INDUSTRIAL COURT OF MALAYSIA

CASE NO. 2(29)(16)/4-892/05

BETWEEN

ENCIK FADZILLAH @ FADZIL BIN ABU

AND

SECOM (MALAYSIA) SDN. BHD.

AWARD NO: 576 OF 2010

Before : Y.A. PUAN MARIAH @ MALIAH BT AHMAD

- Chairman

Venue : Industrial Court Malaysia

at Johor Bahru

Date of Reference : 15 June 2005

Dates of Mention : 14.12.2005, 9.5.2006, 22.6.2006, 10.8.2006, 23.3.2007,

11.6.2007 and 19.6.2007.

Date of Hearing : 28.8.2007, 22.11.2007, 3.12.2007, 11.4.2008,

26.5.2008, 4.7.2008 and 23.7.2008.

Representation : Mr. Mohana Das A/L Krishnan

Malaysian Trades Union Congress (MTUC)
(The Representative for the Claimant)

: Mr. Vinoben Mathiavaranam

Advocates & Solicitors
Messrs. Reginald Vallipuram & Co.
(The Learned Counsel for the Company)

1
Reference :

This is a reference made under Section 20(3) of the Industrial Relations Act,

1967 arising out of the dismissal of Encik Fadzillah @ Fadzil bin Abu (herein

referred to as “the Claimant”) at A1, Perumahan Petronas, Jalan Jati 9/17, 81700

Pasir Gudang, Johor by Secom (Malaysia) Sdn. Bhd. (herein referred to as “the

Company”) at No. 12, Jalan Astaka U8/82, Bukit Jelutong Business & Technology

Centre, Section U8, 40150 Shah Alam, Selangor on 25.5.2004.

AWARD

The parties to the dispute are Encik Fadzillah @ Fadzil bin Abu ("the

Claimant") and Secom (Malaysia) Sdn. Bhd. ("the Company"). The dispute

between parties arose out of the dismissal of the Claimant by the Company on

25.5.2004

Facts of Case

The Claimant commenced employment with the Company on 2.7.2002 with

the job designation as an 'Customer Service Officer' Grade Agg 5(Operation

Department) vide Company's letter dated 14.8.2002 with a basic salary of

2
RM700.00 per month. Claimant is subjected to three (3) months probation.

Thereafter, the Company issued a letter dated 12.12.2002 informing the

Claimant that the Company was satisfied with his performance thus it confirmed his

employment coupled with increment of RM70.00 effective from 1.12.2002 and

upgrading his position from 'Customer Service Officer' Grade AGG5 to Response

Officer Grade AGG6 in the General Group of the Company.

Thereafter, the Company issued another letter dated 29.3.2004 which

notified the Claimant that his salary has been increased from RM770.00 to

RM845.00 effective from 1.1.2004 and expressed gratitude for his performance and

support.

The Claimant was employed not on a permanent basis but under a fixed term

contract of employment for a period of one year commencing 2.7.2002 and

terminating on 1.7.2003. The said contract was subsequently renewed/extended

twice i.e. from 2.7.2003 to 1.7.2004 and from 2.7.2004 to 1.7.2005.

Vide Company's letter dated 14.5.2004 the Claimant was issued with a notice

of Domestic Inquiry and the allegation forwarded by the Company are as follows:

3
 Charge:

Alleged to have unloaded a full set of security equipment at an

unauthorized premise at Bukit Jelutong Shah Alam on 11.2.2004, at

17.30hrs in the presence of your colleagues which amounts to stealing

it for personal gain.

In the same letter the Company ordered the Claimant to attend a Domestic

Inquiry on 25.5.2004 at 10.30pm at the new office in Bukit Jelutong, Shah Alam

and suspended him from work effective from 14.5.2004 until 27.5.2004.

The Claimant dutifully attended the Domestic Inquiry which was held on

25.5.2004 and denied all charges leveled against him.

The charge preferred against the Claimant was as a result of a written

statement dated 14.5.2004 made by one of the Company's employees alleging that

the Claimant had on 11.2.2004 taken without authorisation one full set of security

equipment and unloaded the same at an unauthorised premise at Bukit Jelutong,

Shah Alam.

The enquiry held was on 25.5.2004 was before a three man panel of inquiry.

The panel after careful consideration and deliberation found the Claimant guilty of

the charge levied against him and recommended that the Claimant be dismissed

from service.

4
 Subsequently, the Claimant's employment was terminated immediately vide

Company's letter dated 25.5.2004 and his last drawn salary at the material time of

the dismissal was RM845.00 per month.

Issue

The sole issue before the Court is whether the Claimant's dismissal by the

Company was with or without just cause or excuse.

The burden is on the Company to prove on the balance of probabilities that

the dismissal was with just cause or excuse.

The Law

As to the function of the Court when handling a reference under section 20

of the Industrial Relations Act 1967, the Federal Court in the case of Wong

Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. [1993] 3 CLJ 344 (at

page 352 of the report) enunciated that:

“On the authorities, we were of the view that the main and only

5
 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.”

