INDUSTRIAL COURT OF MALAYSIA

CASE NO. 14/4-1031/05

BETWEEN

ENCIK LEE JERN CHWEE @ LEE BEE

AND

MUHIBBAH ENGINEERING (M) BHD.

AWARD NO : 1380 OF 2011

Before : TAY LEE LY - CHAIRMAN

Venue : Industrial Court of Malaysia, Kuala Lumpur

Date of Reference : 11.7.2005

Dates of Mention : 4.10.2005, 5.1.2006, 14.9.2006, 2.10.2006, 16.11.2006, 12.3.2007, 16.7.2007, 18.9.2007, 19.8.2008, 9.10.2008, 6.3.2009, 16.11.2009, 15.12.2009, 5.1.2010, 5.2.2010, 1.3.2010, 25.8.2010, 8.9.2010, 22.9.2010 and 23.11.2010

Dates of Hearing : 4.2.2008, 7.3.2008, 14.8.2008, 15.8.2008, 6.10.2008, 7.10.2008, 8.10.2008, 20.2.2009, 13.4.2009, 24.4.2009, 14.8.2009, 7.10.2009, 28.7.2010 and 29.7.2010

Representation : Mr. V.K. Raj of Messrs P. Kuppusamy & Co., learned counsel for the Claimant

Mr. K.K. Lee of Messrs YM Chin & Partners, learned counsel for the Company

Reference : This is a reference under subsection 20(3) of the Industrial Relations Act 1967 (“IRA”) arising out of the dismissal of Encik Lee Jern Chwee @ Lee Bee (“Claimant”) by Muhibbah Engineering (M) Bhd. (“Company”).

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AWARD

A. Introduction

1. This was a Ministerial reference dated 11.7.2005 to the Industrial Court (“IC”)

under s 20(3) of Industrial Relations Act 1967 (“IRA”) for an award in respect of the

dismissal of Encik Lee Jern Chwee @ Lee Bee (“Claimant”) by Muhibbah Engineering

(M) Bhd. ( “Company”) on 4.12.2002.

B. Background

2. This case was heard initially before the previous learned Chairman of this

Court. At the commencement of the hearing of this case, learned counsel for

Claimant had applied for the Company's name to be amended to “Muhibbah

Engineering (M) Bhd.” (“MEB”). The application was granted by the Court. On

16.11.2009, the previous learned Chairman was transferred. On 1.3.2010, both

parties gave their consent for the hearing of this case be continued by me. In the

circumstances, the hearing was continued and duly completed on 29.7.2010. In this

case, both parties have been given a copy of Court's certified notes of evidence

(“NOE”) recorded by the previous learned Chairman and me on 22.9.2010 for

purposes of preparing their written submission.

3. It is to be noted that vide Award No. 4 of 2011 dated 3.1.2011, the Court has

ruled that documents in -

(a) p. 3, 4, 11, 14,16, 20, 23 and 28 COB4 were admissible by virtue of s

73A (2) Evidence Act 1950 and s 30(5) IRA but the weight of the

documents would only be determined at the end of the whole case and

after considering all the submission; and

(b) p. 34 to p. 36 COB4 were not admissible.

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C. Brief Facts

4. The Claimant commenced employment with Company on 16.5.2000 as a

Quarry Manager (“QM”) with a monthly salary of RM6000.00 vide letter dated

14.4.2000 (p.1-5 CLB and p.1-5 COB1). He was also paid hardship allowance of

US$1000.00 when working in Cambodia (clause 20 p.4 CLB and p.4 COB1). The

Claimant was posted to Cambodia on 25.5.2000. The Claimant was confirmed in his

appointment with effect from 16.8.2000 vide letter dated 7.8.2000 (p.6 COB1).

5. The Claimant's employment was terminated by the Company vide letter dated

4.12.2002 (p.20 CLB and p.25-26 COB1) (“Letter of Termination”). His last drawn

salary was RM6350.00. The Letter of Termination reads as follows:

“ Our Ref. : PN/M/JCL/TER/02(12)/K348

December, 04th 2002

Mr. Lee Jern Chwee @ Lee Bee149, Jalan SelasihOff Jalan Telok Gadong41100 KlangSelangor Darul Ehsan

Dear Sir,

RE : TERMINATION OF CONTRACT OF EMPLOYMENT

Reference is made to our meeting on 28/11/2002 and wish to confirm that without prejudice your service will no longer be required by the Company with immediate effect.

We enclose herewith cheque amounting to RM14,009.37 being payment as follows:

(a) One (1) month notice less EPF and Income Tax- RM 5,331.00

(b) One (1) month ex-gratia payment - RM 6,350.00

(c) Eleven (11) days leave balance not taken up to 30/11/2002 - RM 2,328.37

Total = RM 14,009.37

We will make arrangements to return your personal belongings including any outstanding claims in Cambodia, as requested by you.

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We wish to take this opportunity to thank you for your performance and contribution to the Company during your service with the Company. We wish you the best in your undertakings.

Please acknowledge receipt.

Yours faithfully,MUHIBBAH ENGINEERING (M) BHD

- signed -Mohd Turee Hj HasbullahSenior Personnel & Admin Manager

I acknowledge the above payment as final and further agree that I shall not make any further claims from the company and its staff henceforth.

- signed -_________________________LEE JERN CHWEE @ LEE BEEDate : 13-12-12

Handed personally by :

- signed -MOHD. TUREE HAJI HASBULLAH

Senior Personnel & Admin. Manager ”.

D. Parties' Pleaded Case

6. The Claimant pleaded inter alia the following events that led to his dismissal

in the Statement of Case (“SOC”). On 23.9.2002, the Claimant returned to Malaysia

on 4 days' annual leave. He was informed by the Senior Personnel & Administration

Manager of the Company, En. Mohd Turee Haji Hasbullah (“COW1”) that the

Director of the Company, Mr. Low Ping Lin (“Director”) would like to see him. He

met the Director in his office. He was told that the Company did not require his

services any more. The Director told him that he was instructed by the Managing

Director of the Company, Mr. Mac (“MD”) to terminate his services as QM with

immediate effect.

7. The Claimant asked the Director the reason for his dismissal and told the

Director that he wanted to see MD to seek clarification. The Director did not allow

him to see MD but when he pressed for a reason for his termination, the Director

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told him that his performance was under par. The Director told him to see COW1 to

collect one month salary without any termination letter. The Claimant insisted for a

termination letter but was not given. The Claimant did not collect the one month

salary.

8. By way of a letter dated 1.10.2002 (p. 8 CLB and p. 7 COB1), the Company

issued a suspension letter against the Claimant for mismanaging the Company's Kg.

Cham Quarry. The Claimant was requested to give an explanation in writing before

14.10.2002 and informed him that a Domestic Inquiry (“DI”) would be conducted on

15.10.2002. The suspension letter was delivered to Claimant's house in Malaysia.

By a letter dated 11.10.2002 (p. 9 CLB and p. 8 COB1), the Claimant replied to the

suspension letter. Vide a letter dated 16.10.2002 (p. 10 CLB), the Claimant gave

another reply to the suspension letter regarding the guide lines for the

mismanagement issue and enquired the date of DI from COW1. The Company did

not reply to Claimant's letter dated 16.10.2002. The Claimant wrote another letter

dated 21.10.2002 (p. 11 CLB) requesting the Company to revert to him as soon as

possible.

9. Vide a letter dated 25.10.2002 (p. 12-14 CLB and p. 10-12 COB1) COW1

replied to Claimant forwarding him the charges. The Claimant was requested to

reply to the charges in writing by 29.10.2002 and informed that the DI would be

held on 31.10.2002. Vide letter dated 27.10.2002 (p. 15-19 CLB and p. 13-17

COB1), the Claimant replied to the charges proferred against him. The Claimant

attended the DI on 31.10.2002. The DI was only attended by the Claimant and

COW1. The Claimant pleaded not guilty to the charges. Vide a letter dated

4.12.2002 (p. 20-21 CLB and p. 25-26 COB1), the Company terminated Claimant's

services without stating any reason.

10. The Claimant contended that his dismissal amounted to termination

simpliciter and was against all norms of equity, good conscience and was void in

law. He further contended that the summary termination of his services by the

Company amounted to dismissal without just cause or excuse and an unfair labour

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practice, depriving him of his right to livelihood. Hence, the Claimant prayed that he

be reinstated with full back wages, increments, bonus and other benefits.

11. The Company in its Statement of Reply (“SIR”) however contended inter alia

as follows:

(a) the Company had issued a written memo dated 1.10.2002 (p. 7 COB1)

to Claimant informing him that a DI would be held on 15.10.2002

concerning his mismanagement of Company's quarry under his charge.

The Claimant was allowed to produce his witnesses if he chose to do

so. He was given a chance to give a written explanation to Company.

The Claimant acknowledged receipt of the memo on the same day;

(b) vide a letter dated 11.10.2002, the Claimant requested for “a guide line

of the accusation of mismanagement or performance under par as

mentioned ...” in order for the Claimant to reply;

(c) the Company replied vide letter dated 5.10.2002 enclosing the charges.

