ISMAIL MD ALI & ORS v. EXPRESS RAIL LINK SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
ANNA NG FUI CHOO
AWARD NO. 580 OF 2013 [CASE NO: 3(28)(3)/4-200/06]
4 APRIL 2013
AWARD
(NO. 580 of 2013)
Anna Ng Fui Choo:[1] The Ministerial reference in this case required the court to hear and determine the claimants' complaint of dismissal by the company on 24 April 2003.
[2] The hearing of this case commenced before former learned Chairman Mr. Franklin Goonting on 2 April 2007 and it had continued thereafter on several dates. Mr. Goonting's contract as a Chairman ended on 31 December 2011 so the learned President transferred this case to this court for its continued hearing. The learned counsels for both parties did not have any objection for me to proceed with the continuation of the hearing. The continued hearing before me commenced on 23 April 2012. One company witness (COW1) had completed given his testimony before Mr. Goonting. When the hearing resumed before me, it had commenced with the cross-examination of COW2. There was a site visit by Mr. Goonting together with the learned counsels of the company and the claimants and some of the claimants on 11 August 2010. I had declined to visit the sites after taking over the hearing because the evidence was well presented and the Automated Fare Collection (AFC) System presentation had been documented and marked as COB5. This court does not encounter any problem understanding the processes of the AFC System which was presented by Mr. Alex Tan Kok Fatt (COW2) and further explained in court.
Facts
[3] Express Rail Link Sdn Bhd (ERL) was the concessionaire that designed, built and operated (it still does) the high-speed KLIA Ekspres and KLIA (Kuala Lumpur International Airport) transit train services between KL Sentral and KLIA. The entire train system comprises of five (5) stations namely at KL Sentral, Bandar Tasik Selatan, Putrajaya, Cyberjaya, Salak Tinggi and KLIA.
[4] The 10 claimants were employed by the company as ticketing officers (also referred as cashiers). A summary of their particulars and employment is as per the table below:
[5] The facts that emerged and which led to the claimants' dismissal was when the company issued to the claimants, letters dated 6 March 2003. They were instructed to reply to the allegations preferred against them within seven (7) days from the date of receipt of those letters. They were also notified in the same letter that they were suspended from their duties on half pay for the duration of 14 days effective from 6 March 2003 pending the company's investigation into the allegations preferred against them (CL3). The claimants vide a letter dated 10 March 2003 (CL4) sought amongst others, clarification from the company in respect of the company's letters dated 6 March 2003.
Name Date of Joining Company Last Drawn Pay (RM) Employment status Zarina Binti Zakaria (CLW1) 28 May 2002 Pages 163-167 COB1 1,000 RM26,250 Afza Elyana Binti Mohammad (CLW2) 4 February 2002 Pages 146-150 COB1 1,000 Confirmed Mohd Fadzil Bin Mohd Nor (CLW3) 4 February 2002 Pages 109-113 COB1 1,100 Confirmed Mohd Nizam Bin Mohamed (CLW4) 28 May 2002 Pages 37-41 COB1 1,000 Confirmed Ismail Bin Md Ali (CLW5) 4 February 2002 Pages 128-132 COB1 1,500 Confirmed Mohd Fauzi Bin Saad (CLW6) 28 May 2002 Pages 1-5 COB1 1,400 Confirmed Sumanzi Bin Jaaman (CLW7) 4 July 2002 Pages 91-95 COB1 1,000 Confirmed Adis Yazelin Binti Yazik (CLW8) 18 March 2002 Pages 20-24 COB1 1,200 Probationer Azuar Bin Mohd Karim (CLW9) 28 May 2002 Pages 73-77 COB1 1,000 Probationer Surina Binti Mohd Razali (CLW10) 28 May 2002 Pages 56-60 COB1 1,000 Confirmed
[6] Subsequently, the claimants received letters dated 19 March 2003 from the company in which they were informed that the management had embarked on a detailed investigation in respect of the allegations preferred against them. The claimants were also informed that pending the outcome of the investigation, the claimants were further suspended from their duties on full pay until further notice. The company then issued the claimants with show cause letters dated 10 April 2003 and instructed them to reply to the allegations preferred against them within seven (7) days of the receipt of the said letters (CL5). The claimants vide their respective letters (CL6) replied to the company's show cause letters. The company was not satisfied with the explanations given by the claimants. Taking into account the gravity of the offences committed, the company could no longer repose the necessary trust and confidence in them to effectively discharge their duties, the claimants were terminated of their services vide the company's letters dated 24 April 2003 (CL7).
