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AND
SYARIKAT PRASARANA NEGARA BERHAD / RANGKAIAN PENGANGKUTAN
INTEGRASI DERAS SDN BHD
AWARD NO: 1146 OF 2019
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AWARD
Background
[1] This is a reference by the Honourable Minister of Human Resources
under Section 20(3) of the Industrial Relations Act 1967 (Act 177) ('IRA')
on 27.3.2013 to the Industrial Court arising out of the dismissal of ten (10)
[2] The Claimants’ case is that they have all been unfairly and unjustly
was fair and just to dismiss all the Claimants in view of their misconduct
as set out in the Charges preferred against them. And if the Respondent
fails to satisfy that burden of proving that it had acted with just cause or
excuse in dismissing them, then the Court shall either reinstate them to
in lieu of reinstatement.
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[3] All the 10 Claimants have been charged with misconduct and were
after a Domestic Inquiry (“DI”) was carried out. Only the 5 Claimants listed
(a) Claimant number 4 is Faizuly Shah bin Yahya (“C4”). He was a bus
driver and was dismissed on 18.9.2012.
(c) Claimant number 8 is Maani bin Madjan (“C8”). He was also a bus
driver and was dismissed on 23.10.2012.
[4] As the other 5 claimants did not proceed with the hearing, their
for the Respondent informed the Court that the Respondent will only be
proceeding with the Charges involving the fraudulent use of the Password
and ID of the Enforcement Officer by the name of Zaiful Bin Idris (“COW6”)
Claimants and then fraudulently submitting only the amounts stated in the
Court.
(FCSD). The Head of Department of FCSD was the late Encik Aminza
Bin Abdul Aziz (“COW4”) who was one of the witnesses who testified on
behalf of the Respondent in this case. The Court was fortunate to hear
his testimony despite the many adjournments that happened in this case
for various reasons. Shortly after he gave his evidence in Court, the Court
was informed that he had passed away in the Holy City of Mecca (May he
(IT) Department and FCSD. COW1, Pn Sallizatul Azra Binti Razali was
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material time till to date. The Audit Trail Data plus other related relevant
COW1 and COW4 testified at the hearing based on the data from the
the Respondent has 2 types of machines in all their buses, either the KDE
machines shown on p17 COB9 or the IRIS machine shown on p18 COB9.
Photo 2 in p17 and p18 COB9 show the location of the machine which is
exactly (directly) facing the driver. When a passenger boards the bus, the
passenger will drop their fare into the coin box and the driver will punch
the ticket for the passenger. The busses are one-man operated busses.
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[8] Photo 3 in P17 and p 18 of COB9 show the position of the machines,
vis a vis the driver and the enforcement officer who will board the bus to
check on the driver and the passengers. COW3 explained that when an
enforcement officer boards the bus, the enforcement officer will have to
go close to the driver because the ticketing machine is facing the driver.
to punch in his password and ID, the chances are very high that the bus
drivers will see the entering of the password and will be able to obtain the
testimony of COW3 that the bus driver can obtain the password of the
enforcement officer due to the very close proximity between the driver and
the ticketing machine especially if the enforcement officer does not ensure
that the bus driver looks away when he is keying in his ID and password.
[9] In his testimony, COW3 stated that maintenance of the bus will not
be done to the bus whilst it is on the road. Maintenance on the bus will
only be carried out when the bus is in the bus depot. However, the data
from the CDCRS shows that the password and ID of the maintenance
technician was used during the time when the buses were on the move
during the trips made by the Claimants. In his testimony, the Technician,
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En Nor Hisam bin Mohamad Bazin (“COW2”) stated that he was not aware
that his password and ID were being used by the Claimants until he was
as COWS2, his answer to Q11 is that the bus drivers will be around him
watching him carry out maintenance work to the ticketing machines in the
depot and so they will be able to get to know his ID and password.
[10] In cross examination, COW2 testified that he will only log once in
the mornings when the drivers ask him to change the time and date on
the Ticketing machine on their buses and that he will not log in several
times per trip as what had happened. Moreover, he testified that the Bus
Route on which his ID and password had been used is not where he is
assigned to work.
