INDUSTRIAL COURT OF MALAYSIA

CASE NO: 26(18)/4-2404/2004

BETWEEN

SYARIKAT MALAYSIA WOOD INDUSTRIES SDN BHD

AND

KANAPADDY GOPAL

AWARD NO: 897 OF 2009

Before : AHMAD TERRIRUDIN BIN MOHD SALLEH CHAIRMAN (Sitting Alone)

Venue : Industrial Court Malaysia, Kuala Lumpur

Date of Reference : 18.08.2004

Dates of Mention : 08.03.2005, 05.04.2005, 08.05.2006, 08.09.2006, 16.06.2006 & 17.07.2006

Dates of Hearing : 08 - 09.06.2006 & 02 - 03.08.2007

Representation : For the Claimant - S Sureiander; M/s S Sureiander & Associates

For the Company - Shalani Devi; Persekutuan Majikan Majikan Malaysia

1

Reference:

The reference of the Honourable Minister of Human Resources, Malaysia is

regarding the dismissal of Encik Kanapaddy a/l Gopal (“the claimants”) by

Syarikat Malaysia Wood Industries Sdn Bhd (“the company”) on 27 June

2002.

AWARD

(NO. 897 OF 2009)

The parties to the dispute are Kanapaddy A/L Gopal (“the claimant”) and

Syarikat Malaysia Wood Industries Sdn Bhd (“the company”). The dispute

between the parties arose out of the dismissal of the claimant by the

company on 27 June 2002.

Brief Facts of The Case

The claimant joined the company as a General Worker on 15 February

1978. However, vide a letter dated 10 June 2002 the claimant was

suspended from employment with half pay and was asked to attend a

Domestic Inquiry (DI) in respect of four misconducts alleged to have been

committed by the claimant on 6 June 2002. The said alleged misconducts

are as follows (page 10 of COB):

2

“l0hb Jun 2002

Nama : Kanapaaddy a/l Gopal,

Index no : 490

Seksyen : LP Rough-Mill

Encik Kanapaddy,

PER: PENGANTUNGAN KERJA

Anda telah di tuduh melakukan kesalahan-kesalahan seperti berikut pada 6-6-2002 jam lebih

kurang 3-00 petang.

1. Memandu forklift secara laju dan merbahaya menyebabkan berlakunya pergaduhan dan bertumbuk dengan rakan sekerja anda.

2. Bergaduh dan bertumbuk dalam kawasan kilang.

3. Enggan menerima arahan yang diberi mengikut dengan kepentingan disiplin dan kemudian berkelakuan yang berkemungkinan membahayakan nyawa atau keselamatan seseorang.

4. Mengugut untuk membunuh rakan sekerja dan pekerja kilang.

Olih kerana perbuatan tersebut diatas adalah salah di segi undang-undang dan peraturan syarikat, anda di kehendaki memberi sebab-sebab secara bertulis mengapa tindakan tatatertib tidak bolih diambil terhadap anda selewatnya empat belas (14) hari dari tarikh surat ini di keluarkan.

Dengan ini juga dimaklumkan bahawa perkhidmatan anda adalah digantung dengan separuh gaji mulai 10-6-2002 sehingga 23-6-2002 untuk tujuan diatas.

Anda selanjutnya di kehendaki datang untuk perbicaraan dalaman iaitu Domestic Enquiry di pejabat ini pada 24-6-2002 jam 9.30 pagi.

Sekian, harap maklum.

3

Yang benar,

FOR SYARIKAT MALAYSIA WOOD sila akui penerimaan surat ini INDUSTRIES SDN BERHAD

t.t ............................. t.t PERSONNEL DEPARTMENT Kanapaddy a/l Gopal

Ind no: 490 Lp R/Mill s.k. Fail no : 490 SL Lee.”.

Vide a letter dated 26 June 2002 the claimant’s employment was terminated effective from 27 June 2002.

The Issues

The issues for determination before this court are as follows:

(a) Whether the company had proved its case against the claimant on the charges for which it charged the claimant; and

(b) Whether the dismissal of the claimant was with just cause or excuse.

