INDUSTRIAL COURT OF MALAYSIA

CASE NO: 27/3-43/10

BETWEEN

KESATUAN PENCANTUMAN PEKERJA-PEKERJATENAGA NASIONAL BERHAD

ANDTENAGA NASIONAL BERHAD

AWARD NO: 1654 OF 2012

CORAM: Y.A. DATO’ MARY SHAKILA G. AZARIAH - CHAIRMAN ENCIK ABD. RAHMAN @ MARIDAN BIN RAMLI - EMPLOYERS' PANEL ENCIK RAJASEHGARAN A/L RAJAMANIKAM - EMPLOYEES' PANEL

VENUE : Industrial Court, Kuala Lumpur

DATE OF : 24 December 2009 REFERENCE

DATE OF MENTION : 10 February 2010, 19 April 2010, 20 May 2010, 25 June 2010,19 August 2010, 22 September 2010,3 November 2010, 24 January 2011,10 March 2011, 15 March 2011,27 September 2011, 14 October 2011,19 October 2011 and 20 October 2011

DATE OF HEARING : 28 March 2011, 17 August 2011,15 March 2012, 25 May 2012,28 May 2012, 6 July 2012and 30 August 2012

DATE OF ORALSUBMISSIONS : 5 October 2012

REPRESENTATION : Encik Sivananthan of MTUC, Representative for Union

Cik Janice Leo of Messrs. Shook Lin & Bok,Counsel for Respondent

REFERENCES:This is a reference made under Section 26(2) of the Industrial

Relations Act 1967 between Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad (hereinafter referred to as “the Union”) and

Tenaga Nasional Berhad (hereinafter referred to as “the Respondent”).

( 1 ) 27/3-43/10

AWARD

This reference pertains to a trade dispute between Kesatuan

Pencantuman Pekerja-Pekerja Tenaga Nasional Berhad

(hereinafter referred to as “the Union”) and Tenaga Nasional

Berhad (hereinafter referred to as “the Respondent”).

Brief Facts

The Kesatuan Pencantuman Pekerja-Pekerja Tenaga Nasional

Berhad (“the Union”) brought this dispute that centers on the

demotion of one of the Union's member, Encik Ibrahim bin Ali

Kutty (“the aggrieved employee”) by the Company, Tenaga Nasional

Berhad (“TNB”). It is the Union's pleaded case that the Claimant of

26 years service (then) with TNB was demoted from being a

Pembaik Kerosakan T/Kanan (TT07) to Tukang T/Biasa (TT06)

with effect from 20 August 2007. The aggrieved employee has

been issued with competency certificate having undergone

extensive training to enable him to work on high risk jobs of the

TNB. He contends that on 25 March 2006 out of concern for 11

staffs he approached his Senior Supervisor at the Pusat

Pengurusan Bekalan Section and raised some issues regarding

( 2 ) 27/3-43/10

safety and competency aspects involving some of the new staff who

had not been issued with the competency certificates nor were

they authorized personnels for them to carry out the high risk jobs

for the Company. He further contends that Tuan Haji Said bin

Muda overheard their conversation and raised his voice at him

asking him what does he know about safety. He contends that

Tuan Haji Said bin Muda undertook to bear all responsibilities for

their safety should anything untoward happen to the new staff.

The aggrieved employee asked Tuan Haji Said bin Muda to reduce

his undertaking in writing and for it to be given to him. The

aggrieved employee contends that after that day Tuan Haji Said

bin Muda changed his shift duty and was instructed orally not to

be in charge or to lead his Team D. The aggrieved employee was

asked to work on normal office hours. He lodged a complaint with

the Human Resources Department. On 29 March 2006 a letter

dated 27 March 2006 was given to the aggrieved employee by Tuan

Haji Said bin Muda instructing the Claimant on his working hours

that is from 8.00 am to 5.00 pm and that Team D was disbanded

with him being effectively removed as its leader. He said that Tuan

Haji Said bin Muda discredited him by reporting to the Managing

Director vide his letter dated 27 April 2007, that he was

problematic worker.

