INDUSTRIAL COURT OF MALAYSIA
CASE NO. 14/4-68/01
BETWEEN
FIRST BELTING (M) SDN. BHD.
AND
JAGAVERAN A/L RAJU
AWARD NO : 476 OF 2004
Before : PUAN SOO AI LIN - CHAIRMAN
Venue : Industrial Court, Malaysia
Kuala Lumpur
Date of Reference : 9 January 2001
Dates of Mention : 2 March 2001, 13 April 2001 & 23 June 2001
Dates of Hearing : 9 July 2001, 19 October 2001, 13 November 2001 & 13 March 2002
Dates of receipt of written Submissions
:15 April 2002 (from Claimant’s counsel)
5 June 2002 (from Company’s counsel)
28 June 2002 (from Claimant’s counsel)
Representation : Miss Yap Lai Lian of Messrs K.B. Chua & Co.,
Counsel for the Company
Mr. S. Seenivasagam of Messrs Azariah &
Associates, Counsel for the Claimant
Reference : This is a reference under section 20(3) of the Industrial Relations Act 1967 arising out of
the dismissal of Jagaveran a/l Raju (“the Claimant”) by First Belting (M) Sdn. Bhd. (“the Company”).
AWARD
The dispute in this case arose out of the dismissal of Jagaveran a/l Raju (“the Claimant”) by First Belting (M) Sdn. Bhd. (“the Company”).
Introduction
The Claimant joined the services of the Company as its security guard on 10 June 1995. He was confirmed in his position on 10 September 1995 (CLB p.1). He was subsequently dismissed from his employment with immediate effect for misconduct vide a letter of termination dated 12 June 1999 (COB I p.15).
At the date of his dismissal the Claimant was receiving an average income of RM 25.50 paid on daily rate totalling RM 663.00 per month. He claimed that he also received fixed allowances amounting to RM 404.00 per month. The Company on the other hand stated that the allowances were not fixed allowances but were
subject to the Claimant’s attendance and performance at work and the Company’s discretion.
On 12 June 1999, the Company held an informal inquiry against the Claimant on two charges of misconduct, viz. (1) being late for work on 12 occasions in the month of April 1999; and (2) fighting with other workers on 22 May 1999 during his working hours.
On the evidence, the Company did not issue any show cause letter with the charges formally spelt out to the Claimant prior to the inquiry. Instead, he was verbally notified of the same by the Company’s former Manager, one Larry Lin Jong- Ding (COW 1).
In his defence, the Claimant raised the following matters.
Regarding the first charge, vide paragraphs 15 and 16 of his Statement of Case (SOC), he pleaded that at the material time he was on a month’s medical leave as he had a heart disease. Despite that the Company insisted that he should work as the Company did not have enough security personnel. He therefore returned to work during his medical leave and the Company was now using his purported lateness for work against him.
Regarding the second charge, vide paragraph 14 SOC, the Claimant denied that he was involved in a fight. He claimed that he was instead assaulted by two foreign workers outside the Company premises when he enquired of them about his missing identity card. In the premises, it is the Claimant’s claim that there was no
misconduct on his part. It is his contention that his dismissal was without just cause or excuse, a form of unfair labour practice and victimization, and in breach of the rules of natural justice.
The Company, on the other hand, vide paragraph 29 of its Statement in Reply contended that the Claimant’s dismissal was “lawful” and not in contravention of the principles of natural justice, equity and good conscience and/or unfair labour practice. Neither was there any victimization on the part of the Company as the Claimant had committed a serious and grave misconduct justifying the punishment of dismissal.
The Law
In the Federal Court case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. [1995] 2 MLJ 753, Mohd. Azmi FCJ at p. 762 stated –
“ On the authorities, we were of the view that the main and only function of the Industrial Court in dealing with a reference under s 20 of the Act (unless otherwise lawfully provided by the terms of the reference), is to determine whether the misconduct or irregularities complained of by the management as the grounds of dismissal were in fact committed by the workman, and if so, whether such grounds constitute just cause or excuse for the dismissal. ” .
