AWARD NO. 302 OF 1997 [24 JUNE 1997]

The dispute emanates from the dismissal of the claimant by the company on 21 May 1992.

The claimant joined the services of the company on 12 July 1976. At the time of dismissal his salary was RM1,204 per month and he held the post of a senior foreman.

The factual matrix of this case are these:

On the morning of 25 March 1992, Low Ah Meng (CLW2) and Zulkiflee Limat, the assistant secretary and vice chairman respectively of the Metal Industry Employees Union (MIEU) Works Committee sought the company's permission to hold a meeting in the canteen during working hours. The permission being obtained from the management, the meeting was held from 10a.m. and it lasted for about an hour.

The next day, which was 26 March 1992, forty two workers in five sections of the factory i.e. Tapping, Grinding, Galvanising, Core making and Annealing refused to do overtime work. On 26 March 1992, Mocta Ismail (COW7) the personnel officer was instructed to conduct an investigation into the boycott of overtime by these workers.

For the purpose of his investigation COW7 devised a set of forms (pp. 47 to 54 Bundle "B") containing a list of names of the workers and a column for writing down the answers given by them during the interviews. However the reason given by the workers, which he recorded was not the real reason because the workers did not want the real reason to be recorded by him. On 28 March 1992 the company put up two notices dated 28 March 1992 urging the workers not to refuse overtime and at the same time warning them that such concerted action to refuse overtime work was considered an illegal strike which might lead to expulsion from union membership or disciplinary action.

COW7 was then approached by four of the company's workers who implicated the claimant, the secretary of the union, as the instigator for the on-going boycott of overtime. These four were Arokia Dass a/l Apparoo (COW3), Kamaruddin Abd. Rahman (COW4), Sak Aini Ali (COW5) and Ong Teck Heng. According to them they had heard of this from the members who had attended the meeting on 25 March 1992. Subsequently COW7 recorded statements from them.

On the 30 March 1992, as a follow-up to the earlier investigation COW7 sent another set of forms (pp. 62, 64, 66, 68 and 70 of Bundle "B") to the section heads for the workers under their charge to indicate their willingness or unwillingness to perform overtime work. To those forms were clipped a memo (pp. 61, 63, 65, 67 and 69 of Bundle "B") directing the section heads to arrange for all workers to work overtime on that day "failing which the respective workers must inform the management in writing as per elaboration in clipped form herewith". However all the forms were returned blank by the section heads.

The boycott of overtime work by the workmen of the five sections continued into 30 March 1992 and 31 March 1992, and included those who had expressed their willingness to work overtime during the earlier interviews on 26 and 27 March 1992.

On the 1 April 1992, the claimant was informed by letter to attend an inquiry to be held on 10 April 1992 to answer a charge against him. The charge (p. 95 of Bundle "B") against him reads as follows:

AMENDED CHARGE

That you, while in the employ of the company as a senior foreman, between 25 March 1992 and 26 March 1992 during working hours and in the company factory premises, did instigate the company factory employees, which include employees in your charge, not to do overtime work as allotted to them by the company management and such instigation was done through or with the assistance of the Union Works Committee members and other factory employees under the influence of your instigation, and as a result of your instigation a total number of 42 factory employees who had worked overtime on 25 March 1992 and a number of other factory employees had refused to do overtime work as allotted to them by the management on 26 March 1992, 27 March 1992, 30 March 1992 and 31 March

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