Simon all Anthonysamy v Royal Selangor Club [20181 1 ILJ 8 Industrial Law Journal (ILJ) INDUSTRIAL COURT (KUALA LUMPUR) SAROJINI KANDASAMY CH AWARD NO 1705 OF 2017 24 November 2017 Case Summary Labour law - Employment - Dismissal - Whether company had proven claimant's alleged misconduct of being absent without any reasonable explanation - Whether dismissal was with just cause or excuse - Industrial Relations Act 1967 s 20(3) The claimant was promoted to Assistant Food and Beverage Executive (Chief Steward) and subsequently confirmed in that position vide letter 16 August 2012. The claimant was absent to work from 6 January 2015 to 11 January 2015 without prior approval. Mr David Siew, the company's General Committee member and Chairman of the HR Sub-Committee personally called the claimant on 9 January 2015 to enquire about his whereabouts. The claimant was advised to see the company's management to solve the problem, but the claimant failed to show up. Puan Salina Jaafar, who is the Assistant Manager of Human Resources (COW1) of the company vide a letter dated 14 January 2015 informed the claimant that his contract of service with the company was broken due to the claimant's absent from work since 6 January 2015 without prior leave or any reasonable explanation. The claimant averred that in late December 2014 he faced a serious misunderstanding with his wife, and on 2 January 2015 he discovered that his wife was missing from home. The claimant stated that he met Mr Kevyn Lee Seng Ngian who was the General Manager (COW3) to apply for leave but COW3 was not sympathetic towards his situation. During his absence, the claimant had been in contacted with the company's management, where he duly brief them of his location, situation and the claimant also assured the company that he will return to work as soon as he resolved his family matters. When the claimant returns to work he was told that his service been terminated. The claimant contended that the company had full knowledge of his absence and they failed to accord him a reasonable chance to explain his reason of absence. Issues to discuss; (a) whether the company had proven claimant's alleged misconduct of being absent without any reasonable explanation and (b) whether the dismissal was with just cause or excuse. Held, allowing the claim and awarding the claimant back wages amounting to RM52,020 and compensation in lieu of reinstatement:(1) The court found that the claimant had taken reasonable steps to inform the company's management about his absence to work. The claimant's request for leave are clearly based on extenuating circumstances that are not the norm, where in this case, the claimant's wife missing from home. Such circumstances demand a sympathetic from the superior (COW3 and COW1). The claimant had informed COW1 that he had family problems and COW3 did not allow him to take leave. The court found that COW3 as the authority in-charge for deciding the leave application of the claimant failed to exercise his management prerogative in a fair, just and compassionate manner and the action taken by COW3 was harsh, perverse and in violation of the principles of fair labour practice (see paras 31, 34 & 39). (2) There are no evidence before the court that the power of dismissal of employees in the company had been delegated to Mr David Siew or COW3. COW3 admitted in his statement that he did not comply/seek the approval of the General Committee prior to terminating the claimant's employment. He agreed that he did not inform the General Committee of the claimant's termination. COW3 had exercised the decision to dismiss the claimant arbitrarily as he was not vested with any power. Thus the court found that COW3's UNITAR 1 Page 2 of 16 Simon a/l Anthonysamy v Royal Selangor Club decision to dismiss the claimant was null and void and accordingly the claimant's dismissal was invalid because it was carried out without compliance with the company's policies and procedures (see para 45). (3) The court concluded that the claimant's dismissal was without just cause or excuse, and on the substantial merits of the case the claimant are entitled to succeed on his claim of unjust dismissal. The court awarded the claimant to be paid RM52,020 as the total amount of back wages and be reinstated to the position that he held earlier before his dismissal (see paras 49 & 55-56).Notes For cases on dismissal, see 8(2) Mallal's Digest (5th Ed, 2017 Reissue) paras 1178-1258. Cases referred to Ann Bee (M) Son Bhd v Noor Raziff Ramly [1999] 1 ILR 96, IC (refd) Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129; [1981] 1 LNS 30, FC (refd) Ho Wah Genting Marketing Son Bhd v Ismail Kassim Mohd Yussof [1998] 2 ILR 464, IC (refd) Ireka Construction Berhad v Chantiravathan Subramaniam James [1995] 2 ILR 11, IC (refd) KA Sanduran Nehru all Ratnam v I-Berhad [2007] 2 MLJ 430; [2007] 1 CLJ 347, CA (refd) Milan Auto Son Bhd v Wong Seh Yen [1995) 3 MLJ 537; [1995] 4 CLJ 449, FC (refd) Munusamy v Public Prosecutor [1987) 1 MLJ 492; [1987] 1 CLJ 205;; [1987] CLJ (Rep) 221, SC (refd) Saravanan Tanimalai v A W Faber Castell (M) Son Bhd [2015] 3 ILR 384, IC (refd) Telekom Malaysia Kawasan Utara v Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 MLJ 129; [2002] 3 CLJ 314, CA (refd) Legislation referred to Employment Act 1955 s 15(2) Evidence Act 1950 s 114(g) Industrial Relations Act 1967 ss 20, (3), 30(5) Munjit Singh (Malaysian Trades Union Congress (MTUC) for the claimant. A Ramadass (T Kavitha with him) (Ramadass & Assoc) for the company.