INDUSTRIAL COURT OF MALAYSIA

CASE NO: 9/4-716/15

BETWEEN

NOR AZMAN BIN RAJAH OMAR

AND
SANDISK STORAGE MALAYSIA SDN. BHD.

AWARD NO: 800 OF 2017

Before : Y.A. TUAN DOMNIC SELVAM GNANAPRAGASAM

CHAIRMAN (Sitting Alone)

Award Issued at : Industrial Court of Malaysia, Penang Branch

Date of Reference : 26th of August 2015

Dates of Mention : 22nd of October 2015; 23rd of November 2015;

16th of December 2015; 15th of January 2016;
19th of February 2016 & 22nd of September 2016.

Date of Hearing : 10th of April 2017

Date of Oral Submission : 25th of May 2017

Claimant's Written Submissions: 4th of May 2017

Respondent's Written Submissions: 18th of May 2017

Claimant's Submissions in Reply: -

Representation : Mr. Mohd. Azmani bin Abdul Hamid

Messrs Mohd Azmani & Co
Advocates & Solicitors
(Learned Counsel for the Claimant)

Ms. Cynthia Junavence

Messrs Zaid Ibrahim & Co
Advocates & Solicitors
(Learned Counsel for the Respondent)

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 AWARD

The Reference:

This Award originates from a Ministerial Reference dated 26.8.2015 issued

under the authority of S.20 (3) of the Industrial Relations Act 1967 (‘the Act’); which
involves the termination from employment of one Nor Azman Bin Rajah Omar (‘the
Claimant’) from his erstwhile service with Sandisk Storage Malaysia Sdn. Bhd. (‘the
Respondent’) with effect from 12.11.2014.

The Claimant, being aggrieved by the circumstances surrounding the cessation

of his service, made written representations to the Director General for Industrial
Relations, Malaysia under s. 20 (1) of the Act; whereat he complained that he had been
dismissed without just cause or excuse by his employer.

The reconciliatory efforts undertaken pursuant to that complaint by the Industrial

Relations Department proved unsuccessful. As a consequence the office of the Director
General for Industrial Relations, being satisfied that there was no likelihood of the
representations being settled thereat, duly notified the Honourable Minister of Human
Resources, Malaysia under s. 20 (2) of the Act.

Upon the perusal of this notification and its relevant documents, and by virtue of
s.20 (3) of the Act, the Honourable Minister found it fit to exercise those powers under
that section to refer this matter to the Industrial Court of Malaysia for deliberation and
final resolution.

This reference (hereinafter referred to as “this case”) was first mentioned

before the Penang Branch of the Industrial Court of Malaysia (Court No. 9) on
22.10.2015. After several additional mention dates fixed for various reasons, inclusive of
administrative and file management purposes, this case commenced and completed its
hearing on 10.4.2017; where evidence was duly recorded from witnesses from either

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side. Upon the instructions of this Court, written submissions were then filed by
respective learned Counsels. Counsels were further directed to submit orally on the
25th of May 2017.

This Court now takes the opportunity to place on record herein its sincere
appreciation to both learned Counsel for the Claimant and learned Counsel for the
Respondent for the industrious labours that they carried out in the discharge of their
duties during the course of this trial.

All that now remains is for this Court to hand down its written Award ~ which it
does by this: ~

The Factual Matrix:

The Claimant was offered employment with a company known as SMART

Modular Technologies Sdn. Bhd. (hereinafter referred to as “the said SMART“) effective
the 1st of June 1998. The Claimant was initially employed as an IQA Technician. The
Claimant in his “ Application for Employment with the said SMART on the 26 th of May
1998 declared that his highest academic qualifications as that of Sijil Tinggi Pelajaran
Malaysia (STPM). (COB Pages 1-3)

Thereafter, the Claimant was promoted to the post of Staff Engineer with the said
SMART effective the 29th of December 2010. The Claimant was then transferred to
SMART Storage Systems Bhd. (“the said SMART Storage”) effective the 29 th of August
2011. The said SMART Storage was then acquired by a company known as SanDisk
Corporation and the Claimant was moved laterally from the said SMART to the
Respondent with the terms, conditions, job responsibilities, title, pay and benefits of his
employment with the said SMART Storage remaining unchanged.

