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Mohd Hafsham Ahmad Bistamam
[2023] MELRU 947 v. Executive Jets Asia Sdn Bhd pg 1
MOHD HAFSHAM AHMAD BISTAMAM

v.
EXECUTIVE JETS ASIA SDN BHD
Industrial Court, Johor Bahru

Azwarnida Affandi
Award No: 947 Of 2023 [Case No: 16/4-1100/20]
17 April 2023
Case(s) referred to:

Adriana Abu v. Mass Rapid Transit Corporation Sdn Bhd [2019] MELRU 419;
[2019] 1 ILR 549 (refd)
Bata (M) Bhd Kelang v. Ch'ng Soon Poh [1984] 1 MELR 41; [1984] 1 ILR 227a
(refd)
Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong [1998] 2 MELR 208; [1998] 2
ILR 965 (refd)
Dreamland Corporation (M) Sdn Bhd v. Choong Chin Sooi & Anor [1987] 1
MELR 39; [1987] 1 MLRA 357; [1988] 1 MLJ 111; [1988] 1 CLJ (Rep) 39 (refd)
Esso Malaysia v. Subramaniam Muthu [1998] 2 MELR 732; [1998] 3 ILR 710
(refd)
Goon Kwee Phoy v. J&P Coats (M) Sdn Bhd [1981] 1 MLRA 415; [1981] 2 MLJ
129 (refd)
Holiday Inn Kuching Sarawak v. Elizabeth Lee Chai Siok [1990] 2 MELR 145;
[1990] 2 ILR 262 (refd)
Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan (and Another Appeal)
[1996] 1 MELR 142; [1996] 1 MELR 216; [1996] 2 MLRA 212; [1996] 2 MLRA
286; [1996] 1 MLJ 481; [1997] 1 CLJ 665; [1996] 3 AMR 3181 (refd)
Innovative Plastic LNP Malaysia Sdn Bhd v. Mahkamah Perusahaan Malaysia
[2015] 4 MLRH 700; [2015] 3 MELR 105; [2015] 4 AMR 654 (refd)
Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 1
MELR 373; [1995] 2 ILR 11 (refd)
James Clement Hii Gion v. Menteri Sumber Manusia & Anor [2015] 2 MELR 525
; [2015] 3 MLRH 465; [2015] 3 CLJ 234; [2015] 3 AMR 63 (refd)
K A Sandaran Nehru v. I-Berhad [2006] 1 MELR 74; [2006] 1 MELR 114; [2006]
2 MLRA 467; [2006] 2 MLRA 778; [2007] 2 MLJ 430; [2007] 1 ILR 257; [2007] 1
CLJ 347 (refd)
Kuala Lumpur Glass Manufacturers Co Sdn Bhd v. Hamzah Gemok [1988] 1
MELR 614; [1988] 2 ILR 155 (refd)
Milan Auto Sdn Bhd v. Wong She Yen [1995] 2 MLRA 23; [1995] 3 MLJ 537;
[1995] 4 CLJ 449; [1996] 1 AMR 049 (refd)
Nadarajah & Anor v. Golf Resort (M) Sdn Bhd [1991] 2 MELR 271; [1991] 4
MLRH 352; [1992] 1 MLJ 506; [1991] 1 ILR 704 (refd)
Sil Ad (Johor Bahru) Sdn Bhd V. Hilton Oswald Franciscus [1996] 3 MELR 373;
[1998] 3 CLJ 233 (refd)
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor
[2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314;
pg 2 v. Executive Jets Asia Sdn Bhd [2023] MELRU 947
[2002] 3 AMR 2898 (refd)

Wong Chee Keong v. Cathay Organisation (M) Sdn Bhd [1987] 1 MELR 32;
[1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 (refd)
Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Anor [1995] 1
MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344; [1995] 2 AMR 2145 (refd)
Legislation referred to:

Industrial Relation Act 1967, ss 20(3), 30(5)
Counsel:
For the claimant: Muhammad Faizal Mokhtar; M/s Balarajah & Co
For the respondent: Premjit Singh; M/s Prem And Associates
[Dismissed the claimant's claim.]
AWARD
Azwarnida Affandi:
(A) Reference
[1] This is a Ministerial reference to the Industrial Court under s 20(3) of the
Industrial Relation Act 1967 (IRA) made on 5 July 2020 for an Award in
respect of the dismissal of Mohd Hafsham bin Ahmad Bistamam against
Executive Jets Asia Sdn Bhd.
(B) Introduction
[2] The court referred to the written submissions and submissions in reply filed
by the parties respectively in this matter.
[3] This court also considered all the notes of proceedings in this matter,
documents and the cause papers in handing down this Award namely:
a) The Claimant's Statement of Case dated 29 September 2020.
b) The Respondent's Statement In Reply dated 21 January 2021.
c) The Claimant's Rejoinder dated 27 October 2021.
d) The Claimant's Bundle of Documents marked as CLB.
e) The Respondent's Bundle of Documents (Vol 1) marked as COB 1
f) The Respondent's Bundle of Documents (Vol 2) marked as COB 2.
g) The Claimant's Witness Statement of Mohd Hafsham bin Ahmad

Bistamam marked as CLWS 1.
h) The Respondent's Witness Statement of Yugathevarao S/O

Visvanada Raw bin Muhammad marked as COWS 1.
i) The Respondent's Witness Statement of Rezela binti Azhari marked

as COWS 2.
(C) The Claimant's Pleaded Case
[4] CLW1 narrated the events leading to his dismissal. He first stated that he
commenced employment with the company on 11 October 2011 as a Flight
Operations Officer/Flight Dispatcher and his last drawn salary was
RM6,430.00 with RM500.00 allowance. (Refer to pp 5-6, CLB).
[5] The Claimant averred that on 18 December 2019, he applied for leave for
20 December 2019 and 23 December 2019 and this was acknowledged by the
company's director Mr Taranjit Singh on 19 December 2019. (Refer to p 7,
CLB).
[6] The said leave was taken for the purpose of picking up his wife who was
under confinement in Perak and his newborn child. The Claimant travelled by
car from Johor to Perak and arrived in Perak on the night of 20 December
2019.
[7] On 21 December 2019 at about 4.15 am, the Claimant was contacted a
number of times by the Commercial Manager regarding a medical evacuation
flight which had landed earlier in the morning. The Claimant averred that at
about 4.25 am, he was contacted by the CEO of the company. Mr Pritphal
Singh and was verbally abused and severely reprimanded for failing to answer
calls from the Commercial Manager.
[8] The Claimant was made to understand that there were some problem with
the flight arrangement agency which did not have the estimated elapsed time
(EET) and the estimation of arrival was also not available at the time.
[9] On 21 December 2019, the Claimant was informed by COW1 that the
Claimant's email account has been blocked and he was not allowed any access
to the company.
[10] The Claimant averred that on 23 December 2019, he was contacted by the
director of the company, Mr Taranjit Singh and was informed that his
employment was terminated. The Claimant claimed that he was instructed to
issue a resignation letter with a one month backdated date which the Claimant
had refused to do so.
[11] On 24 December 2019, the Claimant was served a Notice of Suspension

from the company and was not allowed to access to the company's working
system including email and database. (Refer to p 9, CLB).
[12] The company subsequently issued a Letter of Termination dated 2