The Claimant was asked to answer the charges in writing by

29.10.2002;

(d) the Claimant replied to the charges vide letter dated 27.10.2002 which

was received by the Company on 29.10.2002;

(e) the Claimant met COW1 on 31.10.2002 where the charges and

Claimant's reply were discussed;

(f) on 28.11.2002, the Claimant was informed that the management had

duly considered his reply but found him guilty of the charges and

further informed the Claimant that he had 2 options to consider, i.e., to

resign or he could choose to terminate the employment contract; and

(g) on 3.12.2002, the Claimant came to the Company and said his decision

was to terminate the employment contract with some form of

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compensation. The Claimant requested for two (2) months' salary as

ex gratia payment.

12. The Company further averred that in accordance with Claimant's wishes, the

Company terminated the Claimant's employment contract with immediate effect vide

letter dated 4.12.2002. A cheque amounting to RM14,009.37 in favour of the

Claimant (being a month's notice less EPF and income tax, a month ex gratia salary

and 11 days' leave balance) was enclosed. The Claimant accepted the cheque on

13.12.2002 and acknowledged payment as final and further agreed that there would

not be any further claim against the Company. The Claimant was therefore

estopped from making further claim against the Company after he had accepted the

agreed ex gratia payment.

13. The Company alleged that the Claimant's poor management and/or

mismanagement of the Kampong Cham Quarry, Cambodia amounted to a serious

misconduct. The Claimant had also failed to discharge his duty as a QM entrusted to

him by the Company and this in turn, had brought disrepute to the good name of

the Company. Therefore, the Company prayed for Claimant's claim to be dismissed.

E. The Law

14. The function of the IC in a reference under s 20 IRA has been clearly stated

by the Federal Court (“FC”) in the case of Goon Kwee Phoy v J & P Coats (M)

Bhd. [1981] 1 LNS 30, where Raja Azlan Shah, CJ (Malaya) (as his Royal Highness

then was) held as follows:

“ Where representations are made and are referred to the [IC] for enquiry, it is the duty of the 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 [IC] will be to inquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.”

[emphasis added].

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15. In Milan Auto Sdn. Bhd. v Wong Sen Yen [1995] 4 CLJ 449 (“Milan

Auto”), Mohd. Azmi FCJ propounded the two-fold function of IC as follows:

" As pointed out by this Court recently in Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Anor [1995] 3 CLJ 344, the functions of the [IC] in dismissal cases on a reference under s 20 is two-fold; first to determine whether the misconduct complained of by the employer has been established and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal."

[emphasis added].

16. It is trite law that the Company bears the legal burden to prove the

justification for the termination of Claimant's employment (see Ireka Construction

Berhad v Chantiravathan A/L Subramaniam James [1995] 2 ILR 11). The

Company needs only to prove the justification for that termination on a balance of

probabilities [see Court of Appeal (“CA”) case of Telekom Malaysia Kawasan

Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 (“Krishnan

Kutty”).

17. In Krishnan Kutty (supra), Abdul Hamid JCA (as his Lordship then was)

stated as follows:

“The [IC] should not be burdened with the technicalities regarding the standard of proof, the rules of evidence and procedure that are applied in a court of law. The [IC] should be allowed to conduct its proceedings as a ‘court of arbitration’, and be more flexible in arriving at its decision, so long as it gives special regard to substantial merits and decides a case in accordance with equity and good conscience.”

[emphasis added].

18. It is significant to note that the CA in Krishnan Kutty (supra), Abdul Hamid

JCA at p 324 made reference to the Indian Supreme Court (“SC”) case of

Management of Balipara Tea Estate v Its Workmen AIR 1960 SC 191, wherein

the SC held:

“ In making an award in an industrial dispute referred to it, the tribunal has not to decide for itself whether the charge framed against the workman concerned (in this case falsification of accounts and misappropriation in

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funds) has been established to its satisfaction; it has only to be satisfied that the management of a business concern was justified in coming to the conclusion that the charge against its workman was well founded.

The tribunal misdirects itself in so far as it insists upon conclusive proof of guilt to be adduced by the management in the inquiry before it. It is well settled that a tribunal has to find only whether there is justification for the management to dismiss an employee and whether a case of misconduct has been made out at the inquiry held by it.

These principles were also endorsed by the [CA] decision of Menara Panglobal Sdn. Bhd. v Arokianathan Sivapiragasam [2006] 2 CLJ 501 at p 523.”

[emphasis added].

19. In K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 ILR p 267

(“Sanduran Nehru” case), the CA affirmed the principles adopted by the High

Court (“HC”) which stated that “it is clear that the IC is not a court of law where

technicalities of the law should be its prime consideration. On the same token, in

determining the misconduct of the employee, the IC should not have proceeded as if

it is exercising the function of criminal court.” It is pertinent to note that the CA at

page 268 also stated that IC had adopted a wrong standard of proof and had taken

a wrong approach in stating that “the respondent has not been able to discharge

their evidential burden in failing to prove every element of the charge”.

20. In a more recent case of Muhammad Johor v Keretapi Tanah Melayu

Berhad (Award No. 738 of 2010), Y.A. Puan Yamuna Menon, learned Chairman of

IC at p. 5 of her Award referred to the case of Feredo Ltd. v Barnes (EAT) [1976]

ICR 439 as well as IC case of Utusan Melayu (M) Bhd. v National Union of

Journalists Malaysia [1991] 2 ILR 840 and stated as follows at p. 6:

“ It goes without saying that the standard of proof is on a balance of probabilities. In dealing with these charges the approach to be taken as stated by the authorities (cited above) is to determine whether the misconduct complained of has been established, taking a substantive approach rather than a legalistic approach.

The test to be applied is whether the Court is satisfied that the employer at the time of dismissal had “reasonable grounds in believing that the offence put against the employee was in fact committed”.

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[It has to be borne in mind that the approach to be taken in evaluating the evidence should be the substantive approach and not the legalistic approach. This was endorsed by the [CA] in Sanduran Nehru].”

[emphasis added].

F. The Charges

21. The charges against the Claimant are as follows:

“ 1. That you as Manager Kampong Cham Quarry have deliberately deceived the Management/Company into believing that you have a stock balance of 56,451.21 m3 quarry stones as per your Report on Production, Sales and Balance as at 30/09/2002 to the Management/Company. To this effect, the Management/Company directed Mr. Suppaiyah, Project Manager road 7A to look into the stock balance (Kampong Cham Quarry is the supplier of stones for the road 7A Project). In this investigation and survey, he assisted by his 2 surveyors Mr. Om Met and Pen Sek Thay, found there is a balance of 21,929 m3 as per their report (variance of 34,524 m3). (“Charge 1”);

2. That you, as Manager Kampong Cham Quarry have deliberately deceived the Management/Company into believing that you have supplied a total 68,454 m3 stones to road 7A Project as per your Report on Sales/Transfer of stones to Road 7A Project for the period of June 2000 to September 2002. According to the Delivery Orders, it was found that you have actually supplied 53,000 m3 to the road 7A Project and not 68,454 m3. (Variance of 15,454 m3) (“Charge 2”);

3. That you had deliberately instructed your administrator, Mr. NY KIMSEIK and the office staff to amend the recording for delivery of crusher run mixed from the actual figure to 20 m3 per load in order to cover the shortage quantity in stock. Test was made on the maximum load of per truck is around 13.5 m3, which you are well aware. Your action has misled the Management/Company. (“Charge 3”);

4. That you deliberately ignored the fault on the crusher plants namely the 'cone' resulting in slowing down production, thus increase the production cost including diesel consumption. But instead, you had directed your subordinates to continue the production knowing that the plant was not operating well. (“Charge 4”);

5. That you had deliberately ignored the existence of 'outsiders' taking out our stones/boulders 6” x 9” from the Kampong Cham Quarry. This resulted in loss of revenue to the Company. (“Charge 5”);

6. That you have allowed on 15/07/2002 to sell/loan/give explosive item namely 250kg detonating chord and 300kg amunium nitrate to Sam Nang, Sre Seam Quarry without the Company's/Management permission. This act is detrimental to the Company's regulation and the Country's law. (“Charge 6”);

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7. That you have allowed your subordinate staff, Hun Sokmony to receive/collect money from other worker of Kampong Cham Quarry as a gratitude for helping them to get job in your Quarry. (“Charge 7”);

8. That you did not do anything to collect the rocks submerged in waterlogged area of the Quarry. Thus, this is loss to the Company in terms of revenue. (“Charge 8”); and

9. That you had failed in your duty as a Quarry Manager of Kampong Cham Quarry entrusted by the Management/Company and bringing the Company into disrepute with all the above allegations against you.”. (“Charge 9”).”.

