IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4/4 - 2630/21

BETWEEN

ABDUL HADI BIN ZAINAL ARIFFIN

AND

AEON CO (M) BHD.

AWARD NO: 2216 OF 2023

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

VENUE : Industrial Court of Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 04.08.2021

DATE OF RECEIPT OF
REFERENCE : 12.08.2021

DATES OF MENTION : 29.11.2021, 11.04.2022, 04.07.2022,

DATES OF HEARING : 11.01.2023, 30.03.2023 & 08.06.2023.

REPRESENTATION : Puan Gelly Saring of Malaysian Trades

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 : Mr. Balbindar Singh and Mr. R.
Jayasingam of Messrs BH Lawrence & Co
- Counsel for the Company.

THE REFERENCE

This is a reference dated 04.08.2021 by the Director General of the

Department of Industrial Relations, Ministry of Human Resources pursuant

to section 20(3) of the Industrial Relations Act 1967 (“The Act”) arising out

of the dismissal of ABDUL HADI BIN ZAINAL ARIFFIN (“Claimant”) by

AEON CO (M) BHD. (“Company”) on the 29.12.2020.

AWARD

[1] Pursuant to the directions of this Court, the parties in this matter filed

their respective submissions accordingly. This Court received the following

written submissions of the parties namely the Claimant’s written

submissions dated 28.08.2023, the Company’s written submissions dated

30.08.2023, Claimant’s written submissions in reply dated 04.09.2023 and

the Company’s written submissions in reply 22.09.2023.

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[2] This Court considered all the notes of proceedings in this matter,

documents and the cause papers in handing down this Award namely:

(i) The Claimant’s Statement of Case dated 20.12.2021;

(ii) The Company’s Statement in Reply dated 24.03.2022;

(iii) The Claimant’s Rejoinder dated 18.04.2022;

(iv) The Claimant’s Bundle of Documents - CLB;

(v) The Company’s Bundles of Documents – COB 1, COB 2,

COB 3 and COB 4 ;

(vi) The Claimant’s Witness Statement – CLW – WS ( Abdul Hadi

Bin Zainal Ariffin);

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 (vii) Company’s Witness Statement – COW 1-WS (Mohd Alias Bin

Ambak);

(viii) Company’s Witness Statement – COW 2 - WS (Salam bin

Abdullah);

(ix) Company’s Witness Statement – COW 3-WS (Nurashikin Bt

Mohd Yazid);

(x) Company’s Witness Statement – COW 4-WS (Hasmina Bt

Husein);

(xi) Company’s Witness Statement – COW 5-WS (Muhammad

Azhani Bin Ishak);

(xii) Company’s Witness Statement – COW 6-WS (Mohammad

Firdaus Bin Hussin);

INTRODUCTION

[3] The dispute before this Court relates to the claim by Abdul Hadi Bin

Zainal Ariffin (“Claimant”) that he was dismissed from his employment

4
without just cause or excuse by AEON Co (M) Bhd. (“the Company”) on the

29.12.2020.

[4] The Company is involved in the retail business and needs no

introduction. The Claimant commenced employment with the Company as

an Electrician on the 21.03.2007 and was subsequently confirmed in his

employment. The Claimant’s last held position in the Company was Admin

& GA Officer with a last drawn salary of RM3,060.00 per month.

[5] On the 12 & 13.11.2020, the Claimant was alleged to have removed

and taken out two items belonging to the Company namely an Iron Board

and a DVD player from the Company’s premises without any written

authorisation of the Company and in breach of the Company’s rules. In

view of the Claimant’s alleged misconduct, the Company conducted an

internal investigation on the 15.11.2020 wherein the Claimant was also

interviewed. Thereafter the Claimant was suspended from work effective

22.11.2020 with half pay. The Company issued the Claimant a show cause

letter on the 26.11.2020 with two alleged misconducts to which the

Claimant promptly replied on the 01.12.2020. Dissatisfied with the

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Claimant’s explanation, the Company conducted a Domestic Inquiry (DI) on

the 17.12.2020 wherein 2 charges of misconduct were preferred against

the Claimant. Having heard the Claimant, the DI panel found the Claimant

guilty of the charges of misconduct levelled against him. In view of the

findings of guilt by the DI Panel against the Claimant and having

considered the seriousness of the misconducts, the Company dismissed

the Claimant from his employment effective 29.12.2020.

