This is a reference by the Honourable the Minister of Human Resources Malaysia under Section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Encik Mohamad Azman Bin Kamis (hereinafter known as "the Claimant") by Rangkaian Pengangkutan Integrasi Deras Sdn. Bhd. (hereinafter known as "the Respondent").

AWARD

Facts of the Case

Claimant joined the Respondent as a Bus Driver with effect from 1.11.2004. His basic salary was RM840.00 per month. With his overtime claims, incentive, dobby allowance, safe driving allowance and medical claims, Claimant received an average take home pay of RM1,300.00 after statutory deduction of E.P.F. and SOCSO.

On 13.8.2005, while Claimant was driving metro bus No. WGC 5615 along route 51 at about 5.53 p.m., an Assistant Enforcement Officer of the Respondent by the name of Abdullah Sani bin Haji Jaffri (COW1), boarded the bus to conduct ticket checking and found RM20.00 was placed in a hole at the steering of the bus. Since the rules and regulations of the Respondent required all collection of bus fares to be put inside the collection box by the respective passengers and bus drivers were forbidden to receive the fares in cash from the passengers on account of the OMO (One Man Operation) system practised by the Respondent, COW1 lodged a report/complaint against the Claimant with the Manager of the Enforcement Division on the same date. On 5.9.2005, the Respondent issued the Claimant a letter to show cause and on 4.10.2005 at 9.00 a.m. at the Respondent's office at Batu 5, Jalan Klang Lama, Kuala Lumpur, a domestic inquiry (D.I.) was conducted against the Claimant on the following charge:

"Pada 13 Ogos 2005 lebih kurang jam 17.53 petang semasa pemeriksaan bas yang dilakukan oleh Penolong Penguatkuasa En. Abdullah Sani Hj. Jaffri di perhentian bas Jalan Klang Lama (Hotel Grade), dimana saudara yang bertugas sebagai pemandu bas bernombor WGC 5615 laluan 51, perjalanan menghala ke Kuala Lumpur didakwa telah melakukan kesalahan seperti berikut:

a. Anda didapati dengan sengaja tidak memasukkan wang kutipan hasil jualan tiket yang berjumlah RM20.00 ke dalam tabung kutipan wang sebaliknya meletakkan wang di lubang tengah stereng bas."

The Respondent alleged that the Claimant had pleaded guilty to the charge in the D.I. whereas the Claimant contended that he pleaded otherwise. The Respondent subsequently vide its letter dated 25.10.2005 terminated the Claimant's service effective from the same date. On 17.11.2005, the Claimant wrote an appeal against his dismissal which was however rejected by the Respondent. Claimant contended his dismissal was without just cause or excuse, actuated with mala fide and amounted to an unfair labour practice.

The Issue

The main issue is whether the Respondent had proved the misconduct of the Claimant on the charge levelled against him and whether the Claimant's ultimate dismissal was with or without just cause or excuse.

The Law

In instances where a domestic inquiry has been held, the Industrial Court's jurisdiction was limited to considering whether there was a prima facie case against the delinquent employee; see Bumiputra Commerce Bank Bhd. v. Mahkamah Perusahaan Malaysia & Anor [2004] 7 CLJ 77, where the High Court had also laid down the guidelines that the Industrial Court should first consider whether or not the domestic inquiry was valid and whether the inquiry notes are accurate.

Where dismissal is not in dispute as in the instant case, it is trite that the burden of proof shall lie on the employer to prove that the dismissal of the employee was with just cause or excuse on a standard of a balance of probability; see Telekom Malaysia Kawasan Utara v. Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 CLJ 314; [2002] 3 MLJ 129 C.A.

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 the Court finds as a fact t