INDUSTRIAL COURT MALAYSIA

CASE NO. 17/4-544/13

BETWEEN
JAMALUDDIN BIN SAYUTI
AND
PRESTON SHIPYARD SDN. BHD.
AWARD NO: 460/2016

BEFORE

: Y.A. TUAN DUNCAN SIKODOL

Chairman (sitting alone)

VENUE

: Mahkamah Perusahaan Malaysia, Kota Kinabalu, Sabah

DATE OF REFERENCE : 26.02.2013

DATES OF MENTION

: 09.05.2013, 15.01.2014, 24.02.2014 & 02.06.2014

DATES OF HEARING

: 27.09.2013, 18.08.2014, 19.08.2014, 20.08.2014,

02.10.2014, 18.112014, 17.08.2015, 18.08.2015
& 08.10.2015

DATE OF CASE MANAGEMENT: 15.07.2013

REPRESENTATION

: For the Claimant Pontius Aludah of Messrs Aludah & Co.

For the Respondent Bonnie Tyler Suru of Messrs Bonnie
T. Suru

REFERENCE:

This is a reference by the Honourable Minister of Human Resources under Section

20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of
JAMALUDDIN BIN SAYUTI (hereinafter referred to as the Claimant) by PRESTON
SHIPYARD SDN. BHD. (herein referred to as the Company) on the 25th June 2012.

AWARD

Brief Background Facts

The Claimant commenced employment with the Company on the 1st December 2008
as Deputy Chief Operating Officer (DCOO). When the former Chief Operating Officer
(COO) of the Company resigned sometimes in the month of 2010, the Claimant was
assigned to cover the said position on an acting basis, which position he held until he
was dismissed on the 25th June 2012 via letter of termination dated the 26th May 2012.
At the point of dismissal, he was earning a basic salary of RM7000.00 based on his
salary slip at CLBD at page 5 (a). His employment with the Company was terminated
for allegedly failing to record his attendance by punching in and out for duty and also
for poor performance.

The Claimant now contends that his dismissal by the Company was without just cause
or excuse. He therefore seeks to be reinstated to his former position or be given
compensation in lieu of reinstatement.

The Law
In the often cited case of MILAN AUTO SDN BHD v WONG SHE YEN (1995) 4 CLJ
449, the duty of the Industrial Court in dismissal cases on a reference under s. 20 was
stated by His Lordship Mohd Azmi FCJ as follows;

As pointed out by this Court recently in Wong Yuen Hock v Hong Leong Assurance
(1995) 3 CLJ 344, the function of the Industrial Court in dismissal cases on a
reference under s. 20 is twofold: first, to determine whether the misconduct
complained by the employer has been established and secondly whether the proven
misconduct constitutes just cause or excuse for the dismissal.

It is trite law that the Company bears the burden to prove that the Claimant had
committed the alleged misconduct and the conduct warrants the Claimants dismissal.
See Ireka Construction Bhd v Chantiravanathan a/l Subramaniam James (1995) 2
ILR 11 (Award No. 245 of 1995).

The Company needs only to prove misconduct justifying the dismissal or termination
on the balance of probabilities. See Telekom Malaysia Kawasan Utara v Krishnan
Kutty a/l Sanguni & Anor (2002) 3 CLJ 314 (CA).
Witnesses

The following witnesses testified at the hearing of this case:

COW1 Zailani Bin Mansor, Managing Director of the Company and his witness
statement was marked as COWS-1.
COW2 Siti Rohaya Binti Matassan, Finance Director and her witness statement was
marked as COWS-2.
COW3 Marion Anthony, HR Executive and his witness statement was marked as
COWS 3.
COW4 Yunus Bin Sari, Technical & Operation Executive Director and his witness
statement was marked as COWS-4.
CLW1 - Jamaluddin Bin Sayuti and his witness statement was marked as CLWS-1 .

The following bundle of documents were also used in court and marked as follows;

Company's Bundle of Documents No.1 as COBD-1, Company's Supplementary

Bundle of Document No.2-COBD-2, Company's Supplementary Bundle of Documents
No.3-COBD-3, Company's cash payment list & payment vouchers 18 pages) as
COBD-4, Company's Memos : (Kegagalan punch card pekerja) dated 12 th September
2008, and (ii) (No Smoking) PSSB/HSE/2011-(01) dated 27th June 2011, as COBD-5,
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JPPS Borang Penghantaran Dokumen (Lam 1 pek. Am 1/93)and emails as COBD-6,

Claimant's salary slips dated 28th April 2010 (as COO) and 27th January 2001 (as
DCOO) as COBD-7, and Company's letter, PSSB/TLDM/2012-(70) dated 10th May
2012 as COBD-8.