[11] When he was asked why and what benefit the bus drivers will get if
follows:
“ID dan Kata Laluan juga boleh digunakan untuk mengubah masa dan
tarikh yang direkod dalam mesin tiket bas. Misalnya, pemandu apabila
tamat tugas antara jam 8.00 pagi hingga jam 1.00 tengah hari dan
kutipan tambang sebenarnya berjumlah RM500.00 boleh dengan
menggunakan ID dan Kata Laluan menukar semula masa kepada jam
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8.00 pagi hingga jam 1.00 tengah hari dan mengeluarkan tiket untuk
jangka masa tersebut hingga menunjukkan jumlah kutipan yang kurang;
misalnya RM100.00. Ini bermakna dia boleh tidak menyerahkan
sebanyak RM400.00”.
[12] In cross examination, when it was put to COW2 that he was the one
who had keyed in the password and ID himself when he carried out the
maintenance work on the bus WBP 3247 on 12.7.2011 for C4, COW2
denied and did not agree. His reply is that at rows 10 and 11 COB8 at p
175 on 12.7.2011, he was working at Depot Cheras and not at the Depot
PD3. Therefore he could not have been the one to key in the password
[13] Again at rows 15 and 16 p175 COB8, at 7.03 and 7.04 on 12.7.2011
involving the same driver who is C4, COW2 did not agree that he was
working at that place at that time. The same for rows 21 and 22, 28 and
29, 32 and 33, 37 and 38, 41 and 42, 52 and 53, 58 and 59, 68 and 69,
carried out in another depot and not in the depot where COW2 was
stationed at. COW2 further testified that he will not be logging into the
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system to do maintenance for the same bus several times a day and at
[14] COW4 went through each and every row of the data printed out from
The record of the log in time is tabulated in Table 1 of COWS1a. The full
details are shown in the pages indicated in the columns in COB1, COB8
and COB9. Table 2 of COWS1a shows the use of the password and ID
belonging to COW6 who was the assistant enforcement officer at that time
to access and make changes to the Ticketing Machine that was under his
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bus route was less than the amount actually collected in the Ticketing
Machine.
[16] According to the CDCRS records, the actual waybill from the
by using the ID and password of COW2 and COW6, C4 and the other
print another waybill which indicates that a lower sum had been collected.
The waybill with the lower sum is then handed over to the Respondent
together with the lesser amount of cash collected. The changes made to
occasion.
using the ID and password of COW2 and COW6, C4 was able to produce
a fictitious waybill for the sum of RM201.70 and C4 only handed in the
for the sum of RM346.80 and another one for RM201.70 but C4 is
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unaware of that and he only submitted the waybill for RM201.70. This has
[18] COW4 pointed out many other incidents of tampering showing that
C4 has used the password and ID of COW2 and COW6 to change the
Pages 9-15 COB9 shows every ticket transaction that was issued on
15.7.2011. On p16 COB9, COW4 pointed out that the time 13.26 pm has
been changed to 5.50 am, the serial number of the ticket is continuous
and keeps going up even though the time has been changed because the
ticket number cannot be manipulated. Further at 8.20 am, all the 9 tickets
were issued within less than 2 minutes for trip number 4. According to
half an hour and not 2 minutes. Moreover, 8.20 am is peak time and
therefore, it is not possible for all the tickets to be issued in less than 2
[19] All the other instances where C4 has used the password and ID of
either COW2 or COW6 to fraudulently change the time and the amount of
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COB1, COB8 and COB9 when she gave her testimony in Court. The
Court does not intend to set out her evidence in totality except to state that
the Court has noted all the evidence adduced regarding all the instances
carried out acts of dishonesty, which if not explained, will give the
Respondent just cause and excuse to dismiss him. The Court will deal
with the explanations given by C4 and all the other Claimants collectively
as all the Claimants have all given the same answer for the Charges
against them.
[19] The dates and timeline of C6 using the ID and password of COW6
times C6 has used the password and ID of COW6 to access and make
changes to the Ticketing Machine even when COW6 had not been on duty
on the bus route that C6 is driving or when COW6 had been on annual
leave.
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[20] As stated by the Respondent in its written submission at p16, C6
this date and at this time, on the bus driven C6. The Respondent
extracted the relevant data from the CDCRS and printed out “Data Pada
Waybill Inspektor Bus Enforcement” and adduced the data at p23 COB2.
