IN THE INDUSTRIAL COURT OF MALAYSIA CASE NO. : 11/4-636/20 BETWEEN SATHASIVAM A/L MUTHUSAMY AND TENAGA NASIONAL BERHAD AWARD NO. : 1200 OF 2021 Before : Y.A. TUAN ANDERSEN ONG WAI LEONG - CHAIRMAN Venue : Industrial Court of Malaysia at Kuala Lumpur Date of Reference : 08. 10.2015. Date(s) of Mention : 08.07.2020, 14.09.2020, 14.04.2021, 27.04.2021. Date(s) of Hearing : 19.02.2021, 24.02.2021. Written Submission (Claimant) : 06.04.2021, 23.04.2021. Written Submission (Company) : 08.04.2021, 27 .04.2021 Representation : Mr. Manogaran Marimuthu Messrs Manogar & Co Counsel for the Claimant Ms. Wong Keat Ching and Ms. Syazwani binti Suhaimy Messrs Zul Rafique & Partners Counsel for the Company[ 21 ] Therefore, the Claimant contended that it was unfair for the Company to unilaterally terminate his services without due process effective from 31.07.2012 which was the date the Claimant was arrested and remanded by the police. [ 22 ] The Claimant did not call any other witnesses to give evidence at the trial. Only the Claimant gave evidence in support of his case. F. EVALUATION AND FINDINGS OF THE COURT [ 23 ] It is not disputed that the Claimant was arrested by the police on 31.07.2012 for drugs related offences and charged under the DDA. The 8 Claimant was thereafter detained in the Penor Prison until he was eventually acquitted and released from the Penor Prison on or about October 2013. The Letter of Termination[ 24 ] The Company contended that it had pursuant to the Letter of Termination, terminated the Claimant's employment effective from 31.07.2012 i.e. the date the Claimant was arrested and detained by the police by reason of frustration of the Claimant's contract of employment with the Company. However, the Claimant has denied receiving the Letter of Termination from the Company at all material time. [ 25 ] COW3 who was working in TNB Raub Branch in 2012 gave evidence that he was instructed by the then Branch Manager for TNB Raub Branch, COW2 to hand over and/or serve the Letter of Termination on the Claimant at the Penor Prison. [ 26 ] COW1 testified that she was the Branch Manager for TNB Raub Branch until 31.08.2012 and the Claimant was serving in TNB Raub Branch as Auger Crane Operator at the time the Claimant was arrested and detained by the police on 31.07.2012. COW2 gave evidence that he had taken over the position of Branch Manager for TNB Raub Branch from COW1 effective 01.09.2012.[2?] COWS confirmed that he had gone to the Penor Prison on 12.1.212 together with his colleague. one Encik Adzhar and had handed over the Letter of Termination to the Claimant. CCW2 testified that the Claimant had duly acknowledged receipt of the same on the duplicate copy of the Letter of Termination. The Company produced and tendered into Court the duplicate copy of the Letter of Termination with the acknowledgement of receipt by the Claimant. [ 2B ] The Company also produced and tendered into Court a letter from the Penor Prison together with an extract from the Penor Prison's 'y'isitors Record Book. depicting and confirming the attendance of CCIW2 and Encik Azhdar at the Penor Prison on 12.1u.2u12. [2Q ] The Claimant admitted that CCW2 and Encik Azdhar visited him at the Penor Prison on 12.1D.212 but denied receiving the Letter of Termination from CCW2. The Claimant also denied that the signature on the duplicate copy of the Letter of Termination was his signature. He denied signing the acknowledgment of receipt. [ 30 ] The Claimant contended that CCW2 and Encik Azdhar were there at the Penor Prison on 12.1D.212 to hand over his claims and allowances from the Company and he had directed them to pass the money to his house as he was not permitted to hold cash in the prison. [ 31 ] I find the Claimant's evidence on the Letter of Termination to be implausible. It is unlikely that the Company would direct COW2 and Encik 10 Azdhar to go the Penor Prison just to pass to the Claimant his allowances and claims. The Claimant gave evidence that his salary was banked into his bank account directly by the Company every month. The Company could have banked into the Claimant's bank account his claims and allowances as well especially when the Company knew that the Claimant was in the prison. [ 32 ] The Claimant did not call any of his family members to give evidence that COW2 and Encik Azdhar had handed over the Claimant's claims and allowances to them at the Claimant's house. The Claimant also did not call or produce any evidence to support that the signature on the duplicate copy of the Letter of Termination was not his signature and the Claimant admitted that he did not make any police report on the alleged forgery.