( 3 ) 27/3-43/10

The aggrieved employee further contended that he was

instructed to explain why he did not attend to the Roll-Calls on a

number of days which he says was not compulsory by Tuan Haji

Said bin Muda. He said that he received a warning letter dated 21

June 2006 by him after being issued with a show cause letter

dated 8 June 2006 by Tuan Haji Said bin Muda. The aggrieved

employee contends that he did not receive the said show cause

letter and was therefore not aware of it. He contends that after 3

months somewhere in the middle of June 2006 the aggrieved

employee was reinstated to his original position as Pembaik

Kerosakan T/Kanan (TT07) by Tuan Haji Said bin Muda. On 26

June 2006 being his off day he was called back by the Company

for emergency work. His car was faulty and in need of repairs. He

took his car for repair the next day that is 27 June 2006 as he had

to report for duty on 28 June 2006 and had to report for work at

6.30 am. The aggrieved employee avers that on 26 June 2006 he

finished work at about 11.00 pm and because he had no transport

of his own he used his Company's van WDN 943 (“the vehicle”) to

return home and parked the said vehicle in the compound of his

Selayang Prima Quarters.

( 4 ) 27/3-43/10

The aggrieved employee contend that he tried to reach the

Supervisor of Vehicles, Mr. Karunakaran to inform him that the

Claimant wanted to use the said vehicle that night but could not

reach him. He said that at the same time he tried to contact Tuan

Haji Ismail Majid so that he could get his permission but could not

get through to him. He contends that he continued to contact Mr.

Karunakaran when he got home at about 12.10 am and Tuan Haji

Ismail but was unable to do contact them.

It is his contention that on the same day, that is 26 June

2006, Mr. Karunakaran received a short message on his

handphone from Tuan Haji Said bin Muda saying that he (the

aggrieved employee) had taken the Company's van to his quarters

at Selayang Prima. He avers that on 27 June 2006 Mr.

Karunakaran lodged a report with the Manager of Pusat

Pengurusan Bekalan Kuala Lumpur on the matter. On 28 June

2006 the aggrieved employee received a letter dated 27 June 2006

from Tuan Haji Said bin Muda alleging that he had taken the

Company's vehicle to his residence without permission and had

breached the “Prosedur Tatatertib TNB, Edisi Kelima 2006,

Perkara 35, Senarai Salah Berat Lampiran H muka surat 40”. The

( 5 ) 27/3-43/10

aggrieved employee contends that he inquired from Tuan Haji

Ismail Majid regarding the show cause letter issued by Tuan Haji

Said bin Muda and Tuan Haji Ismail retorted by saying that Tuan

Haji Said bin Muda did not wish to see him. He contends that he

forwarded his reply to the said letter giving his reasons as to why

he kept the said vehicle with him on 26 and 27 June 2006.

On 6 February 2007 TNB issued a letter dated 31 January

2007 to the aggrieved employee preferring charges against him and

requiring him to attend a Domestic Inquiry on 27, 28 and 29

February 2007 which after several postponements was finally held

on 7 and 8 June 2007. Following the said Domestic Inquiry the

aggrieved employee was demoted by TNB. On 29 August 2007 the

aggrieved employee appealed against the said decision to demote

him but it was not accepted by TNB. The aggrieved employee

contends that he had never refused to follow the instructions of

Tuan Haji Said bin Muda but his relationship with Tuan Haji Said

bin Muda had soured ever since he raised the issue of the safety of

the new staff assigned to Pusat Pengurusan Bekalan section with

him.