[7] The allegations levelled against the claimants as found in their respective show cause letters dated 10 April 2003 can be summarised as follows i.e. that they had on a specified date at a specified time, clocked in for duty at the KL Sentral Ticketing Office - Departure Hall in KL Sentral and clocked out at a specified time as indicated in the duty roster. The claimants had operated the Passenger Service Machine (PSM) and conducted sales' transactions of tickets amounting to a specified value as reflected in the Cashier Report and the Daily CIT report. However, the company had alleged that the system indicated that the claimants had made further sales' transactions amounting to a specific value that were not reported and/or accounted for in their respective submissions in their End Shift Reports.
[8] An example of the typical show cause letter against the claimants is reflected in CL4 which was issued against CLW2:
It has to come to our attention from our investigations that you in the course of your employment as Ticketing Officer had committed the following acts which are inconsistent with the implied and express terms of your service with the company.
1.0 On 27 November 2002, as indicated in the Duty Roster, you were on duty at the KLIA Ekspres Ticketing Office - Departure Hall in KL Sentral. Our record shows that you started your shift by inserting your Cashier Card number 201 into the Passenger Service Machine (PSM) Number 185 at KLIA Ekspres Ticketing Office - Departure Hall at 15:05 pm and ended your shift at 00:42am. In the course of your shift, you had reported RM12,310.50 of cash tickets sales as is reflected in the Cashier Report and the Daily CIT Report.
1.1 However, our system further indicates that you had in addition to the above, transacted the following sales all of which are not reported and/or accounted for in your submission for 27 November 2003:
(a) At 16:37 pm a transaction was made amounting to RM70.1.2 For the aforesaid time frame and date a total of RM910 cash and credit card ticket sales was transacted by you from the PSM Number 185 [Device Name KS_EXD_PSM_01] using your Cashier Card Number 201 which is not accounted for.
(b) At 16:38 pm a transaction was made amounting to RM70.
(c) At 16:38 pm a transaction was made amounting to RM35.
(d) At 16:41 pm a transaction was made amounting to RM100.
(e) At 16:42 pm a transaction was made amounting to RM70.
(f) At 16:43 pm a transaction was made amounting to RM35.
(g) At 16:44 pm a transaction was made amounting to RM35.
(h) At 16:44 pm a transaction was made amounting to RM35.
(i) At 16:44 pm a transaction was made amounting to RM35.
(j) At 16:46 pm a transaction was made amounting to RM90.
(k) At 20:06 pm a transaction was made amounting to RM30.
(l) At 20:07 pm a transaction was made amounting to RM70.
(m) At 20:07 pm a transaction was made amounting to RM35.
(n) At 20:08 pm a transaction was made amounting to RM35.
(o) At 20:09 pm a transaction was made amounting to RM195. [Visa]
(p) At 20:30 pm a transaction was made amounting to RM35.
(q) At 20:32 pm a transaction was made amounting to RM105.
(r) At 20:34 pm a transaction was made amounting to RM25.
2.0 On 2 December 2002, as indicated in the Duty Roster, you were on duty at the KLIA International Arrival counter in KLIA. Our record shows that you started your shift by inserting your Cashier Card number 201 into the Passenger Service Machine [PSM] Number 15 at the KLIA International Arrival counter in KLIA at 4:35 am and ended your shift at 15:08 pm. In the course of your shift, you had reported RM8,360 of cash ticket sales as is reflected in the Cashier Report and the Daily CIT Report.
2.1 However, our system further indicates that you had in addition to the above, transacted the following cash sales all of which are not reported and/or accounted for in your submission for 2 December 2002:The Function Of The Court
(a) At 07:51 am a transaction was made amounting to RM35.2.2 For the aforesaid time frame and date, a total of RM135 cash ticket sales was transacted by you from the PSM Number 15 [Device Name KA_EX_PSM_03] using your Cashier Card Number 201 which is not accounted for.
(b) At 07:57 am a transaction was made amounting to RM65.
(c) At 09:23 pm a transaction was made amounting to RM35.
