INDUSTRIAL COURT OF MALAYSIA

CASE NO. 4/4-661/15

BETWEEN

SIMON A/L ANTHONYSAMY

AND
ROYAL SELANGOR CLUB

AWARD NO : 1705 OF 2017

BEFORE : Y.A. PUAN SAROJINI A/P KANDASAMY

Chairman (Sitting alone)

VENUE : Industrial Court, Kuala Lumpur

DATE OF REFERENCE : 25.08.2015

DATE OF RECEIPT OF : 07.09.2015

ORDER OF REFERENCE

DATES OF MENTION : 05.10.2015, 21.10.2015, 13.01.2016,

18.07.2016

DATES OF HEARING : 16.08.2016, 18.08.2016, 15.09.2016,

22.09.2016

REPRESENTATION : Mr. Munjit Singh of Malaysian Trades

Union Congress (MTUC) – Counsel for
Claimant

Mr. A. Ramadass together with Ms. T.

Kavitha of Messrs. Ramadass &
Associates – Counsel for Company

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REFERENCE

This is a reference by the Honourable Minister of Human Resources

under section 20(3) of the Industrial Relations Act 1967 for an award in
respect of a dispute arising out of the dismissal of SIMON A/L
ANTHONYSAMY (“Claimant”) by ROYAL SELANGOR CLUB
(“Company”).

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 AWARD

THE REFERENCE

[1] The parties to the dispute are Simon a/l Anthonysamy

(“Claimant”) and Royal Selangor Club (“Company”). The dispute which
was referred to the Industrial Court by way of a Ministerial Reference
under section 20(3) of the Industrial Relations Act 1967 made on
25.08.2015 is over the dismissal of the Claimant by the Company on
06.01.2015.

DOCUMENTS

[2] The relevant cause papers before this Court are as follows:

a) The Claimants‟ Statement of Case dated 28.10.2015 (SOC);

b) The Company‟s Statement in Reply dated 18.12.2015 (SIR);
c) The Claimant‟s Rejoinder dated 07.01.2016;
d) The Claimant‟s Bundle of Documents (CLB-1);
e) The Claimant‟s Daftar Perkahwinan dated 22.08.2007
(CLB-2);

f) The Company‟s Bundle of Documents (COB-1);

g) The Company‟s Supplementary Bundle of Documents
(COB-2);
h) The Company‟s Supplementary Bundle of Documents (2)
(COB-3);

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 i) The Claimant‟s Application for Employment 10.09.1998
(COB-4);
j) Mr. Kevyn Lee Seng Ngian‟s contract of employment
(COB-5);
k) The Claimant‟s Witness Statement (CLWS-1);
l) The Company‟s Witness Statement by Puan Salina Jaafar
(COWS-1);
m) The Company‟s Witness Statement by Mr. Jeyakumar a/l
Mutusami (COWS-2); and
n) The Company‟s Witness Statement by Mr. Kevyn Lee Seng
Ngian (COWS-3).

THE COMPANY’S CASE

[3] The Company called the following witnesses to give evidence

during the hearing on 16.08.2016, 18.08.2016 and15.09.2016:

(a) COW-1: Puan Salina Jaafar is the Assistant Manager of

Human Resources (HR) in the Company;

(b) COW-2: Mr. Jeyakumar a/l Mutusami is the Operating

Manager in the Company; and

(c) COW-3: Mr. Kevyn Lee Seng Ngian was the General
Manager in the Company at the material time. He has since
resigned from the Company on 29.02.2016 and is currently
the General Manager for Tasik Puteri Golf and Country
Company.
4
[4] The Claimant was employed as a waiter in the Company vide letter
dated 10.09.1998 [COB-1 p. 1-3] with effect from 11.09.1998. The
Claimant was confirmed in his position vide letter dated 11.11.1998
[COB-1 p.4]. The Claimant was promoted to the position of Assistant
Food and Beverage Executive (Chief Steward) with effect from
01.06.2012 [COB-1 p. 5-9] and he was subsequently confirmed in that
position vide letter dated 16.08.2012 [COB-1 p.10]. The Claimant‟s last
drawn salary was RM2,550.00.

[5] The Company averred that vide two separate leave application
forms, the Claimant applied for leave from 16.12.2014 to 21.12.2014 and
from 23.12.2014 to 30.12.2014. The said application was approved.
However the Claimant was absent from work without prior approval on
31.12.2014 and 01.01.2015, and subsequently the Company issued a
show cause letter dated 02.01.2015 [COB-1 p. 28] to the Claimant in
respect thereto. Although the Claimant was required to submit his
written explanation by 05.01.2015, he subsequently submitted his
explanation vide letter dated 07.01.2015 [COB-1 p.29] stating that he
could not attend work on the said dates since he had family problems.
The Company issued to the Claimant a second warning letter dated
08.01.2015 [COB-1 p. 31] pursuant to finding his explanation in respect
of his absence on 31.12.2014 and 01.01.2015 to be unsatisfactory. The
Claimant was also expressly informed that should there be any further
complaints against him, the management would take more serious
disciplinary action against him. In the meantime the Claimant submitted
a medical certificate to the Company for being absent on 02.01.2015.

