INDUSTRIAL COURT OF MALAYSIA

CASE NO. 4/4-257/13

BETWEEN

KANAVATHI A/L RAJARATNAM

AND
LION WATERWAY LOGISTICS SDN. BHD.

AWARD NO : 567 OF 2017

BEFORE : Y.A. PUAN SAROJINI A/P KANDASAMY

Chairman (Sitting alone)

VENUE : Industrial Court, Kuala Lumpur

DATE OF REFERENCE : 13.02.2013

DATE OF RECEIPT OF : 21.02.2013

ORDER OF REFERENCE

DATES OF MENTION : 11.04.2013, 05.07.2013, 31.07.2013,

03.09.2013, 09.10.2013, 18.12.2013,
10.01.2014, 18.03.2014, 05.05.2015

DATES OF HEARING : 07.01.2015, 08.01.2015, 09.12.2015,

10.12.2015, 23.06.2016, 24.06.2016

REPRESENTATION : Mr. V. K. Raj of Messrs. P. Kuppusamy &

Co – Counsel for Claimant

Mr. N. Sivabalah together with Mr. Wong

Kian Jun of Messrs. Shearn Delamore &
Co – Counsel for Company

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REFERENCE

This is a reference by the Honourable Minister of Human Resources

under section 20(3) of the Industrial Relations Act 1967 for an award in
respect of a dispute arising out of the dismissal of KANAVATHI A/L
RAJARATNAM („Claimant‟) and LION WATERWAY LOGISTICS SDN.
BHD. („Company‟).

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 AWARD

THE REFERENCE

1. The parties to the dispute are Kanavathi a/l Rajaratnam

(„Claimant‟) and Lion Waterway Logistics Sdn. Bhd. („Company‟). The
dispute which was referred to the Industrial Court by way of a Ministerial
Reference under section 20(3) of the Industrial Relations Act 1967 made
on 13.02.2013 is over the dismissal of the Claimant by the Company on
30.12.2011.

2. The relevant cause papers before this Court are as follows:

a) The Claimants‟ Statement of Case dated 10.05.2013 (SOC);

b) The Company‟s Statement in Reply dated 15.07.2013 (SIR);
c) The Claimants‟ Rejoinder dated 02.09.2013;
d) The Claimants‟ Bundle of Documents (CLB-1);
e) The Claimants‟ Supplementary Bundle of Documents (CLB-
2);

f) The Company‟s Bundle of Documents (COB-1);

g) The Company‟s Supplementary Bundle of Documents (COB-
2);
h) The Claimant‟s Witness Statement (CLWS-1);
i) The Company‟s Witness Statement by Mr. Vasu Palanisamy
(COWS-1);
j) The Company‟s Witness Statement by Mr. Wong Wing Kiong
(COWS-2);

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 k) The Company‟s Witness Statement by Mr. Suresh Menon
(COWS-3); and
l) The Company‟s Witness Statement by Ms. Kwa Seok Leng
(COWS-4).

THE CLAIMANT’S CASE

3. The Claimant gave evidence on his own behalf on 07.01.2015 and

08.01.2015. In addition Ms. Sivaneswary a/p Subramaniam (CLW-2), a
supervisor in the Human Resources Department, also gave evidence on
behalf of the Claimant. The Claimant was her immediate superior.

4. The Claimant commenced employment with Megasteel Sdn. Bhd.

as an Assistant Manager Human Resource (HR) on 04.07.2005 drawing
a monthly basic salary of RM4,900.00 [COB-1 p.1-5]. On 15.06.2007
the Claimant was transferred to Amsteel Mills Sdn. Bhd. where his
employment was deemed continuous [COB-1 p.8]. On 15.10.2010, the
Claimant was transferred to the Company with continuity of service in
employment [COB-1 p.20].

5. The Claimant‟s job functions as an Assistant Manager HR were as

follows:

a) in charge of the entire spectrum of HR functions;

b) to supervise subordinates;

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 c) to conduct induction programmes, coaching and counselling
staff.

6. The Company issued to the Claimant a Show Cause Letter dated

08.07.2011 that contained 4 allegations of misconduct [COB-1 p.31-33].
The Claimant vide letter dated 14.07.2011 replied to the Company‟s
Show Cause Letter [COB-1 p.35-37]. Pursuant to this the Company vide
letter dated 09.08.2011 issued to the Claimant a Final Warning Letter
[COB-1 p.39-41]. Subsequently the Claimant vide letter dated
29.08.2011 expressed his dissatisfaction on the Final Warning Letter
issued to him [CLB-1 p.14-15].

7. Thereafter the Company vide letter dated 05.09.2011 informed the

Claimant that after review of the facts of the complaint, the Company‟s
position in relation to the Final Warning Letter remained unchanged
[COB-1 p.43]. The Claimant was further advised that he should instead
work on improving his short-comings and build positive relations with his
colleagues and superiors.

8. Subsequently the Claimant vide e-mail dated 07.10.2011 [COB-1

p. 44-45] attached a letter wherein he informed the Company that he
was rejecting the Final Warning Letter. The Company responded vide e-
mail dated 11.10.2011 [COB-1 p. 44] wherein the Claimant was informed
that the Company‟s position regarding the Final Warning Letter remained
unchanged and the Company was justified in its actions. The Claimant
responded vide e-mail dated 18.10.2011 [COB-1 p. 46] informing the
Company that he was of the view that the Final Warning Letter was
allegedly unjustly issued and he placed on record that he was victimized.

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9. On 24.10.2011, Mr. Wong Wing Kiong (COW-2), the Senior
Manager Operations, informed the Claimant that the Claimant‟s
appraisal will be conducted jointly by him and Ms. Kwa Seok Leng
(COW-4), General Manager HR. COW-2 told the Claimant to be present
in his office immediately. When the Claimant entered COW-2‟s room, he
saw that COW-4 and Mr. Lee Tee Hooi, Senior Manager-Marine
Technical, were also present. COW-4 then handed the Claimant a copy
of his Performance Appraisal Review Form which was already reviewed
and rated by them. The Claimant found that he was rated “Below
Expectation”. The Claimant then told COW-4 that the performance
appraisal was in violation of the Performance Appraisal Process as the
appraisal must be carried out on a “one to one” basis and must involve
the Claimant and be carried out by his immediate superior.

10. Subsequently the Claimant vide e-mail dated 22.11.2011 [CLB-1 p.

39-41] amongst others informed COW-3 the way in which the
performance appraisal was carried out. The Claimant also placed on
record that his appraisal for the year 2010 was changed from “Above
Average” to “Average” without his knowledge. The Claimant contended
that the Company did not reply to his grievance letter but proceeded to
issue him another Show Cause Letter dated 25.11.2011 [COB-1 p.49-
51]. The Company vide Show Cause Letter dated 25.11.2011, inter alia
raised the issues that happened in 2008 when he was employed in
Amsteel Mills Sdn. Bhd. The Claimant vide letter dated 19.12.2011
[COB-1 p.52-54] replied to the Company‟s Show Cause Letter dated
25.11.2011. The Claimant vide the same letter also denied receiving
some of the warning letters mentioned therein. The Claimant vide letter
dated 30.12.2011 [COB-1 p.55] treated himself as constructively
dismissed by the Company.
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11. The Claimant contended and will so contend that the Company by
its acts and/or conduct beginning with the issuance of the Show Cause
Letter dated 08.07.2011, had either singly or cumulatively repudiated his
contract of employment with the Company. The Claimant contended
and will so contend that by the series of events as illustrated above, the
Company had treated him unfairly and unjustly and the Company had
evinced an intention no longer to be bound by his contract of
employment.

12. The Claimant further contended and will so contend that the series
of acts or conduct of the Company amounted either individually or
cumulatively to repudiatory breaches of his contract of employment thus
entitling him to treat himself as constructively dismissed without just
cause or excuse. The Company‟s conduct was motivated by mala fide
with a view to victimizing the Claimant.

13. At the time of dismissal the Claimant was holding the same
position and was drawing a monthly basic salary of RM5,700.00
inclusive of fixed telephone allowance of RM100.00.

14. The Claimant prays that he be reinstated to his former post with
the following consequential orders, namely that he be paid full back-
wages from the date of dismissal to date of reinstatement, increments
and adjustments to his salary based on such increments and
adjustments in salary that other employees in his category were given
since his dismissal, bonus as has been declared for other employees in
his category from the date of dismissal to the date of reinstatement,
other benefits enjoyed by the employees in his category if any, any

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outstanding payments due to him, and employer‟s EPF contribution on
such amount of backwages.

THE COMPANY’S CASE

15. The Company called the following witnesses to give evidence

during the hearing on 09.12.2015, 10.12.2015, 23.06.2016 and
24.06.2016:

(a) COW-1: Mr. Vasu Palanisamy, who at the material time was the
Manager-Special Projects/IR-ER. He is currently the Senior
Manager- Industrial Relations/Employee Relations under the
Group Human Resources Division;

(b) COW-2: Mr. Wong Wing Kiong, who at the material time was
the Senior Manager-Group Logistics. He is currently the
General Manager of the Company;

(c) COW-3: Mr. Suresh Menon who is the Director of Group HR for
Lion Group and the Company is one of the companies under
the Group; and

(d) COW-4: Ms. Kwa Seok Leng who at the material time was the
Senior Manager HR. She is currently the General Manager HR
for Lion Group.

16. Vide letter dated 13.10.2010 from Amsteel Mills Sdn Bhd, the
Claimant was informed that he was to be transferred to the Company as
Assistant Manager HR with effect from 15.10.2010, wherein his

8
employment in the previous companies was deemed continuous. All the
Claimant‟s terms and conditions of service remained unchanged.

