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INDUSTRIAL COURT OF MALAYSIA

CASE NO:

22/4-1273/13

BETWEEN
AZHAR BIN MOHD. SAID
AND
DRB-HICOM DEFENCE TECHNOLOGIES SDN. BHD.
AWARD NO:

997 OF 2015

BEFORE

Y.A. DATO MARY SHAKILA G. AZARIAH


- CHAIRMAN (Sitting Alone)

VENUE

Industrial Court, Kuala Lumpur

DATE OF
REFERENCE

28 August 2013

DATES OF MENTION

28 October 2013, 13 January 2014,


5 May 2014, 5 June 2014,
3 July 2014, 19 November 2014,
26 March 2015 and 5 May 2015

DATES OF HEARING

19 May 2014, 5 June 2014,


20 October 2014, 13 April 2015,
14 April 2015, 29-30 April 2015
and 5 June 2015

DATE OF ORAL
SUBMISSION

21 July 2015

REPRESENTATION

Encik Ravindran of Messrs. Murugavell


Arumugam & Co, Counsel for Claimant.

REFERENCES:

Encik Abdullah of MEF,


Representative for Company.

This case is a reference under Section 20(3) of the Industrial


Relations Act 1967, arising from the dismissal of Azhar bin Mohd.
Said (hereinafter referred to as the Claimant) by DRB-Hicom
Defence Technologies Sdn. Bhd. (hereinafter referred to as the
Company) on 8 February 2013.

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AWARD

This reference stems from the dismissal of Azhar bin Mohd.


Said (the Claimant) by DRB-Hicom Defence Technologies Sdn.
Bhd. (the Company) on 8 February 2013.

Brief Facts
The Claimant was employed by the Company in the position
of Senior Engineer vide the letter of employment dated 18 May
2011. He was selected to undergo 13 months On-Job Training in
armored vehicles technology transfer program in Thales, France.
The terms and conditions of the said training was set out in
Appendix 2 of the Scheme of Service for the development and
training programs. The Claimant avers that he never received the
said Appendix 2 at any material time during his employment with
the Company.

The Claimant avers that he signed the Service

Bond Agreement dated 10 October 2011 with the Company. The


Claimant on 27 November 2012 was issued with a show cause
letter wherein it was alleged that the Claimant had returned to
Malaysia on 13 July 2012 until 21 July 2012 and from 11 August
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2012 to 28 August 2012 and by doing so had breached Section


2.1 Clause (vi) of the said Service Bond Agreement dated 10
October 2011 which states that the employee shall not abandon
the On-Job Training and transfer of technologies programme
prior to the due completion thereof without the prior expressed
written consent of DEFTECH.

The Claimant denies the said

allegations and averred that the dates he returned to Malaysia


were summer off days as instructed by Thales, the training
provider in France. He also avers that other team members of the
Claimant staff also of the Company did not attend the training on
those days alleged by the Company but no action were taken
against them by the Company.

The Claimant avers that he

completed his job training in Thales on 16 November 2012 and


had informed verbally his Thales Project Manager, Mr. Francois
Bertrand about his travel plans during summer off days.

The

Claimant avers that there is no written policy that he would have


to get approval in writing if he intended to travel back to Malaysia
during the summer off days. The Claimant avers that a domestic
inquiry was held by the Company the panel of which found him
guilty of the Charge preferred against him by the Company. The

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Claimant avers that he was dismissed by the Company thereafter


vide the Company's letter dated 8 February 2013 stating that he
had admitted that he was guilty of the Charge.

The Claimant

denies this and that his dismissal is without just cause or excuse.

The Company contends that the Claimant was found guilty


by the panel of the domestic inquiry as the Claimant had not
obtained the approval of the Company for his return to Malaysia
on 13 July 2012 until 21 July 2012 and from 11 August 2012 to
28 August 2012 and by doing so head breached Section 2.1
Clause (vi) of the said Service Bond Agreement dated 10 October
2011 and was dishonest giving false impression that he was away
at France and was paid his allowances to and by the Company.
The Company contended that during this period Claimant was
paid his allowance connected to his On-Job Training under the
said Service Bond Agreement.

