INDUSTRIAL COURT OF MALAYSIA CASE NO: 22(27)(22)/4-2477/06 & 27/4-633/07 BETWEEN PUAN ROS SAZILLA BINTI RASHID ENCIK

ANTHONY GERARD JOHNSON AND SISTEM PENERBANGAN MALAYSIA BHD AWARD NO: BEFORE VENUE DATE OF REFERENCE DATE OF MENTION : : : : 50 OF 2013

Y.A. DATO MARY SHAKILA G. AZARIAH - CHAIRMAN (Sitting Alone) Industrial Court, Kuala Lumpur 28 August 2006 14 December 2006, 13 February 2007, 15 March 2007, 16 April 2007, 31 May 2007, 29 June 2007, 28 August 2007, 5 October 2007, 23 October 2007, 16 November 2007, 15 August 2008, 9 October 2008, 19 November 2008, 16 December 2008, 5 February 2009, 27 February 2009, 24 March 2009, 8 April 2009, 8 May 2009, 13 May 2009, 26 June 2009, 10 July 2009, 12 August 2009, 12 October 2009, 18 March 2010, 29 March 2010, 29 April 2010, 31 May 2010, 28 July 2010, 25 August 2010, 30 September 2010, 14 October 2010, 8 November 2010, 26 November 2010, 1 December 2010, 18 January 2011, 7 February 2011, 16 March 2011, 6 April 2011, 17 August 2011, 20 September 2011, 6 October 2011, 8 December 2011 and 9 January 2012 18-19 April 2011, 30 June 2011, 27 July 2011, 10 August 2011, 4, 5-6 April 2012, 1,2-3 August 2012, 27-28 August 2012 and 5 November 2012 23 November 2012 Encik Gerald John Pereira of Messrs. G. Pereira & Associates, Counsel for Claimant Encik H.C. Yong of Messrs. Zaid Ibrahim & Co, Counsel for Company

DATE OF HEARING

DATE OF ORAL SUBMISSIONS REPRESENTATION

: :

REFERENCES: This case is a reference under Section 20(3) of the Industrial Relations Act 1967, arising from the dismissal of Puan Ros Sazilla binti Rashid (hereinafter referred to as the 1st Claimant) and Encik Anthony Gerard Johnson (hereinafter referred to as the 2nd Claimant) by Sistem Penerbangan Malaysia Bhd. (hereinafter referred to as the Company) on 17 August 2005.
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AWARD This reference stems from the dismissal of Puan Ros Sazilla binti Rashid (the 1st Claimant) and Encik Anthony Gerard Johnson (the 2nd Claimant) by Sistem Penerbangan Malaysia Bhd. (the Company) on 17 August 2005.

Brief Facts The 1st Claimant, Ros Sazilla binti Rashid and the 2 nd Claimant, Anthony Gerard Johnson, were employed as

Stewardess and Steward respectively by the Company, Malaysian Airlines Systems Berhad. It is not denied that both Claimants

were charged by the Company for similar offences that involved themselves being found to be in possession of 3 bottles of Dom Perignon Vintage 1996, Malaysian Duty Not Paid taken out of their garment bag on 14 April 2005 by the Narcotics Police officer. It is also not denied that both Claimants were on duty on board the MAS aircraft returning from London on the 14 April 2005 and that the said 3 bottles of Dom Perignon were reported missing from the bar cart of the first cabin of the said aircraft on the said
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day.

The Company contend that owing to the said Claimants

being found to be in possession of the said 3 bottles of Dom Perignon they had committed an act of misconduct inconsistent with their terms and conditions of employment and relied on Clause 15.10 of the Appendix A, Acts of Misconduct of MAS Disciplinary Procedure and alleges that such acts of misconduct attracted the severe punishment of dismissal. It is the

Company's pleaded case that both the Claimants were dismissed for a just cause or excuse whilst the Claimants contend otherwise.

Vide the Award No. 1525 of 2012 the Industrial Court struck-off the 1st Claimant's claim against the Company owing to her repeated absence for the mentions and on the day of the Hearing. The Hearing proceeded for the 2 nd Claimant and the

Court shall now come to a finding on the dismissal of the 2 nd Claimant.