G. Evidence

Company's case

22. The Company has called the following 7 witnesses to testify in Court, namely:

(a) Encik Mohd. Turee Hj. Hasbullah, (COW1);

(b) Mr. Lim Phin Chye (“COW2”), the Plant & Asset Manager of Muhibbah

Engineering (Cambodia) Co. Ltd. (“MEC”), a subsidiary of Company;

(c) Mr. Ting Wan Yun (“COW3”), a Malaysian based in Cambodia, who

took over Claimant's position;

(d) Mr. Cheah Soon Lye (“COW4”), the General Manager (“GM”) of MEC

and superior officer of Claimant;

(e) Mr. Kaing Eng Chhay (“COW5”), a Cambodian, who was the Deputy

Director and General Manager of Sok Heng Co. Ltd. (a Cambodian

transport company);

(f) Mr. Chao Chetravuth (“COW6”), a Cambodian, who was the Human

Resources Manager of MEC; and

(g) Mr. Chhun Saron (“COW7”), a Cambodian, who was the Plant

Maintenance Supervisor.

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23. COW1 gave evidence in chief vide witness statement (WS-COW1). COW1

testified that the Claimant commenced employment with Company on 16.5.2000 as

QM. He was on probation until 16.8.2000. On 25.5.2000, the Claimant was posted

to Cambodia as QM of Kampong Cham Quarry. COW1 testified that he drafted the

letter dated 25.10.2002 (p.10-11 COB1) as well the charges against the Claimant on

the instruction of the management. Before drafting the charges, COW1 had gone to

Cambodia to interview some senior personnel and staff who worked with Claimant in

MEB in Cambodia. COW1 also obtained feedback and report from the management

team in MEB in Cambodia. The Claimant replied to the charges but the Company

was not satisfied with his reply. Hence, the Company gave the Claimant 2 options,

i.e., to resign or terminate his employment contract. COW1 said the Claimant saw

him on 3.12.2002. The Claimant told COW1 that he wished his employment contract

be terminated with some compensation. The Claimant requested for two (2) months

salary as ex gratia payment. Hence, the Company proceeded to terminate the

Claimant's employment contract according to Claimant's wishes by issuing the Letter

of Termination. A cheque of RM14,009.37 was also enclosed. The Claimant

personally accepted it on 13.12.2002 and acknowledged the payment as final and

further agreed that there would not be any further claim against the Company (see

p. 26, COB1).

24. COW2 gave evidence in chief vide WS-COW2. COW2 in WS-COW2 gave

evidence in relation to Charges 1, 2 and 4. In relation to Charges 1 and 2, COW2

testified that in 2002, he was directed by MD to survey Kg Cham's quarry area and

check the stock balance of stones produced at the quarry. According to COW2, the

Company was concerned with the quantity of stones produced as the supply of

stones to Road Project 7A could not be matched by the production. Hence, a

physical survey of quantity of stock pile area at the quarry on 2.10.2002 was carried

out by Mr. Suppaiyah, Mr. John Lye and him to determine the actual quantity as

shown in p. 127 COB2A which was prepared by him. Based on the survey, the total

aggregate at stock-pile area was 21,893.17m3. According to COW2, Mr. Suppaiyah

had left the Company and Mr. John Lye had passed away.

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25. In relation to Charge 4, COW2 identified the pictures of Nakayama Cone

Crusher taken by him at the site of Kg. Cham's quarry (p. 36-38 COB1) on

1.10.2002. COW2 explained that the pictures as shown in p. 36 and 37 COB1

showed that the cone crusher unit part was broken because it was worn out.

According to COW2 if these parts were broken, the cone crusher cannot work and

operate efficiently because the settings were out. Hence, the unit must be replaced

immediately in order for it to operate efficiently. COW2 also identified the purchase

requisition (“PR”) dated 16.11.2001 (p. 124 COB2A), which was requested by the

Claimant for Kg Cham's quarry. COW2 admitted that it was the responsibility of his

department (Plant & Asset Department) to supply the items requested. COW2 also

identified the acknowledgement for the items requested on 20.5.2002 (p. 125

COB2A) and the pictures of the new unit requested for and delivered (p. 38 COB1).

COW2 testified that when he went to Kg Cham quarry site on 1.10.2002 and took

the pictures of the damaged and new cone crusher part, he saw that the new cone

crusher part has yet to be installed. It was COW2's testimony that it was the

responsibility of the Claimant as the QM at that time to give instructions on its

installation. According to COW2, the Claimant claimed that the item was not

delivered to his site. Hence, COW2 had personally went to the site to check. COW2

was very surprised and perplexed to find that the installation was not carried out

despite the item was long delivered to site. Then, Mr. John and him took the

initiative to have the new cone crusher part installed. COW2 also identified the

pictures of Secondary Jaw Crusher and its main bearing and parts which were worn

out very badly and cannot run the plant at the site of Kg. Cham quarry. (p. 39 to 42

COB1) taken on 1.10.2002. COW2 explained that if the bearing and parts of the

Secondary Jaw Crusher were worn out badly, it would not run the plant and would

affect stones production at the quarry.

26. COW3 took over as Kampong Cham's QM on 3.10.2002. His gave evidence-

in-chief vide WS-COW3. In relation to Charge 1, COW3 testified that he wanted to

know the actual aggregate stock balance on site before and after he assumed the

role of QM. Hence, he did a survey of the stock balance on site, assisted by 2 other

surveyors. COW3 said that after the survey, the amount of the aggregate stock

balance on site was about 23,000m3. In Q and A 9 to 11 WS-COW3, COW3 said he

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did not agree with the amount of 56,439.21m3 shown in Kampong Cham Quarry

Production, Sales and Balance (“PSB”) record as at 30.09.2002 (p 45 of COB 2A) as

it was not a true reflection of the quarry's stock balance. Besides that, COW3 said

there was a big variance between the amount surveyed by him with the amount

stated in PSB as at 30.9.2002. Due to the big variance, COW3 did not bring

forward the amount of stock balance of 56,439.21m3 as recorded in PSB record as at

30.09.2002 to the month of October 2002. According to his PSB sheet as at

29.10.2002, the stock balance was 23,090.16m3 (p 44 COB 2A).

27. In relation to Charge 4, COW3 testified that when he first reported for work,

Mr John Lye and COW2 came to see him and told him they had to change the Cone

Crusher part (i.e., concrete and mantle) and Secondary Jaw crusher (i.e., plate and

bearing). COW3 then followed to see them change the Cone Crusher part and

Secondary Jaw Crusher. It was also COW3's evidence that there was a need to

change the Cone Crusher Part and Secondary Jaw Crusher because they were

damaged and not properly maintained.

28. In relation to Charge 8, COW3 testified that when he took over, he noticed

the quarry was water-logged which was a problem he had to solve as a new QM.

COW3 said after he thought about it, he managed to solve the problem by pumping

out the water using existing water pumps. He also used additional pumps which he

requested from Plant & Asset Department. The additional pumps were delivered to

the quarry within 2 to 3 days. After the water had been pumped out, COW3 had to

drill holes into the ground and plant explosives inside the blast to extract stones.

The extracted stones from the area were then transported to Road 7A Project by

dump truck provided by a transport contractor, named Sok Heng Company. COW3

said he personally witnessed the lab personnel measured the bucket of the dump-

trucks and the capacity of the dump-trucks was about 14 m3 to 15 m3 each truck.

29. COW4 gave evidence in chief vide WS-COW4. COW4 testified that he

assisted COW1 when COW1 came to Cambodia. COW4 gave COW1 the necessary

information on Claimant's performance as QM of Kg Cham and Road 7A Project

when COW1 was instructed to draft the charges. According to COW4, Road 7A

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Project in Cambodia was a project undertaken by MEC in year 2001 to 2002. It was

a project to build roads for Cambodian Government. For this project, the stones

were extracted from Kg. Cham quarry and delivered to project site for building the

roads. The Project Manager for Road 7A Project was Mr. Suppaiyah.

30. In relation to Charge 1, COW4 testified that sometime in year 2002, the

management was not pleased with the project because the stone supply was slow

and insufficient to complete the roads but he thought the roads were over-

compacted. Then, Mr. Suppaiyah complained that he discovered the supply of

stones from Kg Cham quarry did not match the quantities delivered to the project

site. COW4 said he was surprised because the initial PSB reports of Kg Cham

seemed to be in order. However, when Mr. Suppaiyah insisted that the figures were

not correct, COW4 highlighted the problem to the Claimant. COW4 said he gave the

Claimant verbal instructions to find the root of the problem but the Claimant insisted

that there was nothing wrong with his production and delivery reports. As such, the

management had no choice but to do physical survey of the stock-pile area at Kg

Cham quarry and investigate the delivery of stones to project site.

31. According to COW4, in order to be fair to the Claimant, the management

appointed COW2, Mr. John Lye, QM of Kg Speu (Mr. John”) and Mr. Suppaiyah [who

was assisted by 2 project surveyors, Mr. Om Met (“Mr. Om”) and Pen Sek Thay (“Mr.

Pen”)] to conduct a physical survey of the quantity of stones at stock-pile at Kg

Cham Quarry. They (COW2, Mr. John and Mr. Suppaiyah) surveyed the stock pile

of stones at Kg Cham on 2.10.2002 and furnished to COW4 the actual quantity of

stones as stated in p.127 COB2A. Hence, the variance of 34,524m3 of stones stated

in Charge 1 was derived from the difference in figures between the “Survey Quantity

at Stock-Pile area in Kg. Cham Quarry For the Various Aggregate Production on Site”

recorded by COW2 on 2.10.2002 (which was based on the survey conducted by

COW2, Mr. Suppaiyah and Mr. John), i.e., 21,893.17m3 (p.127 COB2A) as compared

to the quantity as per PSB report as at 30.9.2002”, i.e. 56,439.21m3 (p.45 COB2A).

