INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 19/4-310/12

BETWEEN

WAN MOHD RAZIF BIN WAN ABDUL RA’OF

AND

F&N BEVERAGES MANUFACTURING SDN. BHD.

AWARD NO. : 786 OF 2017

Before : Y.A. TUAN ANDERSEN ONG WAI LEONG

- Chairman (sitting alone)

Venue : Industrial Court of Malaysia, Kuala Lumpur

Date Of Reference : 02.03.2012.

Date(s) Of Mention : 09.05.2012, 11.07.2012, 13.08.2012, 12.09.2012,

11.04.2013, 04.12.2013, 17.07.2014, 05.08.2014,
12.11.2014, 17.09.2015, 04.11.2015, 05.01.2016,
18.01.2016, 08.03.2016, 28.04.2016, 30.05.2016,
01.07.2016, 11.08.2016, 06.10.2016.

Date(s) Of Hearing : 27.06.2014, 04.06.2015, 23.06.2015.

Representation : Mr. A. Sivananthan, Representative from

Malaysian Trades Union Congress (MTUC),
Acting for the Claimant

Ms. Lisa Tan

Messrs Lee Hishammuddin Allen & Gledhill
Counsel for the Company

1
A. REFERENCE :

This is a reference from The Honourable Minister of Human

Resources, Malaysia to the Industrial Court of Malaysia under Section

20(3) of the Industrial Relations Act 1967 in respect of the dismissal of

Wan Mohd Razif Bin Wan Abdul Ra’of (“the Claimant”) by his employer,

F&N Beverages Manufacturing Sdn. Bhd. (“the Company”) on

30.11.2010.

The case was previously tried and concluded by the former

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

be heard de novo. I further rely on the authority of Bax Global (Malaysia)

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

another chairman to continue hearing a part-heard case and the new

Chairman can hand down the Award in such cases.

Therefore, this Award is written based on my reading, perusal and

evaluation of the facts and evidence contained in the notes of

proceedings prepared by the former Chairman, Yang Arif Puan Hapipah

Binti Monel and gleaned from the documents made available to me.

2
B. FACTS

The Claimant commenced his employment with the Company on

01.11.1991 as a Plant Manager based in Johor Bahru. The Claimant

worked for the Company for exceeding 19 years before he was dismissed

on 30.11.2010. At the time of dismissal the Claimant was holding the

position of Environment / Water Resources Manager in the Company and

his last drawn salary is RM8,697-00.

Sometime in July 2010, the Company wanted to dispose and sell off

the unwanted items which were referred to as “scrapped items” by the

Company, located at 3 rd floor of their Main Building to make way for

renovation process. The scrapped items consisted of used /old pink

partitions, furniture, chairs, tables, shelves and carpets. The Company

sourced for interested buyers for the aforesaid scrapped items and

eventually agreed to sell them to a company known as OCK Recycle Sdn.

Bhd. (“OCK”) for RM400.00 which was the successful bidder.

On 21-07-2010, the Claimant has requested his lorry bearing

registration no.WMQ6433 to carry and remove some of the chairs, tables

and yellow partitions from the compressor room located at 1 st Floor of the

Engineering Building. The lorry was detained by the Company’s security

guards and prevented from leaving the Company’s premises as it could

not produce proper authorization documents for the removal of some of

the aforesaid items from Company’s premises.

3
 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

and OCK has agreed to sell the same to them.

The Claimant was issued with a show cause letter on 13 -10-2010

by the Company for the incident that took place on 21-07-2010. The

following charges were made against the Claimant:

Charge 1

That you had on 21 July 2010, without authority, caused the loading

of 30 yellow partitions, which were not designated as scrap items, by

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

4
WMQ6433 with the intention of removing the items from the Company’s

premises.

Charge 3

That you had on 21 July 2010, without authority instructed Sanjeev

Kumar, Asst. Manager, Facilities, to prepare a gate pass to facilitate the

specific unauthorized removal of 30 yellow partitions from the Company’s

premises using a lorry bearing registration number WMQ6433.