17. The Company had issued a Show Cause Letter dated 8.07.2011 to
the Claimant wherein he was alleged to have committed several
misconducts. The Claimant responded to the Show Cause Letter vide
letter dated 14.07.2011. On 03.08.2011, a Question and Answer
Session was held to clarify any queries the Claimant may have had with
regards to the Show Cause Letter dated 08.07.2011. After due
consideration of the Claimant‟s explanation, the Company was of the
view that the explanation provided was unacceptable. As such, the
Company had issued the Claimant with a Final Warning Letter dated
09.08.2011. The Company had also provided its reasons in the said
letter as to why it felt that the Claimant‟s explanation was unacceptable.

18. The Claimant vide letter dated 29.08.2011 expressed his

dissatisfaction with regards to the Final Warning Letter. The Company
vide letter dated 05.09.2011 informed the Claimant that after review of
the facts of the complaint, the Company‟s position in relation to the Final
Warning Letter remained unchanged. The Claimant was further advised
that he should instead work on improving his short-comings and build
positive relations with his colleagues and superiors.

19. The Company vide letter dated 05.09.2011 [COB-1 p.42] informed
the Claimant that he was instructed to complete an Action Plan for his
Key Results Area (KRA). Most of the items in the KRA were within the
capability and scope of the Claimant as an Assistant Manager HR.
COW-3 vide e-mail dated 11.10.2011 informed the Claimant that he had
yet to provide his Action Plan with regards to his KRA.
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20. The Claimant‟s performance appraisal review for 2011 was
conducted by COW-2, COW-4 and Mr. Lee Tee Hooi wherein the
Claimant was rated as “Below Expectation”. For the year 2010, the
Claimant was rated as “Average”.

21. The Claimant was subsequently issued with a Show Cause Letter
dated 25.11.2011 wherein the Claimant had failed to provide his Action
Plan as per his KRA. The Company had in this letter also reminded the
Claimant of the numerous show cause letters, warning letters and Final
Warning Letter which were issued to the Claimant since 2008 and the
Claimant‟s failure to adhere to Company‟s policies.

22. The Claimant responded to the Show Cause Letter vide letter
dated 19.12.2011. The Claimant vide letter dated 30.12.2011 had made
various unfounded allegations against the Company and had alleged
that he was constructively dismissed by the Company. The Company
responded to the Claimant vide letter dated 05.01.2012 [COB-1 p.56-57]
denying the Claimant‟s allegation that he was constructively dismissed.
The Company had merely exercised its management prerogative in
bringing to the Claimant‟s attention his shortcomings and certain
misconducts and thereafter followed up with the issuance of warning
letters thereafter. The Company had deemed that the Claimant has
decided to leave his employment with the Company and had failed to
provide the requisite three (3) months notice as required. The Claimant
vide letter dated 17.01.2012 [COB-1 p.58] alleged that he was not
required to serve the Company any notice. The Company responded
vide letter dated 17.02.2012 [COB-1 p. 59] and informed the Claimant
once again that he has left his employment with the Company without
providing the requisite notice.
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23. The Company averred that it had not breached any terms and
conditions of the Claimant‟s contract of employment. The Company had
acted reasonably and in compliance with the principles of natural justice
and well within its authority and prerogative in dealing with the Claimant.
The Company further prays that the claims brought by the Claimant be
dismissed.

THE LAW AND BURDEN OF PROOF

24. The principle underlying the concept of “constructive dismissal”, a

doctrine that has been firmly established in industrial jurisprudence, was
expressed by Salleh Abas LP in the case of Wong Chee Hong v Cathay
Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 in
the following manner:

“The common law has always recognised the right of an employee to

terminate his contract and therefore to consider himself as discharged
from further obligations if the employer is guilty of such a breach as
affects the foundation of the contract, or if the employer has evinced an
intention not to be bound by it any longer. It was an attempt to enlarge
the right of the employee of unilateral termination of his contract beyond
the perimeter of the common law by an unreasonable conduct of his
employer that the expression “constructive dismissal” was used.”.
[Emphasis added]

25. In Western Excavating (E.C.C) Ltd. v Sharp [1978] 1 All E.R. 713
at p. 717 Lord Denning M.R. decided that the correct test to apply in the
instance of constructive dismissal is the “contract test” as follows:

11
 “If the employer is guilty of conduct which is a significant breach going
to the root of the contract, or which shows that the employer no longer
intends to be bound by one or more of the essential terms of the
contract, then the employee is entitled to treat himself as discharged
from any further performance. If he does so, then the employee
terminates the contract by reason of the employer's conduct. He is
constructively dismissed. The employee is entitled in those
circumstances to leave at the instant without giving any notice at all or,
alternatively, he may give notice and say that he is leaving at the end of
the notice. But the conduct must in either case be sufficiently serious to
entitle him to leave at once. Moreover, he must make up his mind soon
after the conduct of which he complains; for, if he continues for any
length of time without leaving, he will lose his right to treat himself as
discharged. He will be regarded as having elected to affirm the (varied)
contract.”.
[Emphasis added]

26. In Anwar Abdul Rahim v Bayer (M) Sdn. Bhd. [1998] 2 CLJ 197 his
Lordship Mahadev Shanker J decreed as follows:

“It has been repeatedly held by our courts that the proper approach in
deciding whether constructive dismissal has taken place is not to ask
oneself whether the employer's conduct was unfair or unreasonable
(the unreasonableness test) but whether „the conduct of the employer
was such that the employer was guilty of a breach going to the root of
the contract or whether he has evinced an intention no longer to be
bound by the contract‟. (See Holiday Inn Kucing v Elizabeth Lee Chai
Siok [1992] 1 CLJ 141 and Wong Chee Hong v Cathay Organisation
(M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298).”.

27. Furthermore, that constructive dismissal is within the ambit of a

reference under section 20(3) of the Industrial Relations Act 1967 was
reaffirmed by Salleh Abbas LP in Wong Chee Hong v Cathay
Organisation (M) Sdn. Bhd. (supra) when he said:

“…interpretation of the word „dismissal‟ in our section 20. We think that

the word „dismissal‟ in this section should be interpreted with reference
to the common law principle. Thus it would be a dismissal if an
employer is guilty of a breach which goes to the root of the contract or if
12
 he has evinced an intention no longer to be bound by it. In such
situations, the employee is entitled to regard the contract as terminated
and himself as dismissed.”.

28. In the case of Govindasamy Munusamy v Industrial Court Malaysia

& Anor (2007) 10 CLJ 266 the court illustrated the following principles
governing the pre-requisites to found a claim of constructive dismissal:

“To succeed in a case of constructive dismissal, it is sufficient for the

claimant to establish that:

(i) the company has by its conduct breached the contract of

employment in respect of one or more of the essential terms
of the contract;

(ii) the breach is a fundamental one going to the root or

foundation of the contract;

(iii) the claimant had placed the company on sufficient notice

period giving time for the company to remedy the defect;
(iv) if the company, despite being given sufficient notice period,
does not remedy the defect then the claimant is entitled to
terminate the contract by reason of the company‟s conduct
and the conduct is sufficiently serious to entitle the claimant
to leave at once; and

(v) the claimant, in order to assert his right to treat himself as

discharged, left soon after the breach.

The test for constructive dismissal as it stands is a test on contractual

breach rather than unreasonableness. Further, where the workman‟s
claim for reinstatement is based on constructive and not actual
dismissal, the onus of proving that he has been constructively
dismissed lies on the workman himself.”.
[Emphasis added]

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29. The question whether there was constructive dismissal as
complained by the Claimant is one that must eminently be determined in
the light of its own particular set of facts and there cannot be a definite or
inflexible interpretation of law. This principle was enunciated by the High
Court in the case of Chong Mee Hup Kee Sdn. Bhd. v Mahkamah
Perusahaan Malaysia & Anor [2008] 6 CLJ 799.

30. Once these prerequisites for constructive dismissal have been

established by the Claimant in reference to a dismissal under section 20
of the Industrial Relations Act 1967, the Industrial Court then moves into
the next limb of the inquiry; and that is to determine whether the
employer had just cause or excuse for the dismissal. Here the burden
shifts upon the employer. Raus Sharif J (as His Lordship then was) in
Pelangi Enterprises Sdn Bhd v Oh Swee Choo & Anor [2004] 6 CLJ 157
refers to this 'shift of the burden', calling that upon the workman as 'the
first burden of proof' at p.165 and that upon the employer as the 'second
burden of proof' at p.166.

31. Where this onus or burden of proof is upon any party, it is to be

proved by that party to a standard of a balance of probabilities. (See
Ireka Construction Berhad v Chantiravanathan Subramaniam James
[1995] 2 ILR 11 (Award No. 245 of 1995) and Telekom Malaysia
Kawasan Utara v Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ
314).

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EVALUATION OF EVIDENCE AND FINDINGS OF COURT

32. The issues before this Court are whether the Claimant had been
constructively dismissed by the Company. If the answer is in the
affirmative, then whether the dismissal was with just cause or excuse.

33. The onus is on the Claimant to prove that he was constructively

dismissed by the Company. Support for this proposition is found in the
case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor
[1998] 1 LNS 258; [1998] 7 MLJ 359 at p. 363 where Abdul Kadir
Sulaiman J decided as follows:

“The law is clear that if the fact of dismissal is not in dispute, the
burden is on the company to satisfy the court that such dismissal was
done with just cause or excuse. This is because, by the 1967 Act, all
dismissal is prima facie done without just cause or excuse. Therefore,
if an employer asserts otherwise the burden is on him to discharge.
However, where the fact of dismissal is in dispute, it is for the
workman to establish that he was dismissed by his employer. If
he fails, there is no onus whatsoever on the employer to establish
anything for in such a situation no dismissal has taken place and the
question of it being with just cause or excuse would not at all arise.”.
[Emphasis added]

34. It is trite law that in a constructive dismissal case, the court must
only look at the grounds stated in the constructive dismissal letter to
determine the issue before it, as was held in the case of Bayer (M) Sdn
Bhd v Anwar Abd Rahim [1996] 2 CLJ 49:

“If the employee leaves in circumstances where these conditions are

not met, he will be held to have resigned and there will be no dismissal
within the meaning of the Act. The crucial document that I must

15
 critically examine is the said letter and the reasons given therein
for him to walk away from his job claiming constructive dismissal.