5
[6] The HR Department was made aware vide an internal email
correspondence dated 8.1.2015 [COB-1 p. 30] of the Claimant‟s
absence from work on 06.01.2015, 07.01.2015 and 08.01.2015. The
Company then prepared a show cause letter dated 12.01.2015 [COB-1
p.34] to be issued to the Claimant to explain why he was absent from
duty from 06.01.2015 till 11.01.2015 without prior approval. The
Claimant was required to submit an explanation in writing as to the
reasons for his absence by 14.01.2015, failing which he was advised
that disciplinary action would be taken against him. However, since the
Claimant had promised the Company‟s management that he would
report for work on 12.01.2015, the said letter was not issued.

[7] The Company averred that Mr. David Siew, the Company‟s
General Committee member and Chairman of the HR Sub-Committee,
had personally called the Claimant on 09.01.2015 after finding out that
the Claimant had been absent from work and had enquired from him of
his whereabouts. The Claimant was advised to see the Company‟s
management to solve his problem. However, the Claimant failed to
show up.

[8] The Company contended that the Claimant did not bring to the
attention of the management at the material time of any serious
misunderstanding with his wife that had allegedly caused stress to him.
The Company had no knowledge of the contention that the Claimant‟s
wife was missing from his house on 02.01.2015. The Company denied
that the Claimant had met the Company‟s management and relayed his
predicament or that he had made any application for leave. The
Company averred that the Claimant had seen COW-3 on 05.01.2015 to
6
explain the reason for his absence on 31.12.2014 and 01.01.2015 and
that he did not submit any application for leave.

[9] COW-1 notified Mr. David Siew vide an internal email

correspondence dated 13.01.2015 [COB-1 p. 35] that the Claimant had
not reported for work from 06.01.2015, and since he had not reported for
work on 12.01.2015 as promised nor had he applied for leave in respect
of the said period, she would be issuing the Claimant with a letter of
termination. Mr. David Siew vide an email dated 14.1.2015 [COB-1 p.
35] advised COW-1 to do the necessary to terminate the services of the
Claimant since he had been absent from work on the said days without
prior approval. The Company vide letter dated 14.01.2015 [COB-1 p. 36]
wrote to the Claimant informing him that since he had been absent from
work since 06.01.2015 without prior leave or any reasonable
explanation, his contract of service with the Company was deemed to
have been broken in accordance with section 15(2) of the Employment
Act 1955. The Company further averred that it was left with no
alternative but to consider that the Claimant had terminated his contract
of employment for being absent from work for more than two
consecutive working days without prior leave or without reasonable
excuse. The Company also further submitted evidence of the Claimant‟s
previous misconducts in the Company spaning from 1999 to December
2014.

7
THE CLAIMANT’S CASE

[10] The Claimant gave evidence on his own behalf during the
hearing on 15.09.2016. The Claimant commenced employment with the
Company on or about 11.09.1998 as a waiter in the Food and Beverage
Department. The Claimant averred that due to his consistent good work
ethics and conduct he was gradually promoted to higher positions and
was last elevated to the position as Food & Beverage Executive and his
last drawn salary was RM2,550.00.

[11] The Claimant averred that somewhere in late December 2014 he

faced some serious misunderstanding with his wife. Following that
incident the relationship with his wife became stressed. The Claimant
further averred that on 02.01.2015 he discovered that his wife was
missing from their home. Arising from the situation, he made frantic
attempts to look for his wife but to no avail. As a result the Claimant
met the Company‟s management and relayed his predicament. He also
met COW-3 to apply for leave as he wanted to locate his wife. But
COW-3 was not sympathetic towards his situation and refused to
entertain his request for leave. As the Claimant‟s circumstances were
compelling, he proceeded with abstaining from work because he had to
look for his wife. During his absence, the Claimant had been in contact
with the Company‟s management where he duly briefed them of his
location, his situation and assured them he will return to work as soon he
resolved his family situation.

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[12] When the Claimant went back to the Company he was told that
his services were already terminated. The Claimant‟s attempts to meet
up with the Company‟s management were futile. The Claimant
contended that the Company was inconsiderate and inhumane to his
plight and further contended that the Company had full knowledge of his
absence. The Claimant will also contend that the Company had
deliberately failed to accord him a reasonable chance to explain his
reason for absence and thereby outrightly denied him the course of
natural justice.

THE LAW AND BURDEN OF PROOF

[13] The function of the Industrial Court under section 20 of the

Industrial Relations Act 1967 was clearly stated in the Federal Court
case of Milan Auto Sdn. Bhd. v Wong Seh Yen [1995] 4 CLJ 449, as
follows:

"As pointed out by the Court recently in Wong Yuen Hock v. Syarikat
Hong Leong Assurance Sdn. Bhd. & Anor Appeal [1995] 3 MLJ 344,
the function of the Industrial Court in dismissal cases on a reference
under s. 20 is twofold, first, 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.".

[14] It is trite law that the Company bears the burden to prove that the
Claimant had committed the alleged misconduct and that the misconduct
warrants the Claimant's dismissal. In Ireka Construction Berhad v
9
Chantiravathan Subramaniam James [1995] 2 ILR 11 (Award No. 245 of
1995) it was stated as follows:

“It is the basic principle of industrial jurisprudence that in a dismissal

case, the employer must produce convincing evidence that the
workman committed that offence of which the workman is alleged to
have been dismissed. The burden of proof is on the employer to
prove that he has just cause or excuse for taking the decision to
impose the disciplinary measure of dismissal upon the employee.
The just cause must be, either a misconduct, negligence or poor
performance based on the case.”.

