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THE INDUSTRIAL COURT OF MALAYSIA
CASE NO: 5/4 - 1546/05
BETWEEN
ENCIK SAIFUL NAFIS BIN SHARIFF
AND
AIRASIA SDN BHD
AWARD NO: 2239 OF 2007
Before : TUAN CHEW SOO HO - CHAIRMAN
Venue : The Industrial Court of Malaysia, Kuala Lumpur
Date of Reference : 14.9.2005
Dates of Mention : 6.1.2006, 6.3.2006, 5.5.2006, 10.7.2006, 14.9.2006, 15.12.2006, 28.6.2007 & 18.7.2007
Dates of Hearing : 17.1.2007, 20.3.2007, 28.3.2007 & 17.4.2007
Representations : Encik Mahadi b. Muhammad of Messrs Mahadi Redzuan & Co., Solicitors for the Claimant
: Encik Ahmad Nazery b. Shamsudin and Miss YH Teh of Messrs YH Teh & Quek, Solicitors for the Respondent
Reference :
This is a reference by the Honourable the Minister of Human Resources
Malaysia under Section 20 (3) of the Industrial Relations Act 1967 arising out of
the dismissal of Encik Saiful Nafis bin Shariff, (hereinafter known as “the
Claimant”) by AirAsia Sdn. Bhd., (hereinafter known as “the Respondent”).
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AWARD
Facts of the Case
Claimant commenced his employment with the Respondent on 10 December
1999 as a Cashier with a salary of RM966.00 per month. Effective from 13
December 2000, Claimant was confirmed as Senior Account Clerk with an
increase in his salary to the sum of RM1,034.00. At the time of his dismissal,
Claimant alleged his average income inclusive of allowances was RM1,800.00 per
month.
Vide its letter to show cause dated 6 February 2003 issued to the Claimant, the
Respondent alleged that the Claimant had failed to attend work without approval
from his supervisor for 7 dates stated therein for which Claimant had replied vide
his letter dated 17 February 2003. The Respondent quite apparently not being
satisfied with the Claimant’s explanation, issued him with a notice of domestic
inquiry dated 25 February 2003. In this notice of domestic inquiry, the allegation
of charge is that Claimant had, without approval from his supervisor, failed to
attend work on 10 dates as listed therein. The domestic inquiry was scheduled
on 12 March 2003 at 10.00 a.m. at the AirAsia Corporate Office at Level 4 of the
Main Terminal Building of KLIA but the Claimant failed to attend the said inquiry.
The inquiry panel then unanimously found the Claimant guilty of the said charge.
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Claimant alleged that he did not attend the domestic inquiry because the
Respondent had changed the venue of the inquiry where he was notified via SMS
during the night of 11 March 2003. Claimant explained that on the dates in the
allegation of charge except 15 and 20 January 2003, he was on duty in the
Markas Logistik Tentera Darat Malaysia at Jalan Padang Tembak, Kuala Lumpur;
on 15 January 2003, he was on emergency leave as his father-in-law was
seriously ill in Kuala Kubu Bharu and for 20 January 2003, there was a confusion
as to the replacement holiday for Thaipusam but averred that he was also on
emergency leave. Claimant denied that he had committed any misconduct and
contended that his dismissal was, inter alia without just cause or excuse. He
therefore prayed for reinstatement with full backwages.
The Issue
The sole issue before this Court is whether the Claimant was dismissed with or
without just cause or excuse.
The Law
In OP Malhotra’s The Law of Industrial Disputes Volume II Sixth Edn.2004 at
page 1135, on the issue of absence without leave, the learned author had said of
the following:
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“An employee is under an obligation not to absent himself from work
without good cause during the time at which he is required to be at work
by the terms of his contract of service. Absence without leave is
misconduct in industrial employment warranting disciplinary punishment.
Even if the workman is not absent from the employer’s business premises,
his absence from the specific place of duty where he is required to be,
without permission, would also constitute an act of misconduct.
Therefore, the absence of an employee from duty, if it amounts to
misconduct inconsistent with faithful discharge of his duties, would
constitute good cause for his dismissal.”
