INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4/4-1621/18

BETWEEN

BALAMURALI A/L R. VELUSAMY

AND

SODEXO MALAYSIA SDN. BHD.

AWARD NO: 2635 OF 2019

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

Chairman

VENUE : Industrial Court, Kuala Lumpur.

DATE OF REFERENCE : 04.07.2018.

DATE OF RECEIPT OF
ORDER OF REFERENCE : 11.07.2018.

DATES OF MENTION : 09.08.2018, 27.09.2018, 16.10.2018,

13.11.2018, 08.01.2019.

DATE OF HEARING : 26.02.2019.

REPRESENTATION : Mr. V. Kumaraval of Messrs Hasif

Kumar & Co., Counsel for the Claimant.

Haji Zaikon Jaafar of Malaysian

Employers Federation (MEF),
representative for the Company.

THE REFERENCE

This is an order of reference dated 04.07.2018 by the Honourable

Minister of Human Resources pursuant to section 20(3) of the Industrial

Relations Act 1967 arising out of the alleged dismissal of Balamurali a/l

R. Velusamy (“Claimant”) by Sodexo Malaysia Sdn. Bhd. (“Company”)

on 05.09.2017.

AWARD

[1] The parties in this matter filed their respective written submissions

on the 21.03.2019 (Company’s Submissions) and 11.04.2019

(Claimant’s Submissions).

[2] This Court considered all the notes of proceedings in this matter,

documents and the cause papers in handing down this Award namely:-

(i) The Claimant’s Statement of Case dated 28.08.2018;

(ii) The Company’s Statement in Reply dated 13.09.2018;

(iii) The Claimant’s Rejoinder dated 03.10.2018;

(iv) The Claimant’s Bundle of Documents – CLB1, CLB2 &

CLB3;

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 (v) The Company’s Bundle of Documents – COB1 & COB2;

(vi) Claimant’s Witness Statement – CLW1-WS;

(vii) Company’s Witness Statement – COW1-WS

(Satyananthaan a/l Sundararaju);

(viii) Company’s Witness Statement – COW2-WS (Fiona Tan Lai

Fa);

(ix) Company’s Witness Statement – COW3-WS (Sazlina binti

Razali); and

(x) Company’s Witness Statement – COW4-WS (Phan Thanh

Lam).

INTRODUCTION

[3] The dispute before this Court is the termination of Balamurali a/l R.

Velusamy (the Claimant) by Sodexo Malaysia Sdn. Bhd. (the Company)

on the 05.09.2017. The Company amongst other deals in food services.

The Claimant commenced employment with the Company on the

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21.02.2005 as a Unit Manager and was placed in Colgate Palmolive to

manage its cafeteria. On or about 10.10.2016, the Claimant was

transferred by the Company to the British School of Kuala Lumpur

(BSKL) to manage the cafeteria of the school. Arising out a certain

alleged negligence on part of the Claimant in managing the cafeteria,

vide letter dated 21.07.2017 the Company served the Claimant a show

cause letter in which he was alleged to have failed to conduct food

tasting, cross checking allergic cards and food tags in Bain Marie for the

primary student at BSKL. He was further alleged to have failed to comply

with regard to food safety, Hazard Analysis and Critical Control Point

(HACCP) and hygiene standard. The Claimant also faced another

allegation whereby he was alleged to have failed to report immediately

to his superior on the aforesaid incidents involving the students at the

Primary Campus of BSKL. The Claimant replied to these allegations

raised by the Company, however the Company dissatisfied with

explanation given of the Claimant convened a domestic inquiry to inquire

into the allegations. At the close of the domestic inquiry the panel found

the Claimant guilty of the charges of misconducts alleged. There upon

on the 05.09.2017 the Claimant was dismissed from his employment

with the Company for the reason of the misconducts for which the

Claimant was found guilty. Despite an appeal by the Claimant, the

Company maintained its decision to dismiss the Claimant from its

4
employment. At the time of the dismissal of the Claimant, the Claimant

was the Senior Unit Manager and was earning a basic salary of

RM6,090.00. The Claimant now claims that the dismissal of the Claimant

from his employment with the Company is without just cause or excuse

and prays for reinstatement. The Company contends that the

misconducts were serious in nature and as such the dismissal was done

with just cause or excuse.

[4] The Claimant gave evidence under oath and remained the sole

witness for his case. The Company’s evidence was led by COW1

(Satyananthaan a/l Sundararaju, Senior Unit Manger to whom the

Claimant reported briefly), COW2 (Fiona Tan Lai Fa, a Unit Manager of

the Company assigned to St. Joseph International School), COW3

(Sazlina binti Razali, a Senior Executive Food Safety of the Company

who conducts internal audit of food safety on the site) and COW4 (Phan

Thanh Lam, who is the Assistant Operations Manager of the Company).

THE COMPANY’S CASE

[5] The Company’s case can be summarised as follows:-

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(i) On 23.05.2017, the Company had received a complaint

from its client, one Catherine Taylor regarding food

allergy that occurred in BSKL (Primary Campus) on

22.05.2017 arising out of one of the primary school

student named Lucien who was served cauliflower

coated in breadcrumbs.