From the aforesaid legal proposition, this Court will have to consider the following :
(1) whether the misconduct or irregularities complained of by the Company was or were in fact committed by the Claimant; and
(2) if in the affirmative, whether the proven misconduct constitutes just cause or excuse for the Company to
dismiss the Claimant, i.e. whether the dismissal in the circumstances of the case was the appropriate punishment.
It is trite law in industrial relations jurisprudence that the burden of proof is on the employer to produce cogent and convincing evidence to prove the Claimant committed the alleged misconduct or irregularities. The standard of proof is on a balance of probabilities. (See Union Construction Allied Trades Technicians v. Brain [1981] 1 RLR 224 and C.P. Mills in Industrial Dispute in Malaysia (2nd Edition) at p.78.
Evidence, Evaluation and Findings
Alleged misconduct of fighting with other workers
This Court proposes to deal with the second charge first as it is the Claimant’s alleged involvement in a fight with other workers which appears to precipitate the informal inquiry held by the Company and which led to his dismissal.
In COB I p.15 dated 12 June 1999, i.e. the letter of dismissal, it was stated that “The Company cannot tolerate people who create problem like fighting inside or outside the factory compound.”. It also stated that the Claimant was dismissed pursuant to “Section (2) No. (7) – Fighting, Assaulting with others” under the Company’s Rules & Regulations. The Company’s Rules and Regulations are set out in COB I
pages 1 – 2. Couched in Bahasa Malaysia and entitled “TATATERTIB SYARIKAT – KESALAHAN DAN TINDAKAN TATATERTIB”, the relevant portion reads :
“ B) KESALAHAN BERAT :-
… … … … …
… … … … …
7. Bergaduh atau menyerang pekerja-pekerja lain.
TINDAKAN TATATERTIB : DIBUANG KERJA SERTA MERTA. ”.
In the case of Victoria a/p Arulsamy v. Jye Tai Precision Industrial (M) Sdn. Bhd. [2002] 4 MLJ 35, it was held by the High Court that in cases where the employee has been dismissed for misconduct and the misconduct complained of is fighting it is incumbent on the Industrial Court to consider and satisfy itself
whether based on the facts fighting per se warrants an automatic dismissal.
In that case, the High Court studied the manner in which the rules and regulations of the employer were drafted before coming to the conclusion that the particular act in question i.e. “Fighting and striking another employee within the Company’s premises” per se did not warrant instant dismissal.
In the present case, as evident in COB I pages 1 – 2, the Company’s Rules and Regulations as drafted unequivocally classify the act of “fighting or assaulting other workers” as a serious offencewhich warrants the disciplinary punishment of instant or immediate dismissal. It is crystal clear that in the absence of any qualification fighting per se in this case warrants an automatic dismissal. The pertinent issue therefore is whether the Claimant was guilty of fighting or getting involved in a fight with other workers during his working hours as alleged by the Company. On the evidence as adduced, it is beyond dispute that there was indeed a fight between the Claimant and two foreign workers of another company. The Claimant’s learned counsel Mr. S. Seenivasagam of Messrs Azariah & Associates conceded to this fact in his submission. The two foreign workers were Andres J. Duca (“Andres”) and Apolinario from the Philippines. They were employees
of Rhoden (M) Sdn. Bhd. which shares the same factory site with the Company. The fight took place on the morning of 22 May 1999 between the hours of 7.00 am to 7.15 am outside the Company’s premises.
The Company which bears the burden of proof has established the fact of fighting through the following witnesses; viz. (1) its former manager COW 1 who had spoken to the two foreign workers and the
Claimant concerning the fight on the day of the incident itself; the office cleaner of the Company one Valathamonie a/p Chinniah (COW 2) who witnessed the fight; (3) the Company’s panel doctor Dr.