For dismissal cases, the burden is on the employer to prove the misconduct of
the employee for which he was dismissed on a standard of probability; see
Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002]
3 CLJ 314
Evaluation & Findings
A D.I. was scheduled and conducted on the 12 March 2003 in the absence of the
Claimant who was notified of the change of venue at the eleven hour of the date
of D.I.; he was notified via SMS on the night of 11 March 2003. The Respondent
had contended that the new venue at AirAsia Corporate Office at Lot N1 Level 4
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Main Terminal Building of the KL International Airport was still within the airport
premises which the Claimant was aware of but he chose not to attend the said
D.I. Whatever may be the reason or contention of the parties, it has to be borne
in mind that one of the main functions and purposes of conducting a D.I. is to
enable an employee the opportunity to be heard before a panel of impartial
members and to challenge his accuser of the misconduct alleged against him in
consonant with the principles of natural justice. The fact of the instant case is
that the panel had proceeded with the findings of the guilt of the Claimant
without rendering him the opportunity to be heard; their respective decision can
be seen in the individual panel member’s report COB p. 14-16 and the report of
the chairman of the panel of inquiry in COB p. 17-18. No inquiry notes were
tendered to show that the D.I. panel had heard the evidence produced by the
Respondent though COW1 Miss Ling Siew Lee stated in her Witness Statement
that in the D.I. she was asked as to the complaint of the Claimant’s absence
from work without permission and there was no record to show that those
evidence, if any, had been recorded to indicate that the Respondent had proved
its case before D.I. panel before they made their respective decision whether
individually or collectively. This Court cannot thus hold that the D.I. panel had
arrived at a just decision basing on evidence without the note or record to show
that evidence was produced before them. On account of the fact that the
Claimant was not heard in the D.I. and the fact that no evidence had been
shown to have been produced before the panel members of the D.I. before they
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made their decisions of finding the Claimant guilty of the charge, this Court will
have to hold that the D.I. held against the Claimant on 12 March 2003 is not
valid; see Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia &
Anor [2004] 7 CLJ 77. Nevertheless, in Ngeow Voon Yean v. Sungei Wang Plaza
Sdn Bhd & Anor [2004] 1 CLJ 8, the Court of Appeal held, inter alia, that:-
“[3] A defective domestic inquiry, or even the absence of one, is not fatal
to a dismissal which is otherwise not bad. Hence, the admittedly
unsatisfactory domestic inquiry in the instant case did not play a
pivotal role in determining the legality of the claimant’s dismissal
by the company.”
Claimant was dismissed from his employment with the Respondent on account of
his absence from work without permission from his supervisor as per the charge
in the notice of domestic inquiry (D.I.)/ COB p. 11 and in the charge sheet during
the D.I. as in COB p. 13. The charge leveled against him reads as follows:
“Anda didapati tidak hadir bekerja tanpa kebenaran dari penyelia anda
terlebih dahulu pada tarikh-tarikh seperti berikut:
(1) 2 Januari 2003
(2) 3 Januari 2003
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(3) 7 Januari 2003
(4) 15 Januari 2003
(5) 17 Januari 2003
(6) 20 Januari 2003
(7) 23 Januari 2003
(8) 11 Februari 2003
(9) 13 Februari 2003
(10) 14 Februari 2003”
Since this is the reason that the Respondent chooses for the action taken, the
duty of this Court will be to enquire whether that excuse or reason has or has
not been made out. If this Court finds as a fact that it has not been proved,
then the inevitable conclusion must be that the termination or dismissal was
without just cause or excuse; see Goon Kwee Phoy v. J & P Coats (M) Sdn Bhd
[1981] 2 MLJ 129 FC.
