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2020 MarsdenLR 1290
INDUSTRIAL COURT KUALA LUMPUR
ROS AZAMAN OTHMAN – Appellant
Versus
NAMTECH PRIMA SDN BHD – Respondent
Award No: 864 Of 2020 [Case No: 20/4-91/19]
The Industrial Court must assess if proven misconduct justifies dismissal under Section 20(3) of the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Claimant dismissed for misconduct including tampering with quotations and invoices, intimidation of contractors, and misuse of access to an ATM card – The Industrial Court must determine if the misconduct is proven and whether dismissal was justified under the Act. (Paras 1-27)
Facts of the case:
Claimant, employed as Director of Sales, was accused of major misconduct including fraud and tampering with financial documents after an internal inquiry.
Findings of Court:
Domestic inquiry findings were not perfect, yet the Court found no prejudice against the Claimant's rights, accepting the Company's case of dishonesty and gross misconduct.
Issues
: Determination of misconduct by the employer and justification for dismissal under the Act.
Ratio Decidendi:
The burden lies upon the employer to prove dismissal was with just cause.
Result:
Claimant's case dismissed.
AWARD
A. Reference
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 in respect of the dismissal of FAIZAL BIN ZULKIFLI ('the Claimant') by his employer NAMTECH PRIMA SDN BHD, formerly known as TOKHEIM GUARDIAN VENTURE SDN BHD ('the Company').
B. Facts Of The Case
[2] The Claimant commenced employment with Guardian Venture (M) Sdn Bhd on 2 January 2008 as Senior Operations Manager. Subsequently the company evolved into Tokheim Guardian Venture Sdn Bhd and eventually into Namtech Prima Sdn Bhd, the Company in this case. Apart from a basic salary in addition, he was paid variable allowances to cover for traveling, toll, meals and hotel expenses.
[3] Effective from 1 June 2015, the Claimant was made the Director of Sales. From the 1 January 2016 onwards he was paid a monthly salary of to RM9,000 together with bonuses up to 10% of his annual salary. The bonus was based on sales performance on a full fiscal year and paid in the first quarter following the end of the fiscal year.
[4] Essentially his main duties and responsibilities were the following:
a. Oversee the running and management of each department.
b. Have weekly meetings with Finance Department to keep abreast of outstanding invoices.
c. Have regular meeting with clients in respect of prompt payment.
d. Liaise with customers on their needs and requirements by fax and email, meetings and to build good relations with customers' senior management and other personnel.
e. Liaise with suppliers.
f. Develop business for the Company with government organisations.
g. Prepare quotations and tender documents as when required by CEO.
h. Submit trip reports together with any claims for allowances.
[5] In a letter dated 6 January 2018 the Claimant was given a notice to show cause asking him to explain why disciplinary actions should not be taken against him for allegations of misconduct. The letter stated the following:
(a) Tampered Quotations
We note that there was discrepancy in the amount quoted in the quotation received by the Company against the actual quotation given by the contractor to you as follows:
(i) Rapid Mak Mandin - Quote No. 0009 dated 19 January 2018 Quotation received by Company RM13,270.00 Actual quotation by contractor RM6,570
(ii) Rapid Sg Nibong - Quote No. 0010 dated 19 January 2018 Quotation received by Company RM1,940 Actual quotation by contractor RM1,180
(iii) Rapid Weld Quay - Quote No. 0011 dated 19 January 2018 Quotation received by Company RM1,060 Actual quotation by contractor RM 670
On investigation, on 5th April 2018 the Company was informed by contractor for the Rapid Penang jobs as above that the quotes sent to the Company were prepared by him and that you had asked him to use the quotation prepared by you to forward to the Company.
This is a major misconduct and constitutes fraud.
(b) Manipulation of Invoices
We note that there was a discrepancy in the amount invoiced received by the Company against the actual invoice given by the contractor to you as follows:
- Sime Darby Bagan Datoh project - Invoice No. 0001 dated 8th January 2018
Invoice received by Company RM1,500
Actual invoice by the contractor RM700
- Sime Darby Labis project - Invoice No. 0003 dated 12th January 2018
Invoice received by Company RM1,500
Actual invoice by the contractor RM1,000
- Sime Darby Ladang Bradwall project - Invoice No. 0004 dated 12th January 2018
Invoice received by Company RM 500
Actual invoice by the contractor RM300
- Felda Tawai 2 project - Invoice No. 0007 dated 22nd January 2018
Invoice received by Company RM800
Actual invoice by the contractor RM700
- Harbour Park project - Invoice No. 0006 dated 15th January 2018
Received by Company RM 800
Actual invoice by the contractor RM400.
On investigation, the Company was informed by the contractor that the invoices sent to the Company were not prepared by them and that you had asked them to use the invoice prepare