The Charge
That you, Azhar bin Mohd. Said, Senior Engineer, had
committed the following misconduct:

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(a)

that you have left the On-Job training site at


Thales, France and returned to Malaysia from 13 th
July 2012 until 21th July 2012 (9) days without
prior written approval from the Company;

(b)

that you have left the On-Job training site at


Thales, France and returned to Malaysia from 11 th
August 2012 until 28th August 2012 (18) days
without prior written approval from the Company;

(c)

By returning to Malaysia from 13 th to 21st July


2012 and/or 11th to 28th August 2012 without
obtaining

prior

written

permission

from

the

Company and/or disclosing to the Company that


you were in Malaysia during the said period you
have

acted

dishonestly

in

giving

the

false

impression to the Company that you were still at


Thales, France during the aforesaid period when
in actually fact you were not.

This is serious

misconduct in light of the fact that the training


allowances (cost of living allowances and foreign
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service allowance) were payable to you under the


Service Bond Agreement on the premise that you
remained and/or were required to be in Thales,
France during the training period.

You have breach Section 2.1 (Clause vi) of your


Service

Bond

Agreement

and/or

established

Procedures and Policies which requires you to


obtain prior approval and been subjected to a
disciplinary hearing on Thursday, 20 December
2012.

Issues and Law


In the oft-cited case of Wong Yuen Hock v. Syarikat Hong
Leong Assurance Sdn. Bhd. & Anor. Appeal [1995] 3 CLJ 344,
Mohd. Azmi FCJ at page 352 stated:
On the authorities we were of the view that the main
and only function of the Industrial Court in dealing
with a reference under s.20 of the Act (unless otherwise
lawfully provided by the terms of the reference) is to

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determine whether the misconduct or irregularities


complained of by the management as the grounds of
dismissal were in fact committed by the workman, and
if so, whether such grounds constitute just cause for
the dismissal.

This tells me that I would have to consider the following:


(1)

whether

the

misconduct

complained

of

by

the

Company were in fact committed by the Claimant.

(2)

and,

if

in

the

affirmative,

whether

the

proven

misconduct complained of constitute just cause or


excuse for the Company to dismiss the Claimant.
other

words

circumstances

whether
of

the

the
case

dismissal
was

the

in

In
the

appropriate

punishment.

It is trite law that the burden of prove in industrial law is on


the Company to produce cogent and convincing evidence to prove
the Claimant committed the alleged misconduct.

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Accordingly it falls to be determined whether the Company


in this case has discharged its burden in establishing Charges for
which the Claimant was dismissed.

In Wong Yuen Hock v. Syarikat Hong Leong Assurance


Sdn. Bhd. & Anor. (supra) has said as follows:
we are of the view that the main and only function
of the Industrial Court in dealing with a reference
under section 20 of the Act (unless otherwise lawfully
provided by the terms of the reference) is to determine
whether the misconduct or irregularities complained of
by the management as the grounds of dismissal were in
fact committed by the workman, and if so, whether
such grounds of dismissal constitute just cause or
excuse for the dismissal. In our opinion, there was no
jurisdiction by the Industrial Court to change the scope
of reference by substituting its own.

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The Domestic Inquiry


Where a domestic inquiry has been held into the Charges of
misconduct then the Court is obliged to first consider the
adequacy

or

otherwise

of

the

procedure

adopted

in

the

proceedings for the domestic inquiry in order to determine


whether the domestic inquiry has applied the correct procedure
and had reached the correct conclusion having regard to all the
evidence adduced at the domestic inquiry.

So long as at the

domestic inquiry the Rules of Natural Justice had been properly


applied and the Claimant had been given the opportunity to be
heard and to present his case then if a finding has been made
against the Claimant based on the evidence which had been
presented to the domestic inquiry, the Court ought to consider its
findings in order to conclude whether the employee has been
dismissed

with

just

cause

or

excuse

see

Metroplex

Administration Sdn. Bhd. v. Mohamed Elias [1998] 5 CLJ 467.