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The Law On the facts it is the pleaded case of the Company that the dismissal of the 2nd Claimant for the said charge was with just cause or excuse. It is trite law that a dismissal demolishes an employees security of tenure as she no longer has a job. That is why dismissals are challenged by an employee and when challenged the employer must prove that the dismissal is with just cause or excuse (see section 20 Industrial Relations Act 1920). What justifies dismissal is either misconduct, poor

performance or retrenchment. It must be borne in mind that it is incumbent upon the employer to prove that the Company had just cause or excuse to terminate the employers services. The standard of proof required is on a balance of probabilities.

In adjudicating this reference to it the Court is guided by the ruling of Salleh Abbas L.P (as he then was) in Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. (1998) 1 CLJ 45 which states as follows: When the Industrial Court is dealing with a reference under Section 20 the first thing that the Court will have to do is to ask itself the question whether there was a dismissal.

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The Court then considers if the answer is in the affirmative in that there was a dismissal is that whether the Companys action in dismissing the Claimant was with or without just cause or excuse.

And, in the case of Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ page 449 where Mohamed Azmi FCJ (delivering the grounds of judgment of the Court) at pages 454-455 had this to say: As pointed out by this Court recently in Wong Yuen Hock v. Sykt. Leong Assurance Sdn. Bhd. & Anor. Appeal [1995] 3 CLJ 344, the function of the Industrial Court in dismissal cases on reference under s.20 is twofold, first, to determine whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct

constitutes just cause or excuse for the dismissal.

The burden of prove in Industrial Law is on the Company to produce cogent evidence to prove that the 2 nd Claimant committed the acts of misconduct for which they had been dismissed for.
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The Charge That you as a leading Steward of the Company on 14 April 2005 at about 1800 hour at the Narcotics Police Office, Level 3, MTB, KLIA, had in your possession two (2) bottles of Dom Perignon Vintage 1996 champagne stamped with Malaysian Duty Not Paid (MNDP) a Malaysian Airlines Property which was found in your garment bag without authority.

You have therefore committed an act of misconduct inconsistent with the fulfillment of your terms and

conditions of employment with the Company by virtue of Clause 15, Para. 15.10 Appendix A, Acts of Misconduct of Malaysian Airline System Berhad Disciplinary Procedures by contravening and such acts of misconduct attracts severe punishment.

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The Evidence The 2nd Claimant, it is not denied had by signing the Search List Form on 14 April 2005 acknowledged that the 2 bottles of the Dom Perignon bearing serial numbers LA 15000142581 and LA 1500012881 was taken out of his garment bag. It was infact the evidence of the Company's first witness, CW.1, that the said 2 bottles were taken by the Narcotics Police Officer from the 2 nd Claimant's said bag and that he was notified of the same by the said Narcotics Police Officer that day. It was his testimony that the 2nd Claimant acknowledged that he was working on board the aircraft which just returned from London, MH 001. He said that the 3 bottles one of which was taken from the garment bag of the 1st Claimant, were brought to the LSG bonded store and the Company's 3rd witness, who was the LSG bonded store officer at the material time (CW.3) checked the complimentary Bar Cart B5 FC MH 001. It was his testimony that upon checking it was

found out that 3 bottles of Dom Perignon were missing from the said cart. CW.1 referred to the LSG Bonded Store Report Form and the Bar Cart Report Form that showed that the said 3 bottles of Dom Perignon were missing. CW.3 in his testimony during the

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Hearing corroborated this.

It was his testimony that upon

checking the bar cart of the First Class which was from London he discovered that the 3 bottles were missing as the Bar Stock Report that was prepared by Victor on 14 April 2005 stated that there should be 3 bottles of Dom Perignon champagne within it bearing the same serial numbers as the ones that were found in the possession of the 1st and 2nd Claimants by the said Narcotics Police Officer. It was his evidence that when he opened the said bar cart the bottles were not there except their seals.

It was the evidence of CW.1 that the 3 bottles were in the custody of the Police at Sepang. It was his testimony that the Company convened a Domestic Inquiry (DI) and the Claimants were found guilty of their respective charges and dismissed.