[ 33 ] The learned Counsel for the Claimant pointed out that during cross examination, COW3 had admitted that he did not know whether the letter he had handed over to the Claimant on 12.10.2012 at the Penor Prison was the Letter of Termination as he did not see or read the content of the letter handed over to the Claimant. COW3 had given evidence that he was instructed by COW2 to deliver a letter to the Claimant and get his acknowledgement. [ 34 ] Be that as it may, COW3 did confirm that he saw the Claimant signed the acknowledgement of receipt, acknowledging receipt of the Letter of Termination. COW2 also confirmed that he instructed COW3 to deliver the Letter of Termination to the Claimant on 12.10.2012. Therefore, the logical 11 inference here is that the letter given to the Claimant must be the Letter of Termination. [ 35 ] On the facts, the evidence against the Claimant on the receipt of the Letter of Termination is overwhelming and largely uncontroverted. As such, the Court finds on the balance of probabilities the Company had indeed served and/or handed over the Letter of Termination to the Claimant on 12.10.2012 to terminate the Claimant's employment with the Company, effective from 31.07.2012 by reason of frustration of the contract of employment.[36] On Mr. lvlanogar's submission that adverse inference ought to be drawn against the Company for not calling Adzhar to give evidence at the trial, the Court is unable to agree with his submission. Adzhar was not a material witness in our present case. He was merely accompanying CDW3 to the Penor Prison to deliver the Letter of Termination and he was not the person who handed the letter to the Claimant. [ 3? ] Assuming I am wrong in my finding that the Letter of Termination had been served or given to the Claimant on 12.1D.212 by COWS. it also does not preclude the Company from relying on the doctrine of frustration when the Claimant was eventually made aware of the Letter of Termination some time end of November 2D13 as alleged by the Claimant. This is because frustration determines a contract automatically at the time of the frustrating event {Refer to ELF Exploration (Libya) Ltd. v Hunt lists} 1 WLR 3'33]. 12 Doctrine of Frustration [ 38 ] The learned Counsel for the Company, lvls. Wong submitted that a contract of employment or an employment relationship may be terminated by way of frustration. She made reference to the texts by Harvey on industrial Relations And Employment Law (Buttenvorths Series}I which were referred to in ivi'HS Aviation Sdn. Ellid'. v Zainol Alrntar lvfond Moor {2001} 2 NJ? 335 which reads as follows: "One instance of termination by operation of law is the doctrine of frustration: where, without the fault of either party, some supervening event occurs which was not reasonably foreseeable at the time when the contract was made and which renders further performance of the contracts either totally impossible or something radically different from what the parties bargained for, then the contract is forthwith discharged by operation of law. Typical instances of frustration of the contract are (subject always to the terms of the contract, expressed or implied) death or serious illness or injury of an individual party to the contract, a change in the law, or war." [ 39 ] The locus classicus case on the doctrine of frustration is of course the case of Taylor v Caldwell (1863) 3 B & S. 826 where Blackburn J said as follows:"Where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled unless....some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is nor to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the things without the fault of the contractor." [ 40 ] The principles of the doctrine of frustration of contract were summarised and succinctly laid down by Lord Brandon of Oakbrook in Paal Wilson & Co v Blumenthal (1983) 1 All ER 34, also popularly known as "The Hannah Bulmenthal's case" as follows:"....there are two essential factors which must be present in order to frustrate a contract. The first essential factor is that there must be some outside event or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting, which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it. The second essential factor is that the outside event or extraneous change of situation concerned, and 14 the consequences of either in relation to the performance of the contract, must have occurred without either the fault of the default of either party to the contract." [ 41 ] The learned renowned author, E. H Treitel in his book, Treitel, The Law of Contract, 8th Edition at page 803 stated as follows: "Thus where an employee has been prevented from performing the agreed work because he has been imprisoned for a criminal offence, the employer can rely on this circumstance as a ground of frustration, so as to defeat a claim by the employee for unfair dismissal; and he can do this even though the offence had no connection with the employment, so that its mere commission did not amount to a breach of the contract."