INDUSTRIAL COURT OF MALAYSIA CASE NO: 27/3-43/10

BETWEEN KESATUAN PENCANTUMAN PEKERJA-PEKERJA TENAGA NASIONAL BERHAD AND TENAGA NASIONAL BERHAD AWARD NO: 1654 OF 2012

CORAM: Y.A. DATO MARY SHAKILA G. AZARIAH - CHAIRMAN ENCIK ABD. RAHMAN @ MARIDAN BIN RAMLI - EMPLOYERS' PANEL ENCIK RAJASEHGARAN A/L RAJAMANIKAM - EMPLOYEES' PANEL

VENUE DATE OF REFERENCE DATE OF MENTION

: : :

Industrial Court, Kuala Lumpur 24 December 2009 10 February 2010, 19 April 2010, 20 May 2010, 25 June 2010, 19 August 2010, 22 September 2010, 3 November 2010, 24 January 2011, 10 March 2011, 15 March 2011, 27 September 2011, 14 October 2011, 19 October 2011 and 20 October 2011 28 March 2011, 17 August 2011, 15 March 2012, 25 May 2012, 28 May 2012, 6 July 2012 and 30 August 2012 5 October 2012 Encik Sivananthan of MTUC, Representative for Union Cik Janice Leo of Messrs. Shook Lin & Bok, Counsel for Respondent

DATE OF HEARING

DATE OF ORAL SUBMISSIONS REPRESENTATION

: :

REFERENCES: This is a reference made under Section 26(2) of the Industrial Relations Act 1967 between Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad (hereinafter referred to as the Union) and Tenaga Nasional Berhad (hereinafter referred to as the Respondent).

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AWARD

This reference pertains to a trade dispute between Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad

(hereinafter referred to as the Union) and Tenaga Nasional Berhad (hereinafter referred to as the Respondent).

Brief Facts The Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad (the Union) brought this dispute that centers on the demotion of one of the Union's member, Encik Ibrahim bin Ali Kutty (the aggrieved employee) by the Company, Tenaga Nasional Berhad (TNB). It is the Union's pleaded case that the Claimant of 26 years service (then) with TNB was demoted from being a Pembaik Kerosakan T/Kanan (TT07) to Tukang T/Biasa (TT06) with effect from 20 August 2007. been issued with competency The aggrieved employee has certificate having undergone

extensive training to enable him to work on high risk jobs of the TNB. He contends that on 25 March 2006 out of concern for 11 staffs he approached his Senior Supervisor at the Pusat

Pengurusan Bekalan Section and raised some issues regarding

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safety and competency aspects involving some of the new staff who had not been issued with the competency certificates nor were they authorized personnels for them to carry out the high risk jobs for the Company. He further contends that Tuan Haji Said bin

Muda overheard their conversation and raised his voice at him asking him what does he know about safety. He contends that

Tuan Haji Said bin Muda undertook to bear all responsibilities for their safety should anything untoward happen to the new staff. The aggrieved employee asked Tuan Haji Said bin Muda to reduce his undertaking in writing and for it to be given to him. The

aggrieved employee contends that after that day Tuan Haji Said bin Muda changed his shift duty and was instructed orally not to be in charge or to lead his Team D. The aggrieved employee was asked to work on normal office hours. He lodged a complaint with the Human Resources Department. On 29 March 2006 a letter

dated 27 March 2006 was given to the aggrieved employee by Tuan Haji Said bin Muda instructing the Claimant on his working hours that is from 8.00 am to 5.00 pm and that Team D was disbanded with him being effectively removed as its leader. He said that Tuan Haji Said bin Muda discredited him by reporting to the Managing Director vide his letter dated 27 April 2007, that he was problematic worker.

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The aggrieved employee further contended that he was instructed to explain why he did not attend to the Roll-Calls on a number of days which he says was not compulsory by Tuan Haji Said bin Muda. He said that he received a warning letter dated 21 June 2006 by him after being issued with a show cause letter dated 8 June 2006 by Tuan Haji Said bin Muda. The aggrieved employee contends that he did not receive the said show cause letter and was therefore not aware of it. He contends that after 3 months somewhere in the middle of June 2006 the aggrieved employee was reinstated to his original position as Pembaik Kerosakan T/Kanan (TT07) by Tuan Haji Said bin Muda. On 26 June 2006 being his off day he was called back by the Company for emergency work. His car was faulty and in need of repairs. He took his car for repair the next day that is 27 June 2006 as he had to report for duty on 28 June 2006 and had to report for work at 6.30 am. The aggrieved employee avers that on 26 June 2006 he finished work at about 11.00 pm and because he had no transport of his own he used his Company's van WDN 943 (the vehicle) to return home and parked the said vehicle in the compound of his Selayang Prima Quarters.