[9] In the Federal Court case of Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449, it was authoritatively stated as follows:
As pointed out by the court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s. 20 is twofold, 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.[10] On the duty of the court, it was succinctly expressed in the Federal Court case of Goon Kwee Phoy v. J & P (M) Bhd [1981] 1 LNS 30; [1981] 2 MLJ 129 by his Lordship Raja Azlan Shah CJ Malaya (as his HRH then was) at p. 136:
Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether the excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.The Company's Case
[11] The company called three (3) witnesses to prove the misconduct alleged to have been committed by the claimants. Mr. Yeow Wei-Wen (COW1) who was then the Department Head of the Customer Service Management (CSM) testified that the 10 claimants reported to him. He gave evidence on the daily operations of the ticketing officers/cashiers but said he was not involved in the investigation of the 10 claimants because the company wanted to keep the investigation independent. He explained that a ticketing officer/cashier had to clock-in using the electronic Siport Time Attendance and Access Control System with a personalised staff card which was issued to every staff of the company that identified each staff. Then, the cashier would proceed to the assigned ticket counter and signed in on the ticket issuing machine called a Passenger Service Machine (PSM).
[12] The PSM issued paper tickets with ticket information encoded in the ticket's magnetic strip. Each ticketing officer/cashier was assigned a personalised Cashier Card which recorded and checked the validity of the card when it was inserted into the PSM. The PSM would then be functional to perform sales' transactions once the Cashier Card was accepted. He further explained that upon signing out permanently, the PSM would print out a Cashier Report/End Shift Report showing the total sales' transaction by that particular cashier (ie. in cash and credit card sales). The ticketing officer/cashier would then take the Cashier Report to the ticketing supervisor who would compare the Cashier Report with the amount of cash and credit card slips. The cash would then be sealed in a Tamper-Evident Bag (TEB) and deposited in the designated drop-safe.
[13] COW2 was an officer of the Information Services Management (ISM) of the company in April 2003 and is currently the Assistant Vice President of ISM. He testified in relation to the infrastructure of the company's IT system (AFC Central Computer System), in particular on the sales' transactions conducted by the ticketing officers/cashiers. COW2's role was extracting data from the Cashier Login and Logout reports, Cashier Transaction Report, cashier report (Accounting View)/ End Shift Report, CIT (Cash in Transit)-ERL Cashier's TEB report and the Siport Access Logs for all the claimants from the Central Server/AFC Central Computer System located at Salak Tinggi. He explained that all sales' transactions performed by a ticket officer/cashier were captured by the PSM which were then stored at the AFC Central Computer System.
[14] The AFC Central Computer System was also backed up by a Reporting Server which he had explained as a 'Real Time Replication'. This was illustrated by him in a document he had prepared marked COB 5 (company's Bundle of Documents 5). The operation process for ticket sales' transactions in particular the AFC Central Computer System was viewed by Mr. Goonting at the company's corporate office at Salak Tinggi. COW2 had explained that the Mirror system or Backup system was a backup system to store, copy or duplicate all transactions transacted at the PSM, Ticket Vending Machine (TVM) and Automatic Control Gate (ACG).
[15] The data extracted by COW2 was then presented to the Committee of Special Investigation and reduced into a report. The Report of Investigation by the Committee of Special Investigation (CSI) of the Management of Express Rail Link Sdn Bhd on Automatic Fare Collection (AFC) dated 7 April 2003 was exhibited as COB2 in which COW2's name was listed as one of those responsible for preparing the report. The investigation had revealed various discrepancies and irregularities in relation to the sales' transactions conducted by the claimants during their shifts. The investigation unearthed numerous alleged unauthorised transactions which indicated that the system had been tampered with during the time the claimants were purportedly operating the PCM during their shifts.
[16] The findings of the CSI in COB2 formed the basis of the show cause letters to all the claimants which can be seen at pages 11 - 15, 30 - 32, 47 - 51, 66 - 88, 83 - 86, 101 - 104, 119 - 123, 138 - 141, 156 - 158 and 173 - 175 of COB1. In respect of how these claimants were identified in those alleged transactions, COW2 explained that each ticketing officer/cashier was assigned a specific Balance Number when he inserted his Cashier Card into the PSM before any ticket sales could be transacted. This meant that the cashiers were the only ones authorised to transact sales on those particular dates and shifts. He proceeded to confirm during cross-examination that the Cashier Cards were unique and assigned to each cashier and no other cashier could have manipulated the system assigned to the PSM.