[42 ] It is clear that the law allows the employer to frustrate the contract of employment with the employee when the employee is not able to perform the agreed work because he has been imprisoned for a criminal offence. [ 43 ] Likewise. the Claimant in our present case was not able to perform the duties required of him as an Auger Crane Cperator at the material time because he was detained in the Penor Prison for a criminal offence. The frustrating event was the detention of the Claimant in the Penor Prison which rendered the performance of the contract by the Claimant impossible. Therefore. the Company in the circumstances was entitled to rely on the 15 doctrine of frustration to terminate the Claimant's contract of employment with the Company. [44 ] However, it ought to be noted that where the alleged frustrating eyent results from one party's deliberate act, that party cannot rely on it as a ground of frustration, even though the act is not in itself a breach of the contract. An attempt by the employee in the Claimant's circumstances to set up the imprisonment as a ground of frustration, in an action against him by the employer on the contract, would inevitably fail on the ground that the employee could not rely on self-induced frustration. A. REFERENCE: [ 1 ] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under Section 20(3) of the Industrial Relations Act 1967 ("the IRA") in respect of the dismissal of Sathasivam A/L Muthusamy by his employer, Tenaga Nasional Berhad ("the Company"), purportedly on 27.11.2013. B. BACKGROUND OF THE CASE [2] The case was first heard by the former learned Chairman, Dato' Mohd Dusuki Bin Mokhtar in year 2017 who had since left the Industrial Court of Malaysia on transfer to other agency. Pursuant to Award No.958 of 2017, the learned Chairman had dismissed the Claimant's claims and/or case against the Company on the ground that the Industrial Court has no jurisdiction to hear the Claimant's case as the representation by the Claimant was only filed on 08.01.2014, beyond the time frame of sixty (60) days provided under the IRA. [3 ] The Claimant subsequently filed an application for judicial review vide High Court of Temerloh. Application for Judicial Review No.CB-25-04- 10/2017 against the aforesaid decision of learned Chairman in dismissing his claims and/or case against the Company. Pursuant to High Court Order dated 18.02.2020, the Claimant's claims and/or case was remitted back to the Industrial Court for the Industrial Court to determine whether the Claimant was dismissed for just cause or excuse.[45 ] lvlr. Manogar submitted that the doctrine of frustration cannot apply in our present case because the supervening event was foreseen as "Universal\". quoting what was purportedly said by CC-WE in his evidence. According to him, the case of SathiavaiA' Marothamuthu v Shell Malaysia Trading Sdn. Bhd. {1998} f MLJ F40 was distinguishable from our present case as the supervening event occurring in Sathiavai's case was not reasonably foreseeable at the time when the contract was made. [ 4E ] With respect, I do think that CC-W2 was referring to the supervening event when he said cases of detention and arrest are universal. Insteadr COWS! was making reference to the Company's Standard Operating Procedures for such cases which CCWE claimed to be universal. [ 4? ] In any event, it would be absurd to says that the arrest or imprisonment of the Claimant was something foreseeable at the time when 16 the contract of employment was made between the Company and the Claimant. No reasonable employer would want to employ an employee if it was reasonably foreseeable when the contract was made that the employee would one day be arrested and imprisoned and unable to perform his work. [43] Mr. lvlanogar submitted that the Letter of Termination was back dated, premature and pre-emptive and without due process. Therefore, according to him. the termination of the Claimant's employment was unfair and in breach of natural justice. In this respect. he had premised his argument largely on the findings of the learned former Chairman. Hariraman Palaya in Afro-d Sd'n. Bhd. v Muzaf Abdull'ah {2006) 2 \"J? 1292. [4Q ] The facts of Airod's case are similar to our present case. In Airod's case, the claimant was arrested and detained by the police from 24.66.2D1 until ZDHSEDDZ. approximately 9 months before he was given discharge not amounting to acquittal in respect to the charge of attempted murder before the matter could be transferred to the High Court. [ 5t] ] The learned Chairman