A rare case where reinstatement ordered - but back wages limited to only 20 months?? This is wrong, it should be backwages for 58 months. Further, if reinstatement, then employer should have paid backwages, etc from date of wrongful dismissal until date of reinstatement...
And another glaring problem, is that the employer has not been punished for wrongfully dismissing the worker... Should there not have been at least some FINE...or some additional damages? But, as mentioned earlier, the Judge granted reinstatement and that is rare and welcomed...but..
The Minister took 8 months to refer the matter to the Industrial Court, and we see that the delay is at the Industrial Court, which took so long to complete the hearings, and the Judge took an unexplainable 11 months plus after the last hearing date...WHY? The Industrial Court itself, took over 20 months, and this is unacceptable...
Employee terminated:- 26/8/2008
Wrongful Dismissal Award:- 5/6/2013
58 months from date of wrongful dismissal to date of Judgment
Complain to Industrial Court would have been before 26/10/2008
Reference by Miniter to Industrial Court 3/6/2009
Time Lapse: About 8 months
Reached Industrial Court - 3/6/2009, first mention 17/8/2009
Time Lapse" About 2 1/2 Months (this could have been the time parties had taken to file the pleadings...)
First Mention(17/8/2009) To Last Hearing Date(19/6/2012), then 2 additional mention dates on -19.07.2012 and 28.08.2012 - About 11 months plus
Last court date(28/8/2012) to date Award handed down(5/6/2013) = About 9 1/2 months {The Award should have been handed down immediately or should have taken 2 weeks maximum, it should really have handed down at in July 2012, not August 2013)
So from 1st mention to award is about 20 1/2 months
SIVAKUMAR RATNAM v. GUINNESS ANCHOR BERHAD INDUSTRIAL COURT, KUALA LUMPUR AHMAD ROSLI MOHD SHAM AWARD NO. 984 OF 2013 [CASE NO: 11/4-283/09] 5 JUNE 2013
|
Counsel: For the claimant - Mohan Ghandi; M/s Mohan Ghandi & Associates For the respondent - S Suganthi; M/s Shearn Delamore & Co |
INDUSTRIAL COURT OF MALAYSIA
[CASE NO: 11/4-283/09]
BETWEEN
SIVAKUMAR RATNAM
AND
GUINNESS ANCHOR BERHAD
AWARD NO. 984 OF 2013
Before: | DATO' AHMAD ROSLI BIN MOHD. SHAM - CHAIRMAN (Sitting alone) |
Venue: | Industrial Court, Kuala Lumpur |
Date of Reference: | 03.06.2009 |
Dates of Mention: | 17.08.2009, 18.09.2009, 19.10.2009, 30.10.2009, 13.11.2009, 15.12.2009, 15.03.2010, 09.04.2010, 26.05.2010, 23.11.2010, 19.07.2012 and 28.08.2012 |
Dates of Hearing: | 27.05.2010, 05.07.2011, 06.07.2011, 12.10.2011, 13.10.2011, 27.01.2012, 13.04.2012 and 19.06.2012 |
Representation: | For the claimant - Mohan Ghandi; M/s Mohan Ghandi & Associates |
This is a reference under section 20(3) of the Industrial Relations Act 1967, arising out of the dismissal of Mr. Sivakumar A/L Ratnam (hereinafter referred to as "the Claimant") by Guinness Anchor Berhad (hereinafter referred to as "the Company").
2. In his capacity as Inventory Executive the Claimant was required to inter alia :
4. Pursuant to investigations undertaken by the Company, the evidence obtained and the Claimant's statement to the Audit team, the Company alleged that the Claimant's actions had resulted in serious breaches of the Rules and Procedures of the Company as follows:-
6. During the Claimant's tenure of employment with the Company he had received several warnings in relation to his negligence, breach of Company policies and procedures and work performance with a final warning being issued on 10.5.2000. Thereafter in October 2007 his increment had been withheld on account of misconducts committed by him relating to negligence, abuse of the Company's processes, failure to comply with the Company's policies and procedures and he had been reminded that any further breaches on his part would lead to the punishment of dismissal if so warranted by the circumstances.
