INDUSTRIAL COURT OF MALAYSIA CASE NO: 7/4-76/05 BETWEEN INAI KIARA SDN BHD AND BADRUL HISHAM BIN

BAHARUDDIN AWARD NO: 2097 OF 2008 Before Venue : : TUAN HAJI SYED AHMAD - CHAIRMAN RADZI BIN SYED OMAR (Sitting Alone) Industrial Court, Kuala Lumpur. 19.1.2005 5.11.2007 & 24.1.2008. Mr Guru Dhillon of Messrs Shah Rina & Co, Counsel for the Claimant. Mr M Danish of Messrs Ram Reza & Muhammad, Counsel for the Company. Reference: This is a reference made under Section 20(3) of the Industrial Relations Act, 1967 arising out of the dismissal of Badrul Hisham b. Baharuddin (hereinafter referred to as the Claimant) by Inai Kiara Sdn. Bhd. (hereinafter referred to as the Company).

Date of Reference : Date of Hearing Representation : :

AWARD

This issue here is the alleged dismissal of Badrul Hisham b. Baharuddin (the Claimant) by Inai Kiara Sdn. Bhd. (the Company).

Brief Facts The Companys contention that the Claimant had refused to obey a lawful order by the Company to go on transfer to Kucing. Although the Company had deferred the date for the Claimant to report for duty at Kucing, the Claimant still refused to report to Kucing as instructed. The Company had no other options but to dismiss the Claimant.

The Claimants case is that he never refused to go on transfer but had appealed for the Company to defer the transfer as his wife was about to give birth. The Claimant wrote in to the Company but the Company never replied to the Claimants letter of appeal instead the Claimant received a dismissal letter.

The Law The law on cases of dismissal has been clearly defined in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129 his Lordship Raja Azlan Shah CJ (Malaya) (as he then was) at p. 136 had this to say:-

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 advance 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. In the case of Stamford Executive Centre v. Dharsini Ganesan [1986] 1 ILR 101, Industrial Court held as follows:... It may further be emphasised here that in a dismissal case the employer must produce convincing evidence that the workman committed the offence or offences the workman is alleged to have committed for which he has been dismissed. The burden of proof lies on the employer. He must prove the workman guilty, and it is not the workman who must prove himself not guilty. This is so basic a principle of industrial jurisprudence that no employer is expected to come to this Court in ignorance of it. The Issues The issues before the Court are:(1) (2) Whether there was a dismissal. If there was, whether it was with just cause and excuse.
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Evidence Companys Case The Companys sole witness is Cik Anis Alwani bt Mohamad Nordin, COW-1, who testified that she had been with the legal department since 1.7.2003. Her duties were to oversee legal matters of the Company. The witness was not involved in the dismissal of the Claimant. The H.R. Manager was involved in the Claimants termination and has left the Company. Witnesss advice was only obtained by the Companys management after the Claimant was dismissed.

During cross-examination the witness agreed that the Claimant should be given a chance and time to defend himself. In this case no show cause letter was given to the Claimant and no D.I. held. Witness referred to exhibit CO page 7 and confirmed that the reason for the Claimants termination is for refusing to go on transfer and no other reasons. On the Claimants letter of appeal to defer the transfer date, the Company only replied verbally to the Claimant. No written reply was issued to the Claimant. The witness agreed the Claimant had never been to Bintulu before. The witness further added that the Company was aware of the medical problems of Claimants wife at the material time.

Claimants Case The Claimant admitted in his evidence that he was absent for a number of days and sometimes late during the months of April, June and July 2004. However it was due to valid reasons that he was absent. On some occasions he would sent some documents direct from his house in the morning to the required destinations and such he would be late. Sometimes he was on M.Cs. The Claimant could not remember the exact date he was on leave and when on M.Cs. If he was absent without leave the Company would have sent him a warning or show cause letter. The Claimant however never received any warnings or show cause letters.

The Claimant received a transfer order to report for duty to Bintulu. The Claimant never refused to go on transfer but wrote an appeal letter at CO exhibit 6 asking for deferment of the date of transfer. The Company never reply to the Claimants letter of appeal but the Claimant received a termination letter at CO exhibit 7. The Companys reason for Claimants dismissal was because Claimant refused to go on transfer. Decision The first issue here is not disputed as the Claimant was terminated from his services vide Companys letter at CO exhibit 7 dated 30.7.2004. The only reason given by the Company was because the

Claimant refused to comply to the Companys lawful order to be transferred to Bintulu. This reason is further confirmed by the Companys only witness that there was no other reasons for the termination of the Claimant.