in Airod's case decided that the doctrine of frustration was not applicable to the facts of the case primarily because he was of the view that the claimant's arrest and detention by the police was merely on suspicion and he had never been properly arraigned with a proper criminal charge in the High Court. [51 ] Therefore. the learned Chairman held that the decision to dismiss the claimant's services with the company. though taken in good faith, was 1? nevertheless reached too hastily as the termination was back dated to the date of arrest Le. 25 June 2on1 when the claimant was still in lawful police custody. [52] The facts of Airod's case can be distinguished from our present case in that the Claimant in our present case was indeed charged and tried in the Magistrate's Courts and Sessions\" Court albeit he was eventually acquitted after more than a year. [ 53 ] However. the real issue before the court is not whether the Claimant was arraigned with a proper charge or there was strong case against the Claimant for the criminal charges levelled against him. The relevant question is whether the supervening event i.e. arrest and detention have rendered the performance of the contract of employment impossible or something radically different from what the parties contemplated when they entered into it. [ 54 ] It ought to be noted that there may be situations where the inability to perform the contract by a workman caused by his arrest andior detention was only temporary. The arrest andfor detention of a workman do not automatically render the performance of the contract impossible. [ 55 ] Temporary unavailability of a workman caused by his arrest andfor detention by the police will not of itself frustrate a contract of employment. It will only have this effect where the arrest andfor detention renders the 18 resumption of performance of the contract within a reasonable time a practical impossibility. [ 56 ] CCWE gave evidence that he had taken into consideration various factors such as the date of the Claimant's arrestr the Claimant's drug test result, the charges levelled against the Claimant and his detention at Penor Prison before recommending to the Company to dismiss the Claimant. CCWE also testified that the Company did not know when the Claimant would be tried or his criminal cases would be concluded at the material time. [ 5? ] Given the above the circumstances. no reasonable employer would have been expected to continue with the Claimant's services. The Company cannot be expected to continue waiting indefinitely for the Claimant's return to service, not knowing if he would ever do so. [ 5E! ] Therefore, it cannot be gainsaid that the supervening event in our present case had put an end to the possibility of performance in a business sense. e.g. by making resumption within a reasonable time a practical impossibility. Thereforer the Company can invoke the doctrine of frustration to determine the contract of employment between the Claimant and the Company. Just Cause and Excuse [59] The doctrine of frustration is a legal concept in contract law which is peculiar only to the common law. The industrial law transcends contractual terms and the common law principles for wrongful dismissal. Under the statutory "dismissal without just cause or excuse" i.e. section 20 of the IRA, the law requires that a purported dismissal must be substantively justified and procedurally fair. [ 60 ] Mr. Manogar submitted that the Claimant was dismissed without due process and the dismissal was done in breach of natural justice. The Claimant contended that he was not given any show cause letter and the opportunity to be heard. [ 61 ] The approach taken in relation to the right to terminate the services of an employee in case of arrest or detention from the perspective of industrial law is very different from common law wrongful dismissal. The right to terminate the services in the case of arrest or detention in industrial law is associated to leave of absence. [ 62 ] The learned author, B.R. Ghaiye in Misconduct In Employment, 2nd Edition (Reprinted 1986) said as follows: "Every employer has got two distinct rights. He may either treat the absence on account of imprisonment or detention as a misconduct and may take disciplinary action amounting to dismissal or otherwise. In the alternative he may treat the said absence on account of imprisonment as inability or incapacity on the part of employees to fulfil the contract of service and,therefore, he may cancei the contract by an order of discharge simpliciter. \" [ BS ] The Claimant in our present case was terminated because as a result of his arrest and detention he had placed himself in a position in which he was not able to perform his part of the