[15] The standard of proof needed to be met by the Company is on a

balance of probabilities which is the civil standard. (See Telekom
Malaysia Kawasan Utara v. Krishnan Kutty a/l Sanguni Nair & Anor
[2002] 3 CLJ 314). This approach was reaffirmed in K A Sanduran
Nehru Ratnam v I-Berhad [2007] 1 CLJ 347 at p. 362 CA.

ISSUES

[16] It is not disputed that the Company vide letter dated 14.01.2015
had terminated the Claimant as he was absent from duty from
06.01.2015 to 14.01.2015 without any reasonable explanation. The
Company in accordance with section 15(2) of the Employment Act 1955
allegedly deemed that the Claimant had broken his contract of service
with the Company and thereby his employment was terminated effective
06.01.2015. The case of Goon Kwee Phoy v J & P Coats (M) Bhd
[1981] 1 LNS 30; [1981] 2 MLJ 129 is authority for the proposition that
the Court is restricted in its inquiry into the veracity of the reason chosen
10
by an employer for the dismissal. Raja Azlan Shah CJ (as His Highness
then was) speaking for the Federal Court ruled:

“Where representations are made and are referred to the Industrial

Court for enquiry it is the duty of that court to determine whether the
termination or dismissal is with or without just cause or excuse. If the
employer chooses to give a reason for the action taken by him
the duty of the Industrial Court will be to enquire whether that
excuse has or has not been made out. If it finds as a fact that it
has not been proved then the inevitable conclusion must be that the
termination or dismissal was without just cause or excuse. The
proper enquiry of the court is the reason advanced by it and that
court or the High court cannot go into another reason not relied on
by the employer or find one for it.”.
[Emphasis added]

[17] It is the duty of this Court to determine whether the Company on

a balance of probabilities had proven the Claimant‟s alleged misconduct
of being absent without any reasonable explanation. If the Court makes
a finding of fact that the alleged misconduct has been proven, then the
Court must determine whether his dismissal was with just cause or
excuse.

EVALUATION OF EVIDENCE AND FINDINGS OF COURT

[18] The letter of termination dated 14.01.2015 stated that the

Claimant was absent from work from 06.01.2015 to 14.01.2015 without
any reasonable explanation. In this regards the Company‟s allegation

11
that the Claimant was absent without any reasonable explanation
(excuse) is the crux of the matter which had led to his dismissal.

[19] The Claimant thus has the burden to prove the fact that he had a
reasonable excuse to be absent from work and that he had informed the
Company‟s management of the reasonable excuse at the earliest
opportunity. This was held in the case of Ann Bee (M) Sdn Bhd v Noor
Raziff Ramly [1999] 1 ILR 96 where the learned Industrial Court
Chairman held as follows:

“…the burden is on the Claimant to prove that he had reasonable

excuse for such absence and had informed, or attempted to inform,
the Company of such excuse.”.

[20] Based on evidence tendered during the hearing, the Claimant

was absent from work from 31.12.2014 to 01.01.2015 without the prior
approval of COW-3. It is undisputed that COW-3 is the authority in
charge for approving the leave application of Executive staff, including
the Claimant. Subsequently a show cause letter dated 02.01.2015 was
issued to the Claimant. In his reply to the show cause letter dated
07.01.2015, the Claimant stated that he was absent from work on
31.12.2014 and 01.01.2015 because he had family problems. The
Company found his explanation unsatisfactory and issued him a second
warning letter dated 08.01.2015. The Claimant stated in evidence that
he had never received the said warning letter dated 08.01.2015.

[21] The Claimant returned to work on 03.01.2015 as he was on

medical leave on 02.01.2015. The Claimant continued to work on

12
04.01.2015 and 05.01.2015. The Claimant in evidence stated that he
received a call from his friend at about 6.30pm on 04.01.2015 informing
him that his wife had left his house with another man. The Company
raised an issue that the Claimant was inconsistent on the date his wife
went missing, namely in the SOC the Claimant stated the date as
02.01.2015 but in his testimony before the Court he stated the said date
as 04.01.2015. The Claimant admitted his mistake and confirmed that
his wife ran away on 04.01.2015. The Claimant averred that he made
several futile attempts to contact his wife through his handphone.
Nevertheless the Claimant continued to work until he finished work at 12
midnight on 04.01.2015 wherein thereafter he went around Kuala
Lumpur looking for his wife, but again in vain. The Company in its
written submissions at paragraph 10.17 raised the issue of the
Claimant‟s work schedule on 04.01.2015 [COB-2 p. 32] wherein the time
he clocked out was recorded as 1600 hours on 04.01.2015, and not 12
midnight as alleged by the Claimant in evidence. This matter of
contention was never raised during the Claimant‟s cross-examination
and the Claimant was not given any opportunity to explain any ambiguity
between his evidence in Court and the said work schedule. It is now
unfair for the Company to raise this matter during submissions and
expect the Court to make its own deductions bereft of any plausible
explanation from the Claimant.

