INDUSTRIAL COURT OF MALAYSIA

CASE NO. 13/4 1380/2013

BETWEEN
CHEW CHOR ENG

AND
GOLDEN PALM TREE RESORT & SPA SDN. BHD.
AWARD NO. 1298 OF 2016
BEFORE

: Y.A. TUAN EDDIE YEO SOON CHYE - CHAIRMAN

VENUE

: Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE

: 10.10.2013

DATES OF MENTION

: 09.12.2013; 27.01.2014; 19.03.2014; 05.05.2014;

09.06.2014; 02.07.2014; 21.09.2015; 09.10.2015;
17.11.2015.

DATES OF HEARING

: 29.09.2014; 02.12.2014; 31.03.2015; 04.06.2015;

03.07.2015; 27.07.2015; 10.08.2015.

FILING OF COMPANY'S
SUBMISSIONS

: 05.10.2015; 17.11.2015 (Reply).

FILING OF CLAIMANT'S
SUBMISSIONS
: 05.10.2015; 17.11.2015 (Reply).
REPRESENTATION

: Allen Miranda of Messrs Suraiya Arif, Miranda & Tan,

Counsel for the Claimant.
Dato' T. Thavalingam of Messrs Lee Hishammuddin Allen
& Gledhill,
Counsel for the Respondent.

REFERENCE: This is a Ministerial reference made under section 20(3) of the Industrial
Relations Act 1967 dated 10 October 2013 arising out of the dismissal of Chew Chor
Eng (hereinafter referred to as the the Claimant) on 22 March 2013 by Golden
Palm Tree Resort & SPA Sdn. Bhd. (hereinafter referred to as the the
Respondent).

AWARD
1.

This is a Ministerial reference made under section 20(3) of the Industrial

Relations Act 1967 dated 10 October 2013 arising out of the dismissal of Chew Chor
Eng (hereinafter referred to as the the Claimant) on 22 March 2013 by Golden Palm
Tree Resort & SPA Sdn. Bhd. (hereinafter referred to as the the Respondent).

PREFACE
2.

The hearing of this case commenced on 29 September 2014 and concluded on

10 August 2015. The Claimant was represented by Allen Miranda of Messrs Suraiya Arif
Miranda & Tan. The Respondent was represented by Dato' T. Thavalingam of Messrs
Lee Hishammuddin Allen & Gledhill.

The Claimant's solicitors filed the Written

Submissions and the Bundle of Authorities on 5 October 2015 and Submissions in Reply
on 17 November 2015. The Respondent's solicitors filed their Written Submissions and
Bundle of Authorities on 5 October 2015 and Submissions in Reply on 17 November
2015.

3.

The case was closed for handing down of the Award on the mention date of 17

November 2015. By letter dated 10 December 2015, the Honourable President of the
Industrial Court directed that the hearing Chairman hands down the Award for this
case.

BRIEF FACTS
4.

The Company's nature of business is a large scale 5-star rated hotel, resort and

spa in Sepang.

The Claimant (a.k.a. Justin) commenced employment with the

Company effective 15 July 2012 (COB1 page 1) as a General Manager, Golden Palm
Tree Iconic Resort & Spa, Sepang with a basic salary of RM 34,000.00 a month. The
Claimant's employment was governed by the Company's Employee Handbook (CLB
page 5).

5.

By letter dated 17 October 2012 (COB1 page 17), the Claimant was confirmed in

the capacity of General Manager with effect from 15 October 2012. By letter dated 10
January 2013 (COB1 page 81), the Claimant was suspended from employment from 11
January 2013 with full pay for an investigation to be conducted on the following areas
of concern:
a) complaints of sexual harassment;
b) complaints of bullying and intimidation;
c) lack of guidance and supervision given to senior team;
d) lack of comprehension and awareness of financials as would be expected
of a General Manager; this includes non compliance with hotel management
financial directives and evidenced during recent budget presentation;
e)

little sense of urgency adhering to the critical path for Hotel conversion;
specifically in the areas of maintenance and property upkeep and key
control;

f) inability to improve Guest satisfaction results and in fact, there are

numerous complaints posted over the internet which relate to matters
that can be directly influenced by leadership.

6.

By letter dated 15 February 2013 (COB1 page 88) signed by Robert Kunkler, the

Company's SVP (Senior Vice President) Hotel Operations Minor Hotel Group on behalf of
Golden Palm Tree Iconic Resort & Spa, Sepang, the Claimant was required to show
cause as to why disciplinary action should not be taken against the Claimant on the six
areas of concern as reflected in paragraph above. By letter dated 1 March 2013 (COB1
page 94), the Claimant replied to the said show cause letter.

Charges of Misconduct
7.

By Notice of Domestic Inquiry dated 8 March 2013 (COB1 page 98), the

Company's management has noted and studied the Claimant's explanation and was not
satisfied with the same. In the circumstances, the Claimant was required to appear
before a Board of Inquiry to answer to the following charges of misconduct purportedly
committed by the Claimant during the course of his employment as the General
Manager of Golden Palm Tree Iconic Resort & Spa, Sepang as follows:
a. Complaints of Sexual Harassment:
i. That you had on 30 November 2012 sexually harassed Ms Ellie Lim in

your

office by inappropriately touching her foot with your foot and by remarking
to her that if your office door was not transparent, you would

definitely

have hugged her;

ii.