The Court will now evaluate the evidence adduced by the parties during the proceedings in Court. The issue started when the Company issued a transfer order to the Claimant by a letter dated 5.7.2004. The transfer order stated that the Claimant was to report to the Project Manager at Bintulu by 12.7.2004. For ease of reference the said letter is reproduced:INAI KIARA SDN BHD PRIVATE AND CONFIDENTIAL Our ref. Date Name : IKSB/HQ/HRD/Employ_Trsf/2126/2k4(100) : 5 th July 2004 : BADRUL HISHAM BIN BAHARUDDIN

Employee No: HQ032 Dept : Administration

Designation: Dispatch cum Clerk Dear Badrulhisham, TRANSFER & REDESIGNATION Please be informed that th e Management ha s decided to transfer you to Bintulu Project Site with effect from 12 t h July 2004. You are required to report to the Project Manager, B in tu lu .
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All other existing terms and conditions of your employment, including your current salary shall remain unchanged. You are required to observe and carry-out the services, duties and responsibilities as per Schedule 1 attached and if there is any outstanding matter/s in your previous department, please ensure a smooth hand-over. Kindly sign and return the duplicate copy of this letter to HR Department latest by 19th July 2004. Otherwise, we would treat this automatically accepted by your good self. Thank You. Yours faithfully, For INAI KIARA SDN BHD Signed CAPT. HISHAMHASHIM Executive Director Operations C.c. Capt. Gulzar Mohamad - Executive Chairman & Executive Director, Finance. Capt. Ismail Kamin - Executive Director, Commercial Roswahida Abdul Wahid - General Manager, Finance & Corporate Services Wan Rosima Andak Bt Dato Wan Mohamed Head of Dept, Administration

I ___________________________________ I.C. No: ________ Understand and accept this letter of transfer. Employees Signature: _________________ Date: _________ The Claimant then wrote in a letter of appeal to the Company to defer his transfer to end of September 2004. The Claimant gave his reasons that his wife who was pregnant at the time was due to deliver the baby in September 2004. Claimants wife was having problem with
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her pregnancy and was just discharged from the hospital. The doctor had warned the Claimant to be extra careful and vigilant with the condition of his wife. There was possibility that his wife could deliver anytime. The Claimant was worried that if he were to go on transfer by 12.7.2004 the wife would be left alone with the other children who were still young. The Claimants appeal letter is reproduced.
14 Julai 2004. Badrul Hisham bin Baharuddin No. 16, Jin PJS 2C/11D Taman Sri Medan 46000 Petaling Jaya Selangor. Kepada, INAI KIARA SDN. BHD. Lot 7, 1 st & 2 nd Floor Bangunan OPA, Saujana Resort Section U, 40150 Shah Alam. Tuan, PERMOHONAN MENANGGUHKAN TARIKH PERTUKARAN KE BINTULU PROJECT SITE BADRUL HISHAM BIN BAHARUDDIN I/D NO: : HQ032 YOUR REF NO : IKSB/HQ/HRD/BHB/Employ-Trsf /2126/2k4/(100) -----------------------------------------------------------------------Perkara di atas adalah dirujuk. 1. Saya ingin memohon jasa baik Pihak Syarikat untuk menangguhkan tarikh pertukaran saya ke BINTULU SITE yang bertarikh 19th July 2004 kepada tarikh lain. 2. Untuk makluman pihak syarikat isteri saya sedang mengandung dan dijangka akan bersalin pada September 2004 ini. Dengan itu saya ingin memohon jasa baik Pihak
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Syarikat untuk menangguhkan ta rikh pertukaran saya selepas isteri saya selamat melahirkan anak saya. Buat masa sekarang keadaan kandungan isteri saya tidak begitu stabil dan sering mengalami masalah, memandangkan isteri saya baru keluar dari hospital dan doktor menyarankan supaya berhati-hati ini kerana sebarang kemungkinan boleh berlaku dan isteri saya boleh bersalin sebelum tarikh yang dijangkakan. 3. Saya amat berharap agar Pihak Syarikat dapat menangguhkan tarikh pertukaran saya ke Bintulu Site selepas isteri saya selamat melahirkan anak; selewatlewatnya sehingga hujung bulan September 2004. Memandangkan anak-anak saya yang lain masih kecil dan ada yang bersekolah serta kami tinggal jauh dari Kawasan tempat ibu bapa kami ditambah pula dengan kesihatan isteri saya yang tidak begitu memuaskan, saya takut semasa ketiadaan saya di sini sesuatu perkara yang tidak diduga akan terjadi. 4. Akhir kata saya memohon jasa baik dari Pihak Syarikat dapatlah kiranya Pihak Syarikat menangguhkan tarikh pertukaran saya ke Bintulu Project Site. Kerjasama dan pertimbangan dari Pihak Syarikat dalam perkara ini amatlah dihargai. Sekian, terima kasih. Yang benar, t.t. Badrul Hisham B Baharuddin