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In

Bumiputra

Commerce

Bank

Bhd.

v.

Mahkamah

Perusahaan Malaysia & Anor [2004] 7 MLJ it was held that


where

domestic

inquiry

has

been

held

the

Courts

jurisdiction is limited to considering whether there was a


prima facie case against the employee and whether the DI's
notes of proceedings were accurate.

In fact in the case of

Workmen of the Motipar Sugar Factory Private Limited v.


The Motipar Sugar Factory Private Limited AIR 1965 SC 1803
it was held that if an inquiry has been held the Court should
not interfere unless they want the inquiry to be fair.

The

Court is also to consider whether the decision of the panel of


inquiry was perverse or otherwise.

In Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan


& Other Appeal [1997] 1 CLJ 665 at page 716 it was held that:
The fact that an employee has conducted a domestic
inquiry against his workman is, in my judgment, an
entirely irrelevant consideration to the issue whether
the latter had been dismissed without just cause or
excuse.

The findings of a domestic inquiry are not

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binding upon the Industrial Court which rehears the


matter afresh. However it may take into account the
fact that a domestic inquiry had been held when
determining whether the particular workman was
justly dismissed.

In the case of Plaintree Wood Products Sdn. Bhd. v.


Mahkamah Perusahaan Malaysia & Muhammad Safarudin
Chew bin Abdullah (Application for Judicial Review, High
Court Kuala Lumpur, No. R1-25-42 of 2005) (unreported), his
Lordship Raus Sharif J. said that the duty of the Industrial Court
is to hand down a Award by referring to the evidence and
testimonies of the witnesses adduced by the parties.

His

Lordship held that the Industrial Court was not tied down to the
notes of proceedings of the domestic inquiry. This would mean
that in arriving at a decision the Industrial Court is not to treat
the notes of proceedings of the domestic inquiry held by the
employer as the sole determining consideration in determining
whether the employee was dismissed with just cause or excuse.
This also meant that the findings of the domestic inquiry is not

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binding on the Industrial Court whose duty on a case referred to


it for adjudication by the Honourable Minister pursuant to
section 20 of the Industrial Relations Act 1967 is to hear and to
decide based on the principles of equity and good conscience
having regard to the substantial merits of the case.

The Companys Domestic Inquiry of 3rd January 2013


Straddled with the aforesaid propositions of law I now
consider the validity of the said domestic inquiry that was held
against the Claimant by the Company in the instant case and the
accuracy of its ensuing notes.

In Bharat Forge Co. Ltd. v. A.B. Zodge and Another


(1996-11-LLJ-643) (SC) the Court had held that a domestic
inquiry may be vitiated by either for non-compliance of the
rules of natural justice or for perversity.

Any disciplinary

action thus taken on the basis of a vitiated inquiry does not


stand on a better footing than a disciplinary action with no
inquiry. Two principles emerge from this that is, that the
principles of natural justice must have been adhered to at

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the Domestic Inquiry stage and where the Domestic Inquiry


has been vitiated for some reason the Court can hear the
case de novo.

The Company's witness COW.3 tendered the verbatim report


of the domestic inquiry proceedings in Court during the Hearing.
The said witness testified that the Claimant was given the
opportunity to defend himself at the domestic inquiry and that
the panel found the Claimant guilty of the Charges leveled against
him by the Company.

The said verbatim report of the domestic inquiry shows that


no witnesses were called by the Company in support of the 3
Charges that was preferred against the Claimant by the
Company. The Court notes that the Company's case of dismissal
of the Claimant which it alleges was for a just cause or excuse
hinges on the interpretation of Section 2.1. (Clause vi) of the
Service Bond Agreement signed with the Claimant.

