IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 5/4-2437/21

BETWEEN

SHAHRULNIZAM BIN ZULKIFLI

AND

PB SALES SDN BHD

AWARD NO: 844 OF 2023

Before : Y.A. TUAN AHMAD ZAKHI BIN MOHD DAUD

Chairman

Venue : Industrial Court, Kuala Lumpur.

Date of Reference : 21.02.2020

Dates of Mention : 08.11.2021, 08.02.2022, 21.04.2022, 19.05.2022,

24.06.2022

Dates of Hearing : 04.07.2022, 07.07.2022

Representation : Shahrulnizam bin Zulkifli

Claimant in Person

Nor Alina binti Jamar and Emri bin Basri

Representatives for the Company

Reference

This is a reference made under section 20 (3) of the Industrial Relations

Act 1967 (“The Act”) arising out of the dismissal of Shahrulnizam bin

Zulkifli (“Claimant”) by PB Sales Sdn. Bhd. (“Company”) on the alleged

date of 30.11.2020.

1
 AWARD

[1] The Ministerial reference in this case required the court to hear and
determine the Claimant’s complaint of dismissal by the Company on
the alleged date of 30.11.2020.

[2] This Court considered the notes of proceedings, documents and

cause papers in handing down this Award namely:-
(i) the Statement of Case dated 16.12.2021
(ii) the Claimant’s Bundle of documents - CLB1
(iii) the Company’s Bundle of documents - COB1
(iv) the Claimant’s Witness statement - CLW1S (Sharulnizam
bin Zulkifli)
(v) the Company’s Witness statement - COW1S (Emri bin
Basri)
(vi) the Company’s Witness statement - COW2S (Nor Alina
binti Jamar)
(vii) the Claimant’s Written submission
(viii) the Company’s Written submission
(ix) the Company’s Written submission in reply

Background

[3] The dispute before this court is the claim by the Claimant that he had
been dismissed from his employment without just cause or excuse by
the Company on the 30.11.2020.

2
[4] By a letter of offer dated 13.02.2020, the Claimant was offered
employment with the Company as Field Merchandiser, Sales, DLMI.
The Claimant’s last drawn salary was RM 2,140.00.

[5] On the 21.10.2020, the Company issued first warning letter to the
Claimant for absent to work without valid reason or approval.

[6] On the 12.11.2020, the Company issued another warning letter to the
Claimant for repeatedly coming late to work without a valid reason or
approval.

[7] On the 11.12.2020, the Company issued a termination letter to the

Claimant stating that he had been absent from work since
29.11.2020, 30.11.2020 and 02.12.2020 without prior approval and
further information. The Company deemed the Claimant’s contract of
employment to have been terminated with immediate effect pursuant
to section 15(2) of the Employment Act 1955.

The Duty of the Industrial Court

[8] The Supreme Court in the case of Wong Chee Hong v. Cathay
Organisation (M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 held that:
“When the Industrial Court is dealing with a reference under
s. 20, the first thing that the court will have to do is to ask
itself a question whether there was a dismissal, and if so,
whether it was with or without just cause or excuse.”

[9] The Federal Court in the case of Goon Kwee Phoy v J & P Coats (M)
Bhd [1981] 2 MLJ 129 held that:
3
 “Where representations are made and are referred to the
Industrial Court for enquiry, it is the duty of that court to
determine whether the termination or dismissal is with or
without just cause or excuse. If the employer chooses to give
a reason for the action taken by him, the duty of the Industrial
Court will be to enquire whether that excuse or reason has
or has not been made out. If it finds as a fact that it has not
been proved, then the inevitable conclusion must be that the
termination or dismissal was without just cause or excuse”

The Standard of Proof

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

Sanguni Nair & Anor [2002] 3 CLJ 314, the court laid down the
principle that the standard of proof that is required is one that is on
the balance of probabilities.
“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 not required 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.”

4
Claimant’s Case

[11] (a) The Claimant’s dismissal was unjust and lacking just cause.

Company’s Case

[12] (a) The Claimant had been continuously absent from work for
more than two consecutive working days without leave and are
deemed to have broken the Claimant’s contract of service with the
Company under section 15(2) of the Employment Act 1955.

The Evidence - Company’s case

[13] Two witnesses testified for the Company namely COW1 and COW2.

[14] COW1 was Mr Emri bin Basri, the Company’s Field Supervisor. He
testified among other thing that:
(i) the Claimant often found to be absent at work place probably
due to running away from illegal money lender (Ah Long).
(ii) the Claimant informed him that he borrowed money from Ah
Long.
(iii) the Company provides DMS system (Merchandiser daily visit
& activity report) to record the attendance of an employee.
(iv) if an employee login to the DMS system, it will record the
attendance.

[15] COW2 was Mrs Nor Alina binti Jamar, the Company’s Sr HR
Assistant. She testified among other thing that:

5
 (i) the Company took into consideration the working day on
29.11.2020 when determining Claimant’s termination.
(ii) based on the Claimant’s daily attendance reports for the
month of November 2020, he was present at work on that
day.(at page 122 of the COB1)
The Evidence - Claimant’s case

[16] The Claimant was the sole witness for his case (“CLW1”).He testified
among other thing that:
(i) he was present at workplace Aeon Bukit Tinggi, Klang,
Selangor on the 29.11.2020.
(ii) at 9.30 a.m., he received phone call from his wife who was at
the Tengku Ampuan Rahimah Klang Hospital. His wife
informed him that their daughter was in a worrying health
condition and needs his consent for his daughter to be
admitted to the hospital during Covid-19 time.
(iii) he immediately contacted COW1, informing his superior
officer of the situation and make known of his intention to
apply for half day leave or no pay leave to attend to his
daughter at the hospital. His request for leave was rejected
two times by COW1 and was threatened to dismiss him or
warning letter.
(iv) his last drawn salary was RM 2250 and he was a confirmed
staff.
(v) at the moment he is unable to secure a permanent job and he
is doing odd job as a trash collector earning an income
approximately RM1,000 per month.