Having carefully considered the reasons stated in the said letter, it

seems clear to me that the respondent is not entitled in law to walk
away from his job.”.
[Emphasis added]

35. The issues relied upon by the Claimant upon which he claimed
constructive dismissal are summarised as follows:

(a) Action taken by the Company for the past 12 months prior to
December 2011;

(b) No job scope and purported non-consensual unilateral variation

of his contract of employment pursuant to his transfer to the
Company;

(c) Performance rating for the year 2010 was amended from
“Above Average” to “Average” without his knowledge and
consensus; and

(d) Performance Appraisal for the year 2011 wherein he was rated
“Below Expectation” was unjustly done without his participation.

The Court will now address the above issues.

Action against the Claimant for the past 12 months prior to

December 2011

36. The Claimant was transferred to the Company from Amsteel Mills
16
Sdn. Bhd. with effect from 15.10.2010. The Company‟s learned counsel
submitted that the following are the purported actions by the Company
for the past 12 months prior to December 2011 that allegedly led to the
Claimant‟s allegation that he was constructively dismissed:

(a) Letter of Explanation dated 10.12.2010 [COB-1 p. 22 to 25]

from Amsteel Mills Sdn. Bhd. signed by COW-4 to the
Claimant;

(b) Warning Letter dated 03.01.2011 [COB-1 p. 26 to 27] from

Amsteel Mills Sdn. Bhd. signed by COW-4 to the Claimant;

(c) Show Cause Letter dated 19.01.2011 [COB-1 p. 28 to 29] from

Amsteel Mills Sdn. Bhd. signed by Mr. M. Selvaraju, Senior
Manager Industrial Relations to the Claimant;

(d) Show Cause Letter - Deferment of Increment dated 17.02.2011

[COB-1 p. 30] signed by COW-3 to the Claimant;

(e) Show Cause Letter dated 08.07.2011 [COB-1p. 31 to 33]

signed by COW-4 to the Claimant;

(f) Final Warning Letter dated 09.08.2011 [COB-1 p. 39 to 41]

signed by COW-3 to the Claimant; and

(g) Show Cause Letter dated 25.11.2011 [COB-1 p. 49 to 51]

signed by COW-3 to the Claimant.

37. In relation to the above mentioned purported actions taken by the

Company, the evidence and testimony before this Court are as follows:

17
Letter of Explanation dated 10.12.2010 and Warning Letter dated
03.01.2011

38. The Company vide the Letter of Explanation instructed the

Claimant to provide his explanation to various misconducts that were
alleged against him while he was working at Amsteel Mills Sdn. Bhd.
from 15.06.2007 to 14.10.2010. The letter was issued by COW-4 who
was the Senior Manager HR at Amsteel Mills Sdn. Bhd. at the material
time. This letter was never revoked by the Company and the Claimant
replied vide his letter dated 16.12.2010. Pursuant to the Claimant‟s reply
the Company issued a Warning Letter dated 03.01.2011 to the Claimant.
It is undisputed that the Claimant never objected to/challenged the Letter
of Warning dated 03.01.2011.

39. Thus the Court concludes that the Claimant cannot at this hearing
challenge the contents of the Letter of Explanation/Warning Letter and
raise it as a matter of contention. Moreover this issue was never
specifically pleaded by the Claimant as a matter of contention. It is
without doubt that the Court is mindful that it is trite law that a party is
bound by its pleadings as enunciated in R Rama Chandran v The
Industrial Court of Malaysia & Anor [1997] 1 CLY 147 and more recently
in Ranjit Kaur a/p S. Gopal Singh v. Hotel Excelsior (M) Sdn. Bhd. [2010]
8 CLJ 629.

Show Cause Letter dated 19.01.2011 and Show Cause Letter-

Deferment of Increment dated 17.02.2011

40. The Claimant was instructed to explain the following allegations

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during his tenure in Amsteel Mills Sdn. Bhd:

“1. You have on 23 February, 2010 issued a Guarantee Letter for

Specialist Treatment with the Consultant Eye Specialist, Dr.
Mahendra Raj for yourself and it is alleged that you have
signed the said Guarantee Letter for Specialist Treatment for
and on behalf of Mr. Pong Chung Kuan – General Manager of
Amsteel Mills Sdn. Bhd. Banting Operations without obtaining
his consent.

2. You have on 30 September, 2010 issued a Guarantee Letter

for Specialist Treatment with the Consultant at Pantai Medical
Centre Sdn. Bhd., Bangsar for yourself and it is alleged that
you have signed the said Guarantee Letter for and on behalf of
Mr. Lim Aik Peng without obtaining his consent.”.

41. The Guarantee Letters mentioned in both the allegations above

can be referred to in COB-2 p. 6 and 12 respectively. The Claimant
admitted during cross-examination that he had signed the said
Guarantee Letters for his own treatment:

“Q: Do you agree that it is improper to give guarantee letter for

specialist treatment in your own favour?
A: Yes.”.

42. Furthermore, the Claimant admitted that he did not inform Mr.
Pong Chung Kuan – General Manager Amsteel Mills Sdn. Bhd. at the
material time, and Mr. Lim Aik Peng – Assistant General Manager
Amsteel Mills Sdn. Bhd. at the material time, that he was signing the
Guarantee Letters on their behalf. In fact Mr. Lim Aik Peng noted down
that in regards to the Guarantee Letter dated 30.09.2010, the Claimant
did not call him on the issue of the Guarantee Letter and he did not
19
agree to let the Claimant sign the said letter on his behalf. The Claimant
testified that he had forgotten to inform his superiors on the two
occasions about signing the Guarantee Letters on their behalf.

43. The Company held that the Claimant‟s conduct was a serious
breach of fiduciary duty entrusted upon him, and was further
exacerbated by the fact that the similar actions occurred on two
occasions. The Claimant agreed during cross-examination that his
actions constitute serious misconduct. Subsequently the Company
decided to defer the Claimant‟s 2011 salary increment for a period of 12
months. A Letter for Deferment of Increment dated 17.01.2011 [COB-1 p.
30] signed by the COW-3 was issued to the Claimant.

44. The Court concludes that it was highly improper for the Claimant to
sign his own Guarantee Letter. The Company‟s actions in respect
thereto are justified as it constitutes serious misconduct.

Show Cause Letter dated 08.07.2011 and Final Warning Letter dated
09.08.2011

45. The Claimant was issued a Show Cause Letter wherein he was
alleged to have committed the following misconducts:

“1) That you being the Assistant Manager – Human Resource with
Lion Waterway Logistics Sdn. Bhd entrusted to safeguard and
comply with Human Resources policies and procedure of the
Company, failed to carry out your duties and responsibilities as
follows:-

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a) You have failed to comply with the Company‟s Human
Resource policies & procedures relating to leave application
process, in that:-

i) You have failed to submit your Medical Certificates for

medical leave taken to your superior Captain Khor
Bean Tatt for endorsement up to date despite
reminders the following dates:- 6 December 2010, 30
December 2010, 31 January 2011, 14 February 2011,
16 February 2011, 4 March 2011, 23 March 2011, 15
April 2011, 10 May 2011, 11 May 2011 and 30 May
2011.

ii) You had on 13 April 2011 morning, sent a Short

Messaging Service (“SMS”) to your Superior, Captain
Khor Bean Tatt informing him that you will be taking
leave on 13 April 2011 to attend a seminar on “Strategic
Trade Act” held at Royale Bintang, Seremban, Negeri
Sembilan. You had failed to discuss and obtain prior
approval from your Superior, Captain Khor Bean Tatt
prior to attending the seminar. Leave taken for the said
seminar should not be considered as an emergency
leave.

iii) Further to item (ii) above, your said emergency leave

application on 13 April 2011 was retroactively approved
by Captain Khor Bean Tatt as Annual Leave on 18 April
2011 but you have altered and duly verified the Leave
History Maintanence Audit Trial Report indicating that
you have taken Other Paid Leave (OP Leave) instead
of Annual Leave.

iv) On 10 February 2011, you had slot in your attendance

at 8.28 am but you have failed to slot out at the end of
the day. However, you had failed to obtain approval to
justify the non-slot attendance for the said day.

b) You had on numerous occasions reported late for work or

left earlier from your work place without informing and/or
obtaining prior approval from your Superior on the following
dates:-

i) 1 June 2011 - left the office at 17.22 pm.

21
 ii) 6 June 2011 - reported for work at 10.25 am.
iii) 8 June 2011 - left the office at 17.07 pm.
iv) 15 June 2011 - reported for work at 9.40 am.
v) 20 June 2011 -reported for work at 9.37 am.

2) You had committed errors in preparing the crew salary for the
month of May 2011 by including two crews, namely Suharto who
had signed off in early May 2011 and Sel Putra Bin Murjalis who
has signed off in April 2011. In so doing, you had failed to verify
and ensure 100% accuracy of the crew list and salary payment
before submitting to your Superior for approval per your Key
Results Area (KRA). You had repeatedly committed similar
errors despite a warning dated 21 April 2010.

3) You had failed to track and/or feedback to your Superior, Captain

Khor on the compliance of crew/ seaman‟s requirements i.e
medical checkup per your Key Results Area (KRA) despite
numerous reminders by Captain Khor Bean Tatt.

4) You had on 19 April 2011 committed but failed to make

arrangements for the opening of bank accounts for the crew
members during low peak operations period.”.

46. In relation to misconduct 1(a)(i) above, COW-4 in evidence stated

that Captain Khor (the Claimant‟s immediate superior) had informed her
that the Claimant had failed to obtain his endorsement for medical
certificates despite numerous reminders by Captain Khor to do so. The
reason for the endorsement was because the Claimant had taken
numerous medical certificates from various clinics in Seremban [COB-1
p. 34]. Pursuant to this, COW-4 issued an e-mail dated 02.04.2011
[COB-2 p. 18] wherein the Claimant was asked to submit all of his
medical certificates to Captain Khor for his endorsement.