( 6 ) 27/3-43/10

The aggrieved employee contends that as a Team D leader he

was an authorized relief driver and normally parks the said vehicle

at the Company's parking bay at Pusat Pengurusan Bekalan and

the keys are always kept by him. He contends that this has been

the practice of the Company. He avers that the said vehicle was

kept at his quarters from about 11.30 pm 26 June till the morning

of 28 June 2006 and at about 6.15 am on 28 June 2006 he drove

it to his place of work. It is his contention that upon returning

home on 26 June 2006 and until the morning of 28 June 2006 he

did not use the vehicle for his personal use and the said vehicle

was parked throughout the period at the Selayang Prima Quarters

car park. He contends that Tuan Haji Said bin Muda manipulated

the situation to inflict the punishment on him and that he was a

victim of a grudge by Tuan Haji Said bin Muda. He avers that he

apologized to TNB for the taking home of the said vehicle without

its permission. He said owing to the personal vendetta on the part

of Tuan Haji Said bin Muda against him that his apology was

rejected. The aggrieved employee avers that the punishment

meted out was too excessive resulting in inter alia his salary also

being reduced. He contends that his 25 years of loyal service

( 7 ) 27/3-43/10

Award to TNB that was to be given to him was differed for 3 years

and that to date he has not been considered for the loyal service

award. His prayer to the Court is that he be reinstated to his

former position as a Pembaik Kerosakan T/Kanan (TT07) with

effect from 20 August 2007 and that his arrears of salary

differences, wages, bonuses, seniority and monetary benefits from

the date of his demotion that is 20 August 2007 to the date of

determination be awarded by the Court.

It is TNB's contention that the aggrieved employee was

demoted after a due inquiry where the panel had found him guilty

of his misconduct. TNB avers that prior to his demotion the

aggrieved employee was suspended from work for 3 days on 23

March 1995, warned on 5 May 1995, 23 March 1995, 5 May 1995

and 21 June 2006 for his various acts of misconduct. TNB

contends that by taking the said vehicle home without

authorization the aggrieved employee had abused TNB's property

which is a serious misconduct. It is their contention that if the

aggrieved employee could not contact his superior and/or officers

in charge of the vehicle he should not take it home. TNB contends

( 8 ) 27/3-43/10

that the punishment meted out commensurates with the aggrieved

employee's misconduct and avers that what the aggrieved

employee did could have had serious ramifications on TNB in that

it deprived TNB of the vehicle's usage in the event of an emergency.

Evidence, Findings and Evaluation

TNB's evidence was led through their witnesses CW.1, CW.2

and CW.3. CW.1 viz Tuan Haji Said bin Muda, was the Technical

Executive at the Pusat Pengurusan Bekalan. He testified that on

26 June 2006 he received the SMS from one of the employees of

TNB. Encik Nasir bin Ahmad informing him that he saw the

vehicle registration number WDN 943 (“the said vehicle”) parked at

the Selayang Prima Quarters. He said he instructed Encik Nasir to

obtain whatever information he could get on the matter. He

testified that he then asked Encik Karunakaran via SMS whether

he had authorized the aggrieved employee to take the said vehicle

back home with him. He testified that he was told that he did not.

CW.1 further testified that on 27 June 2006 he asked Encik

Karunakaran to confirm whether the said vehicle had been

returned to TNB's premises and was told that it was not so. It was

( 9 ) 27/3-43/10

his testimony that he instructed Encik Karunakaran to file a

report with the Manager on the matter and to take a photograph of

the said vehicle parked at the Selayang Prima Quarters. CW.1

testified that he issued the show cause letter dated 27 June 2006

to the aggrieved employee. He said that the aggrieved employee

admitted having taken the said vehicle home without approval. It

was his testimony that he reported the matter to the disciplinary

Committee TNB. He said that in taking home the said vehicle and

keeping it for 2 days at his premises the aggrieved employee had

deprived TNB of the vehicle's usage for 2 days.

It was his evidence during cross-examination that he was the

Senior Supervisor of the aggrieved employee. He testified when

asked that he was handed the responsibility to issue the show

cause letter to the aggrieved employee. He confirmed that the

aggrieved employee stayed at the quarters belonging to TNB. He

agreed when it was put to him that the said quarters was part of

TNB's premises. It was his testimony that the Claimant was the

head of his team since 2006 and that initially his working hours

was from 7.00 am to 11.00 pm and was given overtime work all the

( 10 ) 27/3-43/10

time. He said that he had no issues with the way the aggrieved

employee worked. CW.1 agreed that the aggrieved employee was

grounded from 1 April 2006 and was asked to work from 8.00 am

to 5.00 pm. It was his evidence that the aggrieved employee was

taken off as Team Head because he did not want to work with new

employees and could not form a team. CW.1 agreed that when the

complains were lodged with Tuan Haji Ismail by the aggrieved

employee the new workers did not have the certificates. He agreed

that he had told the aggrieved employee that these new workers

could still work. He agreed that when the matter of the change in

his duties and working hours was taken up with the General

Manager the aggrieved employee was given back his old position

and his working hours.