The ingredient of the charge above is that without the prior approval from his
supervisor or superior, Claimant was found to be absent from work on those
dates listed above. The main contention of the parties herein is that the
Respondent alleged that the Claimant had not sought prior approval from his
supervisor for his absence from work whereas the Claimant asserted that he was
on duty attending to invoices in relation to collection of arrears owed by the
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Armed Forces Malaysia (ATM) at the Armed Forces Logistic Department at Jalan
Padang Tembak, Kuala Lumpur on all those dates except 15 and 20 January
2003 and that there was no requirement that he should obtain prior approval
from his supervisor before going for duty there as he was instructed to do so by
the Chief Financial Officer, Raja Mohd Azmi Raja Razali and the Director of
Corporate Communication, Abdul Naseer Abu Kassim to focus his duty on ATM to
resolve the payments problems. Claimant also stated that he had nevertheless
informed other colleagues of his attendance to work at ATM Logistics
Department.
According to COW1, Miss Ling Siew Lee, the Respondent’s Senior Account
Executive at the material time, Claimant’s duties, among others, were to attend
to matters relating to ATM ie to prepare billing and collection for flight services
used by the staff of ATM, to compile documents relating to payments, dates of
the payments made, total collection and other related matters. On attendance,
COW1 emphasized that Claimant was required to inform her being the Claimant’s
supervisor or superior and to obtain her permission before Claimant went out to
any place to do the collection as there was no necessity for a staff to go out of
office at all time because some of these duties could be done via telephone, e-
mail, fax or correspondence as in the case of Claimant’s successor after
Claimant’s dismissal. Claimant’s movements had also to be reported to her
especially when Claimant was attending work outside office; this was in the
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event of any accident and other incidents. COW1 asserted that Claimant had
failed to inform her of his whereabout and failed to obtain her permission to
carry out work outside office and that would be construed as missing from the
office during working hours or did not attend to work without approval from her.
In addition, the failure of the Claimant to inform COW1 or the Account Division
Manager would be an act of insubordination. COW1 herself had met with the
Claimant several times after Claimant had been often missing from the office and
advised him that he had to inform her in advance on each occasion that he could
not come to office or wherever he wanted to go. Warnings and reminders were
also given to Claimant who was further informed that his act was an offence
against discipline. In spite of that, Claimant did not change his attitude. Hence,
the matter was reported to the Account Division Manager and the Chief Financial
Officer, Raja Mohd Azmi Raja Razali (COW2). On 9 September 2002, COW2 had
issued the Claimant with a memo (COB p.5) reminding the Claimant that he was
to report to his superior in the event he was absent from work by 9.30 a.m.
Despite this memo, Claimant continued to behave the same without informing
COW1 where he went or where he was and was missing from office during
working hours. Further advice was given on several occasions thereafter but the
Claimant did not change. Claimant was found to be absent without prior
permission for the respective dates in January 2003 as listed in the charge.
Claimant at one point in time seemed to suggest that tacit consent from COW2
and another was given to him to be at ATM to carry out his duties and to focus
9
on the collection from ATM and that he reported directly to them. However,
COW2 said very clearly that Claimant’s line of reporting was to the Assistant
Manager, Finance whom COW1 was subsequently and Miss Sharon Yong, the
Manager, Finance Division who was the Head of Department; Claimant was told
that he had to comply with all instructions and report directly to his immediate
superior, the Assistant Manager who would report to the Manager, Finance and
the Manager, Finance would in turn report to COW2. Hence, Claimant was not
required to report directly to COW2 though COW2 had the overall supervisory
power over all staff in the Finance Division. COW2 asserted that at the material
time, Claimant was required to report to COW1. COW2 had also personally
informed the Claimant to whom he had to report to and who would supervise
Claimant’s work and duties that had been entrusted to him. By COW2’s evidence
in this respect, this Court finds that the contention or the impression cast by the
Claimant that he probably reported directly to COW2 without the necessity to
report to COW1 as his immediate superior and that he could go to ATM as and
when he liked to perform his duties there without having to obtain prior approval
from COW1 or the his Manager, is being refuted. COW2 stated that the
Respondent had issued Claimant with a letter to show cause vide COB p.7 and
Claimant vide his letter of reply dated 17 February 2003 (COB p.9-10) admitted
that he did not convey his absence from office to COW1 as follows:
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“Seingat saya setiap kali ‘hilang pada waktu pejabat’, saya akan pasti
melaporkan pergerakan saya kepada teman pejabat yang bagi saya boleh
menyampaikan kepada si penyelia tadi. Yang menjadikan perkara ini
rumit adalah kerana saya tidak menyampaikan ketidakhadiran saya
melaluinya sahaja.”