32. COW4 in Q and A20 of WS-COW4 said that PSB report as at 30.9.2002 was

extended to him on a routine basis as GM. COW4 in Q and A22 to 24 of WS-COW4

15

confirmed and identified the monthly PSB reports of the aggregate stock balance (p.

46, 48, 50, 52, 53, 54, 55 and 57 COB2A) from Kg Cham which were prepared and

signed by Ny Kimseik and were also signed by the Claimant as QM. COW4 in Q and

A21 of WS-COW4 admitted that PSB report as at 30.9.2002 was prepared and

signed by Ny Kimseik and the Claimant as QM was supposed to approve it but the

signature column was left blank. COW4 did not know why the Claimant did not sign

PSB report as at 30.9.2002 but COW4 knew the Claimant was on leave in Malaysia

from 23.9.2002 onwards. COW4 in Q and A28 of WS-COW4 said that even though

the place for Claimant's signature was left blank, he would still accept PSB report as

at 30.9.2002 to be accurate and truthful because the Company had records of the

“Closing Stock” and “Opening Stock” column from all the previous months reports.

COW4 explained that in August 2002, the “Closing Stock” column was 49,542.71m3 .

The stock balance of 49,542.71m3 was brought forward to month of September

2002 in “Opening Stock” column as 49,542.71m3. COW4 further explained that by

taking into account the stock balance of 49,542.71m3 from the month of August

2002, it was quite possible and believable to have a balance of 56,439.21m3 at the

end of September 2002. Similarly, for the month July 2002 where the “Closing

Stock” was 53,238.04 m3 and the amount of 53,238.04m3 was brought forward to

the next month (August 2002) as the “Opening Stock”.

33. COW4 said that he was shocked because the variance was too big even if he

were to ignore the balance stock quantity as per PSB report as at 30.9.2002. COW4

said this was because the stock as PSB for month of August 2002 (which was

49,542.71 m3 ) was duly approved by the Claimant himself. In that sense, Mr.

Suppaiyah's complaint had a basis. It was COW4's evidence that he did not doubt

the figure of 21,893.17 m3 recorded by COW2 because the figure was physically

surveyed by 3 senior personnel with the assistance of 2 surveyors. Besides that,

when COW3 took charge of Kg Cham Quarry on 3.10.2002, he personally did

another physical survey of the aggregate stock balance on the same day before

starting work. The quantity surveyed was 23,131.38 m3 and was recorded in the

“B/F” column in the PSB as at 29.10.02 (p. 44 COB2A).

16

34. COW4 in Q and A36 to 42 of WS-COW4 also testified that he knew Ny Kimseik

personally. Ny Kimseik is a Cambodian and was the Administrator or Kg Cham

quarry. He took instructions from the Claimant and reported to the Claimant.

According to COW4, Ny Kimseik had left the Company for a better job offer. COW4

also identified the report on investigation and revision of Kg. Cham quarry (p. 1-34

COB4) prepared by COW6 and Ny Kimseik's written statement and signature at p. 3

COB4.

35. In relation to Charge 2, COW4 testified that he informed COW1 that there

was a variance of 15,545m3 between the sales/transfer of stones to Road 7A Project

(68,454.m3) and what was recorded in the D.O (53,000m3) as stated in the charge.

COW4 in Q and A43 of WS-COW4 said Mr. Suppaiyah reported to him after he

measured the amount of stones that were compacted on the roads against the

amount of stones that were physically supplied to the project site from Kg. Cham

quarry.

36. In respect of Charge 3, COW4 in Q and A44 of WS-COW4 said he informed

COW1 that the Claimant has ordered Ny Kimseik to amend the recording for delivery

of crusher run mixed from the actual to figure to 20m3 per load in order to cover

the shortage quantity in stock. According to COW4, in the course of the

investigation it was reported to him that Ny Kimseik had admitted to that shortage

and had agreed to sign on a written statement in English on 1.10.2002 (p. 3 COB4).

It was COW4's evidence that he had personally been to Kg. Cham quarry and had

seen the dump-trucks that were used to transport stones from Kg. Cham to project

site and the capacity was about 12 m3 to 17 m3 of stones for each load.

37. In respect of Charge 5, COW4 in Q and A53 to 57 of WS-COW4 explained

that he visited Kg Cham quarry and had personally seen outsiders (i.e., people who

were not workers of Kg. Cham quarry) went into the quarry. According to COW4, the

Claimant told him the outsiders were workers from the local military General's father

and they had been operating there even before the existence of Kg. Cham quarry.

When they carried the stones, they passed through the access in the quarry and it

looked as if they were taking stones from Kg. Cham quarry. COW4 said he was not

17

satisfied with Claimant's explanation. COW4 told the Claimant that he should build

an alternative access to segregate the outsiders from the quarry for security reasons

and avoid confusion and accusation of outsiders taking Company's stones.

According to COW4, the Claimant however did not do anything. The problem

however was solved when COW3 took over as the new QM. COW3 took the

initiative to fence up the quarry area and built an alternative access. COW3 also

spoke to the General's father asking him to advise his workers not to use Company's

access as the quarry activities might be dangerous to their safety.

38. In relation to Charge 6, COW4 testified that it came to his knowledge that the

Company's explosives and detonating chord were loaned to Sre Siam Quarry without

his approval. COW4 said when he found out about it, he warned the Claimant to be

more responsible when he rendered assistance to Sre Siam Quarry and he must

documented it properly to show the explosives and detonating chord were returned.

According to COW4, after his advice, the Claimant prepared a “receipt” dated

16.9.2002 (p. 20 COB1) but knew later from one Mr. Srun Samnang of Sre Siam

Quarry (“Mr. Samnang”) that the Claimant had earlier sold explosives to him on

15.7.2002 and 17.7.2002 (p.21-22 COB1). COW4 in Q and A62 of WS-COW4 said

he knew this when Mr. Samnang informed Mr Khieng Hann, one of MEC's directors

(not called as witness) and Mr Khieng Hann had informed him. COW4 identified a

letter dated 29.6.2007 written in Khrmer language (p. 35 COB4) by Mr. Samnang

and translated to English on 14.9.2007 (p. 36 COB4). COW4 said the letter stated

that Mr. Samnang had previously around 5.5.2002 purchased explosives and paid for

them in cash to the Claimant.

39. In relation to Charge 8, it was COW4's evidence that the Claimant had

proposed to the management to look for a new quarry as the Claimant alleged that

the Kg. Cham quarry could not produce enough stones for the road project because

the Kg. Cham was always water-logged and hence, not enough stones could be

extracted. COW4 in Q and A75 of WS-COW4 said the quarry was water-logged

because the water was not pumped out urgently and efficiently. COW4 in Q and

A80 of WS-COW4 also said that he had seen Kg. Cham quarry being water-logged

many times even before Claimant went back to Malaysia on 23.9.2002. A water-

18

logged quarry would result in poor productivity of stones and if the water was not

pumped out, it was obvious that the stones could be extracted. According to COW4,

after COW3 took over the Kg. Cham quarry as the new QM on 3.10.2002, he

managed to supply sufficient stones from Kg. Cham to Road 7A project until its

completion without having to acquire a new quarry as proposed by the Claimant.

40. COW5 gave evidence in Khmer language with the assistance of a Cambodian

interpreter. COW5's evidence was in relation to Charge 3. COW5 testified that his

company, i.e., Sok Heng Co. Ltd. (“Sok Heng”) transported all kinds of rocks from Kg

Cham quarry to Road 7A and 7B project site since 2001 and 2002. The vehicles that

Sok Heng used to transport the rocks were dump trucks. According to COW5, he

personally supervised the transportation of the rocks from the quarry to project site

and the capacity of dump trucks used were mostly 14m3 and the biggest was 17m3.

COW5 identified the D.O used by the quarry (p. 140-163 COB2A). COW5 said he

did not sign any of the DO's and were prepared by staff like Ny Kimseik, Lindet and

Keorithy. When asked with reference to the quantity 20m3, 19m3 or 18m3 stated in

the DO's, COW5 said the dump trucks could not carry such quantities and he did

not know why the DO stated as such.

41. COW5 testified that he gave a statement on 4.10.2002 (p. 30-33 COB4) which

reads –

“ My name is Kaing Eng Chhay, sex male, age 32. I'm a Deputy Director of Sok Heng Co.. I have received an order to transport the rock, sand, laterite and compact the rock for Muhibbah Company for the Project of 7A and 7B. In this transportation of the rock from the Portheat quarry to the National Road 7A. Our Sok Heng Co. has appointed a representative and a driver to transport the rock for the quarry of Mr. Lee. Every order of the rock transported I did not focus on how many cubic meters. Only the driver knows how many buckets that the dump truck can carry. And the numbers of how many cubic meters is written from the quarry site. From the beginning of the transportation from the quarry to the road we have also discussed about the loss of the rock. The discussion was between the Sok Heng Co. and Project 7A.After the discussion we found out that the rock loss, then the Project 7A called to Mr. Lee then after the problem was find out the Project 7A told me that they are in the same Muhibbah Company.