7. The Company terminated the Claimant's appointment with immediate effect by letter dated 26.8.2008. The reasons for dismissal as stated in the letter of termination (see page 40 COB) are as follows;
9. The Claimant also said that the plastic layer pads were of little or no value. It appears from the evidence that plastic layer pads were used in the packaging the Company's products and the amount of plastic layer pads were not counted piece by piece but using a measuring ruler to estimate the number based on the thickness of the bundle. It is hardly surprising that the figures were erratic never tally and constant adjustments are needed.
10. The Claimant called CLW-2 Razale bin Asoh Ali as his witness. Razale was the Assistant Manager and immediate superior of the Claimant. In his evidence Razale stated that the Claimant did not do any posting on his behalf after 21st September 2007. He also confirmed that the Claimant reported the missing ruler to him and he instructed the Claimant to count by estimation.
11. It is noted here that the Claimant was never charged with the missing layer pads as complaint by the Company's cans supplier CBCM. In fact there is no evidence of the plastic layer pads being stolen or pilfered.
12. The Claimant called CLW-3 Lim Lai Hock the Company's former project manager as his witness. CLW-3 stated that after the Claimant's dismissal he was instructed to carry out an investigation on the missing layer pads. According to CLW-3 his findings are as follows:-
14. The key evidence relied upon by the Company in their decision to dismiss the Claimant is found basically in the document at page 11 of COB the Company's document. This is a statement recorded by Ling Hwa Liek from the Claimant which the Company said contains an admission by the Claimant that he posted the stock adjustment for plastic layer pads in the Company's computer system using the password of CLW-3 Razale bin Asoh Ali, his immediate superior. The statement is a typewritten statement signed by the Claimant, the recorder Ling Hwa Liek and a witness Michael Tan. All the charges against the Claimant arises out of this statement.
15. Paragraph 4, 5 and 6 of the statement reads;
17. The Claimant denied making the statement and said that he was given a pre-typed statement and was induced to sign it. The Claimant said he was told that if he refuse to sign the pre-typed statement his bonus and profit sharing amounting to about RM20,000.00 will not be paid to him.
18. Even though the Company has shown that there is no such thing as "profit sharing" in the contract of employment and therefore there cannot be such an inducement but looking at the hand written note by the Claimant which is inconsistent with the rest of the statement, this Court thinks that the statement of admission by the Claimant cannot be taken at its face value. Some further explanations and other supporting evidence are needed before it can be taken into consideration. The recorder and the witness who signed on the statement would be able to shed some light and to tip the balance of probability either in the Claimant's favour or the company's favour. Without the evidence of the aforesaid, the statement remains as a statement which contents is in contradiction with itself. Such a statement is unsafe to act upon.
19. There was no domestic inquiry held before dismissing the Claimant. Even though it is true that a domestic inquiry is not a necessity before every dismissal but in such a case like this where the evidence relied upon by the Company to prove the Claimant's misconduct is disputed, such dismissal is arbitrary. The Claimant was denied the opportunity to dispute the manner in which the statement was taken, its contents and to cross examine other witnesses relied upon by the Company to decide the misconduct of the Claimant and the appropriate punishment. There is always the danger that other employees from whom the Company recorded their statement would implicate someone else to save their own neck. As an example, CLW-2 whose statement recorded by the Company at page 34-35 of COB, which seems to implicate the Claimant has given an entirely different evidence in Court.
20. Based on the evidence as adduced in this Court, the grounds relied upon by the Company to prove the misconduct of the Claimant is insufficient and therefore the company has failed to discharge their burden on the balance of probabilities in the face of the Claimant's evidence supported by the witnesses CLW-2 and CLW-3.