COW2 further emphasized that it was the company policy that all rules of the
Respondent had to be complied with by all employees. To enforce discipline,
wherever Claimant would want to go, he had to obtain prior permission from his
superior or from the Manager Finance Division; this was also considered a
direction from a superior officer to officers or staff junior to him or her which had
to be complied with by the junior officers or staff. He confirmed the dates of the
Claimant’s absence from work without prior approval as stated in the Charge
Sheet COB p.13. Although COW2 endorsed that he had given instruction to the
Claimant to attend to the arrears of unsettled bills by ATM, his instruction was
still subject to the Claimant having to obtain permission from his superior. In
other words, although Claimant might have to go to ATM, he was still required to
inform his superior and at the same time to obtain her approval to carry out his
duties out of office. On the justification for the Claimant’s dismissal, COW2
confirmed that he being the Chief Financial Officer and Chief Executive Officer of
the Respondent had the jurisdiction to dismiss any employee but the Director of
Corporate Communication had not had that jurisdiction; he had personally given
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the Claimant warning for several times to change his attitude and to comply with
company policy to report where he went and where he was at the working time
to his superior. Claimant had, however, failed to change and repeated his
mistake or misconduct despite the fact that he had been also given reminders
and warning by COW1 but such misconduct was recurring. Hence, COW2 had
no choice but was compelled to dismiss the Claimant. COW2 denied that he had
ever promised the Claimant any commission or bonus for the successful
collection of the outstanding bills from ATM.
Claimant explained that on 2, 3, 7, 17 and 23 January 2003 and 11, 13 and 14
February 2003, he was on duty at ATM Logistics Camp in Jalan Padang Tembak,
Kuala Lumpur to attend to invoices relating to outstanding payments from ATM
which were due to the Respondent for aircraft rental. For that purposes, ATM
had provided him with a room to carry out his duties there. He averred that on
the above dates, he had informed the other staff of his duties at ATM because he
was assigned by COW2 and the Director of Corporate Communication to focus
his duties on ATM to settle the payment problems and complaints raised by ATM.
Claimant claimed that he had on several occasions tried to contact Miss Sharon
Yong (Manager Finance) at about 8.30 a.m. to inform her of his duties at ATM
but his calls were often not answered by her. When these occurred, Claimant
would inform other staff of his attendance at ATM. Claimant also produced letter
CLB p.61-62 from Mejar Razali bin Nasir to confirm that he was working at ATM
12
on 2, 3, 7,17 and 23 January 2003 and a letter CLB p.59 from Kapten Azman bin
Che Mohd Salleh dated 13 February 2003 to the effect that he was often at 673
Kem Transit, Kor Perkhidmatan Di Raja, Jalan Ampang, Kuala Lumpur to check
on the name lists of the ATM passengers who had taken the flights. A further
letter from Mejar Hamim Zairin bin Hj Hamzah dated 13 February 2003 vide CLB
p.60 also certified Claimant’s presence at the ATM Logistics Camp in relation to
his work and for the month of January 2003, his attendance was more often
because of several financial matters and payments for the 2002 year end
account for the Respondent. Claimant said that he had been attending to ATM
outstanding bills collection matters since 2002 and produced CLB p.5-15, 18, 21-
29, 36-48 and 50 to establish his assignment and the duties he had performed
there or relating thereto, inter alia. He further produced his applications for
visiting pass and the visit passes issued to him by the ATM Logistics Camp vide
CLB p.16, 17, 19, 20, 30-32, 34-35, 51 and 58. For the date 15 January 2003,
one of the dates listed in the charge, Claimant explained that he had to take
emergency leave because his father-in-law was seriously ill in Kuala Kubu Bharu,
Selangor. He said he had informed the other staff in the Respondent and or his
superior Miss Sharon Yong. As regards the date 20 January 2003 in the charge,
Claimant said he took for granted that it was a public holiday. Thaipusam fell on
18 January 2003 on the third Saturday of the month. Claimant said he
anticipated the Respondent to declare 20 January 2003 (Monday) as replacement
holiday but it was at the eleven hour that the Respondent issued a memo that
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Thaipusam was a working day and not a public holiday. There was a
misunderstanding between himself and the Respondent over this public holiday.