4

The Law

In Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129, Raja Azlan

Shah G (Malaya) (as he then was), at page 136, laid down the following

principle:

“Where representat ions are made and are referred to the Industr ial

Court for inquiry, i t is the duty of the court to determine whether

the termination or dismissal is with or without just cause or

excuse. I f the employer chooses to give a reason for the action taken

by him, the duty of the Industr ial Court wi l l be to enquire whether

the excuse or reason has or has not been made out. I f i t f inds as a

fact that i t has not been proved, then the inevitable conclusion must

be that the termination or dismissal was without cause or excuse.

The proper enquiry of the court is to reason advanced by it and that

court or the High Court cannot go into another reason not rel ied on

by the employer or f ind one for i t .” .

The above principle was followed in the case of Milan Auto Sdn Bhd v.

Wong She Yen [1995] 4 CLJ 449.

The burden of proof to justify dismissal lies on the employer for he knows

why he in fact dismissed the employee (see: Union Construction Allied

Trades Technicians v. Brain [1981] 1 ILR 224). The employee must prove

5

the employee guilty, and it is not the employee who must prove himself

not guilty (see: Stamford Executive Centre v. Puan Dharsini Ganeson

[1986] 1 ILR 101 (Award No. 263 of 1985). To discharge his burden of

proof, the employer must adduce cogent and convincing evidence, whether

oral or documentary, to prove the facts and circumstances which he

contends just cause or excuse for dismissing the employer. The standard of

proof is on a balance of probabilities (see: Blue Apparels (M) Sdn. Bhd. v.

Vickneswaran Ramanathan [1997] 3 ILR 803 (Award No. 552 of 1997).

The legal position here is also well-stated as per Halsbury’s Laws of

Malaysia, vol. 7 at pp. 120.090-120.0921, as follows:

“The burden of proving that the dismissal of a workman is with just

cause or excuse is on the employer. The standard of proof is on the

balance of probabilities. The employer must convince the Court that

the punishment was proportionate to the nature and quality of the

alleged wrongdoing ....

The following reasons can constitute just cause or excuse for dismissal:

(1)

(2)

(3) misconduct by the employee;

(4)

6

‘misconduct’ connotes to conduct that is inconsistent with the

fulfillment of the express or impl ied conditions of service. Some

examples of types of misconduct are ... , wilfully disobeying lawful

and reasonable orders or precedents, ... unprofessional conduct and

breach of company policy ... , using violence on superior or co-

employee ....

“Misconduct” refers to conduct so seriously in breach of the accepted

practice that, by standards of fairness and justice, the employer should not

be bound to continue the employment (see Syarikat Kenderaan Melayu

Kelantan Sdn. Bhd. v. Transport Workers Union[1990] 1 MLJ 5).