contract. It was a discharge simpliciter because the discharge was not for any misconduct. It is clear that in cases of discharge simpliciter no enquiry is necessary. [ E4 ] When the termination is due to continued absence of the workman on account of imprisonment or detention, it is doubtful what purpose would be served by a formal show cause letter being delivered to him and what conceivable answer he can give thereto especially when the arrest and detention were not attributable to the employer like in our present case. Therefore. the dismissal cannot be set aside purportedly on the ground that the principles of natural justice have been violated. [ 65 ] It is an established principle in the industrial jurisprudence that in cases of imprisonment or detention, the workers are still liable to apply for leave. Even when a workman is either under detention or imprisonment that does not automatically terminate the employment. It was still necessary for the Claimant to apply for leave either from the police custody or the Penor Prison if he was genuinely wanting to return to the Company after his release from the prison. [ 66 ] The Claimant was represented by the Company's workers' union known as Kesatuan Pencantuman Pekerja-Pekerja TNB ("the Union") when he was under the employment of the Company. The Claimant could have also requested the Union to apply for leave on behalf of the Claimant if the Claimant for some reasons could not do so but genuinely wanting to return to the Company after his release from the prison. [ 67 ] On the facts, there is no evidence that the Claimant and/or the Union had at any material time applied for leave of absence from the Company when the Claimant was detained at the Penor Prison. Therefore, the action of the Company in issuing the Letter of Termination to the Claimant after more than two months was justified. In any event, given the length of his detention i.e. approximately fifteen (15) months, it is doubtful that the Company would agree to grant the Claimant leave of absence. [ 68 ] It ought to be noted that an employer is not bound to wait for an indefinite period. It is against every principle of justice, equity and good conscience to require that the Company should mark present or give long leave to the Claimant who was detained for approximately fifteen (15) months at the Penor Prison and to keep the post vacant. [ 69 ] The Court having considered all the facts and the applicable principles of law including the common law doctrine of frustration and evaluated the totality of the evidence, both oral and documentary; and going by equity, good conscience and substantial merits of the case withoutregard to technicalities and legal form, finds that the Claimant was dismissed by the Company for just cause or excuse. [ 70 ] Accordingly, the Claimant's claims and/or case against the Company is hereby dismissed. HANDED DOWN AND DATED THIS 5th DAY OF AUGUST, 2021. -signed- (ANDERSEN ONG WAI LEONG) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA AT KUALA LUMPURC. FACTS [4 ] The Company is a multinational electricity company with its core activities in the generation, transmission and distribution of electricity to Malaysian households and business premises. [ 5 ] Pursuant to a letter of employment dated 30.05.2005, the Claimant commenced his employment with the Company as "Pemandu secara kontrak tetap berpenggal" on a one (1) year fixed term contract basis, effective from 15.06.2005. [ 6 ] At the end of the aforesaid contract term, the Claimant was offered employment on permanent basis with the Company as "Pemandu Kenderaan Tingkatan Biasa", Grade TD03 with effect from 15.06.2006 vide letter of employment dated 24.06.2006. [7 ] By a letter dated 31.01.2011, the Claimant was promoted to the position of Auger Crane Operator, Grade TD04 by the Company, effective 14.02.2011. The Claimant had held the same position until he was dismissed by the Company.[ 8 ] By a letter dated 11.02.2011, the Company informed the Claimant that he was required to report to the Manager of the Company's Raub Station where he would be placed in the Engineering Services Unit - Auger Crane Team, with effect from 14.02.2011. 3 [9 ] The Claimant was arrested and remanded by the police on 31.07.2012. He was subsequently charged in Raub Magistrates Court under Section 15(1) the Dangerous Drugs Act 1952 ("the DDA") and Raub Sessions Court under Section 39A(2) of the DDA. [ 10 ] The Claimant did not report for work on 31.07.2012 as he was in the custody of the police and did not inform the Company. The Company then received a call from the Royal Police District Headquarters in Raub, Pahang on 01.08.2012 informing the Company that the Claimant has been arrested on 31.07.2012.