Accordingly to Claimant, the Respondent’s policy or procedure for application of
leave was that he needed to submit his application 14 days before the day of the
leave applied for. However, he would not obtain a reply until the date of his
leave. Thus, Claimant took for granted that his leave had been approved by the
Respondent.
From the evidence above-mentioned, it is clear evidence that there is no dispute
as to the dates that Claimant was alleged to be absent from work or that he was
not in the office during working hours as stated in the charge. What the
Claimant had contended was that he had informed other staff in the Finance
Division of his duties at the ATM Logistics Camp. He had apparently abandoned
his contention that it was COW2 and the Director of Corporate Communication
who had purportedly given him the tacit approval to be at ATM without having to
seek prior permission from his immediate superior. In the light of COW2’s
evidence, undoubtedly, Claimant had to shift his version. He said he had called
Miss Sharon Yong, Manager Finance Division to inform the same but she
apparently did not answer her hand phone. Miss Sharon was not called as a
witness. From the Claimants evidence recapitulated, it was said that Claimant
had called his Manager Finance, Miss Sharon Yong on those dates in the charge
in January 2003 as stated by him at about 8.30 a.m. but Miss Sharon Yong did
14
not answer the calls. Throughout his evidence in chief, he had never mentioned
that he had ever called COW1 to inform her of his attendance to work at ATM
nor sought her permission. However, from the Claimant’s cross-examination on
COW1, it was suggested to her that Claimant had communicated with her but
not Miss Sharon Yong at 8.30 a.m. in December 2002 to January 2003 to inform
her that he was at the ATM Camp but COW1 did not answer her hand phone. To
this Court, Claimant’s version of the event had itself raised a doubt whether he
had attempted to inform, in particular, Miss Sharon Yong at 8.30 a.m. in January
or as his cross-examination on COW1 that he had attempted to inform COW1 at
8.30 a.m. in January 2003 since December 2002 was not relevant to the charge
in his case or that he had attempted to inform both or none of them. His version
of having called to inform his superiors was put in suspect. Further, Claimant
had also claimed that he had informed other colleagues in the Finance Division of
his out of office duties or when he was working at ATM Camp. However, this
Court finds that such facts of his defence was never put to the Respondent’s
witnesses in challenge of their evidence that Claimant had indeed informed the
other colleagues in the Finance Division to, in turn inform either the Manager or
COW1 of his whereabout. In Sivalingam Periasamy a/l Periasamy & Anor [1995]
3 MLJ 395, the Court of Appeal referred with approval the passage from the case
of Browne v. Dunn [1893] 6 R 67 at page 400 of the following:
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“It is essential that a party’s case be expressly put to his opponent’s
material witnesses when they are under cross-examination. A failure in
this respect may be treated as an abandonment of the pleaded case and if
a party, in the absence of valid reasons, refrains from doing so, then he
may be barred from raising it in argument. It is quite wrong to think that
this rule is confined to the trial of criminal causes. It applied with equal
force in the trials of civil causes as well.”
It is pertinent to the Claimant’s defence of the charge if he had informed his
colleagues to notify COW1 or the Manager of his duties in the ATM Camp and if
they had done so on his behalf without COW1 and/or the Manager Finance
raising any objection, then it would be a complete defence for the Claimant that
he had received tacit consent from either COW1 and/or his Manager through the
colleagues that he had informed. However, this does not seem to be so.
Claimant had in fact not named any of his colleagues in the Finance Division
whom he had so informed nor call anyone of them to be his witness to verify
that he had so informed them and or that they had notified COW1 or the
Manager of what the Claimant had indeed informed them. This Court finds that
Claimant had merely paid lip service that he had informed his colleagues in his
department without even naming which of the colleagues that he had so called.