That you had on 29 December 2012 sexually harassed Ms Ellie Lim in your
office by asking her to put her leg nearer to you when she was seated at
your table. You then asked her if she knew how to release stress and when
she did not reply, you remarked that 'making sex is the way to release stress
efficiently when do you want to do with me I am good for licking for
4

juices. When you did not receive a response from her, you then continued to
ask her whether she would like to make love with you and you further told
her that it has been a while since you released stress.

b. Complaints of bullying and intimidation

That you had during the course of employment acted unprofessionally during
the morning briefings with all Heads of Department by using inappropriate
and vulgar profanities on your subordinates details of which are as follows:
On 16 November 2012 during the briefing from 9 am - 11 am has uttered
vulgar words to the Department Head F&B Manager and had blames him for
the 107 missing cans of Carlsberg.
On 20 December 2012 during the briefing from 9 am - 12 pm had mumbled
vulgar words to the Managers who were not around during the weekend and
had withdrawn the benefit of Alternate Saturday Off which had been a
practice of the Hotel. This decision had caused the admin staff to be
unhappy.
On 27 November 2012 during the briefing from 9 am - 12 pm had uttered
vulgar words to the Department Heads when referring to the food poisoning
case which caused Associate to faint.
Following on from your confirmation of employment, the Management of the
Hotel has noticed a sharp decrease in your performance level as General
Manager. The details of which are as follows:

c. Lack of Guidance and Supervision of your team

i. Despite regular reports and/or feedback from the Owners Representative, you
have failed to notice maintenance requirements and areas which require
5

cleaning in the Hotel premises specifically mentioned were the metals rods,
broken rubbish bins and a leaking water pipe but was not rectified in a 45
days period.

This is a unique property and it is expected of the General

Manager to assign tasks to respective team members to ensure minimum

standards are met and regular follow-up of such assignments.
ii.

Despite residing in the Resort, you have failed to proactively ensure that the
Hotel information shown on the television is up to date, e.g. Swiss bell logo,
2012 buffet themes not changed for 2013, and out-dated buffet themes for
the last few months. This contributes to customer confusion and is reflected
in customer dissatisfaction and low F&B performance.

iii.

You have conducted morning briefings which lasted for `up to 2 or 3 hours.
This is unacceptable and a poor waste of management time and indicates a
lack of understanding that the team needs to be out in the operations and
meeting the needs of the customers.

This contributes to poor customer

satisfaction.

d. Lack of comprehension and awareness of financials

i.

We cited many examples which demonstrate this: not knowing that you
have RM5000.00 in your own Executive budget for Sponsorships

ii.

Profit and Loss for Q3 2012 Revenue was RM1,148,443 below budget and
as a result of poor controls resulted in a loss of RM1,056,809

iii.

Profit and Loss for Q4 2012 - revenue was RM1,663,358 below budget and
as a result of poor P&L controls contributed to a loss of RM591,255

iv.

The preparation

and

presentation

concerning to the Management.

of

the

2013

Budget

was

most

There were fundamental assumptions

included into the drafts which should have been thoroughly questioned

and

reviewed by the General Manager prior to submission to the corporate office

for review. These included:

a.

Rooms payroll cost increasing by 50% whilst revenues increased

20%,

b.

F&B covers increase proposed did not correlate with increased

occupancy,

c. Spa to make less profit,

d. Doubling of Extreme park revenue without a strategy.
Making representation and accusations of blame to other executive
members who assisted in the preparation not only reflect badly on your ability
to manage team members but also suggests their lack of confidence in
receiving necessary strategic direction we consider essential in property
leadership. Our concerns here are multiplied when team members had to
confer with respective corporate counterparts for such direction rather than
seek this from you.
The compilation of annual budget is the most important task of a
General Manager and his team but clearly not one that you were very
involved with, even though it would have been your first budget!

e. Little sense of urgency adhering to the critical path for Hotel

conversion
i. We have a very structured critical path for the Hotel conversion - with a tight
deadline - but you have failed to follow up and ensure they are on track instead leaving this responsibility to Amir Ali Golbarg - the newly joined
Director of Rooms Division. Critical tasks require the attention of the senior
leader. You cannot support the AVANI (not Anantara) culture from the back it is up to you to take the lead and inspire the team and your failure to do so
is most disappointing.

ii. Master Key control, Safe lock opening device and Resort key handling
procedure, all critical issues and identified in the Critical path action plan were
very slow to be completed requiring follow ups from Corporate Office.

f. Inability to improve Guest satisfaction

We have had a number of serious and repetitive guest complaints in the
following areas:
a. Poor food and beverage quality (Chef recruited by you due to your past
working relationship);
b.

Poor service standards where a guest had to wait for almost 2 hours before
he was assigned a room (slow check-in and check-out); and

c.

Poor cleanliness and housekeeping where a guest had found leftovers in

the fridge of his room and had problems with swarming flies.

The above charges if satisfactorily established are viewed very seriously by

the Hotel and would warrant disciplinary sanctions being imposed upon you
which might include termination of employment particularly noting the senior
position of trust you hold.