Company’s Case

The Company called 8 witnesses. COW1 is Ong Pooy Mooi who was the

Human Resource Officer at the material time. She testified through her

witness statement (COWS-1) that after conducting the investigation the

company suspended the claimant and one Chua Chin Huat (COW5). In this

incident, COW1 said that COW5 was only charged for fighting in the

factory premise and the claimant was charged with 4 charges as stated in

page 10 of COB. Mohd Hassan b. Rejab is COW2. As in his witness

statement (COWS-2), COW2 said as a glue supplier to the company he

knew the claimant and was at the factory about 3 to 4 times a week. He

further stated that he knew about the misunderstanding between the

claimant and COW5. On that day he said while he was in the production

7

area suddenly he heard a loud noise from the forklift and when he turned

to his left he saw fire sparks caused by the fork being dropped from the

said forklift. He further said that the forklift which was driven by the

claimant was following COW5 from the back and after overtaking COW5

the forklift at a high speed left the place and the distance between the

claimant and COW5 at that time was about 5 ft. Then, he said COW5 came

to see him and complained about the conduct of the claimant. COW2

clarified that the forklift was following COW5 for about 10 ft with its fork

grazing the floor. COW3 is Ragunathan a/l Rengasamy who was the

technician of the company stated in his witness statement (COWS-3) that

on 6 June 2002 at about 2.45 pm he suddenly heard somebody was

shouting that there was a fight in the Production Floor (Block D) and he

saw the Operation Manager one Lee Soo Lee (COW6) near the workshop

was asking for his help to stop the fight. He then said upon seeing the

fighting between the claimant and COW5 he pulled COW5 to the workshop

and later he knew that COW6 pulled the claimant to the shelter side of

Block D. According to him a few minutes later he saw the claimant was

holding a long piece of solid iron and walking towards COW5. He further

stated that he ran towards the claimant and upon seeing that the claimant

was holding 2 ft long planner knife he snatched the knife from him and

tried to calm him down. The company’s fourth witness is Zurimi bin Abd

Hadi (COW4) through his witness statement (COWS-4) supported the

evidence of COW2 and further stated that about 30 ft from where he was

standing he saw the claimant was talking to COW5 and saw the claimant

went into the production and came out angrily with a cutter measuring

8

about 2 ft long and was going towards the Maintenance area. After that

he saw COW3 was trying to stop the claimant. COW5 who was the

Maintenance Supervisor at the material time in his witness statement

(COWS-5) related his version of the incident on 6 June 2002 that at about

2.45 pm after repairing the machines in Block D Lamination Line he

walked to the workshop in the maintenance section. He further stated that

he approached COW2 and at that time he claimed that the claimant was

driving the forklift at a high speed and in a dangerous manner. COW5

further claimed that the claimant drove the forklift close to him and

dropped the fork to the ground causing sparks and loud grinding sound

that startled the other workers. He alleged that he was shocked and

frightened. COW5 then proceeded to the workshop and telephone COW6

to inform him about the incident. After that COW5 said he went back to

Laminating Line to collect his test pen and on his back to the work he

alleged the claimant who was driving the forklift reversed and blocked his

path. He further alleged that the claimant refused to move his vehicle to let

him pass through. COW5 waited for the claimant to move but instead he

said the claimant looked at him angrily. The claimant also he said stared at

him and showed his leg and wanted to kick him. As such, COW5 said he

pulled the claimant leg and there was a scuffle between them. The

claimant according to COW5 jumped from the forklift and tried to strangle

him but he managed to free himself. Upon freeing himself, the claimant

said he hurriedly walked to the workshop but suddenly he saw the claimant

was pulling a piece of wood from a rejected tied bundle. COW5 said he

was frightened that the claimant was going to hit him with it so he rushed

9

towards him and tried to take it away and at the time they were grappling

with each other. He agreed that at that time COW6 and COW3 came to the

scene and separated them but a few moments later he saw the claimant

with a 2 ft long planner knife was heading towards him and at the same

time was shouting “Chua you keluar, saya mahu bunuh hang.”. In his

witness statement COW5 agreed that COW3 ran towards the claimant and

snatched the knife from hand of the claimant. COW6 in his witness

statement (COWS-6) confirmed that on the day of the incident he received

a phone call from COW5 informing that the claimant was driving the forklift

at a fast speed and also dangerously as if the claimant had the intention to

injure him. After the phone call COW6 then said he went down to Block D

which is in the Production area and while he was walking he said another

employee a production supervisor yelled that there was a fight at the back

of the production floor. COW6 said he went to the scene of the

commotion and saw the claimant was fighting with COW5. Then COW6

yelled and called COW5 to help him to stop the fight: by pulling the

claimant to the shelter next to the tank while COW5 was pulled by COW3

to the maintenance sector. However, he said when he pulled the claimant

he shouted angrily and told that he was punched by COW5. The claimant

also told COW5 thought he purposely blocked his way but actually because