[ 11 ] Meanwhile, the Company had issued a show cause letter to the Claimant dated 31.07.2012 for his failure to report for work on 31.07.2012. However, the aforesaid show cause letter was never sent or delivered to the Claimant after the Company was being notified of Claimant's arrest on the following day on 01.08.2012. [ 12 ] By a letter dated 08.08.2012, the police informed the Company inter alia that the Claimant was arrested for possession of dangerous drugs on 31.07.2012 and was tested positive for Methamphetamine. [ 13 ] Subsequently, the police via letter dated 26.09.2012 informed the Company that the Claimant was being charged in court under Section 39B and Section 15(1) of the DDA and detained without bail at the Penor Prison, Kuantan, Pahang Darul Makmur ("the Penor Prison").[ 14 ] By a letter dated 10.10.2012, the Company informed the Claimant that given his detention at the Penor Prison and his inability to report for work at the work place and to perform his duty as Auger Crane Operator, his contract of employment was deemed frustrated and his last day of employment with the Company was on 31.07.2012 ("the Letter of Termination"). The relevant excerpts of the Letter of Termination are reproduced herein below as follows: "Kepada Encik Sathasivam all Muthusamy No. Pekerja: 10082122 Pengendali Kren Tingkatan Biasa 'B' Pejabat Pengurus Cawangan (Raub) Bahagian Pembahagian, TNB Melalui Pengurus Cawangan (Raub) Bahagian Pembahagian, TNB PERKARA SURAT PENAMATAN PERKHIDMATAN ATAS KEKECEWAAN KONTRAK (PENAHANAN) Saya merujuk kepada surat Ketua Bahagian Siasatan Jenayah Narkotik Daerah, Ibu Pejabat Polis Daerah, Raub Pahang bertarikh 26.09.2012 yang mengesahkan bahawa tuan telah ditahan di Penjara Penor, Kuantan di bawah Seksyen 39B Akta Dadah Berbahaya 1952 atas kesalahan memiliki dadah merbahaya.Akibat dari penahanan tuan itu, tuan tidak dapat hadir ke tempat kerja untuk menunaikan tanggungjawab tuan sebagai Pengendali Kren Tingkatan Biasa 'B' di Pejabat Pengurus Cawangan (Raub). Dengan ini, tuan telah mengecewakan kontrak perkhidmatan tuan dengan Syarikat. Dukacita dimaklumkan bahawa kontrak tuan dengan Syarikat telah berakhir mulai 31 Julai 2012. Oleh yang demikian, sila tuan kembalikan Kad/Pas Keselamatan, Kad Rawatan Perubatan dan harta benda Syarikat yang lain yang telah dibekalkan kepada tuan semasa tuan berkhidmat dengan Syarikat. Sekian." [ 15 ] The Claimant was eventually acquitted of all the criminal charges levelled against him by the Raub Magistrate's Court on 05.07.2013 and the Raub Sessions' Court on 28.10.2013, respectively. After the Claimant's release from the Penor Prison, the Claimant via his letters dated 13. 12.2013 and 06.01.2014 addressed to the Manager of TNB Raub Branch and TNB Industrial Relations Department respectively, appealed to the Company to allow him to return to his employment with the Company.[ 16] By a Memorandum dated o5.os.2o14. the Company informed the Claimant that the Company's Appeal Committee fer Non-Exesutiye Group after haying deliberated on the Claimant's grounds of appeal and his records of service with the Company had decided to reject the Claimant's appeal for him to return to work with the Company. D. THE CDMPAHY'S CASE [ 1?] It is the Company's pleaded case that the Claimant's contrast of employment with the Company was deemed terminated on the ground of frustration when the Claimant was arrested and detained at the Penor Prison. The Company contended that the Claimant was not able to perform his duties as an Auger Crane Operator as required under his employment contract with the Company because of the aforesaid arrest and detention at the Penor Prison. [18] The learned Counsel for the Company, Ms. Wong Heat Ching submitted that the termination of the Claimant's employment contract on the ground of frustration was with just cause and exouse and in aooordanoe with the Company's Disciplinary Procedure and in compliance with the principles of natural justice. [ 19 ] At the trial, the Company called three (3) witnesses to give evidence in support of the Company's case and they were as follows: (a) Nur Zaffan Binti Zainuddin ("COW1") who was the Company's Team Member (Green Energy Management), Retail Department, TNB Petaling Jaya. 7 (b) Kahar Bin Kadu ("COW2") who was the Company's Senior Engineer, TNB Klang; and (c) Rodzi Bin Mat Rasid ("COW3") who was the Company's Cableman ("Penyambung Kabel"). E. THE CLAIMANT'S CASE [ 20 ] The Claimant pleaded in his Statement of Case dated 21.07.2020 that his absence from work from the time he was arrested by the police on 31.07.2012 up to the time he was eventually released from the Penor Prison on 28.10.2013 or thereabout was not a wilful act by the Claimant but due to events that happened beyond his control