[22] The Claimant in evidence stated that he had met COW-3 on

05.01.2015 and duly informed him about his personal situation where he
pleaded with COW-3 for more leave to look for his wife, but in vain. The
Claimant‟s subsequent actions on 05.01.2015 are appropriately detailed
by him as follows:
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 “Later on 5th January 2015 I reported to work with intention to apply
for leave to enable me to search for my wife. But soon after that I
was informed by the Cashier at Veranda F&B Outlet stating the
General Manger Mr. Kevyn Lee (COW-3) wanted to meet me.
Accordingly I went to the the GM’s office and met him. He asked
me about my absence on 31st December 2014 and on 1st January
2015, I explained to him that I was on MC on 31st December 2014
while I took PH on 1st January 2015. The GM was angry with me
because that was busy period, I explained to him I was really sick.
I also infom Mr. Kevyn Lee I want to apply emergency leave
for one week because my wife has gone missing from my
house last night and that I want go and search for her. Mr.
Kevyn Lee said he cannot give the leave because you just return
from leave, he was talking to me very angrily with raised voice. He
said you want simply drive around and search your wife like
that….I answered that he should understand my situation and
please give me the leave, he replied loudly “cannot”, if you wish
you work otherwise you resign, leave from here my door is open,
he went to the door and opened it told me you leave now.”.

[23] COW-3 admitted in evidence that when the Claimant came to his
office on 05.01.2015 to explain about his absence from work on
31.12.2014 and 01.01.2015, the Claimant informed him that his wife had
run away from home. COW-3 stated that he found the Claimant‟s
explanation unacceptable and unreasonable because his wife ran away
voluntarily, and it was not an instance of missing persons. COW-3‟s
cynicism, brashness and lack of compassion towards an employee‟s
plight is obvious wherein in his evidence he stated:

“Q: Do you agree that a person’s family has major issue if wife has
run away?
A: I do not find it an acceptable issue for a staff for not turning up for
work on the two busiest days of the year.

14
 Q: You owe a duty to employees for employee’s welfare as a
General Manager?
A: I am not responsible for employee’s welfare.”.

[24] Later on during re-examintion by the Company‟s learned counsel,

COW-3 further elaborated that the Company owes a duty to an
employee‟s welfare only if it pertains to that employee‟s personal health
and safety. According to COW-3 the Company is not responsible for a
family member‟s welfare.

[25] On 05.01.2015 when the Claimant met COW-3, he alleged that

he had also verbally applied for emergency leave of one week from
06.01.2015 to look for his wife who had run away from home. COW-3
denied in evidence that the Claimant had verbally applied for the said
leave. I find COW-3‟s denial rather dubious as the Claimant was
desperate to look for his wife who had run away from home on
04.01.2015 and he could only do so by taking leave of absence from his
work with the approval of COW-3. I must add that during the hearing I
found COW-3 was evasive in his testimony before the Court and there
were many glaring doubts and inconsistencies in his evidence. I thus do
not doubt that the Claimant had in fact made the said application to
COW-3 on 05.01.2015. Unfortunately COW-3 did not accept the
Claimant‟s excuse, and he was told to put aside his family problems and
continue to work. The Claimant‟s evidence is as follows:

“Q: Why did you not apply for leave on 5/1/2015?

A: Saya nak persertujuan daripada GM untuk apply cuti satu
minggu. Untuk Executive, GM yang approve leave. GM kata tak
boleh bagi cuti. Masalah keluarga letakkan tepi.
….
15
 Q: Apa kaitan ofis tutup (pada 03.01.2015 dan 04.01.2015) dengan
permohonan cuti?
A: Hal keluarga saya hendak bincang dengan GM.
On 05/01/2015, saya minta cuti dengan GM secara verbal
daripada 06/01/2015 onwards (1 week) to look for wife. GM said
cannot take leave. I went to Salina’s(COW-1) office, she said you
apply for leave and pujuk GM to approve leave.
Went to GM again to approve leave. He said no.
So I continued work on 05/01/2015. From 06/01/2015 onwards I
did not work as went to look for wife (went to Johor to look for
her).”.

[26] Pursuant to the Claimant‟s meeting with COW-3 on 05.01.2015, it

was as clear as day that COW-3 refused the Claimant‟s verbal request
to apply for leave for one week from 06.01.2015 to look for his wife who
had run away. Therefore the Claimant did not formally apply for leave
from 06.01.2015 through a leave application form as clearly COW-3
would have rejected the leave application. The Court is of the view that
although leave must be applied through a written form, this does not
mean that an employee is prevented from seeking the prior approval of
his superior before applying for the leave through a leave application
form. Thus the Company‟s argument that COW-3 could not approve any
leave as the Claimant had not made any leave application vide the
requisite form does not hold any water as clearly COW-3 had verbally
informed the Claimant that he had rejected his prior verbal application
for the said leave.

[27] The Claimant had also informed COW-1 on 05.01.2015 that he

was having family problems, yet nothing positive was done by COW-1
who turned a deaf ear to the Claimant‟s predicament. COW-1 alleged

16
that the Claimant did not inform her of the nature of his family problems
on 05.01.2015. He only informed her of the exact nature of his family
problems when he called her on 09.01.2015. I find this hard to believe as
on 05.01.2015 the Claimant had already informed COW-3 of the exact
nature of his family problems, and it is incredulous for COW-1 to allege
that she was subsequently not informed of the said family problems by
the Claimant when he saw her immediately after seeing COW-3 on
05.01.2015. I must add that based on the demenaour od COW-1 during
this hearing I find that she is an unreliable witness as her evidence
before this Court is riddled with contradictions and inconsistent answers.
Further COW-1‟s evidence contradicted with the Company‟s pleaded
case as well as her own witness statement at COWS-1. Her own
evidence was so inconsistent that this Court must exercise caution when
considering and evaluating the said evidence.