[6] The Claimant denies the alleged misconducts and now states that he

was dismissed without just cause or excuse and prays that he be reinstated

to his former position in the Company with no loss of wages and other

benefits. The Company maintains that the Claimant was dismissed with just

cause or excuse and prays that the Claimant’s case against the Company

be dismissed.

[7] The Claimant gave evidence under oath and remained the sole

witness for his case. The Company’s evidence was adduced through

COW1 (Mohd Alias Bin Ambak who testified that the Claimant had taken

the Iron Board and DVD Player but denied that he had given the Claimant

any permission to take the items out of the Company premises), COW2

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(Salam bin Abdullah who testified that he was instructed to monitor the

Claimant’s movements in the Company premises and who had then

witnessed the Claimant removing the 2 items by first placing them in the

maintenance room and thereafter removing the same from the Company’s

premises), COW3 (Nurashikin Bt Mohd Yazid , who testified that she was

responsible for conducting of the internal investigation involving the

Claimant’s alleged misconduct), COW4 (Hasmina Bt Husein who was

responsible for the taking down the minutes of the DI), COW 5 (Muhammad

Azhani Bin Ishak who was responsible for the issuance of the show cause

letter to the Claimant), COW6 (Mohammad Firdaus Bin Hussin who acted

as the Chairman of the DI Panel that found the Claimant guilty of the two

charges of misconduct levelled against him).

THE CLAIMANT’S CASE

[8] The Claimant’s case can be summarised as follows:-

(i) The Claimant was employed by the Company on the

21.02.2007 as an Electrician;

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(ii) The Claimant was a confirmed employee of the Company with

his last held position in the Company as Admin & GA Officer;

(iii) The Claimant’s last drawn salary was RM3,060.00 per month;

(iv) On the 26.11.2020, the Company issued the Claimant a show

cause letter alleging that the Claimant had committed two

serious misconduct namely :-

(1) Adalah anda, sewaktu menjalankan tugas anda sebagai Admin & GA

Officer dengan Syarikat pada 12 November 2020, pada jam lebih

kurang 12.45 tengah hari, di backroom Electrical, anda didapati telah

mengambil satu (1) unit iron board dan satu (1) unit DVD Player

berjenama Panasonic dan meletakkan barangan tersebut di bilik

Maintenance dimana anda mengambil barangan tersebut melalui

pekerja di jabatan Home Appliances iaitu Mohd Alias bin Ambak untuk

kegunaan peribadi tanpa mendapat kebenaran dan tanpa

pengetahuan pihak Syarikat.

(2) Bahawa anda sewaktu menjalankan tugas anda sebagai Admin & GA

Officer dengan Syarikat pada 13 November 2020, anda didapati telah

8
 membawa keluar satu (1) unit iron board dan satu (1) unit DVD Player

berjenama Panasonic tanpa sebarang dokumen yang dibenarkan oleh

pihak Syarikat.

(v) The Claimant promptly responded to the show cause letter with

his explanation by his letter dated 01.12 2020 wherein the

Claimant sufficiently explained why he did not commit the

misconduct as alleged by the Company;

(vi) The Claimant took the items as stated in the show cause letter

with the permission of the officers of the Company who had

allowed the Claimant to take the items concerned and the

Claimant kept it in the Maintenance room on the 12.11.2020;

(vii) On the 13.11.2020, the Claimant was able to remove the items

stated in the show cause letter out of the Company premises

without any objection or prohibition by the security officer at the

staff entrance;

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(viii) The Claimant took home the Iron Board as it was old and may

not be given to the customers of the Company as free gift and

the DVD Player was taken out to his home to take out its parts

to be used for CCTV DVD player at the control room in the

Company;

(ix) On the 15.11.2020, the Company conducted an investigation

wherein the Claimant gave a truthful account that he was

permitted to take the items concerned with the permission of

the Company’s officers;

(x) On the 17.11.2020, the Claimant had brought back the DVD

Player back to the Company;

(xi) On the 21.11.2020, the Company lodged a police report against

the Claimant and the Claimant was investigated but no criminal

charges were preferred against the Claimant;

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(xii) The Claimant was suspended pending the completion of the

investigation;

