AWARD

This matter was referred to court by way of a ministerial reference under s. 20(3) of the Industrial Relations Act 1967 , on 22 March 2001 and was received by the court on 17 April 2001. It arose out of the dismissal of Encik Tan Chong Hin (hereinafter referred to as the "claimant") by Susu Lembu Asli Marketing Sdn. Bhd. (hereinafter referred to as the "company") on 22 March 2000.

The claimant commenced employment with the company on 1 July 1993 as its assistant marketing manager and was duly confirmed in his position. By January 1994 he was made the company's marketing manager.

On 6 March 2000 he was hauled before a panel of domestic inquiry (DI) to face 5 charges of misconducts as shown at p. 7 of the claimant's bundle of documents - CLB2. The claimant duly attended the DI held on 14 March 2000 wherein he denied all the charges proferred against him.

Vide letter dated 22 March 2000 shown at pp. 13 and 14 of CLB-2, the claimant was informed that the panel had found him guilty of only 2 out of the said 5 charges and on account of the seriousness of the misconducts, he was dismissed with immediate effect ie, from 22 March 2000. The 2 charges upon which the claimant was found guilty are:

Charge No. 1

That you had, between May 1998 and October 1998, while being employed in the capacity of a Marketing Manager at Susu Lembu Asli (Marketing) Sdn. Bhd. dishonestly received or retains the following monies, being part of the monetary proceed from the sale of milk, ie , through the one day sale, knowing or having reasons to believe the same to be stolen property in respect of which criminal breach of trust has been committed:-

Amount (RM)	Dates Received/Retained
(a) RM1,082.00	5th May 1998
(b) RM 631.00	19th May 1998
(c) RM1,245.00	23rd May 1998
(d) RM1,460.00	4th June 1998
(e) RM1,305.00	23rd June 1998
(f) RM1,490.82	27th July 1998
(g) RM2,000.00	14th August 1998
(h) RM1,733.25	20th August 1998
(i) RM 651.55	2nd October 1998
(j) RM 810.00	13th October 1998

Your above act had thus amounted to dishonestly receiving stolen property.

Charge No. 5

That you had, between May 1998 and October 1999, while being employed in the capacity of a Marketing Manager at Susu Lembu Asli (Marketing) Sdn. Bhd, breached a fiduciary and contractual duty of care owned by you to the Company and had consequently caused the Company to lose part of the monetary proceeds from the sale of milk through the One Day Sale in relation to charge 1, charge 2, charge 3 and/or charge 4 above. Your act had thus amounted to gross negligent.

At the time of his dismissal, the claimant was still holding the post of marketing manager and drawing a monthly salary of RM6,000. The claimant contends that his dismissal was without just cause or excuse and that the decision to dismiss him was arbitrary, capricious, manifestly unreasonable and harsh and was motivated by male fides and was an unfair labour practice.

At the outset it must be stated here that the court is not about to conduct a criminal trial against the claimant although the charges upon which the claimant was found guilty may well have been, for all intents and purpose, criminal in nature. The court is only concern whether a misconduct(s) had been committed by the claimant. The court's role is only to determine whether the alleged misconducts levelled against the employee has been established and secondly, whether the proven misconducts constitute just cause or excuse for the dismissal of the employee (see Milan Auto Sdn. Bhd. v. Wong Seh Yen, [1995] 3 MLJ 537 ).

It is settled law that the burden of proving the commission of the said misconducts is upon the company and the company need do so only on the standard of a balance of probability irrespective of the nature or `class' of the charges levelled against the employee and that, that is the only standard applicable to all classes of misconducts though, which have been defined by Azmi CJ in Ratna Ammal v. Tan Chow Soo as:

When one speaks of a court having to be satisfied on a balance of probabili