January 2020 which was received by the Claimant on 10 January 2020. In the
Letter of Termination, the Claimant was informed that his last day of
employment was 31 December 2019. (Refer to p 10, CLB).
[13] The Claimant averred that the company had made a unilateral decision to
terminate his employment without considering his explanation. The Claimant
stated that during her employment with the Respondent's company, he had
served the company diligently and faithfully and felt that he was unjustly
dismissed.
[14] The Claimant further averred that prior to his termination, he was not
given the opportunity to explain himself and that at the time of the incident, he
was on leave. The Claimant denied any misconduct and averred that he was
deprived of his entitlement to his annual leave.
[15] The Claimant also maintained that the company had not been fair to him
and that he was terminated without just cause or excuse. The Claimant prays
for reinstatement, compensation in lieu of reinstatement, backwages in respect
of the Claimant's last drawn salary and other relief deemed fit and reasonable
by the court.
(D) The Respondent's Pleaded Case
[16] The Claimant commenced employment with the company on 11 October

2011 as a Flight Operations Officer/Flight Dispatcher and his last drawn
salary was RM6,430.00 with RM500.00 allowance. (Refer to pp 3-4, COB 1).
[17] The company is an agent which provides medical evacuation flights to

client by engaging a third party aircraft operator. The services provided include
evacuation of clients who are ill and in critical condition who need urgent
evacuation to a different country to seek medical treatment.
[18] The Respondent averred that the company was required to evacuate a
client/patient from Mongolia to Bangkok. It is pivotal on the company's
operation team to prepare and execute each evacuation mission. This includes
route planning, fuel consumption, flight permits applications, flight monitoring
on flight watch system and etc.
[19] The company further averred that the Claimant was part of the flight
operations team that worked on flexible hours and was tasked to be on duty
until the completion of the flight mission.
[20] In furtherance to this, the company stated that there are two persons who
are part of the flight operations, ie the Claimant and COW1. The company
averred that the Claimant had accepted the assignment referred to as Manila
Operation and therefore was duty bound to follow through the mission until
its full completion.
[21] The company also averred that the Claimant had confirmed that he will
be handling the mission in the company's group WhatsApp where the
Claimant and COW1 were also part of the said WhatsApp group.
[22] The company averred that the Claimant had clearly indicated that he will
take up the assignment via his text stating: "I want to be in par with manila
op". (Refer to p 12, COB 1).
[23] The company stated that the Claimant, as a Flight Dispatch Manager
upon taking up the assignment was in charge of the flight mission from Manila
- Hanoi - Mongolia - Bangkok - Manila. The company averred the Claimant
had only requested COW1 to handle the flight departure from Manila to
Hanoi in which the flight transited in Hanoi for refueling. Subsequently, the
Claimant is to handle the flight departure from Hanoi to Mongolia.
[24] Nonetheless, the company contended that the Claimant was

uncontactable during the aircraft enroute to Mongolia and the aircraft was
stranded in Mongolia. As a result of that, the flight was delayed for more than
3 hours with a patient on board who required medical treatment in Bangkok.
[25] The operations team and Mr Pritphal Singh, who is the director of the
company had made numerous calls to the Claimant to rectify the issue but the
Claimant remained uncontactable. Given no choice, Mr Pritphal Singh had
instructed COW1 to take over the assignment. COW1 too had tried to contact
the Claimant but to no avail. COW1 proceeded to inform the Captain of the
situation and that the Claimant had not prepared the estimated elapsed time
(EET) which was the estimated time of arrival from one border to another
border.
[26] The company averred that the Captain had to prepare the EET himself
after coordinating with COW1. Eventually, the flight managed to depart at
055 local time. The Claimant was only contactable after the flight's departure
to Bangkok.
[27] In his defense, the Claimant stated that he was on leave on that day. The
company averred that the Claimant was negligent in discharging his duties as
upon accepting the assignment, the Claimant was duty bound to ensure that
the assignment is followed through until its completion. However, the
Claimant had failed to carry out his duties and responsibilities diligently. The
Claimant's negligence had put the client's life at stake and had also caused
inconvenience to the crew members on board.
[28] The company averred that the reason the Claimant took up the
assignment was because he is entitled to claim for rotating shift allowance.
[29] The Claimant was subsequently suspended from 24 December 2019 and
was not allowed to access the Company's working system during his
suspension pending investigation.
[30] The company maintained that the Claimant's dismissal was carried out
with just cause and excuse and pray that the Claimant's case be dismissed.
(E) The General Law
[31] Industrial relations jurisprudence requires that an employer must act bona
fide and not capriciously or with motives of victimization or unfair labour
practices or any ulterior motive or collateral purposes when dismissing an
employee.
[32] However, the question of bona fide is a question of facts for the Industrial
Court to ponder, peruse and investigate. The Industrial Court is empowered
and duty bound to investigate the facts and circumstances to determine
whether the dismissal was in fact bona fide.
[33] The function of the Industrial Court under s 20 of the Industrial Relations
Act 1967 is clearly stated in the case of Goon Kwee Phoy v. J&P Coats (M) Sdn
Bhd [1981] 1 MLRA 415; [1981] 2 MLJ 129 where the Federal Court decided
as follows:
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 the 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 the termination or
dismissal was without just cause or excuse. The proper enquiry of the
court is the reason advanced by it and that court High Court cannot go
into another reason not relied on by the employer or find one for it.
[34] Similarly in the case of Wong Chee Keong v. Cathay Organisation (M) Sdn
Bhd [1987] 1 MELR 32; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ
(Rep) 298, the Supreme Court held as follows:
When the Industrial Court is dealing with a reference under s 20, the
first thing that the Court will have to do is ask itself a question whether
there was a dismissal, and if so, whether it was with or without just
cause or excuse.
[35] In the case of K A Sandaran Nehru v. I-Berhad [2006] 1 MELR 74; [2006]
1 MELR 114; [2006] 2 MLRA 467; [2006] 2 MLRA 778; [2007] 2 MLJ 430;
[2007] 1 ILR 257; [2007] 1 CLJ 347, 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 constitute just cause and
excuse for the dismissal.
[36] Hence, it can be said that the court is tasked to determine whether the
Claimant was in fact terminated and that the termination was with just cause
and excuse.
[37] The term "dismissal" under s 20 of the Act is not clearly spelt out and
generally covers the act of termination on the employee by the employer. In
the case of Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong [1998] 2 MELR
208; [1998] 2 ILR 965 (Award No 368 of 1998) the court held as follows:
In a s 20 reference, a workman's complaint consists of two elements:

firstly, that he has been dismissed, and secondly that such dismissal
was without just cause or excuse. It is upon these two elements being
established that the workman can claim his relief, to wit, an order for
reinstatement, which may be granted or not at the discretion of the
Industrial Court. As to the first element, industrial jurisprudence as
developed in the course of industrial adjudication readily recognizes
that any act which has the effect of bringing the employment contract
to an end is a 'dismissal' within the meaning of s 20. The terminology
used and the means resorted to by an employer are of little
significance; thus, contractual terminations, constructive dismissal,
nonrenewal of contract, forced resignations, retrenchments and
retirements are all species of the same genus, which is dismissal.
(F) Burden Of Proof
[38] It is trite law in cases where dismissal is not in dispute, the duty to prove
in court that the dismissal was with just cause and excuse lies on the employer
on the balance of probabilities.
[39] The settled principle was enunciated in the case of Ireka Construction
Berhad v. Chantiravathan Subramaniam James [1995] 1 MELR 373; [1995] 2
ILR 11 (Award No 245 of 1995) where the Industrial Court held as follows:
It is basic principle of industrial jurisprudence that in a dismissal case

