AWARD NO. 210 OF 1993 [10 JULY 1993]

AWARD

The Claimant, Encik Mohd Yusof bin Abu Bakar, joined Malayawata Steel Bhd. ("the Company") Butterworth, on 19 July 1976 as a Mechanical Maintenance Worker.

On 22 September 1990 the Company dismissed the Claimant on the ground that he absented himself from leave on 30 July 1990 without prior approval - this being the last straw so to speak, that broke the Company's patience in dealing with the Claimant's absenteeism on previous occasions, also without approved leave. The Company had earlier in accordance with the current Collective Agreement ("CA") issued the Claimant with three Cautions, a Warning, and a further final warning in respect of his absence from work without prior approval of leave.

Following the Claimant's dismissal the Company advised the Claimant of his right of appeal within seven days.

The Company however avers that although the Claimant submitted an appeal on 28 September 1990 he did not submit any reasons to justify or explain his absence from work on 30 July 1990, to enable the Company to reconsider its decision to dismiss the Claimant. In his so called letter of Appeal Ex: CO-20, the Claimant took issue with the Company on the ground that the Company dismissed him without holding an Inquiry.

In other words the Claimant was contending that his dismissal was in breach of the rules of natural justice.

In this case to reiterate, the Claimant was issued with three Cautions on 15 September 1988, 17 September 1988 and 19 September 1988 respectively, a Warning on 25 April 1989, and a final warning on 8 March 1990, these defaults being in respect of absence without leave. On 22 September 1990 the Company dismissed the Claimant in respect of a further misconduct of being absent without leave on 30 July 1990.

Encik Veeriah for the MTUC ably and persuasively contends that under the CA any further or persistent defaults in discipline whereby the Company considers disciplinary action up to dismissal must be treated under the Company's General Conditions Governing Employment hereinafter referred to as ("GC") Ex: CL-1. The Claimant's misconduct concerns absence without approved leave and this would appear to come under Category II in Appendix C of Section XXI of the GC, (Ex: CL-1) where a workman is liable to instant dismissal.

Under the GC not more that two Union officials shall be invited to sit as observers at a Disciplinary Inquiry affecting an employee. Under the CA two Union officials shall be present at a Disciplinary Inquiry of an employee. It is clear that both under the GC and CA an Inquiry is provided for together with a provision for

Union representation.

However Encik S. Sivagnanam of MEF, who must be complemented for his meticulous presentation of all cases on behalf of MEF, argued that the Caution system which applied in this case does not specifically provide for a Domestic Inquiry.

However under the Caution system as provided for in the CA after three Caution letters in the year for which there will be no increments in the next year, a further Caution letter on the next default may include a warning of dismissal. However further defaults requiring disciplinary action including dismissal must be dealt with under GC. It does appear that where dismissal is contemplated a disciplinary inquiry must be held. Both the GC and the CA provide for a Disciplinary Inquiry at which two Union officials shall sit as observers.

It is apparent therefore that the Claimant was in fact entitled to or should have been accorded a hearing at an Inquiry irrespective of whether it is called a due inquiry under the Employment Act 1955 or a Disciplinary Inquiry under the CA or GC.

It was contended for the Company by Encik S. Sivagnanam that in this case a due inquiry was held as:

It was constituted by his immediate superior asking the worker as to his absence by putting up an Application Form and stating his reasons for absence.

It ought to be stated with respect that an immediate superior asking a workman