INDUSTRIAL COURT MALAYSIA
CASE NO. 17/4 – 1246/07
BETWEEN
ENCIK PLANK HEE
AND
F & N COCA-COLA (MALAYSIA) SDN. BHD.
AWARD NO. 812/2009
BEFORE : Y.A. TUAN P. IRUTHAYARAJ A/L D PAPPUSAMY
Chairman (Sitting alone)
VENUE : Mahkamah Perusahaan Malaysia
DATE OF REFERENCE: 03.05.2007
DATE OF HEARING: 09.04.2008; 10.04.2008; 30.07.2008; 04.08.2008;
05.08.2008; 25.09.2008; 26.09.2008
REPRESENTATION: Mr. Tsen Shoon Hin @ Edward
(Industrial Relations Officer) from
(Industrial Relations Officer) from
Sabah Commercial Employees’ Union
represented the Claimant.
represented the Claimant.
Ms. Claudia Anne Lopez and
Mr. Jimmy Y.C. Chang
of Messrs J. Marimuttu & Partners
represented the Respondent.
Mr. Jimmy Y.C. Chang
of Messrs J. Marimuttu & Partners
represented the Respondent.
REFERENCE:
This is reference by the Honourable Minister of Human Resources under Section 20(3) of the Industrial Relations Act 1967 for an award in respect of a dispute arising out of the dismissal of ENCIK PLANK HEE (hereinafter referred to as “the Claimant”) by F & N COCA-COLA (MALAYSIA
The credibility issue pertaining to COW-2, COW-3 and COW-5 in particular.
Besides the views expressed by this Court on other issues it is rather relevant and pertinent for me to express my views on the behaviour, credibility and demeanor of some of the Company witnesses. In this regard I shall express my views on the demeanor, credibility and responses of COW-3, COW-2 and COW-5 (“credibility issue”) in particular which are as follows:
(i) It was clearly evident that COW-3 the Logistic and Distribution Manager and COW-5 the Company’s Human Resource Manager never interrogated the Claimant when they conducted their investigation. Hence, the so called investigation is a biased one. In all probability COW-3 had a possible motive in trying to get rid of the Claimant since the Claimant had contented that he had knowledge of COW-3’s constant abusing of his position in disposing of all Company’s re-cycled of empty cans for COW-3 personal gain. This allegation by the Claimant of COW-3 was never challenged by the Company. COW-3’s movie became more prominent when he testified that he sensed something was amiss when he saw the Claimant merely putting his hand around the shoulder of COW-2. It was COW-3 who reported this matter to COW-5. As to whether such a testimony has any substantive bearing on the said Charge was never challenged by the Company.
(ii) COW-5 is not a credible witness because firstly he testified that COW-2 refused to attend
the D.I. as the Company had no power to compel him to do so but the truth of the matter is that COW-2 was not aware of the D.I. in the first place. Secondly, COW-5 even lied in Court when he stated that there was no illegal 4D activity operated in the Company when COW-2 himself admitted that he did operate such illegal activity in the premises.
As I had stated earlier COW-2’s evidence is not credible for the reasons stated earlier.
In my view the alleged evidence in so far as the other and credibility sues are concerned the Court is unable to revive any probative value from both due to their uncorroborated or shallow evidence even if the Court were to consider them for the sake of completeness.
CONCLUSION
After having considered the evidence in its totality, based upon equity and good conscience as well as substantial merits of the case the Court holds the view that Claimant’s dismissal is without just cause or excuse.
REMEDY
The Court has examined the industrial relations climate that is prevailing in the Company during the course of the trial is of the view that it is not conducive for the Claimant to be reinstated. In the circumstances, the Claimant instead will be awarded compensation under 2 heads, namely, back wages and compensation in lieu of reinstatement.
Back Wages
If find that this is an appropriate case to apply the Industrial Court Practice Note 1 of 1987 and maximize back wages to 24 months. The payment of back wages may be subject to scaling down for definite reasons. The heads under which such scaling down may be effected are contributory conduct of the part of the Claimant, gainful employment after dismissal and delay in the hearing of the trial.
Contributory Conduct
In my view based upon the facts of this case I am unable to make any firm finding of contributory conduct of the part of the Claimant. Hence, there is no scaling down under this head.
There is some evidence that the Claimant was gainfully employed at Eignretep (M) Sdn. Bhd. from May 2006 until March 2008 as a store worker at a salary of RM730.00 per month. In line with the principle of law as laid down by the Federal Court in Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd. (Sabah) & Anor [2001] 3 CLJ841, this Court will take into account the Claimant’s post dismissal employment and earnings in assessing the quantum of award of back wages to the Claimant. In the case a sum of 20% will be deducted for post dismissal earnings.
Delay
In my view neither party occasioned any delay with the hearing of this reference nor were there any unwarranted delays by the Court or the Ministry of Human Resources. Hence, there is no scaling down under this head.
The Court therefore orders as follows:
(i) Back wages is limited to 24 months:
RM2,098.00 per month x 24 months = RM50,352.00
Less 20% for gainful employment RM10,070.40
= RM40,281.60
Add
(ii) Compensation in lieu of reinstatement of one month’s salary for each completed
year of service (1983 till 06.01.2006) which is 22 years in total.
RM2,098.00 x 22 months = RM46,156.00
RM40,281.60
Total = RM86,437.60
==========
This Court finds that the award in the sum of RM86,437.60 is fair and reasonable in the circumstances of this case. The Company is therefore ordered to pay the Claimant vide a cheque made in his name the sum of Ringgit Malaysia Union .
HANDED DOWN AND DATED THIS 7th DAY OF JULY 2009.
(Y.A. P IRUTHAYARAJ A/L D PAPPUSAMY)
PENGERUSI
MAHKAMAH PERUSAHAAN MALAYSIA
CAWANGAN SABAH