When he was cross-examined CW.1 was not sure that on 26

June 2006 the aggrieved employee was off-duty but was called

back by him to work overtime. He agreed however when it was put

to him that on the 26 June 2006 the aggrieved employee was

asked to work overtime from 7.00 am to 3.00 pm as it was his off-

day. He further agreed when it was put to him that the aggrieved

( 11 ) 27/3-43/10

employee was asked to continue to work overtime until 11.00 pm

on 26 June 2006. He said that he did not know that the aggrieved

employee had come to work that day having hitched a ride from

his friend. He said that he did not know that the aggrieved

employee's wife was unwell that day and had requested that he

came home that night where else his original plans was to stay the

night at the workplace as he had no transport to go back home.

He said that before the aggrieved employee took the said vehicle

back to his home that night he did not know that he had tried to

contact Tuan Haji Ismail and Mr. Karunakaran to seek their

permission for the usage of the said vehicle but could not get

through to them. CW.1 agreed that he knew that the Claimant

had problems with his car on 26 June 2006. He also agreed that

he had sent a SMS to Mr. Karunakaran at about 23.38 pm on 26

June 2006 about the incident. He further agreed that the

aggrieved employee returned the said vehicle to the premises on 28

June 2006 at 6.30 am. It was his evidence that on the 26 June

2006 there was no emergency situation that warranted the usage

of the said vehicle.

( 12 ) 27/3-43/10

It was his evidence when asked as to why he did not ask the

aggrieved employee to return the said vehicle the next day CW.1

said that he did not have the authority to seize the said vehicle

that was in the aggrieved employee's charge. When questioned by

the Court as to why he did not ask the aggrieved employee to

return the said vehicle as soon as he came to know that he had

taken it back home with him CW.1 said that he did not know what

to do. CW.1 testified that he was not sure whether the aggrieved

employee had used the said vehicle for his personal use except

that it was taken back home by him.

Then 2nd witness of the Company, CW.2, Encik Karunakaran

testified that he told CW.1 when he received his SMS that he did

not authorize the aggrieved employee to the use the said vehicle

that night to return home. He said that he had reported to CW.1

on 27 June 2006 that the said vehicle was not parked at TNB's

premises that day and that the aggrieved employee was not

working on 27 June 2006. CW.2 testified that he lodged a report

with the Manager as instructed by CW.1 to do so and directed one

of his staff to go to the quarters and take a photograph of the said

( 13 ) 27/3-43/10

vehicle that was parked at the aggrieved employee's flat. It was his

testimony that the said vehicle could be used by the staff provided

they had obtained approval for its usage from the supervisor by

filling up the form provided by TNB. He testified that the aggrieved

employee did not fill up the said form.

It was his testimony during cross-examination and to a

question posed by the Court that he had submitted a report on the

incident at the material time as he was instructed to do so by

CW.1. He agreed that the said report was submitted to CW.1.

CW.2 testified that he did not receive any SMS or telephone calls

from the aggrieved employee on 26 June 2006. He agreed that 27

June 2006 was the aggrieved employee's off-day and that he did

not ask the aggrieved employee as to why he had taken the said

vehicle home on 26 June 2006. He said that he was a good friend

of the aggrieved employee.

CW.3, the investigating officer, testified that he was asked to

investigate into this matter by the Manager. He said that the

aggrieved employee was charged for having taken the said vehicle

( 14 ) 27/3-43/10

home without the approval of TNB. He said that the aggrieved

employee had admitted having done so as his personal car had

broken down that day and he did not have enough money to take a

taxi to go back home that night after work. He said that the

aggrieved employee had told him that he had tried to contact CW.2

to get his permission but could not get through to him. CW.3

testified that the aggrieved employee had agreed that what he did

was against the disciplinary procedure of TNB but he was

compelled and pressured that day to do so. It was his testimony

that after he had taken down the statements from CW.1, CW.2 and

others he concluded that the charge against the aggrieved

employer was true.