Issues for determination

In this case, it is an undisputed fact from the evidence that the Claimant was
dismissed by the Company on the 25th June 2012 vide letter dated the 26th May 2012.
Based on Colgate Palmolive (M) Sdn Bhd v Yap Kok Foong & Another Appeal
(2001) 3 CLJ 9, it now remains to be considered whether the dismissal was with just
cause or excuse. However, in this case, the Company had not conducted a DI prior to
the Claimants dismissal. Be as it may, the fact that there was no DI conducted does
not necessarily make the dismissal invalid as this court will bear in mind the Court of
Appeals decision in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other
Appeals (1997) 1 CLJ 665 where the Court held that:
The fact that an employer has conducted a DI against his workmen is, in my judgment, an entirely
irrelevant consideration to the issue whether the latter had been dismissed with just cause or excuse.
The findings of a DI are not binding upon the Industrial Court which rehears the matter afresh.
However, it may take into account the fact that a DI had been held when determining whether the
particular workman was justly dismissed.
Were it otherwise, the guilt or innocence of a workman upon a charge of misconduct would be decided
not by the Industrial Court, but the employer himself. That, with all respect, is not the purpose for
which parliament went through the elaborate process of Legislating the Act and setting up special
machinery for the vindication of the right of Workmen.

Hence, even if there was no DI conducted as in this case, the dismissal is not invalid
per se since this Court will still proceed to hear the evidence of all the witnesses for
both sides in determining whether the Claimants dismissal was with just cause or
excuse.
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Whether the dismissal of the Claimant was with just cause or excuse?

Company's case

The Company contends that the claimant's dismissal was with just cause or excuse
based on the following grounds:

(a) Misconduct as stated in the Surat Teguran Pertama, Kedua dan Ketiga at pages,
14,15 and 22 of COBD-1 and,
(b) Poor performance- as stated in the letter Pemakluman Mengenai Prestasi dan
Halatuju Kerjaya di PSSB at page 16 of COBD-1.
In respect of the 1st complaint, the Company alleged that the Claimant had failed to
punch out his punch card after office hours on various occasions and also smoked in
front of the HR during discussion and at some restricted Company's premises.

Failure to punch out

There is ample evidence before this Court to prove that the Claimant had failed to
punch out his punch card from the testimonies of COW1, 2, 3 and 4 and also from
exhibits at pages 24-37 of COBD 1. However, according to CLW1, due to the nature of
his work, the management had verbally given him exemption from punching in and
punching out his punch card. His job according to CLW1 required him to perform
duties and responsibilities by running from one division to another everyday around
the clock including during weekends and holidays. As such, he said it was quiet
inconvenient for him to go back to the main office merely to punch out his punch card
after work at the operations site late in the night. The question then for the Court to
decide therefore is whether there was such permission given to the Claimant.

It is the evidence of CLW1 that before he joined the Company, he had a series of
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discussions with COW1. During the said discussions, the subject of punch card was
discussed as there was in force a memorandum about punch card issued by COW2
dated the 12th September 2008. The Claimant testified that during the discussion, he
requested that he be exempted from punching out his punch card due to the nature of
his work. And he said that COW1 fully understood his problem during the said
meeting.

CLW1 went on to testify that prior to joining the Company, he had 2 small Companies
in Kuantan doing maintenance and servicing work for Government Military vessels.
COW1 also had a similar business in Labuan. In October 2008, CLW1 said that COW1
came over to Kuantan to persuade him to join his Company as it was facing a lot of
financial problem and needed the help of an experienced hand. After much
persuasion, he said he agreed to join COW1's Company.

That the Company was in bad shape prior to CLW1 joining the Company was
corroborated by the following evidence viz a viz:
1. The Company was sued by PSMB through summons No. LBN 72-110 of 2011

dated 25th July 2011 at page 64-76 COBD1, being in default of payment for the
levies since June 2008.
2. Statement given by the former COO in para 5.3 at page 8 of COBD1...where the
former COO said as follows;
sewaan ini seharusnya tamat setelah 1 tahun tetapi saya meneruskannya melebihi
jangkamasa kerana keadaan income yang agak berkurangan setekat ini .