It was recorded that the bus was not inspected on 28.4.2011. Hence, the
In Row 4, Column G, of COB9, it can be seen that COW6 was using his
2011. There was a log-in using the ID and password of COW6 at the Bus
Route U43 at 07:40 am from the bus that C6 was driving on that day at
that the ID and password of COW6 was also used at Bus Route U30 at
07:33 am and Bus Route U22 at 07:50 am. According to COW1, the
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as there were no inspections carried out by COW6 on Bus Route U43,
COW6 did not use his password on Bus Route U43 which was under the
[22] COW4 testified in Court that the purpose of using the ID and
to find out the amount of fares collected and registered in the Ticketing
Machine during the trip. C6 had then adjusted the time and amount
he can submit an amount that is very close to the amount stated in the
fabricated waybill when in actual fact, he is duty bound to submit the full
referred to p189 COB8 in the last 2 columns where the amount stated in
the waybill and the amount collected is almost always the same to show
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[23] According to COW4, the same pattern is used throughout for all the
ID of COW6 and has apologised for the wrong doing, stating that he did
repeat the wrong doing. On top of that, he has also offered to pay back
the short fall in the actual amounts handed over to the Respondent after
the trips he had made. He did not show up for the court hearing to give
[24] C6 has not provided any cogent evidence to suggest that the
and C6 has also not rebutted any of the evidence adduced in Court
against him. He had in actual fact admitted to his wrong doing in his reply
to the show cause letter and his case should not have been referred to
this Court in the first place. It makes no sense to put an employer through
such a tedious task of proving its case when the facts clearly show that
has even offered to pay back the amounts that are short.
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[25] The Industrial Relations Department (“IRD”) is advised to relook at
its role and to keep the objects of the IRA uppermost in its mind when
dealing with such cases. The IRD is to ensure that industrial disputes are
speedily and fairly disposed of and must act fairly to both employer and
environment with workers of high productivity who are honest and who
who cannot resist the temptation of pocketing any cash they see that
has been adduced by the employer or where there are admissions or even
assigned to C8 is very different from Bus Routes U25 and U45 and other
driver of the bus on T430 and the same ID and password belonging to
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COW6 was also used on Bus Routes U25 and U45 at about the same
[27] On top of that, the amount of fares collected by C8 did not vary much
with the amount stated in the waybill. The Respondent knew that the
amount collected per day was too low even though the amount seems to
tally with the amount stated in the waybill. The modus operandi is that C8
will not issue tickets to the passengers who have paid their fares and by
using the ID and password of COW6, C8 will then get to know the amount
of fares that has been recorded in the waybill and hence he will know how
much money to hand over to the Respondent at the end of his shift and
Bus Route 2 minutes before it was used on a bus captained by C8. COW1
and password of COW6 was used by C8. COW3 has also testified that
due to the proximity between the Ticketing Machine and the driver, there
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is no way any other person would have access to the Ticketing Machine
no way COW6 could have accessed the Ticketing Machine whilst C8 was
assigned to another Bus Route and was not on the Bus Route driven by
C8. In fact, it is not C8’s defence that COW6 had got on to his bus to
inspect the bus or tickets. Again, his defence is the same as that of the
Respondent’s show cause letter that he had used the ID of COW6 to see
the amount collected on the bus trips. C9 said that he did not know that
the collection was short of the amount stated in the waybill. C9 claimed
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that he had no ill intention when using the ID and password of COW6 and
suspicion that the waybill has been tampered with. One is the amount
stated in the waybill which is almost so exact and almost tallies with the
amount in the waybill is handed over by C9, it means that C9 has access
to the waybill for the trip and knows the amount registered in the waybill
and has thus submitted an amount that is close to the amount stated in
the waybill.
[32] According to COW4, there are drivers who ask the passengers to
hand over their fares to him and not put it directly by themselves into the
Ticketing Machine. In that way, the driver then gets to keep the money for
himself. Further, about 90% of the drivers do not give out change to the
Ticketing Machine. Thus, when the driver hands over an almost exact
amount of cash as that recorded in the waybill, the Respondent will know
that the driver has had sight of the waybill before handing over the cash
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[33] The second item that raised the Respondent’s suspicion is the very
low amount of fares handed over to the Respondent’s office after each
trip. According to COW4, the Bus Routes plied by the Respondent will not
give a return of less than RM100.00 per trip. Thus, looking at the last two
collected were way too low at RM41.00 and RM59.00 and the waybill
matched.
