Dzulkarnain Bin Abu Bakar v Alam Flora Sdn Bhd (WA-25-112-04/2018)

an order of Certiorari to quash the decision of the Industrial Court through the Award dated 29.1.2018 (“Award”) which held that the Applicant was guilty of forgery;

(ii) a declaration that the Applicant was dismissed without just cause and excuse; and

(iii) an order that the Respondent is to pay the Applicant a sum of RM503,348.00. [2] The grounds of the application are as follows:

that the findings and/or conclusions of the Industrial Court are not supported by the evidence and/or perverse;

(ii) that the findings are based on irrelevant considerations; and

(iii) that the Industrial Court has failed to take into account relevant considerations in arriving at its decision. [3] Having considered the application and the submission of the parties, this Court has allowed the application with costs. 3 The Salient Facts [1] The Applicant (“Claimant”) was appointed on 20.1.1998 as the Operations Manager and his last position in the Respondent (“Company”) was that as the Deputy General Manager, Kuala Lumpur. The Claimant had served the Company for more than twelve

years until his dismissal from the Company on 27.5.2011. [2] Based on the investigation by the Company‟s Group Internal Auditors in February 2009 and March 2010, the Company discovered irregularities pertaining to the appointment of the Company‟s contractors where it was not in accordance with the Company‟s Subcontractor Award and Evaluation Procedure (“Procedure”). [3] The Company issued a Show Cause letter dated 30.11.2010 to the Claimant, detailing five (5) charges. The Claimant responded in a letter dated 8.12.2010. Having considered that the Claimant‟s explanation was not satisfactory, the Company issued a Domestic Inquiry Notice dated 12.1.2011. [4] On 19.1.2011, a domestic inquiry (“DI”) was convened. The Claimant pleaded not guilty on all charges. However, the DI found the Claimant guilty on all charges and the Claimant was dismissed by the Company. 4 [5] The Claimant filed a complaint with the Ministry of Human Resources and the Minister then referred the dispute to the Industrial court for adjudication. [6] The Chairman of the Industrial Court handed down an Award and held that the Claimant was guilty on the 5th Charge only, and exonerated him on the four (4) charges. [7] Hence, the Claimant proceeded to file this application for judicial review to quash the decision of the Industrial Court. The Findings of the Court [8] The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 has set out the function of this Court in an application for Judicial Review and the correct test to be applied in reviewing findings of fact made by the Industrial Court, to be as follows: “[15] …… Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly 5 "proportionality" which permits the courts to scrutinize the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Peransang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. 6 [18] The Court of Appeal has in a number of cases held that where finding of facts by the Industrial Court are based on the credibility of witnesses, those findings should not be reviewed (see William Jacks & Co (M) Sdn BHd v. S Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam) [2001] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where:

reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or

there is no evidence to support the conclusion reached. (See Swedish Motor Assemblies Sdn Bhd v. Hj. Md Ison Baba [1998] 3 CLJ 288 ]. [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review”. (emphasis added) 7 [9] Bearing the principles enunciated in Ranjit Kaur’s case, I will now deal with the issues raised by the Claimant:

that the findings and/or conclusions of the Industrial Court are not supported by the evidence; and