19

For me I did not focus on how many cubic and I focussed is on the project paid. I did not care about the number of the cubic I only care about my payment. And only my dump truck can load from 12 to 17 cubic.

But at that time the delivery order was stated from 14 to 20 cubic. And the 20 cubic my dump truck cannot load. That's all.” .

42. COW6 gave evidence vide WS-COW6. COW6 testified that he had worked for

MEC for about 12 years as HR Manager. He took English language course at

Australian Centre of Education (“ACE”) in Phnom Penh and had a Certificate of

Advanced English Proficiency from ACE. COW6 said he knew the Claimant, who was

Kg Cham's QM from September 2001 to September 2002. Prior to Kg. Cham quarry,

the Claimant was working at Siem Reap Quarry. COW6 identified the report on the

investigation and revision of Kg. Cham quarry (p. 1-34 COB4) prepared by him on

12.10.2002. COW6 said he prepared the report on the instruction of Mr. Khieng

Hann, director of MEC (“Mr. Khieng”). Mr. Khieng gave him the reports and written

statements of various staff and instructed him to translate them into English.

According to COW6, the management was very dissatisfied with the running of Kg

Cham quarry as there was a lot of complaints from various staff against the

Claimant. COW6 testified that in his report (paragraph (a) in p. 1 COB4) that

Claimant's poor technical knowledge had caused low production of stones and

comparatively high expenditure based on PSB and fuel-oil consumption of 3 quarries

from January-August 2002 (p. 52 COB3).

43. COW6 said that he was asked by the Director to investigate and report to

him. COW6 said he asked Ny Kimseik to write him a statement (p. 3 COB4).

According to COW6, the statement was written in English by Ny Kimseik himself. In

his statement, Ny Kimseik stated that he had been doing the recording for the

delivery of crusher run mixed to Road 7A project and initially, he and other staff

have been recording the actual quantity per truck. He also admitted that he and

other staff had been amending the recording for the delivery of crusher run mixed to

cover the shortage of quantity in stock and did some increasing of the quantity to

20m3 on the instruction of the Claimant. He further stated that he and other staff

didn't know what to do but merely followed Claimant's instructions.

20

44. COW6 in his evidence in chief also testified that he translated the statements

given by the following persons in Khmer language to English language:

(a) Mr. Chap Sareth dated 2.10.2002 (p.4-5 COB4);

(b) COW7's report dated October 2002 (p.6-10 COB4);

(c) Mr. Vong Viseth's report dated 4.10.2002 (p.11-13 COB4);

(d) minutes of inquiry by Mr. Vong Viseth, recorded by Mr. Sam Phally on

3.10.2002 (p. 14-15 COB4);

(e) the minutes of inquiry by Mr. Hun Sokmony and recorded by police

officer known as Sam Phally on 4.10.2002 (p.16-19 COB4) (p.15

COB4);

(f) “Conclusion of Inquiries” on 9.10.2002 by Sam Phally (p.20 COB4) and

(p.21-22 COB4);

(g) Mr. Hun Sokmony's “Report of Work at Siem Reap Quarry” dated

17.7.2001 (p.23-24, COB4);

(h) clarification by Mr. Norng Sophal, chief security at Kg Cham Quarry,

dated 29.9.2002 (p.28-29, COB4); and

(i) statement from COW5 dated 4.10.2002 (p.30-33 COB4).

45. COW7 testified in Khmer language in Court with the assistance of a

Cambodian interpreter. In 2002, COW7 was the Plant Maintenance Supervisor in

Kampong Cham quarry, in charge of maintenance and repair of the equipment.

COW7 testified that he reported to Mr. Hun Sokmony (Assistant QM) and the

Claimant as QM. COW7 worked with the Claimant for 2 years. COW7 identified the

report written by him in Khmer language on 3.10.2002 (p. 8-10 COB4) to

headquarters in Phnom Penh regarding the breakdown of the cone crusher at the

quarry. In relation to the cone crusher, COW7 confirmed his report in paragraph

II(2) in p. 6 COB4 that he had verbally reported to the Claimant as follows:

21

(a) the jaw plates were broken and COW7 asked the Claimant to see and

change the jaw plates but the Claimant did not allow him to do so;

(b) once when the bearing of the second crusher could not run, COW7

asked the Claimant's permission to repair or change it but the Claimant

ignored and asked to further 'run' the crusher; and

(c) the jaws of the cone crusher were broken and the spare jaws were

available but the Claimant did not allow COW7 to change.

46. COW7 further identified the picture of Nakayama Cone crusher (p. 36 COB1),

picture of locking thread, body cone cave and cone cave (p. 37 COB1), picture of

mantle unit and the new mantle unit (p. 38 COB1), picture of secondary cone

crusher size 36” x 24” (p. 39 COB1), picture of bearing of secondary cone crusher

showed signs of wear out as well as picture of jaw crusher (p. 40 COB1) and picture

of broken bearing, picture of bushing, metal ring and parts of the bearing which

were worn out badly (p. 41 and 42 COB1) . COW7 testified that he brought the

Claimant to see the broken cone crusher and asked to replace a new one but the

Claimant just ignored and keep using the old one. COW7 also said that he had seen

the new mantle in the store as it was available but he didn't know when it was

eventually installed. COW7 said that his last working day was end of September

2002 and after that, he was transferred to headquarters in Phnom Penh by Mr.

Suppaiyah.

Claimant's case

47. Claimant was the sole witness for his case. He gave evidence in chief vide

witness statement (WS-CLW). His evidence in chief inter alia is as follows. At the

time when he was appointed by the Company, he had a Bachelor of Science Degree

in Mechanical Engineering from Cheng Kung University, Taiwan. He is also a member

of the Board of Engineers, Malaysia and is an affiliate member of Institute of Mining

& Metallurgy, U.K. The Claimant testified the facts that led to his dismissal as

pleaded in the SOC.

22

48. The Claimant further testified that he insisted on a termination letter because

he wanted the Company to state formally the reason for his dismissal instead of a

verbal dismissal. He further said that he did not accept the verbal reason given by

the Director that his performance was under par. The Claimant in answer to Q18,

testified that he did not return to Cambodia after the incident on 23.9.2002 as he

was actually waiting to receive his termination letter from the Company. Instead, he

received the suspension letter for mismanaging Kg. Cham Quarry and was requested

to give explanation in writing before 14.10.2002. In that letter, he was also

informed that a DI would be conducted on 15.10.2002. The Company however did

not attach any report with the letter. Hence, the Claimant said it was merely a bare

allegation against him.

49. The Claimant testified that he replied to the suspension letter vide letter

dated 11.10.2002 (p.9 CLB). In his letter he stated inter alia “So, please give me a

guide line of the accusation of mismanagement or performance under par as

mentioned in order for me to reply.”, as he needed details of the Company's

accusations against him. Subsequently vide a letter dated 16.10.2002 (p.10 CLB),

the Claimant wrote to COW1 enquiring the date of DI from COW1 since the DI which

was scheduled on 15.10.2002, had been postponed by the Company. According to

the Claimant, since the Company did not reply to his letter dated 16.10.2002, the

Claimant wrote another letter dated 21.10.2002 (p.11 CLB), requesting the Company

to revert to him as soon as possible.

50. The Company subsequently replied vide letter dated 25.10.2002 (p.12-14

CLB), attaching the charges and he was requested to answer the charges in writing

by 29.10.2002. He was also informed that the DI was rescheduled to 31.10.2002.

The Claimant testified that he replied to the charges vide letter dated 27.10.2002

(p.15-19 CLB) but the Company did not reply as to whether his explanation was

acceptable. He attended the DI on 31.10.2002 but there was no witness called

except COW1 and him. He pleaded not guilty to the charges. The Claimant in

answer to Q38 of WS-CLW testified that he went to the Company on 28.11.2002

because he was asked by COW1 to meet him. At the meeting, COW1 informed him

that the management found him guilty of most of the charges. According to the

23

Claimant, the Company did not give him any letter stating that he was found guilty

of the charges. With reference to sub-paragraph 5(g) SIR, the Claimant in answer

to Q42 of WS-CLW testified that he never went to the Company on 3.12.2002 and

never informed the Company of his wishes to terminate his employment contract

with some form of ex gratia compensation.

H. Evaluation and Finding

51. In dealing with a reference under s 20 IRA, the first thing the IC has to

consider is whether there was a dismissal. If this question is answered in the

affirmative, then the next question which IC must consider is whether the dismissal

was with just cause or excuse (see the SC case of Wong Chee Hong v Cathay

Organization (M) Sdn. Bhd. [1988] 1 MLJ 92).

H(1) Whether Claimant was dismissed by the Company

52. In respect of this issue, the Company did not deny that the Company had

terminated Claimant's employment contract vide Letter of Termination. Nor had the

Company raised any issue that the Claimant had resigned voluntarily from the

Company. In the circumstances, the answer to the first issue is clearly in the

affirmative, i.e., the termination of the Claimant's employment amounted to a

dismissal.