If the

Claimant is found to be in breach of the said section then the


question arises whether the decision to dismiss the Claimant

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taken by the Company was reasonable given the facts of the case.
The said notes of the domestic inquiry proceedings and the
evidence adduced by the Company through COW.3 does not
permit me to say that it sets up a prima facie case against the
Claimant. It is does not reflect whether the Principles of Natural
Justice was complied with and whether the notes were a verbatim
of what was actually said as the hand written notes are not
adduced. Moreover the pages of the said notes of the domestic
inquiry proceedings are not signed by the Claimant. The Court
cannot tell whether it is accurate or not. One thing is glaring is
that during the proceedings the Claimant did not examine any
witnesses as none were called. The panel's decision was solely
based on the fact that the Claimant did return to Malaysia on the
said dates and receiving the allowances whilst back in Malaysia
without prior approval from the Company.

The panel did not

consider his reason for doing so and that the time/s he returned
was during his summer break when there was no lectures and
that he returned to Thales, France thereafter to finish his training
and was given his certificate of completion by the Institute at
Thales, France. These facts were not considered by the panel who

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interpreted the section of the Service Bond Agreement in question


as meaning that the Claimant was not entitled to leave the place
of training without prior permission from his superior that is
COW.4. The word used in the said Service Bond Agreement was
meninggalkan... and it was construed to mean that he could not
leave the On-Job Training site at Thales, France. Having perused
the notes of the domestic inquiry proceedings and the evidence of
COW.3 which the Court finds to be scanty the Court finds that it
cannot rely on it or consider itself bound by it for on the face of it
appears to be perverse and in breach of Natural Justice. Hence
the Court proceeds to hear the case de novo and will arrive at its
conclusion as to whether the Claimant misconducted itself and
whether his misconduct warranted a dismissal of himself by the
Company. In fact COW.3 testified during cross-examination that
there was no evidence of dishonesty but yet found that the
Charges were established against the Claimant.

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The Charges
The Company's Evidence
COW.4 the Company's witness was the manager of the OnJob Training Program that was carried out by the Company in
which the Claimant was involved in.

He testified that the

Claimant and 5 others were chosen to undergo the training for 13


months at Thales, France commencing 14 October 2011 by the
Company.

He testified that the employees were briefed on 30

June 2011 at Kuantan and this was followed by discussions and


question and answers sessions with the employees concerned to
ensure that the program went on smoothly. It was his evidence
that the briefings and discussions focused on the terms of the
Service Bond Agreements amongst others. He was unaware that
the Claimant returned to Malaysia and was made aware of this at
the domestic inquiry.

COW.4 when cross-examined testified that during the


Summer Holidays the institute at Thales, France was closed and
the Claimant together with the other employees were required to
vacate their accommodation provided to them and were required

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to stay outside the place of training. When he was referred to the


email from Francois Bertrand the Trainer at Thales, France he
agreed that the email indicated that the Claimant was required to
take off from 13 August 2012 to 17 August 2012 and from 16
July 2012 to 20 July 2012 and from 20 August 2012 to 28
August 2012.

He maintained however that the Claimant was

required to obtain the approval of himself if he wanted to take off


to Malaysia during this period. He agreed when it was put to him
that the Claimant was required to leave Thales, France during
this period.

He also agreed when it was put to him that the

rationale of Section 2 of the Service Bond Agreement was that the


Claimant was to focus on the training that he was undergoing at
Thales, France. When asked whether the Claimant was briefed by
the Company before they left for France for the training on what
they were required to do during the summer break he said that he
did not know as he did not conduct the said briefing.

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It was the evidence of COW.5 the Company's 5 th witness that


the Claimant was sent to Thales, France by the Company to
undergo On-Job Training for a period of 13 months and that he
left the country on 14 October 2011 and was expected to return
to Malaysia in November 2012. It was his evidence that having
examined the passports of all the employees who were sent to
Thales, France for the said training including that of the Claimant
he discovered that the Claimant had left his place of training
without having informed COW.4 and the Company as he was
required to do so. It was his evidence that they were required to
inform the Company and COW.4 of their movements. He testified
that they could only leave the site with the permission of the
Company or COW.4.

