INDUSTRIAL COURT OF MALAYSIAENCIK AHMAD ZAMRI BIN ABDUL RAHMAN AND 5 OTHERS AND ROBIN RESOURCES (M) SDN BHD AWARD NO: 296 OF 2011
REFERENCES• Section 20 (3) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources.• The dismissal regarding of Encik Ahmad Zamri Bin Abdul Rahman and 5 others (the Claimants)• Robin Resources (M) Sdn Bhd (the Respondents)
AWARD• The dismissal of Encik Ahmad Zamri Bin Abdul Rahman and 5 others by the Robin Resources (M) Sdn Bhd on the 16th February 2007.
• The six claimants who are employed by the Company: – Ahmad Zamri Bin Abdul Rahman, Assistant Supervisor – Khairul Anuwar Bin Abdullah, Q.A Inspector – Mohd Hasnawi Bin Tumin, Sticker Making Operator – Mohd Ramzi Bin Md Ali, Packing Operator – Murugan a/l Suparamaniam, General Worker – Saiful Adli Bin Idris, Packing Operator
• On 3rd February 2007 at about 3.40 am, all the six Claimants were caught by the Company’s Superintendent while they were gambling inside a Locked Packing Cabin located on the Company’s premises.• Claimants have committed the following misconduct: - caught gambling inside the Locked ‘Cabin Packing’ of the Factory premises. - Claimants not at their place during their working hours.• Serious misconducts and lead to punishment of dismissal.
• The company issued a notice to show cause and notice of Domestic Inquiry to all the Claimants.• The Claimants replied to the Show Cause Letter – Unsatisfactory and unacceptable explaination.• A Domestic Inquiry was held and all the Claimants attended and participated.• Panel of DI found all the Claimants guilty on the charges preferred against them.• By letter 16th February 2007, Company notified them that they found guilty for the charges and their services were terminated with immediate effect.
• All the Claimants have been dismissed, the only issue before the Court is whether their dismissal was with or without just cause or excuse.
THE ISSUES• 1) The Claimants stated Panel of the Domestic Inquiry to only make a finding of fact has overstepped - recommendation of the Panel that the Claimants be dismissed.• 2) The outright dismissal was wrong in law as it was based on circumstantial evidence and on the statement of one individual only.
THE FIRST ISSUESTaiko Plantations Sdn. Bhd, Negeri Sembilan vRajendran a/l Raman Nair & Anor (1994)(Award 234 of 1994)• When offence is criminal in nature, the employer shouldn’t wait for the outcome of the criminal proceeding against the employee before enquiring into misconduct.
Ferodo Ltd v Barnes (1976) IRL R 39• Dismissal of employees based on criminal conduct, the employee need only to satisfy himself at the time of the dismissal there were reasonable grounds for believing that the offence put against the employee were committed.
Present case• Whether the Company in deciding to dismiss the Claimants acted reasonably in the sense that the Company had reasonable grounds for believing that the Claimants committed the act of attempted gambling.
SECOND ISSUES• The court will consider all relevant evidence adduced before it at the trial of the case.• Important to note that Claimants did not disputes the validity of DI notes.• After perusal the notes of DI, Court found that DI was properly carried out and documented and all the Claimants have given ample opportunity to cross-examine the Company Witnesses.
• The Claimants was employed by the Company for a period of 8 years and expected to be familiar with the Company’s policy against gambling and or playing cards.• Regulation 3(e) of the Company’s General Rules and Regulations of Employment Construes-gambling or Card Playing in any form within the Company’s premises at any time whether for money or not as misconduct.
• The Company’s Superintendent (COW-1) later submitted a written report after caught the Claimants together with the photographic evidence.• COW-1 took the photo after he entered into the Packing Cabin.• The Claimants did not argues with the authenticity of the photograph.
THE RESULT• There is no reasons why the Court not accept the direct evidence of COW-1 and the photographic evidence which took by the COW-1.• Court hold that the Company has discharges its burden of proving the misconduct alleged against the Claimants.• The Claimant’s claim that they had been dismissed without just cause or excuse is hereby dismissed.