[28] The Claimant had also informed Mr. David Siew of his
predicament relating to his wife having run away from home. The
Claimant in evidence stated that on 09.01.2015 he received a telephone
call from Mr. David Siew who had asked him why he was absent from
work from 06.01.2015 until that day? The Claimant told Mr. David Siew it
is because he had family problems and that he was still in Johor. He
further stated that he will not promise when he will return to work but will
do so when he has solved his family problems. COW-1 corroborated this
fact when she stated in COWS-1 at Q&A 44 to 48 that Mr. David Siew,
who had called the Claimant through his mobile phone on 09.01.2015,
was told by the Claimant that his absence from work was due to his
family problems. However according to COW-1, Mr. David Siew told her

17
that the Claimant had told him that he would report for work on
09.01.2015. The Court finds that there is clearly a discrepancy in
evidence on what the Claimant told Mr. David Siew and what Mr. David
Siew allegedly told COW-1. The Company did not call Mr. David Siew to
give evidence in Court, and the Claimant‟s learned counsel raised an
adverse inference against the Company as it has intentionally
suppressed material evidence to the Court which is tantamount to
misleading the Court and withholding evidence which may implicate the
Company‟s case. COW-1 confirmed that Mr. David Siew is no longer a
member of the Company and resigned with effect from 31.07.2015.
However it is obvious from the evidence tendered during this hearing
that Mr. David Siew was a very involved party in regards his
communication and liasion with the Claimant pertaining to the Claimant‟s
absence from work since 06.01.2015. The Court finds that Mr. David
Siew is an important and material witness (See Munusamy
Vengadasalam v. PP [1987] 1 CLJ 205; [1987] CLJ (Rep) 221; [1987] 1
MLJ 492). The Company should have called Mr. David Siew to testify so
that the Claimant will have an opportunity to cross-examine him to
enable the Court to verify and confirm as to whether the Claimant‟s
evidence is credible based upon the balance of probabilities. At the
same time, the Court was also denied the opportunity to assess his
evidence and demeanour during this hearing. In Ho Wah Genting
Marketing Sdn. Bhd. v. Ismail Kassim Mohd Yussof (1998) 2 ILR 464,
the learned Chairman of the Industrial Court held that the fact that the
material witness was no longer with the Company was not a good
enough reason for his non-attendance as the issue of the Claimant's
employment was at stake. The Company also did not produce proof as

18
to the steps it had taken to ensure the attendance of Mr. David Siew
during this hearing. In the circumstances this Court invokes an adverse
inference under s. 114(g) of the Evidence Act 1950 against the
Company for non-production of an important and material witness,
namely Mr. David Siew.

[29] In addition the Claimant vide his letter dated 07.01.2015

addressed to Mr. Bryan Perera, the Company‟s President, had informed
him that he was having family problems. The Claimant also informed
Mr. Bryan Perera about his meeting with COW-3 on 05.01.2015 and that
during that meeting COW-3 did not want to listen to the Claimant‟s
problem. In the letter the Claimant wrote “Lastly his (COW-3) answer to
me was that he did not need me any more to this Club (Company) and
ask me to leave the Company if I prefer (not) to work here and look for
another job.”.

[30] The above mentioned pieces of evidence are material to the

Claimant‟s case as substantiating the fact that prior to applying for leave
for one week from 06.01.2015 he had sought the permission of COW-3
by putting forth his reasonable excuse for seeking his prior approval in
regards the said leave. The Claimant had also informed the Company‟s
management, namely COW-1, Mr. David Siew and Mr. Bryan Perera of
his predicament and that his request for leave from 06.01.2015 been
rejected by COW-3.

[31] The Court finds that the Claimant had taken reasonable steps to
inform the Company‟s management, namely COW-1 and COW-3 as well

19
as Mr. David Siew and Mr. Bryan Perera, about his predicament that
was keeping him away from his work since 06.01.2015. The Claimant‟s
request for leave is clearly based on extenuating circumstances that are
not the norm. It is not every day that one‟s wife runs away from home.
Such circumstances demand a sympathetic ear from one‟s
superior/boss. COW-3 and COW-1 had never disputed the Claimant‟s
reason for his absence as they admitted that they never requested for
proof that his wife had run away. The Claimant admitted that he never
filed a police report due to the social embarrassment such report could
cause to the respective families. This is particularly so in a closed
community where culturally shame and not empathy is thrown upon the
families who are in such dire circumstances.

[32] In a plethora of Industrial Court decisions, it has been held that

no employee can claim as a matter of right leave of absence without
permission. The granting of leave to an employee is a management
prerogative and is at the absolute discretion of the management. In the
book “The Law of Industrial Disputes” the distinguished author OP
Malhotra at p. 1135 -1137 stated:

“ An employee is under an obligation not to absent himself from work

without good cause during the time at which he is required to be at
work by the terms of his contract of service….