It was his evidence that they were

furthermore aware of this requirement. COW.5 testified that 3 of


the employees were sent for training to Thales, France were
terminated because they had left the place of training or did not
attend the training without the Company's approval. He said that
this was necessary as the Company was responsible for their
safety and therefore their movements had to be known by the
Company at all times. It was his testimony that at the time of

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signing of the said Service Bond Agreement the intention of the


Company was that the employees concerned were not to the place
of training as they like without notifying and getting the approval
of the COW.4 and Company. It was his evidence that this applied
to them even if they were on holiday. COW.5 testified that the
Claimant did obtain the Company's approval when he wanted to
return to Malaysia from 13 April 2012 to 24 April 2012 so that he
could attend an exhibition at the PWTC Kuala Lumpur, Malaysia
and from 21 May 2012 to 2 June 2012 when his mother was
taken ill. It was his evidence that during this period he was paid
his overseas allowances.

It was his evidence when cross-examined that the Claimant


according to the Company's show cause letter had abandoned
his training at Thales, France. When asked by the Court as to
whether abandon was the correct translation in English for the
word in Bahasa Malaysia meninggalkan his answer was No.
He testified that it should be leave and not abandon and that
the Human Resource Department who drafted the said show
cause letter had made a mistake in the drafting of the allegations

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against the Claimant. He testified that the decision to dismiss the


Claimant that was made by the Company's Chief Executive
Officer was based on the records and the alleged admission of
guilt by the Claimant. He agreed when it was put to him that the
Claimant had honestly filled up in his declaration form that he
had left Thales, France and had returned to Malaysia.

He

answered No when asked whether the Claimant had made any


false representations as to his whereabouts that he was in France
when he was in Malaysia.

It was his evidence that when the

Claimant left France for Malaysia during the summer break it had
no impact on the Company save that it was technically in breach
of the said Service Bond Agreement. He agreed when it was put
to him that the Company's main concern was that the employees
focused on the On-Job Training and complete the same and not
leave the site as they pleased.

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The Claimant's Evidence


The Claimant testified that he was to undergo On-Job
Training at Thales, France. It was his evidence that pursuant to
the Company's letter dated 12 October 2011 it was stated that the
terms and conditions of the training would be set out in Appendix
2 of the Scheme of Service for the development and training
programs but he had never received the said Appendix 2 at any
material time during his employment with the Company. It was
his evidence that he had only signed the Service Bond Agreement
dated 10 October 2011. The Claimant testified that he received
the show cause letter dated 27 November 2012 alleging that he
had been absent from work and had returned to Malaysia on 13
July 2012 until 21 July 2012 and from 11 August 2012 to 28
August 2012 and by doing so had breached Section 2.1 (Clause
vi) of the Service Bond Agreement. It was his evidence that he
replied stating that he had not breached the said Service Bond
Agreement as they were summer off days as instructed by Thales,
France.

He added that other team members were also absent

from the training site during the said period. The Claimant
testified that he had verbally informed Thales Project Manager,
Francois Bertrand about his travel back to Malaysia on those said
dates.

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The Claimant testified that he was called to attend the


domestic inquiry which he did on 20 December 2012. He testified
that there is no written policy that he would need to get the
approval of COW.4 or the Company if he wished to return to
Malaysia during the summer off days. It was his evidence that
the Company took no action against his other team members who
visited Europe during the summer off days and another team
member Fauzy bin Harun had also returned to Kuala Lumpur
during the training period that is from 2 December 2012 to 11
December 2012 but no action was taken against him by the
Company. The Claimant testified that he was dismissed after the
domestic inquiry found him guilty of the Charges leveled against
him by the Company. He testified that he had never admitted to
the said Charges as alleged by the Company.

He testified that

vide his letter dated 2 February 2013 he had informed the


Company that he never pleaded guilty during the said domestic
inquiry.

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It was his evidence that he did not breach section 2.1 of the
said Service Bond Agreement as he had completed the On-Job
Training. He testified that the Company stopped paying him his
allowances from October to November 2012 though he was still at
Thales, France undergoing his training. It was his evidence that
the Company victimised him as they fail to take action against the
other members who had also traveled out of Thales, France
during the said period and against Mohamed Fauzy bin Harun
who had returned to Malaysia during the training period.

