INDUSTRIAL COURT OF MALAYSIA

CASE NO. 14/4-1258/07

BETWEEN
ENCIK ERIC GOH BENG TUAN
AND
ABB MALAYSIA SDN. BHD.
AWARD NO : 1286 OF 2011

Before

: PUAN TAY LEE LY - CHAIRMAN

Venue

: Industrial Court of Malaysia, Kuala Lumpur

Date of Reference

: 3.5.2007

Dates of Mention

: 17.8.2007, 19.11.2007, 21.1.2008, 2.7.2008, 18.7.2008,

15.6.2009, 13.7.2009, 15.12.2009, 18.1.2010 and
26.10.2010.

Dates of Hearing

: 14.4.2010, 28.6.2010, 5.10.2010 and 3.12.2010

Representation

: Mr. Varuthan Panneer Selva from Malaysian Trade Union

Congress (MTUC), representative for the Claimant
Mr. T. Siva of Messrs T. Siva & Co., learned counsel for
the Company

Reference : This is a reference under section 20(3) of the Industrial Relations

Act 1967 on 18.1.2007 arising out of the dismissal of Encik Eric Goh Beng Tuan
("Claimant") by ABB Malaysia Sdn. Bhd. (Company").

AWARD
A.

Introduction

1.

This is a Ministerial reference to the Industrial Court (IC) under section

20(3) of the Industrial Relations Act 1967 [Act 177] (IRA) in respect of the
dismissal of Encik Eric Goh Beng Tuan (Claimant) by ABB Malaysia Sdn. Bhd.
(Company) on 18.1.2007.
B.

Brief Facts

2.

The Claimant commenced employment with the Company from 1.11.2001 as

a Sales Engineer with a monthly salary of RM2,300.00 per month vide letter dated
24.10.2001 (p1-4 of CLB and COB).

It was a term in the Claimant's appointment

that upon achievement of 100% of sales objectives, the Claimant would be entitled
to Incentive Bonus of RM5,600.00 per year with a maximum of RM11,200.00. The
Claimant's last drawn basic salary was RM2,470.00.
3.

The Claimant was issued with 2 letters by the Company on 30.11.2006, i.e.,

letter entitled Final Warning for alleged poor performance (p. 5-7 of CLB and p.6264 of COB) and Show Cause Letter for allegedly coming late to office and absence
from office (p.8 -9 of CLB and p. 65-66 of COB). Subsequently, vide letter dated
18.1.2007 (p.20 of CLB and p. 81 of COB), the Claimant's appointment was
terminated by the Company. The letter of termination is as follows:
18th January 2007

Eric Goh Beng Tuan

-PresentDear Eric
TERMINATION OF SERVICE FOR POOR PERFORMANCE AND
MISCONDUCT
On 1st December 2006 you were issued a final warning for poor

performance. Prior to that, the Company carried out a three (3) month
Performance Improvement Plan in order to achieve performance
improvement. Despite these attempts you have shown no performance
improvement.
Additionally you have committed misconduct. On 1 st December 2006, you
were issued a show cause letter for late coming and absence. You failed
to reply the letter.
On 27 December 2006, a Domestic Inquiry was conducted. You failed to
provide any satisfactory explanation for your misconduct at the domestic
inquiry. The misconduct committed by you was expressly prohibited in the
ABB Employee Handbook. You had been persistent in committing the
misconduct causing them to be grave in nature.
In the circumstances, the company finds it necessary to terminate your
service with immediate effect.
All moneys due to you will be released upon you obtaining clearance from
the Human Resource Department.
Yours sincerely,
For and on behalf of ABB Malaysia Sdn Bhd
- signed Bengt Anderson
President & Country Manager

- signed Jennifer Wong

Vice President Human Resources

- signed Denver Ng
Senior Manager Robotics..

C.

Parties' Pleaded Case

4.

The Claimant in the Statement of Case (SOC) denied the allegations levelled

against him by the Company. The Claimant contended that the Company's action
was perverse and mala fide whereby the Company did not comply with rule of
natural justice. The Claimant further contended that his dismissal was without just
cause or excuse and prayed that he be reinstated to his former position without loss
of seniority.
5.

The Company in its Statement in Reply (SIR) however contended that

Claimant's performance of his job functions was unsatisfactory since the year 2004.
3

He was appraised and cautioned of the need to improve and provided several
opportunities to improve.

Final warning for poor performance was issued on

30.11.2006. It was the culmination of the following:

(a)

notification of poor performance on 1.8.2006 (p.33 34 COB);

(b)

a performance improvement plan was implemented;

(c)

the Claimant was counseled by Company's Vice President of the

Human Resource Department (VP) on 6.9.2006, and

(d)

on 30.11.2006, the Claimant was issued a final warning on poor

performance.

6.

