AWARD

Bumiputra-Commerce Bank Bhd executive staff union, Peninsular Malaysia (the union) lodged a complaint of non-compliance under Industrial Relation Act 1967, s 56(1) (the Act) against Bumiputra-Commerce Bank Bhd (the bank) alleging that art 16.3 in the collective agreement (Cognizance No: 1 of 2003) had not been complied with by the bank.

Facts of The Case

A member of the union, Manjit Singh Dan Singh received a letter from the Bank dated 20 November 2003, requesting him to give explanation to the two allegations preferred against him on the said letter. Manjit Singh vide his letter dated 5 December 2003 gave his explanation to the charges. In the same letter Manjit Singh stated he was not guilty of any of the allegations preferred against him.

The bank without inquiring further on the allegations against Manjit Singh Dan Singh and without providing any proof that he was guilty of any allegations, vide a letter dated 12 February 2004 informed Manjit Singh Dan Singh that the Bank was satisfied that he was guilty of the changes preferred against him. The Bank thereupon, went on to impose a punishment of stop increment for a period not exceeding two years with effect from July 2004.

The Bank's contention is that Manjit Singh was afforded an opportunity to be heard in writing, in accordance with art 16.3 of the collective agreement. There is no requirement for the Bank to inquire further and the Bank is under no obligation to provide proof of guilt.

The Union's Submission

The union's contention is that the punishment meted out was without the opportunity being given to the union member to be heard. The union cited two cases namely Syarikat Kenderaan Melayu Kelantan Bhd. v. Transport Workers' Union, [1995] 2 MLJ 317 and the case of Dunlop Industries Employees Union v. Dunlop Malaysian Industries Bhd, [1987] 2 MLJ 81 . Both cases would support the union's contention that the court has power to interpret the relevant provisions of the collective agreement in an application under s 56 of the IRA.

The bank wrote a letter of explanation and the employee stated that he was not guilty of the charges. The bank then replied that the worker was guilty and proceeded to punish the worker. The union further contended that the bank can only impose the punishment if the worker admitted to the charges of misconduct in writing but if the worker denied, then the bank should go by oral hearing and give the worker the opportunity to defend himself. In this case the bank used the second part of art 16.3 that is the worker is guilty without proper hearing. The phrase "in writing" here could only mean that if the worker admits guilty but if the worker denies then the bank should hear his case orally.

On the bank's contention that there is no provision in collective agreement for the bank to prove a worker is guilt, this is a question of natural justice and no collective agreement would state such a provision.

The Bank's Submissions

In reply to the union's submission, the bank contended that art 16.3 is clear. The opportunity for the worker here is either to be heard orally or in writing. This means either the worker has an oral inquiry, that is the domestic inquiry or the worker can explain in writing that is the opportunity to explain his case. The bank has complied to this procedure as stated in the article.

The bank has also given the details of the charge to the worker and as such the charge was specific and clear. The bank also has no obligation to provide proof of guilt. If there was a need for such requirement it would have been incorporated into the collective agreement. The union's contention that the worker pleaded not guilty and as such he should be given oral hearing, is also not provided for in the collective agreement. What the worker should have done was to appeal against the bank's decision. The bank has procedures for grievances in appropriate cases.

Lastly the bank's further contention is that the court has no power to in