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 Pursuant to the acquisition of the said SMART Storage by SanDisk Corporation,
the Respondent then engaged the services of an external party; namely an outfit known
as HireRight (“the said HireRight”), to check the background of all its employees who
were transferred from the said SMART Storage. The said HireRight in the process
alerted the Respondent of some discrepancies in the Claimant’s backgrounds namely:

a. The Claimant’s academic credentials from Edision University of Technology ( “

the said University “) bestowing the latter a Bachelor’s Degree in Mechanical
Engineering on the 3rd of January 2008; and
b. An online newspaper report dated the 22 nd of August 2008; which inter alia,
alleged that the said University was a bogus diploma mill and that the
accreditation given to the said University came from the World Association of
Universities and Colleges ( WAUC). HireRight further reported that according to
the Texas Higher Education Coordinating board, the said university was listed as
a “ fraudulent or unrecognized accreditor “.
c. The Respondent then conducted its own independent investigations into the
authenticity of the academic credentials issued by the said University; this time
by company known as RiskControl Co. Ltd (“RiskControl”). RiskControl too
reported that the said University was neither listed not recognized by the United
Kingdom Ministry of Education.

As a result of the findings, the Respondent issued a Show Cause Letter dated
the 7th of November 2015 to the Claimant requiring him to show cause why disciplinary
action should not be taken against him. (COB Page 35 ). The Claimant duly replied the
Show Cause Letter vide his explanation dated the 10 th of November 2014 (CLB Pages
9-10). The Claimant further furnished the Respondent supporting documents to back up
his claim. The Respondent was not convinced by the Claimant’s explanation. Thus by a
letter dated the 12th of November 2014, the Claimant was terminated of his services
with immediate effect.

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 The Claimant now comes before this Court to aver that his termination from
service was without just cause or excuse and was contrary to the principles of equity,
good conscience and natural justice. He prayed to be reinstated in his former position
without loss of seniority, wages or benefits, monetary or otherwise, together with arrears
of salary.

The Respondent, on the other hand, has denied the Claimant’s assertion and
contends that they were justified in dismissing the Claimant.

The Issue:

As it is common ground that the Claimant was dismissed vide the letter dated the
12th of November 2014, the sole issue for the determination of this Court is whether the
Claimant was terminated with just cause or excuse. In the case of WONG CHEE HONG
v CATHAY ORGANISATION (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298
(of the then Supreme Court of Malaysia) as per Salleh Abas LP, has practical
relevance here:

“When the Industrial Court is dealing with a reference under s. 20, the first
thing that the Court will have to do is to ask itself a question whether there was a
dismissal, and if so, whether it was with or without just cause or excuse.”

The General Principles:

In COLGATE PALMOLIVE Sdn. Bhd. v. YAP KOK FOONG (Award 368 of

1998), it was held as follows:

“In a section 20 reference, a workman’s complaint consists of two

elements: firstly, that he has been dismissed, and secondly that such dismissal
was without just cause or excuse. It is upon these two elements being

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 established that the workman can claim his relief, to wit, an order for
reinstatement, which may be granted or not at the discretion of the Industrial
Court. As to the first element, industrial jurisprudence as developed in the course
of industrial adjudication readily recognizes that any act which has the effect of
bringing the employment contract to an end is a ‘dismissal’ within the meaning of
section 20. The terminology used and the means resorted to by an employer are
of little significance; thus, contractual terminations, constructive dismissals, non-
renewals of contract, forced resignations, retrenchments and retirements are all
species of the same genus, which is ‘dismissal’.” [emphasis added]

In GOON KWEE PHOY v J & P COATS (M) Bhd. [1981] 1 LNS 30 Raja Azlan
Shah CJ (Malaya) speaking for the Federal Court ruled: -

“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 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 that court or the High Court
cannot go into another reason not relied on by the employer or find one for it.”