Charge 4

That you had on 21 July 2010, without authority instructed Sanjeev

Kumar, Asst. Manager, Facilities, to prepare a gate pass to facilitate the

specific unauthorized removal of 11 tables, from the Company’s premises

using a lorry bearing registration number WMQ6433.

At the same time, the Claimant was suspended from work from 13

October 2010 to 26 October 2010 with half pay.

The Claimant via his letter dated 19-10-2010 replied to the

aforesaid show cause letter. The Company being unsatisfied with the

Claimant’s reply and response to the Company’s show cause letter

proceeded to call for a domestic inquiry.

5
 The Company issued a Notice of Domestic Inquiry dated

26.10.2010 informing the Claimant that a Domestic Inquiry will be held on

02.11.2010 (“the DI”) to investigate the matter. The Claimant’s suspension

was also extended from 27.10.2010 to 09.11.2010 with full pay.

The Claimant via his letters dated 28.10.2010 and 29.10.2010

informed the Company of the witnesses whom he intended to call at the

DI.

Domestic Inquiry

The DI was convened as scheduled on 02.10.2010 and it went on

for two days namely on 02.10.2010 and 03.10.2010. It was chaired by

Tuan Haji Yunus Abdul Wahab and the Claimant was represented by one,

Haji Ishak bin Ahmad. Witnesses were called by the Company and the

Claimant to give evidence and documents were adduced including photos

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.

6
 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

partitions at the compressor room.

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

any other partitions beside the pink partitions at level 3.

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

had asked Mat Nor to speak to YJX on the said cubicles.

The Company also called Kardjali Bin Zaid (“Kardjali”) to be a

witness at the DI. He was the employee of Weng Foo Sdn. Bhd. which

was the contractor engaged by the Company to unload the furniture

7
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

partitions in the compressor room as well which were located on the 1 st

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

was an employee of the Company, in charge of utility, boiler, compressor

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

and yellow partitions are the same.

Hassan, the lorry driver employed by the Claimant also gave

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

instruction from the Claimant.

8
 Rizal was also called to give evidence and his evidence

corroborated Kardjali’s evidence that the Claimant instructed Kardjali to

bring down the yellow partitions at the compressor room and load them

onto the Claimant’s lorry. He testified that on 21.07.2010, he received a

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

yellow partitions from the compressor room.

Sanjeev, who is the Assistant Facility Manager of the Company at

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

Claimant for the removal of the chairs accordingly;

(b) Subsequently, the Claimant gave him a weighbridge ticket and

requested him to issue the gate pass for the removal of the yellow

partitions. He noticed that the product description on the

weighbridge ticket was stated as “scrapcan – aluminium”. He then

called the guardhouse for clarification. He also called Christine and

Mat Nor for confirmation whether approval has been granted for the

9
 removal of the yellow partitions. Christine had informed him that it

was a misunderstanding and the partitions were not to be removed

from the Company;

(c) The Claimant called him to ask why the gate pass has not been

issued after he had spoken to Christine and he replied that he was

in the midst of checking whether the things can be removed; and

(d) After 5 to 10 minutes later, the Claimant called him again telling him

that misunderstanding had occurred and he want to unload the

partitions. At that time the security guards were there, ordering the

lorry to drive to the guard house / command centre.

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

company. He admitted that he did approach Christine and TLK on the

chairs and pink partition at the 3 rd Floor but denied asking anyone on the

yellow partitions at the compressor room. This is inconsistent with the

evidence by the Carole Tai and TLK.

Shanmugam, the Company’s security guard on duty at the material

time confirmed receiving a call from Sanjeev, asking him whether he is

aware of the Claimant’s lorry loaded with the yellow partitions and he

could not issue the gate pass for those partitions.

10
 Shanmugam also confirmed that he went to inspect the lorry and

discovered there were chairs, 11 tables and 30 yellow partitions on the

lorry. He then instructed the lorry to go to the security guard house /

command centre for further inspection. These were further confirmed by

his superior, the Company’s National Security Manager who was also

called to give evidence at the DI.