M. Gunaseelan (COW 3) who had examined Andres and Apolinario and prepared their medical reports (COB I p.16 & COB I p.17); and (4) the police officer one Emilia Tay binti Abdullah (COW 4) who had
recorded Andres’ statements (COB I p.7). Further evidence of the fight is provided by the police report of the Claimant (CLB I p.6) as well as his medical report (CLB III p.2).
As may be observed, Andres and Apolinario did not testify before this Court. Vide item 24 in his witness statement (WSCOW 1), it is COW 1’s evidence that they had gone back to the Philippines. By reason thereof it was submitted that it was not reasonably practicable to secure their attendance. In the circumstances, there is no justification for an adverse inference to be drawn against the Company under section 114(g) of the Evidence Act 1950 as suggested by the Claimant.
At this juncture, in connection with their non-production, this Court would like to comment on the informal inquiry held by the Company on 12 June 1999. It is obvious to the Court that there was a breach of natural justice rendering the inquiry defective when the two foreign workers who were then available were not called in for the inquiry and the Claimant was questioned by the Company without their presence. However, it is settled law that the defect in the inquiry was not fatal but a mere irregularity and the Company is
now at liberty to prove its case before this Court as the hearing before it is a de novo hearing (see Dreamland Corporation (M) Sdn. Bhd. v. Choong Chin Sooi & Anor. [1988] 1 CLJ 1).
The Claimant’s main contention before this Court is that since the fight occurred outside the factory premises and with workers from another company, it did not fall within the ambit of clause B) 7 of the Company’s Rules and Regulations. Mr. Seenivasagam submitted that it is implied in clause B) 7 that for it to constitute a
serious misconduct, the fight had to be within the factory premises and with other workers from the Company. He argued that the Company had no right whatsoever to control or dictate how its employee should behave outside the parameter of the factory premises.
In reply, the Company through its learned counsel Miss Yap Lai Lian of Messrs K.B. Chua & Co. submitted that the Company’s Rules and Regulations applied to all workers who worked at the factory site, i.e. workers of the Company and Rhoden (M) Sdn. Bhd. which shares the same factory site with the Company. Hence the words “other workers” in clause 7. From the layout plan of the factory site (COB I p.4), it is a fact that workers of both companies used the main gate to enter into their respective factories and the
main gate was the only entrance to the factory site. With respect to the learned counsel, this Court is of the opinion that a mere sharing of the same factory site per se is inconclusive. It appears that the answer to the Claimant’s contention lies in the evidence of COW 1. He had stated the following during reexamination
:
“ Q : You said that the two foreigners were not your employees. Then explain why Claimant’s fight
with them is a misconduct under Company’s Rules and Regulations?
A : Company and Rhoden are in the same compound. They are sister companies under the same management. So the Rules and Regulations apply to both companies. ”. (Emphasis added).
It follows from the above that by virtue of the fact that both companies were under the same management, the term “other workers” in clause 7 must have been intended to apply to and encompassed workers of both companies. That the management held this view was apparent in its warning notice of 22 May 1999
(COB I p.8) when it referred to Andres, Apolinario and the Claimant against the heading “Note” as “OUR STAFF (BOTH PARTIES)”.
As for the contention that fighting outside the Company premises was outside the purview of clause 7, it too is untenable. In the first place, the language employed in clause 7 is clear an unambiguous. Clause 7 is unqualified. It does not contain the words “within company premises”. Therefore it should not be read
subject to that qualification. On the evidence, the Company had in fact treated fighting inside or outside the factory premises as an offence under clause B) 7 of its Rules and Regulations (see COB I p.8 and COB I p.15). In any event, should proximity be the issue, vide the testimony of COW 2, the spot along the small road or short cut normally used by the factory workers when going to work and where the fighting took place was about 5 minutes walk to the main gate of the factory.