For these reasons, on the balance of probability, this Court finds it difficult to
accept this aspect of the Claimant’s evidence. The crux of the charge is that he
16
had failed to obtain prior approval or permission from his superior. Claimant had
not shown that he had prior approval or permission. He seemed to suggest that
permission was granted by COW2 when Claimant was instructed to focus on
collection of payment from ATM. But, with the evidence of COW2 that that did
not constitute prior approval or permission to waive Claimant’s need to obtain his
superior’s approval, Claimant’s contention would have no basis. Claimant had
tendered and referred the visit passes issued to him upon his applications but
upon a scrutiny of these visit passes and his applications, it is sad to say that
none of them had reference to the relevant dates as spelt out in the charge and
thus they are irrelevant in so far as the charge is concerned. Consequently, this
Court holds that the Respondent had proved on a balance of probability that the
Claimant had failed to obtain his superior’s prior approval or permission before
he left for duties outside his office even if this Court were to accept that he
might be at the ATM Camp vide CLB p.59-62 and therefore Claimant was
deemed to have been absent from work without prior approval on the dates
except 15 and 20 January 2003 as stated in the charge when he was not granted
the approval or permission to be out of the office.
In respect of Claimant’s absence from work on 15 January 2003, Claimant
explained that he was on emergency leave and that he had informed his
colleague of the same presumably anticipating the latter to inform the superior
or Manager. It has to be borne in mind that the granting or refusal of leave is
17
the absolute discretion of the employer depending on the exigency of service of
the particular employee at a particular time. An employee cannot claim that his
leave is automatically approved once he has tendered his leave application.
Hence, the onus is on the employee to ascertain the approval of his leave
application before he goes on leave on the dates he has applied. Claimant in our
instant case wanted an emergency leave on ground that his father-in-law was
seriously ill. It would only be appropriate and sensible for him to speak to his
superior officer or Manager or whosoever who had the authority to grant him
leave or to approve his leave for that particular day of emergency bearing in
mind that he had to have the approval before he could go on leave. This Court
could not see any reason why Claimant failed to get the approval of COW1 or his
Manager Finance to approve his emergency leave on this 15 January 2003 before
he went on leave. He took the risk by merely informing his colleague without
any confirmation later of the approval before he went on leave. The act of the
Claimant in not seeking prior approval before he went on emergency leave only
goes to show his indifference towards the rules and regulations of the
Respondent that he had to comply with. Article 17 and in particular 17.3 of the
Respondent’s terms and conditions of service (COB p.33-34) had prescribed the
mode of application for leave. Emergency leave may differ slightly. Be that as it
may, Claimant had not informed this Court which colleague of his that he had
informed of this intended emergency leave nor did he call this colleague as a
witness. He had also not tendered or applied that the Respondent tendered his
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leave application form for that day if he had in actual fact applied for such a
leave. It is an accepted practice that if an employee could not turn up for work
for emergency reason, his leave application could be submitted on the day that
he came back to work after the said leave. Nevertheless, the oral approval from
the superior officer must be obtained in advance before Claimant could claim
that he was on emergency leave. There was no approval granted for this date.
Thus, this Court finds that Claimant’s claim that he was purportedly on approved
emergency leave on 15 January 2003 is a bare assertion in the absence of any
proof to that effect and Claimant, in the absence of any evidence that his
emergency leave application had been approved by any of his superior officers
who were authorized by the Respondent to approve his leave, is absent without
leave. Claimant alleged that his father-in-law was seriously ill which necessitated
him to apply for an emergency leave. Nevertheless, he did not produce any
evidence to indicate that his reason was not mere allegation but a fact which
substantiated his leave application. E-mail of COW1 in COB p.6 was a complaint
or a notification to the Respondent’s Legal Adviser of the days that the Claimant
was absent citing 15 and 20 January 2003 to be among the dates that Claimant
did not turn up for work. This does not show the approval of these two dates to
be the emergency leave of the Claimant. Had there been an approval, 15 and 23
January 2003 would not have been included as the days that Claimant did not
turn up for work. On a balance of probability, this Court holds that Claimant was
absent without his leave being approved by the Respondent.