8.

The Respondent issued the Letter of Dismissal dated 21 March 2013 (COB1

page 270) with reference to the Domestic Inquiry held on 12 March 2013 as follows:
We write to inform you that the panel has found you guilty of all the
charges levelled against you in our letter dated 15 February 2013. Noting
the findings of the panel and the senior position of trust you hold, we
regret
to inform you that we have lost the necessary trust and confidence in you to
continue in employment. In the circumstances, your services
are
hereby
terminated with immediate effect from today's date.
9.

The Claimant prays for reinstatement to his former position and that the
8

Company pay the Claimant the back wages and outstanding amounts reflected in
paragraphs 17 & 18 of Statement of Case. The Company avers in paragraph 20 of the
Statement in Reply that the Claimant's dismissal was with just cause or excuse.

THE RESPONDENT'S CASE & SUBMISSIONS

10.

The Respondent called the following witnesses to testify in this case:

No.

11.

Witnesses

Position

COW1 Amir Ali Golbarg

Resort Manager

COW2 Yap Chin Foong

Vice President

COW3 Robert Jim Kunkler

Chief Operating Officer

COW4 Chen Winnie

Senior HR Officer

COW5 Asiah K. Peer Mohamad

Director of Human Resources

COW6 Wayne Ronald Williams

Vice President Finance

COW1 was the Resort Manager of AVANI Sepang Goldcoast Resort. COW1 was

the Director of Rooms Division at the material time and he joined the Company on 29
December 2012. As the Company was going to be re-branded, a Critical Path was
created to ensure time lines were met and then to successfully launch the brand. The
initial driving force for the Critical Path was the Task Force but the plan was for it to be
handed over to the property and be driven by the General Manager and the team on
site to ensure that the Company met the specific time line every week.

12. COW-2 is the Vice President of Sales & Marketing in Iconic Vacation Club Berhad.
COW2 was the Chairman of the Domestic Inquiry held against the Claimant on 12
March 2013.

The rules and procedures of the Domestic Inquiry were carefully

9

explained by the Chairman and witnesses will be called and be subjected to crossexamination. The Minutes of the Domestic Inquiry are found in the Company's Bundle
of Documents in COB1 pages 101-257. The Domestic Inquiry Panel recommended that
the Claimant be served a Termination Notice with a notice of 3 months and made the
following findings (COB1 page 268) that the Claimant:
a) did sexually harass Ms. Ellie Lim;
b) bullied and intimidated his associates by uttering vulgar words;
c) had shown a lack of guidance and supervision to his teams;
d) had displayed a lack of comprehension and awareness of financials;
e) had displayed little sense of urgency adhering to the Critical Path for hotel
conversion; and
f) as a General Manager, he has not been able to improve on the guest satisfaction.

13.

COW3 was the Senior Vice President of the Company and was the Claimant's

supervisor at the material time. COW3 outlined the background existence of the
Company. Swiss-Belhotel International Limited was the managing company before
MINOR Hotel Group Limited took over management on 1 November 2012. The General
Manager is expected to initiate the Standards, Policies and Procedures without fail.
Swiss-Belhotel was rebranded to AVANI Sepang Goldcoast Resort on 21 February 2014.
COW3 referred to an email dated 6 November 2012 (COB1 page 19) of the Area
Director of Sales & Marketing, Meg E. Evans stating that the Company had a lot of
opportunity once the operations and F & B were fixed. The Claimant was informed

10

during a meeting on 18 December 2012 that there were discrepancies in his

performance expectations. COW3 outlined some of the examples of various shortfalls of
the Claimant's work performance as the General Manager. COW3 confirms having a
private meeting with the Claimant in his Bangkok's office where COW3 offered him to
resign due to his performance. COW3 denies that the Company had earmarked
someone from AVANI team to replace him and therefore put the wheels in motion to
get rid of the Claimant.

14.

COW4 was the Senior Human Resources Officer and referred to a sexual

harassment complaint lodged by Ellie Lim Ai Lih against the Claimant. Ms. Ellie was the
Quality Assurance Assistant in the Human Resources Department prior to her departure
from the Company on 6 March 2013. Ellie confided in COW4 on an incident of sexual
harassment that happened on 30 November 2012 when Ellie was explaining some
documents to him. The Claimant had used his foot which was covered with socks and
had touched and rubbed her foot. The Claimant had showed a 'silent' sign to her when
she queried him on his conduct. The Claimant said to Ellie that if the room was not
transparent, the Claimant would have hugged Ellie. COW4 did not witness the incident
but Ellie was shivered and cried when Ellie told COW4 about the incident. COW4
informed Asiah, Director of Human Resources on 1 December 2012 about the sexual
harassment incident who then said that no action can be taken against the Claimant
unless Ellie comes personally to see her and make a report. COW4 refers to her report
dated 18 December 2012 (COB3 page 3) to Asiah in relation to what was conveyed to

11

her by Ellie on the sexual harassment incident. COW4 relates on another incident
occurred between the Claimant and Ellie on 29 December 2012 about the second
sexual harassment by the Claimant. The Claimant had verbally asked Ellie whether she
wanted to have sex with him. The Claimant also told Ellie that sex can help to release
stress. Ellie told the Claimant no but he insisted on having sex with her by saying that
I like young lady, you just need to lay on the bed, I will make the juice out. COW4
lodged a report dated 6 January 2013 (COB3 page 4).