[17] COW2 further explained that the Balance Number was an automated batch number generated by the PSM device for the ticketing officer/cashier when the cashier's shift began. He confirmed that the Balance Numbers were programmed to run in sequence on an incremental basis for each particular PSM device. Hence, all sales' transactions made by the particular ticketing officer/cashier were tied to the same Balance Number until the Cashier ended his shift. However, after investigations were carried out and upon extracting the detailed Cashier Transaction Report from the AFC Central Computer, it was revealed that the Balance Number which was initially assigned at the commencement of a ticketing officer/cashier's transaction had somehow changed to 'Balance Number 1'. The detailed sales' transactions of all the claimants that were extracted from the AFC Central Computer can be seen at pp. 5 - 34, 59 - 93, 97 - 127, 154 - 165, 190 - 212, 238 - 256, 281 - 295, 322 - 337, 356 - 374 and 392 - 411 of COB3.
[18] When COW2 was cross-examined, he said that the PSM could be manipulated and the methodology as to how it was done could be seen on the explanations at pp. 29 - 30 of COB2. The manipulation process was predominantly conducted by a keyboard and a mouse as illustrated at p. 29 of COB2. He explained during cross-examination how the 'Balance Number 1' was derived from. He also clarified on the backup functions of the AFC Central Computer.
[19] Mr. Aminuddin bin VP Hamzah (COW3) who was then the Executive of Finance and Revenue Management reported to Ms Nor Zuraini bt Mohd Saad who was a member of the investigation team as stated in COB2. She has seen left the employment of the company and was not called as a company witness. COW3 said he had assisted the Committee although his name did not appear in the CSI Report (COB2). It was his evidence that he had assisted his superior at the material time in the compilation of financial data relating to the ticket sales. He had testified on behalf of the company in relation to the reconciliation and verification of all the financial transactions involving the ticket sales of all the claimants, in particular ensuring that the sales' transactions declared by each claimant had tallied with the financial data collected from the AFC System. COW3 testified that he was in charge of preparing the Cashier Transaction Report - Summary which included the data extracted from the AFC Central Computer (ie. amount captured by the claimants during their shifts), the amount submitted to the company (ie. the End Shift Reports) by the cashiers and the discrepancies between the two amount. These were tabulated and presented to the CSI which can be seen at pp. 1 - 2, 55 - 56, 93 - 94, 150 - 151, 186 - 187, 234 - 235, 277 - 278, 318 - 319, 354 - 355 and 388 - 389 of COB3.
[20] COW3 explained in his witness statement on the discrepancies between the sales transactions captured by the AFC Central Computer System and the End Shift Reports. They arose because the End Shift Reports had only displayed the total sales for the assigned Balance Numbers given to the claimants when they inserted their Cashier Cards to begin their shifts on those particular dates. The End Shift Reports did not display all the sales for 'Balance Number 1' as reflected in the detailed financial reports extracted from the AFC Central Computer System. Upon the reconciliation by the Finance and Revenue Management, it was discovered that the system could not tie 'Balance Number l' to the claimants' Cashier ID when they ended their shifts as they were already assigned Balance Numbers to their Cashier ID by the PSM. The End Shift Reports submitted were the total gross sales captured by the ticketing officers/cashiers under their assigned Balance Numbers from the PSM. An example of an End Shift Report printed by the claimants from the PSM can be seen at Appendix 2 of CLB (claimants' Bundle of Documents). The End Shift Reports were also extracted from the AFC Central Computer which can be seen at pp. 35 - 38, 74 - 77, 128 - 131, 166 - 169, 213 - 216, 257 - 260, 296 - 299, 338 - 341, 375 - 376 and 412 - 415 of COB3. He also confirmed during cross-examination that the AFC Central Computer System had captured all sales' transaction details irrespective of the assigned Balance Numbers by the PSM.
The Claimants' Evidence
[21] The 10 claimants' evidence in their witnesses' statements were almost similar and even the cross-examination's questions were almost identical. Their work process was agreed among the claimants and tendered as claimants' Bundle of Documents (CLB). The AFC System of the company was not disputed except that the claimants denied manipulating the system. They also denied their involvement in the irregularities found in the sales transactions as contained in their show cause letters. They said they did not understand the allegations against them nor were the charges ever explained to them before they were dismissed. The claimants reiterated that they were not called for any questioning or domestic inquiry by the company. On COB6 which was a summary of the documents referred to in COB3 and COB4, the claimants said they were not shown nor explained on the contents of those documents before they were terminated of their employment. They also said they did not have the skills to change or manipulate the AFC system. All of them said they possessed basic skills in computer, limited to some of the functions in Microsoft and emails.