It was CW.3's evidence during his cross-examination that the

aggrieved employee had taken the car back home on 26 June 2006

because his situation on that day was compelling.

The aggrieved employee testified that at the material time his

immediate superior was CW.1. He said that owing to the

breakdown of his car he took a lift from his friend that day to

( 15 ) 27/3-43/10

work. He said that he was told to work overtime on the 26 June

2006 that is from 3.00 pm to 11.00 pm. He testified that this was

unplanned and it meant that he was going to work some 16 hours

on 26 June 2006. It was his evidence that because he did not

have sufficient monies to take a taxi back home after his work he

tried to call CW.2, 3 times to get his permission to use the said

vehicle to go back home. He said that he was unsuccessful at

getting through to him however. He testified that he then tried

unsuccessfully to get in touch with Tuan Haji Ismail Majid his

Foreman Head, to get his approval. He testified that owing to his

pressing situation he took the said vehicle back home that night.

It was his testimony that when he reached home that is the TNB

Quarters at Selayang Prima, he used the public telephone to try

and reach CW.2 again but to no avail. It was his testimony that he

kept the said vehicle from the night of 26 June 2006 to the

morning of 28 June 2006. He said that during the said period the

said vehicle was parked at the said quarters of TNB and he

returned it when he went to work on 28 June 2006 as he was

scheduled to work from 7.00 am to 3.00 pm that day.

( 16 ) 27/3-43/10

The aggrieved employee testified that 27 June 2006 was his

rest day. He said that he contacted CW.2 at about 12.00 pm that

day and told him that he had taken the said vehicle back with him

and that it was parked at the said quarters. He said that CW.2

answered him “it is too late”. It was his evidence that he did not

use the said vehicle for his own personal use whilst it was with

him.

The aggrieved employee testified further that he was given the

show cause letter dated 27 June 2006 on 28 June 2006. He said

that CW.1 as his head did not ask him anything about the said

matter. He testified that he replied the said show cause letter

saying that he had to use the said vehicle to get back home that

night as his own car had broken down and that he had tried to

contact CW.2 to get his approval but was not successful. He

testified that he was charged by TNB vide its letter dated 31

January 2007 and was asked to attend the DI that was scheduled

for the 27 February 2007 to 29 February 2007. He said that the

said DI was postponed and was held from 7 June 2007 to 8 June

2007. It was his evidence that by taking the said vehicle back

home on 26 June 2006 the operations of TNB was not affected at

all.

( 17 ) 27/3-43/10

When cross-examined the aggrieved employee testified that

on 26 June 2006 he had no choice but to take the said vehicle

back home with him as he had no other means of getting back

home that night. He stressed that he was suddenly asked to work

overtime and that it was not planned. He agreed that after he had

finished his shift he realized that none of his friends living at the

same quarters as he did were going his way. To a question posed

by the Court the aggrieved employee said that this was the first

time that he had done such a thing in the 29 years he had been

with TNB. It was his testimony when the question was posed to

him that when he kept the said vehicle on 27 June 2006 it did not

deprive TNB of the usage of the said vehicle as every driver had its

own vehicle and there were ample spare vehicles for use. He said

that the vehicle that he took back was under his care.

It was his testimony during cross-examination that what was

recorded in the Notes of Proceedings of the DI was inaccurate. He

said that some of the things he said at the DI was not recorded.

He explained when cross-examined that on 26 June 2006 he

received a telephone call from his wife after he had finished his

( 18 ) 27/3-43/10

shift telling him that she was unwell. He had originally planned to

stay back after 11.00 pm as he knew he had no transport to go

home and to return home the next day only. He said that because

of his wife's ill-health he decided to return home. He said that he

had told CW.3 this when he was questioned by him. The aggrieved

employee testified that he knew that taking the said vehicle

without approval was wrong. He said that in his years of service

he knew that this had happened before with the other staff using it

for their personal use but TNB had taken no action against them

so he could not understand why TNB reacted this way towards

him. He said he did not have documents to prove that this had

happened before but he has witnessed it personally.