The Company further averred that while the Company was addressing the

problem of Claimant's poor performance, the Claimant committed misconduct for

which the Company followed the disciplinary process below:
(a)

on 16.8.2006, the VP issued an e-mail setting out the Claimant's

misconduct (p.37 38 COB);

(b)

on 18.8.2006, the VP issued another e-mail on the Claimant's

misconduct (p.36 COB);

(c)

on 30.11.2006, Show Cause letter for Claimant's misconduct was

issued. The Claimant did not reply to the Show Cause letter. He was
reminded to do so on 12.12.2006 (p.67 COB) and he submitted a reply
after that;

(d)

the Claimant's reply was found to be unsatisfactory. A notice of inquiry

(DI) was issued setting out various charges vide letter dated
19.12.2006 (p.72-73 COB); and
4

(e)

DI was conducted on 27.12.2006 (p.74-80 COB) in accordance with the

rules of natural justice.

Wherefore, the Company prays that the Claimant's claim be dismissed.

D.

Law

7.

The function of the Industrial Court in a reference under s 20 IRA has been

clearly stated by the Federal Court in the case of Goon Kwee Phoy v J & P Coats

(M) Bhd. [1981] 1 LNS 30, where Raja Azlan Shah, CJ (Malaya) (as his Royal
Highness then was) held as follows:
Where representations are made and are referred to the Industrial Court
for enquiry, it is the duty of the 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 inquire whether that excuse or reason 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 inquiry 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].
8.

It is trite law that the Company bears the legal burden to prove its

justification for the Claimant's termination (see Ireka Construction Berhad v

Chantiravathan A/L Subramaniam James [1995] 2 ILR 11). The Company

needs only to prove its justification for the termination on a balance of probabilities
[see Court of Appeal case of Telekom Malaysia Kawasan Utara v. Krishnan

Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (Krishnan Kutty).
E.

Evidence

E.1

Company's case

9.

Company called 3 witnesses to testify.

Company's first witness was Mr.

Piravakran Somasundram (COW1), who was the panel chairman of DI. COW1 gave
5

evidence in chief vide witness statement (WS-COW1). COW1 confirmed the minutes
of DI proceedings on 27.12.2006 (p.76-80, COB).

COW1 said the Claimant was

asked to explain for his coming late and absence from work. During the DI the
Claimant had said that he didn't know that the show cause letter was very serious .
When the Claimant was told that the show cause letter was a serious issue, the
Claimant replied show cause letter was a waste of time (p.77-78 COB).

The

reason given by the Claimant was unsatisfactory and unacceptable. The DI panel
found the Claimant had ignored the show cause letter. So the Claimant was given a
week to submit a proper reply. The Claimant was advised that if he failed to do so,
management would take appropriate disciplinary action against him.
10.

Company's second witness was Fan Ooi Yuen (COW2), who assumed the

position of Human Resources Manager (HR Manager) after the Claimant's

employment was terminated. COW2 gave evidence in chief vide witness statement
(WS-COW2). COW2 testified that she had access to Claimant's personnel file which
contained documents of his work performance and misconduct. COW2 confirmed
the following documents:
(a)

Claimant's letter of appointment dated 24.10.2001 (p.1-4 COB);

(b)

Claimant's performance appraisal records for year 2003 (p.15-17 COB),

2004 (p.18-21 COB), 2005 (p. 22-25 COB) and 2006 (p.26-32 COB);

(c)

HR Manager's e-mail dated 30.12.2006 to the Claimant (p.70 COB);

(d)

Claimant's e-mail reply to the show cause letter (p.68 COB); and

(e)

HR Manager's e-mail dated 13.12.2006 Claimant was reminded to

submit his reply to the show cause letter (p.69 COB).

11.

COW2 also explained about Company's Performance Improvement Plan

(PIP), which is a mechanism and documented process covering a minimum period

6

of 90 days. PIP shows area for improvement and a set of plan to help the employee
to achieve a higher level of performance. Only employees who are consistently poor
performer would be placed on PIP.
12.

Company's third witness was Mr. Denver Ng Khek Tong (COW3), Claimant's

immediate superior before termination.

COW3 confirmed that the Claimant was

appointed as a Sales Engineer in Robotic Division and his employment was

terminated because of his poor performance and misconduct. COW3 confirmed that
he was one of the co-signatories in Claimant's termination letter (p.81 COB).
According to COW3, Claimant was coming to work late and was absent without
leave. He was issued a show cause letter on 30.11.2006 stating his misconduct
(p.65-66 COB). He failed to reply to the show cause letter despite reminders sent to
him via e-mails on 12.12.2006 and 13.12.2006. A notice of DI dated 19.12.2006
was issued to the Claimant stating the charges made against him.

The charges

concerned his absence without leave for 7 days in November 2006 and for leaving
early from office.
13.