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The aggrieved employee contend that he tried to reach the Supervisor of Vehicles, Mr. Karunakaran to inform him that the Claimant wanted to use the said vehicle that night but could not reach him. He said that at the same time he tried to contact Tuan Haji Ismail Majid so that he could get his permission but could not get through to him. He contends that he continued to contact Mr. Karunakaran when he got home at about 12.10 am and Tuan Haji Ismail but was unable to do contact them.

It is his contention that on the same day, that is 26 June 2006, Mr. Karunakaran received a short message on his handphone from Tuan Haji Said bin Muda saying that he (the aggrieved employee) had taken the Company's van to his quarters at Selayang Prima. Karunakaran lodged He avers that on 27 June 2006 Mr. a report with the Manager of Pusat

Pengurusan Bekalan Kuala Lumpur on the matter. On 28 June 2006 the aggrieved employee received a letter dated 27 June 2006 from Tuan Haji Said bin Muda alleging that he had taken the Company's vehicle to his residence without permission and had breached the Prosedur Tatatertib TNB, Edisi Kelima 2006, Perkara 35, Senarai Salah Berat Lampiran H muka surat 40. The

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aggrieved employee contends that he inquired from Tuan Haji Ismail Majid regarding the show cause letter issued by Tuan Haji Said bin Muda and Tuan Haji Ismail retorted by saying that Tuan Haji Said bin Muda did not wish to see him. He contends that he forwarded his reply to the said letter giving his reasons as to why he kept the said vehicle with him on 26 and 27 June 2006.

On 6 February 2007 TNB issued a letter dated 31 January 2007 to the aggrieved employee preferring charges against him and requiring him to attend a Domestic Inquiry on 27, 28 and 29 February 2007 which after several postponements was finally held on 7 and 8 June 2007. Following the said Domestic Inquiry the aggrieved employee was demoted by TNB. On 29 August 2007 the aggrieved employee appealed against the said decision to demote him but it was not accepted by TNB. The aggrieved employee

contends that he had never refused to follow the instructions of Tuan Haji Said bin Muda but his relationship with Tuan Haji Said bin Muda had soured ever since he raised the issue of the safety of the new staff assigned to Pusat Pengurusan Bekalan section with him.

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The aggrieved employee contends that as a Team D leader he was an authorized relief driver and normally parks the said vehicle at the Company's parking bay at Pusat Pengurusan Bekalan and the keys are always kept by him. He contends that this has been the practice of the Company. He avers that the said vehicle was kept at his quarters from about 11.30 pm 26 June till the morning of 28 June 2006 and at about 6.15 am on 28 June 2006 he drove it to his place of work. It is his contention that upon returning home on 26 June 2006 and until the morning of 28 June 2006 he did not use the vehicle for his personal use and the said vehicle was parked throughout the period at the Selayang Prima Quarters car park. He contends that Tuan Haji Said bin Muda manipulated the situation to inflict the punishment on him and that he was a victim of a grudge by Tuan Haji Said bin Muda. He avers that he apologized to TNB for the taking home of the said vehicle without its permission. He said owing to the personal vendetta on the part of Tuan Haji Said bin Muda against him that his apology was rejected. The aggrieved employee avers that the punishment

meted out was too excessive resulting in inter alia his salary also being reduced. He contends that his 25 years of loyal service

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Award to TNB that was to be given to him was differed for 3 years and that to date he has not been considered for the loyal service award. His prayer to the Court is that he be reinstated to his

former position as a Pembaik Kerosakan T/Kanan (TT07) with effect from 20 August 2007 and that his arrears of salary differences, wages, bonuses, seniority and monetary benefits from the date of his demotion that is 20 August 2007 to the date of determination be awarded by the Court.