6
Issues

[17] (a) Whether the termination or dismissal is with or without just

cause or excuse.
(b) whether that excuse or reason has or has not been made out.

The Findings

[18] In this case, the fact of the Claimant’s termination is not disputed.
Thus the only issue to be decided by this court is the claim by the
Claimant that he had been dismissed/terminated from his
employment without just cause or excuse by the Company on the
alleged date of 30.11.2020.

[19] The burden of proof lies on the Company that the Claimant had been
dismissed with just cause or excuse on the balance of probabilities.

[20] The Company had given the reasons for terminating the Claimant’s
employment with the Company (as stated in the termination letter
dated 11.12.2020 - COB1 page 15) namely that he had been absent
from work since 29.11.2020, 30.11.2020 and 02.12.2020 without
prior approval and further information. The Company deemed the
Claimant’s contract of employment to have been terminated with
immediate effect pursuant to section 15(2) of the Employment Act
1955.

[21] The evidence adduced by both parties shows that:

(a) the Company provides DMS system (Merchandiser daily visit
& activity report) to record the attendance of an employee.
7
 . (as stated in para 14(iii))
(b) if an employee login to the DMS system, it will record the
attendance. (as stated in para 14(iv))
(c) the Company took into consideration the working day on
29.11.2020 when determining Claimant’s termination. (as
stated in para 15(i))
(d) based on the Claimant’s daily attendance reports for the
month of November 2020, he was present at work on that
day.(at page 122 of the COB1)(as stated in para 15(ii))
(e) he was present at workplace Aeon Bukit Tinggi, Klang,
Selangor on the 29.11.2020.(as stated in para 16(i))
(f) the Claimant was present at his workplace on the
30.11.2020.(at page 123 of the COB1)
(g) there was no evidence to show that the Claimant was not
present at his workplace on the 02.12.2020.
(h) the date of the Claimant’s termination was on the 11.12.2020
when the Company issued the termination letter and not as
alleged by the Claimant, on the 30.11.2020

[22] The Company has not proved that the Claimant had been absent
from work since 29.11.2020, 30.11.2020 and 02.12.2020 without
prior approval and further information. Thus, the Claimant is not
deemed to have broken his contract of service with the Company
under section 15(2) of the Employment Act 1955.

Remedy

[23] This Court will now consider the appropriate remedy for the
Claimant. The Claimant had served the Company for a period of 8
8
 months (01.03.2020 - 11.12.2020).

[24] The Claimant is 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;
2. In the case of a probationer who has been dismissed
without just cause or excuse, any backwages given shall not
exceed twelve months’ backwages from the date of
dismissal based on his last-drawn salary; ”

[25] The Claimant’s last drawn salary per month was RM2,140.00 (at
page 28 of the COB1) This Court considered the Claimant to be a
confirmed workman based on his testimony and the Company’s
Written submission in reply.

[26] The Federal Court in Dr. A Dutt v Assunta Hospital [1981] 1 MLJ 304
held that the Industrial Court is authorized to award monetary
compensation if it is of the view that reinstatement is not appropriate.
The compensation constitutes two (2) elements namely that of (a)
back wages and (b) compensation in lieu of reinstatement.

[27] It is not certain whether Claimant’s post is still in existence. Thus the
Claimant cannot be reinstated to his former position. The Claimant

9
 can be awarded back wages under Section 30(6A) of the Act to
compensate him for the period that he had been unemployed
because of his dismissal. There is no evidence that Claimant was in
gainful employment.

[28] Having considered all facts of the case the Court hereby orders that
the Claimant be allowed the relief of payment of back wages
equivalent to 24 months ( the period that he was unemployed ) of his
last drawn salary of RM2,140.00. No deduction for post dismissal
earnings made. I find that there was contributory conduct on the part
of the Claimant which lead to the dismissal and make 30% deduction
of back wages. The Claimant is not entitled to be paid compensation
in lieu of reinstatement equivalent to 1 months’ salary for each year
of completed service in the Company, since the Claimant had only
served the Company for 8 months.

[29] The final award shall be :

Back wages of 24 months:
RM2,140.00 x 24 months = RM 51,360.00

Less 30% deduction for the

Claimant’s contributory conduct = RM 15,408.00
Total = RM 35,952.00

[30] The award amount after deducting the necessary statutory

deductions is to be paid by the Company directly to the Claimant
within 30 days from the date of this Award.

10
[31] Based on the whole evidence adduced and having regard to the
written submissions and bearing in mind sub-s. 30(5) of the Act to act
according to equity, good conscience and the substantial merits of
the case without regard to technicalities and legal form, the Court
finds, the Company had failed to discharge its burden of proving that
the Claimant was terminated/dismissed with just cause or excuse on
a balance of probabilities.

HANDED DOWN AND DATED THIS 6 DAY OF APRIL 2023

-signed-

(AHMAD ZAKHI BIN MOHD DAUD)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

11