify whether the yellow partitions were part of the
scrap items purchased by OCK from the Company and had relied fully on
after Kardjali informed him that the pink partitions and the yellows
Claimant said earlier he had forgotten that he did call OCK to verify.
confirmed that the Claimant has never asked him about the yellow
partitions. The Claimant did not call OCK to give evidence at the trial. The
Claimant via his letter dated 27.10.2010 to OCK had demanded for an
The Claimant in his said letter did not mention about him calling OCK to
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verify on Kardjali’s misrepresentation. If indeed, the Claimant did call
OCK to verify, surely the Claimant would have raised this in his letter and
shifted the fault to OCK. This was not the case here.
OCK via their letter dated 29.10.2010 to the Claimant, denied any
to prove that the Claimant had the intention to remove the items as they
were still within the premises of the Company i.e. the Claimant’s lorry was
still at the Engineering bay within the premises of the Com pany when it
down the yellow partitions and tables from the compressor room an d load
them onto the lorry hired by him. Kardjali in his witness statement
(“COWS-4”), testified that while he was bringing down the chairs, the
Claimant instructed him to load the yellow partitions and the tables onto
his lorry.
instructed him to load the yellow partitions into the lorry and weigh them
at the weighbridge.
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As stated earlier, the fact that the yellow partitions and tables were
brought down from the compressor room and loaded onto the lorry hired
to his lorry driver to weigh the aforesaid items at the weighbridge and the
Claimant’s request to Sanjeev to issue the gate pass for the removal of
the aforesaid partitions and tables, the inevitable inference here is that
premises if not because the lorry was detained by the Company’s security
guard and Sanjeev had refused to issue the gate pass. To say otherwise,
would be absurd in light of all the evidence adduced during the DI and the
informed Sanjeev that he wanted to unload the tables and the yellow
partitions even before Sanjeev had refused to issue the gate pass and the
The Claimant alleged that when OCH informed him that the yellow
partitions loaded onto his lorry are not part of the scrap items purchased
the person in charge on whether the yellow partitions were part of the
Claimant claimed that OCH was driving a black MYVI when they met at
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The Claimant’s said allegation is inconsistent with OCH’s evidence
given during the DI. OCH denied that he was driving a black MYVI or
partitions were loaded onto the Claimant’s lorry. To these, the Claimant
verify the ownership of the yellow partitions before he left for the meeting
ticket for issuance of a new gate pass for the removal of the yellow
Sanjeev testified that the Claimant called him shortly after to ask
why the gate pass for the yellow partitions had not been issued and
Sanjeev informed the Claimant that he was still in the midst of verifying
premises.
issue the gate pass for the yellow partition and accused Sanjeev as lying
as well. It ought to be noted that the Claimant has never denied giving
Sanjeev the weighbridge ticket after the partitions had been weighted.
The Claimant only denies giving it for issuance of gate pass for the yellow
partitions. This to me makes very little sense and is merely a lame denial
by the Claimant. Why would the Claimant give the weighbridge ticket to
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Sanjeev, if not for the issuance of the gate pass for the yellow partitions
since the weighbridge ticket is for the said partitions and they were
he was not the Claimant’s subordinate and not reporting to the Claimant.
With respect, the issue here is not one of ranking in seniority in the
gate pass to facilitate the removal of the aforesaid partitions and tables
request Sanjeev to issue the gate pass for the removal of the yellow
gave him a weighbridge ticket for the issuance of a new gate pass and
told him he had to urgently go off to meeting. Sanjeev also tes tified that
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the Claimant called him subsequently asking why the gate pass had not
the gate pass for the yellow partitions. I am not able to accept the
prove the 3 rd and 4 th Charges because Sanjeev was not reporting to the
Claimant and not the Claimant’s subordinate for reason stated above. It is
remains that the Claimant did and had requested the Sanjeev to issue a
parties, I am of the view that the Claimant did attempt to remove the
from the lorry. That, to my mind was done too late in the day. From the
evidence adduced by the parties, the Claimant only asked for the
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Christine and Mat Noor on the removal of the yellow partitions and tables
and the lorry being detained by the security guard. The Claimant’s claim
The Claimant had the motive and intention to remove those items
business partner, Mat Noor for their business. The Claimant’s contention
Notwithstanding the Company did not suffer any material loss from
the incident as the items were not removed from the Company’s premises
and remained with the Company eventually, the Claimant has committed
misconduct which forfeited the confidence and trust of his employers and
Produce Co. Ltd v Thamil Thasan Sagathevan (2005) 2 ILR 508 where
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“Attempting to steal estate property, to my mind, is a serious
case, the Court holds that the Claimant’s dismissal was warranted and
justified. Accordingly, it is the finding of this Court that the Claimant was
dismissed for just cause and excuse. The Claimant’s case against the
-Signed-
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