There is also evidence vide the testimony of COW 1 that the Claimant had chased the two foreign workers right up to the guard house located at the main gate and had kicked one of them there. In the circumstances it would not be wrong to say that the fighting incident had occurred within the company premises. In any event, there is justification for the Company’s submission that the fighting incident occurred within the vicinity of the Company’s premises.On the basis of the foregoing, the Claimant’s aforesaid “main contention” has no merits and is unsustainable.
Upon a consideration of the facts and evidence both oral and documentary before it and the submissions of the parties, this Court finds on balance of probabilities that the Claimant was guilty of the charge of fighting. He had initiated the fight with the two foreign workers and was the aggressor in the whole incident. The Court’s reasons for its conclusion may be stated as follows.
Firstly, the evidence of COW 1. In his evidence in chief and during cross-examination, COW 1 confirmed that some time in the morning of 22 May 1999 at approximately 10.00 am, he had personally spoken to and had heard directly from the two foreign workers about the fighting incident. This took place after they
returned from their medical check up. As such, contrary to the Claimant’s submission, COW 1’s evidence is not hearsay evidence and is admissible. This Court has no reason not to accept it. Vide paragraph 23 of his witness statement (WS-COW1), COW 1 had stated as follows : “ When I reached the Company’s premises, the two workers Andres and Apolinario told me that at approximately 7.00 am to 7.15 am, when they were on their way to work from their apartment, Andres was stopped by the Claimant who was waiting for him and that the Claimant had started the fight by punching Andres on his face. Apolinario had tried to stop the fight but was beaten up by the Claimant. The Claimant also tried to hit them with the metal pipe in his hand. When both of them tried to run away, the Claimant chased them and when they reached the Company’s guard house, the Claimant kicked Apolinario from behind infront of the guard house. ”.
COW 1’s aforesaid account is corroborated by the police report lodged by Andres (COB I p.7).
COW 1 had also stated vide paragraph 25 of WS-COW 1 that after speaking to Andres and Apolinario, he spoke to the Claimant. He asked him about the fight and for his reasons and explanations.
It is his evidence that the Claimant admitted to the fight but insisted that fighting with other workers outside the company premises was none of the Company’s business. He therefore refused to give any explanation. It is COW 1’s further evidence vide paragraph 60 thereof that the Claimant had maintained this stand throughout even at the informal inquiry held on 12 June 1999. The Claimant vide paragraph 28 of his witness statement gave a different story. He claimed that he was not the author of the fight. He said that he was instead assaulted by the two Filipinos when he enquired of them about his missing identity card. They had
misunderstood him and thought that he had accused them of stealing the identity card. During cross-examination he maintained that he had explained these to COW 1. He denied COW 1’s version of his purported stand. But in paragraph 13 of his witness statement, he stated that at the inquiry he was questioned about the fighting incident which he denied and that he was not allowed to explain.
With respect, on the evidence as adduced, this Court finds the Claimant’s case to be totally unsupported. The Court took note of the fact that he had proffered no explanation at the informal inquiry for, as he claimed, he was not allowed to explain. As for COW 1, his testimony is supported by documentary proof. In paragraph 36 of his witness statement, he stated that Vide COB I p.8, the Claimant was issued with a warning notice, which also served as an opportunity for him to explain and justify himself. Further, it was also to enable the Company to carry out discovery and investigation during which the Claimant was also suspended for 4 days. He was also notified that disciplinary action may be taken against him by the Personnel Evaluation Committee which may include termination of his employment for the alleged misconduct of fighting with other workers during his working hours and also for leaving his work place (i.e. the guard house) during his working hours without the Company’s permission and consent. Despite this, the Claimant on the evidence did not furnish any explanation to the Company. Instead he had refused to acknowledge receipt of COB I p.8 and had in fact challenged the Management’s right to suspend him. This is evident by the notation in the ‘Remarks’ section in COB I p.8 which read :
“ Jagavaren refused to sign and be suspended. He said management no power to suspend him for things done outside factory. ”. By virtue of the foregoing, this Court is satisfied that the Claimant had never put before the Company or the informal inquiry his purported “identity card” defence. This Court accepts the evidence of COW 1 that because of his stand that the Company has no power to discipline him for things done outside the Company premises, the Claimant had also refused to attend the informal inquiry originally scheduled on 10 June 1999. He had attended the one held on 12 June 1999 only after he was informed that the inquiry was also in respect of his lateness for work in April 1999.