In Telekom Malaysia Utara v Krishnan Kutty Sanguni Nair [2002] 3 CLJ

314 (at page 315 of the report), the Court of Appeal sated:

"In hearing a claim of unjust dismissal, where the employee was

dismissed on an alleged criminal offence of theft of Company property,

the Industrial Court is not required to be satisfied beyond reasonable

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

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

which is flexible so that the degree of probability required is

proportionate to the nature and gravity of the issue."

Based on the above mentioned authorities, the questions which this court has

to determine are:

Firstly; Whether the misconduct complained of by the Company i.e.

that the Claimant did unload a full set of security equipment at an

6
 unauthorized premise at Bukit Jelutong Shah Alam on 11.2.2004 was

in fact committed by the Claimant i.e. whether the Claimant is guilty of

the alleged misconduct; and

Secondly; If so whether the proven misconduct constitutes just cause

or excuse for the Company to dismiss the Claimant.

The Evidence, Evaluation and Findings

As to the first issue whether the misconduct complained of by the Company

i.e. that the Claimant did unload a full set of security equipment at an unauthorized

premise in Bukit Jelutong Shah Alam on 11.2.2004 was in fact committed by the

Claimant i.e. whether the Claimant is guilty of the alleged misconduct.

It is in fact admitted by the Claimant that he did in fact on 11.2.2004 unload

one full set of security alarm equipment at an unauthorized premises at Bukit

Jelutong, Shah Alam.

This admission by the Claimant can be found at the following:-

(a) The Claimant's letter to the Company dated 31.5.2004 at Page

15 paragraph 7 of COB:

7
 "Panel (Puan Seoh Ooi) menyoal saya, adakah ada

memindahkan barang-barang ke kereta lain. Saya mengaku

memang ia berlaku dan saya menyatakan ianya adalah

untuk dijadikan bahan sampel bagi tujuan untuk menjual

dan saya juga ada menyatakan satu urusan perniagaan

telah berlaku antara Secom dan Syarikat tersebut yang

dihadiri oleh Encik Khoo Lai Hock (Sales Department) dari

Secom pada 1.3.2004 di syarikat tersebut."

b) The Claimant in his evidence in chief in answer to a

supplementary question stated as follows:

"Memang saya ada memindahkan barang ke kereta yang

lain."

(c) The Claimant in cross examination answered:

At page 38 of the Notes of Evidence

"S: Dari perenggan ini kamu setuju atau mengaku telah

memindahkan barang-barang yang kamu dituduh

mengambil ke kereta pihak ketiga betul?

J: Betul.

8
 S: Perbuatan ini kamu buat tanpa apa-apa arahan dari pihak

syarikat, setuju?

J: Setuju.

S: Kamu juga mengatakan bahawa satu set 'alarm system'

yang kamu pindahkan adalah untuk dijadikan bahan

sampel bagi tujuan menjual. Adakah kamu setuju dengan

saya bahawa syarikat tidak pernah mengarahkan kamu

untuk mengadakan atau memberikan atau set 'alarm

system' kepada abang kamu sebagai sampel untuk tujuan

menjual?

J: Setuju."

(d) CLW2 the brother of the Claimant in his evidence in chief stated:

"S: Boleh beritahu Fadzil ada memberi alat itu kepada kamu

(alat security pada 11.2.2004)?

J: Ya."

The Claimant had clearly admitted to the act of unloading a full set of alarm

system at the an unauthorised premises at Bukit Jelutong, Shah Alam on

11.2.2004.

In the light of the clear admission by the Claimant, the Court finds that the

9
Company has discharged its burden of proof on the first issue that the Claimant had

in fact unloaded one set of alarm security equipment at an unauthorised premises

at Bukit Jelutong, Shah Alam on 11.2.2004.

The second issue is whether proven misconduct constitutes just cause or

excuse for the Company to dismiss the Claimant. The Court is of the view that the

misconduct committed by the Claimant's constitutes just cause or excuse for the

Company to dismiss him.

The evidence of the Company show that:

(a) The Company is involved in providing security services to its clients;

(b) The Claimant was employed by the Company as its response officer;

(c) COW1 and COW3 testified that dismissal was the only option because

the misconduct alleged against the Claimant and to which the Claimant

admitted to committing was very serious and criminal in nature and the

retention of such an employee will not be conducive to a good working

environment especially in light of the type of business that the

Company was engaged in which is to provide security services.

There are a number of cases where the Court held that employees guilty of

10
removing the Company's goods without authorization are liable to dismissal as such

conduct is criminal in nature.

(a) Kerjaya Belfour Beatty Cementation Sdn. Bhd. v Muhamad Zuki

Mat Zin [1999] 2 ILR 343 (at page 344 of the report), the Claimant in

this case was charged with removing a container belonging to the

Company from its premises. An enquiry followed and the employee

was subsequently dismissed.

The Court held that:

"When an employee is not authorized to take goods of his employer

to his own possession and it is found at the time when he was going

out of the work place that he was carrying some goods of the

employer, then in the absence of satisfactory explanation, the

presumption is that he is guilty of theft.