the forklift has three gears so it will take sometime to move and he has to

press the pedal hard before the forklift could move. In his witness

statement also COW6 did mention that the claimant at: that time also

uttered that this time he will not settle the problem between them and he

yelled that one of them have to die. After that while he was on his way to

10

talk to COW5 at the maintenance department, COW6 heard someone was

screaming “Kana datang dengan pisau” and when turned he saw the

claimant was walking towards the maintenance office holding a 2ft planner

knife. However, COW6 confirmed that the claimant did not attack COW5

but while walking towards COW5 the claimant shouted “Chua keluar

sekarang sebab saya nak bunuh awak”. Then COW6 stated that he pushed

the claimant away while COW3 snatched the planner knife from the hand

of the claimant. While pulling the claimant to Block D COW6 alleged that

the claimant continue to scream that he will kill COW5 today. He also said

that he will wait for COW5 until 4.30 pm. Even after the commotion, COW6

claimed that the claimant reminded him of the coke bottle story where

COW6 said two weeks ago the claimant told him that he could stab COW5

with a broken Coke bottle anytime and there are 5 ways he could kill the

claimant. Lim Eng Guan (COW7) who was the claimant’s colleague in his

with witness statement (COWS-7) confirmed that on 6 June 2002 there

was a fight between COW5 and the claimant and he also saw COW6 was

trying separate them to stop the fighting. He further stated that after

COW5 went back to the workshop he saw the claimant suddenly came to

the outside of the workshop with a knife and at that time the claimant was

shouting for COW5 to come back. COW7 then asked COW5 not to come

out from the room. COW8 is the Cheng Eng was the Senior Technician at

the material time. In his witness statement (COWS-8) he claimed that

when the incident took place he was in his workshop. He further stated

that he heard a noise and shouts so he went out and saw the claimant

11

standing with COW5. He further explained that at the material time the

claimant was shouting loudly and was holding a blade about 2 ft in length.

In her written submission, representative for the company submits that the

claimant gave false evidence and there were also inconsistencies in his

evidence especially the evidence in the court and his reply to the show

cause letter. It was further submitted that the claimant did admit in court

that his reply letter to the show cause after the incident is the correct

version.

Claimant’s Case

In this case, the claimant had another witness that is Murugiah a/l Kuppu.

In his written witness statement (CLWS-1), he said that at the material

time he was the forklift driver for the company. He further stated that on

the day of incident he was not working but he said generally the speed of

the said forklift in the factory is about 5 km/ph. He denied that the fork of

the forklift can be dropped suddenly. This is because it uses hydraulic

system. It is also in his witness statement that the said forklift produced

loud engine sound. This is because since the forklift is heavy you have to

press hard the oil.

In his witness statement (CLWS-2), the claimant testified that with regard

to the first charge he denied that he was driving the forklift at a high

12

speed. This is because at the material time the forklift was carrying 4 tons

of weight and cannot be driven fast. He further explained that the

maximum speed of the forklift was about 10 km/ph only and the forklift

path was also used by the employees of the company. The path is also

narrow with things of both sides. Pertaining to the dangerous driving, the

claimant said the forklift’s brake was not so effective and in order to stop

or to slow the forklift it is normal to drop the fork of the forklift and this will

produce a loud sound. He further said that the forklift did not have any

horn. According to the claimant to move the forklift you will need to press

hard the oil and this will produce a loud sound. This is because the forklift

was heavy. On the day of the incident, the claimant admitted that he

dropped the fork of the forklift to slow down the forklift because he saw

COW5 was entering into his path and to give him warning that he was

coming from his back. The claimant denied that he did intend to surprise

COW5 or even to cause panic to him. At that time he said that the speed

of the forklift was about 5 km/ph and he also did not agree that the fork of

the forklift can be dropped suddenly. This is because the fork can only be

dropped slowly using hydraulic system and generally when the forklift is

driven the said fork will be dropped nearing to the floor.

As for the second charge, the claimant said at the material time he was

driving the forklift on the reverse side and while he was looking back he

saw COW5 suddenly appeared so he stopped the forklift immediately and

gave way to him. However, the claimant claimed that COW5 suddenly

came to him and punched and pulled him from the forklift, As a result, the

13

claimant claimed that when he was about to fall down from the forklift he

had to hold on to COW5 and during this scuffle he was kicked, punched

and stepped by him. The claimant admitted that for self defence purposes

during the scuffle he did punch COW5. The claimant did not agree that he

took a piece of wood to hit COW5. He claimed that at the time a woman

employee by the name of Haslinda did witness the said incident.

As for the third charge, his version in his witness statement was that after

the fight was separated by COW6 and COW3 he was brought near to the

water tank where he had his drink and sat there for about 15 minutes.