With respect, based on the facts as established, the reasonable and irresistible conclusion is that the Claimant’s aforesaid “identity card” defence before this Court was an after thought. In connection with his defence, the Court further notes that the Claimant had also given several inconsistent and untrue statements.
His account of events revolving on the missing identity card, with respect, put his credibility into question. It suffices for the Court to quote one major instance. It is the Claimant’s evidence that when he discovered his
identity card missing on the night of 21 May 1999, he decided to lodge a police report on 22 May 1999. For that purpose he applied for a half day leave. He did so by passing to Lopez, the night shift security guard (since deceased), a note (CLB III p.3) addressed to COW 1. He said that Lopez had agreed to cover for him until the afternoon. He also said during cross-examination that COW 1 had approved his leave on the morning of 22 May 1999 just before the fight. However, when CLB III p.3 was shown to COW 1 in Court, he categorically stated that he had never seen the document before. He pointed out that the signature appearing therein was not his signature. It is his evidence that he only signed on proper company leave application form and not on notes of this nature. Moreover, on the evidence, as COW 1 had arrived for work on 22 May 1999 at about 7.45 am or 8.00 am, he could not have approved the leave application prior to the fight (which took place between 7.00 am to 7.15 am) as claimed by the Claimant. It is clear therefore that CLB III p.3 was a false document and amounted to a fabrication of evidence before this Court. The Claimant as the originator must bear full responsibility for it.
In connection with the leave issue, this Court agrees with the submission of the learned counsel for the Company that it was an attempt, albeit poorly, by the Claimant to explain away his misconduct of leaving his place of work (the guard house) and getting involved in a fight with other workers during his working hours on 22 May 1999. The truth is the Claimant was never on leave but on duty as evidenced by him clocking in for work at 7.16 am after the fight (COB I p.9). Prior to that, on the evidence of COW 1 vide paragraph 27 of WS-COW1, upon his query of Lopez on the morning of the incident, he was told that the Claimant had
turned up for work at 7.00 am but did not start to work and had told Lopez that he was going outside the Company’s factory. Having come to a finding of fact that the “identity card” defence was an after thought and that there was a fabrication of evidence on the part of the Claimant, this Court considers it unnecessary to discuss further the Claimant’s account in relation to his defence. As the veracity of his evidence and his credibility are open to question, this Court considers him to be an untruthful and unreliable witness.
As such this Court finds that he has failed to prove his assertion. On balance of probabilities, this Court is satisfied that the Company has discharged its burden of proof in regard to the second charge and that the Claimant was guilty for “fighting or assaulting other workers” in breach of clause B) 7 of the Company’s Rules and Regulations. Since the Claimant’s action in leaving his work place during working hours and thereafter getting involved in a fight with fellow workers amounted to a serious breach of discipline and serious misconduct inconsistent with his responsibility and duty as a security guard, and which action warrants automatic dismissal under clause B) 7 of the Company’s Rules and Regulations, the Claimant’s dismissal in the circumstances of the case was with just cause or excuse. Alleged misconduct of being late for work
In connection with the first charge, that of being late for work on 12 occasions in the month of April 1999, the Company relied on the following to prove its case; (1) the Claimant’s punch card for April 1999 (COB I p.3) which shows the Claimant being late for the morning shift work which commenced at 7.00 am on April 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 24 and 28; and (2) COW 1’s evidence of complaints received from the night shift security guard, Lopez who had to stay on duty longer until the Claimant came to take over the morning
shift. It is COW 1’s evidence that although oral warning was given to the Claimant, he still failed to come to work on time. It is the Company’s contention that the Claimant had thereby contravened clause A) 3 of the Company’s Rules and Regulations, i.e. “Datang kerja lewat atau meninggal awal.”.