(ii) Another incident happened on 06.06.2017 which

involved another student named Kayla who is allergic to

seafood, nuts, bell peppers and seeds. On that day, the

canteen was serving salmon sandwiches but wrongly

labelled them as chicken sandwiches. The sandwiches

were placed in Bain Marie with easy access to the

students. The said student took one of the sandwiches

but was not able to consume it as the teacher stopped

her.

(iii) A further incident occurred on 08.06.2017 where the

canteen was serving food with chopped tomatoes as

garnishing and the same student above, Kayla was

served with this. Tomatoes have seeds and the said

student is allergic to it.

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(iv) The Claimant was negligent in his work in that the

Claimant failed to conduct food tasting and cross

checking between allergic card and food tag in Bain

Marie for primary student.

(v) The Claimant also failed to comply with regard to food

safety, Hazard Analysis and Critical Control Point

(HACCP) and hygiene standard.

(vi) The Claimant also failed to highlight and report

immediately to his immediate superior, Senior

Operations Manager and/or to Assistant Operations

Manager on the 3 allergen cases that happened on

22.05.2017, 06.06.2017 and 08.06.2017.

(vii) As a consequence of the alleged misconducts of the

Claimant, the Company issued a Show Cause Letter dated

21.07.2017 to the Claimant to require him to give his

explanations to this alleged misconducts.

(viii) The Company dissatisfied with the Claimant’s explanation

by way of email dated 26.07.2017 proceeded to convene a

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 domestic inquiry to hear the 3 charges of misconducts

levelled against the Claimant. The domestic inquiry was

duly conducted on the 24.08.2017.

(ix) At the close of the domestic inquiry, the panel found the

Claimant guilty of all the 3 charges levelled against the

Claimant and the Claimant was dismissed by the Company

on the 05.09.2017.

(x) In view of the seriousness of the misconducts, the

Company now contends that the dismissal of the Claimant

was done with just cause or excuse.

THE CLAIMANT’S CASE

[6] The Claimant’s case can be summarised as follows:-

(i) The Claimant was hand-picked by the management and

transferred to BSKL to facilitate, improve and enhance the

food outlet there as the Company had received numerous

complaints from their client with regard to the food quality,

presentation and overall hygiene and cleanliness there.

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(ii) There Claimant was told by one Miss Suma Nair (Senior

Operations Manager) to concentrate on the Senior Campus

in BSKL which was recently started and at the same time to

help and assist other units such as the St. Joseph

International School, Taylors School, Pantai Hospital

Bangsar, Sri Kota Medical Centre however these additional

responsibilities were not stated in the transfer letter.

(iii) The Company was bogged down with shortages, staff who

were inexperienced and not trained to operate and

maintained international standard in terms of food quality,

presentation and overall hygiene and cleanliness.

(iv) There were no written job descriptions given to the

Claimant as to what his job expectation are in BSKL.

(v) The Claimant was tasked to manage and focus on the

Senior Campus food outlet as it generated more income

then Primary Campus. And these two locations were at

different place and required an approximate time of 15

minutes by walking to reach. Despite these shortcomings

the Claimant proceeded with his work.

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 (vi) On the incidents that became the subject matter of the

show cause letter, the Claimant had sufficiently and

adequately explained his predicament and position. Despite

these explanations the Company chose to convene the

domestic inquiry and found him guilty of all the charges

levelled against him.

(vii) The Claimant now claims that his dismissal from his

employment with the Company is without just cause or

excuse and prays for reinstatement to his former position in

the Company.

THE ROLE AND FUNCTION OF THIS COURT IN DETERMINING THE

DISPUTE BETWEEN THE PARTIES

[7] The role of the Industrial Court under section 20 of the Industrial

Relations Act 1967 is succinctly explained in the case Milan Auto Sdn.

Bhd. v. Wong Seh Yen [1995] 4 CLJ 449, his Lordship Justice Tan Sri

Haji Mohd Azmi bin Kamaruddin FCJ delivering the judgment of the

Federal Court had the occasion to state the following:-

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 “As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344;

[1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases

on a reference under s. 20 is two-fold firstly, to determine whether the

misconduct complained of by the employer has been established, and

secondly whether the proven misconduct constitutes just cause or

excuse for the dismissal. Failure to determine these issues on the merits

would be a jurisdictional error ...”

[8] Also in the case of K A Sanduran Nehru Ratnam v. I-Berhad

[2007] 1 CLJ 347 where the Federal Court again reiterated the function

of the Industrial Court:-

“The main and only function of the Industrial Court in dealing with a

reference under s. 20 of the Industrial Relations Act 1967 is to determine

whether the misconduct or irregularities complained of by the

management as to the grounds of dismissal were in fact committed by

the workman. If so, whether such grounds constitutejust cause and

excuse for the dismissal.”

THE BURDEN OF PROOF

[9] The law is settled in cases where the dismissal is caused by the

Company. It follows that whenever the Company caused the dismissal of

11
the workman, it is the Company that must now discharge the burden of

proof that the dismissal is with just cause or excuse.

[10] This long settled principle was demonstrated in the case of Ireka

Construction Berhad v. Chantiravathan a/l Subramaniam James

[1995] 2 ILR 11 where the Court opined that:-

“It is a basic principle of industrial jurisprudence 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 to prove that he has just cause and excuse for taking the

decision to impose the disciplinary measure of dismissal upon the

employee. The just cause must be, either a misconduct, negligence or

poor performance based on the facts of the case.”