21. For these reasons, the Court orders that the Claimant is to be reinstated to his former position without any loss in pay or other benefits. The Company is also to pay the Claimant back wages equivalent to 20 months salary. No evidence was produced by either party to show the exact amount of the Claimant's last salary and this Court is unable to put an exact figure of the total amount of back wages. Therefore it is left to the parties themselves to determine the amount based on the Company's records.
AWARD
1.
The Claimant was first employed by the Company as a Clerk with effect
from 2.11.1993 and was confirmed in his employment with effect from
2.2.1994. The Claimant's last held position was as an Inventory
Executive with a pay of RM2,983.00 per month with an allowance of RM380.00 and he also obtained overtime payments of
between RM1,000.00 and RM2,000.00 per month. But according to the
Company, the Claimant's last pay was RM2,982.00 with a car allowance of RM250.00 per month.2. In his capacity as Inventory Executive the Claimant was required to inter alia :
i. Supervise and control the warehouse operations of receiving, put away, storage and issuing in Sungei Way Brewery (SWB) and PJ Glenmarie office;3. Sometime in July 2008 the Company's aluminium cans supplier Crown Beverage Cans Malaysia Sdn. Bhd. (CBCM) reported that they had discovered significant quantities of packaging materials missing from their consignment stocks stored in the Empty Bottle Store (EBS) in the Company.
ii. To practice FIFO and tracking and tracing process;
iii. To supervise service providers, FLT drivers, contract labourers to coordinate with brewing, packaging, customs and suppliers;
iv. To carry out inventory checks and counts; and
v. To monitor bottle return rates.
4. Pursuant to investigations undertaken by the Company, the evidence obtained and the Claimant's statement to the Audit team, the Company alleged that the Claimant's actions had resulted in serious breaches of the Rules and Procedures of the Company as follows:-
i. The Claimant had admitted in his statement to the Audit Team that he used another person's password ie, belonging to his Assistant Manager, Razale bin Asoh, to post stock adjustments on plastic layer pads between the period 18.11.2007 to 28.7.2008.5. The Company was of the view that he had by reason of the aforesaid conduct breached his express and/or implied terms and conditions of employment in his capacity as an Inventory Executive.
ii. The Claimant's foregoing conduct in using another person's password, was in breach of the Company's IS & T Security Procedure and such conduct was further aggravated in that the Claimant's access rights to adjust stock variances had been removed on 21.9.2007 as a result of another incident ie, the missing Project Glory labels, the details of which were well within the Claimant's knowledge.
iii. Despite the Claimant being fully aware that he was not authorized to post stock adjustments subsequent to 21.9.2007, he continued to post such stock adjustments.
iv. The Claimant had also confirmed in his statement to the Audit Team that he would normally post stock adjustments in the SAP system after he had seen the approved "Adjustment Request Form" purportedly given by Razale bin Asoh. However the investigations of the Company revealed that no such approval was obtained for the stock adjustments of the above mentioned plastic layer pads when the Claimant made the postings during the period of 18.11.2007 to 28.7.2008. In any event, the Claimant's access rights to adjust stock variance had already been removed on 21.9.2007 and accordingly any form of stock adjustments subsequent to 21.9.2007 were unauthorized.
v. The Claimant also confirmed in his statement that he had counted the plastic layer pads with the CBCM's lorry driver before the forklift driver loaded the materials onto the lorry. The results of the Company's investigations however differ from the statement given by two others who confirmed that the lorry driver would normally provide the quantities to be returned to CBCM without any counting being done by the Claimant.
vi. Further the Claimant had also failed to report the loss of the measuring ruler to his Manager when this went missing. The measuring ruler was a necessary tool to verify and confirm the quantity of the plastic layer pads to be returned to CBCM and the Claimant would have been unable to do the counting without the use of the ruler.