The 2nd Claimant testified that he chaired the said DI. He testified that the 2nd Claimant was present for 3 out of the 4 days of the said DI. It was his testimony that the 2 nd Claimant did not attend the DI proceedings on 15 July 2005 as he was unwell. He testified that the 2nd Claimant asked for the said DI proceedings

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to be adjourned on 15 July 2005 but his request for turned down as he did not submit a medical certificate from the Company's panel of doctors as he was advised to do so by the panel of the said DI. CW.2 testified that the notes of the DI proceedings that the Company tendered as evidence was an accurate reflection of what transpired during the said DI and that with the exception of the notes of the DI proceedings that went on on 15 July 2005 in the absence of the 2nd Claimant, the 2nd Claimant had signed the pages of the said DI notes of proceedings. CW.2 testified that the panel of the DI found the 2 nd Claimant guilty of the charge that was preferred against him by the Company based on the evidence and testimonies of the Company's witnesses who testified at the DI and the Claimant's as well.

It was his testimony when he was cross-examined by the 2 nd Claimant's Counsel that during the said DI the panel had not jotted down the serial numbers of the 3 bottles of Dom Perignon that were missing and that were found in the possession of the 2 Claimants. It was his testimony that the 3 bottles were brought in during the said DI proceedings and taken away back to the

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police station as it is in their custody. CW.2 agreed that the 2 nd Claimant had through his representative objected to the

production of the 3 bottles claiming that they were not the same ones that were taken out of his bag.

The 2nd Claimant testified that he did not know how the bottles of Dom Perignon was in his bag. He testified that he and the 1st Claimant had gone into the duty free shop to purchase some duty free items before they proceeded to the conveyor belt to collect their luggages. He testified that both on board the aircraft and whilst he was within the duty free shop his bags, that is, his garment bag and overnight bag was left unattended and unlocked. He said that it was customary that whilst they were on board the aircraft they were required to leave their bags unattended and unlocked. He said that on 14 April 2005 he was working at the economy section of the aircraft and that the Company's policy required them as cabin crew to remain at the economy section during the journey and bottles of liquor and wine which was meant for the First Class section of the aircraft could not be brought to the economy class section. It was his

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testimony that the cabin crew at the economy class section did not have access to the First Class Bar Cart during the flight. It was his testimony that he could not lay his hands on the liquor bottles stored in the First Class Bar Cart.

The 2nd Claimant testified that once the bar cart of the aircraft is closed it is sealed with a red seal by the crew member in charge of it. It was his testimony that the crew member will check the balance of the items in the said bar cart and then close and seal it. He testified that there are 3 such bar carts for the first class, business class and economy class. The 2 nd Claimant testified that the bar cart in question that is B5 FC allegedly supposed to contain the 3 bottles of Dom Perignon that was taken from his bag was checked and closed by Victor one of the Cabin Crew members who was also working on the said aircraft from London on 14 April 2005. He said that the Bar Cart Report that Victor prepared would have been prepared by him before the aircraft touched down at the Kuala Lumpur International Airport.

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It was his testimony that his garment bag and overnight bag during the journey on board the aircraft was kept at the last row of the economy section of the aircraft and was unlocked. He said that when he came out the aircraft on 14 April 2005 he headed for the Duty Free Shop to purchase some items before going to the carousel to pick-up his luggage and had to keep the said bags unlocked outside the Duty Free Shop. He testified that this was the standard practice for them. It was his evidence that whilst he was at the carousel that he was picked up by the Narcotics Police on suspicions of drugs and taken to the office. He testified that when his bag was opened by the police they took out the bottles of Dom Perignon from his bag. He said that he was shocked to see that. He testified that he was told by the sergeant that his urine sample was tested positive for drugs and he was handcuffed and taken to the lock-up at Sepang Police Station. The 2 nd

Claimant testified that it was at this juncture that he was asked to sign the Search List.

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The 2nd Claimant testified that the Narcotics Police gave the bottles to CW.1 when he arrived at police station and that the said bottles were taken from his overnight bag and not his garment bag as the reports say. He testified that the garment bag that he carried could not contain the 3 bottles as he carried other things in it besides his 3 sets of uniform. But he did agree when he was cross-examine that the garment bag could carry the 3 bottles.

It was his evidence when cross-examined that the he did not know of anyone who would want to frame him or 1 st Claimant and plant the bottles in his bag. It was also his evidence that he was not allowed to put questions to CW.3 during the DI. He testified that the investigation by police was still ongoing until today with regards to the police report that the Company had filed against him in respect of the said bottles of Dom Perignon. He testified that he has not been arrested or charged until today in respect of the same.

