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INDUSTRIAL COURT OF MALAYSIA

CASE NO. 13/4 562/2011

BETWEEN

RAZALI BIN HUSSIN

AND

THE ANDAMAN LANGKAWI

AWARD NO. 116 OF 2013

BEFORE : TUAN EDDIE YEO SOON CHYE - CHAIRMAN

VENUE : Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE : 12.04.2011

DATES OF MENTION : 15.06.2011; 15.08.2011; 03.10.2011; 07.12.2011;06.06.2012; 11.07.2012; 25.09.2012; 01.11.2012.

DATES OF HEARING : 18.01.2012; 19.01.2012; 26.03.2012; 19.07.2012.

DATE OF CLAIMANT'SSUBMISSIONS RECEIVED : 27.08.2012; 25.10.2012 (Reply)

DATE OF COMPANY'SSUBMISSIONS RECEIVED : 21.09.2012

REPRESENTATION : Ashokumar Parthmanathen of MessrsAshok & Co,Counsel for the Claimant.

Joyce Joan Fernandez of Messrs JJFernandez & Associates.,Counsel for the Respondent.

REFERENCE: This is a reference by the Honourable Minister of HumanResources under section 20(3) of the Industrial Relations Act 1967 on12 April 2011 arising out of the dismissal of Razali Bin Hussin(hereinafter referred to as the Claimant) on 10 April 2009 by The

Andaman Langkawi (hereinafter referred to as the Respondent).

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A W A R D

1. This is a reference by the Honourable Minister of Human Resources

under section 20(3) of the Industrial Relations Act 1967 on 12 April 2011

arising out of the dismissal of Razali Bin Hussin (the Claimant)

on 10 April 2009 by The Andaman Langkawi (the Respondent).

2. The hearing of this case commenced on 18 January 2012 and the

hearing was duly concluded on 19 July 2012. The Claimant's solicitors,

Messrs Ashok & Co filed the Written Submissions on 27 August 2012 and

Submissions in Reply on 25 October 2012. The Respondent's solicitors,

Messrs JJ Fernandez & Associates filed their Written Submissions on

21 September 2012.

BRIEF FACTS

3. The Claimant commenced employment as a Cost Controller in The

Andaman (the Resort) with effect from 18 October 1999 with a monthly

salary of RM 2,200.00 pursuant to a letter of appointment signed by the

General Manager, Leo Kuscher exhibited in CO-1 of the Statement in Reply.

By letter of redesignation dated 24 September 2002 (CO-5) signed by the

General Manager, Alison Fraser, the Claimant was redesignated to the

position ofIncome Auditor with effect from 7 October 2002.

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4. By letter of redesignation dated 31 January 2007 (CO-3) signed by

the General Manager, Alison Fraser, the Claimant was redesignated to the

position ofSenior Accounts Executive with effect from 1 February 2007.

The Claimant was thereafter transferred to the Human Resources

Department as the Human Resources Executive with effect from

25 September 2008 pursuant to the letter of transfer signed by the Human

Resources Manager, Manimala Kalidas exhibited in CO-2. The Claimant

reports to the Human Resources Manager and the basic function is to

perform administrative work.

5. The Respondent's Human Resources Manager, Manimala Kalidas sent

a Show Cause and Suspension letter dated 27 March 2009 (COB-1, page

42) outlining the list of misconduct against the Claimant as follows:

" 1. You have sneaked into the Human Resources Manager'scomputer on 20 March 2009 at approximately 6.50 p.m.without her approval or knowledge.

2. You have attempted to go into the Human ResourcesManager's email on 20 March 2009 without her approval orknowledge.

3. You have sneaked into the Human Resources Manager'spersonal drawer where private and confidential documentswere kept on 20 March 2009.

4. You have authorized a letter to Mohd Fauzi Awang, SecurityShift Leader without the knowledge of your superior andwritten a false salary in the letter on 25 March 2009.

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5. You have instructed Che Hassan, Employee Relations Executiveto give a Management Apartment room for your wife, Norlinwithout approval from your superior.

You are hereby, required to provide a written explanation by 30

March 2009 in regards to the above allege misconduct as to whydisciplinary action should not be instituted against you, Should youfail to reply within the stipulated time given, we shall deem that youdon't have any explanation to offer and disciplinary action will betaken against you.