As regard Claimant's performance, COW3 testified that in the year 2004 he

failed to achieve targets set by the Company. The Company revised his target (p.5-6
COB) in year 2004. The Company vide letter dated 1.9.2004 to the Claimant (p.7-8
COB) issued PIP, aimed to improve, guide and counsel the Claimant on his poor
performance. Subsequently, the Company issued letter dated 12.10.2004 (p.12-17
COB) after the implementation of PIP.

According to COW3, there was no

improvement in Claimant's level of performance after the execution of PIP. COW3

confirmed Claimant's Performance Appraisal record for years 2003 to 2006 (p.15-32
COB). The results of the appraisals carried out for the Claimant showed that there
was no improvement in his poor performance. As there was no improvement in the
Claimant's poor performance, COW3 issued a letter dated 1.8.2006 (p.33-34 COB)
highlighting again the need for the Claimant to show improvement. The Claimant
was put through another PIP (p.40-41 COB) for a three-month period from
11.8.2006 to 10.11.2006 where a monthly review would be carried out.

The

monthly reviews showed that the Claimant had no improvement in his performance.
7

Hence, the Claimant was issued the final warning dated 30.11.2006 (p.62-64 COB)
due to his continuous poor performance since the year 2004 as he had showed no
improvement despite all the guidance and counseling carried out by the Company to
help him perform better.
14.

COW3 in the supplementary questions posed to him further testified as

follows.

The HR Manager had a discussion with the Claimant concerning some

issues raised by Claimant. The HR Manager had on 11.8.2006 e-mailed (p.39 COB)
the summary of that discussion to Claimant.

On 16.8.2006, the HR Manager e-

mailed (p.37 COB) to the Claimant to inform him that PIP would be initiated. In that
e-mail the Claimant was also informed about his misconduct in respect of his lack of
punctuality.

Subsequently on 18.8.2006, the HR Manager again emailed to the

Claimant (p.36 COB) to remind him that he needed to attend a discussion with
COW3. Finally, in the 4 th e-mail dated 6.9.2006 the HR manager again reminded the
Claimant that the review meeting with COW3 was scheduled on 7.9.2006. COW3
testified that he was aware of the 4 e-mails to the Claimant because the HR
Manager had copied the e-mails to him.
15.

COW3 during examination-in-chief also confirmed inter alia the following:

(a)

PIP dated 7.9.2006 (p.43-44 COB); PIP dated 6.10.2006 (p.47-48

COB); PIP dated 3.11.2006 (p. 50-53 COB);

(b)

e-mail by HR executive to the Claimant (p.67 COB) dated 12.12.2006,

copied to COW3 and HR head reminding him that the show cause
letter dated 30.11.2006 was overdue;

(c)

proof of sale order received by all sales personnel in the sales

department (p.4-7 COB2);

(d)

Claimant's attendance record between 1.11.2006 to 28.11.2006 (p.814 COB2); and

8

(e)

Company's Handbook (p. 15-21 COB2) which stated the policy and
instruction that all the Company's staff had to adhere to.

E.2

Claimant's case

16.

The Claimant was the sole witness for his case. He gave evidence in chief

vide WS-CLW. In his evidence in chief, the Claimant testified inter alia as follows.
The Claimant in answer to question 4 of WS-CLW testified that since he joined the
Company, he reported to Mr. Calvin Kuan, Assistant VP until April 2002, and
thereafter he reported to COW3. The Claimant said his job functions included
(a)

selling ABB robots;

(b)

carrying out product promotions via exhibitions, magazines and

advertisement;

(c)

finding new customers other than repeating customers;

(d)

identify new markets;

(e)

presentations on robots;

(f)

quotations;

(g)

follow ups;

(h)

close orders; and

(i)

assist business partners who wished to integrate robots into their

machinery, etc.

17.

As regards his alleged poor performance and final warning letter (p.62-64

COB), the Claimant testified that no show cause letter was issued to him prior to the
final warning letter. According to the Claimant, the final warning letter was the only
warning letter issued to him. The Claimant further explained that he was given up
to end of December 2006 to meet his sales target and the Company issued a letter
9

entitled Notice of Enquiry dated 19.12.2006. He was surprised that the Company
judged him before the target date. The Claimant also said that although he had
showed improvement in his main role as a Sales Engineer, the Company kept
focusing on his In/Out records instead of his performance, which the Claimant felt
was unfair.
18.

It was also the testimony of the Claimant that he was given a target of RM2

million in sales target in Consumer Product manufacturing industries and his total
sales was RM2.2 million by 2006 year end closing account. However due to COW3's
unclear direction, he was only briefed on his responsibilities and work scope. Since
the briefings were conducted in June 2006, he had less than 6 months to achieve 12
months' target. The Claimant said he had put in great effort and dedication to the
Company to achieve a sales of RM2 million by November 2006. Hence, the Claimant
hoped that his main function in ABB could be considered despite his alleged
indiscipline.
19.