C9 has also agreed that using the ID of COW6 is prohibited and that it is
wrong to do so. Based on this admission, knowing fully well that he is not
ID, the Court finds that the Respondent has proven the Charges against
C9. The evidence given by COW1 is very clear on p7 of COB9 and has
not been rebutted by C9. The answers given by COW1 during cross
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Claimant No 10 (C10): Yusoff bin Bavajee
[35] The timeline of C10 using the ID and password of COW6 are shown
will need to board the bus 4 times to inspect the bus and to print out the
16:34:59. COW1 pointed out in the last column of Table 28 and Table 29
At about the times mentioned, the ID and password of COW6 was used
elsewhere, that is on Bus Route U88 at 10.23 am, on Bus Route U22 at
12.44 pm, on Bus Route U48 at 13.49 pm and on Bus Route U6 at 16.34
pm respectively.
[36] COW1 further referred to Tables 30-38 in COWS1a and showed that
the times when COW6 was allegedly using his ID and password on the
bus, C10 was the captain of the bus. Further, at the times when COW6
was allegedly using his ID and password on the bus, he was in actual fact
duty roster and annual leave records that were adduced at pp89-94 in
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COB5, COW1 was able to show that COW6 was never assigned to be the
said he made a police report when he found out that the drivers were
[37] in his testimony, COW4 referred to p185 COB8, where he told the
Court that what had happened in this case is the same thing that has
happened in the other cases where the ID and password of COW6 was
used even though COW6 was actually working in another location which
is far away from the Bus Route C10 is assigned to. Thus, it is not logical
[38] Another thing which pointed to the illegal use of COW6’s ID and
password is that the daily amount submitted to the Respondent is too little
29.7.2011, the amount recorded as due from the waybill was RM101.20.
However, another waybill was submitted for the sum of RM13.90 as seen
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[39] COW4 then referred to p1 COB9 to show that all the Claimants have
been doing similar things to deprive the Respondent of its daily takings of
the bus fares and that the one example in p1 COB9 applies to all the
Claimants except for the dates and time. COW4 pointed out that the
[40] At line No. 26, p112 COB8, it can be seen that on 12.7.2011, at
08:57:13 and logged out at 08:57:18, the password and ID of COW6 was
used at another bus route and in line No. 27 of the same document, it can
be seen that the password and ID of COW6 was used again at 09:09:14.
C4 was using the ID and password of COW6 because the time difference
between the two log-ins is too short and it is impossible for COW6 to be
on 2 different bus routes that are so far apart. The comments in the last
CDCRS.
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[41] Looking at the Audit Trails for the 5 Claimants which have been all
adduced in COB8, it is clear that there are definitely multiple log-ins by the
hearing the testimonies of the witnesses, the Court is satisfied that the
Ticketing Machine in the bus is always under the full control of each of the
Claimants during the time they first start their shift until the end of their
shift and there is no other person who could have accessed the Ticketing
[42] The Claimants have all pleaded ignorance to the events that had
taken place in their witness statements except for C9 who said in his Q&A
13 in CLWS9 that he had admitted to using the ID for Charges 2-3 after
admit that he is not supposed to use anyone else’s password and ID. He
also admitted that with reference to p38 line 10 and 11 in COB4, the bus
further admitted that COW6’s ID and password had been used in his bus
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[43] All the Claimants have answered “tidak tahu-menahu” in the use of
the password and ID of COW4 and COW6 and on how the passwords or
their control except for the admissions of C9 as stated above in the cross
examination . All the bus drivers are the captains of the buses they are
driving and they have been put in charge of the buses whilst they are on
[44] No positive averments had been made by any of the five Claimants
regarding the dishonest acts carried out by the Claimants whilst the buses
are under their control and custody. Mere averments of “tidak tahu-
menahu” are not sufficient to dispel the evidence against them. The result
is that the Court has nothing upon which to disbelieve the overwhelming
of all the Claimants and that the dismissal of all the Claimants are with just
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[45] In its Written Submission at p5-6, the Respondent’s representative
had referred to the case of Aik Ming (M) Sdn. Bhd. & 8 Ors v Chang
Ching Chuen & 3 Ors [1995] 3 CLJ 639 at 659, where the Court of Appeal
held as follows:
[46] It is the Respondent’s contention that the Claimants had failed to put
follow that the evidence relating to the commission of the many instances
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of misconduct given by COW1, COW3 and COW4 remain unchallenged
and must be taken in their entirety. As stated earlier, all the Claimants
have stated that they are unaware and know nothing about the keying in
unable to accept their version as none of them could show when the bus
Ticketing Machine was not within their control or that others could have
access to the Ticketing Machine, which is placed right in front of their faces
[31] In my view, this modality does not exist for an employee in an action
pursuant to a reference to the Industrial Court under the Industrial Relations
Act 1967. By virtue of r 9(3) of the Industrial Court Rules 1967, a claimant is
obliged to set forth the relevant facts supporting his claim. The fact that the
burden of proving that the dismissal was not without just cause or excuse lies
on the employer does not absolve the employee of the obligation of putting
forward an affirmative case, since it is the employee who has put into motion
the claim by his representations to the Director General for Industrial Relations
pursuant to s 20 of the Industrial Relations Act 1967.