Since the allegation against you is serious in nature, you are herebysuspended from employment with half pay for a period of fourteen(14) days with effect from the 27 March 2009, under section 14 (2)of the Employment Act 1955, pending further investigation. You are

required to make yourself available during the suspension period toassist the Management in the investigation.

6. The Claimant sent a letter of explanation dated 28 March 2009

exhibited in COB-1, page 44 to the Respondent's General Manager, Akira

Moreno. Pursuant to the letter dated 31 March 2009 (COB-1, page 73), the

Respondent's Human Resources Manager, Manimala Kalidas informs the

Claimant that the domestic inquiry will be held on 7 April 2009 and states as

follows:

We refer to the Letter of Explanation that we received on 28 March

2009 and the explanation you offered is totally unacceptable. Due to

the seriousness of the misconduct, we decided to hold a domestic

inquiry.

7. The Claimant was dismissed vide letter of dismissal Re: Verdict

Domestic Inquiry of 7 April 2009 dated 10 April 2009 exhibited in COB-1,

page 76 signed by Akira Moreno, General Manager. The relevant extract of

the letter of dismissal is reproduced as follows:

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Further to the Domestic Inquiry of the 7th April 2009 at the BriefingRoom on the the specific charges against you as stated in theCharge Sheet and Notice of Domestic Inquiry dated 31st March2009.

I have carefully gone through the records and documented evidenceof the above Domestic Inquiry and I concur with the findings of theDomestic Inquiry Panels that the charges against you have beenproven.

The charges leveled against you at the inquiry being grave andserious, and in view of the gross misconduct committed by you, theManagement has decided to DISMISS you of your contract ofservice with effect from 10th April 2009.

8. Pursuant to paragraph 11 of the Statement of Case, the Claimant

contends that he had given reasonable explanation for the allegations and

the Company did not accept the explanation. The Claimant further states

that he was unfairly dismissed. The Claimant also contended that the

domestic inquiry was conducted unfairly and in a bias manner. The

Respondent states in paragraph 38 of the Statement in Reply contended that

the domestic inquiry was conducted fairly and the Respondent further

contended in paragraph 42 that the Claimant's services was terminated with

just cause or excuse.

THE LAW

9. The Court of Appeal in the case ofTelekom Malaysia Kawasan

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

pages 322 and 323 decided as follows:

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From all these, it is quite clear that the Industrial Court should not

be burdenedwith the technicalities regarding the different standards

of proof, the rules of evidence and procedure that are applied in a

court of law. The Industrial Court should be allowed to conduct its

proceedings as a court of arbitration, and be more flexible inarriving at its decision, so long as it gives special regard to substantial

merits and decide a case in accordance with equity and good

conscience.

We do not think that representations by the minister to the Industrial

Court should be classified as civil or criminal and apply different

burden of proof in respect of each classification as is done in the

court of law when finally the awards that follow are the same:

dismissal or whatever.

10. The function of the Industrial Court is succinctly explained in the case

ofGoon Kwee Phoy v. J. & P. Coats (M) Bhd. [1981] 1 LNS 30; [1981]

1 MLJ 129 at page 136 where the Federal Court decided inter aliaas follows:

Where representations are made and are referred to the Industrial

Court for enquiry, it is the duty to 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 inquiry of the court is the reasonadvanced by it and that court or the High Court cannot go into

another reason not relied on by the employer or find one for it.

[Emphasis added]

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11. In the case of Wong Yuen Hock v. Hong Leong Assurance Sdn

Bhd&Another Appeal [1995] 3 CLJ 344 at page 352 the Federal Court

decided as follows:

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. The Federal Court in the case ofMilan Auto Sdn. Bhd. v. Wong

Seh Yen [1995] 4 CLJ 449 at pages 454 & 455 decided as follows:

As pointed out by this Court recently in Hong Leong Assurance Sdn.

Bhd. v. Wong Yuen Hock [1995] 2 MLJ 753, the function of the

Industrial Court in dismissal cases on a reference under s. 20 is twofold 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.