THE STANDARD OF PROOF

[11] In the case of Telekom Malaysia Kawasan Utara v. Krishnan

Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 the Court made it clear

that the standard of proof that is required is one that is on the balance of

probabilities.

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 “Thus in hearing a claim of unjust dismissal, where the employee was

dismissed on the basis of an alleged criminal offence such as theft of

company property, the Industrial Court is notrequired to be satisfied

beyond a reasonable doubt that such an offence was committed. The

standard of proof applicable is the civil standard, ie, proof on a balance

of probabilities which is flexible so that the degree of probability required

is proportionate to the nature and gravity of the issue.”

THE SHOW CAUSE LETTER

[12] The Company issued a Show Cause Letter dated 21.07.2017 to

the Claimant with the following allegations:-

“1. Work negligence

- Failure to conduct food tasting and cross check between allergic

cards and food tags in Bain Marie for primary student.

a. On 23 May 2017, we have received a complaint from our

client, Catherine Taylor regarding the food allergy occurred

in BSKL (Primary Campus). The complaint is about the

incident that happened on 22 May 2017 whereby one of the

primary school student named Lucien was served cauliflower

coated in breadcrumbs. The menu served was not on the

general menu for the day and it appears to have been

13
 prepared specifically for him. As you aware, he has a gluten

allergy and the allergy card clearly states his food should be

gluten free.

b. The second incident happened on 6 June 2017 where one of

the student named Kayla is allergic to seafood, nuts, bell

peppers and seeds. On that day, the canteen was serving

salmon sandwiches but wrongly labelled them as chicken

sandwiches. The sandwiches were placed in Bain Marie with

easy access to the students. The said student took one of

the sandwich but thankfully was not able to consume it as

the teacher stopped her.

c. Again, on 8 June 2017 the canteen was serving food with

chopped tomatoes as garnishing and the same student

(Kayla) in the second incident was served this. Tomatoes

has seeds and she is allergic to it.

As a Senior Unit Manager, you have failed to carry out your

duty on conducting food tasting and cross checking between

the allergic cards and food tags in Bain Marie for the student

as per stated in your Job Description. These allergy cases

can lead to serious health condition for the affected student

and sometimes it can be fatal. This is deemed as very

serious for Lucien on 28 April 2017 consumed the fish he

14
 was allergic to it. He needed to be rushed to the hospital.

Our Company is also open to the risk of being sued by the

student and the school for failure to ensure the service

standard be met whilst tarnishing Sodexo’s name.

- Failure to comply with regard to food safety, HACCP and

hygiene standard.

On 3 July 2017, during the Health and Hygiene Audit by the Food

Safety Executive, there was mold on roasted chicken with

unpleasant smell found in sandwich prep chiller. This product,

once consumed can possibly lead to food poisoning and it

considered as a serious misconduct that may result in legal action

that will tarnish the company’s image.

On 12 July 2017, during the visit of Gerald Zemke, Expat Chef

Manager of Jakarta Intercultural School and Than Lam Phan,

Senior Unit Manager, the following was identified:

a. At about 10.45am – The Primary School campus’s Bain

Marie had several food inserts filled with food placed on it.

However, though the Bain Marie was switched on, the water

in the Bain Marie was cold (Gerald inserted his hand into the

water to test the temperature). In order to have the Bain

Marie fully functional (at the correct temperature), the Bain

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 Marie should have been switched on at least 2 hours before

the food is placed on the Bain Marie. Food that are placed

on the cold Bain Marie will result in the rapid drop of food

temperature, risking the food to the increase growth of Food-

borne Bacteria. These food, once consumed can possibly

lead to food poisoning and it considered as a serious

misconduct that may result in legal action that will tarnish the

company’s image.

b. At about 11.45am – At the Coffee Shop’s fruit basket, there

were 2 rotten oranges found. Consequences of ingesting the

fruit is as per above points. This will also damage Sodexo’s

reputation as clearly visible rotten fruit were displayed.

- Failure to report immediately to your immediate superior.

You have failed to highlight and report on the 3 allergen cases

that happened on 22 May 2017, 6 June 2017 and 8 June 2017 to

the Senior Operations Manager and / or to Assistant Operations

Manager.

Unfortunately, the incidents were informed by the client herself to

the Senior Operations Manager and because of non-notification,

the corrective plans was not in placed or reviewed immediately.

As a Senior Unit Manager, you must ensure that any serious

16
 incident involving our employees or the facilities and employees

of our clients get reported directly to the Operations Manager or

relevant levels as per stated in your Job Description.

You are hereby required to reply this show cause letter as to why

disciplinary action should not be taken against you. Please submit your

written explanation by 28 July 2017. Should you fail to give any

explanation by the stipulated date, it will be presumed that you have no

explanation to offer and appropriate action will be taken against you.”

[13] The Claimant gave his explanation to the show cause letter issued

by the Company by letter dated 21.07.2017, however the events that

followed the show cause letter would now show that the Company was

dissatisfied with the explanations given by the Claimant and the

Company proceeded to convene a domestic inquiry to hear the

misconducts of the Claimant with 3 charges of misconducts levelled

against him. The Claimant explanations to the 3 charges of misconducts

are as follows in verbatim:-

“1. Work negligence, failure to conduct food tasting and cross

check between allergic card and food tag in Bain Marie for primary

student.