{3]The company contended that the claimant did not bring to the attention of the management at the material time of any serious misunderstanding with his wife that had allegedly caused stress to him. The company had no knowledge of the contention that the claimant's wife was missing from his house on 2 January 2515. The company denied that the claimant had met the company's management and relayed his predicament or that he had made any application for leave. The company avened that the claimant had seen CDW3 on 5 January 2515 to explain the reason for his absence on 31 December 2014 and 1 January 2015 and that he did not submit any application for leave. MCDW1 notied Mr David Siew vide an lntemal email correspondence dated 13 January 2515 [CDEl-'l p 35] that the claimant had not reported for work from 5 January 251 5, and since he had not reported for work on 12 January 2515 as promised nor had he applied for leave in respect of the said period, she would be issuing the claimant with a letter of termination. Mr David Slew vide an email dated 14 January 2515 [EOE1 p 35] advised CIDWl to do the necessary to terminate the services of the claimant since he had been absent from work on the said days without prior approval. The company vide letter dated '14 January 2015 [COB1 p 35] wrote to the claimant informing him that since he had been absent from work since 5 January 2515 without prior leave or any reasonable explanation, his contract of service with the company was deemed to have been broken in accordance with s 15(2l of the Employment Act 11-355. The company further avened that it was left with no alternative but to consider that the claimant had terminated his contract of emglogmenf for being absent from work for more than two consecutive working days without prior leave or without reasonable excuse. The company also further submitted evidence of the claimant's previous misconducts in the company spaning from 1939 to December 21314. THE CLAIMANTS EASE I'l]The claimant gave evidence on his own behalf during the hearing on 15 September 2515. The claimant commenced emoent' with the company on or about '11 September 1993 as a waiter in the Food and Beverage Department. The claimant averred that due to his consistent good work ethics and conduct he was gradually promoted to higher positions and was last elevated to the position as Food at Beverage Executive and his last drawn salary was Ftl'vl2.55l. {11]The claimant averred that somewhere in late December 2914 he faced some serious misunderstanding with his wife. Following that incident the relationship with his wife became stressed. The claimant further evened that on 2 January 2915 he discovered that his wife was missing from their home. Arising from the situation, he made frantic attempts to look for his wife but to no avail. As a result the claimant met the company's management and relayed his predicament. He also met CDW3 to apply for leave as he wanted to locate his wife. Etut COWS was not sympathetic towards his situation and refused to entertain his request for leave. As the claimant's circumstances were compelling, he proceeded with abstaining from work because he had to look for his wife. During his absence, the claimant had been in contact with the company's management where he duly briefed them of his location, his situation and assured them he will return to work as soon he resolved his family situation. {12]When the claimant went back to the company he was told that his services were already terminated. The claimant's attempts to meet up with the company's management were futile. The claimant contended that the company was inconsiderate and inhumane to his plight and further contended that the company had full knowledge of his absence. The claimant will also contend that the company had deliberately failed to accord him a reasonable chance to explain his reason for absence and thereby outrightty denied him the course of natural justice. THE LAW AND BURDEN OF PROOF [13]The function of the Industrial ICourt under s 243' of the i'ndustnr'ai Fi'efati'ons Act 1'95? was clearly stated in the Federal Court case of Milan Auto Sdn Bhd v Wong Sch Yen [1995} 3..."ti'lvl .533: [1995] 4 CL] 449, as follows: 'As pointed out by the Court recently in Wong Yuan Hock v Syan'frat Hang tecng Assurance Sdn Bhd and another appeal gigs MLJ F53. the function of the Industrial Court in dismissal cases on a reference uncler is twofold, rst. to determine whether the misconduct complained of by the employer has been established. and secondly. whether the proven misconduct constitutes just cause or excuse for the dismissal.'. {14]It is trite law that the company bears the burden to prove that the claimant had committed the alleged misconduct and that the misconduct warrants the claimant's dismissal. In freka Construction Settled v Chandravathan Submmaniam James [1995] 2 ILR 11 (Award No 245 of 1995} it was stated as follows: 'It is the basic principle of industrial jurisprudence that in a dismissal case. the employer must produce convincing evidence that the workman committed that offence of which the mrltrnan is alleged to have been dismissed. The burden of proof is on the employer to prove that he has just cause or excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be. either a misconduct. negligence or poor performance based on the case'. [15]The standard of proof needed to be met by the company is on a balance of probabilities which is the civil standard. (See Telekom Malaysia Kawasan Utara v Krishnan Kutty all Sanguni Nair & Anor [20021 3 MLJ 129; (2002] 3 CLJ 314). This approach was reaffirmed in KA Sanduran Nehru all Ratnam v I-Berhad [2007] 2 MLJ 430; [2007] 1 CLJ 347 at p 362 CA. THE ISSUES [16]It is not disputed that the company vide letter dated 14 January 2015 had terminated the claimant as he was absent from duty from 6 January 2015 to 14 January 2015 without any reasonable explanation. The company in accordance with $ 15(2) of the Employment Act 1955 allegedly deemed that the claimant had broken his contract of service with the company and thereby his employment was terminated effective 6 January 2015. The case of Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129; [1981] 1 LNS 30 is authority for the proposition that UNITAR 1 Page 7 of 16 Simon a/l Anthonysamy v Royal Selangor Club the court is restricted in its inquiry into the veracity of the reason chosen by an employer for the dismissal. Raja Azlan Shah CJ (as His Highness then was) speaking for the Federal Court ruled: "Where representations are made and are referred to the Industrial Court for enquiry it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him the duty of the Industrial Court will be to enquire whether that excuse has or has not been made out. If it 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. The proper enquiry of the court is the reason advanced by it and that court or the High court cannot go into another reason not relied on by the employer or find one for it.'