It is TNB's contention that the aggrieved employee was demoted after a due inquiry where the panel had found him guilty of his misconduct. TNB avers that prior to his demotion the

aggrieved employee was suspended from work for 3 days on 23 March 1995, warned on 5 May 1995, 23 March 1995, 5 May 1995 and 21 June 2006 for his various acts of misconduct. contends that by taking the said vehicle home TNB

without

authorization the aggrieved employee had abused TNB's property which is a serious misconduct. It is their contention that if the aggrieved employee could not contact his superior and/or officers in charge of the vehicle he should not take it home. TNB contends

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that the punishment meted out commensurates with the aggrieved employee's misconduct and avers that what the aggrieved

employee did could have had serious ramifications on TNB in that it deprived TNB of the vehicle's usage in the event of an emergency.

Evidence, Findings and Evaluation TNB's evidence was led through their witnesses CW.1, CW.2 and CW.3. CW.1 viz Tuan Haji Said bin Muda, was the Technical Executive at the Pusat Pengurusan Bekalan. He testified that on 26 June 2006 he received the SMS from one of the employees of TNB. Encik Nasir bin Ahmad informing him that he saw the

vehicle registration number WDN 943 (the said vehicle) parked at the Selayang Prima Quarters. He said he instructed Encik Nasir to obtain whatever information he could get on the matter. He

testified that he then asked Encik Karunakaran via SMS whether he had authorized the aggrieved employee to take the said vehicle back home with him. He testified that he was told that he did not. CW.1 further testified that on 27 June 2006 he asked Encik Karunakaran to confirm whether the said vehicle had been returned to TNB's premises and was told that it was not so. It was

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his testimony that he instructed Encik Karunakaran to file a report with the Manager on the matter and to take a photograph of the said vehicle parked at the Selayang Prima Quarters. CW.1

testified that he issued the show cause letter dated 27 June 2006 to the aggrieved employee. He said that the aggrieved employee admitted having taken the said vehicle home without approval. It was his testimony that he reported the matter to the disciplinary Committee TNB. He said that in taking home the said vehicle and keeping it for 2 days at his premises the aggrieved employee had deprived TNB of the vehicle's usage for 2 days.

It was his evidence during cross-examination that he was the Senior Supervisor of the aggrieved employee. He testified when

asked that he was handed the responsibility to issue the show cause letter to the aggrieved employee. He confirmed that the

aggrieved employee stayed at the quarters belonging to TNB. He agreed when it was put to him that the said quarters was part of TNB's premises. It was his testimony that the Claimant was the head of his team since 2006 and that initially his working hours was from 7.00 am to 11.00 pm and was given overtime work all the

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time. He said that he had no issues with the way the aggrieved employee worked. CW.1 agreed that the aggrieved employee was grounded from 1 April 2006 and was asked to work from 8.00 am to 5.00 pm. It was his evidence that the aggrieved employee was taken off as Team Head because he did not want to work with new employees and could not form a team. CW.1 agreed that when the complains were lodged with Tuan Haji Ismail by the aggrieved employee the new workers did not have the certificates. He agreed that he had told the aggrieved employee that these new workers could still work. He agreed that when the matter of the change in his duties and working hours was taken up with the General Manager the aggrieved employee was given back his old position and his working hours.

When he was cross-examined CW.1 was not sure that on 26 June 2006 the aggrieved employee was off-duty but was called back by him to work overtime. He agreed however when it was put to him that on the 26 June 2006 the aggrieved employee was asked to work overtime from 7.00 am to 3.00 pm as it was his offday. He further agreed when it was put to him that the aggrieved

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employee was asked to continue to work overtime until 11.00 pm on 26 June 2006. He said that he did not know that the aggrieved employee had come to work that day having hitched a ride from his friend. He said that he did not know that the aggrieved employee's wife was unwell that day and had requested that he came home that night where else his original plans was to stay the night at the workplace as he had no transport to go back home. He said that before the aggrieved employee took the said vehicle back to his home that night he did not know that he had tried to contact Tuan Haji Ismail and Mr. Karunakaran to seek their permission for the usage of the said vehicle but could not get through to them. CW.1 agreed that he knew that the Claimant

had problems with his car on 26 June 2006. He also agreed that he had sent a SMS to Mr. Karunakaran at about 23.38 pm on 26 June 2006 about the incident. He further agreed that the

aggrieved employee returned the said vehicle to the premises on 28 June 2006 at 6.30 am. It was his evidence that on the 26 June 2006 there was no emergency situation that warranted the usage of the said vehicle.