The mere fact that he had applied for leave would not be a good
defence when the leave was refused by the employer in exercise of
his discretion, unless it could be shown that the action taken was
actuated by the desire to victimize the workman…

20
 Another defence open to an employee against the charge of
absence without leave is that the absence was on account of
circumstances beyond his control. For instance where the
absence of a workman was on account of his sudden or serious
illness or the serious illness of a relation, that would be an
extenuating circumstance which the employer will have to take into
consideration…”.
[Emphasis added]

[33] On the extent of management prerogative, the Courts have held

that these prerogatives are subject to the normal limits of
reasonableness and legality. Dr. Dunston Ayadurai in his book
“Industrial Relations in Malaysia: Law and Practice” 3rd Ed, stated at p.
223 and 224:

“…it has made it clear that every prerogative is a qualified

prerogative, and that any abuse of a prerogative will be struck
down by the court. Indeed, in Ming Court Beach Hotel v National
Union of Hotel, Bar & Restaurant Workers (Award 136 of 1987)
the court pointed out that almost 10 years earlier in Malayan
Agricultural Producers Association v All Malayan Estates Staff
Union (Award 120 of 1978) it had declared:-

Time and again, the courts here and in the British

Commonwealth [now the Commonwealth of Nations] have
held that managerial prerogatives are not absolute. Where
it is shown that the exercise of these prerogatives is not bona
fide, or amounts to unfair labour practice, or indicates
victimization, the Industrial Court will not hesitate to strike
down such exercise as bad.

The following principles are as valid today as when they were first
stated in Lim Sim Tiong v Palm Beach Hotel (Award 48 of 1974):

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 It is a basic principle of industrial law that a court would be
wrong to interfere with the bona fide exercise of powers which
are given to management by the common law and by
contracts of service or which are inherent in management. If
there has been no abuse of discretion, no discrimination, no
capricious or arbitrary action, if the management has acted in
good faith and upon fair investigation, an arbitrator should not
disturb the decision taken by the employer. However, as a
court of equity and good conscience, this court will
intervene not only where there has been victimization, but
also where it is of the opinion that upon the substantial
merits of the case the action taken by the management
was perverse, baseless or unnecessarily harsh, or was
not just or fair, or where there has been a violation of the
principles of natural justice, or where there has been
unfair labour practice or other mala fide action on the part
of the management in the exercise of its powers.”
[Emphasis added]

[34] The Court is of the view that although it is the management‟s

prerogative to approve leave, yet that prerogative must be exercised
judiciously and reasonably. The Claimant had dutifully sought due
approval for leave from COW-3 prior to applying for the leave through a
leave application form. He met COW-3 and explained his situation but
to no avail. The Claimant also informed COW-1 that he had family
problems as well as the nature of the problems and further informed her
that COW-3 did not allow him leave. From these material facts it is
crystal clear that the Claimant was in distress following his wife‟s
disappearance and that the Company‟s management had first hand
knowledge of the Claimant‟s dire situation that prompted him to apply for
leave verbally from COW-3. Yet in the letter of termination, the
Company denied knowledge of the Claimant‟s reasonable explanation,

22
namely that his wife had run away from home. This denial was similarly
pleaded by the Company in the SIR.

[35] The Court concludes that the Claimant‟s plight of being thrust in a
situation where his wife had run away from home constitutes within itself
a reasonable excuse for his absence from work that should have been
taken into account by COW-3 when he was considering the Claimant‟s
prior verbal application for leave as it was a situation that was not within
the control of the Claimant. The Company‟s management was morally
and legally duty bound to show compassion and extend a helping hand
to the Claimant by allowing him reasonable leave to ease his unfortunate
situation and search for his wife. But instead what he got was blank and
inhumane rejection of his verbal leave application from COW-3. In
addition to this, the Claimant was asked to put aside his problem and go
back to work. Otherwise the Claimant was asked to resign. The Court is
of the view that any reasonable man faced with similar circumstances as
the Claimant would have done what the Claimant subsequently did, that
is, to take matters into his own hands by absenting himself from work
without approval in the hopes of locating his wife as soon as possible.

[36] The Court is of the view that COW-3‟s attitude depicted a gross
lack of empathy, sympathy and care towards an employee, these being
the hallmark of traits that must be inherent in an employer to nurture a
healthy employer-employee relationship of mutual trust and respect.
The Claimant being in such an unfortunate situation was clearly not in
the frame of mind to work as he was torn apart when faced with the
emotional upheaval caused by his wife running away from home. The

23
evidence of the Claimant appropriately described his frame of mind at
the material time:

“I left the General Manager’s (COW-3) room and straight went to

the Human Resources Manager Puan Salina(C)OW-1) and I told
her about my meeting with Mr. Kevyn Lee and I told her my
situation about my wife is missing from my home and Mr. Kevyn
don’t want to approve my leave. I told Puan Salina that I must go
on leave immediately but Puan Salina said what if Mr. Kevyn don’t
approve your leave? I told her I am very troubled and I cannot
work but she did not give me any hope. After that I return to
my work place but could not do anything and after my break
time about 6pm I left the workplace and went home and
continued to look for my wife.”.
[Emphasis added]

[37] The events led to the Claimant being emotionally drained as he

went in search of his wife as far as Johor Bahru as was pleaded in the
SOC and in his witness statement. Clearly the Claimant‟s personal
health was affected when his wife ran away and COW-3 should have
taken steps to address this issue with the Claimant rather than shout at
him and threaten him to resign. COW-3 should have provided some
form of comfort to the Claimant and listened to his impassioned pleas for
assistance as the Claimant‟s state of mind did not befit him to carry out
his official duties and responsibilities in the Company effectively. COW-
3‟s attitude is shameful and not one that augurs well with the image of
the Company which by large has the status of being a social and
recreational club.