the employer must produce convincing evidence that the workman
committed the 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.
[40] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni
Nair & Anor [2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129;
[2002] 3 CLJ 314; [2002] 3 AMR 2898, it was made clear that the standard of
proof that is required is on the balance of probabilities:
The standard of proof applicable is the civil standard, ie proof on

balance of probabilities which is flexible so that the degree of
probability required is proportionate to the nature and gravity of the
issue.
[41] As a court of arbitration, the Industrial Court is to decide a case in

accordance to equity and good conscience. The principle is demonstrated in
the case of Nadarajah & Anor v. Golf Resort (M) Sdn Bhd [1991] 2 MELR 271;
[1991] 4 MLRH 352; [1992] 1 MLJ 506; [1991] 1 ILR 704 as follows:
It is therefore to be observed that in view of the provisions of s 30 (5)

of the Act, the Industrial Court must act according to equity, good
conscience and substantial merits of the case without regard to
technicalities and legal form. Technical rules such as estoppel,
limitation, lathes, acquiescence, etc (unless otherwise provided for in
the Act) have no place in industrial adjudication and they should not
be allowed to be invoked for defeating claims which are just and
proper.
[42] The same principle was reiterated in the case of James Clement Hii Gion v.
Menteri Sumber Manusia & Anor [2015] 2 MELR 525; [2015] 3 MLRH 465;
[2015] 3 CLJ 234; [2015] 3 AMR 63 where the High Court held as follows:
The Industrial Relations Act 1967 (IRA) was intended to promote

industrial harmony and is a piece of social legislation. In fact pursuant
to the provisions of s 30 (5) IRA the court (Industrial Court) is
enjoined to act in according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal
form. From this, it can be gathered that the normal rules of evidence
that normally operate in the sphere of civil evidence and procedure do
not apply with equal force to industrial proceedings. Even though s 30
(5) of the IRA applies to the proceedings before the Industrial Court,
the spirit and intention of the IRA and the manner in which industrial
disputes ought to be approached as a whole are clearly evident.
[43] In the case of Bata (M) Bhd Kelang v. Ch'ng Soon Poh [1984] 1 MELR 41;
[1984] 1 ILR 227a, the Industrial Court laid the guidelines when considering a
dismissal case as follows:
We are in no doubt that the duty of the court is to make a finding

whether the dismissal was without just cause or excuse as it is clearly
so stated in s 20(1) of the Act. In arriving at its finding, the court must
identify the employer's reason for dismissal.
[44] The next issue which the court must consider is whether the
circumstances of that dismissal was fair or otherwise. This issue is determined
by considering the following factors:
a) Did the employer act reasonably in forming the view of the facts?
b) Did the employer adopt a reasonable procedure when terminating

the Claimant?
c) Did the employer act reasonably in concluding that dismissal was

warranted in the circumstances?
(G) Evaluation And Findings Of The Court
[45] In evaluating the evidence adduced by both parties, the court will consider
the following factors:
i. The reasons given by the Company that warrants the Claimant's

dismissal.
ii. Whether the Company had succeeded in proving these reasons in

the balance of probabilities.
a) Negligent Conduct
[46] The company submits that the Claimant was terminated because of his
dereliction of duties to the company. His termination letter states the following
reason for his termination:
Your conduct and performance were totally unsatisfactory and it has

been determined that your continued employment would represent a
danger to flight movements and to the life of critically ill and injured
patients.
(Refer to p 35-37, COB 1).
[47] It is not disputed that the Claimant is a Flight Dispatcher and had
commenced work with the company since 11 October 2011. (Refer to p 3-4,
COB 1). As gathered from the facts of the case, the Claimant's termination
stems from an assignment where the company was tasked to evacuate a
client/patient from Mongolia to Bangkok to seek medical treatment. The
Claimant was part of the flight operations team that worked on flexible hours
and their responsibilities were only fully discharged upon the completion of
the flight assignment.
[48] The Claimant's job scope and responsibilities are spelt out in the Civil
Aviation Authority of Malaysia: Flight Operations directives (Refer to p 166,
COB 2). The duties of a Flight Operations Officer/Flight Dispatcher are listed
as below:
DUTIES OF FLIGHT OPERATIONS OFFICER/LIGHT

DISPATCHER
(a) A flight operations officer/flight dispatcher in conjunction

with a method of control and supervision of flight operations
in accordance with ORO GEN 110 shall:
1) Assist the PIC in flight preparation and provide

relevant information;
2) Assist the PIC in preparing the operational and Air

Traffic Services (ATS) flight plans, sign when
applicable and file the ATS flight plan with the
appropriate ATS unit, and
3) Furnish the PIC while in flight, by appropriate

means, with information which may be necessary for
the safe conduct of the flight.
(b) In the event of an emergency, a flight operations

officer/flight dispatcher shall:
1) Initiate such procedures as outlined in the OM

while avoiding taking any action that would conflict
with the ATC procedures; and
2) Convey safety-related to the PIC that may be

necessary for the safe conduct of the flight, including
information related to any amendments to the flight
plan that become necessary in the course of the flight.
Note - It is equally important that the PIC also convey similar

information to the flight operations officer/flight dispatcher
during the course of the flight, particularly in the context of
emergency situations.
[49] COW1 in his Witness Statement explained that the Claimant as a Flight
Dispatcher Manager upon taking on the assignment was in charge of the
charter service from Hanoi - Mongolia - Bangkok and the rest of the route. The
Claimant had requested COW1 to handle the departure of the flight from
Manila only and after that the Claimant took over the arrival of the flight from
Manila to Hanoi in which the flight stopped at Hanoi for refueling. Then the
aircraft departed from Hanoi to Mongolia and this was also handled by the
Claimant. While the aircraft was enroute to Mongolia, the Claimant was not
contactable and missing in action. As a result, the flight was left stranded in
Mongolia. (Refer to p 12, COB 1).
[50] The Claimant on the other hand argued that it was not part of his job
requirement to prepare the Estimated Elapsed Time (EET) and therefore was
not in breach of his duties. In this regard, the court finds that his testimony
contradicts to the evidence given by him during cross - examination where he
admitted that his job scope and responsibilities was to assist the Pilot In
Command (PIC) and that he was required to provide all necessary information
to the captain.
[51] This is seen from his testimony during cross - examination as follows:
Q: Ok. Alright. Sekarang nak rujuk kepada muka surat COB2, yang
ini yang tebal, warna purple colour, 166. You lihat ms 166, COB2 dan
juga ms 3. So ms 3 dengan muka surat 4 ini adalah muka surat depan
dari CAAM. CAAM ialah Civil Aviation Authority Malaysia
guidebook. Apa pula guidebook, ini ialah fight operation
directive.Tengok muka surat 3 dengan 4. So ia ialah pihak berkuasa
Malaysia lah?
A: Ya.
Q: Penerbangan Malaysia, betul?
A: Betul.
Q: Betul, ok. Awak setuju dengan saya, ini flight operation directive
walaupun dia maksudnya directive, kalau kita faham dalam Bahasa
Inggeris ialah manual, tapi dalam industri En Hafsham penerbangan
ini adalah bagai satu peraturan atau rules, betul?
A: Betul.
Q: Betul. Ya. Ok sekarang saya terus pergi ke ms 166. So dalam