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- On 22nd May 2017 – Lucien were served with cauliflower

with coated with breadcrumbs.

As normal routine of work, I will help out to set up the Bain Marie

food at Primary Campus by 10.30 am before the pre plan meat

been portion out in the compartment tray. I will do the food testing

and advice dietician and chef accordingly on food taste, texture and

presentation. Immediately after that I focus my work at Senior

Campus until lunch over by 2pm. On this case, its happen when I

were at Senior Campus. Klaire and Teressa did not update me after

I have came down to Primary Campus. Suma have called me.

Accordingly to our dietician, there already settled.

On the second incident on 6 June 2017 – Kayla. Actual plan,

allergic student will served personally by the dietician and they not

allowed to take by themselves. In this case, she personally took

food from salad counter without any assistant. However we already

conducted Tool box Talk to be more alert. If happen to change the

menu, must informed Manager or Head Chef. Sour Chef Aizat

apologise for his mistake.

On 8 June 2017. This incident totally new to everybody, where

seed is a allergy factors. For this, we do also conduct Tool Box Talk

to alert all the staff. Only use chop parsley, coriander leave, spring

onion as a part of garnishing. All the above issue is related to

Dietician role of work and although they study for 4 years, its new to

18
them. Now I am work closely with the new dietician Choie and more

focus on Primary Campus. Senior Campus advice Head Chef to

monitor.

Failure to comply with regards to food safety, HACCP and

hygiene standard.

So surprisingly we had 2 head chef, 2 sour chef but still have this

issue. I used to remind them time to time when I do the morning

walk. Especially on updates the document, expiry dated and so on.

Hope the current head chef will do changes.

On 12 July 2017.

The Bain Marie issue, I the one instructed Geetha to switch on the

Bain Marie and advice her why you did not on it and you suppose

to do first thing in the morning. Due to old equipment, it take a

longer time to heat up. Before serving time the water moderate hot.

Oranges. I the one purchase the basket and at the beginning, set

up with mixture of fruits. Advice staff to continue. If the fruits not

move well, please cut and sell in cup fruits. I need to training them

again. My apologies.

Failure to report immediately to your immediate superior.

Advice Klaire, Teressa and Rabin to informed me on any issue at

Primary Campus as I been reporting to them on what happen at

19
 Senior Campus. I used to communicate to Suma and Satya and I

have no issue on it.

As a conclusion, I am apologise for my mistake. Some time due to

staff turnover and absent, I involved in the operation and function.

That time I over look it.

Thanks”

DOMESTIC INQUIRY

[14] This Court now proposes to deal with the 3 charges of

misconducts levelled against the Claimant in the domestic inquiry

dated 24.08.2017 which were with the same contents as contained in

the allegation in the Show Cause letter dated 21.07.2017.

[15] On the 3 charges of misconducts levelled against the Claimant, it

is the Company’s stance that the domestic inquiry panel found the

Claimant guilty of all the 3 charges. Accordingly, in view of the

seriousness of these 3 charges of misconducts, the Company dismissed

the Claimant with effect from the 05.09.2017.

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LAW ON DOMESTIC INQUIRY

[16] Now this Court will deal with law relating to the domestic inquiry

proceeding and the findings of the domestic inquiry panel.

[17] It is this Court view that whenever a domestic inquiry is conducted

by the Company, it must adhere to certain duties imposed upon it to

follow the correct procedure and to reach the correct conclusion. The

case Metroplex Administration Sdn. Bhd. v. Mohamed Elias [1998] 5

CLJ 467 is a guide that one must constantly have in contemplation

where his lordship Justice Hop Bing J opined:-

“Where a domestic inquiry is held and the rules of natural justice have

been applied, the Industrial Court should first consider the adequacy or

otherwise of the procedure adopted in the proceedings for the domestic

inquiry in order to determine whether the domestic inquiry has applied

the correct procedure and reached the correct conclusion having regard

to all the evidence, documentary and oral, adduced at the domestic

inquiry. If at the domestic inquiry, the rules of natural justice were

properly applied; the employee being given the opportunity to be heard

and to present his case; and should a finding be made against the

employee based on the evidence which was presented to the domestic

inquiry, the Industrial Court ought to consider the finding of the domestic

21
 inquiry in order to conclude whether the employee has been dismissed

without just cause or excuse”.

[18] However this Court is also mindful of the decision of the Court of

Appeal that this Court is not bound by the finding of the domestic inquiry

panel whenever this Court is called upon to decide whether the Claimant

is dismissed from his employment with just cause or excuse. This Court

finds support from the decision of the Court of Appeal in Hong Leong

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

where his Lordship Justice Gopal Sri Ram had the occasion to state the

following :-

“The fact that an employer has conducted a domestic inquiry against his

workman is, in my judgement, an entirely irrelevant consideration to the issue

whether the latter had been dismissed without just cause or excuse. The

findings of a domestic inquiry are not binding upon the Industrial Court which

rehears the matter afresh. However, it may take into account the fact that a

domestic inquiry had been held when determining whether the particular

workman was justly dismissed”.