[22] All the claimants had agreed during cross-examination that their Cashier ID were different, of which were assigned to each individual. They were shown their Cashier Log in and Log Out Reports for the particular dates they were on duty in which the irregularities in the sales transactions had been discovered which stated, inter alia, the Balance Numbers that were assigned to them, the Device Index which provided the location of the PSM, Cashier ID, dates logged in and logged out and the names of the ticketing officer/cashier. They were also individually shown during cross-examination, the detailed Cashier Transaction Report in COB3 where they had agreed that they were on duty on those dates specified in their show cause letters. The claimants had agreed that the Balance Numbers stated in the Cashier Transaction Report were assigned to them when they inserted their Cashier Cards. However, the claimants were unable to provide explanations as to why the Balance Numbers assigned to them had appeared as 'Balance Number 1' in those instances. The detailed Cashier Transaction Report had shown that there were sales' transactions made under 'Balance Number 1' when the claimants were on duty but those sales' transactions were subsequently unaccounted for. The records were all printed out from the AFC system as explained by COW2 and COW3.
Evaluation Of Evidence
[23] It is a principle of industrial jurisprudence that in a dismissal case, the employer must prove that the employee had committed the alleged misconduct for which he was subsequently dismissed. The burden of proof lies on the company and the standard that is required is on a balance of probabilities.
[24] It was laid down in the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 that the standard of proof is not beyond reasonable doubt even in such cases of misconduct which are related to dishonest acts. At p. 327 his Lordship Abdul Hamid Mohamad JCA (as he then was) said:
Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including "theft", is not required to be satisfied beyond reasonable doubt that the employee has "committed the offence", as in a criminal prosecution. On the other hand, we see that the courts and learned authors have used such terms as "solid and sensible grounds", "sufficient to measure up to a preponderance of the evidence", "whether a case... has been made out", "on the balance of probabilities" and "evidence of probative value". In our view the passage quoted from Administrative Law by H.W.R. Wade & C.F. Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on the balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature of gravity of the issue.[25] Undoubtedly, the allegations levelled against the claimants were very serious and would have amounted to dishonest acts (if proven) although the words used by the company for those unexplained cash sales as "not reported and/or unaccounted for". After hearing and analysing the evidence given by the company's witnesses and the documentary evidence adduced, it is evident that the company had faced an onerous task proving it was the claimants who had manipulated or altered the AFC system. The company had proposed the modus operandi resorted to by the claimants and had listed the "Steps initiated during alleged fraud activities at PSM" as found on p. 29 of COB2. Mr. Murali, learned counsel for the claimants has submitted that the steps had clearly been proved impossible due to the absence of a keyboard and mouse in the PSM which had came with a touch screen. It was contended that those steps could not be executed in the absence of a mouse and a keyboard. Most of the claimants confirmed in their evidence that there was no keyboard and mouse provided while some were unsure. Had all the 10 claimants given similar answers, their evidence could have been tailored but this court views them as truthful witnesses who could have forgotten the tools of their trade because they have left the job 10 years ago.
[26] Nevertheless, p. 5 of COB5 prepared by COW2 shows the PSM without any mouse and keyboard. The company's witnesses also never testified on the existence of a mouse and keyboard at the PSM. The company had also failed to establish the veracity or accuracy of the steps found at p. 29 of COB2. None of the company's witness explained or confirmed that the steps could indeed alter or manipulate the system except for testifying that the reports generated had implicated the claimants due to the change in their assigned Balance numbers which had changed to 'Balance Number 1'. It must be noted that COW2 did not play a role in the investigations but was merely tasked with printing reports in the 2003 investigations which led to the allegations levelled against the claimants.
[27] COB2 was the Investigation Report prepared by the CSI and was relied upon by the company to commence disciplinary action against the claimants. It had reflected variances in the report dated 7 April 2003 and in the hearing before this court, those variances were not explained by the company's witnesses. For example, on page 8 of COB2 in the allegations against CLW2 (Afza Elyana), the committee had found variances of RM75 and RM1,265 and remarked, "... we are still investigating but we are certain that the Central Computer system have captured all the sales transactions conducted by Suspect Number..." Variances in the reports in the cases against the other nine (9) claimants were also found as evident on pp. 10, 12, 14, 16, 17, 18, 19, 21, 23, and 25 and the same remarks were stated after each variance was pointed out. Why were there variances and were those variances reconciled by the company before bringing the documentary evidence before this court? This is only one of the many unanswered question posed by this court.