Footage of the CCTV recordings of the incident on 21.07.2010 was

also played at the DI to show the Claimant’s presence at relevant areas to

corroborate the evidence given by the witnesses. This was done by the

Company’s IT Manager, Derek Teoh.

The Claimant called his first witness, Ahmad Zaibidi bin Mokhtar

(“AZ”) , who was the Company’s Engineering Supervisor to give evidence

that on 21.07.2010 he has gone to the compressor room at the 1 st floor

and was informed by the Claimant that if he wants to buy the things in the

compressor room, he needs to buy them from OCK.

The Claimant contended that AZ’s evidence shows at all material

time, he was under the impression that the goods in the compressor room

belongs to OCK.

The Claimant also gave evidence that he wanted to buy the

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

the yellow partitions instead. The Claimant answered as follow: -

11
 “Pada masa itu, saya sudah confirm akan beli dari OCK yang

berwarna pink. Tapi semasa di lvl 1 di compressor room,

sebelum berubah fikiran, saya Tanya Kardjali sama ada pink

partition yg saya nak beli sudah habis diturunkan dari tingkat

3 dan jali mengatakan tak habis turun. Dengan itu saya

bertanya dgn jali partition kuning ini sama ke? Kardjali

kata sama…sama. Saya minta Kardjali buat kiraan partition

sekali lagi dengan drawing saya. Berapa banyak partition yg

saya perlukan. Setelah dikira, saya suruh Kardjali kira

partition kuning berapa partition kuning yang berada disitu.

Dia kata partition tu lebih drpd apa yg saya mahukan iaitu 20

partition yg saya mau tapi yg ada di sana lebih drpd 20.

apabila dia disahkan, saya kata ambil di sini saja sebab lori

dah ada dan cakap dgn ock saya ambil yg partition ini. Pada

waktu itu, saya memang ingat semua partition adalah milik

OCK yg telah OCK beli. Saya langsung tak tau bahawa

partition kuning tidak termasuk dlm proses penjualan. Maka

dgn itu, saya bersetuju untuk ock menurunkan partition

tersebut atas dasar mendapat matlumat daripada

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

12
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

yellow partitions thereafter.

Both the Claimant and Company submitted their respective written

submissions on the DI proceedings for the DI Panel’s deliberation and

consideration.

At the conclusion of the Domestic Inquiry, the DI Panel found that

the Claimant had without authorization given instruction to Weng Foo’s

workers to load 30 yellows partitions and 11 tables from the 1 st Floor of

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

to facilitate the removal of the same from the Company’s premises.

Accordingly the Claimant was found guilty of all charges levelled against

him.

By way of letter dated 30.11.2010, the Company informed the

Claimant of the findings of the DI Panel and the Company’s decision to

terminate the Claimant effective from 30.11.2010. The Claimant

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:

13
Charge 1 – Guilty

Pink partitions 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.

Instruction was given by the accused to Weng Foo worker without

any authorization to load those 30 yellow partitions from the 1 st floor

compressor room onto truck registration number WMQ6433 hired by

accused.

Based on witness statements presented at the inquiry the company

has all the evidence that the accused has all the intentions to remove

those 30 yellow partitions from the Company’s premises which was

located at 1 st floor compressor room.

Being a senior manager in the company the accused did not make

any attempt or failed to consult or communicate to any company

authorized managers on the ownership of those items.

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.

14
 Instruction was given by the accused to Weng Foo worker without

any authorization to load those 11 tables from the 1 st floor compressor

room onto truck registration number WMQ6433 hired by accused.

Based on witness statements presented at the inquiry the company

has all the evidence that the accused has all the intentions to remove

those 11 tables from the Company’s premises which was located at 1 st

floor compressor room.

Being a senior manager in the company the accused did not make

any attempt or failed to consult or communicate to any company

authorized managers on the ownership of those items.