It was the aggrieved employee's evidence when he was re-

examined that he was not asked by either CW.1 or CW.2 to return

the said vehicle. He said neither attempted to get in touch with

him to ask him why he had taken the said vehicle and to have

returned.

( 19 ) 27/3-43/10

The Union's representative submitted that TNB had been

harsh in demoting the aggrieved employee for the wrong that he

did. The demotion also meant that the aggrieved employee saw his

salary reduced by RM150.00 per month. The Union's

representative submitted that the aggrieved employee had 31 years

of unblemished record and the mitigating circumstances were not

taken into account by TNB when the punishment was decided

upon. Moreover he stressed that the said vehicle was not used for

his personal use except to get back home that night and he had

parked it at all times at the quarters which was designated as part

of the Company's premises. He submitted that TNB did not

produce the person responsible for making the decision that the

aggrieved employee should be punished in this manner as a

witness or the members of the panel who sat in judgment of the

aggrieved employee during the said DI. Their evidence was

important and therefore he submitted that the Court should rely

on section 114(g) of the Evidence Act 1950. It was further

submitted by the Union's representative that the aggrieved

employee had been victimized by CW.1 and TNB.

( 20 ) 27/3-43/10

TNB's Counsel submitted that the punishment was right as it

was within the band of punishment that they could impose on the

aggrieved employee for the serious misconduct that he had

committed. The Counsel referred to TNB's “Prosedur Tatatertib”

(“the said Manual”) in support of her submissions. She submitted

that it was provided by the said Manual that the band of

punishment ranged from “Turun Gaji Hingga Buang Kerja”. It was

her submission that it was well within and reasonable to have

imposed the punishment on the aggrieved employee for the

misconduct he had committed. It was her submission in a

nutshell that the punishment of demotion was proportionate to the

aggrieved employee's misconducts he had complete disregard to

the property belonging to the Company. She stressed that he did

not return it at the first opportunity he had that is on 27 June

2006 and not even when he was told that his superior was

displeased with him. Relying on the decided cases that she quoted

TNB's Counsel submitted that the Court ought not to substitute its

own views as to what was appropriate penalty for the employee's

misconduct since the Company would be the best judge of the

seriousness of the misconduct of its employees.

( 21 ) 27/3-43/10

The cases that Counsel for TNB relied upon were cases

decided on their own facts which facts are certainly

distinguishable from the facts before me and my learned panel

members though we are guided by their dicta. The aggrieved

employee does not deny the charge preferred against him by TNB.

He however contended that extenuating circumstances led him to

take the said vehicle home without first obtaining the approval of

his superiors. The Court finds that the aggrieved employee had

been a truthful witness regardless of what TNB's Counsel might

have to say. The Court does not think that it is right to take what

was said at the DI by the aggrieved employee ought of contexts or

to read more into some of his open ended statements. For example

TNB's Counsel submitted that he had said that he took his wife on

27 June 2006 to Sg. Buloh and therefore could not return the said

vehicle on 27 June 2006 meant that he had used the said vehicle

for his own personal use in ferrying his wife in it to Sg. Buloh. The

aggrieved employee testified that he did not do so in Court. To the

Court it simply meant that he could not return the said vehicle on

27 June 2006 as he had taken his wife on the said date to Sg.

Buloh and nothing more. It obviously did not mean as submitted

by TNB's Counsel that he had used the vehicle to take his wife to

( 22 ) 27/3-43/10

Sg. Buloh. This interpretation is consistent with what CW.2 had

testified that he had sent his officer on 27 June 2006 to take a

snap shot of the vehicle which photograph showed that the said

vehicle was parked at the quarters at Selayang Prima which falls

within the definition of “kawasan syarikat” pursuant to clause 4.2

of the said Manual.

The issue that the Court is faced with is to decide whether

the demoting the aggrieved employee under the prevailing

circumstances was just and equitable having regard to the

substantial merits of the case. In the book, Law Relating to

Dismissal Discharge and Retrenchment Under Labour Law,

1997 edition (Reprint 1999), HL Kumar stated as follows:

“The fundamental principle that should be kept in view

while awarding punishment is that the punishment

should be commensurate with the nature of the offence.