15.

COW5 was the Director of Human Resources. In relation to Charge (a) against

the Claimant, COW5 was informed by her subordinate, COW4 of a sexual harassment
complaint made by Ellie. Ellie and COW4 came to see COW5 on 12 December 2012 to
explain the sexual harassment incident that happened on 30 November 2012. COW5
referred to a report dated 18 December 2012 (CO5) made by Ellie. COW5 then spoke
to Charles Clinton, Group Director of Human Resources of Minor Hotels Group and
informed him about the sexual harassment complaint against the Claimant. COW5
refers to a second report dated 6 January 2013 (COB3 page 1) lodged by Ellie
regarding the second sexual harassment incident. COW5 states that Ellie did not testify
at the domestic inquiry as she had resigned on 6 March 2013. COW5 referred to the
circular Sexual Harassment dated 8 November 2010 (COB2 page 278) issued by
Wong Mun Chong, Chief Operating Officer.

16.

COW5 further testified on the complaint in Charge (b) of bullying and

12

intimidation made against the Claimant where the Claimant frequently use vulgarities
and profanities to the staff on numerous occasions like the morning briefings conducted
by the Claimant. The staff complained to COW5 because they were unhappy with the
words used to communicate with them.

COW5 also testified on the complaint in

Charge (c) against the Claimant for the lack of guidance and supervision of his team in
respect of the long morning briefings conducted by the Claimant which lasted for up to
2 or 3 hours.

17.

COW6 was the Vice President of Finance for the Minor Hotel Group. Minor

Group Hotel took over the management from Swiss-Belhotel International. COW6 was
mainly involved in the budget process for 2013. There were a number of shortcomings
during the Owner presentation by the Claimant and his team on 8 January 2013. The
presentation did not give COW6, Robert Kunkler and Michael Marshall the confidence
that the Claimant as the leader was developing strategies in delivering the numbers
and eradicating the problems of the past. They discussed one of the inefficiencies at
length after it was indentified and other areas which were not completed satisfactorily
until it was done. (COB1 page 170).

18.

The Company's counsel in the Written Submissions submitted that the Claimant's

contract of employment with the Company was for a fixed term duration of 2 years with
effect from 15 July 2012 (COB1 page 6 in Clause 18). Therefore relying on the case of
Shapadu Energy & Engineering Sdn. Bhd. v Stuart Ashley Eban [1998] 3 ILR

13

214, the Claimant's claim is limited to the unexpired portion of his fixed term contract
which is 13 months. As a General Manager, the Claimant was the brain and directing
mind of daily operations of the Company. The Company submits that the charges
preferred against the Claimant has been proven. The Company further submits that the
proceedings before the Industrial Court are heard de novo. The Company has made out
the necessary just cause and excuse for the Claimant's dismissal and pray that the
Claimant's claim be dismissed.

THE CLAIMANT'S CASE.

19.

The Claimant, Chew Chor Eng (CLW1) relates to his suspension letter dated

10 January 2013 (COB1 page 81) and referred specifically to charges (c), (d), (e) and
(f) and state that the Company did not meet up with the Claimant top point out where
the Company thought he went wrong and help the Claimant to improve. The Claimant
was shocked because for the first time the Claimant saw the Company has included a
complaint of sexual harassment. The Claimant referred to the show cause letter dated
15 February 2013 (COB1 page 88) and the Claimant's reply letter to the show cause
dated 1 March 2013 (COB1 page 94). The Claimant also referred to the Notice of
Domestic Inquiry dated 8 March 2013 (COB1 page 98) and the Claimant attended the
domestic inquiry on 12 March 2013. Lastly, the Claimant referred to the Letter of
Dismissal dated 21 March 2013 (COB1 page 270) issued by the Company against him.
The Claimant denied all the charges preferred against him. The Claimant states that the
complainant (Ellie Lim) in the sexual harassment charge did not attend the domestic

14

inquiry. In respect of the charge of bullying and intimidation, the Claimant said he was
tough on the under performing or poor performing staff and as a result these staff left
the Company. Regarding the charge of lack of guidance and supervision of his team,
the Claimant explained that he had the meetings to relay his message which means he
wants to guide and supervise his team and the Company seems to complain that the
meetings take too long. In respect of the charge of lack of comprehension and
awareness of financials, the Claimant explained that the Company ought to be realistic
and the targets was set by the previous management team. The Claimant lamented
that it is unfair and mischievous for the Company to single the Claimant out for any
purported short comings. The Claimant further denied the charge of little sense of
urgency adhering to the critical path for Hotel conversion and said that the Company
had set the onerous time-lines and did not give him sufficient time to implement the
conversion. The Claimant defended the charge of inability to improve guest satisfaction
and pin-pointed that the poor service is the lack of trained support staff.

20.