. [Emphasis added][17]It is the duty of this court to determine whether the company on a balance of probabilities had proven the claimant's alleged misconduct of being absent without any reasonable explanation. If the court makes a finding of fact that the alleged misconduct has been proven, then the court must determine whether his dismissal was with just cause or excuse. EVALUATION OF EVIDENCE AND THE FINDINGS OF COURT [18]The letter of termination dated 14 January 2015 stated that the claimant was absent from work from 6 January 2015 to 14 January 2015 without any reasonable explanation. In this regards the company's allegation that the claimant was absent without any reasonable explanation (excuse) is the crux of the matter which had led to his dismissal. [19]The claimant thus has the burden to prove the fact that he had a reasonable excuse to be absent from work and that he had informed the company's management of the reasonable excuse at the earliest opportunity. This was held in the case of Ann Bee (M) Son Bhd v Noor Raziff Ramly [1999] 1 ILR 96 where the learned Industrial Court Chairman held as follows: "..the burden is on the claimant to prove that he had reasonable excuse for such absence and had informed, or attempted to inform, the company of such excuse.'.[20]Based on evidence tendered during the hearing, the claimant was absent from work from 31 December 2014 to 1 January 2015 without the prior approval of COW3. It is undisputed that COW3 is the authority in charge for approving the leave application of executive staff, including the claimant. Subsequently a show cause letter dated 2 January 2015 was issued to the claimant. In his reply to the show cause letter dated 7 January2015, the claimant stated that he was absent from work on 31 December 2014 and 1 January 2015 because he had family problems. The company found his explanation unsatisfactory and issued him a second warning letter dated 8 January 2015. The claimant stated in evidence that he had never received the said warning letter dated 8 January 2015. [21] The claimant returned to work on 3 January 2015 as he was on medical leave on 2 January 2015. The claimant continued to work on 4 January 2015 and 5 January 2015. The claimant in evidence stated that he received a call UNITAR 1 Page 8 of 16 Simon a/l Anthonysamy v Royal Selangor Club from his friend at about 6.30pm on 4 January 2015 informing him that his wife had left his house with another man. The company raised an issue that the claimant was inconsistent on the date his wife went missing, namely in the SOC the claimant stated the date as 2 January 2015 but in his testimony before the court he stated the said date as 4 January 2015. The claimant admitted his mistake and confirmed that his wife ran away on 4 January 2015. The claimant averred that he made several futile attempts to contact his wife through his handphone. Nevertheless the claimant continued to work until he finished work at 12 midnight on 4 January 2015 wherein thereafter he went around Kuala Lumpur looking for his wife, but again in vain. The company in its written submissions at para 10.17 raised the issue of the claimant's work schedule on 4 January 2015 [COB-2 p 32] wherein the time he clocked out was recorded as 1600 hours on 4 January 2015, and not 12 midnight as alleged by the claimant in evidence. This matter of contention was never raised during the claimant's cross-examination and the claimant was not given any opportunity to explain any ambiguity between his evidence in court and the said work schedule. It is now unfair for the company to raise this matter during submissions and expect the court to make its own deductions bereft of any plausible explanation from the claimant.[22]The claimant in evidence stated that he had met COW3 on 5 January 2015 and duly informed him about his personal situation where he pleaded with COW3 for more leave to look for his wife, but in vain. The claimant's subsequent actions on 5 January 2015 are appropriately detailed by him as follows: Later on 5 January 2015 I reported to work with intention to apply for leave to enable me to search for my wife. But soon after that I was informed by the Cashier at Veranda F&B Outlet stating the General Manger Mr Kevyn Lee (COW3) wanted to meet me. Accordingly I went to the the GM's office and met him. He asked me about my absence on 31 December 2014 and on 1 January 2015, I explained to him that I was on MC on 31 December 2014 while I took PH on 1 January 2015. The GM was angry with me because that was busy period, I explained to him I was really sick. I also infom Mr Kevyn Lee I want to apply emergency leave for one week because my wife has gone missing from my house last night and that I want go and search for her. Mr Kevyn Lee said he cannot give the leave because you just return from leave, he was talking to me very angrily with raised voice. He said you want simply drive around and search your wife like that..I answered that he should understand my situation and please give me the leave, he replied loudly "cannot", if you wish you work otherwise you resign, leave from here my door is open, he went to the door and opened it told me you leave now.' [23]COW3 admitted in evidence that when the claimant came to his office on 5 January 2015 to explain about his absence from work on 31 December 2014 and 1 January 2015, the claimant informed him that his wife had run away from home. COW3 stated that he found the claimant's explanation unacceptable and unreasonable because his wife ran away voluntarily, and it was not an instance of missing persons. COW3's cynicism, brashness and lack of compassion towards an employee's plight is obvious wherein in his evidence he stated: 'Q: Do you agree that a person's family has major issue if wife has run away? A: I do not find it an acceptable issue for a staff for not turning up for work on the two busiest days of the year. Q: You owe a duty to employees for employee's welfare as a General Manager? A: I am not responsible for employee's welfare.'