After the situation back to normal the claimant said he returned to his

forklift to continue his work but he found out that the p l a n n e r k n i f e t h a t

w a s used to cut the rope for the bundle was missing from the forklift so he

went to take the planner knife and returned to his forklift. However, on his

way back to his forklift COW3 came to him and hold him. At that time he

said COW6 uttered the word “relax” to him and COW3 took the knife from

him. The claimant alleged that he did not resist when COW3 took the knife

from him except to request COW3 to let him go. At that time also he

realised that they thought that he took the knife to threat COW5. The

claimant in his witness statement denied that he did intend to kill or to

cause hurt to COW5. To support his contention, the claimant said at that

time he does not know the whereabout of COW5.The claimant also

alleged that the said incident was planned earlier. This is because he was

puzzled with the presence of COW6 during the fighting. Further, according

to him COW6 had threatened to sack him few times. The claimant strongly

14

denied that he said he will stab COWS with the coke bottle, This is because

the said coke bottle was a plastic bottle and it is not logic to stab someone

with a plastic bottle.

In his submission, counsel for the claimant submits that there is no direct

evidence to support that the claimant at the material time was the driving

the forklift in a dangerous manner. This is because both COW2 and COW5

did not see how the claimant drove the said forklift and they only heard

the sound of the fork being dropped from the forklift.

As for the second charge, the counsel submits that the claimant was

acting in self defence and COW5 in his evidence did admi t t ha t he

started the fight. The counsel also urged the court to incoke section 114

(g) of the Evidence Act 1950 against the company for not calling Haslinda.

This is because the claimant alleged that she witness she said incident but

the company did not produce her in court. Regarding the third charge, it is

the submission by the counsel for the claimant that if it is true that the

claimant did try to kill COW5 why did surrender the planner knife without

any resistance? The counsel also did not agree that the claimant had

threatened to kill COW5 since COW3’s evidence is doubtful. This because

at first during cross-examination COW3 agreed that the claimant did not

ut ter those words when he took the knife from him but in re-examination

he changed his mind and confirmed that the claimant did try to kill COW5.

15

Evaluation and Findings

The court will now deal the each of the charge.

Charge No. 1

The misconduct in this charge centers around the alleged speeding and

dangerous driving of the forklift by the claimant. After perusing the

evidence as a whole and testimonies of the witnesses in particular COW5,

COW2 and COW4, the court finds that on the balance of probabilities the

company has proved that the claimant did commit the said misconduct.

This is because firstly, the evidence of COW5 is corroborated by COW2

and COW4 who saw what actually happened. Secondly, the court finds that

their written testimonies regarding the incident are convincing, consistent

and not contradicting with each other. Therefore, the court accepts that

the company’s version that is on the day of the incident the claimant was

driving the forklift at a high speed in a dangerous manner, This is because

the claimant drove the forklift closed to COW5 and dropped the fork which

caused fire spark and loud grinding sound. Further, from the evidence it is

also stated that that after overtaking COW5 the claimant drove the forklift

at a high speed. Thirdly, the court believes the evidence of COW2 since at

the material time he was not the employee of the company he was an

independent witness. In court’s view he has no vested interest in this

matter. There is no reason for him to lie. Fourthly, the court finds that the

claimant had not succeeded in refuting the company’s evidence. The

claimant did not deny that on that day in question he drove the said

16

forklift. Although the claimant claimed that the fork was dropped because

to warn COW5 since the forklift did not have any horn but at the same

time the claimant also said the forklift produced a loud engine sound. As

such, the court agrees with the representative of the company that if the

engine of the forklift is loud there is no reason for the claimant to further

drop the fork to warn COW5. To further support this finding, the court also

finds that the claimant during cross-examination agreed that the forklift did

produce a loud engine sound. The court also accepts that the claimant did

intend to harm the COW5 because COW2 said after the claimant overtook

COW5 the fork was pushed up. Fifthly, in this case also, it is difficult to

believe the claimant’s testimony because in his written reply to the show

cause (pages 11 and 12 of COB) he said he dropped the fork the alert

COW5 but during cross-examination twice he denied that the fork was

dropped to warn COW5.

Once again, based on the above, the court on the balance of probabilities

finds the company has proved the fact that claimant did drive the forklift at

a high speed and in a dangerous manner.