3. The statement at para 5.11 at page 9, COBD1 which states that

Syarikat pemborong Kekal telah menghantar surat notis melalui peguam mereka untuk
menyaman Preston. Walau bagaimanapun, saya menerangkan keadaan dan meminta
mereka bersabar kerana Preston menghadapi krisis kewangan......

In examination in chief however, COW1 testified that the management had never
given CLW1 exemption from punching out his punch card and that his failure to do so
on various occasions after office hours had violated the Company's policy which can
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result in dismissal. He also said that he had advised CLW1 about the need to do so
but said that CLW1 carried on doing it. COW1 however admitted in cross examination
that the Claimant's scope of job involves overtime as he has to supervise his fellow
workmen at the operations site until late at night and sometimes until the next
morning. He also further admitted that the Claimant's scope of duty includes meeting
clients/customers outside the Company's premises and sometimes outside of Labuan
and that when he works overtime, he is not entitled to any overtime claims.

COW3, the HR on the other hand testified that the instruction to punch in and punch
out was not provided for in the Claimant's letter of Appointment and that the surat
-surat teguran were merely reminder letters. She also confirmed that the Claimant did
come to work on those days where he did not punch out and continued working even
after office hours despite not being paid overtime allowance. She then went on to
testify that those employees whose salaries are more than RM1500.00 are not entitled
to overtime allowances as provided under the Company's policy. She also agreed with
the Claimant's counsel that those employees who were entitled for overtime
allowances must punch in and punch out their punch card as it would be made as
reference to calculate their overtime allowance later.

During the course of the trial, evidence was adduced that prior to COW4 joining the
Company viz a viz, in his first 2 years with the Company, CLW1 had not received
any warning letters from the management for not punching out his punch card even
though he did not do so on various occasions. If it is true as claimed by COW1, COW3
and COW4 that it is a violation of the Company's policy if employees failed to punch in
and punch out their punch card, then CLW1's omission to punch out his punch card for
the first 2 years of service with the Company would have resulted in a lot of warning
letters to him and possibly dismissal. But here, there was no such evidence of any
warnings to CLW1 for his failure to do so. Thus, the inference that could be drawn here
is that COW1 must have verbally agreed to CLW1's request for exemption. Since
COW1 himself admitted in cross examination that CLW1's scope of job involves
8

overtime as he has to supervise his fellow workmen at the operations site until late at
night and sometimes until the next morning and also required to meet clients outside
the Company's premises and sometimes outside Labuan, it makes no sense in the
view of this Court to require CLW1 to go back to the office late at night just to punch
out his punch card. No doubt, every workmen is bound by the regulation of the
Company, and punching of punch card being one of them. However, it must be borne
in mind that in this case, CLW1 was not employed as an ordinary workman. Common
sense tells us that the duties of a COO and an ordinary workman are poles apart and
not synonymous and thus it would have been illogical in this case,if the Company did
not allow CLW1's request for exemption, considering the task placed upon him. After
all, as admitted by COW3, the Claimant did come to work and continue even to work
after office hours even though he did not punch out his punch card.

Hence, based on the totality of the evidence adduced, I am satisfied that the Company
has not proven its case on a balance of probability that Claimant had violated the
Company's policy by failing to punch out his punch card.

Smoking in front of HR during discussions and at restricted areas.

In respect of the allegation of smoking, it was the evidence of COW1 that the
complaint was based on the document at page 15 para (b) of COBD1. However, when
asked how many times the claimant smoked in front of the HR, COW1 testified that he
does not know. He in fact admitted that he had no personal knowledge regarding the
alleged complaint nor did he do any investigation on the complaint himself. Similarly,
COW2 and COW4 also testified that they do not have any personal knowledge of the
smoking incident except based on the complaint at page 15 paragraph (b) COBD1.
Both of them testified that the said allegation be best explained by COW3, the HR.

COW3 in her evidence testified that it is the Company's regulation that smoking is
prohibited in the Company's compound except in a designated area. She also said
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that the No Smoking memo was issued by the Claimant and that the designated area
for smoking was also determined by him. However, no evidence was adduced as to
when or which part of the Company's premises did the Claimant smoked. Neither did
COW3 give evidence of where the prohibited areas are nor gave details of when
CLW1 smoked in front of her.