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As regards the Claimant’s absence on 20 January 2003, it was an admitted that
Claimant did not report for work on that day as according to him, there was
a confusion as to whether 20 January 2003 was a replacement holiday for
Thaipusam which fell on 18 January 2003 which was a non-working Saturday.
Again, as stated earlier and reiterated herein, the onus is on the Claimant as an
employee to ascertain in advance whether a day is or is not a holiday before he
enjoys the day off even though the Respondent may declare or not declare that
day to be a holiday or a replacement holiday. No employee can have the right to
assume any day to be a holiday or replacement holiday. Claimant for that matter
could have easily call the office or his Human Resource Department or its officers
to seek confirmation whether 20 January 2003 was a replacement holiday.
There is, therefore no question of any confusion or misunderstanding as raised
by the Claimant. Anyway, Claimant claimed that he was on emergency leave on
that day and that he had informed his colleague about it. Again, he did not call
directly to COW1 or the Manager of his department or even COW2 to seek prior
approval orally before he took the day off. Claimant merely informed his
colleague and assumed his application would automatically or definitely be
approved when there is no such term and condition in his contract of service to
express so. Such indifferent attitude is unbecoming and a clear violation of
discipline. Claimant had submitted that vide e-mail from COW1 to the
Respondent’s Legal Adviser Charles Chow Chon Jin (COB p.6), the Respondent
was aware that the Claimant was on emergency leave on 15 and 20 January
20
2003 and it was unfair to take disciplinary action against him for his absence.
However, this Court wishes to emphasize again that approval or refusal of leave
application is the prerogative of the employer and it is not as a matter of right of
the Claimant that any of his leave application must be approved even though he
is entitled to have annual leave. There is no approval granted in the instant
case; Claimant merely assumed that his application for emergency leave would
have been approved without he himself ascertaining the approval before he went
on emergency leave. He took the risk and must face the consequences that he
would be construed as being absent if no approval was granted as in this case.
On the balance of probability, this Court holds that the Claimant was absent
without leave or without prior approval from his superior on 20 January 2003.
On the charge as a whole, this Court finds, on a balance of probability, that the
Respondent had proved the charge against the Claimant that he was absent
without prior approval or permission from his superior on the dates as listed in
the charge above quoted which is a misconduct
On the ensuing issue whether the Claimant’s dismissal was with or without just
cause or excuse, evidence of COW1 and COW2 showed that they had
respectively advised, reminded or warned the Claimant of his lackadaisical
attitude pertaining to attendance and the need to inform his superior before he
left for work outside the office. COW2 had even issued a memo to that effect as
in COB p.5. Claimant was adamant and turned a deaf ear to all the advice,
21
reminders or warnings and continued to do as he liked on his attendance
repeating his absence from office without prior permission from his immediate
superior. It is an open challenge to the discipline and tolerance of the
Respondent. COW2 in deciding to dismiss the Claimant had asserted that the
Respondent had no choice but to dismiss the Claimant because of his repeated
misconduct in spite of the numerous advice, reminders and or warnings having
been given to him. This Court is of the view that any reasonable employer as
the Respondent would, in the circumstances of this case, have reacted as the
Respondent to dismiss the Claimant; see Taylor v. Parsons Peebles Ltd [1981]
IRLR 119. This Court finds no reason to disagree with the Respondent with its
action against the Claimant who did not heed any form of advice, reminders and
or warnings and hence, it could only be reasonably inferred that he was not
interested in his employment with the Respondent. In equity, good conscience
and the substantial merits of this case, this Court holds that the Claimant’s
dismissal is therefore with just cause or excuse.
Consequently, Claimant’s claim is hereby dismissed.
HANDED DOWN AND DATED THIS 31 OF OCTOBER 2007
(CHEW SOO HO) CHAIRMAN
INDUSTRIAL COURT MALAYSIA KUALA LUMPUR
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