The Claimant testified when he was cross-examined that he


interpreted the Section 2.1 of the Service Bond Agreement to
mean that he needed to get the approval of the COW.4 and or
Company if he were to leave the training and not training site
during holidays or off days.

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Court's Evaluation
The Charges
Here's a case where the Claimant does not dispute that he
had returned to Malaysia thus leaving the training site on 2
occasions without prior approval from the Company.

The

Claimant contends that on both occasions stated in the Charges


the training site at Thales, France was closed for the summer
break and all trainees from the Company were asked to leave the
training site and the place of residence and live elsewhere by their
instructor. The Claimant testified that he informed Thales Project
Manager, Francois Bertrand about his travel back to Malaysia on
those said dates. It was in evidence that the Claimant had prior
to these 2 occasions returned to Malaysia with the permission of
the Company and this was when the training was on at Thales,
France. His actions to the Court is a reflection of the fact that he
interpreted Section 2.1 of the Service Bond Agreement to mean
that he needed to get the approval of the COW.4 and or Company
if he were to leave the training and not training site during
holidays or off days when they were required to leave the training
center at Thales, France and live elsewhere. This is consistent

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with his testimony given during the Hearing.

The Company

however contend and have led evidence to say that the Claimant
had breached Section 2.1 of the Service Bond Agreement when he
left the training site at Thales, France on both occasions stated in
the Charges. The Company interprets the section to mean that
regardless of whether it is summer break or not the Claimant was
required to inform and obtain the prior permission of COW.4 who
was then in Charge of the training project when he wanted to
leave the training site at Thales, France. The Company further
contends that by so returning to Malaysia without the Company's
approval and being paid the allowances under the Service Bond
Agreement the Claimant had acted dishonestly in giving the false
impression to the Company that he was still at Thales, France
during the aforesaid period when in actually fact he was not. The
Company contends that this was a serious misconduct in light of
the fact that the training allowances (cost of living allowances and
foreign service allowance) were payable to him under the Service
Bond Agreement on the premise that he remained and/or were
required to be in Thales, France during the training period.

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It is the Court's view that the Claimant knew that he


required the permission of the Company if he was to returned to
Malaysia during the training period prior to its completion. This
is evidenced by the fact that he sought the Company's permission
to return to Malaysia once before the dates referred to in the
Charges that is on 21 May 2012 to visit his ailing mother. But it
is necessary to note that when he returned during this period his
training was on at Thales, France and to him Clause 2.1 of the
Service Bond Agreement required him to obtain the prior approval
of the Company.

When the Company issued the show cause

letter dated 27 November 2012 to the Claimant the Company had


translated Clause 2.1 of the Service Bond Agreement which was
drafted in Bahasa Malaysia in the following manner:
That the employer shall not abandon the On-Job Training
and Transfer of Technologies Programme prior to the due
completion thereof without the prior expresses written
consent of DEFTECH.

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The Court concurs with this translation of the said clause


into English and this is what the Claimant understood the clause
as meaning and hence when he returned to Malaysia during the
summer off days and when the training site at Thales, France was
closed he did not think he was required to obtain the Company's
written consent before his return to Malaysia during the summer
break.

In fact the witnesses for the Company agreed that the

main aim of the said Clause 2.1 of the Service Bond Agreement
was that the employees focused on the On-Job Training and they
complete it with excellence which the Claimant did. It was their
evidence that this was the rationale of the said Clause 2.1 of the
Service Bond Agreement and rightly so.

Accordingly the Court

finds that the Claimant had not misconducted himself under


these circumstances when he returned to Malaysia on the dates
referred to in the Charges framed against him by the Company.
On the interpretation of the Clause 2.1 of the Service Bond
Agreement which states that the employee shall not abandon the
On-Job Training and Transfer of Technologies Programme prior to
its completion thereof the Court fails to understand the merits
underlying the Company's Charges especially (a) and (b).

