Table of Content
1. final verdict based on evidence assessment. (Para 36 , 44)

"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."

[36] Therefore, failure to conduct a DI is not fatal and in such circumstances, this court hears the matter afresh. Evaluation and findings of the matter will thus be premised upon the pleadings filed and the evidence adduced at the hearing.

Evaluation And Findings

[37] The consensus in this case is that the claimant had been the person responsible for the renewal of the motor takaful policies for the seven customers of the company mentioned at para 5 above whilst the claimant had been in employment with the company. This fact was not denied by the claimant in her pleadings nor in her evidence in court.

[38] The claimant had also not denied the setting up of her business in the name of Norhapizah Khairani and her proprietorship of DA Oasis Enterprise whilst she was still in employment with the company.

[39] The claimant had also not denied that both the companies, Norhapizah Khairani and DA Oasis Enterprise were involved in motor takaful and that the motor takaful policies for the seven customers were indeed issued by DA Oasis Enterprise.

[40] The claimant had also not denied receiving the Letter of Caution dated 12 December 2013 due to her breach of the company's Code of Conduct under item 10 (Avoiding Conflict of Interest) for running a sole proprietorship business under the name of Norhapizah Khairani.

[41] Since the claimant had not denied her involvement in the issuance of the motor takaful policies for the seven customers of the company and her proprietorships in both Norhapizah Khairani and DA Oasis Enterprise but has justifications for her involvement, the onus to proof the same shifts to the claimant instead as it is trite law that he who asserts must prove the facts. Section 103 of the Evidence Act 1950 provides as follows:

"103. Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

[42] In this case, the claimant had two main justifications which she had raised during the hearing. One being that the issuance of the motor takaful policies to the seven customers of the company were done by STMB via DA Oasis Enterprise because the vehicles were nine years' old and above and the other being that DA Oasis Entreprise was no longer operational since 12 July 2011 in accordance to the Companies Commission Malaysia's search report. The company's counsel had objected and submitted that these facts were not raised in the pleadings by the claimant, the cases of Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd, [2010] 6 MLJ 1 and Continental Challenge Sdn Bhd & Ors v. Loi Teh Ong; [2003] 3 ILR 780, were quoted where the following was said respectively:

"[31] The court of Appeal has reproduced the applicant's statement of case in full in its judgment and found that the issue of victimisation was never pleaded. From the statement of case reproduced there is no doubt that the issue of victimisation was never pleaded. It was not a ground advanced by the appellant. As such the Industrial court cannot act on a ground which was not advanced in a pleaded case. Section 30 (5) of the Act cannot rescue the appellant's case."

"However this fact was also not pleaded in the amended statement of case. Pleadings should contain material facts must be stated clearly but briefly in the statement of case. The material facts in the pleadings should state those facts which will put the respondents on their guard and tell them what they have to meet. In another

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