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[38] COW-3 and COW-1 were vested with the duty to look after the
welfare of the Company‟s employees but they had taken the callous,
lackadaisical and uncaring attitude towards the Claimant‟s unfortunate
situation which is evident when they had failed to show any form of
compassion to the Claimant‟s predicaments.

[39] The Court finds that COW-3 as the authority in-charge for
deciding the leave application of the Claimant for one week from
06.01.2015 had failed to exercise his management prerogative in a fair,
just and compassionate manner and the action taken by him was harsh,
perverse and in violation of the principles of fair labour practice.

[40] The Court also finds that there are a number of procedural
improprieties when the Company executed its decision to terminate the
Claimant. Firstly the Company submitted that prior to the termination of
the Claimant‟s services, it have given the Claimant a show cause letter
dated 12.01.2015. However it is undisputed that the said show cause
letter was never served upon the Claimant, nor was it sent to his postal
address. COW-1 did not provide any proof that she had notified the
Claimant by other means such as by telephone instructing him to collect
the said show cause letter and give his explanation. COW-1 merely
asserted that the said show cause letter could not be served upon the
Claimant as he had failed to report for duty on 12.01.2015. Thus it is
apparent that the Claimant was not accorded any opportunity to explain
his absence from work from 06.01.205 to 11.01.2015.

25
[41] Secondly the date of termination stated in the letter of termination
was 06.01.2015. COW-1 admitted that she had prepared the letter of
termination and had erroneously stated the Claimant‟s date of
termination as 06.01.2015. COW-1 confirmed in evidence that the date
of the Claimant‟s termination should have been 14.01.2015 and not
06.01.2015 as the letter of termination was issued only after the
Claimant failed to turn up for work on 14.01.2015. The said error in the
Claimant‟s date of termination was never clarified to the Claimant prior to
this hearing.

[42] Thirdly COW-3 admitted that he did not refer the Claimant‟s case
to the Disciplinary Board set up under the Company‟s Constitutional
Rules that were approved by the Registrar of Societies on 04.04.2013
[COB-2 p. 17-25]. He stated during re-examination that “this case did not
go through the Disciplinary Committee (Board) because it is based on
the Employment Act 1955 of self-termination”. The letter of termination
stated that the Claimant was terminated in pursuance of section 15(2) of
the Employment Act 1955. The Court is of the view that COW-3
arbitrarily terminated the Claimant on the misguided notion that the
Claimant was subject to the provisions of the Employment Act 1955.
Clearly the Claimant was not subjected to the Employment Act 1955 as
has been conceded by the Company in its written submission at
paragraph 11.6. I must state that even if the Employment Act 1955
applied to an employee of the Company, there is no evidence that the
Company‟s Constitutional Rules exempt the termination of that
employee from the procedural requirements as set out therein, namely
that the case concerned should be reffered to the Disciplinary Board.

26
[43] In trying to draw some form of similarity, the Company had in its
submission liberally quoted my decision in the case of Saravanan
Tanimalai v A W Faber Castell (M) Sdn Bhd [2015] 3 ILR 384 in regards
absenteeism from work. I must stress that the facts of Saravanan
Tanimalai (supra) and this case are totally different and most importantly
the claimant in that case fell with the scope of the Employment Act 1955.

[44] Fourthly the most glaring procedural impropriety was that COW-3
did not have the authority or power to dismiss the Claimant. The
Company‟s Constitutional Rules provide that the only authority in the
Company vested with the power to dismiss employees of the Company
is the Company‟s General Committee. At COB-2 p. 25 paragraph 24.17
it states:

“The General Committee, in addition to the powers hereinafter specially

conferred upon them, shall have control of the finances of the
Company, the power to engage, control and dismiss employees of the
Company in consultation with the General Manager, and….”
[Emphasis added]

[45] There is no evidence before the Court that the power of dismissal
of employees in the Company had been delegated to Mr. David Siew or
COW-3. COW-3 admitted in evidence that he did not comply with
paragraph 24.17 of the Company‟s Constitutional Rules when he
dismissed the Claimant as he did not seek the approval of the General
Committee prior to terminating the Claimant‟s employment. He agreed
that he did not inform the General Committee of the Claimant‟s
termination. COW-3 also admitted in evidence that “I did not inform Mr.

27
David Siew that I am terminating the Claimant’s services.”. COW-3 had
exercised the decision to dismiss the Claimant arbitrarily as he was not
vested with any power to dismiss the Claimant. Thus the Court finds that
COW-3‟s decision to dismiss the Claimant was null and void and
accordingly the Claimant‟s dismissal was invalid because it was carried
out without compliance with the Company‟s policies and procedures, in
particular the Company‟s Constitutional Rules.