CLW1 on the other hand denied that he smoked in front of the HR and also at the
restricted area of the Company's premise. He agreed that there is one memo issued
by him where he stated clearly where the restricted area are. He went on to say that if
he is the one to issue the said memo, then it would not be correct to say that he
smoked in a prohibited area as he would himself be aware of where the prohibited
areas are.

Given the evidence adduced before me, I also find that the Company have failed to
prove the allegation of smoking on a balance of probability as there was no evidence
adduced as to when and in which area did the Claimant smoked neither was there
evidence adduced as to when he smoked in front of the HR. There was also no
evidence adduced as to whether COW3 had knowledge of where the prohibited areas
are. Thus, even if the claimant did smoke, it is possible that he smoked in an area
where it is not prohibited as he himself would have know where the prohibited areas
are, he being the author of the memo reminding employees not to smoke in a
prohibited area.

Poor performance

The Claimant who held the position of Acting COO prior to the termination of his
service was expected to lead the Company in terms of its operation and objectives,
which is to make profits. However, it is the Company's contention that the Claimant's
lack of ability to manage has caused the Company to suffer huge losses.

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The Company in its Statement in Reply stated that the claimant's performance was
unsatisfactory based on a 10 month observation made by COW4 and this complaint
was contained in COW4's letter to the claimant at COBD1 page 16 dated the 5 th April
2012. In the said letter, COW4 stated as follows;
"....antara perkara besar yang diperhatikan dalam tempoh 10 bulan adalah seperti
berikut:a.

Tidak memimpin staf meningkatkan kualiti diri dan kerja dengan berkesan.

b.

Menunjukkan sikap ambil mudah dalam kebanyakkan urusan Syarikat.

c.

Tidak menguasai kontrak kerja dengan pelanggan, seterusnya gagal

memantau kontrak kerja ke tahap kualiti terbaik dan menepati JMS.

d.

Tidak menguatkuasakan amalan kejuruteraan dan HSE dalam Syarikat.

e.

Sering kompromi dengan staf dimana sikap ini melambatkan peningkatan

kemajuan Syarikat.

f.

Mengambil masa panjang dalam menyiapkan keperluan yang diarahkan,

malah tidak sensitive terhadap tarikh-tarikh penting setiap urusan.

g.

Tidak sensitive terhadap tunggakkan bayaran yang perlu dibuat oleh

Syarikat yang berhutang kepada PSSB.

h.

Tidak mengambil berat dan memimpin staf terhadap rupacara dan

penampilan, malah memandang ringan kehadiran staf.

i.

Kebersihan dan kekemasan PSSB tidak Tuan perhatikan dan tingkatkan.

j.

Aktiviti pembaikan kapal diserahkan kepada staf tanpa pemantauan yang

kemas dan menepati JMS.

k.

Pendapatan PSSB dari perkhidmatan yang diberikan tidak menjadi keutamaan

malah bahagian yang menjadi aktiviti langsung dibawah tanggungjawab Tuan
sering terlepas dari membayar."

COW4 went on to testify that despite various warnings and opportunities given to the
Claimant to improve his performance, the Claimant still failed to perform to the
expectation of the Company.

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When asked to clarify the complaints of poor performance as contained in his letter at
page 16, COBD1 paragraph 3(a)-(k), COW4 explained that it has something to do with
the the following incidents which if the Claimant had properly supervised and
managed, would not have occurred. The said incidences are the fire incident on KD
Paus which the Company alleged that the Claimant did not give proper instruction to
the sub contractor who did the repairing work on KD PAUS, thus causing the fire
incident; writ of summon by the Ministry of Human Resources against the Company
for accrued levies payable to the Ministry, which COW4 said CLW1 failed to monitor;
compound by Customs Department which COW4 alleged that the Claimant had failed
to managed the Company's private jetty. As a result the Company was compounded
by the Custom's Department for infringing Customs Rules. .

Claimants contention

It is the Claimants case that the allegation of poor performance contained in COW4's
letter at COBD1 page 16 against him are without basis as they are too general and too
vague.

In his evidence through his witness statement CLWS-1, he testified that in 2009, the
Company was badly hit by many problems, among others, the Company was facing
big amount of warranty claims in respect of some defective works (minor and
major), uncompleted / overdue maintenance works and, mounted with unpaid debts.
At that time, the Company could hardly get any work project.
business was very slow until towards the end of 2010.

The Company's

The Privatization of the

Kompleks Workshop Jabatan Laut Labuan, where the Company's office now, only
started at the end of 2010. After the privatization, some projects then started to come
in. All these while, the management team including himself did their best to work like a
shield for the Company.