(xiii) Subsequent to the show cause letter and the Claimant’s

explanation, the Company conducted a DI where the Claimant

was alleged to have committed two misconducts as stated in

the show cause letter;

(xiv) The Claimant denied the allegations of misconduct during the

DI and the Claimant was also not very clear about the

procedure in taking things out of the Company;

(xv) Despite the Claimant’s explanation giving sufficient reason as

to why he had taken out the 2 items concerned, the DI Panel

nevertheless found the Claimant guilty of the charges of

misconduct preferred against him;

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 (xvi) On the 29.12.2020 the Claimant was dismissed from his

employment with the Company on account of the DI Panel

finding the Claimant guilty of the charges of misconduct levelled

against him;

(xvii) The Claimant states that he was dismissed from his

employment by the Company in bad faith and that the dismissal

was an unfair labour practice by the Company against the

Claimant;

(xviii) The Claimant now states that he was dismissed without just

cause or excuse and prays that he be reinstated to his former

position in the Company without any loss of wages and other

benefits.

THE COMPANY’S CASE

[9] The Company’s case can be summarised as follows:-

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(i) The Company does not dispute the Claimant employment

history, his status as a confirmed employee of the Company,

his last held position in the Company and his last drawn salary;

(ii) On the 12 & 13.11.2020, the Claimant was alleged to have

removed and taken out two items belonging to the Company

namely an Iron Board and a DVD player from the Company’s

backroom electrical and the Company’s premises as stated in

paragraph (iv) of the Claimant’s case above without any written

permission or authorisation of the Company;

(iii) The Claimant’s acts were in serious breach of the Company’s

rules namely serious misconducts under Category III Paragraph

15 and 20;

(iv) In view of the Claimant’s alleged misconduct, the Company

conducted an internal investigation on the 15.11.2020 wherein

the Claimant was also interviewed.

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(v) Thereafter the Claimant was suspended from work effective

22.11.2020 with half pay.

(vi) The Company then issued the Claimant a show cause letter on

the 26.11.2020 with two alleged misconducts to which the

Claimant promptly replied on the 01.12.2020.

(vii) The Company being dissatisfied with the Claimant’s

explanation, proceeded to conduct a Domestic Inquiry (DI) on

the 17.12.2020 wherein 2 charges of misconduct were

preferred against the Claimant;

(viii) The Claimant attended the DI and was given sufficient

opportunity to state his case and defend himself during the DI

proceedings;

(ix) After the conclusion of the DI proceedings, the DI panel found

the Claimant guilty of the charges of misconduct levelled

against him;

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(x) In view of the findings of guilt by the DI Panel against the

Claimant and having considered the seriousness of the

misconducts, the Company dismissed the Claimant from his

employment effective 29.12.2020;

(xi) The Company states that the Claimant had removed the

belongings of the Company namely the two items stated in the

charges of misconduct without any authorisation and

permission of the Company;

(xii) The Claimant’s misconducts were serious misconduct which

warrants a dismissal of the Claimant from employment upon the

DI Panel finding the Claimant guilty of the charges of

misconduct;

(xiii) The Claimant had no valid excuse or defence for his

misconducts and all the explanations of the Claimant were not

true and are unacceptable considering all the circumstances of

the case;

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 (xiv) In view of the serious misconducts of the Claimant the

Company was compelled to dismiss the Claimant from his

employment on the 29.12.2020;

(xv) The Company in dismissing the Claimant from his employment

has acted in good faith and with just cause or excuse;

(xvi) The Company now prays that the Claimant’s case be

dismissed.

THE LAW

Role and function of the Industrial Court

[10] The role of the Industrial Court under section 20 of the Industrial

Relations Act 1967 is succinctly explained in the case Milan Auto Sdn.

Bhd. v. Wong Seh Yen [1995] 4 CLJ 449. His lordship Justice Mohd Azmi

bin Kamaruddin FCJ delivering the judgment of the Federal Court had the

occasion to state the following:-

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 “As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344;

[1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on

a reference under s. 20 is two-fold firstly, 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. Failure to determine these issues on the merits would be

a jurisdictional error ...”