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It was his evidence when asked as to why he did not ask the aggrieved employee to return the said vehicle the next day CW.1 said that he did not have the authority to seize the said vehicle that was in the aggrieved employee's charge. When questioned by the Court as to why he did not ask the aggrieved employee to return the said vehicle as soon as he came to know that he had taken it back home with him CW.1 said that he did not know what to do. CW.1 testified that he was not sure whether the aggrieved employee had used the said vehicle for his personal use except that it was taken back home by him.

Then 2nd witness of the Company, CW.2, Encik Karunakaran testified that he told CW.1 when he received his SMS that he did not authorize the aggrieved employee to the use the said vehicle that night to return home. He said that he had reported to CW.1 on 27 June 2006 that the said vehicle was not parked at TNB's premises that day and that the aggrieved employee was not working on 27 June 2006. CW.2 testified that he lodged a report with the Manager as instructed by CW.1 to do so and directed one of his staff to go to the quarters and take a photograph of the said

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vehicle that was parked at the aggrieved employee's flat. It was his testimony that the said vehicle could be used by the staff provided they had obtained approval for its usage from the supervisor by filling up the form provided by TNB. He testified that the aggrieved employee did not fill up the said form.

It was his testimony during cross-examination and to a question posed by the Court that he had submitted a report on the incident at the material time as he was instructed to do so by CW.1. He agreed that the said report was submitted to CW.1.

CW.2 testified that he did not receive any SMS or telephone calls from the aggrieved employee on 26 June 2006. He agreed that 27 June 2006 was the aggrieved employee's off-day and that he did not ask the aggrieved employee as to why he had taken the said vehicle home on 26 June 2006. He said that he was a good friend of the aggrieved employee.

CW.3, the investigating officer, testified that he was asked to investigate into this matter by the Manager. He said that the

aggrieved employee was charged for having taken the said vehicle

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home without the approval of TNB.

He said that the aggrieved

employee had admitted having done so as his personal car had broken down that day and he did not have enough money to take a taxi to go back home that night after work. He said that the

aggrieved employee had told him that he had tried to contact CW.2 to get his permission but could not get through to him. CW.3

testified that the aggrieved employee had agreed that what he did was against the disciplinary procedure of TNB but he was compelled and pressured that day to do so. It was his testimony that after he had taken down the statements from CW.1, CW.2 and others he concluded that the charge against the aggrieved employer was true.

It was CW.3's evidence during his cross-examination that the aggrieved employee had taken the car back home on 26 June 2006 because his situation on that day was compelling.

The aggrieved employee testified that at the material time his immediate superior was CW.1. He said that owing to the

breakdown of his car he took a lift from his friend that day to

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work. He said that he was told to work overtime on the 26 June 2006 that is from 3.00 pm to 11.00 pm. He testified that this was unplanned and it meant that he was going to work some 16 hours on 26 June 2006. It was his evidence that because he did not

have sufficient monies to take a taxi back home after his work he tried to call CW.2, 3 times to get his permission to use the said vehicle to go back home. He said that he was unsuccessful at He testified that he then tried

getting through to him however.

unsuccessfully to get in touch with Tuan Haji Ismail Majid his Foreman Head, to get his approval. He testified that owing to his pressing situation he took the said vehicle back home that night. It was his testimony that when he reached home that is the TNB Quarters at Selayang Prima, he used the public telephone to try and reach CW.2 again but to no avail. It was his testimony that he kept the said vehicle from the night of 26 June 2006 to the morning of 28 June 2006. He said that during the said period the said vehicle was parked at the said quarters of TNB and he returned it when he went to work on 28 June 2006 as he was scheduled to work from 7.00 am to 3.00 pm that day.

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The aggrieved employee testified that 27 June 2006 was his rest day. He said that he contacted CW.2 at about 12.00 pm that day and told him that he had taken the said vehicle back with him and that it was parked at the said quarters. He said that CW.2 answered him it is too late. It was his evidence that he did not use the said vehicle for his own personal use whilst it was with him.

The aggrieved employee testified further that he was given the show cause letter dated 27 June 2006 on 28 June 2006. He said that CW.1 as his head did not ask him anything about the said matter. He testified that he replied the said show cause letter

saying that he had to use the said vehicle to get back home that night as his own car had broken down and that he had tried to contact CW.2 to get his approval but was not successful. He

testified that he was charged by TNB vide its letter dated 31 January 2007 and was asked to attend the DI that was scheduled for the 27 February 2007 to 29 February 2007. He said that the said DI was postponed and was held from 7 June 2007 to 8 June 2007. It was his evidence that by taking the said vehicle back

home on 26 June 2006 the operations of TNB was not affected at all.