dokumen in Civil Aviation Authority Directive ini dinyatakan adalah
tugas kerja seorang flight dispatcher yang dimandatekan lah bayar
mengikut peraturan. Ok. You tengok a1, a2 dan a3. Yang Arif, 166
the page is on the side right, so ada a1, a2 dan a3 lah ok. Dia tulis
disini ialah assist the PIC lah dalam flight preparation and providing
the relevant information ok. Apa yang dimaksudkan dengan PIC,
boleh awak bagi tahu?
A: Pilot in command.
Q: Pilot in command. Awak setuju dengan saya, di dalam berkenaan

kes hari ini penerbangan pada 20 hingga 21 Desember 2019 pilot in
command yang dimaksudkan adalah Kapten Phillips dari Lion Air?
A: Ya.
Q: Seterusnya, b ya. B1 dan b2 ini adalah tugas kerja utama anda

sebagai flight dispatcher apabila melibatkan isu - isu kecemasan, betul?
A: Betul.
Q: Dan saya balik kepada a3, a3 ms 166 COB2 Yang Arif. Furnished
the PIC while in flight by appropriate means with the information
which may be necessary. Ok. Setuju dengan saya ini juga termasuk
memberi maklumat berkenaan flight plan, kelulusan menara kawalan
dan juga EET. Estimated... sorry I just backwards EET. Estimated
elapsed time penerbangan pada hari kejadian 20-21 Desember 2019.

Setuju dengan saya?
A: Ya.
[52] That being the case, the court views that the Claimant was fully aware of
his responsibilities when referred to of the said document. The Claimant also
agreed during cross examination of the 3 main responsibilities which are
important to a flight operations officer/flight dispatcher which were:
a) To assist the PIC in flight preparation and provide relevant

information;
b) To assist the PIC in preparing the operational and Air Traffic

Services (ATS) flight plans, sign when applicable and file the ATS
flight plan with the appropriate ATS unit, and
c) To furnish the PIC while in flight, by appropriate means, with

information which may be necessary for the safe conduct of the flight.
[53] There were two persons who are part of the flight operations, the
Claimant and COW1. It was clear from the evidence adduced, the Claimant
had informed via the company's group WhatsApp that he will be taking over
the Manila Operation assignment. The text sent by the Claimant in the
company's WhatsApp group stated 7 want to be in par in manila ops". The
company contended that the Claimant as a Flight Dispatch Manager upon
taking the assignment was in charge of the flight mission until its full
completion.
[54] According to COW1, it was the Claimant who had first responded to take
up the Manila Operation assignment. This can be clearly seen in the evidence
given by him during re - examination as follows:
Q: Ok. My next question is, this is the question about " I want to be in
par with Manila Op". So, my learned friend asked you the question
that, whether you are not sure whether he wanted to take up the
assignment. Ok. You said, you agree you are not sure whether he is
taking up the assignment. You wanted to explain with regards to the
assignment. Can you please tell the court what you wanted to explain?
A: Ok Puan, because after the commercial team sent the confirmation

flight, Hafsham was the first person to accept the job. So in my
understanding, first it was like discussing about the flight details. So
when he sent ' the par ', I understand he wants to be like part of the
Manila Operation to discuss about the flight or something. That is
what I remember. That is it, Puan.
[55] The court, upon viewing the text message did not find any element of
compulsion or coercion from the company that might have pressured the
Claimant to accept the said assignment. The Claimant had on his own will
agreed to accept the assignment and had expressed his willingness to do so via
his text "I want to be in par with manila ops". The court is of the view that the
text itself showed that the Claimant had accepted the assignment on his own
accord. He was neither forced verbally or by conduct nor pressured in any way
by the company to accept the said assignment. In short, he was under no
obligation to accept the Manila Operation and could have refused it if he
wanted to.
[56] On the contrary, it was the Claimant who offered himself to do the
assignment. At no point of time did he showed any discontentment when
taking up the assignment. There was also no evidence to show that the
Claimant was made a scapegoat and that he was coerced or forced to accept
the assignment. The Claimant's narrative contradicts with the evidence given
by COW1 and the text conversation in the company's group chat. The
Claimant had readily accepted the assignment by texting "I want to be in par
with manila ops". Despite claiming that he was on leave on 20 December 2013
and 23 December 2013, the Claimant had informed the company that he will
be taking over the assignment and therefore was obligated to see through the
assignment until it is fully completed.
[57] Nonetheless, the Claimant disappeared from the company's group

WhatsApp and had failed to update the status of the flight to the group. The
Claimant last text was at 9.20 pm and he was uncontactable thereafter. (Refer
to p 12, COB 1). The company had tried to contact him but the Claimant
remained unreachable.
[58] In addition to this, the flight captain, Captain Phillip had informed the
Flight Manager, Alex that he had spoken to the Claimant earlier requesting
about the flight plan which the Claimant insisted that it had been refiled.
However, when the Claimant was contacted again by the captain to confirm
the status, he did not pick up the call. The captain mentioned that when he
first spoke the Claimant, the Claimant sounded very sleepy. The captain was
left in a lurch of not knowing the status of the flight plan or the need of it to be
refiled. (Refer to p 18, COB 1).
[59] In his defense, the Claimant averred that he was on leave, hence the
reason for his sudden disappearance from the company's group WhatsApp. He
further averred that on 18 December 2018, he had applied for leave for 20
December 2019 (Friday) and 23 December 2019 (Monday) and this was
acknowledged by the company's director, Mr Taranjit Singh on 19 December
2019. The leave was utilized to attend to his personal matters.
[60] The Claimant in his averment stated that he had travelled from Johor to
Perak by car to pick up his wife and his new born and had arrived in Perak at
night of 20 December 2019. However, when he was put under cross -
examination, the Claimant agreed that he did not inform the company's group
WhatsApp of his applied leave but instead texted "I want to be in par with
manila ops" indicating that he had accepted the assignment. (Refer to p 7,
CLB).
[61] Perusing the text message, the court did not find any mention by the
Claimant informing the company that he was on leave. When his evidence
was tested during cross - examination, the Claimant could not give any
explanation and neither could he prove of the leaves he took. The court refers
to the evidence given by the Claimant in his cross - examination as below:
Q: Ok. CLB, awak punya bundle ya. Lihat awak punya bundle. Lihat
muka surat yang you punya leave form di ms 7. Pagination 7. Awak
punya tarikh you ambil cuti adalah pada 20hb Disember dan 23hb
Disember. Dua hari sahaja yang dinyatakan dalam dokumen tersebut.
You lihat di baris no 4, 3. Numbers day applied, dua hari sahaja.
Betul?
A: Setuju.
Q: Betul. Dan sekarang saya nak balik kepada, saya hampir nak habis
already. COB1, pada 8, ms 8, muka surat 9, ms 10, muka surat 11. Ini
semua adalah mesej - mesej pada 20hb Disember. Tidak pernah satu
kali pun di dalam mesej - mesej ini awak nyatakan yang awak bercuti
dan tidak boleh bertanggungan. Awak tidak menyatakan dalam mana
- mana mesej di dalam ms 8 sehingga 11 yang awak bercuti dan tidak
boleh bertanggungan terhadap flight Mongolia tersebut, setuju? Dalam
sini tak ada ditulis.
A: Setuju tidak ada tulis.
Q: Dan soalan sama, daripada ms 8 sehingga ms 13, awak tidak