[19] Now this Court is guided by the principles stated in the cases

above namely in the case Milan Auto Sdn. Bhd. v. Wong Seh Yen

(supra) and Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan

22
& Other (supra) and will proceed to analyse and scrutinise the facts of

this case and make the appropriate findings based on all the evidence

produced in this Court. In doing so this Court had taken cognisance of

the fact that none of the members of the domestic inquiry panel were

ever made available in this Court neither was the representative or party

who framed the charges for the necessary eliciting of the needed

explanation on the charges levelled against the Claimant.

EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[20] On the 1st Charge of misconduct relating to the failure to conduct

food tasting and cross checking between allergic cards and food tags in

Bain Marie for primary student after having analysed the evidence both

oral and documentary, this Court had observed certain undisputed facts.

[21] The incident on the 22.05.2017, 06.06.2017 and 08.06.2017 are

events that indeed did occur and these were not disputed. Considering

the testimony of the witnesses of the Company and also the Claimant, it

is indeed disturbing for this Court to find that the employees of the

Company could be so lackadaisical in ensuring the safety of the children

from dangers arising out food allergy that could have serious

consequences. The utmost importance of the children’s health and

23
safety cannot be disregarded at all times and this includes what is

served as food to these children. There should be no compromise when

children’s safety and health are concerned. Having said this, this Court

must now consider whether it is the Claimant who must ultimately bear

the responsibility for these unfortunate events that could have been

wholly avoided and must be avoided from happening at all times.

[22] There is no dispute that the Claimant was handpicked to manage

the food outlet at BSKL. This can be seen from the letter from Miss

Mabel Lim, the Country Human Resource Manager dated 15.09.2016.

The wordings of the letter are unmistakeable in that the Claimant is an

excellent and dedicated employee of the Company and it is for this

reason the Claimant was chosen to manage the operation at BSKL.

Having chosen the Claimant to perform the task in this new place, the

Company ought to have provided him with a proper job designation on

what his role and responsibilities are so that the Claimant will have

enough time to adjust to his new environment. However it was not until

02.05.2017, the Claimant was provided his actual job description and the

events for which the Claimant is now alleged to have committed the

misconducts had also happened at about that same time i.e. on the

22.05.2017, 06.06.2017 and 08.06.2017. This is an undesirable manner

in which the Company’s Senior Management had carried out its duties in

24
promptly informing the Claimant with regard to his duties when taking

control of an important task at BSKL campus.

[23] Despite this undesirable feature of the Company in managing its

employees’ job description in particular the Claimant in this case, the

evidence adduced in Court would show that the Claimant struggled in

his many areas of responsibility and yet was able to perform an excellent

job. It is not a disputed fact that the Claimant’s main area of work

concentration is at the Senior Campus and in this place the Claimant

performed an excellent job and had received much praise. The

commendation that the Claimant received can be seen from the email

sent by the clients. For convenience some of the excerpts of the emails

are reproduced here:-

From: Thomas Garside dated 24.01.2017

“ I just wanted to send you a quick message to say how well the new

canteen set up has worked in the Senior Campus. Pupils, staff and

parents have all made positive comments about the new food serving

method, plates /cutlery and recycling procedure…..

Thank you to you and your team, in particular Mr. Bala and his team

onsite, for their work in food preparation and serving to such a good

standard…………”

25
 From: Christian Rice dated 19.01.2017.

“I would just like to write a quick note to say how much the quality,

presentation and overall options have improved over the course of the

transition from changing the serving methods.

The food is hot, well cooked and very delicious. The mood of the whole

canteen is much more conducive with a school environment.

Well done to the team……..”

[24] These emails quite clearly show to the Court that since the

Claimant took over the job responsibilities of managing the campus food

outlet, things relating to the operation of these outlet had dramatically

transformed to the extent the clients had sent personal email of

appreciation in the manner in which the Claimant is changing the food

outlet operation for the better.

[25] The Domestic inquiry panel should have considered all these

factors before making unwarranted comments alleging that the Claimant

is an irresponsible person. In any event the panel members were never

produced in this Court to be examined on the findings that they made

and the methods employed by them in arriving at the conclusion that

came to.

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[26] The Claimant’s evidence on what happened on the day of the

incident has merits considering the fact that the Claimant had more than

one role to play and the task of managing the Senior Campus is not a

small task. The Claimant’s evidence that he will help set up the Bain

Marie at Primary Campus and brief the dietician and chef accordingly

before focusing on his job responsibilities at the Senior Campus is an

important factor that must be considered in evaluating whether the

Claimant is wholly responsible for the event that occurred on this day.

On the day of this unfortunate event the Claimant was at the Senior

Campus doing his task that he was assigned to do. This is an

undisputed fact. The Claimant cannot be expected to be in more than

one place physically to monitor every activity around him considering the

time line for the Senior Unit Manager and his job task as explained by

COW1 in his witness statement COW1-WS. It is for that reason that after

the briefing by the Claimant, the dietician, unit manager, chefs and class

teacher are at the food outlet to monitor the food serving to the students

and in doing so also ensuring that the food is served by complying with

the procedures outlined. There were more than one person at the

Primary Campus whose duties include to monitor the food serving to the

students and in doing so also ensuring that the food is served by

complying with the procedures outlined. In fact the evidence would show

that there was a dietician at the time when the student Lucien developed

27
allergy and it was also due to the dietician accidently serving fish to this

student as mentioned in the Incident Report (“Lucien’s Allergic Incident”)