He went on to testify that he is a qualified engineer majoring in mechanical and marine

12

engineering. He obtained his B.Sc (Mechanical Engineering) from the University of

Sunderland in England. He also said that he had served the Armed Force (TDM) when
he was 18 years old and after that joined the Royal Malaysian Navy (TLDM). He also
told the court that through the 15 years of service with TLDM he was engaged in this
nature of job and have never encountered any difficulties or problems performing his
duty as the Chief Operating Officer (COO), until En Yunus Sari, who was formally
working with TLDM, came to join the Company on the 25th June 2011 as the
company's newly created "Pengarah Eksekutif Teknikal" (TED).

He went on to testify further that after the new TED joined in, his whole scope of job
become almost redundant because there were lots of interruptions and overlapping
instructions coming from the new TED in respect of the works that he was supposed to
do. Being the Executive Director, he said he believed COW4's scope of authority/job
should be confined to only giving instructions, but not to get physically and/ or directly
involved with the ground work. It creates many overlapping instructions within his
group of workmen and also disturbances towards their scope of works, he lamented.

He then went on to testify that as soon as COW4 joined the Company, he started to
restrain him from making any form of operational and admin works. He said COW4
told him that this new system will only be TEMPORARILY. He said, initially he will
handle everything and would hand it back to him when the time is right. No other
explanation given and the said time never come. These unusual new events really
made him feel redundant and confused and so as the other workmen. He also said
that COW4 used this situation to mislead the Company's "Pengarah Urusan", Tuan
Zailani and also the "Pengarah Eksekutif", Puan Royaha. The new system was later
used by COW4 to condemn and brand him as "gagal berkomunikasi".

He therefore said that he really believed that he had done his duties and
responsibilities to the confines of his job. He also said that less that 2 weeks before
his dismissal he was instructed to visit the Navy Regional HQ, Kota Kinabalu and the
13

Navy HQ, Kuala Lumpur for the purpose of getting some financial assistance. He said
when he came back on 23rd June 2012 (Saturday) with an approximated sum of
RM11 million to service the company's debts with the bank. He said, COW4 once
mentioned that without this assistance, there is a possibility that the Company would
have been blacklisted. On 25th June 2013 (Monday), he said he was really busy until
late in the evening entertaining some visitors from the Navy Department of Kota
Kinabalu and suddenly the next day he was no more with the Company.

In respect of the fire incident at KD Paus, the claimant deny that it was due to the lack
of supervision by him. He testified that the fire incident was caused by the non stop of
heat transfer while removing the hull plating of the vessel. He went on to testify that
the sub contractor who was engaged to do the work was given instruction by him to
stop work until the evening break. However the sub contractor defied his order and
resumed work negligently and recklessly, thus causing the fire.

He also denied that the Summon brought by Pembangunan Sumber Manusia Bhd
(PSMB) for failure by the Company to settle all the levies due to PSMB was due to his
poor performance as an Acting COO as those levies were incurred during the time of
the previous COO.

The claimant also denied that the compound imposed by the Customs Department
against the Company for infringing Customs Rules was as a result of his poor
management. CLW1 testified that in fact when he complained to COW1 about the
conduct of some crew members of MV SWISSCO, COW 1 gave immediate orders to
ban MV SWISSCO crews from using the jetty, which instruction he immediately carried
out, However, his instruction was overruled by COW4 claiming that he is the final
decision maker.

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Evaluation and Findings

According to COW1 and COW4, they have warned CLW1 as a friend and as his
superior on many occasion to improve himself and also to discuss the allegations
contained at page 16 COBD1 but to no avail. CLW1 on the other hand denied that that
he was ever called for any formal discussion in respect of the allegations at page 16
COBD1 a-k. He admitted receiving the letter COBD1 at page 16 but testified that the
allegation of poor performance against him is too vague and too general and cited the
allegation at item (a) page 16 COBD1 as an example. He questioned what the
management meant by tidak memimpin staf meningkatkan kualiti diri dan kerja
dengan berkesan. and who are these staffs in question that he did not supervised.
He went on to say that until he was terminated, he still do not know why his
employment was terminated.