As regards the show cause letter for his lateness and absenteeism in the

month of November 2006 (p.65-66 COB), the Claimant testified that he had replied
via e-mail that he was busy following up with the customers as there were few
customers who planned to provide orders by December 2006.

According to the

Claimant as a technical Sales Engineer, he had to study system cases with these
system-integrating customers.

He also explained that there was no push-button

provided for visitors to exit the office area and as the person sitting nearest to the
door, he took the initiative to open the door for them not realizing that he was
recorded as exiting the office. The Claimant further said that he had explained to
the HR but they kept asking for whom the Claimant opened the door. The HR could
not accept the fact that he could not recall or know the visitors. The Claimant in
answer to question 14, further explained as follows:
14.

Q.
With reference to the allegation that your attendance was bad
in the month of November 2006, were you either not in the office
for the 8 hours you were required to work or not present (absent) at
all?

10

A.
It was reaching critical date-line for hitting the balancing 50%
target, all my focus was on the Company's business. I may have
over-looked this. I would say, I should be either with the end-user
customers or with the system-integrator customers.

[emphasis added].
F.

Evaluation and Finding

20.

The issues to be determined are (a)

whether there was a dismissal of the Claimant; and

(b)

if so, whether the dismissal was with just cause or excuse.

F1.

Whether Claimant was dismissed by the Company

21.

In this case, the answer to this issue was in the affirmative as it was not in

dispute that the Claimant's service was terminated with immediate effect vide
Company's letter dated 18.1.2007 (p.20 CLB).
F2.

Whether Claimant's dismissal was with just cause or excuse

22.

Based on the Claimant's termination letter, the Claimant's service was

terminated for 2 reasons, i.e., poor performance and misconduct of lateness and
absence.
(a)

Whether reasons have been established by the Company

23.

In this case, the Company conducted the DI on 27.12.2006. It is trite law

that whenever a DI was conducted, the Court should first consider whether or not
the DI was valid and the inquiry notes were accurate, see the decision of Raus Sharif
J (as his Lordship then was) in the High Court case of Bumiputra Commerce

Bank Bhd. v Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77

(Bumiputra Commerce). Subsequently, Raus Sharif J (as his Lordship then was) in

11

another High Court case of Plaintree Wood Products Sdn. Bhd v Mahkamah

Perusahaan Malaysia & Muhammad Safarudin Che bin Abdullah [R1-25-42

Tahun 2005] (Plaintree), clarified as follows:
Di dalam kes Bumiputra Commerce, apa yang saya putuskan adalah
mengenai kegagalan Mahkamah Perusahaan untuk mengambilkira nota
keterangan domestic inquiry yang telah dikemukakan sebagai keterangan.
Mahkamah Perusahaan di dalam kes itu tidak langsung merujuk kepada
nota keterangan domestic inquiry dalam membuat penilaian fakta dan
kegagalan itu telah saya putuskan sebagai suatu kesilapan undangundang. Di dalam kes pemohon ini, keadaan adalah berbeza. Kes
pemohon di Mahkamah Perusahaan adalah masih diperingkat
pembicaraan. Pada saya, responden kedua adalah bebas untuk
membentangkan kesnya ini dan untuk menyokong dakwaan bahawa beliau
telah dibuang kerja tanpa alasan yang munasabah. Di pihak pemohon
pula, jika terdapat keterangan mengenai domestic inquiry, terpulanglah
kepada pemohon untuk mengemukakannya. Tugas Mahkamah
Perusahaan ialah untuk membuat keputusan berpandukan
keseluruhan keterangan yang dikemukakan melalui keteranganketerangan saksi yang dikemukakan oleh kedua-dua pihak.
Sudah tentu Mahkamah Perusahaan tidak semata-mata terikat
kepada nota prosiding di dalam domestic inquiry.

[emphasis added].
24.

Bearing in mind the principle in Bumiputra Commerce and Plaintree's

cases, my observation as regards DI in the present case is as follows:

(a)

the Claimant in paragraph 9 SOC stated that the Company did not
conduct the DI in the manner so required and thereby was prejudiced
against the Claimant in and/or his interest, but did not plead the
particular manner in which the Claimant was prejudiced.