[28] The company had also failed to produce the claimants' End Shift reports for the dates that they were alleged to have conducted the unauthorised transactions. What COW3 was supposed to reconcile were the sales' transactions declared by the claimants and whether that tallied with the financial data collected from the AFC system. What were in fact reconciled by him was found on p. 296 of COB3 which were not in the same format as submitted to the company's supervisor by the claimants. The claimants had no part in the production of p. 296 of COB3 and it is not justified to hold them responsible for the alleged discrepancies found in the documents therein when their End Shift reports were clearly not before the court to be reconciled by the company's witnesses.
[29] The company was investigating their perceived losses because it was not proven that the company had suffered actual loss which was allegedly caused by the claimants because the AFC system could not account for some of the company's sales' transactions. The evidence brought against the claimants was that the alleged shortfall in sales of tickets had occurred during the claimants' shifts. Apart from that, the company had also failed to establish the proper functionality of the system itself and the veracity of the reports derived from the system. In the court's opinion, the company could have at least produced a certificate under s. 90A of the Evidence Act that the computer or the AFC system of the company or the PSM used by the claimants were in good working order and were operating properly. This is notwithstanding s. 30(5) of the Act that this court shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.
[30] The court holds the above view because it could not be ruled out that the AFC system could be manipulated or hacked or had malfunctioned. Therefore, the documents that were printed and reconciled by COW2 and COW3 could be inaccurate. COW2 had printed the documents but he could not verify their contents or accuracy. Likewise, COW3 was reconciling documents which were printed out from the system but he could not verify on their accuracy. In this respect, the court has made an observation on the show cause letter against CLW1 (Zarina Zakaria) in which it was alleged that transactions unaccounted for were transacted on 30 September 2002 to wit inter alia four (4) transactions were transacted at 9:03am in the amount of RM65, RM35, RM35 and RM35. This is another doubt in the company's case as to the possibility of a cashier (CLW1 in these circumstances) carrying out four (4) transactions including printing tickets, in one minute. Three (3) transactions conducted within one minute in the allegations against other claimants were quite common though.
[31] Yet another perplexing and unexplained finding revealed was that some of the alleged unauthorised transactions included payments made by credit cards. An example of this was in the allegation against CLW2 found on CL4 in which it was alleged that on 27 November 2002 at 20.09pm, an unauthorised transaction amounting to RM195 was paid by Visa. Another example was a payment using AMEX amounting to RM65 allegedly paid to CLW4 on 22 January 2003 at 6.19am (p. 48 of COB1). It would not be wrong to assume that the alleged unauthorised transactions which were unaccounted for by the claimants was for the purpose of siphoning cash. Hence, why were unauthorised transactions paid by credit/debit cards also part of the claimants' scheme when they could not possibly have obtained any cash?
[32] From a small amount of less than RM100 to the bigger sum ranging from RM2000 to more than RM3000 were alleged not to have been accounted for by the 10 claimants. For example, in the allegation against Mr. Mohd Fadzil (CLW3), it was alleged that sales of RM3,163 was not reported. That amount was easily three times of the monthly salary of the claimants and was a huge amount alleged to have been unaccounted for considering the time taken for those alleged unauthorised transactions were committed in one shift in a day and had taken about 20 to 30 minutes. Considering all these, it would have been better for the company to catch the suspects red-handed with the excess cash when they handled the PSM or to fix CCTV to capture the acts of anyone found manipulating the system. This is in the light of the lack of evidence that the claimants had manipulated the system and had conducted the alleged unauthorised transactions. There were too many dents in the company's case.
Findings
[33] Considering the above observations and the evidence adduced by the company, this court finds that the company has failed to discharge its onus in proving the alleged misconduct of all the claimants. On the authority of Auto Milan 's case supra, since the misconduct of the claimants has not been proven, their dismissal is hereby pronounced to be without just cause or excuse.