In essence, it is a general principle of law that, where there is an allegation of poor

performance against an employee, the nature of the employees poor performance
must be particularized and supported by concrete evidence. Having done that, he
must then be warned of his poor performance and given sufficient opportunities to
improve. The Industrial Court in the case of Sime Darby v Mathi Arasu M Kalimuthu
(1991) 2 ILR 836 ( Award No. 248 of 1991) held that the Company has to establish
the following 3 requirements in order to justify the dismissal:
1.

The Claimant was warned about his poor performances,

2.

The Claimant was given sufficient opportunities to improve and;

3.

Despite the warnings and opportunities given, the claimant failed to improve his
performance to the satisfaction of the Company.

In this case, the court can only find 3 instances among the allegations contained at
page 16 of COBD1 where the Company specified the particulars of the allegation as a
result of the claimants alleged poor performance. Since these are the only complaints
15

where such particulars are specified, the Court therefore would only examine to
inquire if that reason or excuse has been made out by the Company. If this court finds
as a fact that it has not been proved, then the inevitable conclusion must be that the
termination or dismissal of the Claimant by the Company was without just cause or
excuse. This is in accord with s.20 (3) of the IRA 1967 and also the pronouncement
by the court in Goon Kwee Phoy v J & P Coats (M) Sdn Bhd (1981) 1 LNS 30 where
the Court held that the respondent cannot now give another reason to justify the
termination or dismissal. If it does so it will smack on an afterthought. Hence,
notwithstanding whether the management have had discussion with the claimant
regarding his alleged poor work performance, I shall now examine the 3 allegations
contained at page 16 COBD1 and decide whether those incidents that occurred were
as a result of the claimant's poor performance.

1. KD PAUS fire incident

It is the Company's pleaded case that the the claimant had failed to give proper
instruction to the sub contractor who did the repairing job on KD PAUS resulting in the
fire that occurred. COW4 in his evidence testified that the cause of the fire was due to
the lack of supervision by the claimant. COW2 also confirmed in her evidence in chief
that the fire incident was due to the lack of supervision by the claimant. However in
cross examination, COW2 gave the following evidence;

Q5(a)

Boleh bagi tahu Mahkamah bagaimana sebenarnya kebakaran KD Paus itu

berlaku?

A.

Kebakaran berlaku pada tahun 2008 yang di sebabkan potong plating tanpa
pemantauan.

Q5(b)

Adakah sewaktu melakukan kerja kerja pemotongan plating dilakukan

penuntut telah melakukan kebakaran tersebut?

A.

Bukan penuntut tetapi kita pumya sub contractor, tapi tidak di pantau oleh
penuntut.

Q5(c).

Bila kejadian kebakaran berlaku sebenarnya?

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A.

Masa itu solat magrib, tapi tiada arahan untuk berhenti untuk menghormati
kita punya solat. Penuntut tidak memberikan arahan untuk menghormati
sembahyang maghrib.

Q5(d).

Boleh kamu tunjukkan yang penuntut tiada beri arahan untuk berhenti?

A.

Tiada bukti dari segi dokumen tapi dia patut tahu tanggungjawabnya dan
beritahu kepada sub contractor untuk berhenti kerja dahulu.

Q5(e).

Ketika berlaku kebakaran kamu di mana?

A.

Saya berada di pejabat.

Q5(f).

Ada kah kamu terlibat dalam siasatan tentang kebakaran tersebut?

A.

Tidak, hanya kapten Yunus sahaja

Q5(g).

Puan, saya katakan bahawa apa yang kamu katakan adalah semata mata
apa yang kamu dengar dengar atau andaian andaian kamu sahaja, betul?

A.

Tidak. Saya tidak setuju.

Q5 (h).

Sewaktu berlaku kebakaran, di mana ka penuntut ketika itu?

A.

Penuntut bersama yang lain sedang solat maghrib di surau preston.

Q5(i).

Adakah Kapt Yunus juga bersolat dengan Penuntut?

A.

Ya.

Q5(j).

Satu laporan telah di keluarkan oleh Preston mengenai perkara ini, Kamu
setuju?

A.

Setuju.

Q7.

Adakah dalam laporan mengatakan yang penuntut tidak ada memberikan

arahan untuk berhenti kerja saperti yang kamu katakan tadi?

A.

Tiada.