In this

regard, the Court is mindful of established principle of law that parties

are bound by their pleadings [see Ranjit Kaur S. Gopal Singh v

Hotel Excelsior (M) Sdn. Bhd. [2010] 3 CLJ 310 (Ranjit Kaur )];
(b)

it was submitted by Claimant's representative that the DI was flawed

as it was not conducted in respect of allegation of poor performance.
On this aspect, it is clear that a defective DI or failure to hold a DI is
not fatal as it can be cured by way hearing before the IC (see
12

Dreamland Corporation (M) Sdn. Bhd. V Choong Chin Sooi &

Industrial Court of Malaysia [1988] 1 CLJ (Rep) 39 and Wong
Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Anor
Appeal [1995] 3 CLJ 344);
(c)

in this case, even if the Court finds that the DI had been validly held
and the notes of the DI proceedings were accurate, the Court should
still proceed to hear evidence of all the witnesses for both parties in
determining whether the Claimant's dismissal was with just cause or
excuse;

(d)

the Claimant was given DI's notice on 19.12.2006 (see p.72 and 73
COB) which was 8 days before DI, with particulars of the charges. The
Claimant was also informed that he would be given the opportunity to
conduct his defence by calling witnesses, tendering documents and
cross-examining Company's witnesses;

(e)

the proceedings were recorded by the secretary named Sri Vidya (p.
76-80 COB).

The Claimant was given the opportunity to defend

himself; and
(f)

under cross-examination, the Claimant admitted (i)

that he was given DI notice on 19.12.2006 and a show cause

letter on 30.11.2006;

(ii)

that he did not deny by memo or e-mail to Charge 1;

(iii)

that he did not deny to Charge 2, which states on 8.11.2006,

you left the office at 9.39 a.m for customer visit but failed to
return work after the customer visit;

13

(iv)

that he did not deny to Charge 3 which states on 10.11.2006,

you left the office at 9.34 a.m for customer visit but failed to
return work after the customer visit; and

(v)

the statement made by him at page 77 COB as follows:

I actually spoken to Jennifer Wong and the main issue here

is my attendance and punctuality which as a sales guy

sometimes I don't scan in and out of office sometimes
forget to scan visiting customer meeting for breakfast,
follow-up and have lunch or dinner together so time is
manageable and I don't know the importance of DI. As an
engineer, I didn't know that the show cause letter is very
serious I took it very easily ....

25.

Having perused minutes of the DI proceeding, Claimant's reply at DI and the

manner in which the whole DI was conducted as well as the submission of both
parties, it is my considered view that rules of natural justice had been complied with.
The DI panel had acted professionally and the Claimant had been given full
opportunity to be heard. In light of the above, the Court finds that the DI was
validly conducted and DI notes were accurate.
26.

Having said that, this Court is also mindful of the decision of the Court of

Appeal case of Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan &

Other Appeals [1997] 1 CLJ 665 at page 671, wherein the court held, inter alia,
that The fact that an employer has conducted a domestic inquiry against his
workman is 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 binding upon the Industrial Court which
rehears the matter afresh. However the Industrial Court may take
into account the fact that a domestic inquiry has been held when
determining whether the particular workman was dismissed.

[emphasis added].
27.

Based the above said authorities, the Court would take into account the fact
14

that a DI was validly held, the fact that DI notes were accurate and all evidence
adduced at this trial as a whole in determining whether or not the Claimant had
been dismissed with just cause or excuse.
(i)

Allegation of poor performance

28.

As regards poor performance, the IC in Project Sdn. Bhd. v Tan Lee Seng

[1987] 1 ILR 165, stated as follows:

Dismissal for unsatisfactory work or incompetency should almost invariably
have been preceded by warnings.
In the event of poor performance being the reason for the dismissal one
should always endeavour to show that the work complained of was
performed subsequent to the warnings..

29.

In Amsteel Mills Sdn. Bhd. V Koh Cheng Siew [1997] 1 ILR 216, the IC

held that to justify a workman's dismissal on the ground of poor or unsatisfactory

performance, the employer has to establish (a)

the workman was warned about his poor performance;

(b)

the workman was accorded sufficient opportunity to improve; and

(c)

notwithstanding the above, the workman failed to improve sufficiently

in his performance.

(see also

Sri Andaman Sdn. Bhd. v Rahmah Bidin [2001] 1 ILR 260 and

Citibank Berhad v Cheng Kam Choy [2007] 1 ILR 332).

30.

Reverting to the present case, based on oral and documentary evidence

tendered in Court, the Court finds that on a balance of probabilities the Company
has established that the Claimant has been warned of his poor performance. The
Claimant was also accorded sufficient opportunity to improve. However, as regards
15

the issue whether the Claimant had failed to improve his performance, the Court
found it difficult to hold that the Claimant had not achieved his target for year 2006
in light of the following:
(a)

the last paragraph of Company's letter entitled Sub:Final Warning to

the Claimant dated 30.11.2006 (p. 62-64 COB and p. 5-7 CLB), it was
stated as follows:
You are hereby given up to 28 December 2006 to demonstrate your
capacity to improve performance with reference to the targets for
generating RM2 million orders and for obtaining 5 new customer
accounts.