The Claimant in Question 46 48 of CLWS2 conceded that he partially admitted

to the charge of complaints of bullying and intimidation where he uttered the four letter
words though he never directed it to anyone in particular. The Claimant made reference
to the charge of lack of guidance and supervision of the team as reflected in COB1
page 268 and again the Claimant partially admitted that there were some flaws in the
system which even the IT Manager could not answer.
The Claimant also admitted that there were some morning briefings which took

15

two to three hours and said that there is no waste of management time. The Claimant
in Question 50 claims for full back wages from date of dismissal to date reinstatement
and in the event the Court finds reinstatement an inappropriate remedy, the Claimant
request the Court to order the Company to pay all back wages, outstanding amounts
and arrears of monies.

21.

The Claimant's witness was Khairul Afifi Bin Zakaria (CLW1) the Company's

former Associate Welfare & Safety Manager. CLW1 resigned from the Company on 18
March 2014. CLW1 related to the Company's annual gathering at CNI Shah Alam on 3
January 2013 where the Company's Chairman informed everyone present that the
Company was happy with the performance of the Claimant and the team reporting to
him. CLW1 related to an incident where the Claimant was asked to shift out of the
Hotel premises on 11 January 2013.

22.

Learned counsel for the Claimant in his Written Submissions submitted that

the Company has failed to discharge its burden of proving the charge of sexual
harassment on the grounds that the complainant (Ellie) did not lodge a police report
and she did not give evidence in Court. (written submissions paragraph 20 & 21) On
the 2nd charge of bullying and intimidation, it is submitted that the charge did not state
using inappropriate language or using vulgar words (written submissions paragraphs

23 & 24). On Charge 4 regarding poor Profit & Loss control, the Claimant submits that
the Company did not lead evidence in support of this charge. (written submissions

16

paragraph 52) In respect of Charges 5 regarding little sense of urgency adhering to

the critical path for Hotel conversion, the Claimant explained that the targets set by the
Company were very tight and difficult to accomplish. (written submissions paragraph

59) The Claimant submits that the Company produced unfavourable guest reviews in
respect of Charge 6. (written submissions paragraph 65) The Claimant submits that
there was evidence of mala-fides of the Company when the Company had earmarked
someone from the Avani team or Thomas Fehlbier as replacement for the Claimant and
therefore put the wheels in motion to get rid of the Claimant. (written submissions

paragraph 69) The Claimant's dismissal was without just cause or excuse. (written
submissions paragraph 75)

EVALUATION AND FINDINGS

23.

The Court of Appeal in the case of Telekom Malaysia Kawasan Utara v.

Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 at pages 322 and 323
decided as follows:
From all these, it is quite clear to us that the Industrial Court should not be
burdened with the technicalities regarding the standard of proof, the rules of
evidence and procedure that are applied in a court of law. The Industrial Court
should be allowed to conduct its proceedings as a court of arbitration, and be
more flexible in arriving at its decision, so long as it gives special regard to
substantial merits and decide a case in accordance with equity and good
conscience.
We do not think that representations by the Minister to the Industrial Court
should be classified as civil or criminal and apply different burden of proof
in respect of each classification as is done in the court of law when finally the
awards that follow are the same: dismissal or whatever.
17

24.

The function of the Industrial Court is sufficiently explained in the case of Goon

Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129 at page 136 where the
Federal Court decided as follows:
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 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 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.

25.

In the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn.

Bhd. & Another Appeal [1995] 3 CLJ 344 at page 352 the Federal Court decided as
follows:
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 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 or excuse for the dismissal.

26.

The Federal Court in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen

[1995] 4 CLJ 449 at pages 454 and 455 decided as follows:

As pointed out by this Court recently in Hong Leong Assurance Sdn. Bhd. v.
Wong Yuen Hock [1995] 2 MLJ 753, the function of the Industrial Court in
18

dismissal cases on a reference under s. 20 is two-fold firstly, to determine

whether the misconduct complained of by the employer has been established,
and secondly whether the proven misconduct constitutes just cause or excuse
for the dismissal.

27.

C.P. Mills in the book, Industrial Disputes Law in Malaysia, 2nd Edition

1984 at page 78, states as follows:

Unless there is clear evidence to support the charge of misconduct, the
employer's decision against the workman will not be upheld by the Court.
Even where there were reasonable grounds before the employer for concluding
that the workman was guilty of the misconduct alleged against him, but in the
proceedings before the Court the evidence does not permit any firm conclusion
that the workman did commit the acts in question, the dismissal will not be
sustained.

28.

In this case, the Court notes that albeit there being a domestic inquiry

conducted by the Company to investigate the allegations against the Claimant, this
Court will now hear the case de novo. This Court has to make a finding of fact premised
on the evidence adduced before this Court as to whether the charges of misconduct
had been established against the Claimant by the Company on the balance of
probabilities.

29.

The Court of Appeal in the case of Hong Leong Equipment Sdn. Bhd. v.

Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665 at page 716 decided as
follows:
The fact that an employer has conducted a domestic inquiry against his
workman is, in my judgement, an entirely irrelevant consideration to the issue
whether the latter had been dismissed without just cause or excuse. The
19

findings of a domestic inquiry are not 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.

30.

The Claimant's services with the Company was terminated with effect from 21

March 2013 based on the findings of the domestic of inquiry panel and the senior
position held by the Claimant, the Company could no longer repose the necessary trust
and confidence in the Claimant to continue in employment. The Company paid the
Claimant 3 months' salary in lieu of notice to the Claimant which amounted to RM
117,866.62.