concerning the student Lucien. In any event after this incident had

occurred, no one informed the Claimant what had happened as this

matter was deemed settled. The evidence of the Claimant is

corroborated by the incident report of Lucien produced in Court by the

Company in which the action taken does not even mention the name of

the Claimant being part of the meeting though the Claimant is the person

who is in charge of the overall daily operations of the food outlet in the

campus. Quite clearly employees of the Company in charge of the food

outlet were not acting as a team and supporting their superior, in this

case the Claimant on matter that should be brought to the attention of

the Claimant. The Claimant had also given evidence in Court that his

superior Miss Suma Nair is aware of this incident. However Miss Suma

Nair was not produced in Court to rebut the Claimant’s evidence. In any

event the Claimant’s email dated 26.07.2017 explaining this said issue

was never replied by Miss Suma Nair as this Court having perused all

contemporaneous documents is unable to find any correspondence from

Suma Nair responding to the email sent by the Claimant. Miss Suma

Nair is a key witness to this proceeding however despite the Company

preparing and filing a witness statement on her behalf narrating the

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events on these alleged misconducts she was not produce as a witness

in Court.

[27] The substance of the allegation in the first charge is that the

student named Lucien was served cauliflower coated in breadcrumbs

and the menu for this was not on the general menu for the day and it

appears to have been prepared specifically for this student. The

Company had failed to prove this part of the charge to the satisfaction of

this Court as the issue of the menu which appears to be specifically

prepared for this student is not proven to the satisfaction of this Court. In

any event the incident report on Lucien states that the dietician

accidently served fish that resulted in the student being taken to the

hospital.

[28] Further the Claimant was also issued a verbal warning which was

reduced to a form “Verbal Warning Form” dated 23.05.2017 over this

incident by COW1 (which was totally unnecessary in the circumstances

of this case) as the failure lies with dietician who should have been taken

to task and the matter should have rested there. However the Company

regurgitated this matter in the show cause letter unnecessarily all over

again.

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[29] On the incident that happened on the 06.06.2017 and 08.06.2017

relating to another student name Kayla, the food was prepared by the

cooks and the Head Chef together with the dietician should have

ensured that this allergic student was personally served by the dietician

as it is the accepted practice but this was not the case here. The fact

that the class teacher was there to stop the student from eating this food

points to the fact that the job of monitoring the students’ food is also the

responsibility of the teacher in charge and it is for that reason they are

there. The evidence of the Claimant is unchallenged here in that the

sous chef had taken responsibility for this failing and had apologized for

the incident on the 06.06.2017. The Claimant also explained that the

event that happened on the 08.06.2017 was a remote and isolated

incident that had caught everyone by surprise including the trained

dietician where it is made known that the tomato seeds can cause

allergic reaction.

[30] The Company had failed to give due consideration to this part of

the Claimant’s version in his defence.

[31] Further there is no evidence that the actual people who had taken

responsibilities and apologised for the failure were ever punished and to

single out the Claimant would be an unfair exercise contrary to the

30
principles of equity and good conscience what more when the job

description and the timeline of the Claimant clearly shows that he is to

focus mainly on the Senior Campus.

[32] On the 2nd Charge of misconduct relating the failure to comply with

regard to food safety, HACCP and hygiene standard based on the health

and hygiene Audit by the Food and Safety Executive namely COW3, it

must be pointed out here that the Claimant was given his job description

on the 02.05.2017 and one of the important job function of the Claimant

is to be responsible for the overall daily operation of the food outlet and

in this case it includes:-

(i) the event that occurred on the 03.07.2017 where mold was

seen on roasted chicken with unpleasant smell found in the

sandwich prep chiller which if consumed can possibly lead

to food poisoning.

(ii) the event on the 12.07.2017 where though the Bain Marie

was switch on, the water in the Bain Marie was cold and

any food kept in this condition will lead to drop in food

temperature that puts the food at risk of growth of food

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 borne bacteria and further the discovery of 2 rotten oranges

found at the coffee shop fruit basket.

[33] The Claimant’s evidence on the issue of the mold in the roasted

chicken with unpleasant smell found in the sandwich prep chiller, seems

to be one that where the blame according to the Claimant must be

shouldered by the kitchen unit comprising of 2 head chefs and sous

chefs who are in charge of the kitchen.

[34] It is true that the kitchen staffs should take responsibilities for this

unacceptable conduct but the Claimant is also to be blame for his failure

to monitor the kitchen staffs. It is after all the Claimant’s duty to oversee

the overall daily operation of the food outlet which includes the kitchen.

But there is another observation that this Court had made relating to this

event. There is nothing in the Company’s record to suggest that the

Company had taken any action against the kitchen staff for this failing

where in the normal circumstance, the head chef would have been taken

to task for this failure since the head chef’s duty will be as common

sense dictate is to keep the kitchen in the best of cleanliness and to also

meet all standard required on hygiene matters. The pointing of fingers to

the Claimant alone smacks victimisation of the Claimant.

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[35] On the issue of the incident on the 12.07.2017 where though the

Bain Marie was switch on, the water in the Bain Marie was cold and any

food kept in this condition will lead to drop in food temperature that puts

the food at risk of growth of food borne bacteria and further the

discovery of 2 rotten oranges found at the coffee shop fruit basket, this

Court finds that again the Claimant is the only one blamed when in fact it

would show to this Court that the Claimant’s evidence that he had to

managed with old and ineffective equipment and inexperience staffs

were never considered by the Company. The evidence of the Claimant

which were not seriously challenged points to the fact that the Claimant

was overly burdened with too much work with inadequate support from

the team at the Primary Campus compared to his excellent performance

at the Senior Campus.