In response to this charge, the Claimant raised the following in his defence. Firstly, he stated that at the material time he was on a month’s medical leave from 17 March 1999 to 28 April 1999 after his admission and discharge from the Tengku Ampuan Rahimah Hospital, Klang purportedly for a heart ailment. As proof, he produced a medical certificate dated 24 March 1999, i.e. the date of his discharge, confirming his medical leave (CLB I p.7). It is his evidence that notwithstanding his medical leave, COW 1 had insisted that he should return to work as the Company had not enough guards. COW 1 had further told him that if he did not come back to work the Company would get another guard and that he would be terminated. It is his contention that as a result he returned to work and the Company was now using his lateness for work against him.
Secondly, it is the Claimant’s evidence that whenever he was late for work in the morning, it was the practice of the Company to deduct from his overtime hours clocked in from 3.00 pm to 7.00 pm on that day an equivalent period of time in favour of the night shift guard who stood for him in the morning as the latter’s overtime hours. This applied vice-versa between them. It is his contention that as long as each security guard clocked in the required 8 hours of work, it did not concern the Company who actually received the overtime. It is his claim that therefore there was no misconduct on his part. In reply to the Claimant’s contentions, it is COW 1’s evidence that he was not aware that the Claimant was on a month’s medical leave as he had not seen CLB 1 p.7 before. He was not certain whether it was submitted to the Company. He denied the Claimant’s allegation that he had compelled him to work during his medical leave. He stated that if the Claimant had gone on his one month medical leave from 17 March 1999 to 28 April 1999 the Company
would find a replacement for that period. But he did not. Although he took his medical leave from 18 March 1999 to 24 March 1999, he nevertheless returned to work from 25 March 1999 to 28 April 1999.
It is the Company’s submission that it was the Claimant who had willingly returned to work of his own accord and that he should not be allowed to rely on the ground that he ought to be on medical leave for the said period as an excuse for reporting late for work. It is the Company’s further submission that the Claimant had returned to work of his own free will as he wanted to earn his overtime pay which he was not entitled to if he had continued to be on medical leave. It is the Company’s contention that if he chose to come back to work inspite of his medical leave, he must be on time. It is the Company’s further contention that the alleged deduction of the Claimant’s overtime pay and the practice of one security guard covering for another if one was late (which was denied) could not be used as a ground to justify the Claimant’s misconduct of being late
for work.
As evident from CLB I p.7, it cannot be denied that the Claimant was indeed late for work on 12 occasions in the month of April 1999. The issue here is whether he should be held responsible for coming to work late when he was not supposed to work as he was on medical leave suffering from a heart disease as contended by him. On the evidence as adduced, this Court is satisfied as to the following :
(a) neither the Claimant’s medical certificate in CLB I p.7 nor his medical report in CLB III p.2A indicated that he suffered from a heart disease or that the medical certificate was issued due to his heart condition. There is no documentary proof of the Claimant’s contention to that effect;
(b) the Claimant did not rely on the fact that he was on medical leave vide CLB I p.7 when giving his explanation before the inquiry on 12 June 1999. Instead he said that on those days he was late to work, he went to see the doctor or that his motorbike/motorcycle broke down. He also did not produce any separate medical certificate in support of his claim;
(c) it is COW 1’s uncontroverted evidence that prior to the inquiry, the Claimant had never made known to the Management that his motorbike was giving him problems;
(d) the Claimant chose to and did work overtime during the period he was supposed to be on medical leave or resting as evident by CLB I p.9 and CLB I p.10;
(e) there was no evidence to suggest that the Claimant had raised at the inquiry on 12 June 1999 the fact that he was forced to return to work by COW 1 notwithstanding his medical leave. This defence was only raised at the hearing before this Court.