menyatakan di dalam mana - mana mesej daripada ms 8 sehingga 19
iaitu komunikasi syarikat bahawa awak bercuti pada 20 dan 23hb
Disember dan tidak boleh bertanggungan terhadap flight Mongolia
tersebut. Tidak pernah pada bila - bila masa, setuju?
A: Setuju.
Q: Setuju. Dan soalan yang sama juga, dalam ms 8 sehingga 13, awak
tidak pernah pada mana - mana masa di dalam ms 8 sehingga 13
menolak daripada mengendalikan flight Mongolia tersebut.
Maksudnya. Tidak pernah pada mana - mana masa, awak tiba - tiba
katakan " Sekarang saya tak boleh buat flight ini lagi dah ". Dalam ms
8 sehingga ms 13, betul?
A: Betul.
Q: Di kesemua Ikatan dokumen di mahkamah pada hari ini iaitu di

Ikatan dokumen syarikat, COB, Ikatan Dokumen kamu, CLB, tidak
ada apa - apa dokumen bertulis atau mesej ataupun emel mengatakan
awak tidak boleh mengendalikan flight Mongolia tersebut pada 20,
21hb Disember ataupun menolak mengendalikan flight tersebut,
mengendalikan flight tersebut pada 20 dan 21hb Disember. Dalam
semua dokumen ini tidak ada. Dokumen ya. Semua dalam dokumen
ini tak ada, setuju?
A: Setuju.
[62] In this regard, the court is of the view that if the Claimant was on leave on
20 December 2019 (Friday) and 23 December 2019 (Monday), then he should
have not agreed to take on the assignment in the first place. What was more
perplexing was that the Claimant, despite asserting that he was on leave, took
control over the initial flight arrival from Manila to Hanoi but later to the
company's dismay, disappeared from the group's WhatsApp and could not be
contacted at all from 2 am until 4 am while the flight was still enroute. This
had left the company to instruct COW1 to take over the assignment and rectify
the chaos.
[63] Either way, it was not appropriate for the Claimant to accept the
assignment as he was supposed to be on leave. He had also been travelling
long distance earlier on. Given the circumstances, it is likely that he would be
exhausted from the long drive from Johor to Perak and thus unable to give his
full concentration to the task at hand.
[64] Hence, this court is led to an inference that the only reason the Claimant
took the said assignment was because he was entitled to flight watch claim.
There was no other plausible explanation forwarded by the Claimant as to
why he had accepted the assignment when he was on leave as asserted. This
position is further fortified by the Claimant's evidence during cross
examination as below:
Q: Setuju dengan saya, pada hari tersebut 20hb Disember, awak

entitled... berhak untuk mendapatkan flight watch claim entitlement,
pembayaran wang?
A: Ya.
Q: Berapa yang awak patut dapat pada hari tersebut?
A: Untuk weekend RM180.
Q: RM180. Tapi 20hb itu bukan weekend, dia Friday pun dapat
RM180 kan? Patut awak ambil cuti lah?
A: Ya.
Q: Kerana claim RM180?
A: Ya. Cuti dan weekend.
Q: Cuti dan weekend lah. Cuba.. saya cuba nak sahkan, sepatutnya
you patut dapat, untuk flight Mongolia, Jumaat RM180, Sabtu pun
RM180 kerana flight itu dah masuk sampai pukul 2:00 AM sampai
pukul 04:00 AM, you dapat satu lagi claim RM180, betul?
A: Ya.
Q: So total you akan dapat RM360?
A: Ya.
[65] In addition to this, the Claimant's negligence in discharging his duties was
evident from the outgoing call history from the company to the Claimant.
(Refer to p 19-20, COB 1). The Claimant's disappearance while on duty was
clearly a dereliction of his duties and this tantamount to a serious negligence
on his part. The company was left in a disarray and had to resort to other
contingency plan of contacting COW1 to take over the Claimant 's duties and
assist the safety of the flight which involved:
a) Refiling the flight plan for the tower in Ulan Bator
b) Changing and refiling the flight plan to Bangkok; and
c) Providing noise certificate required for the aircraft to land in

Thailand.
[66] When queried on his disappearance, the Claimant under cross -

examination admitted that he was asleep from the period of 2 am to 4 am
despite being on duty on the said date. From the court's perspective, the
Claimant's conduct can lead to a potential flight risk as the flight was operating
with unconfirmed flight plan due to the Claimant's failure to confirm the flight
plans with the flight captain as he was asleep while on duty. The Claimant's
own admission of him falling asleep while on duty is seen in his cross -
examination as follows:
Q: Dan soalan terakhir saya, pada hari tersebut, pada 21hb Disember
pada pukul 02:00 AM sehingga pukul 04:00 AM, awak tidak
menjawab telefon tersebut, kesemua orang yang telefon kamu lah,
Alex, Prithpal, Captain Phillips pada masa itu kerana awak tidur,
betul?
A: Betul, Tertidur.
[67] Sleeping on duty is regarded as a serious misconduct especially if an

employee is responsible on the safety or security of others. The court refers to
the case of Kuala Lumpur Glass Manufacturers Co Sdn Bhd v. Hamzah Gemok
[1988] 1 MELR 614; [1988] 2 ILR 155 (Award No 24 of 1988) where the
Industrial Court held:
Sleeping while on duty is regarded as a serious misconduct. This is

more so when the offender is a security guard as he is responsible for
the safety and security of the area he is engaged to safeguard.
[68] Similarly in the case of Esso Malaysia v. Subramaniam Muthu [1998] 2

