[Case No.

5(6)/4-967/18]

INDUSTRIAL COURT OF MALAYSIA

CASE NO.: 5(6)/4-967/18

BETWEEN

MOHAMED BIN MOHAMED HANAFIAH

AND

MRCB SENTRAL PROPERTIES SDN. BHD.

AWARD NO : 296 OF 2022

BEFORE : Y.A. Kalmizah Binti Salleh - Chairman.

VENUE : Industrial Court of Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 05.04.2018

DATES OF MENTION : 15.05.2018; 07.06.2018; 27.06.2018; 07.08.2018;

19.09.2018; 27.09.2018; 02.11.2018; 20.07.2020;
10.02.2021; 13.10.2021

DATES OF HEARING : 11.03.2019; 19.03.2019; 07.05.2019; 26.08.2019;

03.10.2019; 09.03.2020; 15.03.2021

REPRESENTATION : Mr. Harjit Singh

Malaysian Trades Union Congress
Counsel for the Claimant

Mr. Chandra
Messrs Prem & Chandra
Counsel for The Claimant During Submisssion

Mr. Raymond T.C. Low & Mr. Benedict

Messrs Shearn Delamore & Co
Counsel for The Respondent

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REFERENCE:

This is a reference made under Section 20(3) of the Industrial Relations Act 1967
dated 05.04.2018, arising out of the dismissal of Mohamed Bin Mohamed Hanafiah
(hereinafter referred to as “The Claimant”) on 19.09.2017 by MRCB Sentral Sdn.
Bhd. (hereinafter referred to as “The Respondent”).

AWARD

[1] The Ministerial Reference in this case required the Court to hear and
determine the Claimant’s dismissal by the Company on 19.09.2017. The reference
was dated 05.04.2018 and received by the Court on 16.04.2018.

PROCEEDINGS IN THE INDUSTRIAL COURT

[2] The documents submitted during the trial are as follows:

a) Statement of Case dated 25.06.2018

b) Statement in Reply dated 09.07.2018

c) Claimant’s Bundle of Documents– CLB

d) Company’s Bundle of Documents Vol 1- COB 1

e) Company’s Bundle of Documents Vol 2 - COB 2

f) Company’s Bundle of Documents Vol 3 - COB 3

g) Company’s Bundle of Documents Vol. 4 - COB 4

h) Company’s Bundle of Documents Vol 5 – COB 5

i) Company’s Witness Statement (Samarasam a/l Krishnan) – COWS 1

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j) Company’s Witness Statement (Venkitesan a/l Venugopal) - COWS 2

k) Company’s Witness Statement (Lee Ai Leen) – COWS 3 & COWS

3(s)

l) Company’s Witness Statement (Aisyah Binti Kamal) – COWS 4 &

COWS 4(s)

m) Company’s Witness Statement (Kailash a/l Herkishan) COWS 5

n) Claimant’s Witness Statement (Lim Jun Wei) CLWS 1

o) Claimant’s Witness Statement (Aidah Noor Sharizah Binti Mohamad)

– CLWS 3

p) Clamaint’s Witness Statement (Nor Zaini Bin Abdul Ghani) – CLWS 3

& CLWS3(s)

q) Claimant’s Witness Statement (Mohamed Bin Mohamed Hanafiah) -

CLWS 4 & CLWS 4(s)

BACKGROUND FACTS

[3] The Claimant was the company’s former Senior Manager, Complex of Job
Grade 6 where the claimant commend employment on 15.08.2014.The claimant
received his monthly salary of RM8,000.00 and fixed car allowance of RM 2,750.00.
The claimant was placed on probation for 6 months.

-THIS SPACE IS LEFT BLANK-

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[4] Effective from 15.02.2015, the claimant was confirmed in his position as a
Senior Manager Complex.

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[5] As a Senior Manager Complex, the claimant’s responsibility included

managing admin /customer service, marketing, credit control, leasing, security and
facilities department. The claimant was also tasked to manage the cleaners,
customer/tenant complaints, overall managing of the 11 stories mall and meeting
the targets for the P & L account for the said property.

[6] On 21.07.2017, and again on 27.07.2017, the claimant was interviewed and
his statement recorded by officer from the integrity and Discipline Department (IDD)
on the matter of hampers receive at the office.

[7] The claimant was served with a show cause and suspension from work letter
dated 31.07.2017 signed by K. Samarasam( COWS 1) and the claimant has
required to answer the allegations given.

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[8] The claimant did reply to the show cause letter.

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[9] The company was not satisfy with the explaination given by the claimant. On
22.08.2017,the claimant was served eith the Notice to attend a Domestic Inquiry.

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[10] Domestic Inquiry (DI) was held on 06.09.2017. The Panel of DI had forward
the claimant quilty of allthe four (4) charge. The claimant was served with the
termination of Employment letter dated 19.09.2017. The company had terminated
him with immediate effect.