THE RESPONDENT'S CASE AND SUBMISSIONS

13. The Respondent called the following witnesses to testify in this case:

COW-1: Ruziah Hanim Binti Osman, 49 years old

Human Resources Officer;

COW-2: Hafiz Bin Hashim, 39 years old

former Financial Controller;

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COW-3: Rosmi Bin Md. Dali,41 years old

Human Resources Officer; and

COW-4: Manimula Davi a/p M. Kalidas,44 years old

Human Resources Manager.

14. COW-1 was a colleague of the Claimant in the Human Resource

Department. The relevant evidence-in-chief of COW-1 regarding the

charges against the Claimant who testified in Court on 18 January 2012 in

cross-examination that COW-1 has no knowledge of the incident at

6.20 p.m. involving the Claimant and that COW-1 has no knowledge about

the Claimant using the computer of COW-4. The questions asked by the

Claimant's counsel are as follows:

S30: Mengenai insiden Yang Menuntut yang berlaku pada 6.20

petang, Puan tidak tahu?

J: Ya, saya tiada pengetahuan peribadi.

S33: Sama ada Yang Menuntut boleh menggunakan komputer Puan

Manimula, itu adalah di luar pengetahuan Puan?

J: Ya.

15. COW-2 who was the former Financial Controller with the Company

from June 2002 until June 2006. COW-2 is currently the Director of Finance

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of The Danna, Langkawi. The involvement of COW-2 in this case as

recorded in cross-examination are as follows:

Q2: When the Claimant was dismissed in 2009, you were never

involved in the case and never called as a witness in the

Domestic Inquiry?

A: Yes.

Q3: You have no personal knowledge about the allegations against

the Claimant?

A: Yes.

16. COW-3 has no personal knowledge of the allegations made against

the Claimant. COW-3 in cross-examination testified that she was not at the

place of incident involving the Claimant on 20 March 2009 at 6.20 p.m.

S13: Dalam insiden 20 Mac 2009, jam 6.20 petang yang melibatkan

Yang Menuntut, adakah Pn. Rosmi ada di sana?

J: Tidak.

17. COW-4 who was the Human Resources Manager of the Company

testified on 18 January and 26 March 2012 as reflected in the evidence in

chief COWS-4 (102 questions) and supplementary witness statement in

COWS-4(a) comprising of 95 questions. COW-4 also gave her

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supplementary evidence in Court and stated categorically that the Claimant

conducted a Domestic Inquiry before the Claimant was terminated of his

services and the Domestic Inquiry minutes are reflected in COB-1,

pages 47 59. COW-4 confirms that in the hierarchy of the Human

Resources Department, below COW-4 is the Human Resource Executive.

Regarding the domestic inquiry against the Claimant, COW-4 states as

follows in the Supplementary Questions:

Q16: Before the Claimant was terminated of his services, did the

Company conduct a Domestic Inquiry?

A: Yes, we did. The Company called Ruziah Hanim, Rosmi,

Hassan and myself.

Q17: Is the Notes of Domestic Inquiry in the Company's Bundle of

Documents?

A: The minutes of Domestic Inquiry are found in COB-1, pages

47 - 59.

18. The Respondent's counsel, Joyce Fernandez in the Written

Submissions submits that the Respondent had successfully proven on a

balance of probability that the Claimant was dismissed with just cause and

excuse and submits that the Claimant's case be dismissed.

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THE CLAIMANT'S CASE AND SUBMISSIONS

19. The Claimant, CLW-1,50 years old testified in Bahasa Malaysia on 19

July 2012 in his evidence-in-chief produced and marked as CLWS-1(a) and

CLWS-1(b). The Claimant is currently holding the position of a Cost

Controller in Holiday Inn Gleanmarie. The Claimant referred to the Show

Cause Letter and Suspension dated 27 March 2009 (COB-1, page 42) and in

Question 9 of CLWS-1(a) he disagreed with the charges preferred against

him. The Claimant denied the cross- examination questions fielded by the

Respondent's counsel in respect of the charges outlined in the Show Cause

Letter. As regards the domestic inquiry, the Claimant stated categorically in

Question 16 of CLWS-1(a) that the domestic inquiry was not conducted fairly

and was bias.