[The Company's final warning letter showed that the Claimant was
given up to 28.12.2006 to achieve the target of RM2 million orders and
obtain 5 new customers.]; and
(b)

the testimony of COW3 during cross-examination where he agreed

with the Claimant's representative that the sales performance of the
Claimant for the year 2006 was above RM2 million. The portion of
COW3's evidence is as follows:
Q41 : What was the sales target set for the Claimant for the year
2006?
A

: RM2 million.

Q42 : What was the sales achieved? Refer to p.62, 63 and 64 of

COB. Refer to 3rd para. p.62 Sales Target. Tell Court
where figures derived from?
A

: We have submitted another bundle to prove the sales target

COB2. This target were captured at p.4 and p.5 the
underline there are 6 underline which mentioned
Claimant's name together with customer's name and project
name and order booking as recorded.

Q43 : From here, it is my instruction that the last entry on p.4,

this particular sales amounting to RM1.3 million was
brought in by the Claimant agree? As such the total sales
for that year brought in by Claimant was RM 2.2 million?

16

: I agree.

Q44 : Put to you that the sales performance of the Claimant for
year 2006 was above the target set at RM 2 million.
A

: I agree.

Q45 : Put to you this letter with reference to sales figure

(reference to p.62 COB under para Sales Target) is not
accurate?
A

: I disagree.

Q46 : Why you disagree?

A

: The letter dated 30.11.2006 final way as mention in Sales

Target order received to date showed at RM1,042,250.
Means as of 30.11.2006 the remaining orders actually came
in during December..

Q47 : In reference to p.4 COB2 why is this particular sales last

line p.4 put under your name?
A

: During December, the Claimant was under Domestic

Inquiry, therefore the responsibility of this customer has to
be taken care of by myself as the head of sales.

Q48 : Claimant was dismissed effective 18.1.2007.

attempt to correct this anomaly?

Did you

COW 3 - requests for counsel to repeat question.

Q

: You as his superior did attempt to correct or put up to

management that this sales is by Claimant?

: During the month of December, the Claimant was under

Domestic Inquiry. therefore it is important as the Head of
Sales for Robotic Division, I have to be responsible to follow
up these enquiries and as well as assumed the
responsibilities to negotiate and to close the sales until
receiving of purchase orders from the customer.

Q49 : So you did not bring up to management that sales was

done by Claimant?
A

(c)

: I have said in my earlier answer the reasons, therefore I

did not bring it up.; and

the submission of Company's learned counsel concerning Claimant's

17

sales performance based on p. 4 COB2 had met and exceeded the

target., is as follows:
COW3 answered this allegation when he explained that by the time

this payment accrued to the Company the account was no longer

under the Claimant as he was already facing disciplinary
proceedings. It is unclear from the evidence if that revenue was
attributable solely to the Claimant, even if it was, the Claimant's
performance had been poor for far too long ... .

[emphasis added].
[The Court is of the view that the benefit of doubt ought to be given
to the Claimant.]
31.

Based on the foregoing, the Court finds that the Company has failed to prove

on a balance of probabilities that the Claimant has not achieved the target as stated
in the Company's letter dated 30.11.2006.
(ii)

Allegation of misconduct of coming late coming and absence from office

32.

It was stated in the Claimant's letter of termination that-

Additionally you have committed misconduct. On 1 st December 2006, you

were issued a show cause letter for late coming and absence. You failed
to reply the letter.

33.

On 27 December 2006, a Domestic Inquiry was conducted. You failed to

provide any satisfactory explanation for your misconduct at the domestic
inquiry. The misconduct committed by you was expressly prohibited in the
ABB Employee Handbook. You had been persistent in committing the
misconduct causing them to be grave in nature.

The show cause letter (p. 8-9 CLB and p. 65-66 COB) stated as follows:
In fact record shows that in November 2006, your attendance has
deteriorated further. We have checked your absenteeism record against
the Robotics Sales Administration (Visit Schedules) database and there is
no record of customer visits on the following days:
Date

Time In

Time Out

14 November 2006

11.08 am

2.13 pm

18

15 November 2006

8.06 am

12.25 pm

16 November 2006

8.45 am

1.41 pm

17 November 2006

11.08 am

5.33 pm

22 November 2006

8.19 am

12.18 pm

23 November 2006

2.36 pm

4.31 pm

24 November 2006

2.56 pm

5.37 pm

In addition, on 8 th and 10th November 2006, you left the office at 9.39 am
and 9.34 am respectively for customer visit but failed to turn up to work
after the visit.
Your conduct is considered by management as acts of misconduct. Kindly
refer to the Company Employee handbook, Chapter 6, Topics 6.2
Misconduct, 6.2.1 Absences, 6.4 Attendance
You are hereby required to submit your written explanation to the abovementioned allegations by 7 December 2006 before 12.00 noon. If you fail
to do so, the company will proceed with further investigation and domestic
inquiry, if necessary.