Charges No: 2, 3 and 4

As for this charge it is pertinent to note that it falls upon the court to

inquire into all aspects of the fight. In Steelform Industries Malaysia Sdn.

Bhd. v. Foo Fook Ban [1991] 1 ILR 442 (Award No. 127 of 1991) the

learned chairman observed:

17

“Material facts and relevant evidence in any case of assault or

fighting should include the causes, reasons and motives that led to

the fight to determine the various degrees of culpability of the

persons involved in the fight, and if there is any justification to

exonerate the innocent victim.”.

In this case, after evaluating both the evidence of the company through

the evidence of COW 5, 6 and COW 3 and the evidence of the claimant, on

the balance of probability, this court finds it difficult to accept that COW 2

and COW 6 would concoct a story to frame up the claimant. This is

because, COW6 and COW2 did not play any part in the fight and both of

them in their written statements consistently said they saw the fight and

were there to separate COW5 and the claimant. Now the question is, who

started the fight? The court notes that none of the other witnesses

actually saw how the incident started and they only came into the picture

after the fight had actually started. As such, it is from the two different

versions that the court will have to decipher the truth of the story. In this

regard, the court after scrutinizing thoroughly the evidence of the both

parties doubts the evidence of the claimant. This is because in his written

statement evidence he said while driving the forklift on the reverse side he

saw COW5 so he immediately stop his vehicle to give way to COW5 but

C OW5 immediately came and punched him. However in his written reply

to the show cause letter the claimant did not mention about stopping the

forklift to give way to COW5. The court also finds that it is not logic to

claim that COW5 punched the claimant on the forehead. This is because if

18

it is true that the claimant stopped the forklift to give way to COW5 surely

he had COW5 in his full view and would seen the COW5’s action or

conduct. It is the opinion of the court also that even if the claimant claimed

that COW5 did strike a blow on his forehead his immediate reaction at the

material time was to avoid the alleged punched since he had COW5 in his

view. Further, in his written evidence the claimant said the punched had

caused him to fall down from the forklift but in his reply to the show cause

letter he wrote that after being punched by COW5 he alighted from the

forklift.

Based on the above, it is the finding of this court that the above

discrepancies in the claimant’s testimony are major and the court is

satisfied that the claimant is not a truthful witness. As such his evidence

has to be treated with great caution. On the other hand, the court finds

that the written evidence of COW5 is consistent with his statement given

during the investigation carried out by the company (page 5 of COB).

Further, it is relevant to note that this written statement was given soon

after the incident so the chances of fabrication is minimal.

In this case also the claimant’s counsel also submits that Haslinda should

be called by the company as a witness to prove that it was not the

claimant who started the fight. The counsel for the claimant cited section

114 (g) of the Evidence Act 1950 to be drawn an adverse inference against

the company. In court’s view the presence of Haslinda could only testify to

19

the same facts which had been sufficiently established by the company’s

evidence.

Regarding the presumption under section 114(g) of the Evidence Act 1950,

textbook Evidence - Practice and Procedure, 2nd. Edition by Augustine Paul

where the learned author has stated at p. 785 as follows:

“The presumption will not arise for not calling a witness if there

is sufficient other evidence in support of the prosecution.”

There is also no question of withholding or suppression of material

evidence by the company to attract an adverse inference to be drawn. In

this regard Seah SCJ in the Supreme Court case of Munusamy v. Public

Prosecutor [1987] CLJ 221 (Rep); [1987] 1 CLJ 250; [1987] 1 MLJ 492

held:-

“It is essential to appreciate the scope of section 114(g) lest it

be carried too far outside its limit. Adverse inference under that

illustration can only be drawn if there is withholding or

suppression of evidence and not merely on account of failure to

obtain evidence. It may be drawn from withholding not just any

document, but material document by a party in his possession,

or for non-production of not just any witness but an important

and material witness to the case.”

In Sarkar’s ‘Law of Evidence’ 15th Edition 1999 at pa. 1678, it is stated:-

20

“If a party in possession of the best evidence which would

throw light in controversy withholds it, the court can draw an

adverse inference against him notwithstanding that onus of

proof does not lie on him. [National Insurance Co, Lid v.

Kusum Devi Mishra, 1998 AIHC 3751, 3753].”