Charge 3 – Guilty

Pink partitions 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.

Instruction was given to Sanjeev Kumar, Asst manager, Facilities

by accused to prepare a gate pass for 30 yellow partitions which was

loaded from 1 st floor compressor room which items was not authorized by

company to be sold as scrap item.

15
 Based on all the witness statements and the evidence, the accused

has all the intention to remove those 30 yellow partitions from the

Company’s premises which was located at 1 st floor compressor room.

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

building to be sold as scrap item to OCK.

Instruction was given to Sanjeev Kumar, Asst manager, Facilities

by accused to prepare a gate pass for 11 tables which was loaded from

1 st floor compressor room which items was not authorized by compan y to

be sold as scrap item.

Based on all the witness statements and the evidence, the accused

has all the intention to remove those 11 tables from the Company’s

premises which was located at 1 st floor compressor room.

Being a senior manager in the company the accused did not make

any attempt or failed to consult or communicate to any company

authorized managers on the ownership of those items.

16
C. EVALUATION AND FINDINGS OF THE COURT

On the facts, the misconducts complained of against the Claimant

revolve around the incident that took place on 21.07.2010. The Company

alleged that the Claimants have acted without authority in causing 30

yellow partitions and 11 tables belonging to the Company to be loaded

onto a truck/lorry hired by the Claimant with the intention of removing

them from the Company’s premises and instructed his colleague, Sanjeev

Kumar A/L Krishnan (“Sanjeev”) to issue gate pass to fa cilitate the

removal of the aforesaid tables and partitions from the Company’s

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

proper rights to be heard and to defend himself. The Claimants was

accorded with due procedural justice in regard to the DI procee dings

conducted by the Company and there was no breach of the natural

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.

17
 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

sign on the written decision of the DI Panel. As such, the Claimant’s

Representative contended that the decision of the DI Panel was not

acceptable to the 2 nd panel member.

The Company did not provide any explanation as to why the 2 nd

panel member did not sign on the written decision of the DI Panel. The

Company’s Counsel merely said in their submission in reply that they

were caught by surprise as the Claimant did not raise this issue in his

pleadings previously.

Be that as it may, the decision of the DI Panel remains a majority

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

Company to accept the decision of the majority.

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

findings exercise to derive its own conclusion on whether the Claimant

was dismissed with just cause and excuse.

It is an established principle of law that the Industrial Court is not

only charged with the duty to find out whether natural justice has been

observed by the employer (by the holding of a domestic inquiry before an

employee can be dismissed on ground of misconduct, as required by

18
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

(1994) 2 AMR 983]

The Company’s Counsel referred to the case of Bumiputra

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

an adequate forum to be heard, then this Court should confine itself to

determining whether there was a prima facie case against the Claimant.

With respect, the case of Bumiputra Commerce Bank Bhd has to be

read subjected to the case of Plaintree Wood Products Sdn. Bhd. v

Mahkamah Perusahaan Malaysia & Anor (2005) 1 LNS 283, whereby the

same learned Justice Raus Sharif explained and clarified his earlier

decision in Bumiputra Commerce Bank Berhad.

It is the duty of the Industrial Court in deciding a case to consider

all evidence adduced by all parties including the notes of evidence of the

domestic inquiry.

19
 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

Azmi bin Kamaruddin, FCJ, in making reference to Wong Yuen Hock v

Syarikat Hong Leong Assurance Sdn. Bhd. & Anor (1995) 3 CLJ 344 , held

that the function of the Industrial Court in dismissal cases on a reference

under s.20 is two-fold. Firstly, to determine whether the misconduct

complained of by the employer has been established, and secondly

whether the proven misconduct constitutes just cause or excuse for the

dismissal.

In the case of Telekom Malaysia Kawasan Utara v Krishnan a/l

Kutty Sanguni Nair & Anor (2003) CLJ 314], the Court of Appeal held that

in hearing a claim of unjust dismissal where the employee was dismissed

on the basis of an alleged criminal offence such as theft of company

property, the Industrial Court is not required to be satisfied beyond a

reasonable doubt that such an offence was committed. The standard of

proof applicable is the civil standard, i.e. proof on a balance of

probabilities which is flexible so that the degree of probability required is

proportionate to the nature and gravity of the issue.