MELR 732; [1998] 3 ILR 710, the court held as follows:
[5] The Claimant having served the company for more than 10 years,
should have known what his duties were. It was his duty as a guard, to
ensure that the area was safe. By his behaviour, he had exposed the
company to unreasonable risk.
...
[7] A security guard who falls asleep when on duty commits as serious
offence. Furthermore, a guard who leaves a place he was assigned to
guard, for unreasonable time especially one which would pose a
danger to anyone approaching it, could be said to have betrayed his
responsibilities in the full sense. The claimant therefore, by his absence
of a positive action, had committed a grave misconduct that the
company had correctly reacted upon.
[69] Drawing inference to the present case, the Claimant was under obligation
to stay vigilant and be on alert to assist the pilot of the flight plans. His duties
and responsibilities is said to have been discharged once the assignment is
completed fully. This was not done by the Claimant as he fell asleep while on
duty.
[70] The Claimant being asleep while on duty was clearly an act of negligence
as he had failed to perform his duty dilligently until the completion of the
assignment. This is compounded with the fact that he had remained
uncontactable during the crucial moment when he was needed. His conduct
had tantamount to an apparent dereliction of his duties. The court refers to the
case of Innovative Plastic LNP Malaysia Sdn Bhd v. Mahkamah Perusahaan
Malaysia [2015] 4 MLRH 700; [2015] 3 MELR 105; [2015] 4 AMR 654 where
it was held as follow:
[41] The relevance and weight of this assertion was similarly not stated
in the 2014 award by the first respondent. In my view, based on the
Apllicant's Statement In Reply, the grounds for the issuance of the
Letter of Warning were firstly the fact of the second respondent being
totally uncontactable despite efforts by the Applicant (he did send an
SMS to briefly say to be on MC due to "red eye" without mentioning
for how long) and that secondly, it was also during the crucial few
days prior to the signing of the Collective Agreement on 1 November
2007 which should be rightly under his responsibility".
[71] The Claimant however contended that it was not fair for him to be
dismissed on the ground of a single act of misconduct. In this regard, the court
is of the view that falling asleep while on duty is a serious misconduct as it had
resulted to a chain of cause and effect on the company, particularly when the
nature of business of the company is to provide medical evacuation to
client/patient.
[72] The term misconduct is not defined expressly in the Act. The Industrial
Court in the case of Holiday Inn Kuching Sarawak v. Elizabeth Lee Chai Siok
[1990] 2 MELR 145; [1990] 2 ILR 262 elaborated the term misconduct as
follows:
... the dictionary meanings of the word misconduct are improper

behavior, intentional wrong doing or deliberate violation of a rule of
standard behavior. In so far as the relationship of industrial
employment is concerned, a workman has certain express or implied
obligations towards his employer. Any conduct inconsistent with the
implied duties of an employee towards his employer unless it be of
trifling nature would constitute an act of misconduct: see award
number 37/76 Malaysia Thung Pau Ltd and 4 employees.
[73] Hence, it can be said that incidents of misconduct are subjective in nature
and very much depend on the work requirement of each company. There is no
steadfast rule to say that what amounts to a misconduct in a company would
tantamount to a misconduct in another company. The test is on the employer
to show that the gravity of the said misconduct would disrupt the smooth
operation of the company.
[74] In BR Ghaiye's text on "Misconduct in Employment" at pp 68 and 69, the

learned author states as follows:
9. If an act is trivial it is not misconduct
Every type of misconduct may vary in degree of intensity;

from very trifle to very serious. However, dismissal is a serious
matter and should not be lightly resorted to. The maxim "De
minimis not curax lex " (Law does not take cognizance of
trifles) specially applies to dismissal. It should be understood
that neither illness nor incapacity for a temporary period
entitles the master to terminate the contract. Trifling acts of
negligence, insolence or indecency would also not justify
dismissal. Aggravating factors are repetition and serious
consequences and these factors can convert even minor
misdemeanor into serious misconducts justifying dismissal. A
thing may be minor but if repeated it becomes serious.
Similarly, even if any minor results or is likely to result in
serious consequences, then it assumes the character of serious
misconduct. Circumstances may invest minor things into
seriousness. If orders are given not to do any act of
misdemeanor, then it is misconduct because it leaves no doubt
that the act is intentional and deliberate and not due to
forgetfulness and negligence.
10. The concept of misconduct is variable

As pointed out by the Judicial Committee of the Privy Council

in Clouston v. Corry 196 AC 122, that there is no fixed rule of
law defining the degree of misconduct justifying dismissal
from service. It is a question of fact in the individual case
whether misconduct in question is inconsistent with the
fulfilment of the implied or express conditions of service. But
misconduct, by which again is meant conduct inconsistent
with the due and faithful discharge of the duties of service,
such as, breach of confidence or promoting insubordination,
conduct prejudicial to the master's interest, an act of
dishonesty in the course of service, etc, have been held to
justify dismissal.
It is held by Supreme Court that in the absence of standing

orders it would be open to the employer to consider
reasonably what conduct can be properly treated as
misconduct. It would be difficult to lay down any general rule
in respect of this problem. Acts which are subversive of
discipline amongst the employees would constitute
misconduct.
[75] Drawing attention to the present case, the court is satisfied that the
Claimant's negligent conduct had caused a series of unfortunate events that
had left the company frantically trying to get hold of the Claimant. As a result
of the Claimant's unavailability, the flight was stranded in Mongolia and the
company had to rely on other contingency measure to rectify the situation due
to the Claimant's irresponsible behavior.
[76] Flight dispatchers are one of the key players in the aviation field as they
are tasked to plan the flights and coordinate with relevant agencies to ensure
the flight makes it from one destination to another. The most important task of
a flight dispatcher is to ensure that an airliner operates as safely as possible and
this includes monitoring the flight before the departure, during its arrival and
along the route. In short, flight dispatchers are the pilot's ears and eyes on the
ground. Therefore, a standard of duty and care is expected of him to discharge
his duties diligently.
[77] The company had suffered hardship due to the Claimant's negligence as
the patient on board was pregnant who required medical treatment in Bangkok
and the delay caused by the Claimant posed a risk of endangerment to the life
of the said patient. In addition to this, the patient and the entire crew involved
was left stranded at airport under the blistering cold weather of - 25 Celsius to -
30 Celsius and the captain had to open the door to rectify the situation despite
the uncompromising weather. (Refer to p 14 and p 21, COB 1).
[78] The Claimant's negligence had resulted delays and the parking slots
booked by the company to ensure all crew members get sufficient rest before
continuing the mission became overdue. Leaving no alternative, the crew
members were forced to land at the Senai International Airport and their
resting time which was scheduled for 11 to 12 hours was cut short.
[79] The Claimant contended that the Manila Operations was delayed due to
the late arrival of the pilot, Captain Phillips Leach. The Claimant further
averred that he had completed his task beforehand and cannot to be faulted for
the flight's delay. However, in the company's group WhatsApp, it was evident
that the Claimant was aware that the timing of the PIC could be potentially be
delayed. Given the circumstances, the company had try to mitigate the
potential situation by asking the Claimant to prepare ahead of schedule. (Refer
to pp 9-10, COB 1). Hence, the Claimant's contention that the flight delay was
caused by the pilot is without merit and ought to be rejected.
[80] In his submissions, the Claimant denied taking sole responsibility of the
operation and asserted that there were three other persons forming the flight
operations team. Therefore, it was not fair for the company to place the blame
solely on the Claimant as overseeing the Manila Operation was a collective
responsibility of the team. The Claimant's denial however contradicts to the
evidence given by him under cross - examination where the Claimant
confirmed that he was the only one within his team who has the Civil Aviation
Authority Malaysia license. The testimony of the Claimant is seen as below:
Q: Boleh awak sahkan ya, bahawa dalam syarikat Executive Jets awak
seorang sahaja yang ada kelayakan ini?
A: Pada masa tersebut, ya. Hanya saya seorang.
Q: Awak setuju dengan saya, pembantu anda En Rao yang memberi

keterangan pada pagi ini, dia tidak mempunyai kelulusan dan
kelayakan lesen daripada Civil Aviation Authority Malaysia, betul?
A: Setuju.
Q: Boleh bagi tahu dengan mahkamah, awak punya tugas sebagai

flight dispatcher manager. Apa sebenarnya tugas kerja awak? So kita
semua boleh faham.
A: Tugas sebagai seorang flight dispatcher ialah menguruskan operasi