[11] The above principle was further reiterated by the Court of Appeal in

the case of K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ 347

where his lordship Justice Mohd Ghazali Yusoff, JCA outlined the function

of the Industrial Court:-

“[21] The learned judge of the High Court held that the Industrial Court had

adopted and applied a wrong standard of proof in holding that the respondent

has failed to prove dishonest intention and further stating that the respondent has

not been able to discharge their evidential burden in failing to prove every

element of the charge. He went on to say that the function of the Industrial Court

is best described by the Federal Court in Wong Yuen Hock v. Syarikat Hong

Leong Assurance Sdn Bhdand Another Appeal [1995] 3 CLJ 344 where in

delivering the judgment of the court Mohd Azmi FCJ said (at p. 352):

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 On the authorities, we were of the view that the main and only function of the

Industrial Court in dealing with a reference under s. 20 of the Act (unless

otherwise lawfully provided by the terms of the reference), is to determine

whether the misconduct or irregularities complained of by the management as

the grounds of dismissal were in fact committed by the workman, and if so,

whether such grounds constitute just cause or excuse for the dismissal”

[12] It will not be complete this far if this Court fails to make reference to

the decision of the Federal Court in the case of Goon Kwee Phoy v. J & P

Coats (M) Bhd [1981] 1 LNS 30 where His Lordship Raja Azlan Shah, CJ

(Malaya) (as HRH then was) opined:

“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 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 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.”

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Burden Of Proof

[13] Whenever a Company has caused the dismissal of the workman, it is

then incumbent on part of the Company to discharge the burden of proof

that the dismissal was with just cause or excuse. This Court will now refer

to the case of Ireka Construction Berhad v. Chantiravathan a/l

Subramaniam James [1995] 2 ILR 11 in which case it was stated that:-

“It is a basic principle of industrial jurisprudence that in a dismissal case the

employer must produce convincing evidence that the workman committed

the offence or offences the workman is alleged to have committed for which

he has been dismissed. The burden of proof lies on the employer to prove

that he has just cause and excuse for taking the decision to impose the

disciplinary measure of dismissal upon the employee. The just cause must

be, either a misconduct, negligence or poor performance based on the

facts of the case.

Standard Of Proof

[14] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty

Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal had laid down

the principle that the standard of proof that is required to prove a case in

19
the Industrial Court is one that is on the balance of probabilities wherein his

lordship Justice Abdul Hamid Mohamad, JCA opined:-

“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. But, again, if we may add, these are not "passwords" that the failure to use

them or if some other words are used, the decision is automatically rendered bad

in law.”

Domestic Inquiry (DI)

[15] This Court will now to deal with the charges of misconduct levelled

against the Claimant in the domestic inquiry. The charges of misconduct

20
levelled against the Claimant are reproduced here in verbatim for

convenience and which states the following:-

(1) Adalah anda, sewaktu menjalankan tugas anda sebagai Admin & GA

Officer dengan Syarikat pada 12 November 2020, pada jam lebih kurang

12.45 tengah hari, di backroom Electrical, anda didapati telah mengambil

satu (1) unit iron board dan satu (1) unit DVD Player berjenama

Panasonic dan meletakkan barangan tersebut di bilik Maintenance

dimana anda mengambil barangan tersebut melalui pekerja di jabatan

Home Appliances iaitu Mohd Alias bin Ambak untuk kegunaan peribadi

tanpa mendapat kebenaran dan tanpa pengetahuan pihak Syarikat.

(2) Bahawa anda sewaktu menjalankan tugas anda sebagai Admin & GA

Officer dengan Syarikat pada 13 November 2020, anda didapati telah

membawa keluar satu (1) unit iron board dan satu (1) unit DVD Player

berjenama Panasonic tanpa sebarang dokumen yang dibenarkan oleh

pihak Syarikat.

[16] On the charges of misconduct levelled against the Claimant it is the

Company's stance that the DI Panel found the Claimant guilty of all the

charges of misconduct. Accordingly, in view of the seriousness of the

21
charges of misconduct, the Company was compelled to dismiss Claimant

from his employment with the Company.

Law On Domestic Inquiry (DI)

[17] Now this Court will deal with the law relating to the DI proceedings and

the findings of the DI Panel.