[36] On the 3rd Charge of misconduct of the Claimant in his failure to

report immediately to the immediate superiors on the 3 allergen cases

that happened on 22.05.2017, 06.06.2017 and 08.06.2017, this Court

finds that the issue relating to the incident that happened on the

22.05.2017 was already dealt by the Company when the Claimant was

issued a verbal warning which was reduced to a form “Verbal Warning

Form” dated 23.05.2017 by COW1. As such this incident dated

22.05.2017 ought not to be regurgitated by the Company under the

33
heading of failure to report since warning had be given to the Claimant

by the Company over this matter and it should rest there.

[37] On the incident that occurred on the 06.06.2017 and 08.06.2017,

this Court is unable to see how the Company could frame a charge

against the Claimant’s on his failure to report immediately to the

immediate superiors on the 2 allergen cases that happened on

06.06.2017 and 08.06.2017. The email from COW1 dated 10.06.2017 to

various employees of the Company including the Claimant clearly points

to the fact that this allegation of failure to report on part of the Claimant

was a non-issue for the Company. As early as on the 08.06.2017 Miss

Suma Nair was notified by BSKL by an email on these 2 incidents of

food allergies and this matter became a deliberation between Miss

Suma Nair, COW1 and the Claimant as evident from the email dated

10.06.2017 from COW1. At no time during these email exchanges were

there any complain against the Claimant about his failure to report this

matter. In fact if the failure to report was indeed an issue, then COW1

ought to have stated so as early as he could in one of these emails to

the Claimant which was not done in this case. In any event if there was

such an issue on this so called failure to report why was the Claimant not

served a notice to that effect immediately as was the practice by the

Company previously? The reason the Company at that time did not take

34
issue on this matter was because as the Claimant had said in his

evidence that the individuals who were involved in these incidents had

resolved this matter at the time of the occurrence of the incidents and

had not brought it to the attention of the Claimant. The Company action

in framing this charge is clearly an afterthought to victimise the Claimant.

[38] This Court now makes a finding that the evidence presented in

Court shows that the 1st charge of misconduct relating to the failure to

conduct food tasting and cross checking between allergic cards and food

tags in Bain Marie for primary student is unproven to the satisfaction of

this Court. This Court also makes a finding that the 3rd Charge of

misconduct of the Claimant in his failure to report immediately to the

immediate superiors on the 3 allergen cases that happened on

22.05.2017, 06.06.2017 and 08.06.2017 is also not proven to the

satisfaction of this Court.

[39] However on the 2nd Charge of misconduct relating the failure to

comply with regard to food safety, HACCP and hygiene standard, this

Court finds the Claimant did commit the misconduct when he was not

able to manage the job of monitoring the overall daily operation of the

food outlet effectively. But this Court must also consider the

circumstances that had driven the Claimant to commit this misconduct.

35
This misconduct of the Claimant was substantially due to the reason of

the kitchen staff including the head chef reneging on his duties and the

inexperience support staffs and old equipment that the Claimant had to

work with coupled with his job function of having to concentrate in the

Senior Campus.

[40] From the evidence adduced in this Court, it is clear that the

Company was not able to manage the Primary Campus food outlet due

to the failings and shortcomings of not only the Claimant but a large

section if not the entire work force assigned to provide food to the young

children at the Primary Campus. The Claimant was made to shoulder the

blame for the failings of the Company that led to his ultimate dismissal

on the 05.09.2017 but subsequent event will reveal that despite the

dismissal of the Claimant, the Company could still not able to manage

the Primary Campus resulting in the Ministry of Health issuing a Notice

of Order to shut down the Primary Campus canteen on the 02.02.2019.

[41] As only the 2nd Charge is proven, this Court now must consider

whether the dismissal of the Claimant is with just cause or excuse in the

circumstances of this case.

36
[42] This Court had considered the Claimant’s long and exemplary

service to the Company that led the Company in handpicking the

Claimant for the seemingly enormous task at the BSKL and also his

excellent performance at the Senior Campus that won praise for the

Company. This Court had also considered the failures of many of the

employees due to inexperience and lackadaisical attitude at the Primary

Campus that made the responsibility of the Claimant too burdensome to

shoulder. This Court had also considered the Company’s own failings in

providing adequate manpower and equipment support for the Claimant

to discharge his duties effectively.

[43] The combined and cumulative facts of this case makes it clear that

in this case the punishment meted out to the Claimant did not take into

account the necessary facts that ought to have been taken into account

by the Company and it shows the victimisation of the Claimant. This

Court is of the view that the punishment meted out to the Claimant by

way of dismissal is manifestly harsh considering the circumstances of

this case.

[44] This Court finds support for the above finding by making reference

to the case of Norizan Bakar v. Panzana Enterprise Sdn. Bhd. [2013]

9 CLJ 409.

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 “[36] Thus, in reference to the questions posed to us, we are of the

view that the Industrial Court has the jurisdiction to decide that the

dismissal of the appellant was without just cause or excuse by using the

doctrine of proportionality of punishment and also to decide whether the

punishment of dismissal was too harsh in the circumstances when

ascertaining the award under s. 20(3) of the IRA. We are further of the

view that the Industrial Court in exercising the aforesaid functions can

rely to its powers under s. 30(5) of the IRA based on the principle of

equity, good conscience and substantial merit of the case.