[24]Later on during re-examintion by the company's learned counsel, COW3 further elaborated that the company UNITAR 1 Page 9 of 16 Simon a/l Anthonysamy v Royal Selangor Club owes a duty to an employee's welfare only if it pertains to that employee's personal health and safety. According to COW3 the company is not responsible for a family member's welfare. [25]On 5 January 2015 when the claimant met COW3, he alleged that he had also verbally applied for emergency leave of one week from 6 January 2015 to look for his wife who had run away from home. COW3 denied in evidence that the claimant had verbally applied for the said leave. I find COW3's denial rather dubious as the claimant was desperate to look for his wife who had run away from home on 4 January 2015 and he could only do so by taking leave of absence from his work with the approval of COW3. I must add that during the hearing I found COW3 was evasive in his testimony before the court and there were many glaring doubts and inconsistencies in his evidence. I thus do not doubt that the claimant had in fact made the said application to COW3 on 5 January 2015. Unfortunately COW3 did not accept the claimant's excuse, and he was told to put aside his family problems and continue to work. The claimant's evidence is as follows: "Q: Why did you not apply for leave on 5/1/2015? A: Saya nak persertujuan daripada GM untuk apply cuti satu minggu. Untuk Executive, GM yang approve leave. GM kata tak boleh bagi cuti. Masalah keluarga letakkan tepi.Q: Apa kaitan ofis tutup (pada 03.01.2015 dan 04.01.2015) dengan permohonan cuti? A: Hal keluarga saya hendak bincang dengan GM. On 05/01/2015, saya minta cuti dengan GM secara verbal daripada 06/01/2015 onwards (1 week) to look for wife. GM said cannot take leave. I went to Salina's(COW-1) office, she said you apply for leave and pujuk GM to approve leave. Went to GM again to approve leave. He said no. So I continued work on 05/01/2015. From 06/01/2015 onwards I did not work as went to look for wife (went to Johor to look for her).' [26]Pursuant to the claimant's meeting with COW3 on 5 January 2015, it was as clear as day that COW3 refused the claimant's verbal request to apply for leave for one week from 6 January 2015 to look for his wife who had run away. Therefore the claimant did not formally apply for leave from 6 January 2015 through a leave application form as clearly COW3 would have rejected the leave application. The court is of the view that although leave must be applied through a written form, this does not mean that an employee is prevented from seeking the prior approval of his superior before applying for the leave through a leave application form. Thus the company's argument that COW3 could not approve any leave as the claimant had not made any leave application vide the requisite form does not hold any water as clearly COW3 had verbally informed the claimant that he had rejected his prior verbal application for the said leave.[28]The claimant had also informed Mr David Siew of his predicament relating to his wife having run away from home. The claimant in evidence stated that on 9 January 2015 he received a telephone call from Mr David Siew who had asked him why he was absent from work from 6 January 2015 until that day? The claimant told Mr David Siew it is because he had family problems and that he was still in Johor. He further stated that he will not promise when he will return to work but will do so when he has solved his family problems. COW1 corroborated this fact when she stated in COWS-1 at Q & A 44-48 that Mr David Siew, who had called the claimant through his mobile phone on 9 January 2015, was told by the claimant that his absence from work was due to his family problems. However according to COW1, Mr David Siew told her that the claimant had told him that he would report for work on 9 January 2015. The court finds that there is clearly a discrepancy in evidence on what the claimant told Mr David Siew and what Mr David Siew allegedly told COW1. The company did not call Mr David Siew to give evidence in court, and the claimant's learned counsel raised an adverse inference against the company as it has intentionally suppressed material evidence to the court which is tantamount to misleading the court and withholding evidence which may implicate the company's case. COW1 confirmed that Mr David Siew is no longer a member of the company and resigned with effect from 31 July 2015. However it is obvious from the evidence tendered during this hearing that Mr David Siew was a very involved party in regards his communication and liasion with the claimant pertaining to the claimant's absence from work since 6 January 2015. The court finds that Mr David Siew is an important and material witness (See Munusamy v Public Prosecutor [1987] 1 MLJ 492; [1987] 1 CLJ 205; [1987] CLJ (Rep) 221). The company should have called Mr David Siew to testify so that the claimant will have an opportunity to cross-examine him to enable the court to verify and confirm as to whether the claimant's evidence is credible based upon the balance of probabilities. At the same time, the court was also denied the opportunity to assess his evidence and demeanour during this hearing. In Ho Wah Genting Marketing Son Bhd v Ismail Kassim Mohd Yussof [1998] 2 ILR 464, the learned Chairman of the Industrial Court held that the fact that the material witness was no longer with the company was not a good enough reason for his non-attendance as the issue of the claimant's employment was at stake. The company also did not produce proof as to the steps it had taken to ensure the attendance of Mr David Siew during this hearing. In the circumstances this court invokes an adverse inference under s 114(g) of the Evidence Act 1950 against the company for non-production of an important and material witness, namely Mr David Siew. [29]In addition the claimant vide his letter dated 7 January 2015 addressed to Mr Bryan Perera, the company's President, had informed him that he was having family problems. The claimant also informed Mr Bryan Perera about his meeting with COW3 on 5 January 2015 and that during that meeting COW3 did not want to listen to the claimant's problem. In the letter the claimant wrote 'Lastly his (COW3) answer to me was that he did not need me any more to this Club (company) and ask me to leave the company if I prefer (not) to work here and look for another job.'.[27]The claimant had also informed COW1 on 5 January 2015 that he was having family problems, yet nothing positive was done by COW1 who turned a deaf ear to the claimant's predicament. COW1 alleged that the claimant UNITAR 1 Page 10 of 16 Simon all Anthonysamy v Royal Selangor Club did not inform her of the nature of his family problems on 5 January 2015. He only informed her of the exact nature of his family problems when he called her on 9 January 2015. I find this hard to believe as on 5 January 2015 the claimant had already informed COW3 of the exact nature of his family problems, and it is incredulous for COW1 to allege that she was subsequently not informed of the said family problems by the claimant when he saw her immediately after seeing COW3 on 5 January 2015. I must add that based on the demenaour od COW1 during this hearing I find that she is an unreliable witness as her evidence before this court is riddled with contradictions and inconsistent answers. Further COW1's evidence contradicted with the company's pleaded case as well as her own witness statement at COWS-1. Her own evidence was so inconsistent that this court must exercise caution when considering and evaluating the said evidence.