[18] It is this Court’s view that whenever a DI is conducted by the

Company, the Company must adhere to certain duties imposed upon it to

follow the correct procedure and to reach the correct conclusion. The

case Metroplex Administration Sdn Bhd v. Mohamed Elias [1998] 3

MELR 184; [1998] 2 MLRH 858; [1998] 5 CLJ 467 is a guide that one

must constantly have in contemplation where his lordship Justice Low Hop

Bing J opined:

"Where a domestic inquiry is held and the rules of natural justice have been

applied, the Industrial Court should first consider the adequacy or otherwise of

the procedure adopted in the proceedings for the domestic inquiry in order to

determine whether the domestic inquiry has applied the correct procedure and

22
 reached the correct conclusion having regard to all the evidence, documentary

and oral, adduced at the domestic inquiry. If at the domestic inquiry, the rules of

natural justice were properly applied; the employee being given the opportunity to

be heard and to present his case; and should a finding be made against the

employee based on the evidence which was presented to the domestic inquiry,

the Industrial Court ought to consider the finding of the domestic inquiry in order

to conclude whether the employee has been dismissed without just cause or

excuse".

[19] However, this Court is also mindful of the decision of the Court of

Appeal stated herein below that this Court is not bound by the findings of

the DI Panel whenever this Court is called upon to decide whether the

Claimant was dismissed from his employment with just cause or excuse.

This Court finds support from the decision of the Court of Appeal in Hong

Leong Equipment Sdn Bhd v. Liew Fook Chuan & Other

Appeals [1996] 1 MELR 142; [1996] 1 MELR 216; [1996] 2 MLRA

286; [1996] 2 MLRA 212; [1996] 1 MLJ 481; [1997] 1 CLJ 665; [1996] 3

AMR 31816 where his lordship Justice Gopal Sri Ram had the occasion to

state the following:-

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 "The fact that an employer has conducted a domestic inquiry against his

workman is, in my judgment, an entirely irrelevant consideration to the issue

whether the latter had been dismissed without just cause or excuse. The findings

of a domestic inquiry are not binding upon the Industrial Court which rehears the

matter afresh. However, it may take into account the fact that a domestic inquiry

had been held when determining whether the particular workman was justly

dismissed".

[20] Now this Court is guided by the principles stated in the cases above

namely in the case Milan Auto Sdn Bhd v. Wong Seh Yen

(supra) and Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan &

Other (supra) and will proceed to analyse and scrutinise the facts of this

case and make the appropriate findings based on all the evidence

produced in this Court. In doing so this Court had taken cognizance of the

fact that the DI Panel was empanelled to hear the charges of misconduct

levelled against the Claimant so as to give him the needed opportunity to

defend himself but there are certain matters relating to the DI that this

Court finds unsatisfactory namely the unavailability of the details of the

findings of the DI panel on the guilt of the Claimant and the

recommendation made therein in a proper documented form and as such

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this Court will now analyse all the evidence presented before this Court and

make the appropriate findings as to whether the dismissal of the Claimant

was with or without just cause or excuse.

EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[21] The allegations against the Claimant is that the Claimant has

committed serious misconducts by taking for himself the Company’s items

namely one unit of the Iron Board and one unit of a Panasonic DVD Player

(the said items) by first keeping the said items in the maintenance room of

the Company and thereafter taking the said items out of the Company’s

premises the next day without the permission and knowledge of the

Company. The Company is in the retail business and items stored in the

Company which the Claimant was alleged to have taken for himself are

items that are meant for sale and as gifts for the Company’s customers.

[22] The conduct of the Claimant according to the Company amounts to

serious misconducts wherein the Claimant failed to demonstrate the

25
expected level of integrity, trust and confidence reposed in him by the

Company in the discharge of his duties as the Admin and GA officer.

[23] Suffice for this Court to state here that this Court had previously

considered the law on misconducts in the case of Izzat Khurshahid Fathol

Karib v Toyota Tsusho (M) Sdn. Bhd. [2020] 2 ILR 121 which case is a

useful reference in matters of misconduct and that it will be unnecessary for

this Court to state further as to what amounts to a misconduct.

[24] The Company through its witnesses gave evidence that the Claimant

has taken for himself the said items without the Company’s permission and

knowledge thus constituting serious misconducts that warrants a dismissal

of the Claimant from his employment with the Company. The Company is

of the view that the Claimant’s misconduct of taking for himself the

Company’s belongings without the permission and knowledge of the

Company from its premises is a serious misconduct pursuant to the

Company’s Rules under category III which are considered serious

misconducts. The evidence of the Company’s witnesses shows that the

26
Company considers the Claimant’s conduct as serious misconduct that

warrants a dismissal from employment with the Company.