31.

The Court's duty is to enquire whether the excuse or reason advanced by the

Respondent has been made out. The Court will deal with the charges against the
Claimant. What is foremost now is for the Court to analyse the evidence produced in
this Court and to determine whether the charges of misconduct had been committed by
the Claimant.

If the Court makes a finding of fact that the charges against the

Claimant has not been proven, then the inevitable conclusion must be that the
dismissal was without just cause or excuse.

32.

The High Court in the case of I Bhd v. K A Sandurannehru Ratnam & Anor

[2004] 5 CLJ 460 at page 464 in deciding whether the dismissal was without just cause
decided that what the Industrial Court had to consider was merely whether the
evidence produced before it whether the employer had reasonable grounds in
20

dismissing its employee. The test to be applied in Ferodo Ltd v. Barnes [1976] ICR
39 states that:
It must be remembered that in dismissing an employee including a dismissal
where the reason is criminal conduct, the employer need only satisfy himself at
the time of the dismissal, there were reasonable grounds for believing that the
offence put against the employee was committed. The test is not whether the
employee did it but whether the employer acted reasonably in thinking the
employee did it and whether the employer acted reasonably in subsequently
dismissing him.

Charge (a): Complaints of sexual harassment.

33.

Charge 1 relates to the charges of sexual harassment on Ellie Lim the

complainant by the Claimant on 30 November 2012 and 29 December 2012.

The

Respondent's counsel referred to the following cases: Jennico Associates Sdn. Bhd.
v. Lilian Therera De Costa & Anor. [1998] 3 CLJ 583; Utusan Melayu (M) Sdn.
Bhd. v. National Union of Journalist, Malaysia [1991] 2 ILR 840; Sitt Tatt
Berhad v. Flora Gnanapragasam [2002] 1 ILR 98; Lam Kok Hao v. Besi Apac
Sdn. Bhd. [2015] 2 LNS 0416; Colgate-Palmolive (M) Sdn. Bhd. v. Yap Shyan
Meng [2007] 2 ILR 313 and Malaysia Airline System Berhad v. Wan Sa'adi Wan
Mustafa [2008] 4 ILR 72.

34.

The Respondent submits in paragraph 35 that Ellie had taken steps to

communicate the two sexual harassment incidents that occurred between her and the
Claimant to her colleague COW4 and to her superior COW5 in addition to the written
report made by the complainant. The Respondent also submitted that the Company

21

had taken all the necessary steps to secure Ellie's attendance in respect of this case
where Form O (summons to appear) was unsuccessfully served on the complainant's
last known address.

The Respondent called both COW4 & COW5 to testify on the

sexual harassment incidents on the two even dates.

The Court finds no adverse

inference drawn against the Company in not making the complainant available in Court.
However, the Claimant is now deprived of the opportunity to cross-examine the
complainant on the charges of sexual harassment referred against the Claimant. In this
respect the Court finds the submission of the Respondent's counsel in highlighting the
principle of corroboration in the case of Jennico Associates (supra) that an
allegation of sexual harassment must be adequately corroborated and to rely on the
uncorroborated evidence of the complainant alone will be very dangerous is without
any merits and therefore inapplicable to the factual matrix and circumstances of this
case.

The evidence of the complainant Ellie is paramount in this charge of sexual

harassment against the Claimant.

35.

The Court is inclined to agree with the submissions of the Claimant that the

Company has failed to discharge its burden of proving the charge of sexual harassment
on the grounds that the complainant (Ellie) did not lodge a police report and she did
not give evidence in Court. The Court having considered the evidence of COW 4 & 5
and in the absence of Ellie's evidence, finds Charge (a) not proven against the Claimant
on the balance of probabilities.

22

Charge (b): Complaints of bullying and intimidation.

36.

In respect of the charge of bullying and intimidation, the Claimant explained in

his evidence that he was tough on the under performing or poor performing staff and
as a result these staff left the Company. To regurgitate, the Claimant conceded that he
partially admitted to the charge of complaints of bullying and intimidation where he
uttered the four letter words though he never directed it to anyone in particular. The
Claimant conceded in cross-examination that he had used the 4 letter word in the
course of meetings. The Claimant confirmed that he possibly had uttered vulgar words
to the F & B Manager over the missing cans of Carlsberg on 16 November 2012. The
Claimant agrees in cross-examination that on 20 December 2012, he could have
mumbled vulgar words to the managers who were not around during the weekend.
Lastly the Claimant admitted that he could have uttered vulgar vulgar words to the
Department Heads when referring to food poisoning case though the Claimant could
not confirmed the date of 27 November 2012 as reflected in the charge. The Claimant
was referred by the Respondent's counsel on the Company's Employee Handbook (CLB
page 19) where it was recorded that swearing or using offensive language in the
presence or hearing of guests or work colleagues is not an acceptable behaviour and
will be treated as a disciplinary matter.

37.