[39] Based on the above, it is clear that the Industrial Court can go on

to decide on the relief to be granted by taking into account of

contributory misconduct and as such we are of the view that the doctrine

of proportionality of punishment is already inbuilt into the IRA. Thus, the

Industrial Court can substitute its own view as to what is the appropriate

penalty for the employee's misconduct, for the view of the employer

concerned.”

[45] Having considered the totality of the facts of the case, the

evidence adduced and by reasons of the established principles of

industrial relations and disputes as stated above, this Court finds that the

Company had failed to prove on the balance of probabilities that the

dismissal of the Claimant is proportionate to the misconduct committed

by the Claimant. And it follows that the Company had failed to prove on

38
the balance of probabilities that the dismissal of the Claimant is with just

cause or excuse.

REMEDY

[46] This Court having ruled that the Claimant was dismissed without

just cause or excuse, will now consider the appropriate remedy for the

Claimant. The Claimant, in stating that the dismissal from the

employment with the Company is without just cause or excuse, prays to

this Court for reinstatement to his former position. This Court had

considered all factors including the time that had lapsed from the date of

the Claimant’s dismissal to the date of this Award. At the time of the

hearing of this case, the Claimant informed this Court that he is currently

employed in another Company. He started his new employment in

September 2018 with a salary of RM7,000.00 per month. He had been

unemployed for 12 months from the date of his dismissal on the

05.09.2017.

[47] This Court is of the view that reinstatement of the Claimant to the

position from which he was dismissed by the Company is not a suitable

remedy in this case.

39
[48] As such the appropriate remedy in the circumstances of this case

must be compensation in lieu of reinstatement. The Claimant is also

entitled for back wages in line with Section 30(6A) Industrial Relations

Act 1967 and the factors specified in the Second Schedule therein which

states:-

“1. In the event that backwages are to be given, such backwages shall

not exceed twenty-four months' backwages from the date of dismissal

based on the last-drawn salary of the person who has been dismissed

without just cause or excuse;

3. Where there is post-dismissal earnings, a percentage of such

earnings, to be decided by the Court, shall be deducted from the

backwages given;

5. Any relief given shall take into account contributory misconduct of the

workman.”

[49] The Claimant’s last drawn salary was RM6,090.00 and he had

worked for the Company for 12 completed years.

[50] Pursuant to Section 30(5) of the Industrial Relations Act 1967

equity, good conscience and substantial merits of the case without

40
regard to technicalities and legal forms remains the central feature and

focal point of this Court in arriving at its decision and final order and this

principle will be adhered by this Court at all times leading to the final

order of this Court.

[51] This Court is further bound by the principle laid down in the case of

Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah)

& Anor [2001] 3 CLJ 541 where his Lordship Justice Tan Sri Steve

Shim CJ (Sabah & Sarawak) in delivering the judgment of the Federal

Court opined:-

“In our view, it is in line with equity and good conscience that the

Industrial Court, in assessing quantum of backwages, should take into

account the fact, if established by evidence or admitted, that the

workman has been gainfully employed elsewhere after his dismissal.

Failure to do so constitutes a jurisdictional error of law. Certiorari will

therefore lie to rectify it. Of course, taking into account of such

employment after dismissal does not necessarily mean that the

Industrial Court has to conduct a mathematical exercise in

deduction. What is important is that the Industrial Court, in the exercise

of its discretion in assessing the quantum of backwages, should take into

account all relevant matters including the fact, where it exists, that the

41
 workman has been gainfully employed elsewhere after his dismissal.

This discretion is in the nature of a decision-making process”.

(emphasis is this Court’s)

[52] This Court must take into account the post dismissal earnings of

the Claimant in order to make an appropriate deduction from the back

wages to be awarded.

[53] Having considered all the facts of case on the appropriate sum to

be awarded and after taking into account that the Claimant had found

employment within 12 months from the date of dismissal with a salary of

RM7,000.00, this Court now orders that the Claimant be paid 1 month

salary of the last drawn salary of RM6,090.00 for every year of service

completed totalling 12 years and back wages of the last drawn salary of

RM6,090.00 for 16 months. This will amount to:-

(i) Backwages ordered:

RM6,090.00 x 16 months = RM97,440.00

(ii) Compensation in lieu of Reinstatement:

RM6,090.00 x 12 months = RM73,080.00

42
Total amount ordered by this Court: Ringgit Malaysia One Hundred

Seventy Thousand Five Hundred Twenty (RM 170,520.00) only

[54] For the contributory misconduct of the Claimant, this Court makes

a deduction of 15% on the total sum of RM170,520.00 ordered by this

Court. The 15% deduction will amount to RM25,578.00.

FINAL ORDER OF THIS COURT

[55] It is this Court’s order that the Company pays the Claimant a sum

of Ringgit Malaysia One Hundred Forty Four Nine Hundred Forty

Two (RM144,942.00) only less statutory deduction (if any) within 30

days from the date of this Award.

HANDED DOWN AND DATED THIS 03RD DAY OF OCTOBER 2019

-signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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