6. During the Claimant's tenure of employment with the Company he had received several warnings in relation to his negligence, breach of Company policies and procedures and work performance with a final warning being issued on 10.5.2000. Thereafter in October 2007 his increment had been withheld on account of misconducts committed by him relating to negligence, abuse of the Company's processes, failure to comply with the Company's policies and procedures and he had been reminded that any further breaches on his part would lead to the punishment of dismissal if so warranted by the circumstances.
7. The Company terminated the Claimant's appointment with immediate effect by letter dated 26.8.2008. The reasons for dismissal as stated in the letter of termination (see page 40 COB) are as follows;
i. You had admitted in your statement that you had used the password given by your Assistant Manager, Razale bin Asoh, to post stock adjustments on plastic layer pads between the period 18th November 2007 to 28th July 2008. By using another person's password, you have breached the Company's IS&T Security Procedure.8. The Claimant on the other hand denies that he posted on behalf of Razale or used Razale's password to make stock adjustment in the computer system after 21st September 2007. He merely counted the plastic layer pads before loading into the lorry. He reported about the missing ruler to his superior Razale. Rulers are measuring sticks used to measure the stack of plastic player pads when counting.
Further, your access rights to adjust stock variances had been removed on 21st September 2007 as a result of the missing Project Glory labels incident, the facts of which are well within your knowledge. Your actions are further aggravated in that you continued to post stock adjustments despite being fully aware that you are not authorized to do so.
ii. You had confirmed in your statement that you would normally post stock adjustment in the SAP after you had seen the approved "Adjustment Request Form" purportedly given by Razale bin Asoh. However no such approval was obtained for the stock adjustments of the adjustment of the above mentioned plastic layer pads when you made the postings during the period of 18th November 2007 to 28th July 2008. In any event you were aware that your access rights to adjust stock variance had been removed on 21st September 2007 and as such any form of stock adjustment by you subsequent to 21st September 2007 were unauthorized.
iii. You confirmed in your statement that you had counted the plastic layer pads with the CBCM's lorry driver before the forklift driver loaded the materials onto the lorry. This claim however differs from the statement given by two others who confirmed that the lorry driver would normally provide the quantities to be returned to CBCM. In addition to this, you had also failed to report the loss of the measuring ruler to your Manager when this went missing.
9. The Claimant also said that the plastic layer pads were of little or no value. It appears from the evidence that plastic layer pads were used in the packaging the Company's products and the amount of plastic layer pads were not counted piece by piece but using a measuring ruler to estimate the number based on the thickness of the bundle. It is hardly surprising that the figures were erratic never tally and constant adjustments are needed.
10. The Claimant called CLW-2 Razale bin Asoh Ali as his witness. Razale was the Assistant Manager and immediate superior of the Claimant. In his evidence Razale stated that the Claimant did not do any posting on his behalf after 21st September 2007. He also confirmed that the Claimant reported the missing ruler to him and he instructed the Claimant to count by estimation.
11. It is noted here that the Claimant was never charged with the missing layer pads as complaint by the Company's cans supplier CBCM. In fact there is no evidence of the plastic layer pads being stolen or pilfered.
12. The Claimant called CLW-3 Lim Lai Hock the Company's former project manager as his witness. CLW-3 stated that after the Claimant's dismissal he was instructed to carry out an investigation on the missing layer pads. According to CLW-3 his findings are as follows:-
i. The Plastic Layer Pads were missing due to weak system and controls in the Company;13. The Company objected to the issue raised through CLW-3's evidence as it was not pleaded in the Claimant's documents. However in the circumstances of this case where the Claimant denies the Company's reasons for dismissing him and it is the duty of the Company to prove those reasons, this Court views CLW-3's evidence as in answer to rebutt the Company's case and therefore is relevant to the issues in this case despite it not been specifically mentioned earlier in the Claimant's statement of case.
ii. No one stole the plastic layer pads or damaged it;
iii. It was established that all these happened because of their existing weak control system in the Company and due to wear and tear and lack of manpower which existed for several years;
iv. The Company had continued this practice without any question whatsoever during the working period of the Claimant and CLW-2.