20. The Claimant's counsel, Ashokumar Parthmanathen in the Written

Submissions submits there was lack of clear and convincing evidence for the

Company to come to the conclusion that the Claimant was guilty of the

charges. In the Claimant's submissions, the Court was urged to invoke

section 114(g) Evidence Act 1950 against the Company for failure to call

Fauzi Awang, Che Hassan and the panel of Domestic Inquiry. As regards the

Domestic Inquiry, it was the Claimant's submissions that the Domestic

Inquiry was conducted in a bias manner. However, the Claimant's counsel in

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his Reply Submissions conceded that the hearing at the Industrial Court is a

fresh hearing.

DOMESTIC INQUIRY

21. Where a domestic inquiry had been held, as in the instant case, the

Industrial Court's jurisdiction is limited to considering whether there is a

prima faciecase against the Claimant. This approach was advocated in the

case of Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan

Malaysia & Anor [2004] 7 CLJ 77, and in the Court of Appeal case

ofJye Tai Precision Industrial (M) Sdn Bhd v. Victoria a/p Arulsamy

[2008] 1 CLJ 760.

22. The duty of the Court is to first consider whether or not the domestic

inquiry was valid and whether the inquiry notes were accurate. Further, if

the rules of natural justice had been duly observed and the inquiry finding

was based on the evidence presented to it, this Court ought then to consider

such finding in order to conclude whether the Claimant had been dismissed

with or without just cause or excuse (see Metroplex Administration Sdn

Bhd v. Mohamed Elias [1998] 5 CLJ 467).

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EVALUATION AND FINDINGS

23. The Claimant was given due Notice of the Domestic Inquiry

dated 31 March 2009 as reflected in COB-1, pages 73 & 74 stating that the

Domestic Inquiry will be held on 7 April 2009. The Minutes of the Domestic

Inquiry exhibited in COB-1, pages 47 59. What is paramount now for the

Court's consideration is whether there were sufficient evidence before the

Panel of Inquiry to justify their finding of guilt as charged against the

Claimant in respect of the fivecharges proffered against the Claimant.

24. It is pertinent to note that albeitthere being a Domestic Inquiry by

the Respondent to investigate the charges against the Claimant, this Court

rehears the matter afresh. This Court has to make a finding of fact

premised on the evidence available as to whether the charges of misconduct

had been established against the Claimant by the Respondent on the

balance of probabilities.

25. In the case Hong Leong Equipment Sdn. Bhd. v. Liew Fook

Chuan & Other Appeals (1997) 1 CLJ 665 at page 716 the Court of

Appeal decided as follows:

The fact that an employer has conducted a domestic inquiry against

his workman is, in my judgement, 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

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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.

26. The author, C.P. Mills in Industrial Disputes Law in Malaysia, 2nd

Edition 1984 at page 78,states the following:

Unless there is clear evidence to support the charge of misconduct,

the employer's decision against the workman will not be upheld by

the Court.

Even where there were reasonable grounds before the employer for

concluding that the workman was guilty of the misconduct alleged

against him, but in the proceedings before the Court the evidence

does not permit any firm conclusion that the workman did commit the

acts in question, the dismissal will not be sustained.

27. The Claimant's services with the Respondent Company was

terminated with effect from 10 April 2009 vide letter of dismissal

dated 7 April 2009. The question for the Court's determination now is

whether the Claimant was dismissed with just cause or excuse. It was

explicitly clear from the dismissal letter whereby a detailed scrutiny of the

dismissal letter indicated that the Respondent's General Manager states the

the charges leveled against the Claimant at the inquiry being grave and

serious and in view of the gross misconduct committed by the Claimant, the

Management has decided to dismiss the Claimant of his contract of service

with effect from 10 April 2009. The charges against the Claimant were

reflected in the Show Cause and Suspension letter dated 27 March 2009 to

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the Claimant. Now, the Court's duty is to enquire whether the excuse or

reason advanced by the Respondent Company has been made out. If the

Court makes a finding of fact that the charges against the Claimant has not

been proven, then the inevitable conclusion must be that the dismissal was

without just cause or excuse.

