AWARD NO. 110 OF 1996 [22 MARCH 1996]

The parties to the dispute before this Honourable Court are Noorlizah bte Abdul Rahman (hereinafter referred to as "the claimant") and UMW Toyota Motor Sdn. Bhd. (hereinafter referred to as "the company"). The claimant commenced employment with the company with effect from 2 February 1990 in the capacity of a clerk II. She was dismissed by the company on 22 March 1993.

The claimant was issued with a notice of domestic inquiry dated 23 February 1993 (Exhibit CO1). She was required to attend a domestic inquiry to afford her an opportunity to answer the allegations against her. The domestic inquiry proceeded as scheduled on 9 March 1993. The claimant was thereafter informed by letter dated 22 March 1993 that her services were terminated with effect from the date of the letter (Exhibit CL2).

The issues before this Court are:

(i) was the claimant guilty of misconduct?

(ii) if the claimant was guilty, was the misconduct sufficiently serious to warrant dismissal?

Did the claimant commit the acts of misconduct alleged by the company?

The charges against the claimant as set out in the notice of inquiry (Exhibit CO1) may be categorised as follows:

(i) non-handing over of several cash payments received from customers of the company; and

(ii) late handing over of several cash payments received from customers of the company;

Christopher Pan (COW1), the manager of the Labuan Branch of the company states that the Labuan Branch consists of three departments, namely the parts, sales and service departments. The claimant was attached to the service department as the clerk/cashier. The head of the service department was one Phang Hock Hin, the supervisor of the said department.

When a customer comes to service his vehicle, he goes to the service counter manned by the service adviser, one K.M. Chuah and/or the claimant. The claimant or the service adviser prints out the job order. It is then signed by the customer and handed over to the technician. When the job is completed, the job order is handed over to the claimant or the service adviser. The final bill in the form of an invoice is then presented to the customer for payment. The claimant or service adviser will collect the money, mark the customer and accounts copies of the invoice with the stamp "paid" and the vehicle is then released. At the end of each day, the claimant will then prepare the "cash collection sheets" which is also known as the "daily collection record" - (page 35 of the company's bundle of documents marked as Exhibit COB). The claimant will hand over the collection record, cash and cheques to the chief cashier who is in the sales department. The chief cashier keeps the cash and the cheques in the company's safe and banks in the collection the following day.

The procedures as regards the collection of cash is also set out in the standing instructions of the company (pages 35-50 of Exhibit COB, in particular at page 35 paragraph 1). COW1 states that the claimant was furnished with a copy of the standing instructions which is kept in the service department. The claimant denied receiving the standing instructions. However, it is not seriously disputed that the claimant's tasks included, invoicing, collection of payments, preparation of daily collection records and the handing over of cash and that she was aware that the money received by the chief cashier was to be banked in the following day.

Charaes Relating to Non-Handing Over of Payments

From 30 September to 2 October 1992, there was a power failure which caused a breakdown in the company's computer billing system. During the said break-down, the service department continued with its operations. Invoices, however, had to be manually raised and were subsequently keyed into the computer after the restoration of the computer billing system. According to COW1, based on the cash printouts for August 1992 to October 1992, between 7 to 10 cash invoices were received daily. However, during the period of the