sebuah pesawat setelah mendapat order daripada sales seperti
menguruskan perjalanan kapal, mengikut laluan ..
Q: Perlahan sikit, sorry yang ini perlahan sikit, Yang Arif tengah tulis.
A: Ok. Saya ulang. Menguruskan operasi pesawat seperti laluan,

permit, kuantiti minyak yang diperlukan, pemilihan juruterbang on
duty pada masa tersebut dan juga kelulusan - kelulusan dan
arrangement yang berkaitan.
Q: Bila awak maksudkan tadi kelulusan, saya punya soalan adalah,

setuju dengan saya kelulusan yang dimaksudkan adalah kelulusan
yang diperlukan daripada pihak - pihak berkuasa penerbangan,
Aviation Authority?
A: Ya.
[81] The Claimant further averred that COW1, who was the Claimant's
assistant was equally to be blamed for the Manila Operation incident as the
operation was a shared responsibility. COW1 on the other hand informed the
court that his role was to assist the Claimant as at that point of time, he had
only joined the company for three years. He was inexperienced and was not
certified with the Civil Aviation Authority Malaysia.
[82] The Claimant had in fact conceded to the suggestion that COW1 was
inexperienced and this can be seen from his evidence during cross -
examination as below:
Q: Awak setuju dengan saya juga antara awak dengan En Rao, yang
awak punya pembantu, untuk flight - flight yang panjang, flight - flight
yang melibatkan beberapa negara, tanggungjawab untuk menguruskan
kebiasaanya adalah pada anda ?
A: Setuju.
Q: Setuju, ini kerana dia tidak begitu berpengalaman pasal dia baru
kerja tiga tahun dan tiada kepakaran macam lesen TCA, lesen CA
macam you la kan ?
A: Betul.
[83] In addition to this, COW1 had also testified in court that he had regarded
the Claimant as a mentor as he was new to the company and was still a
novice. His testimony given during examination in chief is seen below:
Q: And you then, you are assisting Hafsham who has been in the
company for nine years. You are assisting him?
A: Yes.
Q: So your competency, your ability is not in par with the Claimant

because you are fairly new and he is your mentor?
A: Yes.
b) Act Of Insolence
[84] Maintaining a cordial relationship at a work place is essential in order to

promote a conducive and a harmonious working environment. Employees are
expected to treat their co - workers and superior with respect and dignity.
Hence displaying outburst of anger and frustration to the company's
management including showing and engaging in sarcastic communication
with hostile manner is not an acceptable practice of conduct at the work place.
[85] Hence, the court is of the view that the Claimant text message "No point
I'm resigning" was rude, sarcastic and showed disrespect to the company's
management. The Claimant was defiant when the consequences of his action
were highlighted by the company's management. (Refer to p 22, COB 1).
[86] The court refers to the case of Raja Nazim Raja Nazuddin v. Padu
Corporation [2019] MELRU 967; [2019] 2 ILR 388 where the Industrial Court
held:
On whether his reply to the show cause letter had displayed insolence
and insubordination, the tone of his reply had been disrespectful and
disparaging language, unbefitting that of a subordinate had been used.
He had not shown any remorse and continued to blame others for the
events that had happened. This had clearly reflected his defiant
attitude to persons in authority and had constituted insolence and
insubordination which had been a serious misconduct.
[87] The Claimant's response to his employee "No point, I'm resigning"
showed that he was defensive and the language used in the group's WhatsApp
clearly showed that he had retaliated when he was called out on his behavior
by the Respondent. In Adriana Abu v. Mass Rapid Transit Corporation Sdn Bhd
[2019] MELRU 419; [2019] 1 ILR 549, the Industrial Court held:
(2) In the context of employer - employee relations, Insubordination is

a misconduct because unless an employee accepts the authority of the
employer, the work desired by the employer may not be accomplished.
The language used by the Claimant in the various text messages, e-
mails, group chats and the Linked-In chatroom had been disrespectful
towards her superior. By using such language against her superior, she
had committed an act which had been inconsistent with her duties as
an employee.
[88] Instead of owning up and acknowledging the consequences of his action,

the Claimant had acted defensively and retaliated by stating "No point I'm
resigning" which can be categorized as being offensive and inappropriate
response to his employee. In this regard, the author BR Ghaiye which was
referred to in the Law and Practice of Employment Law in Malaysia states as
follows:
Insolent language means the language which is offensive

contumacious. The test is to see whether the use of such language
tends to lower the dignity of the superior officer. The employee is
supposed to be in a subordinate position. If he acts or behaves in a
manner or uses such expression which is inconsistent with the
fundamental assumption on which the employer - employee
relationship is based then that would be impertinent or derogatory
language.
c) Absence Of Domestic Inquiry
[89] Finally, the Claimant averred that his dismissal was without just cause
and excuse as he was not invited to explain in any Domestic Inquiry. He
further averred that the details of the investigation carried out against him was
also not extended to him prior to his termination.
[90] It is trite law that the absence of a Domestic Inquiry will not prejudice the
Claimant's right to be heard. In Milan Auto Sdn Bhd v. Wong She Yen [1995] 2
MLRA 23; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049 the court
held that the failure of an employer to hold a Domestic Inquiry is not fatal and
'curable' before the inquiry in the Industrial Court. Hence, irrespective of
whether a Domestic Inquiry was held or otherwise, the court will adjudicate
the claim based on its merits as the matter is heard afresh before the Industrial
Court. However, in the case of Hong Leong Equipment Sdn Bhd v. Liew Fook
Chuan (and Another Appeal) [1996] 1 MELR 142; [1996] 1 MELR 216; [1996]
2 MLRA 212; [1996] 2 MLRA 286; [1996] 1 MLJ 481; [1997] 1 CLJ 665;
[1996] 3 AMR 3181, the court is not bound by the findings of a Domestic
Inquiry but may take the findings as a consideration to determine whether the
misconduct complained of by the employer has been proven and that the
dismissal was with just cause and excuse.
[91] The court also refers to Dreamland Corporation (M) Sdn Bhd v. Choong
Chin Sooi & Anor [1987] 1 MELR 39; [1987] 1 MLRA 357; [1988] 1 MLJ 111;
[1988] 1 CLJ (Rep) 39 which held as follows:
.. there was no absolute rule that defects in natural justice at an

original hearing could or could not be cured by appeal proceedings
which had been correctly and fairly conducted. However, where a
person had joined an organisation or body and was deemed, on the
rules of that organisation and the contractual context in which he
joined, to have agreed to accept what in the end was a fair decision,
notwithstanding some initial defect, the task of the courts was to
decide, in the light of the agreements made and having regard to the
course of the proceedings, whether at the end of those proceedings,
there had been a fair result reached by fair methods... The same could
be said of the inquiry held by the Industrial Court in this instance.
[92] The Federal Court in Wong Yuen Hock v. Syarikat Hong Leong Assurance
Sdn Bhd & Anor [1995] 1 MLRA 412; [1995] 2 MLJ 753; [1995] 3 CLJ 344;
[1995] 2 AMR 2145 held:
The paramount function of the Industrial Court in reference under s