The punishing authority has to ensure that the

punishment is not shockingly disproportionate, regard

being had to the particular conduct and the past record

of the workman charged”.

( 23 ) 27/3-43/10

It is certainly significant to consider the length of service and

the unblemish record that the aggrieved employee had. In the case

of Chartered Bank v. National Union of Bank Employees [1983]

2 ILR 111 it was held that the Claimant having had more than 26

years of blameless unblemished record of service with bank that

his dismissal was too harsh having regard to equity good

conscience and the substantial merits often case. In Goodyear

Malaysia Berhad v. National Union of Employees in Companies

Manufacturing Rubber Products [1986] 1 ILR 522 the Industrial

Court considered the length and quality of good service, a good

unattained record and past service awards and recognition as

extenuating circumstances which the employer has to take into

account before deciding the appropriate punishment. The

aggrieved employee in his long service with the Company had not

taken the said vehicle back home with him or use it for his

personal use prior to this.

( 24 ) 27/3-43/10

It is also stated in the said Manual that the clean record of

service of the workman shall be considered to reduce the

punishment that may otherwise be meted out by the Disciplinary

Committee pursuant to the said Manual for a serious misconduct

that he commits. On the facts and evidence before it the Court

opines that the aggrieved employee should not have been charged

at all though this is the management prerogative. This was the

first time he had taken the said vehicle back without approval from

his superiors. His reasons for doing so was genuine and

reasonable and should have seen as mitigating his wrong. On the

facts and evidence the Court is satisfied that the aggrieved

employee was a victim of CW.1's manipulations and scheme. The

aggrieved employee has shown that he did not have a good

relationship with CW.1 who prior to the framing of this charge

against him, took the Claimant off as a Team Leader and off shift

work until his superior intervened to reinstate him back to his

original position and working hours. CW.1 seized the opportunity

again by going hard on the aggrieved employee when he came to

know that he had taken home the said vehicle on the night of 26

June 2006. This accounts for the speed in which the show cause

letter was issued that is on the 27 June 2006 itself and neither

him nor CW.2 asking the aggrieved employee as to why he had

( 25 ) 27/3-43/10

taken home the said vehicle or for him to return the same. This

could have been easily done as CW.2 had spoken to the aggrieved

employee on 27 June 2006 and also came to know about the

matter on 26 June 2006 from CW.1. CW.2 submitted a report to

the Management. He did not think it was important that he asked

the aggrieved to bring the said vehicle back at once. It seems it did

not matter to CW.1 or CW.2 that the aggrieved employee kept the

said vehicle because it was going to strengthen CW.1's cause

against the aggrieved employee. On the facts and evidence it

seems clear that the action taken the aggrieved employee was

tainted with malice in so far as CW.1 the perpetrator of what was

to follow against the aggrieved employee was concerned. The

aggrieved employee could have been given a chance to explain

himself even before the show cause letter was issued and perhaps

warned and told not to do it again. The issuance of the show

cause letter and the ensuing DI into the charge that was leveled

against him could have been obviated if CW.1 had dealt with the

matter in a more humane manner. It was stated at the DI that

was convened against the aggrieved employee by his 3rd witness,

Encik Jalaluddin Md. Yusuf that CW.1 was a revengeful person by

nature and that he would punish a workman without first

inquiring or investigating into the matter.

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The Court agrees with the Union's representative's

submission that by not calling the decision maker of the

punishment meted out or any one of the panel members viz the

members of the Jawatankuasa Tertib to testify in Court during the

Hearing TNB had shut out from Court some important evidence

that could assist the Court in understanding why TNB had acted

in the manner they did. The Court cannot agree with the panel's

findings on this matter. It would seem that they ignored altogether

the extenuating circumstances that caused the aggrieved employee

to take the said vehicle back to his quarters. The Court is unable

to understand why these facts did not mitigate the misconduct of

the aggrieved employee.