34.

It was undisputed that the Claimant did not reply by 7.12.2006 (12.00 noon).

The HR officer (En. Aziz) vide email dated 12.12.2006 at 5.31 pm had informed the
Claimant as follows:

Reference made to Show Cause letter dated 30.11.2006 and the meeting
held on 1.12.2006.

The reply to the show cause is now overdue..

35.

The Claimant replied vide e-mail dated 13.12.2006 at 9.08 am to En. Aziz as

follows:
Thanks for your mail but as you know that I was on leave and has no
access to LN till yesterday and I have some issue to follow up. So the due
date provided was actually impossible to reply in time.

Anyway I can't recall why my RFID database has recorded in such that I
was not around as stated in the letter. All that I can remember is that my
place is the nearest to the entrance and most of the time if not all I will be
the one to opening the door for people without the RFID, to go out.
I seriously ask for your attention that the RFID should only be used as a

19

reference and not an official record for attendance purposes, which in

anyway not stated in anywhere in the HR policies..

36.

En. Aziz replied to Claimant vide e-mail dated 13.12.2006 at 9.09 am as

follows:
Please put your concern in the reply to the show cause ..

37.

The Claimant vide e-mail dated 13.12.2006 at 9.14 am to En. Aziz as follows:
My apology. I can't understand what you meant below. Kindly advice the
procedure..

38.

En. Aziz replied to Claimant vide e-mail dated 13.12.2006 at 9.16 am as

follows:
You are required to reply the show cause letter given. If you wish to state
anything please put it in the reply..

39.

It was undisputed that the Claimant did not reply to show cause letter.

Hence, a DI notice was issued to the Claimant. The DI notice dated 19.12.2006 (p.
11-12 CLB and p. 72-73 COB) stated as follows:
NOTICE OF INQUIRY
We refer to the show cause letter dated 30 th November 2006 and note that
you have failed to submit any reply to it. The Company therefore has
decided to hold a Domestic Inquiry to give you an opportunity to explain
yourself against the following charges:
The Charges(s):
1.

That you were absent from work without leave during working hours
on the following dates, when your attendance record was as follows:
Date

Time In

Time Out

14 November 2006

11.08 am

2.13 pm

15 November 2006

8.06 am

12.25 pm

16 November 2006

8.45 am

1.41 pm

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17 November 2006

11.08 am

5.33 pm

22 November 2006

8.19 am

12.18 pm

23 November 2006

2.36 pm

4.31 pm

24 November 2006

2.56 pm

5.37 pm

2.

On 8th November 2006, you left the office at 9.39 am respectively for
customer visit but failed to return to work after the customer visit.

3.

On 10th November 2006, you left the office at 9:34 am respectively

for customer visit but failed to return to work after the customer
visit.

The allegations against you are in breach of your express and/or implied
conditions of service, with reference to the HR Handbook, Chapter 6: Code
Conduct; Topic 6.2.1 Absence. 6.4 Attendance..

40.

The Claimant's letter of appointment (p.2 of COB and p. p.2 of CLB ) stated

the working hours as follows:

WORKING HOURS

Your normal working hours shall be from 8.00 a.m to 5.30 p.m., Monday
through Friday. It is the Company practice that all employees irrespective
of rank, clock-in as they enter and clock-out as they leave the office.
Lunch break is from 12.30 p.m. to 1.30 p.m...

41.

It was undisputed that Claimant's coming late and leaving the office early

were recorded in the Cardholder Events Report shown at p. 13-19 CLB and p. 8-14
COB2. The Claimant was also informed vide e-mail dated 16.8.2006 (p. 37 COB) by
VP regarding punctuality as follows:
.... Punctuality basically relates to conduct and all employees are expected
to adhere to the company's working hours. Failure to do comply
tantamount to misconduct and the company can take appropriate
disciplinary action. Every employee is expected to abide by this unless he
has the approval of his manager. In this case, your manager has clearly
not given you any approval to report for duty late. Hence, you are
expected to be at your desk at 8 am during workdays.

Punctuality can affect productivity and hence performance which is why it

is included in the plan..

42.

Claimant's evidence during evidence in chief in Q and A14 as regards his bad
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attendance in November 2006 has admitted that I may have overlooked this..
Under cross-examination, the Claimant gave the following evidence:
(a)

the Claimant acknowledged that he received En. Aziz's e-mail but he

did not reply to the show cause letter.

The relevant portion of

Claimant's evidence is as follows:

Q46 : Refer p.69 COB, Aziz replied to you on 13.12.2006 at 9.09
am after you wrote the e-mail at p.68 COB. Aziz wrote
back to you. Did you reply to show cause?