20(3) of the Act, is to deal with the substantial merits of the case with
urgency and without regard to technicalities. Thus, the Industrial
Court was not competent to declare the dismissal void on the ground
that Hong Leong had failed to hold a domestic inquiry, which was a
matter outside the terms of reference by the Minister.
The Industrial Court is an independent statutory body capable of

reaching a fair result by fair means on all matters referred to it.
Therefore, if there had been a breach of natural justice by the employer
at the initial stage, it could be cured at the rehearing by the Industrial
Court. The Industrial Court had committed jurisdictional error when
it held that Wong was dismissed without just cause or excuse purely
on the basis of fairly to hold a domestic inquiry. The omission to
consider whether Wong's dismissal was with or without just cause or
excuse, regardless of the initial breach to hold a domestic inquiry, was
fatal.
The principle that an initial breach of natural justice by the employer

could be cured by the Industrial Court inquiry, applies to all cases,
regardless of whether the Claimant is an employee within the meaning
of the Employment Act 1955. The statutory requirement of 'due
inquiry' before dismissing an employee under s 14(1)(a) of the
Employment Act 1955 does not excuse the Industrial Court from
discharging its duty to enquire into the question of just cause or excuse
as requires by s 20 of the Act.
[93] On the same vein, the court refers to the case of Sil Ad (Johor Bahru) Sdn
Bhd V. Hilton Oswald Franciscus [1996] 3 MELR 373; [1998] 3 CLJ 233 where
it was held:
In my judgment, there was no necessity for the Company to conduct

an inquiry before terminating the workman's employment. Suffice if
the company leads evidence, which they did, before the Industrial
Court to show reasons for termination..
...
From the available evidence, the initial flaw in natural justice by the
company is not holding a domestic inquiry was 'curable' by the inquiry
that was held before the Industrial Court and this is the law as
exemplified by Motipur's case (supra); Calvin v. Carr & Others [1979] 2
ALL ER 440; Dreamland (supra) and Wong Yuen Hock v. Syarikat
Hong Leong Assurance and the President of the Industrial Court was
clearly aware of the current law on this point.
[94] All in all, the court is satisfied that the company was transparent when
dealing with the Claimant's misconduct. The Claimant was given due process
where an investigation was held to inquire into the incident after the Claimant
was suspended from work. (Refer to the Witness Statement of COWS 2). A
detailed report of the investigation was subsequently made available to parties
concerned. (Refer to pp 5-24, COB 1).
[95] In the end, the severity and gravity of the Claimant's misconduct was too
much for the company to bear. The Claimant's own dereliction of duties
showed that the Claimant lacked accountability when discharging his
responsibilities to the company. All facts considered, the Company cannot be

expected to continue employing the Claimant as there was an apparent act of
negligence and dereliction of duties on his part and that had tantamount to a
serious misconduct.
[96] The court is satisfied that the company has successfully proven that the
Claimant's misconduct had affected the functioning and efficiency of the
company. The Claimant had been in employment with the company for 9
years and should have been fully aware of his duties and responsibilities
expected of him upon taking on the assignment. As shown in the present case,
this duty was not discharged as the Claimant fell asleep and was not reachable
during the flight mission while on duty. Accordingly, after considering all the
evidence and submissions in totality, the court finds that the punishment of
dismissal meted out by the company was with just cause and excuse.
(H) Conclusion
[97] In view of that and for reasons adumbrated and having considered the
arguments and submissions herein, this court finds that the Company had
proven on the balance of probabilities that the Claimant's termination was
reasonable and justified.
[98] This court having borne in mind s 30(5) of the Industrial Relation Act
1967, acting in equity and good conscience and the substantial merit of the
case without regard to technicality and legal form finds that the Claimant was
dismissed with just cause or excuse.
[99] Hence, the Claimant's claim against the Company is hereby dismissed.

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Mohd Hafsham Ahmad Bistamam

[2023] MELRU 947 v. Executive Jets Asia Sdn Bhd pg 1

MOHD HAFSHAM AHMAD BISTAMAM

Industrial Court, Johor Bahru

Case(s) referred to:

[2002] 3 AMR 2898 (refd)

Legislation referred to:

[Dismissed the claimant's claim.]

a) The Claimant's Statement of Case dated 29 September 2020.

b) The Respondent's Statement In Reply dated 21 January 2021.

c) The Claimant's Rejoinder dated 27 October 2021.

d) The Claimant's Bundle of Documents marked as CLB.

e) The Respondent's Bundle of Documents (Vol 1) marked as COB 1

f) The Respondent's Bundle of Documents (Vol 2) marked as COB 2.

g) The Claimant's Witness Statement of Mohd Hafsham bin Ahmad

h) The Respondent's Witness Statement of Yugathevarao S/O

i) The Respondent's Witness Statement of Rezela binti Azhari marked

(C) The Claimant's Pleaded Case

[11] On 24 December 2019, the Claimant was served a Notice of Suspension

[12] The company subsequently issued a Letter of Termination dated 2

(D) The Respondent's Pleaded Case

[16] The Claimant commenced employment with the company on 11 October

[17] The company is an agent which provides medical evacuation flights to

[24] Nonetheless, the company contended that the Claimant was

(E) The General Law

Where representations are made and are referred to the Industrial

In a s 20 reference, a workman's complaint consists of two elements:

(F) Burden Of Proof

It is basic principle of industrial jurisprudence that in a dismissal case

The standard of proof applicable is the civil standard, ie proof on

[41] As a court of arbitration, the Industrial Court is to decide a case in

It is therefore to be observed that in view of the provisions of s 30 (5)

The Industrial Relations Act 1967 (IRA) was intended to promote

We are in no doubt that the duty of the court is to make a finding

b) Did the employer adopt a reasonable procedure when terminating

c) Did the employer act reasonably in concluding that dismissal was

(G) Evaluation And Findings Of The Court

i. The reasons given by the Company that warrants the Claimant's

ii. Whether the Company had succeeded in proving these reasons in

Your conduct and performance were totally unsatisfactory and it has

(Refer to p 35-37, COB 1).

DUTIES OF FLIGHT OPERATIONS OFFICER/LIGHT

(a) A flight operations officer/flight dispatcher in conjunction

1) Assist the PIC in flight preparation and provide

2) Assist the PIC in preparing the operational and Air

3) Furnish the PIC while in flight, by appropriate

(b) In the event of an emergency, a flight operations

1) Initiate such procedures as outlined in the OM

2) Convey safety-related to the PIC that may be

Note - It is equally important that the PIC also convey similar

Q: Penerbangan Malaysia, betul?

Q: Betul. Ya. Ok sekarang saya terus pergi ke ms 166. So dalam

Q: Pilot in command. Awak setuju dengan saya, di dalam berkenaan

Q: Seterusnya, b ya. B1 dan b2 ini adalah tugas kerja utama anda

elapsed time penerbangan pada hari kejadian 20-21 Desember 2019.

a) To assist the PIC in flight preparation and provide relevant

b) To assist the PIC in preparing the operational and Air Traffic

c) To furnish the PIC while in flight, by appropriate means, with

A: Ok Puan, because after the commercial team sent the confirmation

[57] Nonetheless, the Claimant disappeared from the company's group

A: Setuju tidak ada tulis.

Q: Dan soalan sama, daripada ms 8 sehingga ms 13, awak tidak