47. The Claimant admitted in evidence that he had failed to get

Captain Khor‟s endorsement for all his previous medical certificates. In
his defence the Claimant stated that he had submitted the medical

22
certificates file to Captain Khor and after 3 days the file was returned to
CLW-2. The Court agrees with the Company‟s contention that this
defence is inadequate because the Claimant should have followed up to
request Captain Khor to endorse all of the medical certificates as
instructed by COW-4.

48. Unfortunately CLW-2 in her evidence impliedly viewed the practice

of endorsement of medical certificates by the immediate superior as a
mere formality that can be dispensed with. She stated that once the
medical certificate is received by her, it is Company‟s practice wherein
she will key the medical certificate into system without even waiting for
the immediate superior‟s endorsement. The Claimant testified that
medical certificates can be keyed into the system without the superior‟s
endorsement because salary payroll must be quickly completed for
payment of staff‟s salary.

49. The Court finds that the endorsement of medical certificates by an

employee‟s superior is an important HR procedure and policy that must
be complied with in order to serve as a check and balance to avoid the
rampant abuse of medical certificates by employees. The Claimant as an
Assistant Manager HR should have been very aware of the requirement
for his immediate superior to endorse his medical certificates and should
have taken immediate measures to ensure due compliance with the
Company‟s HR procedures and policies in respect thereto.

50. In relation to misconduct 1(a)(ii) and (iii), the Claimant failed to

obtain prior written approval from Captain Khor to attend a seminar
entitled “Strategic Trade Act” on 13.04.2011 which Captain Khor
confirmed had nothing to do with the Claimant‟s functions as Assistant
23
Manager HR. COW-4 in evidence stated that Captain Khor informed her
that the Claimant attended the seminar without even discussing the
matter with him. The Claimant agreed in his testimony that he must
obtain prior written approval from his immediate superior to attend the
seminar as follows:

“Q: Did you get prior approval from Captain Khor to attend the
seminar?
A: No.

Q: After attending the seminar, you recorded your absence as

“other paid leave” instead of “annual leave”?
A: Yes.

Q: Is it not true that Capt. Khor allowed your absence as “annual

leave” and not “other paid leave”?
A: No.

Q: You changed it to “other paid leave” without Capt. Khor‟s

approval?
A: No.

…
Q: Who notified staff to key in this leave as “other paid leave”?
A: Staff are trained to do it without being told by anyone. If attend
a seminar, it will be keyed in as “other paid leave”.

Q: Do you have written approval from Capt. Khor for you to attend
the seminar?
A: No written approval from Capt. Khor.

24
 Q: For attendance of seminar, would you have to get prior written
approval of superior to attend seminar?
A: Yes.”.

51. Subsequently the Claimant‟s emergency leave application on

13.04.2011 was retroactively approved by Captain Khor as “Annual
Leave”. However the Claimant had wrongly declared in his leave
application on his absence on 13.04.2011 as “Other Paid Leave” instead
of “Annual Leave”. Evidence in this regards was submitted to the Court
at COB-2 p. 16. The Claimant in evidence alleged that if an employee
attends a seminar, the staff was trained to key in the leave as “Other
Paid Leave” instead of “Annual Leave”. On the other hand the Company
in evidence affirmed that “Official Paid Leave” is meant for official
Company business only. The Company submitted that the Claimant had
made an inaccurate declaration as the training programme had no
relevance to the Company‟s business and thus did not constitute “Other
Paid Leave”. The Claimant was subsequently informed that the “Other
Paid Leave” as declared by him will be reverted to “Annual Leave”. This
was unchallenged by the Claimant.

52. In relation to misconduct 1(a)(iv), the Claimant himself admitted

that he forgot to slot out on 10.02.2011 as follows:

“Q: Refer to page 32 COB-1 item 1(a) (iv). Can you confirm you
did not slot out on 10 February 2011?
A: I forgot to slot out.

Q: As Head of HR, it is important to slot in and out for attendance.

Do you agree?
A: Yes.

25
 Q: When you failed to slot out, there is no record as to whether
you worked on that day?
A: Disagree.

Q: I am suggesting to you that you as HR Manager should have

known importance of slotting out?
A: Agree.”.

53. The Company asserted that the Claimant should have signed out
using his punch card to capture his „in & out” time, or ask the Security
Guard to sign for his attendance as had been advised when he
encountered a similar incident in January 2011. Nevertheless in this
instance the Claimant‟s salary for that day has been deducted and he
has been punished for this misconduct. This fact has not been disputed
by the Company.

54. In relation to misconduct 1(b), the Claimant acknowledged that he

was late for work or left the office earlier than scheduled on those days
mentioned in the Show Cause Letter. The Claimant in evidence admitted
that he did not get Captain Khor‟s permission for being late for work or
for leaving early as Captain Khor was not around. During Captain Khor‟s
absence the Claimant informed COW-2 who stood in during Captain
Khor‟s absence, and Mr. Lee Tee Hooi who stood in during COW-2‟s
absence. It was the Company‟s unchallenged testimony that COW-2 and
Mr. Lee Tee Hooi do not have authority to approve the Claimant‟s
movements. Furthermore the Claimant admitted that he never informed
Captain Khor before or after the said events, and consequently did not
get his approval or permission albeit retroactively, for being late for work
or for leaving early.

26
55. In relation to misconduct (2), Captain Khor vide e-mail dated
20.06.2011 [COB-2 p. 19] informed COW-4 that the Claimant failed to
check and verify the crew‟s salary for the month of May 2011 resulting in
two crewmen who had signed off being included in the salary calculation.
In the e-mail, Captain Khor stated that “He (Claimant) does not even
know who is on board and who isn‟t, this is a clear failure of his position
as HR….”.

56. The Claimant as the person handling the HR function‟s in the

Company and as explicitly stated in his KRA, has to ensure that the
details in the payroll are 100% accurate to reflect the employees in the
Company at that material time. The Claimant had testified as follows:-

“Q: As HR Manager you must ensure 100% accuracy of salary

payments. Do you agree?
A: Yes.
…
Q: Do you agree that the function of ensuring 100 % accuracy of
salary payrolls is an important function of HR Manager?
A: Yes.”.

57. The Claimant in defence stated that he was not informed by the
Operations team of the fact that the two crewmen concerned had signed
off in April 2011 and May 2011 respectively. This defence was not
accepted by the Company because as Assistant Manager HR the
Claimant ought to have verified and confirmed the payroll for May 2011
before he submitted it for approval of his immediate superior. In fact the
Company in its Show Cause Letter stated that the Claimant had
repeatedly committed similar errors despite a warning letter on
21.04.2010 in respect thereto.

27
58. CLW-2 in evidence stated that En. Abdul Rahman, Operations
supervisor, overlooked to inform the HR Department that the 2 crewmen
had signed off. He only realized this fact when the payment of salaries
was released. Be that as it may, the Court finds CLW-2‟s evidence
misleading as one of the crewmen had signed off in April 2011, yet his
name still appeared in the May 2011 payroll. This fact would have been
within the knowledge of the Claimant/CLW-2 as it would have been
recorded that the crewman concerned had already signed off in April
2011 when the payroll for April 2011 was processed. The Claimant
should have confirmed with the Operations team the accuracy of the
payroll before submitting it for approval of his immediate superior, rather
than saying that this thing occurred in the past and it is nothing new. It is
definitely not something that his immediate superior is amused by as
evident from his e-mail to COW-4 and speaks volumes about the
Claimant‟s efficiency. Furthermore this incident has happened before
and the Claimant should have taken the initiative to come up with a
procedure to avoid its repetitive occurrence.

59. The Court also finds the credibility of CLW-2 is in doubt. She was
the Claimant‟s subordinate who was also involved in the preparation of
the payroll and has since left the Company. Her evidence that before
processing payment she will call the Operations team (En. Mohd Faizal/
En. Abdul Rahman) to update HR of crew sign off is dubious as it is
apparent that there was no such update as the name of the crewman
who had signed off in April 2011 still appeared in the May 2011 payroll.
In fact, the Claimant had indicated to the Court that he intended to call
En. Mohd Faizal, the Executive for Operations as his witness, but
ultimately failed to do so.

28
60. In relation to misconduct (3), it is an expressed duty of the
Claimant to track the compliance of crewmen in relation to their medical
checkup. This is specifically provided for in the KRA for the Claimant
dated 15.10.2010 on p. 14 – 14 A of COB -2 wherein on p. 14A under
item E the following has been explicitly stated:

“E. Human Resource Administration

1. Tracking the compliance of crew/seaman‟s requirement
i.e Certificate of Recognition, Certificate of Proficiency
(marine certificate), medical check up, passport validity,
duration of crew agreement etc.”.
[Emphasis added]

61. The Claimant confirmed that the KRA was issued to him by COW-4
on 03.11.2010. The Claimant did not produce any documentary evidence
that he objected to this KRA to his immediate superior or COW-4. In fact
the KRA has been reviewed by COW-3 and Captain Khor. The Claimant
did not request for any clarification in respect of the KRA although he
was invited to do so by COW-4 vide e-mail dated 03.11.2010. The Court
agrees with the Company‟s submission that there is no reason for the
Claimant‟s failure to comply with this explicit item in his KRA wherein the
issue of medical examination is under the purview and responsibility of
the Claimant. In addition the Claimant did not provide any evidence to
disprove this allegation of misconduct.

62. In relation to misconduct 4, the Claimant agreed that it was an

important function to ensure bank accounts are opened for seamen
when he testified as follows:-

29
 “Q: Would you agree that bank account is important to be opened
to credit payment of salaries to seamen?
A: Yes.

Q: It is incumbent upon you to ensure that bank accounts are

opened for the seamen?
A: Yes.”.