H(2) Whether Claimant's dismissal was with just cause or excuse

Preliminary issue on DI

53. It is observed that the Claimant had not raised any particular issue pertaining

to DI in either the SOC or his written submission. In sub-paragraph 5(k) of SOC, it

was merely stated that “The Claimant attended the DI on 31.10.2002. However

only the Claimant and COW1 were present at the DI. The Claimant pleaded not

guilty of the charges.” In SIR, the Company stated in sub-paragraph 5(a) that “a

DI will be held on 15.10.2002 and that the Claimant is allowed to produce witnesses

if he so chooses.”. In sub-paragraph 5(e) SIR, it was further averred that the

24

Claimant met with COW1 on 31.10.2002 where the charges and Claimant's reply

were discussed. The Company did not produce any note on DI. In the

circumstance, it is sufficiently clear that there was no proper DI conducted by the

Company before dismissing the Claimant. As regards DI, the law is clear that a

defective DI or failure to hold a DI, is not fatal to a dismissal. The hearing before

the IC was a de novo one [see Wong Yuen Hock v Syarikat Hong Leong

Assurance Sdn. Bhd. & Anor [1995] 3 CLJ 344; Milan Auto (supra) v Wong

She Yen [1995] 4 CLJ 449; Ganesan G. Suppiah v Mount Pleasure Corp Sdn.

Bhd. [1998] 1 CLJ 637; Ngeow Voon Yean v Sungei Wang Plaza Sdn. Bhd. &

Anor [2004] 1 CLJ 8 and Encik Soh Tong Hwa v Malaysian Oxygen Berhad

(Award No. 469 of 2008)].

Estoppel

54. In Kumpulan Perangsang Selangor Bhd. v Zaid Mohd Noh [1997] 2 CLJ

11, the SC held as follows at page 13:

“ It is trite that the [IC] must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form. The doctrine of estoppel, hence, is not to be applied in industrial adjudication. The learned Judge was therefore entirely correct in his observation that the [IC] had erred in law when it applied the doctrine of estoppel to the process of industrial adjudication before it ...”.

[emphasis added].

(see also Nadarajah v Golf Resort (M) Bhd [1992) 1 MLJ 506 at p. 511).

55. As stated earlier, the legal burden rests on the Company to prove on a

balance of probabilities that the termination was with just cause or excuse. In

ascertaining whether the termination was with just cause or excuse, the Court will

first consider the issue whether the misconduct complained of by the Company has

been established in Court [see Milan Auto (supra)]. In this case, the Letter of

Termination did not specify the reason for the termination but referred to a meeting

on 28.11.2002. The Company in sub-paragraph 5(f) of SIR averred that “On

28.11.2002, the Claimant was informed that the management had duly considered

his reply but found him guilty on most of the charges …”. In the circumstances, the

25

Court will now evaluate based on the evidence adduced during the trial before the

Court in relation to the charges to determine whether the termination was with just

cause or excuse.

(i) whether misconduct complained of has been established in Court

Charge 1

56. Charge 1 was that the Claimant as QM of Kampong Cham had deliberately

deceived the Management/Company into believing that there was a stock balance of

56,451.21 m3 quarry stones as per Claimant's PSB Report as at 30.9.2002 to the

Management/Company. It was also stated in Charge 1 that the

Management/Company directed Mr. Suppaiyah, Project Manager road 7A, to look

into the stock balance. In Mr. Suppaiyah's investigation and survey, he was assisted

by 2 surveyors, Mr. Om and Mr. Pen. They found there was a balance of 21,929 m3

as per their report dated 2.10.2002 (variance of 34,524 m3) (p. 127 COB2A).

57. In respect of Charge 1, it is significant to note the following undisputed facts:

(a) the Claimant was on annual leave in Malaysia from 23.9.2002 and was

not in Kg. Cham after 23.9.2002 onwards;

(b) the PSB Report as at 30.9.2002 (p.45 COB2A) was prepared by Ny

Kimseik, who was the Claimant's Administrator and Assistant and bore

only Ny Kimseik's signature;

(c) the Claimant had not approved PSB Report as at 30.9.2002 and hence,

had not signed the report although his name appeared on the report;

(d) the monthly PSB Reports were prepared by Ny Kimseik;

(e) Ny Kimseik was not called as a witness to testify; and

(f) the variance of 34,524m3 was calculated based on the difference

between PSB Report as at 30.9.2002 (i.e., 56,451.21m3) (p.45 COB2A)

26

and survey report done on 2.10.2002 (i.e., 21,929 m3) (p.127 COB2A)

by Mr. Suppaiyah with the assistance of the 2 surveyors, Mr. Om and

Mr. Pen. Mr. Suppaiyah and the 2 surveyors were also not called to

testify; and

(g) the Claimant had signed PSB reports of previous months, i.e., June to

August 2002.

58. Concerning Charge 1, the Company submitted that the Company had proven

Charge 1 based on the evidence of COW4 as stated in Q and A 21 to Q and A 35 of

WS-COW4, evidence of COW2 (Q and A 1 to Q and A 14 of WS-COW2) and evidence

of COW3 (Q and A 1 to Q and A 15 of WS-COW3). The Company also submitted at

length that although the PSB as at 30.9.2002 did not bear Claimant's signature as he

was on leave in Malaysia, it did not necessarily mean that the Claimant would not

have approved it. The submission was based on the assumption that the Claimant

had signed the reports of previous months, i.e., June to August 2002 and the

opening stock for each month was the same as the closing stock of the preceding

month. Hence, the Claimant would have approved the PSB for the month of

September 2002 had he not been back in Malaysia on annual leave.

59. In respect of Charge 1, it is significant to note the following evidence of

COW4 under cross-examination by Claimant's learned counsel:

(a) COW4 agreed that he did not request COW2 or Mr. Suppaiyah or

anyone else to check the stock figures at the end of August 2002; and

(b) it was the responsibility of QM to present the report correctly and QM

has to carry out some physical check. The QM must physically verify

the figures prepared by his subordinates. Hence, COW4 agreed that it

was important for the QM to verify the figures reported and placed his

signature on PSB report as at 30.9.2002 (p. 45 COB2A).

60. The Court is unable to agree with the submission presented by the Company

in respect of Charge 1. In Court's view, since Charge 1 involved a quasi-criminal

27

element, it is pertinent that the PSB report as at 30.9.2002 ought to be verified and

signed by the Claimant himself before he could be held to be responsible for it.

Besides that, the Company ought to have called the Claimant's administrator, Ny

Kimseik who prepared and signed PSB report as at 30.9.2002 to testify in Court. In

the circumstances, the Court holds that that the Company has not established the

misconduct as stated in Charge 1.

Charge 2

61. Charge 2 alleged that the Claimant as QM had deliberately deceived the

Management/Company into believing that he had supplied a total 68,454 m3 stones

to road 7A Project as per Claimant's Report on Sales/Transfer of stones to Road 7A

Project for the period of June 2000 to September 2002. According to DO's, it was

found that he had actually supplied 53,000 m3 to road 7A Project and not 68,454 m3.

Hence, a variance of 15,454m3.

62. In respect of Charge 2, the Company relied on the submission and evidence

adduced as stated for Charges 1 and 3. Having scrutinised the evidence and

submission of both parties in respect of Charge 2, it is also the view of this Court

that the Company had failed to establish the misconduct as stated in Charge 2.

From the evidence of COW1, COW2 and COW6, it is clear that the Claimant held the

position as QM of Kg. Cham only with effect from 1.9.2001 and not from June 2000.

Charge 3

63. In respect of Charge 3, the Company alleged that the Claimant had

deliberately instructed his administrator Ny Kimseik and the office staff to amend the

recording for delivery of crusher run mixed from the actual figure to 20m3 per load in

order to cover the shortage in stock. Test was made on the maximum load per

truck was around 13.5 m3 and the Claimant was well aware of this fact. Hence,

Claimant's action had misled the Management/Company.

64. For Charge 3, the Company relied on the following evidence:

28

(a) written statement of Ny Kimseik (p.3 COB4) who was not called to

testify in Court. The Company argued that Ny Kimseik had left the

employment of MEC and his whereabouts was unknown to MEC or the

Company;

(b) evidence of COW6 who had produced an Internal Memo dated

12.10.2002 with various attachment/reports given by persons not

called to testify as evidence (p.1-34 COB4). The Internal Memo was

prepared by COW6 addressed to COW4;

(c) evidence of COW5 and the statement given by COW5 (p.31-33 COB4);

(d) the DO's prepared by the staff of the Claimant including Torn Linda,

Keo Rithy or Ny Kimseik (p.1-15, p. 23 -43, p. 16-49 of COB3). The

DO's between 30.4.2002 to 13.5.2002 (p.1-15 COB3) showed a load of

14 m3 stated in the column of “Quantity” on vehicle No. 1147 and

DO's dated 14.5.2002 to 31.5.2002 (p. 16-49 of COB3) showed a load

of 20 m3 in the column of “Quantity” for the same vehicle number; and

(e) Claimant's explanation to Charge 3 as stated in his reply to show cause

dated 27.10.2002 (p. 16 CLB).

