INDUSTRIAL COURT MALAYSIA

CASE NO. 17/4-1098/13

BETWEEN
YACUB BIN SURUKI
AND
SAFEGUARDS G4S (SABAH) SDN BHD

AWARD NO: 460/2015

BEFORE

: YA TUAN DUNCAN SIKODOL

Chairman (sitting alone)

VENUE

: Mahkamah Perusahaan Malaysia, Kota Kinabalu, Sabah.

DATE OF REFERENCE: 03.07.2013

DATES OF MENTION : 02.09.2013, 15.11.2013 & 26.05.2014
DATES OF HEARING : 18.09.2014 & 06.11.2014
DATE OF CASE MANAGEMENT: 13.12.2013
REPRESENTATION

: For the Claimant In person

For the Respondent - George Young JR
Representative of the Company

REFERENCE:

This is a reference by the Honourable Minister of Human Resources under Section

20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of
YACUB BIN SURUKI (hereinafter referred to as "the Claimant") by SAFEGUARDS
G4S (SABAH) SDN. BHD. (herein referred to as "the Company") on the 4th August
2012.

AWARD

Brief Background Facts

The Claimant now aged 41 years commenced employment with the Company on the
12th December 2009 as a Security Guard. He was later promoted to Senior Security
Guard and confirmed to the said post on the 1st December 2009. The last position that
he held prior to his dismissal was as an ATM Technician drawing a salary of RM754.00
per month. The Company on the other hand is a Security Guard Company providing
security services for cash transported by banks or Companies from one destination to
another.
On the 22nd June 2012, the Claimant allegedly copied the signature of the Branch
Manager without his knowledge, to enable the Claimant to collect the cash from RHB
Bank, Tawau. As a result of that, the Company caused an investigation to be
conducted into the matter. When the investigation was completed, the Company filed a
charge against the Claimant and a DI was held on the 10 th July 2012. During the DI,
the Claimant entered a plea of guilty whereupon as a result, the Claimant was
dismissed from his employment. The Claimant then appealed against the dismissal but
the Companys BOD rejected his appeal.

Whether the Claimant was guilty of misconduct.

At the DI hearing held on the 10th July 2012 against the Claimant at the Managers
Office, Safeguards G4S Sdn Bhd, Tawau, the Company filed the following charge
against the Claimant:

Pada 22hb Jun 2012, bertempat di RHB Bank Berhad Tawau, semasa saudara
masih

didalam

perkhidmatan

sebagai
3

Juruteknik

ATM,

saudara

telah

memalsukan tandatangan pengurus cawangan En Azri Bin Abdul dalam borang

kakitangan yang diberi kuasa untuk membuat kutipan wang tunai (Authorized
Personnel for Cash in Transit) semasa hendak melakukan kutipan wang tunai
berjumlah RM530,000.00 di RHB Bank Berhad untuk di bawah ke CPC
Cawangan Tawau. Perbuatan saudara ini adalah tidak berintegriti dan boleh
menyebabkan Syarikat mengalami kerugian.

As the Claimant pleaded guilty to the charge against him, the panel of the Domestic
Inquiry therefore found the Claimant guilty of the charge and by punishment order
dated the 3rd August 2012, he was dismissed with immediate effect.

The Claimant now contends that his dismissal by the Company was without just cause
or excuse. He therefore seeks to be reinstated to his former position or be given
compensation in lieu of reinstatement.

The Law
In the often cited case of MILAN AUTO SDN BHD v WONG SHE YEN (1995) 4 CLJ
449, the duty of the Industrial Court in dismissal cases on a reference under s. 20 was
stated by His Lordship Mohd Azmi FCJ as follows;

As pointed out by this Court recently in Wong Yuen Hock v Hong Leong Assurance
(1995) 3 CLJ 344, the function of the Industrial in dismissal cases on a reference
under s. 20 is twofold: first, to determine whether the misconduct complained by the
employer has been established and secondly whether the proven misconduct
constitutes just cause or excuse for the dismissal

It is trite law that the Company bears the burden to prove that the Claimant had
committed the alleged misconduct and the conduct warrants the Claimants dismissal.
See Ireka Construction Bhd v Chantiravanathan a/l Subramaniam James (1995) 2
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ILR 11 (Award No. 245 of 1995).

The Company needs only to prove misconduct justifying the dismissal or termination
on the balance of probabilities. See Telekom Malaysia Kawasan Utara v Krishnan
Kutty a/l Sanguni & Anor (2002) 3 CLJ 314 (CA).