That learned author, Dr. Dunston Ayadurai in his text Industrial Relations In
Malaysia: Law & Practice 3rd Edition at page 297 states: -

“A workman can seek a remedy under section 20 only if he had been

dismissed. More often than not, there is no dispute that there was an actual
dismissal of the workman by his employer. The only issue for the Industrial Court
to determine is whether the dismissal had been for just cause or excuse, the
onus of proving the existence of the same being cast upon the employer.”

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 And this onus or burden of proof on the Respondent is based on a standard of a
balance of probabilities (see UNION of CONSTRUCTION, ALLIED TRADES AND
TECHNICIANS v. BRAIN [1981] ICR 542, [1981] IRLR 224, CA; SMITH v. CITY of
GLASGOW DISTRICT COUNCIL [1987] ICR 796, [1987] IRLR 326, HL; POST OFFICE
(Counters) Ltd V. HEAVEY [1990] ICR 1, [1989] IRLR 513, EAT; IREKA
CONSTRUCTIONS BERHAD v. CHANTIRAVATHAN a/l SUBRAMANIAM JAMES
[1995] 2 ILR 11 and TELEKOM MALAYSIA KAWASAN UTARA v. KRISHNAN KUTTY
SANGUNI NAIR & Anor. [2002] 3 CLJ 314).

The Evidence and its Evaluation:

THE RESPONDENT’S CASE

The Respondent from the outset had raised objections towards the admissibility
of the supporting documents sought to be tendered by the Claimant; namely pages 12
to 35 of Claimant’s Bundle of Documents (CLB). These documents were marked as “ID”
documents as a result.

The Respondent produced two witnesses in the persons of Moorthy Murugaiah

( COW 1) and Mohd Rethdian Mohd Yusof ( COW2 ). The Court finds that the matters
preceding the event that led to the dismissal of the Claimant is not in dispute, to wit, the
Claimant’s employment history with the Respondent.

COW1; the Human Resources Director of the Respondent testified on the events
that triggered the Respondent to conduct the background check. Following the
acquisition of the said Smart Storage, the Respondent engaged an external party to
conduct employment background checks focusing among other, the employees/
academic background. In the process HireRight reported that the said University was
found to be a bogus diploma mill. COW1 also testified that online reports on the said
University showed that it was a bogus outfit. The Respondent also engaged the
services of RiskControl Ltd which produced a “Final Background Report“ dated the 4 th of
September 2014 which inter alia reported that the said University was not on the
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Recognised Bodies list nor have been granted the right to award UK degrees. (COB
Pages 33-34 ). COW1 further testified that he had contacted the Malaysian Ministry of
Education and obtained confirmation that the said University is not an accredited in
Malaysia. (COB-1 Pages 59 – 60). This confirmation was made post-dismissal.

As the Security Analyst for the Respondent, COW-2 testified that he had
conducted checks on the website named University Directory Website as well as United
Kingdom public sector information website but failed to locate the said University.
(COB1 Pages 19 to 58)

THE CLAIMANT’S EVIDENCE

The Claimant gave evidence on his behalf. He testified that he had submitted the
certificates to said SMART Storage and that they were satisfied with the same. Save for
that statement, the Court is unable to find any evidence where the Claimant vouches for
its authenticity. Be that as it may, the Claimant was cross-examined extensively on the
documents (in spite of the Respondent objecting to its admissibility) as well as the
course that the Claimant claims to have attended. As the Claimant did not call for
evidence to admit the documents in dispute, this Court shall disregard the same. The
Claimant testified that he had indeed attended the course and had successfully
graduated therefrom. The Court finds on a balance of probability that the Claimant
could not have genuinely obtained the Bachelor of Engineering Degree for the said
University on the following grounds:

a. The burden lies with the Claimant to prove that the certificate is
genuine. He could have easily obtained confirmation from the
university where he claims to have graduated from to verify the same.
He failed to do that. The failure to do so would render the certificate
not genuine.

b. That he took two (2) years to complete his engineering degree

studying part-time on weekends only. Sometimes, on Fridays. The
Claimant gave evidence that he completed his course without having
to repeat any of his papers. This Court takes judicial notice that that
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 studying for an engineering degree takes at least 4 years full-time and
6 to 8 years part-time. The Claimant would not have possibly
completed this course in 2 years.

c. His place of study is at a shop lot. His course was not an online course
but a taught course. The Claimant took a total of 20 subjects.

d. Nowhere in his pleadings or in his evidence did the Claimant positively

aver that the degree was genuine.

e. The Claimant did not raise any objections towards the admission of the
Respondent’s documents relating to the online searches done on the
said University.