In the report dated the 20th December 2011prepared by CLW1 concerning the fire
incident, it was stated at page 19-32 COBD3 that the cause of the fire was due to the
non stop of heat transfer while removing the hull plating of the vessel.
That the fire incident was as a result of the negligent act of the sub contractor was
confirmed by COW4 in his report to the Panglima Sistem Armada, Pengkalan TLDM
Lumut dated 28th December 2011 where in the report he stated as follows;

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PSSB mengesahkan hanya bahagian hadapan kapal sedia untuk pemotongan. Sub
Contractor telah di maklumkan. Kerja pemotongan di maklumkan pada jam 1620H
pada 19th Disember 2011. Arahan berhenti kerja di berikan untuk persiapan makan
malam dan sembahyang maghrib jam 17.30 H. Dua pekerja PSSB di minta berada di
persekitaran kapal bagi menjaga sebarang kemungkinan kesan haba selepas
pemotongan. Tindakan sub contractor memulakan semula kerja sebelum mendapat
kebenaran dan mengabaikan langkah keselamatan adalah punca kepada kejadian
kebakaran
In cross examination when COW4 was asked whether an order to stop work before
going for maghrib prayers was given, he answered in the affirmative. He also agreed
that there was nothing in his report to say that the fire was caused as a result of the
claimant's negligent failure to give proper instructions to the sub contractor. Here,
clearly, the evidence adduced by COW2 that the fire incident occurred as a result of
the lack of supervision by the claimant cannot be relied upon by this court as even the
year when she said the incident occurred is not correct. Similarly, the evidence of
COW4 blaming the claimant for the fire incident cannot be relied upon as it contradicts
with the report at page 33 COBD3 dated the 28th December 2011 prepared by him.

Therefore based on the above reports and testimonies of the witnesses, I agree with
the Claimant's counsel that there is no evidence adduced by the witnesses to prove
that the fire was due to the lack of supervision by the Claimant.

2. The PSMB's Writ of Summons No. LBN 72-110 of 2011 dated 25th July 2011

The Company had at pages 55-98 of COBD 3 produced voluminous correspondences

and letters of demand as evidence in respect of the accrued levies payable to
Pembangunan Sumber Manusia Bhd (PSMB) by the Company which she alleged was
as a result of the claimant's poor monitoring and supervision. However, as pointed out
by the learned counsel for the claimant, Pages 57, 61, 63 and 80 of COBD3 shows
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that the Company had defaulted in its payments since June 2008, which was before
the Claimant joined the Company. The 1st letter of demand at page 55 of COBD3 was
dated June 25th 2010 and it was addressed to COW1. As it was addressed to COW1
and since at that time the claimant has yet to join the Company, the court finds that the
Company has not proven that the default in the payment of the levies was caused by
the Claimant's poor monitoring.

In the course of the trial, the Company had attempted to put the blame on the
Claimant by referring to the note dated the 5th August 2010 at page 58 of COBD3
which was written by him. However, I am in agreement with the learned counsel for the
Claimant that the said note must not be equated to poor performance but rather a
suggestion put forward by him to address the issue in the best interest of the
Company. In fact, on the contrary, it was the claimant who initiated the re registration
at page 62 of COBD3 which eventually caused PSMB to give some reduction on the
sum due to them.
3. Mismanagement of the Company's Jetty
COW4 testified that the Company has a private jetty which was also used to provide
services for other Companies for loading and unloading their goods and also for
boarding of crews to off shore and vice versa. However, COW4 testified that the
Company was compounded by the Custom's Department for infringing the Customs'
Rules. And he attributed this to the Claimant's failure to manage the said jetty properly.
He based his allegation on the personal authorization given by the claimant to other
Companies to use the said jetty as evidenced in the claimant's email at pages 2-6
COBD3.
From a closer look at the emails at pages 2-6 of COBD3, it is the court's observation
that the claimant in the said emails did not at anytime give personal authorization to
the other Companies to use the said private jetty. In fact, it was the evidence of COW4
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himself that it was the Company who had actually entered into an agreement with
KENCANA, MV SWISSCO and other Oil and Gas Companies for the purposes of
facilitating their business. On the contrary, I agree with the learned counsel for the
claimant that it was the claimant as evidenced by the emails at pages 11 and 12 dated
the 29th October 2011 and page 10 dated 31st October 2011 of COBD3 who had
ensured that the relevant parties comply with the terms and conditions of the
agreement and in accordance with the prevailing laws.
In the email dated 29th October 2011 found at page 12 COBD3, the claimant had sent
an email to one Mr Yahya Mohd of MISC and Mr David Wong of Kencana informing
them that some crew members of MV SWISSCO had on several occasions neglected
the Company's rules by not registering their names at the entrance counter and
misbehaved themselves by making lots of noises while the Company was having
morning meetings. For that reason, the claimant after getting instruction from COW1
immediately banned MV SWISSCO crews from using the Company's said jetty.
However, the claimant's instruction was overruled by COW4.
On the evidence adduced, it is also the findings of this Court that the allegation by the
Company that the Claimant mismanaged the Company's jetty herein is not proven.
In the final analysis, based on the totality of evidence adduced by both parties as well
as submissions made and also having regards to equity and good conscience as well
as substantial merits of the case without regard to technicalities and legal form as
stated in s. 30(5) IRA, this Court finds that the Claimants dismissal was without just
cause or excuse. The termination is now rendered unjust and unlawful. Accordingly,
the Claimants claim is hereby allowed. Hence I shall now examine the remedy.