63. The e-mail from En. Shahrulfazli, Manager (Crew/HR) dated

19.04.2011 [COB-2 p.17] confirmed the fact that the opening of bank
accounts for crewmen is under the purview of the Claimant wherein vide
this e-mail the Claimant was required to come up with a plan on how to
go about taking the crewmen for opening of bank accounts (logistics,
transportation etc). The Company did not accept the Claimant‟s
explanation that he was unable to make arrangements to open the bank
accounts for the crewmen because it was high peak period. The
Company opined that he failed to take the initiative and necessary
actions to get the crewmen‟s bank accounts opened during periods
outside the high peak period. As suggested by En. Shahrulfazli the
Claimant should have for this purpose considered the viability of the
option of an open schedule.

64. Subsequently the Company issued a Final Warning Letter dated

09.08.2011 to the Claimant. The Claimant‟s learned counsel submitted
that the issuance of the Final Warning Letter was against the consensus
reached between the parties at the Question and Answer session,
namely to move forward and to move on. By this the Claimant‟s learned
counsel implied that the Company agreed that the matter of the
misconducts stated in the Show Cause Letter dated 08.07.2011 will not
be pursued further and thus the Company should not have issued the

30
Final Warning Letter. Based on evidence, the Question and Answer
session was convened by COW-1 on 03.08.2011 to provide an avenue
for the Claimant to clarify with Captain Khor and COW-4 on issues in
relation to the Show Cause Letter dated 08.07.2011. In this regards the
Court was informed that the Question and Answer session proceeded as
scheduled wherein the Claimant, COW-1, COW-4 and Captain Khor
were present. COW-1 in evidence stated that the Question and Answer
session on 03.08.2011 was not meant to adjudicate/respond to the
misconducts leveled against the Claimant as set out in the Show Cause
Letter. COW-1 also testified that he had never informed the Claimant
during the Question and Answer session that he would carry out
investigations into the misconducts as set out in the Show Cause Letter.

65. On the outcome of the Question and Answer session COW-1

stated as follows:

“Q: How did the meeting end, was there a resolution?

A: As I recollect, it started good, both parties clarifying issues. I
was following through until it came to point where voices were
raised, things not looking good, emotions flaring up from both
parties. I reclarified intention of Q/A session and allowed
Claimant to speak further and at that time it appeared a venting
of emotions/frustrations. Session lasted about 3 hours and at
end Claimant said he was not happy with whole session and
walked out.
No resolution to the objective of meeting.To my surprise
following day (4/8/2011) Claimant sent e-mail thanking all of us
for giving him opportunity to clarify show cause issues and said
that we all should move forward.

Q: What was Ms. Kwa/Captain Khor‟s response after Q/A

session?
31
 A: Opportunity for Claimant to clarify issues. Claimant should
allow Ms. Kwa/Captain Khor to explain why Show Cause
Letter issued and raised therein.”.

66. However the Claimant vide his e-mail to COW -4 and Captain Khor
the very next day on 04.08.2011 [COB-2 p.20] thanked both COW-4 and
Captain Khor for their views and thoughts. In fact it is important to
reproduce the Claimant‟s e-mail as follows:

“Dear Capt. and Ms. Kwa

I would like to thank you for sharing your views and thoughts
on the above meeting yesterday, it’s a good meeting and a
opportunity to thrash out things, nothing personal. I would
like to take it positively and move forward and enchance on the
feedback given by you Capt.

Ms. Kwa – I look forward to work together with you and

move forward to build a better working relationship.

Mr. Vasu – Thank you for initiating and facilitating this

meeting.
[Emphasis added]

67. COW-1 in his testimony stated that after the Question and Answer
session there was a consensus to move on. Does the intention “to move
on” mean that the Company will not pursue the matter in the Show
Cause Letter dated 08.07.2011 and subsequently not issue the Final
Warning Letter? Was such intention merely COW-1‟s perception or was
it agreed amongst all parties including COW-3 and COW-4? The
Claimant‟s learned counsel did not clarify the issue with COW-3 and
COW-4 during his cross-examination. The Court is unclear of the
intention of there being a “consensus to move on” and more importantly

32
was there in fact such an intention amongst all parties concerned. As
stated by COW-1, the Claimant was unhappy with the Question and
Answer session and he walked out. He subsequently did an about turn
after the Question and Answer session when he issued the e-mails the
following day to Capt Khor and COW-4 thanking both of them for their
views and thoughts. What was his intention to do so is anyone‟s guess
but it can be inferred that it was most likely to persuade the Company to
proceed no further with the Show Cause Letter. However when the Final
Warning Letter was issued by COW-3 the Claimant was very unhappy
and protested vehemently. He even accused COW-1 of being one-sided
and totally bias.

68. Upon considering the totality of evidence thus far the Court finds
that the Company had duly taken into consideration the Claimant‟s
clarification in regards to the misconducts leveled against him in the
Show Cause Letter dated 08.07.2011. Based on the facts as discussed
above, the Court agrees that the Company had succeeded in proving all
the Claimant‟s misconducts with the exception of misconduct 1(a)(iv).
Notwithstanding this, the Court is satisfied that based on the totality of
evidence tendered the Company was justified in issuing the Final
Warning Letter to the Claimant.

Show Cause Letter dated 25.11.2011

69. The Company vide Show Cause Letter dated 25.11.2011 instructed
the Claimant to provide his written explanation to the following:

33
 “Key Results Area (KRA)

With reference to the Key Results Area (KRA) which was prepared
and discussed with you and acknowledged by you on 24 August 2011
in the presence of Captain Khor, Mr Wong Wing Kiong, Mr Lee Tee
Hooi and Ms Kwa Seok Leng, you have failed to comply with the
specific instruction to submit your Action Plan to your superior by the
extended date line of 26 September 2011. Even as of today, you
have not submitted the same.

Instead of addressing the KRA, Action Plan and HR issues that led to
the issuance of the Final Warning, you have chosen to hurl serious
accusations such as victimization and witch hunting against a senior
officer of the Company, namely, Ms. Kwa Seok Leng, GM – HR,
which is evident in your letter dated 7 October 2011.

Performance Appraisal Review (PAR)

Your performance for year 2011 has been appraised as „Below

Average‟ which is disappointing. Your comments on the PAR has
been considered and found to be fault finding on technicalities
without reference to any specific area of your performance vis-à-vis
KRA.

As an HR personnel with several years of experience, entrusted with

the overseeing of HR functions and being custodian of HR Policies
and Procedures, you have regrettably failed to observe such policies
with due diligence since 2008.

Taken in totality, the Management is of the view that the foregoing,

including your “Below Average” performance for 2011, coupled with
an attitude of defiance undermining the very basis of employer-
employee relationship, constitutes a serious misconduct.”.

70. According to COW-2 the KRA 2011 was personally given to the
Claimant by Captain Khor during a meeting on 24.08.2011 at 3.30pm in
the presence of COW-4, COW-2 and Mr. Lee Tee Hooi. The KRA

34
received by the Claimant can be referred to in p. 24 to 30 of COB -2. The
Claimant confirmed that he acknowledged the KRA 2011 and that his
hand writing appears in p. 24 COB -2 (bottom right) as follows:

“Signed with some comments. Mr. Wong & Mr. Lee and myself we go
through KRAs. Some clarifications in a few items.”.

71. In furtherance a copy of the KRA 2011 was provided to the

Claimant by COW-4 vide her e-mail dated 24.08.2011 [COB-2 p. 21-22].
The Claimant acknowledged receiving the e-mail during his testimony. In
the said e-mail, COW-4 confirmed that a meeting had taken place on
24.08.2011 in the presence of the Claimant, Captain Khor, COW-2,
COW-4 and Mr. Lee Tee Hooi during which the KRA 2011 was discussed
and the Claimant requested for one day to go through the KRA 2011 and
seek clarification if any from Captain Khor, COW-2 or Mr. Lee Tee Hooi
by 25.08.2011. COW-4 then instructed the Claimant to acknowledge
receipt of the original copy of the KRA by 25.08.2011. He was also
instructed to complete the Action Plan portion of the KRA and submit it to
COW-2 by 08.09.2011.

72. The Claimant confirmed that he had not asked for any comments
or sought further clarification nor did he submit his Action Plan as
requested when he testified as follows:

“Q: Is there anywhere you have put comments on the KRA 2011?
A: No.
…
Q: For KRA 2011, you had not asked for any clarification?
A: Agreed.

35
 …
Q: In relation to page 24 to 30 of COB (KRA 2011), can you
confirm you never submitted any Action Plan?
A: Yes.”.

73. The Claimant in evidence could not state specifically the items in
KRA 2011 that he needed further clarification. Despite the Claimant
stating that he would require some clarification on a few items in the
KRA 2011, COW–2 confirmed during his testimony that the Claimant
never sought any clarification with regards to the KRA 2011 from him.

74. In fact the Claimant complained to COW-3 vide letter dated

25.08.2011 [CLB-2 p. 23] that the KRA 2011 was not set based on a two
way communication and participation. However COW-3 in his reply
dated 05.09.2011 [COB-1 p. 42] clearly stated that most of the items in
the KRA 2011 are within his capability and scope as an experienced HR
professional to deliver. However he instructed the Claimant to revert to
COW-4 and COW-2 on both his KRA concerns and KRA Action Plan by
08.09.2011. If the Claimant failed to do so, the Company will deem that
he has no specific disagreement and he will be expected to fulfill the
KRA 2011 set.

75. Thereafter, COW-3 vide letter dated 5.09.2011 [COB-2 p. 42]

once again reminded the Claimant to provide his Action Plan as
instructed earlier. Despite this the Claimant failed to respond. The
Claimant was given a further extension of time to submit his Action Plan
for the KRA 2011 until 26.09.2011 as per e-mail dated 21.09.2011
(9.36am) [COB-2 p. 21] from COW-4 as the Claimant was on medical
leave until 14.09.2011.

36
76. However, despite providing the Claimant ample opportunity to
submit his Action Plan for the KRA 2011 the Claimant failed to do so as
confirmed by COW-2 in his testimony. The Claimant alleged that a „new
KRA‟ was purportedly being formulated with Mr. Lee Tee Hooi and COW-
2. COW-2 in evidence specifically denied this and stated as follows:

“Q: Did you inform the Claimant that you would formulate a new set
of KRA with the Claimant?
A: No, I never promised the Claimant that a new set of KRAs
would be formulated for the Claimant to replace the KRA on
pages 24 to 30 of COB-2. The KRA on pages 24 to 30 of COB-
2 are the KRA which is applicable to the Claimant.”.

