IN THE INDUSTRIAL COURT OF MALAYSIA BETWEEN MOHD AZHAR BIN ATAN AND MALAYSIAN INDUSTRIAL DEVELOPMENT FINANCE BERHAD AWARD NO: 2399 OF 2023 Before : Y.A. TUAN AHMAD ZAKHI BIN MOHD DAUD Chairman Venue : Industrial Court, Kuala Lumpur.

Date of Reference : 21.02.2020 Dates of Mention : 23.07.2020, 24.02.2021, 06.07.2021, 28.10.2021, 30.11.2022 Dates of Hearing : 12.11.2021, 10.12.2021, 15.12.2021, 24.06.2022, 17.03.2023 Representation : Mohd Suharin bin Sulaiman Siew Messrs Aimi Farhana & Partners.

Counsel for the Claimant Dato’ T.Thavalingam & Farah Dini Zaini Messrs T.Thavalingam & Co.

Counsels for the Company Reference This is a reference made under section 20 (3) of the Industrial Relations Act 1967 (“The Act”) arising out of the dismissal of Mohd Azhar bin Atan (“Claimant”) by Malaysian Industrial Development Finance Berhad (“Company”) on the 03.12.2019.

AWARD [1] The Ministerial reference in this case required the court to hear and determine the Claimant’s complaint of dismissal by the Company on 03.12.2019.

[2] This Court considered the notes of proceedings, documents and cause papers in handing down this Award namely:-

(i) Statement of Case dated 03.08.2020 (ii) Statement in Reply dated 24.11.2020 (iii) Rejoinder dated 02.12.2020 (iv) Claimant’s Bundle of Documents - CLB-1, CLB-2, CLB-3, CLB-4 (v) Company’s Bundle of Documents - COB-1, COB-2, COB-3 (vi) Claimant’s Witness Statement - CLW-1S (Mohd Azhar bin Atan)

(vii) Company’s Witness Statement - COWS-1 (Vasuthevan a/l S.Gopalakrishnan), COWS-2 (Sanisah binti Wan Abdul Kadir), COWS-3 (Mastura binti Md Mukhlis), COWS-4 (Noorfazilah binti Rebatin), COWS-5 (Mohamed Firdaus OAP Kader Mohideen), COWS-6 (Mohd Seeddiq bin Adenan), COWS-7 (Shazalina binti Ahmad), COWS-8 (Dato’

Charon Wardini)

(viii) Claimant’s Written Submission (ix) Company’s Written Submission (x) Claimant’s and Company’s Bundle of Authorities Background [3] The dispute before this Court is the claim by the Claimant that he had been dismissed from his employment without just cause or excuse by the Company on the 03.12.2019.

[4] By a letter of offer dated 15.03.2004, the Claimant was offered employment with the Company as a Clerk. The Claimant’s last drawn salary was RM5,121.00.

[5] On 11.11.2019, the Company issued a show cause letter to the Claimant pertaining to an alleged misconduct by the Claimant namely to have touched Puan Noorfazilah binti Rebatin inappropriately at the back staircase during a fire drill exercise.

[6] On 19.11.2019, the Company convened a Domestic Inquiry (DI)

against the Claimant. At the DI, a charge was preferred against the Claimant. The substance of the charge is as follows:

At approximately between 10.30 a.m. to 11.30 a.m. on 30.10.2019 you have allegedly touched Puan Noorfazilah binti Rebatin (“Puan Noorfazilah”) inappropriately at the back staircase of Menara MIDF. This incident was reported to have occurred during the fire drill exercise in which Puan Noorfazilah was assigned by the OSHA Committee to play the role of a “fire victim” and under the Menara MIDF Emergency Response Team structure, you are a member of the Medic Team.

[7] The Panel came to the conclusion that the charge against the Claimant has been proved.

[8] On 03.12.2019, the Company informed the Claimant of the result of the DI and his dismissal with immediate effect.

The Duty of the Industrial Court [9] The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 held that:

“When the Industrial Court is dealing with a reference under s. 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse”

[10] The Federal Court in the case of Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129 held that:

“Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or witho