Witnesses

The following witnesses testified at the hearing of this case:

COW1 Ms Ho Hui Choo, RHB Bank Bhd Customer Service Officer and her witness
statement was marked as COWS-1

COW2 Mr Lee Yuen Ching, Regional Manager, East Malaysia and his witness
statement was marked as COWS-2

COW3 Encik Azri Bin Abdul, Branch Manager, Safeguards G4S (Sabah) Sdn. Bhd.
and his witness statement was marked as COWS-3.

COW4 Ms Eugene Verghese Jacob, General Manager, Human Resource and her
witness statement was marked as COWS-4.
.
CLW1- Yacub bin Suruki, the Claimant and his witness statement was marked as
CLWS-1

The following bundle of documents were also used in court and marked as follows;

Company Bundle of Documents as COB1, Companys additional Bundle of

Documents as COB2 and Claimant Bundle of Documents as CLB1.

Issues for determination

In this case, it is an undisputed fact from the evidence that the Claimant was
dismissed by the Company on the 4th August 2012. Based on Colgate Palmolive (M)
Sdn Bhd v Yap KoK Foong & Another Appeal (2001) 3 CLJ 9. It now remains to be
considered whether the dismissal was with just cause or excuse. Since the Company
had conducted a DI prior to the Claimants dismissal, it is therefore necessary to
examine whether the Company had complied with the rules of natural justice when it
conducted the DI.

Whether the DI held by the Company against the Claimant was valid?

It is trite law that a where DI had been conducted, the Court should first consider
whether or not the DI was valid and whether the D.I. notes are accurate. See
Bumiputra Commerce Bank Bhd v Mahkamah Perusahaan Malaysia & Anor
(2004) 7 CLJ 77.

The Claimant in the rejoinder alleged that his recourse to natural justice has been
denied by the Company in that the panel who sat at the DI was biased and that they
merely wanted him out. He alleged further that they did not want to hear his
explanation as to why he copied the signature of the Branch manager but only want
him to either plead guilty or not. He also alleged that he did not plead guilty to the
charge but merely agreed that he made a mistake. Apart from that, he also further
alleged that the Chairman of the panel never read back to him the notes taken by
Mohd Sany bin Mapiasah and was only asked to sign the notes of proceedings after
the DI was over and outside the room where the DI took place.

I have carefully scrutinized the notes of proceedings given at the disciplinary inquiry
and this Court is satisfied that natural justice had been complied with. There is nothing
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in the DIs notes of proceedings to indicate that the DI panels were biased neither is
there any evidence that the Claimant was not given an opportunity to be heard. The
allegation by the Claimant that the panel did not bother to listen to his explanation
cannot be true as evidence clearly showed that the explanation given by him were all
recorded. After the charge was read to him, he admitted that he was at fault in copying
the signature of the Branch manager. After his admission, he was also asked whether
he wants to make a plea in mitigation which he did.

Be as it may, this court will bear in mind the Court of Appeals decision in Hong Leong
Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals (1997) 1 CLJ 665 where
the Court held that :

The fact that an employer has conducted a DI against his workmen is, in my
judgment, an entirely irrelevant consideration to the issue whether the latter had been
dismissed with just cause or excuse. The findings of a DI are not binding upon the
Industrial Court which rehears the matter afresh. However, it may take into account
the fact that a DI had been held when determining whether the particular workman
was justly dismissed.

Were it otherwise, the guilt or innocence of a workman upon a charge of misconduct

would be decided not by the Industrial Court, but the employer himself. That, with all
respect, is not the purpose for which parliament went through the elaborate process of
Legislating the Act and setting up special machinery for the vindication of the right of
Workmen

Hence, even if the Court makes a finding that the DI had been validly held and the
notes of the DI proceedings are accurate, the Court should still proceed to hear the
evidence of all the witnesses for both sides in determining whether the Claimants
dismissal was with just cause or excuse. Since a DI had been held in this case as well
as the DI notes were found to be accurate, this Court will therefore take into account
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all this factors together with the evidence adduced at the trial proper in determining
whether the Claimant had been dismissed with just cause or excuse.

Whether the dismissal of the Claimant was with just cause or excuse?

The Charge preferred against the Claimant is as follows:

Pada 22hb Jun 2012, bertempat di RHB Bank Berhad Tawau, semasa saudara
masih

didalam

perkhidmatan

sebagai

Juruteknik

ATM,

saudara

telah

memalsukan tandatangan pengurus cawangan En Azri Bin Abdul dalam borang

kakitangan yang diberi kuasa untuk membuat kutipan wang tunai (Authorized
Personnel for Cash in Transit) semasa hendak melakukan kutipan wang tunai
berjumlah RM530,000.00 di RHB

Bank Berhad untuk di bawah ke CPC

Cawangan Tawau. Perbuatan saudara ini adalah tidak berintegriti dan boleh
menyebabkan Syarikat mengalami kerugian.