The

Court's decision is supported further by the fact that the


Claimant completed the On-Job Training successfully and in fact
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was assessed by the Training Provider to have been efficient and a


good leader. The Charges as seen in the show cause letter of the
Company alludes to the fact that the Claimant abandoned the
On-Job Training at Thales, France which was not the case.

The Company's witness, COW.3 had agreed when crossexamined by the Claimant's Counsel that there was no evidence
of dishonesty found during the domestic inquiry held against the
Claimant.

Charge (c) states that the Claimant had been

dishonest in giving false impression to the Company that he was


still at Thales, France during the periods he had returned to
Malaysia during the summer of days. On the evidence and facts
the Court finds that the Claimant had not been dishonest. In fact
when he was asked to make a declaration of his movements
during the period of the training he divulged that he was in
Malaysia during the summer off days and that was how the
Company came to know about his return to Malaysia. Again the
Court fails to understand the merits underlying Company's
Charge (c).

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On the evidence and facts it is then the Court's findings that


the Claimant did not commit any acts of misconduct by returning
to Malaysia without first seeking the written consent of the
Company on both occasions.

Neither is he guilty of being

dishonest in giving the false impression that he was at Thales,


France when he was in Malaysia. There is no cogent evidence to
support such a claim by the Company and the Court does not
agree with the Company's subsequent change in their stand, that
is, after issuing the show cause letter to the Claimant that the
Clause 2.1 of the Service Bond Agreement is to be interpreted to
mean that the employees were required not to leave as opposed to
abandon the training at Thales, France.

The latter being the

meaning and intent of clause 2.1 of the Service Bond Agreement.


It is the Court's view that the Clause itself in Bahasa Malaysia
does not convey that meaning and that the literal meaning as
adopted by the Company when they charged the Claimant is
unsupported by any evidence that was the intention of the parties
to the contract and that this was intimated to the employees at
the time of the execution of the contract. It is to the Court rather
unclear whether that was what all parties understood it to be viz
at anytime whilst the employees were at Thales, France they
could not leave France be it during the training period or summer
break imposed by the Instructors at Thales, and not just Thales
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and/or France without prior approval of the Company. Therefore


in accordance with the contra proferentum rule of construction
any ambiguities will be resolved against the party seeking to rely
on it viz the Company.

Was Terminating The Claimant Justified?


If the Claimant has not misconducted himself when he
returned to Malaysia in July and August and had not dishonestly
given false impression to the Company that he was still at Thales,
France during that period as alleged by the Company any
termination of the Claimant for these reasons is unjustified. The
Company did not adduce the Chief Executive Officer as a witness
to testify as to why he decided to terminate the Claimant's
services. Even if the Claimant's actions in returning to Malaysia
during the summer off days without first obtaining the written
consent of the Company was contrary to Clause 2.1 of the Service
Bond Agreement which is not what the Court opines here on the
facts and evidence, the Court will have to consider the issue of
whether it was reasonable for the Company to decide to terminate
the Claimant under these circumstances.

In other words the

Court will have to decide whether the reasons given for the
termination of the Claimant is a just cause or excuse for his
termination.
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It is said that decisions to terminate a workman be it for


misconduct or performance must have a justification. This would
mean that where processes are followed and decision - making
processes are robust and the outcome is fair and reasonable the
Courts uphold a decision to discipline or dismiss. The dismissal
of the workman in other words must be substantively justified
and must be conducted in a procedurally fair manner in that the
employer must follow a fair process before termination and the
outcome must be one that a reasonable and fair employer could
have reached in all the circumstances. In the case of Norizan
bin Bakar v. Panzana Enterprise Sdn. Bhd. [Rayuan Sivil No.
01(f)-29-11-2011] it was held that under the scheme section 20
of the Industrial Relations Act 1967 the Industrial Court is
clothed with the powers to consider whether the misconduct if
proved warrants the punishment of dismissal or otherwise. The
powers of the Industrial Court has been clearly elucidated by the
Federal Court it was held in Wong Yuen Hock v. Hong Leong
Assurance Sdn. Bhd. (1995) 2 MLJ 753 and Milan Auto Sdn.
Bhd. v. Wong Sek Yen (1995) 3 MLJ 537. In Wong Yuen Hock
(supra) it was pointed out that the functions of the Industrial

