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2010 MarsdenLR 4183
INDUSTRIAL COURT, PERAK
AZAHARI SHAHROM & ANOR – Appellant
Versus
ASSOCIATED PAN MALAYSIA CEMENT SDN BHD – Respondent
Award No. 101 Of 2010 [Case No: 10/4-1632/05]
Dismissals were justified as the company substantiated misconduct while victimization claims by claimants were unproven.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employees - Dismissal of claimants was justified as company proved misconduct of persuading others not to work during industrial action - Claim of victimization was unsubstantiated. (Paras 1, 17, 58, 65)
(B) Employment Law - Trust and Confidence - Employer-employee relationship obligates mutual trust; breaches justify termination - Claimants' actions violated this fiduciary duty. (Paras 46, 64)
Facts of the case:
The claims arose from the dismissal of two union officers for allegedly attempting to induce their colleagues to refrain from working during industrial action. The claimants asserted wrongful dismissal due to their union activities. (Paras 5-17)
Findings of Court:
Company established sufficient evidence of misconduct and the claimants failed to prove victimization; dismissals were justified. (Paras 57-64)
Issues: Were the claimants' dismissals justified and did they constitute victimization due to union involvement? (Paras 18, 58)
Ratio Decidendi: The court found that the claimants' actions breached the trust inherent in the employer-employee relationship, justifying their dismissals. (Paras 64)
Result: Claims dismissed.
[1] This is a reference dated 12 August 2005 by the Honourable Minister of Human Resources, Malaysia under s. 20(3) of the Industrial Relations Act 1967 , arising out of the dismissal of one Azahari bin Shahrom ('the 1st claimant') and another by the name of Siva Raj a/l Raja Gopal ('the 2nd claimant') [and both referred to as 'the claimants' when the context so requires] by Associated Pan Malaysia Cement Sdn. Bhd. ('the company') on 26 February 2004.
Opening Notes
[2] Several mention dates for the management and administration of this file were set down between 13 January 2006 and 10 July 2006. On the latter date this matter was fixed for hearing on 2 & 3 April 2007. The trial commenced and continued before YA Madam Choong Siew Khim, the then chairman of this division, on those dates; and continued for hearing on 1 June 2007 and 11 & 12 October 2007, on which final date it was concluded. Written submissions were filed for and on behalf of the claimants' on 11 April 2008; and for and on behalf of the company on 14 October 2008. A reply for and on behalf of the claimants' was filed on 13 November 2008. It was then pending the handing down of an award.
[3] With effect from 16 February 2009 the then presiding officer of this division was transferred to another posting at Kuala Lumpur; and subsequently on 14 August 2009 the said YA Madam Choong Siew Khim was appointed as a judicial commissioner of the High Court of Malaya. In the event this case was called up for mention on 18 September 2009; and with the assent of both parties, I took over conduct of this matter as the current presiding chairman of this division. The reference was then fixed for further and final oral submissions on 20 November 2009, when both learned counsel for the claimants' and the company elaborated upon and highlighted the salient points of the case from their respective perspectives.
[4] In handing down this award, apart from the final oral submissions of 20 November 2009 referred to above, I have had the benefit of the perusal of the written notes of evidence taken down by YA Madam Choong Siew Khim, together with sight of the documentary evidence tendered in this case and the written submissions filed for and on behalf of the respective parties hereto.
The State Of Affairs
The 1st Claimant
[5] The 1st claimant commenced employment with the company with effect from 16 July 1982 as a "General Labourer" drawing a salary of RM180 per month [CLB1 - pp. 1 to 3]. At the time of his dismissal the claimant was designated as an "Assistant Foreman Grade 2" and earning a basic salary of RM1,938 per month [CLB1 - pp. 4 & 5].
[6] At the material time of this case this claimant was a "committee member" of the 'Cement Industry Employees Union'.
[7] The company issued a show cause letter dated 22 January 2004 [CLB1 - p. 6] to the claimant, wherein he was informed of his suspension from work for a week at half-pay. The claimant replied to this show cause letter in writing on 24 January 2004 [CLB1 - p. 9]. By a subsequent letter dated 29 January 2004 [CLB1 - p. 10] the company extended the suspension for a further seven days.
[8] By a letter dated 3 February 2004 [CLB1 - pp 11 & 12] the claimant was required to attend a domestic inquiry on 12 February 2004 to answer the following charge:
That you on 21 January 2004 via a telephone call to Mr. Narayanasamy attempted to induce and/or threaten the said person to refrain from working. By acting as you did you have committed a serious misconduct as per the rules of the Collective Agreement.
[9] At the hearing of the domestic inquiry on 12 February 2004 the charge was amended to read as follows:
That you on 21 January 2004 via telephone call to Mr. Narayanasamy/Md Nabil attempted to induce and/or threaten the said person to refrain from working. By acting as you did you have committed a serious misconduct as per the rules of the Collective Agreement.
[10] The panel of inquiry found this claimant guilty of the amended charge and the company con