14. The key evidence relied upon by the Company in their decision to dismiss the Claimant is found basically in the document at page 11 of COB the Company's document. This is a statement recorded by Ling Hwa Liek from the Claimant which the Company said contains an admission by the Claimant that he posted the stock adjustment for plastic layer pads in the Company's computer system using the password of CLW-3 Razale bin Asoh Ali, his immediate superior. The statement is a typewritten statement signed by the Claimant, the recorder Ling Hwa Liek and a witness Michael Tan. All the charges against the Claimant arises out of this statement.
15. Paragraph 4, 5 and 6 of the statement reads;
4. I have posted the stock adjustment in the SAP system between 18th November and 28th July 2008 on plastic layer pads using password given by Razale, my manager.16. It is noted that at paragraph 5, in between the first and second line of the paragraph is a handwritten statement that states "but the adjustments not done by me (siva)" and the Claimant's signature and the recorder's signature appears at the corresponding margin. This handwritten statement was not explained by the Company but the Claimant stated in evidence that he wanted to write his own version but was denied the opportunity by the Company and that is all that he could write.
5. The adjustments made on 16th July 2008 for 47,188 pieces of plastic layer pads was based on Razale's confirmation that the Supply Chain Director, Peter Voglander, has approved it.
6. I also confirmed that I normally post adjustments after I have seen the "adjustment request form" given by Razale.
17. The Claimant denied making the statement and said that he was given a pre-typed statement and was induced to sign it. The Claimant said he was told that if he refuse to sign the pre-typed statement his bonus and profit sharing amounting to about RM20,000.00 will not be paid to him.
18. Even though the Company has shown that there is no such thing as "profit sharing" in the contract of employment and therefore there cannot be such an inducement but looking at the hand written note by the Claimant which is inconsistent with the rest of the statement, this Court thinks that the statement of admission by the Claimant cannot be taken at its face value. Some further explanations and other supporting evidence are needed before it can be taken into consideration. The recorder and the witness who signed on the statement would be able to shed some light and to tip the balance of probability either in the Claimant's favour or the company's favour. Without the evidence of the aforesaid, the statement remains as a statement which contents is in contradiction with itself. Such a statement is unsafe to act upon.
19. There was no domestic inquiry held before dismissing the Claimant. Even though it is true that a domestic inquiry is not a necessity before every dismissal but in such a case like this where the evidence relied upon by the Company to prove the Claimant's misconduct is disputed, such dismissal is arbitrary. The Claimant was denied the opportunity to dispute the manner in which the statement was taken, its contents and to cross examine other witnesses relied upon by the Company to decide the misconduct of the Claimant and the appropriate punishment. There is always the danger that other employees from whom the Company recorded their statement would implicate someone else to save their own neck. As an example, CLW-2 whose statement recorded by the Company at page 34-35 of COB, which seems to implicate the Claimant has given an entirely different evidence in Court.
20. Based on the evidence as adduced in this Court, the grounds relied upon by the Company to prove the misconduct of the Claimant is insufficient and therefore the company has failed to discharge their burden on the balance of probabilities in the face of the Claimant's evidence supported by the witnesses CLW-2 and CLW-3.
21. For these reasons, the Court orders that the Claimant is to be reinstated to his former position without any loss in pay or other benefits. The Company is also to pay the Claimant back wages equivalent to 20 months salary. No evidence was produced by either party to show the exact amount of the Claimant's last salary and this Court is unable to put an exact figure of the total amount of back wages. Therefore it is left to the parties themselves to determine the amount based on the Company's records.
HANDED DOWN AND DATED 5TH JUNE 2013
(DATO' AHMAD ROSLI BIN MOHD SHAM)
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR
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