28. The first two charges shall be dealt with collectively as the charges

are interconnected in respect of the date and place of incident. To

regurgitate, the first two charges preferred against the Claimant are as

follows:

Charge 1: You have sneaked into the Human Resources Manager's

computer on 20 March 2009 at approximately 6.50pm without her approval

or knowledge.

Charge 2: You have attempted to go into the Human Resources

Manager's email on 20 March 2009 without her approval or knowledge.

29. The evidence in chief of COW-4 as reflected in COWS-4 in regards to

Charges 1 and 2 are as follows. COW-4 states categorically in Questions 42

and 55 that she did not authorise the Claimant to use her computer

on 20 March 2009. COW-4 states further that she did not know that the

Claimant came back to the office after she left the office on 20 March 2009.

According to COW-4, the room and office was locked before she left for the

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day on 20 March 2009. It was also clear from Question 43 that COW-4 had

never given the Claimant any authority to use her computer. COW-4 in her

further evidence states as follows in relations to Charges 1, 2 and 3:

Q49: How did you know someone gained access to your email?

A: When I came to work and I tried to open my drawer, it was

locked. I normally do not lock my drawer. I suspected

someone came in to my room without my consent and called

the IT personnel to check if anyone attempted to gain access

to my e-mail.

30. According to COW-4, the Claimant admitted that he gained access to

COW-4's room and that he had done the same to take one of the files from

the cabinet and the Claimant also admitted gaining access to COW-4's

computer to view an e-mail that was in reference to his wife and the

Purchasing Officer. The Claimant's very own evidence clearly demonstrated

that he sneaked into COW-4's room and had attempted to go into the

Human Resources Manager's email on 20 March 2009 without her approval

or knowledge. The evidence of the Claimant in CLWS-1(b) are as follows:

S36: Ada Encik Razali pada 20 March 2009, 6.20 petang masuk ke

bilik Mala dan guna komputer?

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J: Ya, ada. Saya masuk untuk menggunakan komputer beliau

tetapi apabila saya ON komputernya memerlukan kata laluan

di mana selama ini tidak pernah ada kata laluan. Oleh itu

saya tidak dapat menyiapkan kerja lalu saya OFF kembali

komputer dan terus keluar dari biliknya.

31. The Court is inclined to agree with the Respondent's submissions in

page 15 to state there is evidence before this Court that the Claimant

trespassed into COW-4's room and gained access to her computer without

her consent. Therefore the Court finds Charges 1 and 2 against the

Claimant proven.

Charge 3:

32. The charge reads as follows: You have sneaked into the Human

Resources Manager's personal drawer where private and confidential

documents were kept on 20 March 2009. This charge shall not be dealt

with pursuant to the findings of the Panel of Inquiry in the Report Findings

of the Domestic Inquiry at COB-1 page 69 that this charge lacks proof.

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Charge 4:

33. The charge reads as follows: You have authorized a letter to Md.

Fauzi Awang, Security Shift Leader without the knowledge of your superior

and written a false salary in the letter on 25 March 2009. COW-4 in her

evidence in chief stated that the Claimant was never given the authority to

issue any letters of confirmation regarding employment, salary and years of

work of Mohd. Fauzi Awang Said. COW-4 states that she did not authorise

the Claimant to issue the letter. (see minutes of Domestic Inquiry in COB-1,

page 54). According to COW-4, only Ruziah Hanim, the Human Resources

Officer and herself are authorised to issue letters of confirmation. In the

Domestic Inquiry (COB-1, page 55) the Claimant admitted issuing the said

letter when questioned by Gindo Sufri Sianturi, Chairman of the Panel of

Inquiry. In the Report Findings of the Domestic Inquiry as reflected

in COB-1 page 70, the Panel found the Claimant of Charge 4 pursuant to the

findings inter alia that the Claimant admitted that he has never been

authorised to issue such letter and that the Claimant admitted that the letter

was issued without the knowledge of his superior, the Human Resource

Manager until later when it was discovered by COW-4. Therefore the Court

finds the charge against the Claimant proven.