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Evaluation and Findings The Court opines that misconduct relates to an employee's conduct during working hours. It is behavior that an employer deems inappropriate for an employee. employer may in certain Its relevance is that an after following

circumstances

appropriate procedures dismiss an employee because of his misconduct. Misconduct of an employee it is said is potentially a fair reason for dismissing an individual subject as I said to the employer carrying out the dismissal in a fair manner. Where an employee commits an act of gross misconduct an employer has the right to dismiss the employee without notice. However it

should be noted that gross misconduct does not mean that the employee can be dismissed on the spot as there is still an obligation for the employer to investigate the allegations and carry out any dismissal in accordance with a fair procedure. It is trite that an employer does not have to show an employee has committed the offence beyond all reasonable doubt but there is a threshold that he must reach. In particular the employer must believe that the employee is responsible for the conduct in question; the employer must have reasonable grounds for this

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belief and the employee's rights to have this matter investigated by his employer and to present his side of the story remain. It is also trite that where the employee has done something that is so serious the employment relationship can no longer continue this is then gross misconduct. It is usual to find that it is a particular act that triggers dismissal. The ensuing dismissal will be fair.

Gleaning the facts the existence of the dismissal of the 2 nd Claimant has been established it is now incumbent on the Company to prove that the reason for dismissal was a just reason and effected in accordance with a fair procedure and in terms of the law. The evidence and facts show that the 2 nd Claimant had committed an act of misconduct. Being found in possession of the bottles of Dom Perignon is notionally a violation of an obligation on the part of the 2 nd Claimant as a leading steward of the Company by the conditions of service spelt out in Clause 15, Para 15.10 of Appendix A, Acts of Misconduct of the MAS Disciplinary Procedure.

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In considering whether the dismissal of the 2nd Claimant was fair and with just cause or excuse the Court must consider both the disciplinary offence and the way the Company went about deciding to dismiss the 2 nd Claimant. It must be remembered

that the standard of proof in a dismissal case where dishonesty on the part of the employee is alleged that is required is the the civil standard which is on the balance of probabilities and not the criminal standard. In Ferodo Ltd v. Barnes (1976) ICR 39 where it was held as follows: It must be remembered that in dismissing an employee including a dismissal where the reason is criminal conduct the employer need only satisfy himself at the time of the dismissal there were reasonable grounds for believing that the offence put against the employee was committed. The test is not whether the employee did it but whether the employer acted reasonably in thinking the employee did it and whether the employer acted reasonably in subsequently dismissing him.

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In the case before the Court the 2nd Claimant having been found guilty of the charge was dismissed from his service by the Company. It was obvious from the evidence and the oral

testimonies of the Companys witnesses that the Company's perception was that the Claimant was guilty of the charge leveled against him and therefore the Company was right in dismissing him. The 2nd Claimant contended that did not know how the

bottles got into his bag. It is with regret that this Court, based on the evidence before it, finds that the testimony of the 2 nd Claimant is totally unacceptable as he has not been able to support his averments. The 2 nd Claimant does not deny that the bottles were taken out of his bag. The Court notes that there is a discrepancy in so far as from whether it was from his garment bag or overnight bag that the bottles were taken from. This is a non-issue really as the the 2 nd Claimant does not deny that the bottles were found in his possession by the police sergeant.

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The Court makes reference to the case of K.A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 ILR where the Court of

Appeal held that the correct approach that the Court must take in the adjudication of the issues of this nature before it is not the condition or the type of the material that was taken out, but the taking out without authorization. consideration. immaterial. This should be the relevant

The value of the material taken out would be What is material is that the material was the

Companys property and the Claimant was not authorized to take it out of the Companys premises.

The Court also refers to the case of Menara Pan Gobal Sdn. Bhd. v. Arokianathan Sivapragasam [2006] 2 CLJ 527 a case again by the Court of Appeal which reiterated the principle that the main and only function of the Industrial Court in dealing with a reference under s.20 of the Industrial Relations Act 1967 is to determine whether the misconduct or irregularities complained of by the Company as to the grounds of dismissal were if fact committed by the workman and if so, whether such grounds constitutes just cause or excuse for the dismissal.