Before that, I shall first of all deal with the preliminary objection raised by the learned
counsel for the Respondent to the filing of the Claimant's written submission on the
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grounds that the Claimant's counsel failed to obtain leave from the Court for an
extension of time to file its written submission. The Court had earlier given the parties
the 29th October 2015 to submit and exchange their written submissions
simultaneously. However, the claimant counsel only managed to do so by the 29 th
December 2015.

Having considered the submissions by both parties, it is my considered view that the
objection raised by the learned counsel for the Respondent has no merit and I
therefore disallow the objection raised herein. This is a court of equity where
technicalities and legal forms play a very minimal role in the dispensation of justice. In
this instant case, the reasons for late filing of its submission was fully explained by the
claimant's counsel via its letter to the Court dated 22nd December 2015 and was cc
copy to the Respondent's counsel. As the letter was cc copied to the Respondent's
counsel, this Court therefore finds that there is no prejudice whatsoever caused to the
Respondent by the Claimant filing its submission late.

Remedy

Based on the Courts assessment of the industrial climate between the parties, it is
certainly not conducive to reinstate the Claimant as the relationship between the
Company and the Claimant has been badly strained. In the circumstances, it is
inappropriate to order the remedy of reinstatement. Instead, the Claimant will be
awarded compensation under 2 heads namely, back wages and compensation in lieu
of reinstatement.

Back wages

Back wages is calculated based on the Claimants last drawn salary but limited to 24
months. See Court practice Note 1 of 1987. From the back wages, the court is
required to make a deduction for any contributory conduct; post dismissal earnings
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and delay in the hearing of the case but such a deduction need not involve a
mathematical calculation. See Dr James Alfred (Sabah) v Koperasi Serbaguna
Sanya Sdn Bhd (Sabah) & Anor (2001) 3 CLJ 541.

a. Contributory Factor
From the evidence adduced before me, I have carefully examined the facts and
evidence in this case and I am of the view that there is no contributory factor on
the part of the Claimant in respect of the allegations against him. Hence, under
this item, no deduction shall be made. The fact that he did not reply to any of the
show cause letters issued to him is not a contributory factor to taken into
account in assessing the compensation due to him as it is the claimants right
whether or not to respond to a/the show cause letters issued to him.

b. Delay
From an examination of the notes of proceedings, I noticed that the Claimant did
not occasion any delay in connection with the hearing of this ministerial
reference. Hence, there is also no deduction down under this head.

c. Gainful employment
At the time of dismissal, the Claimants last drawn salary was RM7,000.00 On
the facts of this case, there is no evidence adduced before this Court that he
was in gainful employment after he was dismissed by the Company. Thus,
there is also no deductions under this head.

In conclusion, I hereby hand down to the Claimant a monetary Award in the total sum
of RM189,000.00 in lieu of reinstatement, which is arrived as follows:

a. Back wages for 24 months based on his last drawn salary in the sum of
RM168,000.00.
b. Compensation in lieu of reinstatement for 3 years of service (from to ) at the
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rate 1 month salary for each completed year of service @ RM21,000.00.

c. It is further ordered that the Company shall pay the total amount of
RM189,000.00 through the office of Messrs Aludah & Co within 30 days from
the date of this Award subject to statutory deductions if any and Messrs Aludah
& Co shall accordingly undertake to pay the same to the Claimant.

HANDED DOWN AND DATED THIS DAY OF 19Th APRIL 2016.

-sgd(DUNCAN SIKODOL)
CHAIRMAN
INDUSTRIAL COURT MALAYSIA
SABAH

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