AWARD

Visvalingam A/L Rengayah ("the claimant") commenced employment with the company, UAC Berhad, on 16/1/1980 as a sheet handler (general factory hand grade IV). Twenty five years later, he was dismissed on 11/8/2005 when he held the post of assistant boiler attendant and subsequent to a domestic inquiry held against him.

At the domestic inquiry he was found guilty of the charges that were levelled against him. These are the two charges:-

1. On 30 June 2005 at around 11.30 pm you were Boiler Attendant Assistant on duty to load truck train into Autoclave No. 2 had negligently pushed the truck train at high speed causing the train to jump over the rail stopper resulting it to be jammed. This has caused unnecessary maintenance expenses and stoppages.

2. Seeking Medical Leaves from non-panel clinic whilst your company's panel clinic is available on the following occasions:

04/05 - 05/05/2005	-	Klinik Kesihatan Greentown
03/06/2005	-	Klinik Kesihatan Greentown
14/06 - 15/06/2005	-	Klinik Kesihatan - Jalan Bijih Timah
23/06 - 24/06/2005	-	Klinik Kesihatan Greentown
26/07/2005	-	Klinik Kesihatan Greentown
27/07/2005	-	Klinik Kesihatan Greentown
30/07 - 01/08/2005	-	Klinik Kesihatan Greentown

The claimant made representations to the Industrial Relations department under s. 20 of the Industrial Relations Act 1967 ("the Act") which were subsequently referred to this court for an award by the Honourable Minister of Human Resources.

When dealing with such a case, it is imperative for the court to determine and the company that bears the burden to prove, on a balance of probabilities, the misconduct complained of and thereafter whether it constituted just cause or excuse for dismissal. If the reason relied on by an employer to terminate the services of his employee is not established, the inevitable conclusion must be that the termination or dismissal was without just cause or excuse (see Milan Auto Sdn. Bhd. v. Wong Sen Yen, [1995] 3 MLJ 537 ; Goon Kwee Phoy v. J & P Coats (M) Bhd. ; [1981] 2 MLJ 129 and Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor.; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3 AMR 2898 ). The court is also duty-bound under s. 30(5) of the Act to decide the case in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.

To establish that the claimant was dismissed with just cause, the company called four witnesses. They were supervisor Jayaratnam A/L T. Visuvalingam (COW1) ; foreman Chandran A/L Pothraju (COW2) ; Executive Engineer Mohd. Puzi Bin Ramlan (COW3) and personnel officer Ainun Musir Bin Ismail (COW4) . It is not in dispute that the claimant's duties were to attend to autoclave operations in the factory.

COW1 who was in charge of the operations of the factory including the maintenance and engineering services was the claimant's supervisor. He testified that on 30/6/2005 the claimant worked from 7.00 pm to 7.00 am with reference to page 56 of COB1 (company's bundle of documents) that showed he reported for work at "1903" and left at "0706" the next morning. Being the person on duty, the claimant was to load the truck train into autoclave no. 2. In relation to this, COW1 explained the operation of the truck train with graphic assistance from page 50 COB1 (see Answer to Question 17 of COW1's witness statement COWS-1):-

When the Truck Train is loaded, the Boiler Assistant has to push the train into the Autoclave. There is a wheel stopper to stop the train. The train will stop before the Truck Stopper inside the autoclave. It would not jump over the wheel stopper unless the Boiler Assistant pushes the train very hard causing the train to move at high speed.

The photograph on page 52 COB1 shows the door of the autoclave. After the truck train is pushed into the autoclave, the assistant boiler attendant (the claimant being one) has to close the door and supply steam. The photograph on page 54 COB1 shows the entire picture of the autoclave after the d