[34] An inquiry was not conducted by the company before the claimants were terminated of their employment even though most of the claimants earned less than RM1,500 a month and this has been provided for under s. 14(1) of the Employment Act. The proceedings before this court were conducted de novo and the company had produced witnesses and documentary evidence so the fact that the inquiry was not held could not be construed as vitiating the company's decision in dismissing the claimants as decided in the case of Dreamland Corp. (M) Sdn. Bhd. v. Choong Chin Sooi & Anor [1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39.
[35] Notwithstanding, this court which acts according to equity and good conscience views the company's act of abruptly dismissing the claimants without an inquiry as non compliance to basic rules of natural justice and was unjust. The claimants were issued show cause letters highlighting the allegations and the dates in which the unauthorised transactions were alleged to have been committed. The claimants were accorded the opportunity to respond to the show cause letters but they were not furnished any documents or proof of their alleged involvement in the alleged transactions. From the proceedings in court, it is clear that proof of the alleged transactions stemmed from processes that were technical and involved documentary proof of reconciliation. Voluminous bundles of documents were filed in court to prove the company's case in court. Sadly, these were not accessible to the claimants before that, which, if a domestic inquiry had been held, would have required the company to prove its case against the claimants and given them the opportunity, if possible, to offer an explanation. In fact, COW2 admitted in the re-examination of his evidence that the first time some of the claimants had sight of the documents used in court were during the site visit by Mr. Goonting which was seven (7) years later! Most of the claimants have limited academic qualifications, with Sijil Pelajaran Malaysia certificates with the exception of a diploma holder and a polytechnic certificate holder. The company had failed to provide sufficient particulars to the claimants for them to meet the allegations against them and it was possible they could not comprehend the allegations against them in the show cause letters. Furthermore, those alleged transactions had occurred many months before. Hence, they were not able to reply to the allegations adequately.
Remedy
[36] The claimants were dismissed 10 years ago and all of them are now gainfully employed. In making a decision whether the claimants should be reinstated, this court has considered industrial harmony to be maintained among the parties and if that could be sustained should the claimants be reinstated. 10 years is a long time and many things would have changed for the claimants and the company so the court is of the opinion that it is not conducive to reinstate any of the claimants to their previous employment.
[37] Having taken into account the above considerations, this court hereby makes an award for back wages and compensation in lieu of reinstatement equivalent to one month's pay for each completed year of service to be paid to the claimants. This is only applicable to the relevant claimants since CLW8 (Adis Yazelin) and CLW9 (Azuar Mohd Karim) were probationers at the time of their dismissal while five (5) other claimants had not completed a year of service. In arriving at the amount to be paid to the claimants, this court is mindful of the Federal Court's decision in James Alfred v. Koperasi Serbaguna Sanya Bhd & Anor [2001] 3 CLJ 541 and Practice Note No. 1 of 1987. Clause 1 of the Second Schedule of the Act is not applicable in this case because the claimants' dismissals were in April 2003 and the ministerial reference was made in 2005.
[38] The court hereby makes an order for backwages to be paid which is limited to 24 months' of the claimants' last drawn pay (with the exception of CLW8 and CLW9 who are to be paid 12 months only). The court also makes an order for a deduction of 20% to be made from the back wages because the claimants have been employed but it is not known when they were employed after their dismissal. They had told the learned counsel for the company that they could produce their EPF deductions' statements for the years 2003 to 2005 after the hearing but until today, they have failed to comply with that request. The table below summarises the amount to be paid to the claimants:
[
Name Backwages(RM) Quantum (RM) Compensation in lieu of reinstatement (RM) TOTAL (RM) Zarina Binti Zakaria (CLW1) 19,200 - 19,200 Afza Elyana Binti Mohammad (CLW2) 19,200 1,000 20,200 Mohd Fadzil Bin Mohd Nor (CLW3) 21,120 1,100 22,220 Mohd Nizam Bin Mohamed (CLW4) 19,200 - 19,200 Ismail Bin Md Ali (CLW5) 28,800 1,500 30,300 Mohd Fauzi Bin Saad (CLW6) 26,880 - 26,880 Sumanzi Bin Jaaman (CLW7) 19,200 - 19,200 Adis Yazelin Binti Yazik (CLW8) 11,520 - 11,520 Azuar Bin Mohd Karim (CLW9) 9,600 - 9,600 Surina Binti Mohd Razali (CLW10) 19,200 - 19,200
39] The amount, after deducting the necessary statutory deductions, is to be paid by the company to the claimants through the claimants' solicitors Messrs Muhendaran Sri within 30 days from the date of this award.
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