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Aligning myself to the judicial pronouncements of the Court of Appeal in aforesaid cases and based on the totality of the evidence before this Court, the Court regrettably takes the view that the Company had established that the 2nd Claimant was in possession of the bottles of Dom Perignon and such an act was a serious misconduct that warrants the punishment of dismissal. The Court opines in that the relationship between the employer and the employee is a fiduciary one. Therefore if the employee does anything incompatible with the due or faithful discharge of his duties to his master the latter has a right to dismiss. As held in the case of United Parcel Service (M) Sdn. Bhd. v. Wan Saadiah Mohd. Ghani (1999) 1 ILR 668: The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him.

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Also the Court, echoing the sentiments of the Division Bench of the Calcutta High Court in the case of Wimco Stramik Union v. Seventh Industrial Tribunal 1987 Lab IC 77 (Cal) (DB), holds that when it is shown that an employee has committed an act of dishonesty it showed that his suitability and reliability to continue in service might be affected by that reason and this would certainly have a bearing on his contract of service and as such the said offence was a good ground for dismissing the workman from service.

On the evidence the Court finds that the Company had conducted a proper and fair investigation and inquiry into the misconduct of the 2nd Claimant. Gleaning the notes of DI that was conducted notwithstanding the absence of the 2 nd Claimant on 15 July 2005 from the said DI the Court finds that the panel had arrived at a fair conclusion based on the evidence before it that is also before the Court. The absence of the 2 nd Claimant does not vitiate the entire proceedings as the 2 nd Claimant was advised by the panel when he made a request for the adjournment of the proceedings on 15 July 2005 on account of

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him not being well to obtain a medical certification from its panel doctor before the panel could accede to his request. The 2 nd

Claimant had failed to do so and stayed away from the DI on 15 July 2005 having submitted a medical certificate from a private doctor. The 2nd Claimant was represented at the DI. Otherwise the Court is satisfied that the Company had complied with the procedural requirements. The 2nd Claimant's Counsel submitted that the DI was terribly flawed but there is no evidence in support of his contention. The Court in any event having perused the

notes that has been duly acknowledged by the 2 nd Claimant himself disagrees with the 2nd Claimant's Counsel's submission.

In Esso Production Malaysia Inc. v. Maimunah Ahmad & Anor [2002] 3 CLJ page 242 it was held by the Court of Appeal that the burden is on the party that made the allegations to satisfy the Court that the charges had been proved before the Claimant/Employee could be condemned. It was held that

material particulars required to be disclosed in the charges and that without those particulars one accused upon the charges would not be able to prepare proper defences to them. The 2 nd

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Claimant's Counsel contended that the charge against the 2 nd Claimant was defective. The Court disagrees with his

submissions and finds on the evidence and facts that the 2 nd Claimant knew at all times after the bottles were found in his possession the case that was against him. Being a leading

steward for 16 years he knew that this was a serious act of misconduct if he was found out and would be a dereliction from his duties. The Court agrees with the Company's Counsel's

contention that the said bottles of Dom Perignon (unconsumed) would have added to the weight of his bag more so if as testified by the Company's 1st witness was taken from his garment bag. Even if the bottles were taken out from his overnight bag as he alleged and he wheeled it the added weight would have been felt or noticed. In the light of the prevailing facts and evidence the Court is unable to accept the 2nd Claimant's evidence.

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On the totality of the facts and evidence before it and having regard to section 30(5) of the Industrial Relations Act 1967 the Court finds that the dismissal of the 2nd Claimant was with just cause or excuse. On the evidence and facts the Court finds that it cannot intervene and declares the 2 nd Claimant's dismissal to be without just cause or excuse as the evidence adduced by the Company was rather cogent and compelling what with the bottles being taken out from the 2 nd Claimant's bag which fact the 2 nd Claimant does not deny. This is in itself is a reasonable ground for the Company concluding that the 2 nd Claimant was guilty of the misconduct alleged against him. Accordingly the Claimant's claim against the Company is hereby dismissed.

HANDED DOWN AND DATED THIS 7 DAY OF JANUARY 2013 Signed ( DATO MARY SHAKILA G. AZARIAH ) CHAIRMAN INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR

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