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[11] Then the Claimant filed a case for wrongful termination at Jabatan
Perhubungan Perusahaan and thereafter the matter was reffered to the Industrial
Court.

THE RESPONDENT’S CASE

[12] The respondent submit thet the Domestic Inquiry was conducted in
compliance of the rules of natural justice and that the Note of Inquiry were accurate.
The respondentgive ample time for the claimant to prepare his Domestic Inquiry.
The claimant was allowed to bring along his witnesses.

[13] For charge 1 and charge 2

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[14] The respondent also submit that the claimant’s defence should be rejected
by the Court because the claimant had admitted that he was indeed aware of the
No Gift Policy.

[15] The respondent submit that the claimant’s reply to the show cause letter
stated that the claimant did not know that the “hamper” was of No Gift Policy.

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[16] The respondent submit that the claimant’s claim of ignorance is an

“afterthought”.

[17] The Respondent submits that two foregoing preposition are intirely
contradictory. The claimant claim that she was not aware of the existence. At the
same time also the claimant said that he know of the existence.

[18] The Respondent also submit that the claimant’s is ever charging position in
respect of the above demonstrate that the claimant is a witness with a lack of
credibility.

[19] For the Charge 3, the respondent submit that the claimant does not deny that
he had signed the letter of appointment. According to the claimant, he did sign
because CLWS 3 instructed him to do so. The respondent submit that CLWS 3 did
not have the requisite authority to sign the letter appointment.

[20] For the Charge 4, the claimant is in respect of his failure to properly safekeep
the letter of appointment title Provision Of Independent Energy Auditor by TUV-
SUB-PSB Pte Ltd Singapore.

[21] The Respondent submits that the claimant’s action to be a major misconduct
and justified his dismissal.

[22] According to the Respondent, the claimant’s misconduct under Charge 3 is

very serious as the company failed to protect the company’s interest when the
claimant merely signed the letter of appointment and the claimant also failed to
safekeeping the document’s pertaining to the letter of appointment. By signing the
letter of appointment,the claimant had clearly acted in breach og his duties as an
employee of the company and acted against the interest of the company.

[23] The Respondent also submits that the Domestic Inquiry was conducted in
accordance with the rules of nature justice.

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THE CLAIMANT’S CASE

[24] The claimant submits that the not aware that “hampers” was part of the “No
Gift Policy” until the claimant was informed by the integrity staff.

[25] The claimant submits that it is not fair for him to take action by the company
because other staff also take the hampers but no action taken by the company.

[26] The claimant’s submit that he signed the letter appointment on the instruction
of his immediate superior CLWS 3-GM Nor Zaini Bin Abdul Ghani and acknowledge
by the COO then Kwan Joon Hoe.

[27] For the Charge 4, the claimant submits that he had no knowledge when the
said documents referred in the said charge were taken out of the filing area.
According to the claimant, the person directly in charge of the filing and safe
keeping the files was CLWS 2 Aidah Noor Sharizah. She was the leasing Senior
Executive.

[28] When Aidah Noor Sharizah resigned sometimes in mid 2016, there was no
replacement. Anybody who needed the file or document would just walk and take
the file without going through the claimant.

[29] For the Charge 3,the claimant submit that there was a memo of approval by
COO on the appointment of KW-JWEE Marketing Sdn Bhd as a contractor to go
ahead with its Energy Saving Solutions.

[30] The Claimant also submits that the misconduct, which the claimant was
charged, was not proved and alternative to have imposed the maximum punishment
of dismissal for service for the purported misconduct is extreme.

[31] The claimant has pleaded for reinstatement without any loss of wages,
allowances service and seniority.

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[32] The claimant submit that one staff name Mazlisham accepting three(3) gifts
and not declaring it to the management is more serious than the claimant who
accepting two(2) gifts and not declaring to the management. Mazlisham only get a
stern warning but the claimant has been dismiss by the company.

[33] The claimant finally submit that the company failed to prove on a balance of
probabilities that the claimant was guilty of the four charges. The claimant also
submits that tye punishment he face does not commensurte the charges of
misconduct.

THE LAW ON PROCEDURE

[34] It is trite law that where the company elects to dismiss the claimant on a
particular reason, then the court is duty bound to enquire whether the cited reason
has been proven by the company.

[35] The Court referred to the case of Goon Kwee Phay V. J& P Coats ( M) Bhd
[1981] 1 lns 30.

[36] If the reason has been proven, whether such ground constitute just cause or
excuse for the dismissal. The Court refer to the case of Wong Yuen Hock v.
Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344]

[37] The Court also look to the case of Telekom Malaysia Kawasan Utara v.
Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314] with regards to the
standard of proof is on a balance of probabilities.