In the case of Bakti Comintel Manufacturing Sdn. Bhd. v. Ibrahim

Abdullah [1997] 3 ILR 358 at page 361, the Industrial Court decided as follows:
It is the opinion of this Court that the use of vulgar words and pointing finger at
COW1 are acts of serious misconduct and warrant none other than the punishment of
23

dismissal. Use of abusive and threatening words is clearly an all subversive of

discipline which warrant nothing less than the punishment of dismissal. see Syarikat
Ghalee Khidmat Bhd. v. Ramachandra Naidu a/l Suppiah (Award No. 4 of 1985).

38.

In the case of Acidchem (M) Bhd. v. Goh Hock Teong [2003] 1 ILR 904 at

page 909, the Court referred to Misconduct in Employment by B.R. Ghaiye as follows:
When an employee uses vulgar and indecent language towards the officers
then he is liable to be dismissed and the dismissal cannot be objected to on
the ground that the punishment is excessive. The industrial peace will be at
stake if the servant is given the immunity of maliciously scandalising the master
and other workmen who work under him.

39.

The Court is inclined to agree with the Respondent's submissions in paragraph

49 that based on the Claimant's admission, the Company has proven that the Claimant
had during the course of his employment acted unprofessionally by using inappropriate
and vulgar profanities on his subordinates during the morning briefings with the Heads
of Department. In the circumstances, the Respondent had proven Charge (b) against
the Claimant on the balance of probabilities.

Charge (c): Lack of guidance and supervision of your team.

40.

The Claimant merely denied that he had failed to notice maintenance

requirements and ensure that the premise was maintained and kept in optimal
condition as required by him as a General Manager.

The Claimant categorically

conceded that it was his duty and responsibility as a General Manager to conduct
inspections and show that the physical facilities are kept in the optimal condition by full
implementation of preventive maintenance and judicious planning as stipulated in the
24

contract of employment. The Claimant admitted in his cross-examination that there

were some flaws in the hotel television information and that the information was
already outdated. The Claimant also conceded that the year 2012 buffet themes has
not been changed in the year 2013. The Claimant admitted in cross-examination that
he conducted meetings up to two or three hours.

In the circumstances, the

Respondent had proven Charge (c) against the Claimant on the balance of probabilities.

Charge (d): Lack of comprehension and awareness of financials.

41.

The Company produced 3 witnesses COW1, COW3 & COW6. The Claimant as a

General Manager was tasked with communicating financial information to his team and
associates where appropriate by a Job Profile Expectations letter dated 14 November
2012 (COB1 page 22) as well as for the preparation and presentation of the Hotel 2013
budget. The Claimant failed to deliver the numbers as reflected in the November Profit
& Loss (COB1 page 58).

42.

The Claimant conceded in cross-examination that he was unaware of the RM

5,000 allocation in the Executive Budget for sponsorship. COW6 had set out a time line
to adhere to for the preparation of the 2013 budget which the Claimant had failed to
comply with. The Claimant conceded in his cross-examination that the Company has
yet to receive the budget as reflected in the email dated 29 December 2012 (COB2
page 35). The first draft budget (COB4 page 4) was only submitted on 8 December
2012 to COW6 had several discrepancies and anomalies that were detected by COW6

25

and was communicated to the Claimant. The second draft budget (COB4 page 22) was
submitted by the Claimant on 29 December 2012 also contained discrepancies. COW6
highlighted in his email (COB2 page 38) that the payroll costs are increasing by 50%
and 20% increase in revenue. There is a significant discrepancy and anomaly because
the beverage should align with increase in volume of Hotel.

The Claimant did not

outline the key strategies to deliver the financial budget as required in the Executive
Commentary (COB4 page 26). The Claimant's defence that the time line given by the
Company was tight and that he had been working on the Budget since August 2012
ought not to be an issue as the Claimant had sufficient time to prepare the Budget and
this explanation was never put forward by the Claimant to COW6 at the material time.
In fact the Claimant conceded in cross-examination that COW6 had sent him the
relevant templates to prepare the budget.

In the circumstances, based on the

aforesaid Charge (d) against the Claimant has been proven by the Company on the
balance of probabilities.

Charge (e): Little sense of urgency adhering to the critical path for Hotel
conversion.
43.

The Company produced 2 witnesses COW1 & COW3 in respect of this charge.

As the brain and directing mind of the Hotel's operations, the Claimant was in charge of
driving the Critical Path fort the Hotel conversion. It was crystal clear that since the
Company was in the midst of re branding, a Critical Path was to be formulated to
ensure that time lines were to be met in order to successfully launch the brand. This
was reiterated in the evidence in chief of COW1 when he testified that it was absolutely
26

critical that the time lines were complied with to ensure that the re branding process
was not delayed. According to COW1 in his evidence in chief, a Task Force initiated in
November 2012 was set up to ensure that the Company complied to the specifics,
within the specific time lines.

After the Task Force's departure, the deadlines on

submission were not met and COW1 had to constantly follow up with the Claimant who
placed fault on the team's non-deliverables. There were examples that the submissions
of weekly updates for the Critical Path were delayed. The Claimant had not even
realised that the Department Heads had not been submitting their daily updates for the
critical paths to COW1.

44.