65. The Claimant, on the other hand, submitted that the Company had failed to

discharge the burden of establishing Charge 3 inter alia because –

(a) the Company did not establish the different elements of Charge 3 (see

Soh Tong Wah v Malaysian Oxygen Berhad (supra);

(b) the Company did not call Ny Kimseik or any other office staff to

confirm that the Claimant had allegedly instructed them to amend DO's

recording from actual figures to 20m3;

(c) the Management/Company was not present in Court to enlighten on

how they were misled; and

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(d) COW5 had testified that he did not focus on how many cubic metres

that was transported in each DO and only the driver knew how many

buckets the dump truck can carry.

66. After reviewing all the relevant evidence and submission of both parties in

respect of Charge 3, the Court finds that the Company has proven Charge 3 on a

balance of probabilities. In this case, even though Ny Kimseik was not called to

testify, it is sufficiently clear from Claimant's own explanation that the amendment

was clearly on his instruction. The Claimant's explanation to Charge 3 which was

stated in his reply to show cause dated 27.10.2002 (p. 16 CLB), reads as follows:

“The amendment was my instruction. This is due to some 4 to 5 units of all the dump trucks supplied by the contractor engaged by the site personnel from Road 7A Project are of 20m3 capacities. For the rest of the dump trucks from the mentioned contractor are of 14.0m3 capacities. This issue can be easily identified from the signed and verified [DO's]. Therefore, the clerk was instructed to correct the figure from 14.0 m3 to 20 m3 per load for the 4 to 5 units of dump trucks. There is no manipulation as per your charges. Other than that, there is no further instruction on this matter.”.

67. The Court finds that the Claimant's explanation (that the amendment was due

to the fact that some 4 to 5 units of the dump trucks supplied by the contractor

engaged by site personnel from Road 7A Project, were of 20m3 capacity) was not

probable. The Company had called COW5 from Sok Heng (transport contractor).

The Court noted that although COW5 had testified that he did not focus on on how

many cubic metres the dump truck transported in each DO, COW5 was consistent in

his testimony during examination in chief and under lengthy cross-examination that

all dump trucks could only load a maximum of 17 m3 . Besides that, it is important

to note the following:

(a) as testified by COW5 and Claimant, the DO's were prepared by

Claimant's staff, i.e., Ny Kimseik, Linda and Keorithy. Sok Heng and

COW5 were not involved in the preparation of DO's;

(b) the evidence of COW4 supports the evidence of COW5. COW4 in his

evidence in chief testified that the dump trucks could carry about 12m3

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to 17m3 of stones for each load. Under cross-examination, COW4

maintained his evidence;

(c) the Claimant under cross-examination identified and confirmed the

DO's prepared by his staff. He identified Ms Linda's signature in COB3

p. 1 and 2 and Keorithy's signature in p. 4 COB3. The Claimant

identified and agreed that COB3 p. 1, 2, 3, 4, 6, 8 and p. 9-15 were

DO's which showed the tipper lorry no. 1147 took in a load of 14m3.

The Claimant also confirmed and agreed the DO's in COB3 p. 16-51

dated 14.5.2002 to 31.5.2002 were in relation to tipper lorry no. 1147

which carried 20m3 and Ny Kimseik's signatures were in COB3 p.

37,38, 41, 45 and 51;

(d) the Claimant under cross-examination disagreed that he had instructed

his staff to record a load of 20m3. In this regard, the Claimant's

evidence contradicted his own explanation as stated in his reply to the

show cause letter;

(e) in relation to COB2A p. 140-163 and p. 272-278, it was COW5's

evidence that the DO's were prepared by Ny Kimseik, Lindet as well as

by Keorithy and the dump trucks could not carry quantities of 20m3,

19m3 or even 18m3. Most of the dump trucks were 14m3 and the

biggest was 17m3. COW5 when asked under cross-examination in

relation to his written statement in p. 31-33 COB4, further testified that

the dump trucks could not load 20m3. In this regard, the Court agrees

with the submission of the Company that the Claimant's explanation

that some 4 to 5 units of dump trucks were of 20m3 capacity,

contradicted with COW5's evidence; and

(f) the Claimant's evidence under re-examination, i.e., “before 14.5.2002

the material crusher run produced is still under the quality check by

the consultant. Therefore the plant is running on trial basis and after

14.5.2002 with the approval of the consultant, this particular truck

1147 in quality the truck started to load 20m3 each and a total of 30

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over trucks there are about 4 dump trucks which are able to carry 20

over m3 and 1147 is one of them start to load 20m3 onwards from 14

May”, was never put to any of the Company's witnesses. Hence, it was

an afterthought.

Charge 4

68. For Charge 4, the Company alleged that the Claimant had deliberately ignored

the fault on the crusher plants, namely the 'cone' which had caused a slow down of

production and an increase in the production cost (including diesel consumption).

Charge 4 further alleged that the Claimant had instead directed his subordinates to

continue with production despite knowing that the plant was not operating well.

69. In respect of Charge 4, the Claimant submitted that based on the evidence of

COW1 and COW2, the Company had not led any evidence pertaining to -

(a) Claimant's act of ignoring faults of crusher plant;

(b) any slow down in production; and

(c) Claimant instructed his subordinates to continue with production even

though he knew that the plant was not operating well.

70. The Company however submitted that based on the evidence of COW2 (Q

and A22-33 of WS-COW2) and COW7 (p. 177 to 180 NOE), the Company had proven

that –

(a) the Nakayama Cone Crusher at the site of Kg. Cham Quarry had been

broken. These parts had been broken because they were been worn

out. The pictures of the Nakayama Cone Crusher were taken by COW2

on 1.10.2002 (p.36-38 COB1);

(b) the unit had to be replaced immediately so that it could operate

efficiently;

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(c) upon requisition by the Claimant on 16.11.2001 (p.124 COB2A), the

new replacement unit had arrived at Kg Cham Quarry on 20.5.2002

(p.125 COB2A);

(d) despite the arrival of the new replacement unit, the Claimant had not

taken the initiative, immediate steps or give instructions to have the

defective unit replaced; and

(e) the new replacement unit was found to be still lying at the store area

when COW2 arrived at Kg. Cham Quarry some five (5) months later

i.e. on 1.10.2002. COW2 then took pictures of the new unit (2nd

picture at p.38 COB1) on 1.10.2002. This resulted in COW2 and Mr.

John Lye having to take the initiative to have the new replacement unit

installed by them.

71. The Claimant in his reply to show cause (p.17 CLB) stated that –

“ The 'cone' referred to is the secondary plant. The 'fault' has been acknowledged way before it was 'faulty'. The 'faulty' parts are the expected tear and wear parts that required to be replaced after certain operating hours recommended by the manufacturer. Remedy action has been taken in November 2001. The Purchase Requisition (PR006062) for the mentioned spare parts had been raised in November 2001 to Mr. Kumar (Kg. Speu Quarry) who is responsible in spare parts ordering. Despite numerous following up, has got confirmation that the spare parts will depart from Japan only in late August and arrive in late September 2002. Therefore, secondary plant shut down has been scheduled for replacement of parts. Meantime, to avoid production slow time and lost, the cone crusher was put into operation.”.

72. After evaluating all the evidence related to Charge 4 including the evidence of

COW7 during evidence in chief and cross-examination as well as the submission of

both parties, the Court finds that it is sufficiently clear that the Company has

established on a balance of probabilities the misconduct as stated in Charge 4.

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Charge 5

73. In respect of Charge 5, the Company alleged that the Claimant had

deliberately ignored 'outsiders' taking out Company's 6” x 9” stones/boulders from

the Kampong Cham Quarry which had resulted in loss of revenue to the Company.

74. The Company relied on the evidence of COW3 and COW4 and submitted that

this Charge had been proven, particularly as stated in Q and A 53 to 57 WS-COW4.

The Claimant's explanation to this Charge as stated in his reply was “The boulders

(6” x 9”) were not belongings of Kampong Cham Quarry. The 'outsiders' is working

outside the boundary of Kampong Cham Quarry. They are the workers from the

local military Generals father in the village and the access to this village is the road

passing through our quarry. They have been operating there before even the

existence of Kampong Cham Quarry. So, when the Generals father sells the hand

break weathered rocks to their customers, they will have to pass through our quarry

to deliver and this creates a scenario that the product comes from our quarry.”.

75. The Court after scrutinising the evidence of COW3 and COW4, found that

there was no evidence to support Charge 5 that alleged 'outsiders' had taken the

Company's 6” x 9” stones/boulders from the Kampong Cham Quarry. Besides that,

there was also no evidence led as regards any loss of revenue suffered by the

Company. In the circumstances, the Court finds that the Company had not

established Charge 5.

Charge 6

76. In Charge 6, the Company alleged that the Claimant on 15.07.2002 had

allowed to sell/loan/give explosive item namely 250 kg detonating chord and 300 kg

amunium nitrate to Sam Nang, Sre Seam Quarry without the

Company's/Management permission. It was also stated in Charge 6 that the

Claimant's act was detrimental to Company's regulation and the country's law.