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When cross-examined the aggrieved employee testified that on 26 June 2006 he had no choice but to take the said vehicle back home with him as he had no other means of getting back home that night. He stressed that he was suddenly asked to work overtime and that it was not planned. He agreed that after he had finished his shift he realized that none of his friends living at the same quarters as he did were going his way. To a question posed by the Court the aggrieved employee said that this was the first time that he had done such a thing in the 29 years he had been with TNB. It was his testimony when the question was posed to him that when he kept the said vehicle on 27 June 2006 it did not deprive TNB of the usage of the said vehicle as every driver had its own vehicle and there were ample spare vehicles for use. He said that the vehicle that he took back was under his care.

It was his testimony during cross-examination that what was recorded in the Notes of Proceedings of the DI was inaccurate. He said that some of the things he said at the DI was not recorded. He explained when cross-examined that on 26 June 2006 he received a telephone call from his wife after he had finished his

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shift telling him that she was unwell. He had originally planned to stay back after 11.00 pm as he knew he had no transport to go home and to return home the next day only. He said that because of his wife's ill-health he decided to return home. He said that he had told CW.3 this when he was questioned by him. The aggrieved employee testified that he knew that taking the said vehicle without approval was wrong. He said that in his years of service he knew that this had happened before with the other staff using it for their personal use but TNB had taken no action against them so he could not understand why TNB reacted this way towards him. He said he did not have documents to prove that this had happened before but he has witnessed it personally.

It was the aggrieved employee's evidence when he was reexamined that he was not asked by either CW.1 or CW.2 to return the said vehicle. He said neither attempted to get in touch with him to ask him why he had taken the said vehicle and to have returned.

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The Union's representative submitted that TNB had been harsh in demoting the aggrieved employee for the wrong that he did. The demotion also meant that the aggrieved employee saw his salary reduced by RM150.00 per month. The Union's

representative submitted that the aggrieved employee had 31 years of unblemished record and the mitigating circumstances were not taken into account by TNB when the punishment was decided upon. Moreover he stressed that the said vehicle was not used for his personal use except to get back home that night and he had parked it at all times at the quarters which was designated as part of the Company's premises. He submitted that TNB did not

produce the person responsible for making the decision that the aggrieved employee should be punished in this manner as a witness or the members of the panel who sat in judgment of the aggrieved employee during the said DI. Their evidence was

important and therefore he submitted that the Court should rely on section 114(g) of the Evidence Act 1950. It was further

submitted by the Union's representative that the aggrieved employee had been victimized by CW.1 and TNB.

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TNB's Counsel submitted that the punishment was right as it was within the band of punishment that they could impose on the aggrieved employee for the serious misconduct that he had committed. The Counsel referred to TNB's Prosedur Tatatertib

(the said Manual) in support of her submissions. She submitted that it was provided by the said Manual that the band of punishment ranged from Turun Gaji Hingga Buang Kerja. It was her submission that it was well within and reasonable to have imposed the punishment on the aggrieved employee for the misconduct he had committed. It was her submission in a

nutshell that the punishment of demotion was proportionate to the aggrieved employee's misconducts he had complete disregard to the property belonging to the Company. She stressed that he did not return it at the first opportunity he had that is on 27 June 2006 and not even when he was told that his superior was displeased with him. Relying on the decided cases that she quoted TNB's Counsel submitted that the Court ought not to substitute its own views as to what was appropriate penalty for the employee's misconduct since the Company would be the best judge of the seriousness of the misconduct of its employees.