The Claimant admitted in cross-examination that he was in charge of guiding his

team for things to move according to plan. The Claimant conceded that there were
delays in the submissions of the weekly updates for the Critical Path and he failed to
ensure that the Department Heads met the deadlines for their submissions. The Court
is inclined to agree with the Respondent's submissions in paragraph 85 that it is the
Claimant's responsibility as a senior leader to take the lead and to lead his team from
the front. The Claimant however had failed to play an active role in ensuring that the
Critical Path was adhered to as the Claimant did not follow up and ensure that the plan
was on track. The Claimant conceded in cross-examination that he merely supported
the AVANI culture from behind and take a back stand as he was on the learning curve
and this without a doubt proves one of the ingredients of the charge proffered against
the Claimant.

COW1 in his evidence in chief said that the critical measures in the

27

Critical Path such as the key card, manual key and safety box control were not in place
meaning that any staff had access to all guest rooms and in-villa guest safes. The
Claimant in this respect failed to follow up on the Master Key Control which was an
integral aspect of the Hotel's security even though the Claimant conceded that security
is a critical concern in the hospitality operations. Based on the aforesaid, it was clear
that there was little sense of urgency on the part of the Claimant as evidenced by his
admission of the delays in the submissions of the weekly reports.

In the

circumstances, Charge (e) has been proven against the Claimant on the balance of
probabilities.

Charge (f): Inability to improve guest satisfaction.

45.

The Claimant's job description states that one of the Claimant's responsibilities

was to ensure the highest level of guest satisfaction by providing quality guest services
and amenities within corporate standards.

The Claimant conceded in cross-

examination that guest satisfaction is an integral part of the hotel business where the
core part of his business is hospitality. The Claimant conceded in cross-examination
that there were indeed a number of complaints while he was the General Manager of
the Hotel about food and beverage, poor service standard, poor cleanliness and there
were instances where a guest had to wait almost 2 hours before he is assigned to a
room.

46.

The Court is inclined to agree with the Respondent's submissions in paragraph

28

102 that the Claimant had failed in discharging his duties as a General manager
especially since guest satisfaction was a crucial component of the Hotel business. The
Claimant admitted in his cross-examination that the evidence in respect of the closing
of the Hai Sai Lou Restaurant, the Ministry of Health letters and the guest reviews on
the Trip Advisor and Agoda were irrelevant to his employment or the charges levelled
against him. In the circumstances, Charge (f) has been proven against the Claimant on
the balance of probabilities.

Whether the Claimant's misconduct warrants a dismissal?

47.

The question now is whether these proven acts of misconduct in Charges 2 to 6

are just cause and excuse for the Claimant's dismissal.

The Claimant's misconduct

justifies his dismissal as it affects the Claimant's honesty and integrity. No Company
would be able to repose the necessary trust and confidence in their employees to
discharge the duties and responsibilities if the Claimant was found guilty of the
misconduct. The Industrial Court in the case of Mohd Khiruz Zainuddin v. Pusat
Pemeriksaan Kenderaan Berkomputer Sdn Bhd (now known as PUSPAKOM
Sdn Bhd) [2011] 2 LNS 0856 at pages 15 and 16 decided as follows:
It now remains for this Court to consider whether this proven misconduct
merited the extreme punishment of dismissal. On the facts of the case this
Court finds that the Company's decision to dismiss the Claimant was reasonable
in the circumstances and will thus not interfere with it.
48.

The Industrial Court in the case of Hasbullah Abd Jalil v. KUB Power Sdn

Bhd [2011] 1 ILR 629 at page 641 decided inter alia as follows:

29

The remaining issue is whether these proven acts of misconduct are just cause
and excuse for the claimant's dismissal. His counsel submits that the respondent
should have considered his past good service. The court, while not denying the
past good service is a mitigating factor to be taken into account, must ask
whether in making the decision to dismiss the claimant, the respondent had
acted reasonably. In the light of the totality of the evidence before it and with
due regard to equity and good conscience the court is of the view that the
decision to terminate the claimant's employment was reasonable.

49.

The Court of Appeal in the case of Pearce v. Foster & Others (1886) QBD Vol.

XVII 536 at page 539, Lord Esher M.R. opined as follows:

The rule of law is, that where a person has entered into the position of servant,
if he does anything incompatible with the due or faithful discharge of his duty to
his master, the latter has a right to dismiss him. The relation of master and
servant implies necessarily that the servant shall be in a position to perform his
duty duly and faithfully, and if by his own act he prevents himself from doing so,
the master may dismiss him.

50.

Based on the factual matrix and circumstances of this case, the Court finds that

the Company's decision to dismiss the Claimant was reasonable and thus shall not
interfere with it. It was sufficiently clear that the commission of the misconduct in
respect of the Charges (b) to (e) constitute serious misconduct thereby justifies the
managerial decision to dismiss the Claimant as this involves the Claimant's integrity and
responsibility whilst in the employment of the Company as the General Manager.

30

CONCLUSION
51.

Based on the totality of evidence, written submissions of both parties and

bearing in mind section 30(5) of the Industrial Relations Act 1967 to act according to
equity and good conscience and the substantial merits of this case, the dismissal of the
Claimant was with just cause or excuse. The Claimants claim is hereby dismissed.

HANDED DOWN AND DATED THIS 16 NOVEMBER 2016

--( EDDIE YEO SOON CHYE )

CHAIRMAN
INDUSTRIAL COURT MALAYSIA
KUALA LUMPUR

31