(b)

: No. I did not.

Q47

: There is another e-mail from Aziz dated 13.12.2006 at 9.16

a.m. Did you receive the e-mail?

: Yes, I did.;

the Claimant admitted that he did not deny the charges proferred
against him. His evidence is as follows:

(c)

Q49A :

Did you any where in memo or e-mail deny the charge?

No, I did not deny.

Q50

See charge no. 2. On 8.11.2006 you left the office. Did

you deny that?

No.

Q51

3rd charge On 10th November 2006, you left the office at

9.39 am respectively for customer visit but failed to
return to work after the customer visit.. Did you deny?

No.;

the Claimant admitted that the Company had highlighted to him the
seriousness of lack of punctuality prior to the show cause; and

(d)

the Claimant admitted the statement made by him during the DI at p.

22

77 COB namely, I actually spoke to Jennifer Wong [VP] and the main

issue here is my attendance and punctuality which as a sales guy

sometimes I don't scan in and out of office sometimes forget to
scan visiting customer meeting for breakfast, follow-up and have
lunch or dinner together so time is manageable .. and I don't know
the importance of DI. As an engineer, I didn't know that the show
cause letter is very serious I took it very easily....

43.

During re-examination, the Claimant clarified that the DI panel did ask him to

submit his reply to the show cause letter but he did not do so.
44.

In this case, the Claimant had failed to submit his reply to DI panel and failed

to substantiate his evidence during the hearing before the Court.

In the

circumstances, based on the evidence adduced, the Court finds that the Company
has proven on a balance of probabilities the charges relating to Claimant's
misconduct.
(b)

Whether proven misconduct warranted a dismissal

45.

Having established the Claimant's misconduct, the next question the Court

has to consider is whether the proven misconduct warrants the Claimant's dismissal.
As regards lateness, Chapter 6.2 of the Company's Handbook stated as follows:

6.2.1

Absence

Habitual late coming shall be considered a major misconduct warranting

dismissal.
Leaving the work place without prior permission or
authorization is also a misconduct. .

46.

The Court noted that during re-examination of Claimant which was almost the

close of the Claimant's case, the Claimant had raised the issue that there were
several revisions to the Company's Handbook and the revisions could have been
made without his knowledge. In this regard, the Court finds that this is clearly an
afterthought as it was never put or raised during the cross-examination of
23

Company's witnesses.
47.

In Leo Burnett Advertising Sdn. Bhd. v Teh Bee Bee [2005] 1 ILR 141,

the IC states as follows at page 144:

This Court is satisfied that the claimant has been a habitual late comer.

Lateness is absence without leave for the period between the time the
employee is required to arrive and the time he actually does arrive, and as
a species of unauthorised absence, it too, is misconduct. It is no excuse
that though she was late she had always accomplished her work on time.
It is the court's view that the company has the right to demand the
claimant to be present at the starting time in the morning. It is irrelevant
that the claimant was late to work only for a few minutes. It is still
misconduct, especially when she had been warned to be punctual. The
misconduct aggravates when lateness is persistent..

48.

In addition to the above, B.R. Ghaiye in the book Misconduct in

Employment, 2nd Edition at page 144, states that an employee can be dismissed
for habitually coming late to office.

As regards leaving work early, the learned

author at page 145 further states as follows:

Leaving the work earlier without permission is treated somewhat more
seriously than the act of late coming..

49.

In our present case, it is sufficiently clear that the Claimant was late in coming

to work and had also left work early without permission.

In these circumstances,

the Court is satisfied that Claimant's misconduct is a serious one which warrants his
dismissal.
50.

It was also the submission of the Claimant's representative that the Claimant's

dismissal was without just cause or excuse as it was riddled with mala fide and
contrary to principles of natural justice and unfair labour practice. As may be
observed, the Claimant in the SOC had also pleaded the same but failed to plead any
particulars of mala fide or unfair labour practice. As such, this Court will disregard
such an allegation (see the High Court case of Kamala Loshanee a/p

Ambalavanar v Jaffnese Co-operative Society [1998] 1 LNS 339).

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G.

Conclusion

51.

As an epilogue, based on totality of evidence adduced by both parties as well

as submissions made and also having regard to equity and good conscience as well
as substantial merits of the case without regard to technicalities and legal form, this
Court finds that the Company has proven on a balance of probabilities the
misconduct against the Claimant and the misconduct was serious to warrant the
Claimant's dismissal. Accordingly, this Court holds that the dismissal of the Claimant
by the Company was with just cause or excuse.

Hence, the Claimant's claim is

hereby dismissed.

HANDED DOWN AND DATED THIS 6 SEPTEMBER 2011

( TAY LEE LY )
CHAIRMAN
INDUSTRIAL COURT
KUALA LUMPUR

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