In light of the above findings, this Court comes to the inevitable conclusion that it was the Claimant who had willingly returned to work of his own volition during the period of his medical leave. His contention that the Company had forced him to do so has no basis. The Court agrees with the Company’s submission that in the
circumstances, if the Claimant wanted to come back to work he must be on time. The natural conclusion would therefore be that the Claimant was guilty of the first charge.
However, this Court must consider the Claimant’s contention in regard to the deduction of his overtime. During crossexamination, he admitted that the Company had paid him his overtime payment although he was late for work on 8 April 1999, 9 April 1999 and 28 April 1999 (see COB I p.3). However, when reexamined by his learned counsel, he stated that for 3 April 1999 where he had clocked in at 7.37 am, a period of half an hour was deducted from his overtime in favour of Lopez, the night shift security guard who covered for him. Likewise, on 4 April 1999 where he had clocked in at 9.57 am, a period of 3 hours was deducted from his overtime in favour of Lopez. Upon a further scrutiny of COB I p.3, this Court observes that generally where the Claimant was late for work approximately for a period not exceeding 30 minutes, the Company would pay his overtime without any deduction but not otherwise. The same appears in the Claimant’s punch card for the month of March 1999 (CLB I p.9) but in this case the Company did
not see it fit to charge him for late coming.
In light of the foregoing evidence, this Court is of the opinion the Claimant’s contention is not without merits. This Court is also doubtful whether such a practice as endorsed by the Company would not amount to its condonation of the misconduct of late coming on the part of the security guards. That the Company did not appear to take this issue seriously because of its established practice appears to be supported by its attitude in this instance. COW 1 had earlier given evidence that when he orally informed the Claimant of the proposed inquiry into the fighting incident scheduled on 10 June 1999, the letter had refused to come because of his stated stand. The inquiry was then postponed to 11 June 1999 and did not proceed as the Claimant had gone on medical leave. COW 1 further testified that the Claimant ultimately turned up for the inquiry on 12 June 1999 after he was notified that very morning itself that the inquiry pertained also to the allegation of his late coming to work in April 1999. It appears to the Court that the charge of late coming included at the last hour was primarily intended to secure the Claimant’s presence at the inquiry of 12 June
1999 which it did.
The Company’s seemingly non-serious attitude towards the issue of attendance and punctuality may also be seen when it accepted the fact that the Claimant was on medical leave from 18 March 1999 to 24 March 1999 (see CLB I p.9) despite COW 1’s evidence that he had never seen CLB I p.7 before, i.e. the Claimant’s medical certificate. It is to be observed that the Claimant himself in his testimony did not say that he had submitted CLB I p.7 to the Company.
In light of the foregoing scenario, the benefit of the doubt entertained by the Court on the issue of condonation should go in favour of the Claimant. Thus this Court is of the opinion that the Claimant’s dismissal on account of the first charge in the circumstances of the case is unfair and unjust, i.e. without just
cause or excuse.
Conclusion
It is obvious that of the two charges of misconduct, the one on “fighting or assaulting other workers” for which the Claimant was dismissed was more gross and serious. As stated by the Company through COW 1, the Claimant was employed as a security guard to safeguard and secure the Company’s premises and the workers. It is therefore serious misconduct on his part to leave his work place and get involved in a fight with other workers during the working hours. In fact it is his duty to stop any fighting among the workers during
working hours if he had witnessed the same when he was on duty.
This Court agrees with the Company’s submission that if the Claimant’s misconduct was allowed or condoned, no workers would come to work for the Company where the Company’s security guard was allowed to beat up other workers who were on their way to work at the Company’s factory. His involvement in the fight was a serious breach of discipline.
In the circumstances, this Court finds the Claimant’s dismissal for the more serious charge of “fighting and assaulting other workers” in breach of clause B) 7 of the Company’s Rules and Regulations was with just cause or excuse. The Claimant’s claim that he was dismissed without just cause or excuse is accordingly dismissed.
HANDED DOWN AND DATED 30 APRIL 2004
( SOO AI LIN )
CHAIRMAN
INDUSTRIAL COURT
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