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The cases that Counsel for TNB relied upon were cases decided on their own facts which facts are certainly

distinguishable from the facts before me and my learned panel members though we are guided by their dicta. The aggrieved

employee does not deny the charge preferred against him by TNB. He however contended that extenuating circumstances led him to take the said vehicle home without first obtaining the approval of his superiors. The Court finds that the aggrieved employee had been a truthful witness regardless of what TNB's Counsel might have to say. The Court does not think that it is right to take what was said at the DI by the aggrieved employee ought of contexts or to read more into some of his open ended statements. For example TNB's Counsel submitted that he had said that he took his wife on 27 June 2006 to Sg. Buloh and therefore could not return the said vehicle on 27 June 2006 meant that he had used the said vehicle for his own personal use in ferrying his wife in it to Sg. Buloh. The aggrieved employee testified that he did not do so in Court. To the Court it simply meant that he could not return the said vehicle on 27 June 2006 as he had taken his wife on the said date to Sg. Buloh and nothing more. It obviously did not mean as submitted by TNB's Counsel that he had used the vehicle to take his wife to

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Sg. Buloh. This interpretation is consistent with what CW.2 had testified that he had sent his officer on 27 June 2006 to take a snap shot of the vehicle which photograph showed that the said vehicle was parked at the quarters at Selayang Prima which falls within the definition of kawasan syarikat pursuant to clause 4.2 of the said Manual.

The issue that the Court is faced with is to decide whether the demoting the aggrieved employee under the prevailing circumstances was just and equitable having regard to the substantial merits of the case. In the book, Law Relating to

Dismissal Discharge and Retrenchment Under Labour Law, 1997 edition (Reprint 1999), HL Kumar stated as follows: The fundamental principle that should be kept in view while awarding punishment is that the punishment should be commensurate with the nature of the offence. The punishing authority has to ensure that the

punishment is not shockingly disproportionate, regard being had to the particular conduct and the past record of the workman charged.

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It is certainly significant to consider the length of service and the unblemish record that the aggrieved employee had. In the case of Chartered Bank v. National Union of Bank Employees [1983] 2 ILR 111 it was held that the Claimant having had more than 26 years of blameless unblemished record of service with bank that his dismissal was too harsh having regard to equity good conscience and the substantial merits often case. In Goodyear

Malaysia Berhad v. National Union of Employees in Companies Manufacturing Rubber Products [1986] 1 ILR 522 the Industrial Court considered the length and quality of good service, a good unattained record and past service awards and recognition as extenuating circumstances which the employer has to take into account before deciding the appropriate punishment. The

aggrieved employee in his long service with the Company had not taken the said vehicle back home with him or use it for his personal use prior to this.

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It is also stated in the said Manual that the clean record of service of the workman shall be considered to reduce the punishment that may otherwise be meted out by the Disciplinary Committee pursuant to the said Manual for a serious misconduct that he commits. On the facts and evidence before it the Court opines that the aggrieved employee should not have been charged at all though this is the management prerogative. This was the first time he had taken the said vehicle back without approval from his superiors. His reasons for doing so was genuine and

reasonable and should have seen as mitigating his wrong. On the facts and evidence the Court is satisfied that the aggrieved employee was a victim of CW.1's manipulations and scheme. The aggrieved employee has shown that he did not have a good relationship with CW.1 who prior to the framing of this charge against him, took the Claimant off as a Team Leader and off shift work until his superior intervened to reinstate him back to his original position and working hours. CW.1 seized the opportunity again by going hard on the aggrieved employee when he came to know that he had taken home the said vehicle on the night of 26 June 2006. This accounts for the speed in which the show cause letter was issued that is on the 27 June 2006 itself and neither him nor CW.2 asking the aggrieved employee as to why he had

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taken home the said vehicle or for him to return the same. This could have been easily done as CW.2 had spoken to the aggrieved employee on 27 June 2006 and also came to know about the matter on 26 June 2006 from CW.1. CW.2 submitted a report to the Management. He did not think it was important that he asked the aggrieved to bring the said vehicle back at once. It seems it did not matter to CW.1 or CW.2 that the aggrieved employee kept the said vehicle because it was going to strengthen CW.1's cause against the aggrieved employee. On the facts and evidence it

seems clear that the action taken the aggrieved employee was tainted with malice in so far as CW.1 the perpetrator of what was to follow against the aggrieved employee was concerned. The

aggrieved employee could have been given a chance to explain himself even before the show cause letter was issued and perhaps warned and told not to do it again. The issuance of the show

cause letter and the ensuing DI into the charge that was leveled against him could have been obviated if CW.1 had dealt with the matter in a more humane manner. It was stated at the DI that was convened against the aggrieved employee by his 3 rd witness, Encik Jalaluddin Md. Yusuf that CW.1 was a revengeful person by nature and that he would punish a workman without first inquiring or investigating into the matter.