[30] The above mentioned pieces of evidence are material to the claimant's case as substantiating the fact that prior to applying for leave for one week from 6 January 2015 he had sought the permission of COW3 by putting forth his reasonable excuse for seeking his prior approval in regards the said leave. The claimant had also informed the company's management, namely COW1, Mr David Siew and Mr Bryan Perera of his predicament and that his request for leave from 6 January 2015 been rejected by COW3. UNITAR 1 Page 11 of 16 Simon a/l Anthonysamy v Royal Selangor Club [31]The court finds that the claimant had taken reasonable steps to inform the company's management, namely COW1 and COW3 as well as Mr David Siew and Mr Bryan Perera, about his predicament that was keeping him away from his work since 6 January 2015. The claimant's request for leave is clearly based on extenuating circumstances that are not the norm. It is not every day that one's wife runs away from home. Such circumstances demand a sympathetic ear from one's superior/boss. COW3 and COW1 had never disputed the claimant's reason for his absence as they admitted that they never requested for proof that his wife had run away. The claimant admitted that he never filed a police report due to the social embarrassment such report could cause to the respective families. This is particularly so in a closed community where culturally shame and not empathy is thrown upon the families who are in such dire circumstances. [32]In a plethora of Industrial Court decisions, it has been held that no employee can claim as a matter of right leave of absence without permission. The granting of leave to an employee is a management prerogative and is at the absolute discretion of the management. In the book 'The Law of Industrial Disputes' the distinguished author OP Malhotra at pp 1135-1137 stated: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.... The mere fact that he had applied for leave would not be a good defence when the leave was refused by the employer in exercise of his discretion, unless it could be shown that the action taken was actuated by the desire to victimize the workman... Another defence open to an employee against the charge of absence without leave is that the absence was on account of circumstances beyond his control. For instance where the absence of a workman was on account of his sudden or serious illness or the serious illness of a relation, that would be an extenuating circumstance which the employer will have to take into consideration...'. [Emphasis added] [33]On the extent of management prerogative, the courts have held that these prerogatives are subject to the normal limits of reasonableness and legality. Dr Dunston Ayadurai in his book 'Industrial Relations in Malaysia: Law and Practice' 3rd Ed, stated at pp 223-224: "...it has made it clear that every prerogative is a qualified prerogative, and that any abuse of a prerogative will be struck down by the court. Indeed, in Ming Court Beach Hotel v National Union of Hotel, Bar & Restaurant Workers (Award 136 of 1987) the court pointed out that almost 10 years earlier in Malayan Agricultural Producers Association v All Malayan Estates Staff Union (Award 120 of 1978) it had declared: Time and again, the courts here and in the British Commonwealth [now the Commonwealth of Nations] have held that managerial prerogatives are not absolute. Where it is shown that the exercise of these prerogatives is not bona fide, or amounts to unfair labour practice, or indicates victimization, the Industrial Court will not hesitate to strike down such exercise as bad.The following principles are as valid today as when they were first stated in Lim Sim Tiong v Palm Beach Hotel (Award 48 of 1974): It is a basic principle of industrial law that a court would be wrong to interfere with the bona fide exercise of powers which are given to management by the common law and by contracts of service or which are inherent in management. If there has been no abuse of discretion, no discrimination, no capricious or arbitrary action, if the management has acted in good faith and upon fair investigation, an arbitrator should not disturb the decision taken by the employer. However, as a court of equity and good conscience, this court will intervene not only where there has been victimization, but also where it is of the opinion that upon the substantial merits of the case the action taken by the management was perverse, baseless or unnecessarily harsh, or was not just or fair, or where there has been a violation of the principles of natural justice, or where there has been unfair labour practice or other mala fide action on the part of the management in the exercise of its powers.' [Emphasis added] [34]The court is of the view that although it is the management's prerogative to approve leave, yet that prerogative must be exercised judiciously and reasonably. The claimant had dutifully sought due approval for leave from COW3 prior to applying for the leave through a leave application form. He met COW3 and explained his situation but to no avail. The claimant also informed COW1 that he had family problems as well as the nature of the problems and further informed her that COW3 did not allow him leave. From these material facts it is crystal clear that the claimant was in distress following his wife's disappearance and that the company's management had first hand knowledge of the claimant's dire situation that prompted him to apply for leave verbally from COW3. Yet in the letter of termination, the company denied knowledge of the claimant's reasonable explanation, namely that his wife had run away from home. This denial was similarly pleaded by the company in the SIR.