The Company contends that the Claimant was given the deferment he asked for but on 28.7.2004 the Claimant refused to be transferred to Bintulu as directed. The Companys sole witness is a legal officer with the Company. For a start she admitted she was not involved in the Claimants dismissal. She was only consulted after the Claimant was dismissed. She based her evidence on the records available. The HR
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Manager was the person involved in the Claimants termination but has since left the Company. During cross-examination COW-1 testified:Q: A: At CO exhibit 7, para 1 and 2 what is it. The reason for termination is for refusing to go on transfer and no other reasons. Q: CO exhibit 6, this letter from Claimant to Company dated 14.7.2004, Claimant asked for deferment of transfer to a later date, did Company reply to this letter by the Claimant. A: Q: Yes, Company did reply verbally and no written reply. CL exhibit 6, medical report of Claimants wife in Hospital from 3 - 5.7.2004, because of bleeding and yet the Company decided to transfer the Claimant and Company was aware Claimants wife was pregnant. A: Q: Yes Company was aware of her condition at that time. Do you agree Claimant should have been given time and chance to defend himself on the allegations. A: Q: Yes. What is the procedure, would show cause letter be the right procedure. A: Yes, it depends on the circumstances and I feel counseling sessions should come first. In this case no show cause letter given to Claimant. Q: Was D.I. held.
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A:

No.

From the evidence of COW-1 on the issue of Claimants letter of appeal, she stated that the Company only replied verbally. The Court is unable to accept the Companys version that they only replied to Claimants letter verbally. Even if the Company did reply verbally (which is denied) COW-1 cannot answer for certain who informed the Claimant verbally that the Company accepted his appeal. COW-1 could only presumed HR Manager informed Claimant. It is highly improbable that the Company would only reply verbally to the Claimants letter. This is an important issue because failure to report for duty as instructed by the Company could result in the dismissal of the Claimant. How could the Company be so unprofessional in dealing with its employee on serious issues. The Court is of the view that even if the Claimant had made his appeal verbally the Company would still need to reply in writing to put the matter on proper record. However it would seem that the Claimant is very professional in his dealings with the issue of his transfer. He wrote a letter of appeal instead of verbally informing the Company of his appeal to defer the transfer. The only inference the Court can deduct from this episode is there was no reply at all from the Company to the Claimants appeal. No considerations given to the Claimants appeal despite his wife just gave birth on 16.7.2004 prematurely.

Referring to the evidence of COW-1 in her statement at COW-1 Q21. The witness stated:11

Q:

Ref. COW-1 question 21, so Company agreed to defer the transfer to September, why was Claimant terminated on 30.7.2004.

A:

Because Claimant changed his mind on 28.7.2004 but is not stated in any document. (Witness referred to CO-1 exhibit 13).

CO-1 Exhibit 13 letter is reproduced:INAI KIARA SDN BHD HUMAN RESOURCE INTERNAL REPORT On 23 July 2004. 10.23 am Spoken to Badruls immediate superior, Puan Shima regarding Badruls transfer status. As agreed by Puan Shima, since Badruls wife just deliveried a baby, Company will give him another week to look after his family and baby before reporting at Bintulu office. Therefore, Badrul should report to Bintulu office in early August, proposed on 2 August 2004. Informed Badrul about the decision, hes agreed. From this memo apparently the Company agreed to defer the Claimants transfer to 2.8.2004. However it is not certain who prepared the memo and addressed to whom. The question is if the memo is written by someone why didnt the Company just extend in writing to the Claimant. It is not clear who explained to the Claimant of the offer to

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postpone the transfer to 2.8.2004. The memo is unsigned and not addressed to anyone in particular.