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The

Court

agrees

with

the

Union's

representative's

submission that by not calling the decision maker of the punishment meted out or any one of the panel members viz the members of the Jawatankuasa Tertib to testify in Court during the Hearing TNB had shut out from Court some important evidence that could assist the Court in understanding why TNB had acted in the manner they did. The Court cannot agree with the panel's findings on this matter. It would seem that they ignored altogether the extenuating circumstances that caused the aggrieved employee to take the said vehicle back to his quarters. The Court is unable to understand why these facts did not mitigate the misconduct of the aggrieved employee.

The aggrieved employee's 3rd witness had inter alia testified at the DI that he himself and several other workmen had taken TNB's vehicle back after work to his or their respective place of residence without the approval of his superiors but was not subjected to such disciplinary actions. It would have been necessary for the

Court and/or its panel members to inquire from these members if they testified at the Hearing as to why no importance was given to

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these facts that were adduced at the DI. If these statements were true then TNB would be guilty of selective punishment which is altogether an unfair labour practice and reinforces the Court's findings that the aggrieved employee has been singled out and victimized. It is the Court's findings that the decision maker as well as the panel members of the DI were crucial witnesses and without them the Court was deprived of the opportunity to seek elucidation and clarification on some important aspects of this dispute. So the Court is left with no alternative but to give the benefit of the doubt to the Union and the aggrieved employee and finds that in the light of the facts and evidence before it the demotion was altogether harsh and unmerited. It is the Court's view that some thoughts/consideration should have been given to the extenuating circumstances that led to the aggrieved employee taking the said vehicle back with him at about 11.00 pm on 26 June 2006. The DI panel seemed to have rejected the aggrieved employee's narration of the circumstances that forced him to take the vehicle back home with him, his contention that he did not use the vehicle after it was parked at his quarters which was also part of the kawasan syarikat where the vehicles were to be parked at

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all times, his 3rd witness's evidence and the possibility that he could have been the victim of the strained relationship that existed between CW.1 and himself. The DI panel seemed to have rejected the fact that the aggrieved employee tried to contact his superiors to seek their permission for the usage of the said vehicle. It is

however the Court's view that this, inter alia, are mitigating circumstances for his action. It is the Court's findings that on the facts and evidence that was before the panel of the DI their findings as to the guilt of the aggrieved employee is perverse and unsubstantiated. In any event the Court shall not consider it In the case of Hong Leong Equipment it was held

bound by its decision.

Sdn. Bhd. v. Liew Fook Chuan [1997] 1 CLJ 665

that the findings of the DI panel is not binding on the Industrial Court which rehears the case afresh.

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It is the considered view of the Court based on the facts and evidence before it that TNB has not discharged the burden to show that their decision demoting the aggrieved employee for the wrong he did was justified. It is unfortunate that the Court does not

share the same view as TNB given the material facts and evidence before it. The Court is guided by the considerations of equity, good conscience and the substantial merits of the case. Its decision is one that has been arrived at having perused the salient facts of the case which the Court feels was perhaps cursorily dealt with by the aggrieved employee's supervisor (CW.1) and the DI panel. On facts the demotion of the aggrieved employee is unwarranted. In fact the Court has gone a step further to say that on the facts and evidence the aggrieved employee ought not to have been charged in the first place. There were mitigating circumstances for taking the said vehicle back home with him at 11.00 pm on 26 June 2006 and his return of the said vehicle at about 6.15 am on 28 June 2006. The decision taken by TNB was indeed far too harsh and excessive let alone unreasonable. This Court is guided by the

considerations of equity and good conscience and substantial merits of the case.

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On the facts the aggrieved employee was punished twice viz he was demoted to a lower grade and was denied any increment for 5 years. This is harsh based on the facts of the case.

In the light of the conclusion it has reached based on the totality of the facts and evidence of the case the Court with the concurrence of its panel members decides this dispute in the Union's farvour and orders that the aggrieved employee be restored to his position as Pembaik Kerosakan T/Kanan (TT07) and as a Team Leader with effect from 20 August 2007 and that the arrears of the difference of his salary inclusive of increments, bonuses, seniority, and all other monetary benefits be paid to him accruing from the date of his demotion to the date hereof.

HANDED DOWN AND DATED THIS 3 DAY OF DECEMBER 2012 Signed ( DATO MARY SHAKILA G. AZARIAH ) CHAIRMAN INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR

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