Companys contention

The Company states that the termination of the Claimants services by the Company is
justified as he had committed a serious misconduct by copying the signature of the
Companys Tawau Branch Manager without his knowledge..

Claimants contention

It is the Claimants case that his dismissal was without just cause or excuse. He
admitted that what he did was a mistake but explained that he did it without any bad
intention but merely to speed up his work.

Evaluation and Findings

COW1, who is the Banks RHB Customer Officer, testified that on the 22nd June 2012,
she was on duty at the counter. Whilst there, she noted that there was a little bit
difference between the signature in the authorized letter submitted by the Claimant
and the authorized signature given by the Company. Upon the said discovery, she
then immediately called the Branch manager COW3.

COW3 in his witness statement testified that upon being alerted of the discovery of the
forged authorization form, he immediately informed the Regional Manager COW3. He
testified further that he had never authorized the Claimant or anyone else to sign on
the authorized form in his absence. In cross examination, he testified that the Claimant
must call him first if there is a need for him to sign on the authorization form and
denied that the Claimant ever called him about this. He went on further to testify that in
his professional opinion, the action of the Claimant is deemed as serious misconduct
by the management. Copying other persons signature is a breach of trust and is
serious offence not only in any Company but also under the Malaysia Act.

COW2, the Companys Regional Manager confirmed receiving a call from COW3
regarding the incident and proceeded to conduct an investigation. He testified that in
his investigation, he called both COW3 and the Claimant. In his investigation, he
confirmed that the Claimant had falsified the signature of COW3. As such, he then
issued a suspension latter dated 25th June 2012 after consulting with the Companys
HR Department. He further explained that the rationale for issuing the suspension
letter dated 25th June 2012 was because as a security Company dealing with cash
integrity of staff and compliance of procedures is very crucial. Therefore, he further
reiterated that falsifying the signature of the manager on authorized letter is very
crucial.

COW4, the Companys Human Resource General Manager, testified that the the
9

breach of trust and confidence committed by the Claimant prompted the Company to
issue a suspension letter instead of a show cause letter. COW4 further testified that
the Company concurred with the findings of the DI panel and that in view of the
seriousness of the misconduct committed by the Claimant, the Management decided
to dismiss the claimant effective the 4 th August 2012. COW4 also testified that in his
professional opinion, the act committed by the Claimant is a major misconduct.

The Claimant admitted during cross examination that he was the last person to receive
the authorization letter from the office. However, in cross examination, he denied in
signing the letters dated 16th August, 25th August and 3rd November 2012.

In this instant case, there is no doubt that the Claimant had at the DI clearly admitted
to the charge against him but explained that he did it without any bad intention but
merely to speed up his work. However, during the trial, he denied copying the
signature of the branch Manager. Be that as it may, in the light of the charge preferred
against the Claimant, the Courts main consideration is to determine whether these
replies or explanations given by the Claimant were properly given due
consideration by the Company before dismissal.

It must be emphasized here that it is only that particular reason given by the Company
as to why the Claimant was dismissed which ought to be examined by this court to
enquire if that reason or excuse has been made out by the Company. If this court finds
as a fact that it has not been proved, then the inevitable conclusion must be that the
termination or dismissal of the Claimant by the Company was without just cause or
excuse. This is in accord with s.20(3) of the IRA 1967 and also the pronouncement by
the court in Goon Kwee Phoy v J & P Coats (M) Sdn Bhd (1981) 1 LNS 30 where
the court held that the respondent cannot now give another reason to justify the
termination or dismissal. If it does so it will smack on an afterthought.

From the evidence adduced before me, this court finds that the Claimants denial that
10

he signed the said authorization letter is baseless as it contradicts his earlier

admission in his letters dated 16th August, 25th August and 3rd November 2012. Further,
he was the last person to receive the authorization letter from the office and he had
also clearly admitted at the DI that he copied the signature of COW3. Hence, this
Court is therefore satisfied that the Company has proven its case on a balance of
probability.

In the final analysis, based on the totality of evidence adduced by both parties as well
as submissions made and also having regards to equity and good conscience as well
as substantial merits of the case without regard to technicalities and legal form as
stated in s. 30(5) IRA, this Court finds that the Claimants dismissal was with just
cause or excuse. Hence, the Claimants case is hereby dismissed.

HANDED DOWN AND DATED THIS DAY OF 20TH APRIL 2015.

- sgd (DUNCAN SIKODOL)

CHAIRMAN
INDUSTRIAL COURT MALAYSIA
SABAH

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