[25] This Court has perused the documents presented in this Court and

upon perusal of the Company’s Rules namely “Industrial Relations

Department, IR SOP – Category of Misconduct” and Employee Handbook,

finds that the Company has made adequate rules on misconducts including

major misconduct as found in Category III that warrants dismissal for which

the Claimant was directed to defend himself in the DI.

[26] The Company’s witness namely COW1 who is a sales assistant at

the Home Appliance Unit, testified that the Claimant had enquired about

the said items namely the DVD Player and the Iron Board before taking

them away. COW1 had not prevented the Claimant from taking the said

items away in the honest believe that the Claimant was taking them away

for Company’s official use. As the Claimant was COW1’s superior, COW1

had not thought that the Claimant was taking the said items for his own

use. COW1 testified that if he had any knowledge that the Claimant was

taking the items for his own personal use, he would have certainly

prevented the Claimant from removing the said items away from the

27
department where the said items were removed from. COW1 denied that

he had given the said items to the Claimant or has given permission for the

Claimant to take away the said items as alleged by the Claimant as COW1

does not have the authority to give or give permission for the Claimant to

take the said items away. This witness further testified that he only knew

that the Claimant had taken the said items out of the Company premises

upon the Company’s officer investigating the matter questioned him on the

matter and as such the issue of COW1 giving the said items to the

Claimant or giving permission for the Claimant to take away the said items

as alleged by the Claimant as not truthful account by the Claimant.

[27] COW2, the security officer of the Company testified that he had

observed the Claimant removing the said items and keeping them in the

maintenance room. Upon seeing the Claimant’s activities of placing the

said items in the maintenance room, COW2 promptly notified his superior

one Mr. Igarashi Takeshi, the store manager about his observation of the

Claimant. COW2 testified that Mr Igarashi directed COW2 to closely

monitor the Claimant’s movement. On the 14.11.2020, COW2 notified Mr.

Igarashi that upon COW2 watching the CCTV recording, has observed that

the Claimant was seen removing the said items from the Company’s

28
premises in Mid Valley. COW2 further testified that no employees of the

Company are allowed to take away any items of the Company and that no

permission was given to the Claimant to remove or take away the said

items out of the Company’s premises. This witness testified that the DVD

player taken out by the Claimant purportedly for the security system was an

untrue statement as he conducts weekly checks on the CCTV for security

system and found no problems or repairs needed for the system and as

such the taking away of the DVD player purportedly for use for the CCTV

security system cannot be true.

[28] COW3, the Manager at the Merchandising Managing Department

was tasked to conduct an internal investigation on the Claimant’s alleged

misconduct which was conducted on the 15.11.2020 and the Claimant was

questioned on the incidents that occurred on the 12.11.2020 and

13.11.2020. According to COW3, during the questioning, the Claimant

admitted that he took the said items out of the Company’s premises. During

the question and answer session the Claimant also admitted that he knew

the Company’s rules and procedures that if any items are to be taken out,

prior permission from the store manager is compulsory and the Claimant

also knew that if the Claimant did not seek permission before removing the

29
said items out of the Company premises disciplinary action can be taken

against him.

[29] COW3’s evidence also corroborates the evidence of COW2 that there

is no necessity or need for the Claimant to take out without permission the

DVD player for the purposes of the Company’s security system since the

security department did not ask or request the Claimant to make any

repairs or work on the security system. The Claimant’s conduct of removing

the DVD Player was his own act despite there being no request from the

security department.

[30] The evidence of COW5 is relevant in as far as the show cause letter

dated 26.11.2020 sent out by the Company to the Claimant for the

Claimant to respond to the allegations of misconduct levelled against the

Claimant and the subsequent events leading the dismissal of the Claimant

from his employment with the Company. This witness testified that the

Claimant’s conduct of taking the said items out of the Company premises

can be deemed as theft of the Company’s properties. COW5 gave

evidence that the Claimant had clearly breached the Company’s rules in

paragraph 15 and 20 respectively. This witness further testified that the

30
Claimant responded to the show cause letter by his letter of explanation

dated 01.12.2020 wherein the Claimant admitted taking out the Company’s

properties namely the said items. This witness testified that the Company

being dissatisfied with the Claimant conducted a DI on the 17.12.2020 with

two charges of misconduct levelled against the Claimant. The DI Panel

found the Claimant guilty of the said charges of misconduct and in view of

the findings of the DI Panel, the Claimant was dismissed from his

employment on the 29.12.2020.