The Claimant’s main contention in this matter is that the whole

episode of events which took place on 21.07.2010 was a

misunderstanding and caused by the wrong information allegedly given by

Kardjali to him. He alleged that the Kardjali had misrepresented to him

that both the yellow partitions at the compressor room and the pink

20
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.

As stated earlier, Kardjali was the employee of Weng Foo Sdn.

Bhd. which was the contractor engaged by the Company to unload the

furniture and/or scrapped items from the Company’s premises and to

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

under the mistaken belief that Kardjali was OCK’s worker.

There is nothing to support the Claimant’s allegation tha t Kardjali

had misrepresented to him on the ownership of the yellow partitions.

Kardjali specifically denied during the DI and trial that he did so. During

the DI when he was questioned by the Claimant, “Apabila saya tanya,

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

Kardjali’s evidence at the trial is reproduced here as follow:-

“...Selepas itu, Pihak Menuntut menyuruh saya untuk menurunkan

kerusi dari bilik ‘compressor” (terdapat sepuluh (10) buah kerusi di dalam

bilik tersebut). Semasa saya menurunkan kerusi Pihak Menuntut

menyuruh saya untuk menurunkan partition berwarna kuning ke dalam

lori. Saya turut mengikut arahannya.”

[Emphasis added]

21
 The evidence by Rizal at the DI corroborated Kardjali’s testimony

that it was the Claimant that instructed him to remove the yellow partitions

from the compressor room.

Moreover, for the Claimant who was holding the position of a Senior

Manager, to say that he relied completely on Kardjali’s representation to

remove the Company’s property is preposterous and unreasonable.

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

relied on Kardjali’s representation completely, in removing the Company’s

property.

It ought to be noted that the pink partitions and the yellow partitions

were kept in different places at different buildings. OCK only purchased

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

during the DI that on 21.07.2010, morning he and the Claimant went to

view the pink partition and the Claimant did not ask him about any other

partitions or the yellow partitions.

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

22
knowledge since they were sourcing for chairs, partitions and tables

together for their joint business.

Therefore, I am not able to accept the Claimant’s conte ntion that he

had relied on Kardjali’s representation completely on the ownership of the

yellow partitions, in removing and loading them onto his lorry.

The Claimant during trial attempted to change his evidence that he

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

Kardjali’s representation. The Claimant gave evidence during trial that

after Kardjali informed him that the pink partitions and the yellows

partitions are the same, he had call OCK to verify.

This of course contradicted his earlier evidence at the DI. When

asked by the Company’s counsel, why he changed his evidence , the

Claimant said earlier he had forgotten that he did call OCK to verify.

Having examined the evidence of OCH during DI, there is nothing

to suggest that the Claimant had called OCK to verify Kardjali’s

representation on the yellow partitions. On the contrary, OCH had

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

apology and compensation for the alleged misrepresentation by Kardjali.

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

responsibility or knowledge of the alleged misrepresentation by Kardjali.

Therefore, the Claimant’s contention that he had called OCK to verify at

the material time is nothing more than an afterthought.

The Claimant’s Representative submitted that the Company failed

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

was detained by the Company’s security guard.

The evidence shows that the Claimant’s gave instruction to bring

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.

Hassan, during the DI also gave evidence that the Claimant

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

by the Claimant, on his instruction coupled with the Claimant’s instruction

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

the Claimant intended or attempted to remove them from the Company’s

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

trial of this matter.

The Claimant contended that it was a misunderstanding and he had

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

security guards had detained his lorry.

The Claimant alleged that when OCH informed him that the yellow

partitions loaded onto his lorry are not part of the scrap items purchased

by OCK, he had immediately requested Sanjeev to deal and verify with

the person in charge on whether the yellow partitions were part of the

scrap items purchased by OCK, as he has to rush off to meeting. The

Claimant claimed that OCH was driving a black MYVI when they met at

the Engineering Building at that material time.