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Court in dismissal cases on a reference under section 20 of the


Industrial Relations Act 1967 is two-fold that is to determine
whether the misconduct has been established and whether the
misconduct proved warrants the punishment of dismissal. It was
further held that the Industrial Court has the jurisdiction to
decide that the dismissal of a workman was without just cause or
excuse by using the doctrine of proportionality of punishment of
dismissal was too harsh in the circumstances of the case and in
the exercise of its functions the Industrial Court can rely on its
powers under section 30(5) of the Industrial Relations Act
1967 viz equity, good conscience and substantial merits of the
case.

If these principles are applied to the facts of the given case


the Court would find that it would not be substantively justified
that the Claimant be dismissed by the Company under these
circumstance and if at all, he had misconducted himself. Given
that the Claimant applied for the written permission in May that
same year to return to Malaysia and given that his return in July
and August that year again but without seeking prior permission

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from the Company during the center's summer off days the
Company should have been astute in the making decision it
made. Terminating the Claimant under these circumstances and
coupled with the fact that 3 other employees on training at Thales
who also were away from Thales, France during the summer off
days but are still employed by the Company, does not appear to
be what a reasonable and fair employer would have done in all
the circumstances.

The Company's failure to produce the

passports of these employees who are currently employed by the


Company despite their travels outside Thales, France during the
summer off days without approval of the Company would not
have augured well for it. COW.4 testified that he requested these
documents from the Human Resource Department of the
Company but they refused to give it to him. The documents if
produced would have assisted the Court in understanding
whether the Claimant had committed a serious act of misconduct.
It would have also dispelled any doubts the Court might have had
as regards the selective punishment of the Claimant by the
Company and whether he was being unfairly treated and
discriminated against.

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So, in the light of the foregoing paragraphs facts and


evidence adduced during the Hearing the Court would have
reiterated that the Company's decision to terminate the Claimant
is without merits and basis.

The Court reiterates that on the evidence and facts the


Claimant has not misconducted himself by returning to Malaysia
during that summer break at Thales, France as he did not breach
clause 2.1 of he Service Bond Agreement because he did not
abandon his On-Job Training at Thales, France. Neither has he
been dishonest as claimed by the Company. The Company has
failed to establish the Charges against the Claimant. The Court
sets aside the dismissal and makes the following orders for relief
for the Claimant.

This is the Court's decision acting on the

principles of equity and good conscience and having had regards


to the substantial merits of the case.

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Relief
The Court has taken into consideration the fact that the
Claimant was sent by the Company for special training at Thales,
France which he has completed the Court opines that his services
may be beneficial to the Company. The facts and evidence do not
allude to any trust and confidence in the Claimant being lost as
the Claimant was not dismissed from poor performance or serious
acts of misconduct by the Company. Given his age and training
the Court opines that reinstalling the him will serve towards
justice achieved.

Accordingly the Court deems it fit to order that the Claimant


be reinstated to his former position in the Company so that he
could put his training and knowledge gained to good use for the
Company's benefit.

The Court orders that the Company

reinstates the Claimant within 30 days from the date of service of


this Award without loss of salary, seniority and other benefits,
monetary or otherwise. The Court orders that the Claimant be
paid back wages from the date of dismissal based on the last
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drawn salary of the Claimant together with all other monetary


benefits less statutory deductions if any. The Claimant is ordered
to report back to the Company not later than 30 days from the
date of the service of this Award.

The Court orders that all

monetary benefits be paid to the Claimant within 30 days from


the date hereby through his Solicitors Messrs. Murugavell
Arumugam & Co.

HANDED DOWN AND DATED THIS 17 DAY OF AUGUST 2015


Signed

( DATO MARY SHAKILA G. AZARIAH )


CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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