{35]The court concludes that the claimant's plight of being thnjst in a situation where his wife had an away from home constitutes within itself a reasonable excuse for his absence from work that should have been taken into account by COWS when he was considering the claimant's prior verbal application for leave as it was a situation that was not within the control of the claimant. The company's management was morally and legally duty bound to show compassion and extend a helping hand to the claimant by allowing him reasonable leave to ease his unfortunate situation and search for his wife. But instead what he got was blank and inhumane rejection of his verbal leave application from COWS. In addition to this, the claimant was asked to put aside his problem and go back to work. Ctthenwrise the claimant was asked to resign. The court is of the view that any reasonable man faced with similar circumstances as the claimant would have done what the claimant subsequently did, that is. to take matters into his own hands by absenting himself from work without approval in the hopes of locating his wife as soon as possible. [35]The court is of the view that CDWE's attitude depicted a gross lack of empathy, sympathy and care towards an employee, these being the hallmark of traits that must be inherent in an employer to nurture a healthy employer employee relationship of mutual trust and respect. The claimant being in such an unfortunate situation was clearly not in the frame of mind to work as he was torn apart when faced with the emotional upheaval caused by his wife mnning away from home. The evidence of the claimant appropriately described his frame of mind at the material time: \"i lelt the General lvlanager's {COW-3,} room and straight went to the Human Flesourees Manager Puan SalinaiClDW-tl andi told her about my meeting with lvl'r Kevyn tee and i told her my situation about my wife is missing from my home and lvtr Kevyn don't want to approve my leave. ltoid Puan Saline that i must go on leave immediately but Puan Selina said what UNITAR1 Page 13 of 15 Simon ail Anthonysamy v Royal Selangor IClub if Mr lt'evyn don't approve your ieave?i told herl am very troubled and ieannot wort: but she did not give me any hope. After that i return to my wort: place but could not do anything and after my break time about 5pm i left the workplace and went home and continued to real: for my wife. '. {37]The events led to the claimant being emotionally drained as he went in search of his wife as far as Johor Bath as was pleaded in the EDI: and in his witness statement. lClealty the claimant's personal health was affected when his wife ran away and COWS should have taken steps to address this issue with the claimant rather than shout at him and threaten him to resign. COWS should have provided some form of comfort to the claimant and listened to his impassioned pleas for assistance as the claimants state of mind did not bet him to carry out his ofcial duties and responsibilities in the company effectively. COWS's attitude is shameful and not one that augurs well with the image of the company which by large has the status of being a social and recreational club. {33]COW'3 and CDWl were vested with the duty to look after the welfare of the company's employees but they had taken the callous. lackadaisioal and uncaring attitude towards the claimant's unfortunate situation which is evident when they had failed to show any form of compassion to the claimant's predicaments. {39]The court nds that COWE as the authority in-charge for deciding the leave application of the claimant for one week from 6 January 215 had failed to exercise his management prerogative in a fair, just and compassionate manner and the action taken by him was harsh, perverse and in violation of the principles of fair labour practice. [4D]The court also nds that there are a number of procedural improprieties when the company executed its decision to terminate the claimant. Firstly the company submitted that prior to the termination of the claimant's services. it have given the claimant a show cause letter dated '12 January 2D15. However it is undisputed that the said show cause letter was never served upon the claimant, nor was it sent to his postal address. GOW1 did not provide any proof that she had notied the claimant by other means such as by telephone instructing him to collect the said show cause letter and give his explanation. COWl merely asserted that the said show cause letter could not be served upon the claimant as he had failed to report for duty on 12 January 2D15. Thus it is apparent that the claimant was not accorded any opportunity to explain his absence from work from 6 January Z to 11 January 21315. {41]Secondly the date of termination stated in the letter of termination was 6 January 21315. CDW1 admitted that she had prepared the letter of termination and had erroneously stated the claimant's date of termination as E January 215. CDW'l conrmed in evidence that the date of the claimant's termination should have been 14 January 21315 and not 6 January 2015 as the letter of termination was issued only after the claimant failed to turn up for work on '14 January 21115. The said error in the claimant's date of termination was never claried to the claimant prior to this hearing. [42]Thirdly COW3 admitted that he did not refer the claimant's case to the Disciplinary Board set up under the company's Constitutional Rules that were approved by the Registrar of Societies on 4 April 2013 [COB-2 pp 17-25]. He stated during re-examination that 'this case did not go through the Disciplinary Committee (Board) because it is based on the Employment Act 1955 of self-termination'. The letter of termination stated that the claimant was terminated in pursuance of s 15(2) of the Employment Act 1955. The court is of the view that COW3 arbitrarily UNITAR 1 Page 14 of 16 Simon a/l Anthonysamy v Royal Selangor Club terminated the claimant on the misguided notion that the claimant was subject to the provisions of theEmployment Act 1955 . Clearly the claimant was not subjected to the Employment Act 1955 as has been conceded by the company in its written submission at para 11.6. I must state that even if the Employment Act 1955 applied to an employee of the company, there is no evidence that the company's Constitutional Rules exempt the termination of that employee from the procedural requirements as set out therein, namely that the case concerned should be reffered to the Disciplinary Board. [43] In