77. The Claimant submitted that Charge 6 should fail because of the contradiction

between the charge and the evidence relied on by the Company is relying, i.e., p. 16 34

COB4 where the author of the document (Mr. Hun Sokmony) stated that “we (a

reference to the Kg Cham quarry and the Claimant by extension) borrowed from Mr.

Samnang.” In other words, it was the Claimant who had borrowed the explosives

from Mr. Samnang.

78. The Company, however, submitted that Charge 6 was proven based on the

following evidence:

(a) COW4 (Q and A 58-60 WS-COW4) and COB1 p. 21 and 22;

(b) the translation of minutes of inquiry (p. 16 and 17 COB4) answered by

Mr. Hun Sokmony and recorded by Mr. Sam Phally (police officer),

both not called by the Company to testify in Court; and

(c) Claimant's explanation as stated in his reply to show cause (p. 18 CLB).

79. The Claimant's explanation in respect of this Charge as stated in his reply to

show cause is as follows:

“ Mr. Sam Nang is the proprietor to Sre Seam Quarry and is located 25 km away from our quarry. I was instructed by Mr. Khien Hann, director of MEC, Cambodia to assist him him in any way if he so require. In July 2002, Mr. Sam Nang has borrowed some explosives and detonating chord from us and returned in September with all the proper documentation from both side. This issue was clarified with [COW4] in September 2002 where I was accused of selling off explosives. The proper documentation referred to is attached..”.

80. It was also submitted by the Company that the Claimant did not call Mr.

Khieng Hann to testify concerning Mr. Khieng Hann's alleged instruction to him to

assist Mr. Samnang. Secondly, the Company also submitted that COW4 had testified

that the Claimant did not inform him and had not obtained his approval before

loaning out the explosives or detonating chord to Mr. Samnang.

81. With respect, the Court is unable to agree with Claimant's submission on the

contradiction in p. 16 COB4. The relevant portion of p.16 COB4 is as follows:

35

“ On July 13 2002, Srun Samnang quarry borrowed explosive powder 300 kgs then on July 15, 2002 we borrowed 1 roll of DC/SF. On September 16, 2002 I borrowed TNT from Srun Samnang, he (Srun Samnang) returned explosive powder 300 kgs and 1 roll of DC/SF.”.

82. Besides the above, it is important to note that DO No. 007025 (p. 22, COB1)

and DO No. 007026 (p. 21, COB1) stated as follows:

36

Based on the all the relevant evidence adduced for Charge 6, the Court finds that it

is sufficiently clear that the Company has established Charge 6 on a balance of

probabilities.

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Charge 7

83. In relation to this charge, the Company alleged that the Claimant had allowed

his subordinate staff, Hun Sokmony to receive/collect money from other workers of

Kampong Cham Quarry as a gratitude for helping them to get jobs in the Quarry.

84. The Claimant submitted inter alia that -

(a) the Company had not adduced any evidence to support Charge 7;

(b) the purported written statement of Hun Sokmony (p. 23-23 COB4) did

not reveal anything concerning Charge 7; and

(c) COW1 under cross-examination had admitted that he had no evidence

to support this charge when he was drafting this charge.

85. The Company in its written submission conceded that Hun Sokmony, a

Cambodian national was not produced as a witness as he was no longer in

employment of MEC or the Company and his whereabouts was not known to the

Company. Hence, the Company did not propose to submit on this charge.

86. The Court after evaluating the evidence presented concerning this Charge,

finds that the Company had failed to establish the misconduct as stated in Charge

7.

Charge 8

87. This charge alleged the Claimant's failure to do anything to collect the rocks

submerged in waterlogged area of Kg Cham Quarry. This charge also alleged that

the Claimant's act had caused loss of revenue to the Company.

88. The Company submitted that Charge 8 was proven through the evidence of

COW4 in his answer to Q 74 to 82 WS-COW4 and COW3 in his answer to Q 18-23

WS-COW3.

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89. The Claimant in his reply to show cause letter had explained as follows:

“ Extraction of rocks from the second layer had been started since middle of August 2002. The actual thickness of rock is between 1.5 to 2.0 meters. Pumps were used to de-water the pond where the rocks were submerged. Additional pumps were requested in the Management meeting held on the 7.9.2002 from Plant and Asset Dept. in order to fasten the drying of the pond. No remedy action was taken on my request.”.

90. The Claimant's learned counsel submitted that Charge 8 had not been

established by the Company based on the following:

(a) admission of COW1 under cross-examination on 7.3.2008 (p.36 NOE

onwards);

(b) the evidence of COW4 did not shed any light on the details of loss of

revenue to the Company as stated in Charge 8; and

(c) the Claimant had requested for additional pumps at a Management

meeting.

91. Based on all the evidence presented concerning this charge and submission of

both parties, the Court finds that the Company has failed to establish on a balance

of probabilities the misconduct as stated in Charge 8.

Charge 9

92. Charge 9 is essentially a general avernment that the Claimant had failed in

his duty, entrusted to him as QM by the Management/Company based on Charges 1

to 8. The Charge further alleged that Claimant's failure had brought disrepute to the

Company.

93. It was submitted by the Company that Charge 9 is the cumulative effect of all

and any of the misconduct of the Claimant which had brought disrepute to the

Company. The Claimant however submitted that this charge must fail as the

Company had failed to establish any of the earlier 8 charges against the Claimant. It

39

was further submitted by the Claimant that there was no evidence whatsoever of the

Company suffering any disrepute.

94. In respect of Charge 9, the Court is of the view that the Charge is superfluous

and a duplicity of the all above charges. As rightly submitted by the Claimant's

learned counsel, the Company had not adduce any evidence of disrepute suffered by

the Company in order to support this charge. In the circumstances, the Court finds

Charge 9 has no basis.

Court's observation

95. It is observed that there was a direct inconsistency between the Claimant's

own evidence and his written submission. The Claimant in his evidence in chief

testified that he did not return to Cambodia after 23.9.2002. The Claimant in his

written submission (p. 5) had stated that “Claimant was given 3 days to reply to the

charges, whilst the Claimant was still in Malaysia without access to documents

in Cambodia” and at p. 7 stated that “It was undisputed that the Claimant never

went back to Cambodia. ...”. However, the Claimant's evidence during re-

examination at p. 251 NOE stated as follows:

“Q25 : You were brought to explanation to charge 1 at p.13 COB1. “In addition … ...”, and when you reply. Question : When you wrote explanation at October 2002 did you have benefit of stock balance report?

A : Yes. It was very coincidence. I went back to gather copy of my document.

Q26 : You mean you took same copies of document with you?

A : Yes.”.

In light of the above inconsistencies, the Claimant's testimony is therefore doubtful.

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(ii) Whether Claimant's proven misconduct warranted his dismissal

96. Having established the Claimant's misconduct as specified in Charges 3, 4 and

6, the next question the Court has to consider is whether such proven misconduct

warrants the Claimant's dismissal.

97. The Claimant in this case had invited the Court to consider the

reasonableness of his dismissal. On this aspect, the Claimant submitted that the

punishment of dismissal imposed on him was extremely harsh, disproportionate and

excessive. In support of his submission, the Claimant cited cases, such as Johnson

Matthey Metals ltd. v Harding [1978] IRIR 248 (“Johnson”); Dev Singh v

Punjab Tourism Development Corporation Ltd. & Anor AIR 2003 SC 3712

(“Dev Singh”) and Rameshbai Atmaram Patel v Factory Manager, New

Shorrock Mills Ltd. [2001] III LLJ (Suppl) 723. The case of Johnson (supra) had

been adopted by our High Court in Sunmugam Subramaniam v JG Containers

(M) Sdn. Bhd. & Anor [2000] 6 CLJ 521 (“Sunmugam”) and Chartered Bank v

National Bank Union of Employees [1983] 2 ILR 111.

98. It is to be noted that the cases cited by the Claimant could be easily

distinguished from the present case. In Johnson 's case (supra), the Claimant had

worked more than 27 years with a blameless or unblemished record of service with

the Bank. In the case of Sunmugam (supra), the Claimant was charged with 7

charges but was found guilty of only the 1st charge, i.e., the Claimant had used

derogatory language to the managing director. In Dev Singh (supra), the

appellant had served with the respondent Corporation for nearly 20 years with an

unblemished service before the charge of misconduct of misplacement of a file was

levelled against him.

99. In the present case, the Court finds that the Claimant's misconduct as stated

in Charges 3, 4 and 6 were cumulatively sufficiently serious to warrant his dismissal.

In this regard, the termination of Claimant's employment contract was with just

cause or excuse.

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I. Conclusion

100. As an epilogue, based on totality of evidence adduced by both parties as well

as submissions made and also having regard to equity and good conscience as well

as substantial merits of the case without regard to technicalities and legal form, this

Court finds that the Company has proven on a balance of probabilities the

misconduct as stated in Charges 3, 4 and 6 against the Claimant and such

misconduct warrants the Claimant's dismissal. Accordingly, this Court holds that the

dismissal of the Claimant by the Company is with just cause or excuse. Hence, the

Claimant's claim is hereby dismissed.

HANDED DOWN AND DATED THIS 21 SEPTEMBER 2011

( TAY LEE LY )CHAIRMAN

INDUSTRIAL COURTKUALA LUMPUR

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