THE LAW ON MISCONDUCT

[38] An a employee has got certain obligations towards his employer. These
obligations arise form the implied and express terms of the contract of employment.
Any breach of these terms, unless it be of trifling nature, would amount to
misconduct. In the case of Pearce v. Poster 1886(17) QBD 536 it was stated at
page 539 as follow:

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“The rule of law is that where a person has entered into the position of
servant,if he does anything incompatible with the due or faithful discharge of
his duty to his master, the letter has a right to dismisss him.”

THE ISSUE

[39] The issue to be determined by this Court:

(a) Whether the misconduct complained of by the employer has been

establish;and

(b) If so whether the proven misconduct just caise or excuse for the dismissal.

EVALUTION OF EVIDENCE AND FINDING

[40] In respect of issue whether the misconduct complained the employer has
been establish. The Court has gone through all the four (4) charges against the
claimant.

[41] The Court forward that charge 1 and charge 2 which has been done by the
claimant were about the two(2) gifts inform of hampers has been accepted by the
claimant.

Charge 1: It has been alleged that you accept two (2) gifts inform of hampers of
which one of the hampers was from EG Group Holdings Sdn Bhd.You
accepted the gifts and did not declare to the management which is a
serious misconduct and violation of company’s No Gift Policy.

Charge 2: It has been alleged that you brought the two (2) gifts to your home
without prior approval from the management. Your above action is a
serious misconduct and violation of company’s No Gift Policy.

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[42] The claimant did accepted two (2) gifts and the claimant also did bring that
two (2) gifts to his home. Besides that, the claimant did not declare the two gifts until
the claimant was asked to do so during the company’s investigation.

[43] The Court did refer to page 20 until page 24 of COB 2 where it is clearly
stated at para 3.0 : No Gift Policy”

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[44] The claimant confirmed that he receive the two hampers and had brought
home. The claimant was aware of the “No Gift Policy”. The claimant also noticed
that the company look very serious in this matter.

[45] The Court continue by looking the 3rd charge and 4th charge against the
claimant.

Charge 3 : It has been alleged that you acted beyond you scop of authority by
signing the letter of appointment title “ Provision Of Independent
Energy Auditor by TUV-SUD-PSB Pte. Ltd Singapore”as
representative of MRCB Sentral Properties Sdn Bhd with KW-JWEE
Marketing Sdn Bhd,which is a misconduct an violation of MRCB’s limit
of Authority”.

[46] The letter of appointment as per image

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[47] According to the claimant, he had signed the letter of Appointment. The
claimant had signed it upon the instruction of CLWS 3.

[48] The Court found that CLWS 3 did not have the requisite authority to sign the
letter of Appointment.

[49] The Letter of Appoinment is to appoint TUV-SUD to undertake the audio.

[50] The Court also found that CLWS 3 did not have the authority to delegate
such duties to the claimant.

[51] Therefore the Court found that the claimant has done a very serious offence.

Charge 4 : It has been alleged that Senior Manager,in charge of the opration at
Plaza Alam Sentral has failed and or neglected to keep original or
copies of documents of letter of appoinmenttitle “ Provision Of
Independent Energy Auditor by TUV-SUD-PSB Pte. Ltd
Singapore” as representative of MRCB Sentral Properties Sdn Bhd
with KW-JWEE Marketing Sdn Bhd its attachment which you signed
on behalf of the company. Your action is a serious misconduct and
expose the company to risk which include legal suits.

[52] The Court found that the claimant was unable to furnish the letter of
Appoinment when queried. According to the claimant, he was not directly
responsible for the safekepping of the document. The claimant shifting and
deflecting responsibility to CLWS 2.

[53] The Court cannot accept the claimant explaination because he did sign the
letter of Appoinment. The claimant responsible to safe keeping the document. The
document is very crucial to the company.

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[54] CLWS 2 was the subordinate of the claimant at the time. The Court referred
to CLWS 2’s statement before the Court. The Court found that CLWS 2 testified that
keeping contract was not part of her job functions. The content of a letter of
Appoinment also was not within her job scope. When CLWS 2 left her service with
the company, she handed documents over to the claimant. CLWS 2 left the
company on 31 st January 2017.

[55] It is clearly showed that the claimant against make serious offence as per
charge 4.

[56] The Court also go through all the witness statement both parties, look
through all the breach of documents which has been filed by both parties. The Court
has researched in details both submission, which has been filed by both parties.
The Court found that all four charge have been establish and the company
dismissed the claimant with just cause and excuse.

FINDING

[57] For the reason given above,it is the finding of this Court that the claimant had
committed serious misconduct,which justifies his dismissal.

ORDER

[58] Accordingly, the claim is hereby dismissed.

HANDED DOWN AND DATED 21th FEBRUARI 2022

-Signed-

(KALMIZAH BINTI SALLEH)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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