77. Furthermore, the Claimant failed to call Mr. Lee Tee Hooi as a
witness in support of his contention. In fact the Claimant had testified as
follows:

“Q: Have you written any letter to the Company informing them that
Mr. Lee told you to disregard the KRA and new KRA will be
worked out?
A: No.”.

78. If in fact there was a „new KRA‟ being formulated as alleged by

the Claimant, he did not provide any documentary evidence to that
effect. He only made bare assertions as contained in his letter dated
19.12.2011 [COB-1 p. 52-54].

79. Thus it is apparent that the Claimant had willfully refused to comply
with the KRA 2011 given to him on 24.08.2011. He put forth the excuse
that a new KRA was being formulated and outwardly pronounced that he
has no clear direction of his job. I find this totally irresponsible and
37
preposterous as the KRA 2010 which he complied with, is similar to the
KRA 2011. Furthermore based on the Claimant‟s allegation that he has
no clear direction of his job, he implies that as from August 2011 to
December 2011 he was paid by the Company for the performance of
literally no work. This clearly indicates his poor work attitude and
obdurate behaviour of blatantly refusing to comply with the KRA 2011
given to him on 24.08.2011 which COW-2 (his immediate superior at the
material time who took over from Captain Khor) confirmed was the
Claimant‟s KRA for 2011. Further in complete disregard to his superior‟s
orders, the Claimant failed to complete the Action Plan section in the
KRA 2011 and submit it to COW-2 despite being given several
extensions of time to do so.

80. The Court concludes that the Claimant had willfully raised issues in
regards the KRA 2011 and thereafter failed to submit the Action Plan for
the KRA 2011 despite being given extensions of time to do so. The
Company was justified in ensuring the Claimant complied with the
submission of the Action Plan for the KRA 2011 as this was a legitimate
expectation of the Company in ensuring that the Claimant‟s job functions
are carried out effectively and expeditiously. This in no terms amounts to
mala fide actuated action by the Company as alleged by the Claimant.

81. From the foregoing, the Court finds that the Company had acted
reasonably in the present matter in issuing show cause letters, warning
letters and Final Warning Letter to the Claimant. The show cause letters
provided an avenue for the Company to investigate the allegations of
misconduct leveled against the Claimant and in turn granted an
opportunity for the Claimant to respond and put forth his explanation in
regards the issues raised in the said letters for the Company‟s
38
consideration. It is trite law that the issuance of such show cause letters
would not amount to a fundamental breach of the employment contract
which would amount to a constructive dismissal. In the case of Rudy
Darius Ogou v Ming Court Hotel (Kuala Lumpur) [2000] 1 LNS 147, the
High Court affirmed the decision of the Industrial Court which held that
the employer has the prerogative to suspend and issue show cause
letters:

“The issuance of the show cause letter was part and parcel of the
investigation, and it also gave him an opportunity to explain the
alleged misconduct for alleged breach of the House Rule and I
cannot understand how it could have constituted an act of
victimisation. The show cause letter cannot amount to a fundamental
breach of the contract of employment.”.
[Emphasis added]

82. The aforesaid case is applied in the case of Selvarajah

Thiruchelvam v Samsung Electronics Display (M) Sdn Bhd [2013] 2 LNS
1497, whereby one of the reasons relied upon by the former employee
for the constructive dismissal claim was the issuance of the show cause
letters:

“One of the reasons for the Claimant's claim of constructive dismissal

was the show cause letters issued to him. However, during cross-
examination he agreed that a show cause letter is an employer
seeking explanation and that an employer has a right to seek
explanation from its employee.

On whether the issuance of a show cause letter can constitute an act

of victimization or amount to a fundamental breach of the contract of
employment, KC Vohrah J. in Rudy Darius Ogou v. Ming Court Hotel
(Kuala Lumpur) [2000] 1 LNS 147 (High Court) [Usul Pemula No: R1-
25-149-98] said:

39
 „The issuance of the show cause letter was part and parcel of the
investigation, and it also gave him an opportunity to explain the
alleged misconduct or alleged breach of the House Rule and I
cannot understand how it could have constituted an act of
victimization. The show cause letter cannot amount to a
fundamental breach of the contract of employment.‟.

In view of that, I find that the Company has basis in issuing the three
show cause letters to the Claimant and the issuance of the three
show cause letters cannot constitute an act of victimization by the
Company nor can it amount to a fundamental breach of the
Claimant's contract of employment.”.
[Emphasis added]

83. Furthermore the Final Warning Letter was issued with the intention
of bringing to the Claimant‟s attention his misconducts in the hope that
he will improve his performance as well as positively affirm a change in
his work ethics and duly perform in compliance with the legitimate
expectations of the Company. The Court finds that by the issuance of the
show cause letters, warning letters and Final Warning Letter the
Company did not commit a fundamental breach of the Claimant‟s
contract of employment.

Purported unilateral variation of his Contract of Employment by the

Company

84. The Claimant in his letter claiming constructive dismissal, has

failed to provide any details of this allegation, and merely stated that
there was no specific job scope given to him during the transfer and a
non-consensual unilateral variation of his contract of employment by the
40
Company. However when he was questioned on the details of the “non
consensual unilateral variation of his contract of employment” the
Claimant answered as follows:

“Q: What do you mean by unilateral variation of contract?

A: When the Senior Crew Manager (En. Shahrulfazli) had left
(2011) and I was asked to take over crew management.”.

85. Upon the Claimant‟s transfer to the Company on 15.10.2010,

COW-4 confirmed that the Claimant‟s job scope was contained in the
KRA 2010 [COB-2 p. 14-14A] and KRA 2011 [COB-2 p. 24-30]. It is the
unchallenged evidence of COW-4 that the KRA is part of the Claimant‟s
job scope. The KRA is the target to be achieved and it elaborates what
the Claimant should do and is more focused than the job scope.
However COW-4 admitted that the job scope of the Claimant was not in
the Bundle of Documents before the Court. Although the Claimant‟s
learned counsel submitted that the job scope is a crucial document in
the Claimant‟s employment, yet he did not pursue to request COW-4 to
produce the job scope for the purposes of the hearing. He merely
assumed that the Claimant did not have a job scope. As the Claimant‟s
learned counsel in his submissions affirmed that the KRA was sourced
from the job scope this concurs with the fact that the Claimant did in fact
have a specific job scope.

86. Crew management is an area specifically provided for which is

under the Claimant‟s responsibility as can be seen in the Claimant‟s KRA
2010. Under the KRA 2010 it is clear that amongst others the following
were the Claimant‟s job scope:

41
 “B. Performance Management
1. To monitor crew performance by working closely with
superintendent. Ensure proper tracking of performance
record for further management i.e retain/reward good
performer and to manage out bad performer.
…….
E. Human Resources Administration
1. Tracking the compliance of crew/seaman‟s requirement i.e
Certificate of Recognition, Certificate of Proficiency (marine
certificate), medical checkup, passport validity, duration of
crew agreement etc.

2. Coordinate updating the records of all officers / crew in

current employment and co-ordinate forward planning of
relief/joining officers / crew.”.

87. A similar provision is contained in KRA 2011. The Claimant agreed

during his testimony that the said KRA 2010 and KRA 2011 contained
crew functions when he testified as follows:

“Q: Handling of crew functions in your KRA 2010/2011?

A: It was put in but I did not agree.”.

88. There was no evidence before this Court that the Claimant
objected to the KRA 2010 which had been forwarded to him in
03.11.2010, nor the KRA 2011 that was handed over to him on
24.08.2011. Furthermore despite receiving the KRA 2010 and KRA
2011, the Claimant failed to raise any comments, clarifications or
objections to the respective KRA‟s to his superiors despite him saying
that he purportedly objected to the KRA‟s. In particular no objections
were raised by him on the aspect of handling crew functions.
Furthermore in the Show Cause Letter dated 08.07.2011, misconducts 2,
3 and 4 related to crew management. The Claimant is his response did
42
not deny that these functions were within his job scope and
responsibility. He in fact responded in regards his actions concerning
these misconducts. Thus it can be inferred that the Claimant viewed
crew management as part of his job scope and KRA.

89. The Court concludes that the Claimant‟s contention that no job
description was given to him when he was transferred to the Company
on 15.10.2010 is completely false as the KRA 2010 and KRA 2011 had
set out clearly his main duties and responsibilities. If the Claimant‟s
contention was true that he was not provided a job description when he
was transferred to the Company, then why did he keep quiet until he
pleaded constructive dismissal more than 1 year later. The question then
arises as to what was the Claimant doing in the Company for more than
one year if he deemed himself to be unaware of what he was supposed
to do and yet continued to earn a salary during the said period. He
impliedly is telling this Court to believe his misconceived and naïve
notion that he did not carry out any functions because he was unaware
of his duties and responsibilities and in the process was paid for doing
nothing!

90. The Court finds that the Claimant was provided with a job scope
that was reflected in the KRA 2010 and KRA 2011 and there was no
proof of any non-consensual unilateral variation of his contract of
employment by the Company. The Court thus finds that the Company did
not commit a fundamental breach of the Claimant‟s contract of
employment.

43
Amendment to the Claimant’s performance rating for the year 2010

91. The Claimant in his claim for constructive dismissal had alleged
that his performance rating for the year 2010 was revised from “Above
Average (AA)” to “Average (AV)” without his knowledge and consensus
as it already had been appraised and approved by his superiors. This
resulted in a reduction of the bonus from the actual amount due to him.

92. COW-3 as the Director of Group Human Resources for the whole
Lion Group of Companies had testified as follows in his Witness
Statement (COWS-3) with regards to the Bonus Planning 2010 for
bonuses and annual packages (“Bonus Planning 2010”) [CLB-2 p.22]:

“Q: Could you please refer to page 22 of CLB-2 and explain what
document this is?
A: This is the Bonus Planning for the year 2010.