[46] The Company had elaborately set out the many instances of the
Claimant‟s past misconduct during his tenure of employment in the
Company. However I agree with the Claimant‟s learned counsel‟s
submission that these misconducts cannot be used to support a
termination as expressly provided in Article 47.4 of the Employees
Handbook [COB-2 p. 3-16] that provides as follows:

“Written warnings expire when they become one (1) year old. They
are in the Employee‟s confidential file for reference, but cannot be
used to support a termination or recommendation after that
time.”.
[Emphasis added]

[47] Most recently the Company issued a written warning to the

Claimant dated 12.12.2014 [COB-1 p.26] as he was absent from the
work place while on duty on 20.11.2014. The Claimant‟s excuse for
being absent from duty on 20.11.2014 is noted but it is premised on
totally different circumstances from the case before this Court, namely
the said absence on 20.11.2014 was due to reasons within the control of
the Claimant. Further it is undisputed that the Claimant had never
received the second warning letter dated 08.01.2015 in respect of his
28
absence from work on 31.01.2014 to 01.01.2015 which was related to
the same excuse of family problems due to his wife running away from
home.

[48] Accordingly I find the Claimant‟s past warning letters are

inadmissible and/or irrelevant in the consideration of the punishment for
his absence from 06.01.2015 to 14.01.2015. Furthermore the Company
in its letter of termination dated 14.01.2015 had never stated that it had
considered the Claimant‟s past misconduct when imposing the
punishment of dismissal upon the Claimant.

[49] In conclusion, taking into account the totality of the evidence

adduced by both parties and bearing in mind s. 30(5) of the Industrial
Relations Act 1967 to act according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal
form, the Court finds that the Claimant‟s dismissal was without just
cause or excuse, and on the substantial merits of the case the Claimant
is entitled to succeed on his claim of unjust dismissal.

REMEDY

[50] The Claimant had sought for the remedy of reinstatement. It

must be emphasized that the remedy of reinstatement is the primary
remedy provided for in section 20 of the Industrial Relations Act 1967.
The Company on the other hand had not submitted any evidence to

29
address the issue of reinstatement and the status of the Claimant‟s
position in the Company which he held at the time of his dismissal.

[51] On the issue of “reinstatement”, the eloquent author Dr. Dunston

Ayadurai in the book “Industrial Relations in Malaysia: Law and Practice”
3rd Ed stated at p. 304:

“In Han Chiang High School v National Union of Teachers in

Independent Schools (Award 330 of 1990):

The law is clear on the issue of reinstatement

Reinstatement requires the employer to treat the

employee as if he had never been dismissed, thus
restoring all pension, pay, holiday, and seniority rights;
and arrears of pay must be made to the employee :
„Employment Protection‟, Jowitt‟s „Dictionary of English
Law‟ (2nd cumulative supplement to the 2nd End at p 140).

Futhermore:

The effect of an award of reinstatement is merely to set at

naught the order of wrongful dismissal of a workman by
the employer and to reinstate him in the service of the
employer and to restore him to his former position and
status as if the contract originally entered into has been
continuing: Malhotra „The Law of Industrial Disputes‟ (vol
2, 4th Edn at p 934).”.

[52] COW-2 who was the Claimant‟s supervisor stated in evidence

that the Claimant was an excellent and dilligent worker. The Claimant
had given 16 years of service to the Company and he had worked his
way up from a waiter to the position of Assistant Executive (Chief

30
Steward). This was definitely no easy feat and one that demanded the
Claimant‟s total commitment and utmost loyalty to the Company.

[53] Since his dismissal, the Claimant remained unemployed from

06.01.2015 until March 2016. In April 2016 he was employed as a
cleaning supervisor and then as a security guard with a current salary of
RM1,300.00.

[54] In the circumstances the Court is of the view that if not for the
arbitrary, harsh and invalid decision of COW-3 to dismiss him, the
Claimant would still have been in the employment of the Company.
Accordingly in the circumstances the Court orders that the Claimant be
reinstated to the position that he held immediately before his termination
with effect from 2nd January 2018.

[55] On the award of backwages, the Claimant will be awarded

backwages from the the date of dismissal (06.01.2015) to the last date
of hearing (22.09.2016) but limited to 24 months. As he was
unemployed for the period January 2015 to 31.03.2016 the amount of
backwages due to the Claimant is RM38,250.00 [RM2,550 x15]. From
April 2016 to September 2016, the amount of backwages due to the
Claimant is RM15,300.00 [RM2,550 x 6]. However since the Claimant
was gainfully employed elsewhere during this period, albeit on a very
much lower salary, it is reasonable and fair to make a deduction of 10%
from the post-dismissal earnings for the said period. Therefore for the
period April 2016 to September 2016 the amount of backwages due to
the Claimant is RM13,770.00. The total amount of backwages to be paid
to the Claimant is RM52,020.00 [RM38,250.00 + RM13,770.00].
31
FINAL ORDER

[56] The Court now orders that the Claimant be reinstated to the
position that he held immediately before his dismissal with effect from
2nd January 2018. In addition the Court orders that the Company shall
pay the total amount of RM52,020.00 (Ringgit Malaysia : Fifty Two
Thousand and Twenty Only) to the Claimant less statutory deductions,
if any, through the Malaysian Trades Union Congress within 30 days
from the date of this Award.

HANDED DOWN AND DATED THIS DAY 24 NOVEMBER 2017.

-signed-
(SAROJINI A/P KANDASAMY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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