[31] This Court has also considered the evidence of COW4 and COW6 on

matters relating to the DI. COW4 was responsible for taking down the

minutes of the DI and COW6 was the DI Panel Chairman. The DI notes

does not state clearly what transpired when COW6 made a summing up of

all the submissions and the reasons for finding the Claimant guilty as such

this Court finds that the DI lacks clarity leading to the dismissal of the

Claimant. Thus this Court is now duty bound to consider all the evidence

before this Court and make the necessary findings as to whether the

Claimant’s guilt on the two charges of misconduct was sufficiently proven

by the Company to justify a dismissal of the Claimant from his employment

with just cause or excuse.

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[32] Based on all the evidence before this Court it is manifestly clear that

the Claimant had on the 12.11.2020, taken out the said items namely the

DVD Player and the Iron Board from the “backroom electrical” being a

place where these items were stored and placed the same in the

Maintenance Room without the permission of the Company. To say that the

Claimant did so without the knowledge of the Company may not be an

accurate assertion of the Company as COW1 was aware that the Claimant

was taking the said items out of the “backroom electrical” and the same

was also within the knowledge of the store manager as COW1 was

instructed by the store manager to observe the Claimant’s movement.

[33] Based on all the evidence, it is also clear that the Claimant had on

the 13.11.2020, removed the DVD Player and the Iron Board out of the

Company’s premises without the permission of the Company as this was

clearly caught on the Company’s CCTV recording.

[34] Now this Court will deal with the Claimant’s evidence to determine

whether the Claimant had any justification or the necessary approval or

permission to remove the said items in question.

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[35] The Claimant’s evidence and answers as to why he had taken the

said items in question from the “backroom electrical” on the 12.11.2020 and

to placed them in the Maintenance Room first before taking them out of the

Company premises on the 13.11.2020 is necessary to determine whether

the Claimant has committed any serious misconducts against the rules of

the Company.

[36] During the investigation stage which was conducted by COW3, the

Claimant admitted taking out the items in question particularly out of the

Company premises without the consent or permission of the Company. The

Claimant also admitted knowing that taking any of the Company’s items out

of the Company premises can lead to disciplinary action against the

Claimant. This Court had further analysed the Claimant’s explanation dated

01.12.2020 in reply to the show cause letter issued to him. The Claimant

does not dispute that he had taken the items in question and placing them

first in the maintenance room on the 12.11.2020 and then subsequently

removing them from the Company’s premises on the 13.11.2020.

[37] The explanation of the Claimant in his letter dated 01.12.2020, makes

it abundantly clear that although COW1 had knowledge of the Claimant

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taking the items out of the “electrical backroom”, at no time COW1 had

given the Claimant any permission to take the items in question for the

Claimant’s personal use or gain. Further the Claimant’s evidence during the

DI also consistently points to the fact that the Claimant had indeed taken

the items in question out of the Company’s premises without the

permission of the Company. The Claimant also knew that taking the said

items in question out of the “backroom electrical” and the Company’s

premises without the approval of the Company, was a breach of the

Company’s rules and standard operating procedure.

[38] This Court has analysed all the evidence of the Claimant whether it

was at the investigation stage, or his explanation in his letter dated

01.12.2020 or during the DI and finds consistency in the evidence in that

the Claimant took the said items in questions as stated in the show cause

letter and the charges of misconduct levelled against him without the

permission of the Company. The Claimant’s conduct of taking the said

items in question out of the Company premises was indeed a serious

misconduct.

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[39] This Court had also considered the Claimant’s evidence that he took

out the said items in question particularly out of the Company’s premises

with the knowledge and permission of the Company namely of COW1 and

one Encik Salam of the Security Department as hardly convincing. It is

plainly clear that COW1 and Encik Salam are not employees of the

Company who are authorised by the Company to give permission for

anyone to take out the said items in question particularly out of the

Company’s premises on the face of clear rules and standard operating

procedure of the Company and the Claimant being a senior officer knew

this very well.

