INDUSTRIAL COURT OF MALAYSIACASE NO: 22(27)(22)/4-2477/06 & 27/4-633/07

BETWEEN PUAN ROS SAZILLA BINTI RASHID

ENCIK ANTHONY GERARD JOHNSONAND

SISTEM PENERBANGAN MALAYSIA BHD

AWARD NO: 50 OF 2013

BEFORE : Y.A. DATO’ MARY SHAKILA G. AZARIAH- CHAIRMAN (Sitting Alone)

VENUE : Industrial Court, Kuala Lumpur DATE OF : 28 August 2006 REFERENCEDATE OF MENTION : 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 2011and 9 January 2012

DATE OF HEARING : 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

DATE OF ORAL : 23 November 2012SUBMISSIONS REPRESENTATION : Encik Gerald John Pereira of Messrs.

G. Pereira & Associates, Counsel for ClaimantEncik H.C. Yong of Messrs. Zaid Ibrahim& Co, Counsel for Company

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.

( 1 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd

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

( 2 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd Claimant and the

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

Claimant.

( 3 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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

employee’s 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 employer’s 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”.

( 4 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

The Court then considers if the answer is in the affirmative

in that there was a dismissal is that whether the Company’s

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 2nd Claimant committed

the acts of misconduct for which they had been dismissed for.

( 5 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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”.

( 6 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd

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

( 7 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd 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

( 8 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd 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 2nd

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

( 9 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

police station as it is in their custody. CW.2 agreed that the 2nd

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

( 10 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd 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.

( 11 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd

Claimant testified that it was at this juncture that he was asked

to sign the Search List.

( 12 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 1st 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.

( 13 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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. Its relevance is that an

employer may in certain circumstances after following

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

( 14 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd

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 2nd 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 2nd 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.

( 15 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd 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”.

( 16 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 Company’s 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 2nd

Claimant is totally unacceptable as he has not been able to

support his averments. The 2nd 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 2nd Claimant does not deny that the

bottles were found in his possession by the police sergeant.

( 17 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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. This should be the relevant

consideration. The value of the material taken out would be

immaterial. What is material is that the material was the

Company’s property and the Claimant was not authorized to take

it out of the Company’s 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.

( 18 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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…”.

( 19 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd 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 2nd Claimant

does not vitiate the entire proceedings as the 2nd Claimant was

advised by the panel when he made a request for the

adjournment of the proceedings on 15 July 2005 on account of

( 20 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

him not being well to obtain a medical certification from its panel

doctor before the panel could accede to his request. The 2nd

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 2nd 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 2nd

( 21 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

Claimant's Counsel contended that the charge against the 2nd

Claimant was defective. The Court disagrees with his

submissions and finds on the evidence and facts that the 2nd

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.

( 22 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)

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 2nd 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 2nd Claimant's bag which fact the 2nd

Claimant does not deny. This is in itself is a reasonable ground

for the Company concluding that the 2nd 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, MALAYSIAKUALA LUMPUR

( 23 ) 22( 27)(22)/4-2477/06 & 27/4-633/07(2)