COW-1 stated that document at CO-1 exhibit 13 was prepared by HR Manager Ms. Zoe Wong and it may be sent to the Board of Directors. She stated during cross-examination:Q: A: CO-1 exhibit 13 who prepared this report. From HR Ms. Zoe Wong it may be sent to Board of Directors.

The Court is of the opinion that COW-1 gave her evidence only on her presumptions. She has no personal knowledge of the document, neither could she confirm the verbal consent to the Claimants appeal was actually given as stated at the last sentence of the memo. The exhibit 13 is followed by exhibit 14 as told by COW-1 during her examination-in-chief question 22. The exhibit 14 is reproduced:INAI KIARA SDN BHD HUMAN RESOURCE INTERNAL REPORT On 28 July 2004, 9.44 am Spoken to Badrul about his transfer status. Badrul refuse to be transferred to Bintulu office although hes agreed in his letter hes will report in September 2004. Zoe Wong, HR Manager explained to him that the Bintulu office is urgently need an experience staff and the Company will provide the accommodation, meal and transport when
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hes attached at site. Furthermore, the Company will give him a project allowance of RM500/= per month to him. Besides that, every 3 month he will be given 12 days to come back to visit his family. Anyhow, Badrul still refuse to be transferred to Bintulu office. HR Manager explained that based on the Company Terms & Conditions, Company has the right to transfer staff to other department, location, subsidiaries company, etc. If the staff refuses to be transferred, a termination may take place. Therefore, HR Manager advised Badrul to re-consider his decision. The contents of exhibit 14 expressed that the Claimant refused to go on transfer despite the fact that he agreed earlier he would go in September 2004. Claimant would also be getting extra allowance of RM500/- and other additional benefits. From the said memo it appears the writer of the memo had spoken to Claimant (at the first sentence), spoken to Badrul about his transfer. The writer of the memo had also told the HR Manager to advise the Claimant to reconsider his decision of refusing the transfer. Apparently COW-1 herself does not know what transpired between the writer of this document, HR Manager and the Claimant at the material time neither does she knows who was the writer of the document.

Again from the above contents of exhibit 14, is not clear who prepared the document and to whom the document was addressed to.
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Whatever the purported benefits and allowances to be given to the Claimant was never communicated to him because the Claimant denied being informed of the extra benefits. There is no evidence those benefits would be given to the Claimant when nothing is mentioned in the transfer letter except that all existing terms and conditions of your employment including your current salary shall remain unchanged.

It is obvious that the above document was not prepared by the HR Manager although COW-1 stated so in her testimony. If the HR Manager prepared the document exhibit 14 she would not have mentioned Zoe Wong, HR Manager explained to him (Claimant) she would have stated I explained to Claimant. So is the last sentence Therefore, HR Manager advised Badrul. It should be Therefore, I explained to Badrul. COW-1 is only trying to presume something beyond her knowledge about this exhibit 14.

From the evidence the Court can only conclude that COW-1 was not aware what was going on during the time the memos were sent out. COW-1 based her evidence on her own presumptions since she was told the HR was handling Claimants case of termination. In the

circumstances this Court is unable to accept the testimony of COW-1 on all the facts that she had given in her testimony. She had not given any proven facts except on her opinion and presumptions.

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In

case

of

Ireka

Construction

Bhd.

v.