The aggrieved employee's 3rd witness had inter alia testified at

the DI that he himself and several other workmen had taken TNB's

vehicle back after work to his or their respective place of residence

without the approval of his superiors but was not subjected to

such disciplinary actions. It would have been necessary for the

Court and/or its panel members to inquire from these members if

they testified at the Hearing as to why no importance was given to

( 27 ) 27/3-43/10

these facts that were adduced at the DI. If these statements were

true then TNB would be guilty of selective punishment which is

altogether an unfair labour practice and reinforces the Court's

findings that the aggrieved employee has been singled out and

victimized. It is the Court's findings that the decision maker as

well as the panel members of the DI were crucial witnesses and

without them the Court was deprived of the opportunity to seek

elucidation and clarification on some important aspects of this

dispute. So the Court is left with no alternative but to give the

benefit of the doubt to the Union and the aggrieved employee and

finds that in the light of the facts and evidence before it the

demotion was altogether harsh and unmerited. It is the Court's

view that some thoughts/consideration should have been given to

the extenuating circumstances that led to the aggrieved employee

taking the said vehicle back with him at about 11.00 pm on 26

June 2006. The DI panel seemed to have rejected the aggrieved

employee's narration of the circumstances that forced him to take

the vehicle back home with him, his contention that he did not use

the vehicle after it was parked at his quarters which was also part

of the “kawasan syarikat” where the vehicles were to be parked at

( 28 ) 27/3-43/10

all times, his 3rd witness's evidence and the possibility that he

could have been the victim of the strained relationship that existed

between CW.1 and himself. The DI panel seemed to have rejected

the fact that the aggrieved employee tried to contact his superiors

to seek their permission for the usage of the said vehicle. It is

however the Court's view that this, inter alia, are mitigating

circumstances for his action. It is the Court's findings that on the

facts and evidence that was before the panel of the DI their

findings as to the guilt of the aggrieved employee is perverse and

unsubstantiated. In any event the Court shall not consider it

bound by its decision. In the case of Hong Leong Equipment

Sdn. Bhd. v. Liew Fook Chuan [1997] 1 CLJ 665 it was held

that the findings of the DI panel is not binding on the Industrial

Court which rehears the case afresh.

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It is the considered view of the Court based on the facts and

evidence before it that TNB has not discharged the burden to show

that their decision demoting the aggrieved employee for the wrong

he did was justified. It is unfortunate that the Court does not

share the same view as TNB given the material facts and evidence

before it. The Court is guided by the considerations of equity, good

conscience and the substantial merits of the case. Its decision is

one that has been arrived at having perused the salient facts of the

case which the Court feels was perhaps cursorily dealt with by the

aggrieved employee's supervisor (CW.1) and the DI panel. On facts

the demotion of the aggrieved employee is unwarranted. In fact

the Court has gone a step further to say that on the facts and

evidence the aggrieved employee ought not to have been charged in

the first place. There were mitigating circumstances for taking the

said vehicle back home with him at 11.00 pm on 26 June 2006

and his return of the said vehicle at about 6.15 am on 28 June

2006. The decision taken by TNB was indeed far too harsh and

excessive let alone unreasonable. This Court is guided by the

considerations of equity and good conscience and substantial

merits of the case.

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On the facts the aggrieved employee was punished twice viz

he was demoted to a lower grade and was denied any increment for

5 years. This is harsh based on the facts of the case.

In the light of the conclusion it has reached based on the

totality of the facts and evidence of the case the Court with the

concurrence of its panel members decides this dispute in the

Union's farvour and orders that the aggrieved employee be restored

to his position as Pembaik Kerosakan T/Kanan (TT07) and as a

Team Leader with effect from 20 August 2007 and that the arrears

of the difference of his salary inclusive of increments, bonuses,

seniority, and all other monetary benefits be paid to him accruing

from the date of his demotion to the date hereof.

HANDED DOWN AND DATED THIS 3 DAY OF DECEMBER 2012

Signed

( DATO’ MARY SHAKILA G. AZARIAH )CHAIRMAN

INDUSTRIAL COURT, MALAYSIAKUALA LUMPUR

( 31 ) 27/3-43/10