(see also: Bax Global (Malaysia) Sdn Bhd v. Saravanan Rajagopal [2007]

3 ILR 434 (Award No. 1294 of 2007))

In EON Bank Bhd. v. Hotel Flamingo Sdn Bhd [2005] 5 CLJ 253 at p. 259,

Y.A. Low Hop Bing J stated the following on the onus of proof :-

“On the other hand, the onus of proof relates to the

responsibility of adducing evidence in order to discharge the

burden of proof. The onus as opposed to burden is not stable

and constantly shifts during the trial from one side to the other

according to the scale of evidence and other preponderates.

Such shifting is one continuous process in the evaluation of

evidence. According to ss. 102 and 103 of the Evidence Act, if

the party with whom the onus lies whether initially or

Subsequently as a result of its shifting does not give any or

further evidence or gives evidence which is not sufficient, such

party must fail: per Salleh Abas FJ. (later LP) in delivering the

judgment of the Federal Court in International Times, supra at

p. 87.”

21

(see also: International Times & Ors v. Leong Ho Yuen [1980]

2 MLJ. 86 FC)

In this case it may be observed that since the claimant has denied that all

the allegation being put forward by the company against him the onus is

on him to ‘give any or further evidence or give evidence which is not

sufficient’ . Therefore, if at all an adverse inference under section 114(g) is

to be drawn, it indeed works against the claimant. Notwithstanding this,

this Court as a ‘Court of arbitration1 will abide by the principle laid down by the

Court of Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty

a/l Sanguni Nair & Anor [2002] 3 MLJ 129 where it was held, inter alia:-

“Held. (1) The Industrial Court should not be burdened with the

technicalities regarding the standard of proof, the rules of

evidence and procedure that are applied in the court of law.

The Industrial Court should be allowed to conduct its

proceeding as a ‘court of arbitration’, and be more flexible in

arriving at its decision, so long as it gives special regard to

substantiate merits and decide a case in accordance with equity

and good conscience.

Based on the abovementioned of the evidence adduced the court is of the

view that the company on the balance of probabilities had succeeded in

proving the 2nd charge against the claimant.

22

As regards to the charges no.3 and 4, the claimant claimed that after the

scuffle he did seat at the place he was brought to and came back to work

only after 15 minutes. Pertaining to the planner knife the claimant told the

court that after returning to the forklift he found out that the planner knife

which he normally used to cut the rope for the bundle was not there so he

went to the place where the said knife was normally kept and took.

However, he claimed that on the way back to his forklift COW3 came to

him and took the knife and he did not resist. The court after carefully

weighing the evidence tendered in this case finds that claimant’s version

cannot be the truth. This is because the court notes that COW2 and COW7

who were not involved in the incident also consistently agreed with COW3

and COW6 said they saw the claimant walking towards the maintenance

office holding a 2 ft long planner knife and shouted at COW5 to come out

from his workshop. As such, the court finds that the claimant had

disobeyed the instruction given by COW6 and went to commit the

threatening conduct against his fellow worker.

Thus, in light of the above the court finds on the balance of probabilities

that the third and fourth charges against the claimant are also proven.

The next issue to consider is whether the claimant’s dismissal was with or

without just cause or excuse. The court is also of the view that an assault

on a fellow employee is a serious misconduct. In Cik Tan Swee Gek v. FE

Zuellig (M) Sdn Bhd [1980] MLLR 329 the court said as follows:

23

“There are a number of decided cases which held that a single

incident of on offence of assault could justify a harsh penalty of

dismissal. In Fermlinson v. L.M.S. Rhy [1944] 1. All ER 537, the

Court of Appeal held that the employer was justified in dismissing a

worker summarily for assaulting a fellow worker “.

The court further finds that the company was no longer repose the

necessary trust and confidence in the claimant to carry out his duties and

responsibilities in a faithful and diligent manner with the company.

For the above considerations, this court holds that the company had

dismissed the claimant with just cause and excused.

Accordingly, the claimant’s claim is dismissed.

HANDED DOWN AND DATED THIS 23 JULY 2009

(AHMAD TERRIRMDIN BIN MOHD SALLEH) CHAIRMAN

INDUSTRIAL COURT

24