The present matter involved the offence of attempted theft by the

Claimant. It has been sufficiently proven that he had the intention to

deprive the Company of the container, which belonged to them. In

law, even temporary deprivation of possession of goods would amount

to theft. Theft or attempted theft is a serious offence."

11
(b) In the case of Institute Seni Lukis Malaysia v Chung Yi [2003] 3

ILR 579 (at pages 580 and 599 of the report), the Claimant was

alleged to have unlawfully removed certain paintings belonging to the

Company from the premises of the Company. The Claimant did not

deny removing the painting. She argued she was not guilty of

misconduct as the painting belonged to the former President of the

Institute, her father.

The Court held:

"The Claimant had committed a grave misconduct when she removed

the painting without permission.

Even assuming the painting belonged to her father, what the Claimant

did is considered serious misconduct."

(c) Okumura Metal (M) Sdn. Bhd. v Aparaha Athinarayanan [2003] ILR

160 (at page 161 of the report), the Claimant was dismissed by the

Company for his alleged participation on the unauthorized removal of

200kg of copper and bronze scrap from the Company.

12
 The Court held:

"The Claimant's conduct during and after the incident led to the

irresistible conclusion that he was actively involved in the unauthorized

removal of scrap from the Company premises, thereby committing the

alleged misconduct.

The misconduct justified the extreme penalty of dismissal as

misconduct involving moral turpitude such as theft or assisting in theft

could only be punished with dismissal. It is clear that the Claimant

breached the fiduciary nature of the employer/employee relationship in

that his act was detrimental to the best interest of the Company."

The Claimant's defence

The Claimant justified his actions of unloading one set of security alarm

equipment at an unauthorised location Bukit Jelutong, Shah Alam claiming that he

did so in order to conduct sale for the Company. The Claimant at page 15 COB

paragraph 7 and in his evidence in chief (Supplementary Questions) CLW1 stated:

"Panel (Puan Seok Oii) menyoal saya: adakah saya ada

memindahkan barang ke kereta lain. Saya mengaku memang ia

13
 berlaku dan saya menyatakan ianya adalah untuk dijadikan bahan

sampel bagi tujuan untuk menjual dan saya juga ada menyatakan satu

urusan perniagaan telah berlaku antara Secom dan syarikat tersebut

yang dihadiri oleh Encik Khoo Lai Hock (sales department) dari Secom

pada 1.3.2004 di syarikat tersebut."

The Claimant's brother CLW2 testified that he asked the Claimant to give him

one set of security alarm equipment for his employer was interested in having such

a system.

The Court rejects the Claimant's defence as it is an afterthought and a sham

defence to the charge of misconduct levelled against him. The Court rejects the

purported defence that he took the one set of security alarm equipment for the

purpose of sample for sale because it was never pleaded in his Statement of Case.

The Claimant knew all along the reason he was charged and dismissed after

a domestic inquiry he should have pleaded the relevant facts pertaining to the

unloading of the said one set of security equipment.

In Rama Chandran v. The Industrial Court of Malaysia [1997] 1 CLJ 147,

the Federal Court held that:-

"It is trite law that a party is bound by its pleadings. The Industrial

14
 Court must scrutinize the pleadings and identify the issues, take

evidence, hear the parties arguments and finally pronounce its

judgment having strict regard to the issues. It is true that the Industrial

Court is not bound by all the technicalities of a Civil Court but it must

follow the same general pattern. The object of pleadings is to

determine what are the issues and to narrow the area of conflict. The

Industrial Court cannot ignore the pleadings and treat them as mere

pedantry or formalism, because if it does so, it may lose sight of the

issues, admit evidence irrelevant to the issues or reject evidence

relevant to the issues and come to the wrong conclusion. The

Industrial Court must at all times keep itself alert to the issues and

attend to matters it is bound to consider."

The Court finds CLW2 is an unreliable witness because he gave evidence

which contradicts the Claimant's evidence whereby in his evidence in chief he

stated that:

"S: Bagaimana disampaikan, di mana?

J: Dia datang pada pukul petang saya ketika itu di tempat isteri saya

bekerja di Seksyen 27, Alam Maju, Shah Alam. Barang itu Fadzil

pindahkan dari keretanya ke booth kereta saya."

15
 On the evidence before the Court, the Court finds that the Claimant was not a

salesman permitted to conduct sale. The Claimant did not unload the said one set

of security equipment into the car of his brother CLW2 for the purpose of sale. In

any event, he was never authorised by the Company to deliver the said equipment

as sample as alleged by him.

In the premises, having duly considered the whole evidence and the

authorities cited, the Court finds that the Claimant had indeed committed the

misconduct as charged and that such misconduct constitutes a gross misconduct

which warrants dismissal.

Accordingly, the Claimant's claim is hereby dismissed.

HANDED DOWN AND DATED THIS 3rd day of MAY 2010

( MARIAH @ MALIAH BT. AHMAD )

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
AT KUALA LUMPUR

16