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Charge 5:

34. The charge reads as follows: You have instructed Che Hassan,

Employee Relations Executive to give a Management Apartment room for

your wife, Norlin without approval from your superior. According to COW-4

in Question 82 of COWS-4, any staff bringing outsiders to stay with them are

required to fill the form in COB-1, page 72 (Request to Short Stay for Non-

Resident /Visitors) to be approved by either the Human Resources Manager

or the General Manager. COW-4 explains in COWS-4 on the procedure to be

followed:

Q93: Can the Claimant approach Che Hassan, the Employee

Relations Executive without seeking approval?

A: No. He will have to fill up the form and get my approval first

and only then can he speak to Che Hassan to use the room.

The Respondent's submissions at page 29 referred to the Panel of Inquiry's

findings at page 70 of COB-1 whereby the Panel found the Claimant guilty

based on the findings inter alia that the Claimant mentioned that he has no

knowledge that he needs to get approval from the Human Resources

Manager for the use of the Management Apartment and that the Claimant

had misused his role to accommodate his wife in the apartment by asking

Che Hassan to provide the apartment without the approval and knowledge

of the Human Resources Manager. It was crystal clear from the Statement

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Report of Che Hassan Mohd. Rashid recorded on 4 April 2009 (COB-1,

page 67) that he did not know if the Human Resources Manager has given

authorisation to the Claimant or any other staff to issue the letter with their

signature. During the domestic inquiry, the Claimant admitted at page 59 of

COB-1 that he did not obtain approval from COW-1 for the management

quarters. In the circumstances, Charge 5 against the Claimant is proven.

35. Based on the totality of the evidence of the Respondent's key witness

COW-4 and the Claimant, the Court finds the Claimant guilty of Charges 1,

2, 4 and 5. The Court dismissed the Claimant's counsel application for the

Court to invoke section 114(g) Evidence Act 1950 against the Company for

failure to call Fauzi Awang, Che Hassan and the panel of Domestic Inquiry.

Whether the Claimant's misconduct warrants a dismissal?

36. By paragraph 2 of the Statement of Case, the Claimant contended

that the dispute is over the dismissal of the Claimant by the Company

without just cause or excuse. Pursuant to paragraph 12 of the Statement of

Case, the Claimant prays for an order that he be reinstated to his former

position in the Company without loss of seniority or any benefits, monetary

or otherwise.

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37. The learned Chairman, Y.A. Franklin Goonting in the case of

Hasbullah Abd. Jalil v. KUB Power Sdn. Bhd. [2011] 1 ILR 629

at page 641 decided inter aliaas follows:

The remaining issue is whether these proven acts of misconduct are

just cause and excuse for the claimant's dismissal. His counsel

submits that the respondent should have considered his past good

service. The court, while not denying the past good service is a

mitigating factor to be taken into account, must ask whether in

making the decision to dismiss the claimant, the respondent hadacted reasonably. In the light of the totality of the evidence before it

and with due regard to equity and good conscience the court is of the

view that the decision to terminate the claimant's employment was

reasonable.

38. The Court asks itself whether in this case it was reasonable for the

Respondent to dismiss the Claimant. The answer to this question must be in

the affirmative as the Claimant had committed the acts of misconduct in

regards to Charges 1, 2, 4 and 5 which were clearly inconsistent with the

fiduciary relationship between the employer and an employee. The

Claimant's conduct of sneaking into the Human Resources Manager's

computer on 20 March 2009 at approximately 6.50pm without her approval

or knowledge justifies the managerial decision to dismiss the Claimant as

this involves the Claimant's honesty and integrity whilst in the employment

of the Respondent Company. The Court is of the view that honesty and

integrity are amongst the key characteristics that any employee ought to

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possess, especially in this case where the Claimant held the position of

Human Resources Executive.

CONCLUSION

39. Based on the totality of evidence, written submissions of both parties

and bearing in mind section 30(5) of the Industrial Relations Act 1967 to act

according to equity and good conscience and the substantial merits of this

case, it is the Courts finding that the Claimants dismissal was with just

cause or excuse. Accordingly, the Claimants claim is hereby dismissed.

HANDED DOWN AND DATED THIS 14TH JANUARY 2013.

( EDDIE YEO SOON CHYE )CHAIRMAN

INDUSTRIAL COURT MALAYSIAKUALA LUMPUR

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