trying to draw some form of similarity, the company had in its submission liberally quoted my decision in the case of Saravanan Tanimalai v A W Faber Castell (M) Son Bho [2015] 3 ILR 384 in regards absenteeism from work. I must stress that the facts of Saravanan Tanimalai and this case are totally different and most importantly the claimant in that case fell with the scope of the Employment Act 1955. [44] Fourthly the most glaring procedural impropriety was that COW3 did not have the authority or power to dismiss the claimant. The company's Constitutional Rules provide that the only authority in the company vested with the power to dismiss employees of the company is the company's General Committee. At COB-2 p 25 para 24.17 it states:[45]There is no evidence before the court that the power of dismissal of employees in the company had been delegated to Mr David Siew or COW3. COW3 admitted in evidence that he did not comply with para 24.17 of the company's Constitutional Rules when he dismissed the claimant as he did not seek the approval of the General Committee prior to terminating the claimant's employment. He agreed that he did not inform the General Committee of the claimant's termination. COW3 also admitted in evidence that 'I did not inform Mr David Siew that I am terminating the claimant's services.'. COW3 had exercised the decision to dismiss the claimant arbitrarily as he was not vested with any power to dismiss the claimant. Thus the court finds that COW3's decision to dismiss the claimant was null and void and accordingly the claimant's dismissal was invalid because it was carried out without compliance with the company's policies and procedures, in particular the company's Constitutional Rules. [46]The company had elaborately set out the many instances of the claimant's past misconduct during his tenure of employment in the company. However I agree with the claimant's learned counsel's submission that these misconducts cannot be used to support a termination as expressly provided in Article 47.4 of the Employees Handbook [COB-2 pp 3-16] that provides as follows: "Written warnings expire when they become one (1) year old. They are in the Employee's confidential file for reference, but cannot be used to support a termination or recommendation after that time.'.[47] Most recently the company issued a written warning to the claimant dated 12 December 2014 [COB-1 p 26] as he was absent from the work place while on duty on 20 November 2014. The claimant's excuse for being absent from duty on 20 November 2014 is noted but it is premised on totally different circumstances from the case before this court, namely the said absence on 20 November 2014 was due to reasons within the control of the claimant. Further it is undisputed that the claimant had never received the second warning letter dated 8 January 2015 in respect of his absence from work on 31 January 2014 to 1 January 2015 which was related to the same excuse of family problems due to his wife running away from home. [48]Accordingly I find the claimant's past warning letters are inadmissible and/or irrelevant in the consideration of the punishment for his absence from 6 January 2015 to 14 January 2015. Furthermore the company in its letter of termination dated 14 January 2015 had never stated that it had considered the claimant's past misconduct when imposing the punishment of dismissal upon the claimant. [49]In conclusion, taking into account the totality of the evidence adduced by both parties and bearing in mind s 30(5) of the Industrial Relations Act 1967 to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form, the court finds that the claimant's dismissal was without just cause or excuse, and on the substantial merits of the case the claimant is entitled to succeed on his claim of unjust dismissal.REMEDY [50]The claimant had sought for the remedy of reinstatement. It must be emphasized that the remedy of reinstatement is the primary remedy provided for in s 20 of the Industrial Relations Act 1967. The company on the other hand had not submitted any evidence to address the issue of reinstatement and the status of the claimant's position in the company which he held at the time of his dismissal. [51]On the issue of 'reinstatement', the eloquent author Dr Dunston Ayadurai in the book 'Industrial Relations in Malaysia: Law and Practice' 3rd Ed stated at p 304: 'In Han Chiang High School v National Union of Teachers in Independent Schools (Award 330 of 1990): The law is clear on the issue of reinstatement Reinstatement requires the employer to treat the employee as if he had never been dismissed, thus restoring all pension, pay, holiday, and seniority rights; and arrears of pay must be made to the employee : 'Employment Protection', Jowitt's 'Dictionary of English Law' (2nd cumulative supplement to the 2nd End at p 140). Futhermore: The effect of an award of reinstatement is merely to set at naught the order of wrongful dismissal of a workman by the employer and to reinstate him in the service of the employer and to restore him to his former position and status as if the contract originally entered into has been continuing: Malhotra 'The Law of Industrial Disputes' (vol 2, 4th Edn at p 934).'.{52]COW'2 who was the claimant's supervisor stated in evidence that the claimant was an excellent and dilligent worker. The claimant had given 10 years of service to the company and he had worked his way up from a waiter to the position of Assistant Executive {Chief Steward}. This was denitely no easy feat and one that demanded the claimant's total commitment and utmost loyalty to the company. [53]Since his dismissal, the claimant remained unemployed from 6 January 2015 until March 201 E. In April 2016 he was employed as a cleaning supervisor and then as a security guard with a current salary of Rlvl1,300. {541m the circumstances the court is of the view that if not for the arbitrary, harsh and invalid decision of COWS to dismiss him, the claimant would still have been in the moment of the company. Accordingly in the circumstances the court orders that the claimant be reinstated to the position that he held immediately before his termination with effect from 2 January 2010. [55]Dn the award of backwages, the claimant will be awarded badovages from the the date of dismissal {5 January 2015-} to the last date of hearing {22 September 2015} but limited to 24 months. As