[40] The Claimant’s reasons for taking out the Iron Board is not convincing

at all. It is not for the Claimant to determine whether this item is old and in

deteriorated condition and that it will not be given to the customers. Items

and properties of the Company are required to be accounted for whether it

is useable or unusable for otherwise proper inventory of all the items in the

Company will encounter serious difficulties and those responsible for the

proper inventory will be made accountable. Certainly the conduct of the

Claimant will cause serious hardship to other innocent employees and it is

for this reason that all items to be taken out or removed must require a

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proper and documented permission. This requirement of a proper

documented permission is plain and obvious for all to know and in

particular the Claimant being a senior officer who has served the Company

since 2007. The Claimant’s explanation for removing this item from its

original place and subsequently taking it back home without the permission

of the Company is a serious misconduct as it is tantamount to taking away

of the Company’s belonging in an unauthorised manner.

[41] The Claimant’s explanation that he took out the DVD Player and took

it home to check for the removal of its parts to be used as replacement

parts for the Company’s CCTV DVD player in the control room is very

unconvincing. First of all the taking of said item out from its original place

and subsequently to be taken home without the consent or permission of

the Company is in itself a serious misconduct but to do so with the view to

replacing or changing the security equipments or parts in the control room

even without any request or need by the Security Department raises more

curious question as to what the Claimant is planning to do in the security

room in an unauthorised manner. This Court will not dabble in any

conjectures or guesswork on the Claimant’s intended plan of action. Suffice

to say that there was no request for the Claimant to replace or change any

36
parts of the security equipments by the Security Department. Based on the

evidence before this Court, the Claimant in order to justify his serious

misconduct of removing this DVD player out of the Company’s premises

has given evidence that had only made his evidence not believable at all to

explain or offer any defence to his serious misconduct committed.

[42] In the course of analysing all the evidence, this Court has also taken

cognisance of the fact that the Company through its officer has also lodged

a police report against the Claimant but there was no action taken by the

police or other authorities against the Claimant for any offence. Be that as it

may, the misconduct of the Claimant in removing the Iron Board and the

DVD Player and placing them in the maintenance room first and then to

take it out of the Company’s premises are serious misconducts as the

Claimant is unable to show any proof in a convincing way that he did so

with the express authorisation and permission of the Company.

[43] There is ample evidence before this Court that shows that the

Claimant committed serious misconduct by taking out to his home the

Company’s items in question namely the Iron Board and the DVD Player

for his own use and for his personal gain without the permission or

37
authorisation of the Company in breach of the Company’s rules namely

Category III Para 15 which prohibits the Claimant from taking away from

the Company any of the Company’s belongings or items meant for sale or

as free gifts for customers without making the appropriate payment for the

items.

[44] This Court makes a finding that the Claimant is guilty of the serious

misconduct for Category III Para 15 of the Company’s rules under Charge

No:1 when the Claimant removed the Iron Board and the DVD Player from

the “backroom electrical” and placed the same in the maintenance room for

his personal use without the permission of the Company. This Court also

makes the additional finding that the Claimant is guilty of the serious

misconduct for Category III Para 15 of the Company’s rules under Charge

No:2 when the Claimant removed the Iron Board and the DVD Player from

the Company’s premises and took the same to his home without the

authorisation and permission of the Company. This Court finds that the

Claimant committed this serious misconduct pursuant to Category III Para

15 instead of Para 20 of the rules of the Company as the Company is not

able to prove convincingly the necessary requirement to prove a case of

stealing the Company’s items. Despite the substitution of the serious

38
misconduct from Para 20 to 15 herein, the combined misconducts of the

Claimant are serious enough to warrant the dismissal of the Claimant from

his employment with the Company.

[45] Pursuant to Section 30(5) of “The Act” and guided by the principles of

equity, good conscience and substantial merits of the case without regard

to technicalities and legal forms and after having considered the totality of

the facts of the case, the evidence adduced and by reasons of the

established principles of industrial relations and disputes as stated above,

this Court finds that the Company has proved on the balance of

probabilities that the Claimant was dismissed from his employment with just

cause or excuse.

[46] The Claimant’s claims against the Company hereby dismissed.

HANDED DOWN AND DATED THIS 07TH DAY OF NOVEMBER 2023

-Signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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