Q: Could you please explain to the Court the Claimant‟s

appraisal for the year 2010?
A: The Claimant was appraised at the operating unit level which
meant that he was appraised internally in the Company. The
Claimant‟s appraisal at the operating unit level was conducted
on 26th November 2011 as can be seen by the date of the
signatures on the bottom left of the Bonus Planning 2010
document. The Claimant was given the rating of “AA” which
meant Above Average.

All Bonus Planning prepared at the operating unit levels

which include those done by the Company would be sent to
Lion Group for processing for bonus payment which is done
the following year. As such the Company‟s Bonus Planning
for 2010 was sent to Lion Group for processing. During the
processing, we would take into consideration budget and any
44
 performance issues with regards to individual employees.
We were of the view that as a result of the show cause letters
and warning letters issued to the Claimant and unsatisfactory
response and improvement thereafter, we had decided re-
adjust the Claimant‟s rating from above average to average.

Q: Are the performance ratings given by the companies under

the Lion Group final?
A: No, the performance ratings by the companies under the Lion
Group are not final and subject to review at the Group level
and subsequently by Lion Group‟s top management.

Q: Do you have the authority to review the performance ratings

conducted by the Companies under the Lion Group?
A: Yes, by virtue of my position as the Group functional head of
HR and in consultation with Ms Kwa Seok Leng (COW-4)
and the Claimant‟s Line Managers, I have the authority to
review the performance ratings and my signature on the
Bonus Planning 2010 can be seen on the far right dated 4 th
January 2011.”.

93. Further during cross-examination COW-3 testified as follows:

“Q: Refer to Question 25 of your witness statement, your authority

on review performance ratings of Claimant would be based on
recommendation by Ms. Kwa?
A: Based on recommendation by Ms. Kwa (COW-4) to myself and
discussions with Claimant‟s line manager. I am functional Head
of HR for the entire group, and in that capacity I look into
performance of all HR Executives and above throughout the
Group.

Q: In case of Claimant, your function of you looking into

Claimant‟s performance is based on Ms. Kwa‟s
recommendation as far as i.e. rating is concerned.

45
 A: I wouldn‟t say it is solely based on Ms. Kwa‟s
recommendations. I will look into the evidence that is furnished
by Ms. Kwa in particular relating to performance of Claimant in
preceding months.

Q: Refer to CLB – 2 page 22, The points in Bonus Planning

column was amended by Ms. Kwa and endorsed by you. I
suggest to you that remarking was not done by line manager or
in consultation with him?
A: What you see in p. 22 is Bonus Planning Template. All
operating companies submit the Bonus Planning Template to
Group Policy (sometimes called Compensation and Benefits).
The reason to do this is actually part of moderation exercise to
ascertain whether bonus proposals are within the prescribed
budget. This process is handled at Group level by Group Policy
of which Ms. Kwa is Head of Group Policy. All proposals for
bonus from operating companies are presented to Lion Top
Management for discussion and final approval. In this instance,
I would like to confirm that Group Policy being custodian of
process is able to recommend and propose changes to bonus
proposal for operating companies.

Q: I put it to you that such method is arbitrary.

A: Disagree. As mentioned to you previously there has been
discussion between me and Ms. Kwa based on my role as
Functional Head of HR.”.

94. The Bonus Planning 2010 had been prepared at the Operating
Unit (OPU) level in the Company. Thereafter, the completed version of
the Bonus Planning 2010 for the Company is submitted to Group Policy.
COW-4 as the Head of Group Policy is thereafter allowed to recommend
and propose changes to the Bonus Planning 2010.

46
95. Therefore, the Company‟s learned counsel submitted that the
Bonus Planning 2010 which was submitted by the Company to the
Group Policy was not final and subject to change by Group Policy. In
fact it can be seen on the Bonus Planning 2010 template in page 22
CLB-2 that there were amendments to all the bonuses and annual
packages of all the employees listed therein and not only the Claimant.

96. The amendments to the Claimant‟s performance ratings were done

by both COW-3 and COW-4. COW-4 had testified in Court that the
Claimant‟s performance rating was amended from „Above Average‟ to
„Average‟ pursuant to the Warning Letter dated 03.01.2011 that was
issued to the Claimant. In this regards the Company‟s learned counsel
submitted that in the Bonus Planning 2010 template, the signature of
COW-3 was appended on 04.01.2011 (that is after the Warning Letter
dated 03.01.2011) and therefore there was reasonable justification for
the Claimant‟s re-rating by COW-3. Furthermore the Court takes notice
that the Claimant was issued show cause letters and warning letters in
2010, all of which reflected unfavourably on his performance.

97. The Bonus Planning 2010 template was thereafter presented by

Group Policy and COW-3 for approval to the Group Personnel
Management Committee chaired by Group Chairman Tan Sri William
Cheng. The final Bonus Planning 2010 template was approved by Tan
Sri Albert Cheng, Group Executive director.

98. In addition, the Claimant had relied upon his reduction of bonus
payment for the year 2010 as a basis for claiming constructive dismissal
as follows:

47
 “This result in the reduction of the Bonus from the actual amount due
to me, which I discovered during the final pay out bonus template to
my surprise.”.

99. The Company‟s learned counsel submitted that amendment to the

performance rating in the Bonus Planning 2010 which resulted in the
Claimant obtaining a lower bonus payment for the year 2010 can never
amount to a fundamental breach of the Claimant‟s contract of
employment because bonus payments are not contractual entitlements
of the Claimant. It is within the Company‟s prerogative to award bonus
payment to its staff. In fact it can be seen on the Bonus Planning 2010
template that there were amendments to all the bonuses and annual
packages of all the employees stated therein and not only the Claimant.
There was no evidence that COW-4 and COW-3 had singled out the
Claimant to ensure that he gets a lower bonus payment. The changes to
the bonus payments to the Claimant by the Company was justified
based on his performance and thus cannot be construed as a
fundamental breach of the Claimant‟s contract of employment.

100. Furthermore the Claimant knew that his performance rating was
amended in January 2011 or when bonus payments were paid out in
early 2011 and yet he never raised an issue over it until his letter
claiming for constructive dismissal in December 2011. This is supported
by the Claimant‟s own testimony during cross-examination as follows:

“Q: You found out about the change in Bonus rating in January
2011 [CLB-2 p. 22]?
A: Template sent to my staff, Sivanes, who subsequently informed
me maybe in January 2011.

48
 Q: Did you write any letter complaining about this decrease in
appraisal performance for 2010 to ask for clarification?
A: I did not write.”.

101. Hence the Company submitted that raising this almost a year
later is merely an afterthought by the Claimant for the purposes of his
claim of constructive dismissal.

102. The Court concludes that the Company‟s re–rating of the

Claimant‟s performance in 2010 which had affected his bonus would not
amount to a fundamental breach of the Claimant‟s contract of
employment. The performance ratings in the Bonus Planning 2010 were
validly re-rated by COW-3 and COW-4 not based on any arbitrary criteria
but based on reasoned judgment attributed to the Claimant‟s
performance that warranted warnings being given to him in 2010 and
early 2011 prior to the review of performance ratings.

Claimant’s Performance Appraisal for the year 2011

103. The Claimant‟s final basis for claiming constructive dismissal was
pertaining to his Performance Appraisal for the year 2011 [COB-2 p.6-
12]. He alleged that the Performance Appraisal 2011 had been set
unilaterally and without his participation and involvement. Subsequently
he alleged that he was rated “Below Average” unjustly without his
participation by the Company.

104. The Claimant testified that the Performance Appraisal 2011 was
not conducted in accordance with guidelines for Performance Appraisal‟s

49
in the Company [CLB-1 p. 36-38]. He alleged that there must be a one-
to-one appraisal wherein there is a Joint Appraisal between the
appraiser and the appraisee. However the Claimant admitted in
evidence upon being cross-examined by the Company‟s learned counsel
that only employees below executive position are to be jointly appraised
by both the superior and subordinate.

105. It is an undisputed fact that the Claimant was holding an

executive position in the Company and therefore the concept of Joint
Appraisal did not apply to him. In fact the guidelines for Performance
Appraisal clearly provide that executives and above undergo what is
called an Open Appraisal by their superiors. This fact was admitted by
the Claimant in evidence.

106. COW-2 in his testimony explained the concept of Open

Appraisal:

“Q: Please explain how was the Performance Appraisal

conducted?
A: Based on the Performance Management Process (Staff
Engagement) on pages 31 to 33 of COB-2, the Claimant was
appraised based on an Open Appraisal concept.

An Open Appraisal concept meant that the particular staff

performance will be appraised based on day to day operation
at his/her job assignment which is described in his/her job
descriptions for the particular position at his/her capacity.

Q: When was the Claimant‟s Performance Appraisal for the year

2011 conducted?
A: The Performance Appraisal of the Claimant for the year 2011

50
 was conducted on 24th October 2011 at the Lion Steel Complex
in Banting. In attendance during the Performance Appraisal
was the Claimant, myself, Ms. Kwa Seok Leng – Senior
Manager of Human Resources and Mr. Lee Tee Hooi.”.

107. It was clear from evidence that the performance appraisal review
meeting on 24.10.2011 to rate the Claimant‟s KRA and Performance
Appraisal for 2011 was done jointly by COW-2, Mr. Lee Tee Hooi and
COW-4. The Claimant was also present at this meeting. In fact the
Claimant had provided his input in the Performance Appraisal Form 2011
as can be seen in p. 11 of CLB -2 wherein the Claimant had inserted a
Tick in the column “Exceeds Expectation 80 – 66” as confirmed by the
Claimant as follows:

“Q: Refer to page 11 of CLB -2, the column “Exceeds Expectations”

this is your rating?
A: Yes.”.