he was unemployed for the period January 2015 to 31 March 2015 the amount of backwages due to the claimant is RM33,250 [RM2,550 3:15]. From April 2010 to September 2015, the amount of backwages due to the claimant is RM15.300 [RM2,550 x 5]. However since the claimant was gainfully employed elsewhere during this period, albeit on a very much lower salary, it is reasonable and fair to make a deduction of 10% from the postdismissal earnings for the said period. Therefore for the period April 2016 to September 2015 the amount of baclrwages due to the claimant is RM13.?T0. The total amount of badovages to be paid to the claimant is RM52,020 [RM33,250 + RM13,?T0]. FINAL ORDER {ElThe court new orders that the claimant be reinstated to the position that he held immediately before his dismissal with effect from 2 January 2013. In addition the court orders that the company shall pay the total amount of RM52,020 {Ringgit Malaysia: Fifty Two Thousand and Twenty lIZItInIy] to the claimant less statutory deductions, if any, through the Malaysian Trades Union Congress within 3-0 days from the date ofthis Award. Allowed the claim and awarded the claimant back wages amounting to RM52,020 and compensation in lieu of reinstatement. Reported by Mukesh Nair Salakrishnan Sarojini Kandasamy Ch: REFERENCE This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 for an award in respect of a dispute arising out of the dismissal of Simon a/l Anthonysamy ("the claimant') by Royal Selangor Club ('the company"). AWARD THE REFERENCE [1]The parties to the dispute are Simon all Anthonysamy ("the claimant') and Royal Selangor Club ('the company'). The dispute which was referred to the Industrial Court by way of a Ministerial Reference under s 20(3) of the Industrial Relations Act 1967 made on 25 August 2015 is over the dismissal of the claimant by the company on 6 January 2015. DOCUMENTS UNITAR 1 Page 4 of 16 Simon all Anthonysamy v Royal Selangor Club .. .. [2]The relevant cause papers before this court are as follows: (i) The claimants' statement of case dated 28 October 2015 (SOC); (ii) The company's statement in reply dated 18 December 2015 (SIR); (ii) The claimant's rejoinder dated 7 January 2016;(iv) The claimant's bundle of documents (CLB-1); (v) The claimant's daftar perkahwinan dated 22 August 2007 (CLB-2); (vi) The company's bundle of documents (COB-1); (vii) The company's supplementary bundle of documents (COB-2); (vili) The company's supplementary bundle of documents (2) (COB-3); (ix) The claimant's application for employment 10 September 1998 (COB-4); (x) Mr Kevyn Lee Seng Ngian's contract of employment (COB-5); (xi) The claimant's witness statement (CLWS-1); (xii) The company's witness statement by Puan Salina Jaafar (COWS-1); (xiii) The company's witness statement by Mr Jeyakumar all Mutusami (COWS-2); and (xiv) The company's witness statement by Mr Kevyn Lee Seng Ngian (COWS-3). THE COMPANY'S CASE [3]The company called the following witnesses to give evidence during the hearing on 16 August 2016, 18 August 2016 and 15 September 2016: (i) COW1: Puan Salina Jaafar is the Assistant Manager of Human Resources (HR) in the company; ii) COW2: Mr Jeyakumar all Mutusami is the Operating Manager in the company; and (iii) COW3: Mr Kevyn Lee Seng Ngian was the General Manager in the company at the material time. He has since resigned from the company on 29 February 2016 and is currently the General Manager for Tasik Puteri Golf and country company. [4]The claimant was employed as a waiter in the company vide letter dated 10 September 1998 [COB-1 pp 1-3] with effect from 11 September 1998. The claimant was confirmed in his position vide letter dated 11 November 1998 [COB-1 p 4]. The claimant was promoted to the position of Assistant Food and Beverage Executive (Chief Steward) with effect from 1 June 2012 [COB-1 pp 5-9] and he was subsequently confirmed in that position vide letter dated 16 August 2012 [COB-1 p 10]. The claimant's last drawn salary was RM2,550.[5]The company averred that vide two separate leave application forms, the claimant applied for leave from 16 December 2014 to 21 December 2014 and from 23 December 2014 to 30 December 2014. The said application was approved. However the claimant was absent from work without prior approval on 31 December 2014 and 1 January 2015, and subsequently the company issued a show cause letter dated 2 January 2015 [COB-1 p 28] to UNITAR 1 Page 5 of 16 Simon a/l Anthonysamy v Royal Selangor Club the claimant in respect thereto. Although the claimant was required to submit his written explanation by 5 January 2015, he subsequently submitted his explanation vide letter dated 7 January 2015 [COB-1 p 29] stating that he could not attend work on the said dates since he had family problems. The company issued to the claimant a second warning letter dated 8 January 2015 [COB-1 p 31] pursuant to finding his explanation in respect of his absence on 31 December 2014 and 1 January 2015 to be unsatisfactory. The claimant was also expressly informed that should there be any further complaints against him, the management would take more serious disciplinary action against him. In the meantime the claimant submitted a medical certificate to the company for being absent on 2 January 2015. [6]The HR Department was made aware vide an internal email correspondence dated 8 January 2015 [COB-1 p 30] of the claimant's absence from work on 6 January 2015, 7 January 2015 and 8 January 2015. The company then prepared a show cause letter dated 12 January 2015 [COB-1 p 34] to be issued to the claimant to explain why he was absent from duty from 6 January 2015 till 11 January 2015 without prior approval. The claimant was required to submit an explanation in writing as to the reasons for his absence by 14 January 2015, failing which he was advised that disciplinary action would be taken against him. However, since the claimant had promised the company's management that he would report for work on 12 January 2015, the said letter was not issued. [7]The company averred that Mr David Siew, the company's General Committee member and Chairman of the HR Sub-Committee, had personally called the claimant on 9 January 2015 after finding out that the claimant had been absent from work and had enquired from him of his whereabouts. The claimant was advised to see the company's management to solve his problem. However, the claimant failed to show up