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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

meeting the Claimant at the Engineering Building when the yellow

partitions were loaded onto the Claimant’s lorry. To these, the Claimant

had accused OCH of lying during the DI.

The Claimant’s evidence that he had requested Sanjeev to deal and

verify the ownership of the yellow partitions before he left for the meeting

is also inconsistent with Sanjeev’s testimonies at the DI and trial.

According to Sanjeev’s evidence, the Claimant gave him a weighbridge

ticket for issuance of a new gate pass for the removal of the yellow

partitions and informed him that he had to urgently go off to meeting.

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

whether or not the partitions could be removed from the Company’s

premises.

During the DI, the Claimant denied that he requested Sanjeev to

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

already on the Claimant’s lorry?

As for the third and fourth charges, the Claimant’s Representative

submitted that the Claimant was not in a position to instruct Sanjeev as

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

Company. It is whether the Claimant had asked Sanjeev to prepare the

gate pass to facilitate the removal of the aforesaid partitions and tables

from the Company’s premises. The word “instruct” is not to be taken in

the context of authoritative command. A purposive approach should be

adopted when reading the word “instruct” here.

The material issue here is whether the Claimant did instruct /

request Sanjeev to issue the gate pass for the removal of the yellow

partitions from the Company’s premises?

Sanjeev in his witness statement (COWS-2) explained that a gate

pass is to permit any items in the factory premises to be removed (any

items in the factory premises including scrap items). He gave evidence

during trial that on 21.07.2010, at approximately 4.50 p.m., the Claimant

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

been issued. These were not disputed by the Claimant.

Therefore, it is clear that the Claimant instructed Sanjeev to issue

the gate pass for the yellow partitions. I am not able to accept the

Claimant’s Representative’s contention that the Company had failed to

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

immaterial whether Sanjeev was the Claimant’s subordinate. The fact

remains that the Claimant did and had requested the Sanjeev to issue a

gate pass for the yellow partitions.

On the balance of probabilities, the Company has successfully

proven that the Claimants had acted without approval or authority in

causing 30 yellow partitions and 11 tables belonging to the Company to

be loaded onto a truck/lorry hired by the Claimant with the intention of

removing them from the Company’s premises.

Having considered notes of DI and the evidence adduced by the

parties, I am of the view that the Claimant did attempt to remove the

aforesaid tables and yellow partitions from the Company’s p remises

without authority or prior approval of the Company. The Claimant’s

contention that he had requested for the aforesaid items to be unloaded

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

aforesaid items to be unloaded after Sanjeev had contacted and queried

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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

that it was a misunderstanding cannot hold water in light of the

surrounding circumstances and evidence adduced in this Court.

The Claimant had the motive and intention to remove those items

as he was supposed to source for tables and partitions as testified by hi s

business partner, Mat Noor for their business. The Claimant’s contention

that he was misled by Kardjali was merely an excuse and/or attempt by

the Claimant to avoid guilt / blame.

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

permitted them to dismiss him.

There is a plethora of cases on attempt to remove company’s

property. The courts have consistently held such misconduct as a serious

offence and warrant the punishment of dismissal. The Company’s

Counsel in their submission referred to case of London Asiatic Rubber &

Produce Co. Ltd v Thamil Thasan Sagathevan (2005) 2 ILR 508 where

the learned Industrial Court Chairman held as follow:-

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 “Attempting to steal estate property, to my mind, is a serious

offence and betrayal of trust by the Claimant which could not

be condoned by a punishment less than dismissal as it would

set a dangerous precedent to other estate workers.”

In the circumstances and based on the substantial merits of the

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

Company is hereby dismissed.

HANDED DOWN AND DATED THIS 30 th DAY OF MAY, 2017

-Signed-

(ANDERSEN ONG WAI LEONG)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
AT KUALA LUMPUR

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