[32] Thus, it will not be open to an employee to simply state that he will put
the employer to strict proof of the existence of a just cause or excuse. He must
put forward an affirmative case as to why his dismissal was not based on a just
cause or excuse”.
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[48] The principles in the above decisions simply means that the
case as to why his dismissal was not based on a just cause or excuse.
Further, nothing was put forth during cross examination to rebut the
evidence given by COW1 and all the other witnesses for the Respondent
and no reasons were given to show why their Ticketing Machine yielded
the recordings that showed extensive tampering and fabrication with the
use of the password and ID of COW2 and COW6. Thus, there is nothing
the balance of probability that all the five Claimants are guilty as charged.
glaring as evidenced from the Audit Trail Data recorded from the Bus
Ticketing Machine.
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[50] The Audit Trail Data has been transmitted from the busses to the
regards to the fares and entry into the Bus Ticketing Machine by the
able to know exactly at what time, which person and how many times an
CDCRS and for what purpose. As stated earlier, the Court is of the view
that the evidence has been given in great detail by COW1 and has been
COW3 together with COW2 and COW6 have dispelled any doubts as to
COW6 could have been committed by anyone else but the Claimants
themselves.
[51] The need for Malaysia to have a workforce that is honest and that
failing in its duty if it does not dismiss the Claimants’ claims after
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malignant practice. Public interest requires that such practices be put to
probability.
that hundreds of ringgit have been siphoned off from the Respondent
suffer losses amounting to the tune of about RM100 million per year. It is
only with the use of technology that the Respondent has been able to
prove that the waybills that were submitted to the Respondent have been
[53] The Court need only look at the case of Pearce v Foster (1886) 17
Respondent can dismiss the Claimants with immediate effect when the
faithfully and have all engaged in acts of misconduct inconsistent with the
due and faithful discharge of their duties to the master. Per Lopes LJ:
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“If a servant conducts himself in a way inconsistent with the faithful discharge
of his duty in the service, it is misconduct which justifies immediate dismissal”.
LNS 1190, the learned Chairman in another division of the Industrial Court
upheld the bank’s decision to dismiss the claimant as being with just
“Hence considering the very nature of the banking industry and the position of
trust and confidence that was reposed on him by the Bank it would not be
wrong for the Court to classify the Claimant's acts of misconduct as one that
justified immediate dismissal by his employer. Non-compliance of procedures
are serious misconducts that would warrant dismissal in the banking and
financial institutions. A high standard of care is expected from employees
working in such industries and who deal with public funds. The Claimant's acts
of omissions amount to a breach of the confidential relationship between
master and servant such as would render the servant unfit for continuance in
the bank's employment and therefore the bank had the right to dismiss him.”
[55] Having considered the nature of the job of the Claimants, which is
to receive the fares from passengers and to hand over all the fares
amount stated in the waybills, the Court is of the view that the duty
who are working in similar capacities so that they do not cause any losses
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to know that pilferage or theft of their employer’s monies amounts to a
criminal breach of trust for which they can be charged in the criminal
[56] Therefore, the Claimants’ claims are dismissed and the Court holds
that all the Claimants have been dismissed with just cause and excuse by
fortunate that even with the overwhelming evidence showing the wrong
Signed
(TAN GHEE PHAIK)
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR
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