This Court also finds that finds despite the Claimant having submitted the
Bachelor of Engineering degree to the said SMART at the material time i.e. in 2008, it
was never pleaded (nor in evidence) by the Respondent that the said degree was
considered or was the deciding factor in the Claimant’s progression within the ranks of
the Respondent. It was also not pleaded by the Respondent that the degree had in
some way influenced the Respondent to grant the Claimant some form of benefit. It if
was not even considered by the Company, it cannot said that the Claimant had used the
degree for an unlawful purpose or to gain some advantage. The Court also finds at the
same time that it was not the pleaded case of the Claimant that the degree is genuine.
This Court is aware of the decision of the Federal Court in Ranjit Kaur S Gopal Singh
v Hotel Excelsior (M) Sdn Bhd 2010] 8 CLJ where the Court held as follows:

(6) Section 30(5) of the Act cannot be used to override or circumvent the basic rules
of pleading. The Industrial Court, like the civil courts must confine itself to the
four corners of the pleading. Pleadings in the Industrial Court are as important as
in the civil courts. The appellant must plead its case and the Industrial Court
must decide on the appellant’s pleaded case. The Industrial Court’s duty, to act
according to equity, good conscience and substantial merits of the case without
regard to technicalities and legal form under s. 30(5),does not give the Industrial
Court the right to ignore the Industrial Court Rules 1967.

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 The Court is of the considered view that although the law is in favour of the
Claimant in that it was not the pleaded case of the Respondent that the Claimant was
endowed with some form of benefits resulting from the said Engineering Degree, the
facts of the case inevitably tilts in favour of the Respondent. The very fact that it was
submitted to the Respondent tend to show an irresistible inference that it was to be
used for a collateral purpose. This Court relies in the decision of a SAID
DHARMALINGAM ABDULLAH v. MALAYAN BREWERIES (MALAYA) SDN. BHD
[1997] 1 CLJ 646 where the then Supreme Court held:

[6] There was a partial denial of the appellant’s right to due inquiry when he
was denied the opportunity to make a plea in mitigation before the domestic
body herein. The misconduct proved against the employee, however,
was very grave, involving as it did the element of dishonesty and a
high degree of premeditation and preparation. The appellant must
therefore have been aware, that in the event of an adverse finding on
the issue of liability, dismissal would be a mandatory sequel. Indeed,
no other punishment was possible given the circumstances of the case. It
follows that it would have been a useless formality to have accorded the
appellant the right to make a plea in mitigation as the penalty would have
been the same even if that right had been exercised. (my emphasis)

The Court in Said’s case ( supra ) at page 663 hastened to add the following:

As much time has been expended in considering questions of law which

we had decided in favour of the Employee, although ultimately, on the
facts, we have found in favour of the Employer, we make no order as to
costs. The deposit paid into Court by way of security for costs must be refunded.
(my emphasis).

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 Based upon the whole of the evidence presented in this case and applying s. 30
(5) of the Act thereupon, and having considered carefully the written as well as the oral
submissions of both the learned Counsels; and applying the relevant jurisprudence to
this case; it is the considered view of this Court that the Company has by its evidence at
the trial has on a balance of probabilities, proven that the Claimant had committed a
grave misconduct that warrants dismissal.

The Finding:

The Claimant’s position as adduced from his case remained quite unpersuasive.
It did not cast any reasonable doubt against the Respondent’s case.

As such, it is the firm finding of this Court that this dismissal was with just cause
or excuse.

As a corollary it follows that this is a case that does not require the intervention of
this Court on behalf of the Claimant.

The Final Order:

It is therefore ordered that this claim be and is hereby dismissed.

HANDED DOWN AND DATED THIS 2nd DAY OF JUNE 2017.

~ Signed ~

(DOMNIC SELVAM GNANAPRAGASAM)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG BRANCH ~ AT GEORGE TOWN

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