Chantiravathan

Subramaniam James [1995] 2 ILR 11 it was stressed that If oral warnings are given by the Company, then it has the burden to adduce convincing and compelling evidence to prove this. At the material time of Claimants letter of transfer Claimants wife was having medical problem about her pregnancy. She was hospitalised because of bleeding and the Company was aware of her medical problems. This is confirmed by COW-1. The Claimants predicament of his wifes health problem was proven to be true when the wife gave birth prematurely on 16.7.2004 instead of in September. The baby being born prematurely had to be placed into an incubator at University Malaya from 16.7.2004 to 2.8.2004 as stated in the invoice statement at exhibit CL page 10B. The Claimant was terminated on 30.7.2004 while his baby was still in the incubator at University Malaya. The next issue is the opportunity given to Claimant to defend himself of the allegations. COW-1 agreed that Claimant should be given time and chance to defend himself. She further agreed no show cause letter issued to the Claimant and no D.I. held. The Claimant contends that he was never made aware of any warning, nor was he ever briefed about all the other benefits when he goes on transfer to Bintulu, Sarawak. None of the events as described in exhibit 14 actually took place that is, he refused to go on transfer after a discussion with the maker of exhibit 14 on 28.7.2004. He only went to
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the office on 22.7.2004 and did not ever go back to the office after that until 30.7.2004. (Please refer to Exhibit 12 at page 2 - CO-1). On 22.7.2004 when he went to the office, the Claimant met Ms. Zoe on that day but only enquired as to the status of his deferment letter dated 14.7.2004. He then went on to explain to Ms Zoe about the condition of his wife to which Ms Zoe then suggested for him to take his annual leave till 30.7.2004 by which time she assured him that the Company will have a reply to his deferment letter. The Claimant never went back to office after 22.7.2004, so the meeting on 28.7.2004 as described in exhibit 14 CO-1 could not have taken place. This is clearly shown in the Claimants punch card attendance at CO-1 exhibit 9 page 2 where the Claimant last presented himself in the office was on 22.7.2004. There is no evidence at all to imply the Claimant attended office and discussed with maker of exhibit 14 about his transfer. No one from Company who is aware of the facts of this case came forward to testify especially the maker of exhibit 14 who spoke to Claimant on his transfer. In conclusion the Court finds the Company has failed to discharge its burden of proving the case on the balance of probabilities. The sequence of events is straight forward. After the transfer order issued to Claimant dated 5.7.2004, he appealed that he be allowed to defer the transfer until September 2004 in his appeal letter dated 14.7.2004. Claimants reason that his wife was due to deliver his baby in September.
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COW-1 testified that the Company agreed to the Claimants request to defer the transfer to September. However Cow-1 is not certain of her evidence since she was not the one who handled Claimants termination. She presumes it was by HR Department. The person who purportedly informed the Claimant was not called to testify. COW-1 admitted no written reply to Claimants appeal letter by the Company. The question is, if the Company agreed to the Claimants request to defer the transfer to September, why did the Company terminate the Claimant on 30.7.2004. The month of September was two months away and no reason for the Claimant to refuse the transfer. Companys reason is that Claimant on 28.7.2004 refused to go on transfer. There is no evidence at all to contend that the Claimant had refused the transfer. The Claimant was told to take leave by HR Manager Ms Zoe Wong until 30.7.2004 pending the reply from Company on Claimants appeal. In the meantime Claimants wife gave birth prematurely on 16.7.2004. The baby was in the incubator from 16.7.2004 until 2.8.2004. While the baby was still in the University Malaya Hospital the Company terminated the Claimant on 30.7.2004. Instead of replying to the Claimants appeal letter the Claimant was terminated.

In

the

circumstances

the

Court

holds

that

the

Claimants

termination is without just cause and excuse. For the remedy the Court orders as follows:18

(1)

In

the

circumstances

of

the

case

the

Court

finds

reinstatement is improper. The Court orders backwages from the date of dismissal to the last date of hearing subject to a maximum of 24 months:RM1,100.00 x 24= RM26,400.00 The Claimant has gained employment on temporary basis for sometime on and off. The Court is of the opinion that a scale down of 15% of the backwages is a fair amount:RM26,400.00 minus RM3,960.00 = RM22,440.00 (2) Compensation in lieu of reinstatement of one month salary for every completed year of service:RM1,100.00 x 2 = RM2,200.00 (3) The total sum of RM22,440.00 plus RM2,200.00 = RM24,640.00 be paid to the Claimant through his counsel Ms. Shah, Rina & Co. within 30 days from the date of this Award. Unfair dismissal. HANDED DOWN AND DATED THIS 5 TH DAY OF DECEMBER 2008. (HAJI SYED AHMAD RADZI BIN SYED OMAR) CHAIRMAN INDUSTRIAL COURT MALAYSIA KUALA LUMPUR
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