108. COW-2 had provided his rating for the Claimant as “Below
Expectations 45 -26” as confirmed by the Claimant as follows:

“Q: The tick “Below Expectations” is your superiors?

A: Yes.”.

109. Furthermore, the Claimant‟s input in the Performance Appraisal

Form 2011 can be seen on p.10 of CLB -2 under the section
“Employee‟s Comment”.

51
110. Therefore, both the Claimant and Company have provided their
own input in relation to the Claimant‟s performance for the year 2011. It
is trite law that the employer is the party who would be the judge of the
employee‟s performance and as long as it is done in a bona fide manner
such views must be upheld. This was held to be in the case of
Samsuddin B. Mat Amin V Austral Enterprises [Award 47 of 1974],
where the Industrial Court held as follows:

“Inefficiency which discloses a course of negative conduct is a

sufficient ground for termination… Incompetency also is a ground for
dismissal, indeed, inaptitude resulting in failure to perform the duties
of the service, destroys the whole reality of the contract from the
point of view of the employer. It must be remembered that the
vast majority of the employees make their employers the judges
of their efficiency, and so long as the employer acts bona
fide...”.
[Emphasis added]

111. The Court concludes that the Claimant‟s contention that the
appraisal was unilaterally done and was done without his participation
was clearly false and baseless as he had provided his input on the
Performance Appraisal Form 2011 and also attended the Performance
Appraisal meeting on 24.10.2011. The Court finds that the Performance
Appraisal 2011 conducted on the Claimant was done in a bona fide
manner and did not amount to a fundamental breach of the Claimant‟s
contract of employment.

112. Further on the aspect of the Claimant‟s Performance Appraisal

2011, the Claimant raised the issue of mala fide actuated action by the
Company which he alleged was evident in the Show Cause Letter dated

52
25.11.2011. In the said Show Cause Letter, the Company raised firstly
the issue of the Claimant‟s non-compliance of submission of his Action
Plan for KRA 2011, and secondly the serious accusations of victimisation
which the Claimant hurled against COW-4.

Non-compliance of submission of Action Plan for KRA 2011

113. The Court in the earlier part of this Award concluded that the
Claimant had willfully raised issues in regards the KRA 2011 and
thereafter failed to submit the Action Plan for the KRA 2011 despite
being given extensions of time to do so. The Court finds that the
Company was justified in ensuring the Claimant complied with the
submission of the Action Plan for the KRA 2011 and this in no terms
amounts to mala fide actuated action by the Company as alleged by the
Claimant.

Serious accusations of victimization against COW-4

114. The Claimant upon his transfer to the Company refused to

accept COW-4 as his functional head despite it being clearly stated in
KRA 2010 [COB-2 p. 14A]. COW-3 confirmed in evidence that in the
Lion Group, for functional roles like HR there is a matrix reporting
structure. The Claimant as Assistant Manager HR in Company reports to
COW-4 who was the Senior Manager HR at the material time. COW-4
as the Senior Manager–HR exercised her functional HR role wherein
she is responsible to oversee HR matters in the operating companies
under the Lion Group including the Company. Subsequently on
01.07.2011, COW-4 was appointed as General Manager-HR and she
continued to exercise her functional HR role over a group of companies
53
within the Lion Group, including the Company. Upon her appointment as
General Manager-HR she had the added responsibility of overseeing
SECOM.

115. The Claimant confirmed that he never challenged the authority of

COW-4 as Senior Manager-HR/General Manger-HR prior to claiming
constructive dismissal. The Claimant also admitted in evidence that
COW-4 is his superior and she outranks in HR.

116. Furthermore COW-4 continued to issue instructions to the

Claimant as evidenced from the numerous e-mails in the Bundle of
Documents filed before this Court. In fact issues concerning the
Claimant‟s duties pertaining to HR were raised by Captain Khor and
COW-2 to COW-4, who both recognized COW-4 as the Claimant‟s
functional head at all material times. Thus COW-4 is under a duty to
ensure that the Claimant discharges his duties and responsibilities
pertaining to HR matters in the Company. Furthermore, after the
Claimant‟s transfer to the Company COW-4 as the Claimant‟s superior
had issued the Claimant with show cause letters and warning letters.
The Claimant acknowledged these letters and accordingly responded to
COW-4.

117. The Claimant had shown total disrespect to his superior COW-4
wherein he had hurled scathing and malicious accusations of
victimisation against her. It cannot be denied that 'victimisation' is a
serious charge by an employee against an employer. The onus of
establishing 'victimisation' will be upon the person who alleges it, and
thus the Claimant must prove that he was indeed victimised by COW-4.
Since the charge of victimisation is a grave one, it must be properly and
54
adequately pleaded giving all particulars upon which the charge is
based. Mere allegations, vague suggestions and insinuations are
insufficient for the court to conclude on the issue of victimisation. In
support of the issue on victimisation is the book on "The Law of
Industrial Dispute"(6th Edition) Vol. 1, at page 2096 by OP Malhotra:

"Victimisation is a serious charge by an employee against an

employer which reflects to a degree, upon a subjective attitude of
the employer evidenced by certain acts and conducts. The onus of
establishing victimisation is upon the person who alleges it. The
charge of victimisation being a serious one, it must be properly and
adequately pleaded; giving all particulars upon which the charge is
based to enable the employer to fully meet them. In other words, the
charge must not be vague and indefinite. The act
of victimisation being an amalgam of facts relating to acts and
conduct, inferences and attitudes, these have to be established by
safe and secure evidence. Mere allegations or vague insinuations
are not enough.".

118. The viciousness of the Claimant‟s accusations against COW-4 is

reflected in his own words as follows:

“The GM HR Ms Kwa is on a witch hunting mission, trespassing my

office and taking the file without my permission by taking action against
past issues way back in February 2011, which already had been
discussed, agreed and approved by my superior. It is a continuous
actuated mala fide action, by the General Manager of HR – Ms. Kwa
Seok Leng, to harass and victimize me from the previous Company
Amsteel. Giving surprise warning letters without any prior discussions,
which is one sided and malicious. I have not acknowledge signed any of
past warning letter.”.

119. The Claimant in evidence acknowledged that he cannot dictate

who reviews his personal file and agreed that COW-4 being the

55
Claimant‟s superior was entitled to review the Claimant‟s personal file.
His further serious allegation of COW-4 indiscriminately putting
documents into his personal file is unsubstantiated and again baseless
and malicious. The Claimant further admitted that warning letters were
issued to him after show cause letters and that he was aware of the
allegations prior to the warning letters. Therefore, the Claimant‟s
allegations of surprise warning letters were completely false and
baseless.

120. When asked whether he had any evidence of victimisation against

him by COW-4, the Claimant answered as follows:

“Q: You have any evidence of victimization by Ms. Kwa?

A: My lawyer will take it up.”.

121. The Court has considered the evidence before it and concludes
that the Claimant has failed to provide any documentary evidence or
testimony to validate or support his wild allegations of victimisation by
COW-4 against him. The Court thus finds that the Claimant has failed to
prove any mala fides on the part of the Company, other than his outward
distrust of COW-4 and unsubstantiated wild allegations and scathing
accusations against her. His ethics and integrity as a HR professional is
tarnished by his own words and actions and the Company being his
employer had rightfully judged his performance in a bona fide manner.

122. Before I conclude I have had the opportunity to observe the

Claimant during the hearing and assess the evidence that he tendered.
The Claimant provided inconsistent, contradictory and unreliable
evidence. He seems to have a personal vendetta against COW-4 and

56
accused her of ill-founded accusations of victimisation, amongst which
are witch hunting and manipulation of documents. These are serious
and grave accusations that were mere allegations and never
substantiated during the course of hearing. The Claimant had been
advised to stop his vicious tirade of accusations, yet he pursued in the
hope of finding some form of sympathy from the Company. As a senior
executive he failed to portray himself as a role model to his subordinates
and his continuous unsubstantiated and baseless tirade against
superiors including COW-4 amounted to nothing but bitterness where
every fault in his career was pinned upon someone else.

CONCLUSION

123. The Court concludes that the Company had more than ever bent
itself to entertain the Claimant‟s attitude of outwardly rejecting duties
assigned to him and doing what pleases him. Despite the Claimant‟s
poor disciplinary record with the Company, the Company nevertheless
provided the Claimant with further opportunities to prove himself. It is
unchallenged that the Claimant had been issued numerous show cause
letters, warning letters as well as a Final Warning Letter. The Claimant
had gone to great lengths to hurl allegations that the Company was
purportedly victimising him, acted in male fide and tried to drive him out
of employment. However all these purported allegations were
unsubstantiated and baseless.

124. The Company had merely exercised its management prerogative

in bringing to the Claimant‟s attention his shortcomings and certain

57
misconducts through the issuance of show cause letters, warning letters
as well as a Final Warning Letter. The Company deemed that the
Claimant had decided to leave his employment with the Company when
he submitted his notice of constructive dismissal on 30.12.2011 and had
failed to provide the requisite 3 months notice required.

125. On the totality of the evidence adduced and having regard to all
the written submissions of both parties, it is the finding of this Court that
the Company had not committed any act whatsoever to have breached a
fundamental term of the Claimants term of employment which goes to
the root of his contract of employment.

126. On the balance of probabilities and having considered the factual

matrix and circumstances of the case, this Court finds that the Claimant
has failed to discharge the burden of proof to establish that he was
constructively dismissed by the Company. Consequently, the next
question of whether the dismissal was with just cause or excuse need
not be answered since the Claimant has not succeeded in showing that
he was constructively dismissed. In fact the Claimant had walked out of
the employment.

DECISION

127. In conclusion, taking into account the totality of the evidence

adduced by both parties and bearing in mind s. 30(5) of the Industrial
Relations Act 1967 to act according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal

58
form, this Court finds that the Claimant failed to prove that he was
constructively dismissed by the Company. Accordingly, the Claimant‟s
case is dismissed.

HANDED DOWN AND DATED THIS DAY 18 APRIL 2017.

-signed-
(SAROJINI A/P KANDASAMY)
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

59