(ii) that the decision by the Industrial Court is unreasonable and/or perverse. [10] The Industrial Court had found the Claimant guilty only on the 5th Charge, which reads: “You have or caused to have forged the document entitled “CADANGAN PENYERAHAN KERJA PEMBERSIHAN DI KAWASAN HARTAMAS (SUBZONE 4.4) KEPADA MYMY ENTERPRISE.” (emphasis added) [11] The Industrial Court‟s findings on Charge 5 are as follows: “[27] …. Pertuduhan 5 iaitu menyebabkan pemalsuan dan „tempered‟ juga berkaitan di antara Pihak Menuntut 1 dan Pihak menuntut 2: “You have or caused to have forged the document entitled – Cadangan Penyerahan Kerja Pembersihan di Kawasan Sri Hartamas (Subzon 4.4) kepada MYMY Enterprise.” 8 Pihak Responden telah mengemukakan dua orang saksi iaitu COW-2 dan COW-3 untuk membuktikan bahawa Pihak Menuntut 1 dan Pihak Menuntut 2 bersalah terhadap pertuduhan itu. COW-2 Pengawai Siasatan Dalaman di dalam keterangannya di Makamah dan sewaktu di soal balas oleh Peguam Pihak Menuntut beliau tidak dapat memastikan siapakah yang telah melakukan “tempered” atau menyebabkan perkara itu berlaku. Keterangan COW-3 di dalam kenyataan bertulis sewaktu siasatan dijalankan terhadap beliau menyatakan beliau telah di arahkan oleh Pihak Menuntut Dua untuk menyediakan cadangan perlantikan “Asmidah Enterprise” dan beliau tidak di arahkan untuk menyediakan cadangan perlantikan kepada “MYMY Enterprise” dan surat cadangan MYMY Enterprise itu dan dikemukakan sendiri oleh Pihak Menuntut 2 kepada pemilik MYMY Enterprise dan Pihak Menuntut 2 menyatakan tidak perlu kerana dalam pengetahuan pengurusan tertinggi. [28] Setelah Mahkamah menilai dan meneliti keterangan Pihak Menuntut 2 dan keterangan saksi Pihak Responden terutama COW-3 lebih meyakinkan dan dipercayai dan keterangan Pihak Menuntut 2 bahawa beliau tidak melakukan perbuatan itu tidak dapat dipertimbangkan oleh Mahkamah dan Mahkamah berpendapat bahawa pihak Responden telah Berjaya membuktikan pertuduhan ke 5 terhadap Pihak Menuntut 2… [29] ….. Pihak Responden telah Berjaya membuktikan Pihak Menuntut 2 bersalah terhadap Pertuduhan 5. Mahkamah memutuskan tindakan pembuangan kerja ke atas Pihak 9 Menuntut 2 berhubung dakwaan Pertuduhan 5 adalah serius iaitu melakukan ‘tempering’ dan pemalsuan merupakan satu kesalahn yang serius dan tindakan buang kerja terhadap Pihak Menuntut 2 adalah wajar dan adil serta bersebab dan menolak permohonan Pihak Menuntut 2..” (emphasis added) [12] The 5th Charge is that the Claimant had forged or caused to be forged a document, which is a Proposal Letter, where the words “Asmidah Enterprise” was replaced with “MYMY Enterprise”. The name MYMY was pasted on the word “Asmidah Enterprise” at the second page of the Proposal Letter. [13] However, the findings by the Industrial Court is not on forgery but on tempering. Forgery is different from tempering. The 5th Charge is on forgery, not tempering. Therefore, the Industrial Court‟s findings on „tempering‟, instead of forgery is an error of law and/or a misdirection of the law. [14] Added to that, despite the fact that the 5th Charge is on „forgery‟, the Industrial Court made a finding of the Claimant having “melakukan ‘tempering’ dan pemalsuan”. Apart from the fact that this is clearly against the 5th Charge, which is only on forgery, the Industrial Court had erroneously equated „tempering‟ to „forgery‟. [15] In the Oxford Dictionary, „tempering‟ is defined as an act of interfering with something (examples are electric meters, car chassis number) in order to cause damage or make unauthorised alteration. However, 10 „forgery‟ is defined as „the action of forging a bank note, art of work etc, fraudulent copy or imitation‟. Therefore, whilst forgery relates to documents, tempering do not necessarily relate to documents. Therefore, the Industrial Court had committed an error of law in failing to make a distinction between the legal requirements to prove „forgery‟ as opposed to „tempering‟. [16] In Sanjeev Kumar a/l Veerasingam v. Public Prosecutor [2015] MLJU 32, the Court of Appeal held that one of the elements of forgery is the making of a false document or part of a document. The next issue here is whether the Company had established that it was the Claimant who forged the Proposal Letter, where the words “Asmidah Enterprise” was replaced with “MYMY Enterprise”. [17] The Industrial Court relied on the evidence of COW-3 in his witness statement: “Keterangan COW-3 di dalam kenyataan bertulis sewaktu siasatan dijalankan terhadap beliau menyatakan beliau telah di arahkan oleh Pihak Menuntut Dua untuk menyediakan cadangan perlantikan “Asmidah Enterprise” dan beliau tidak di arahkan untuk menyediakan cadangan perlantikan kepada “MYMY Enterprise” dan surat cadangan MYMY Enterprise itu dan dikemukakan sendiri oleh Pihak Menuntut 2 kepada pemilik MYMY Enterprise dan Pihak Menuntut 2 menyatakan tidak perlu kerana dalam pengetahuan pengurusan tertinggi.” 11 [18] However, the Industrial Court has failed to consider the totality of COW-3 evidence, especially that under cross examination. Under cross examination, COW-3 agreed that he did not mention about forgery in his witness statement. COW-3 also agreed that both “Asmidah Enterprise” and “MYMY Enterprise” are under the same ownership. Added to that, COW-3 agreed that amongst the documents that he received from the CEO office was the award letter to MYMY (see Q41 to Q45/pg 154-155 NOP): “41.Q: So dokumen apa yang Encik Nazri terima daripada, terima balik daripada CEO punya ofis, ada dokumen terima balik MYMY kan? Ya, betul. Q: Apa dokumen yang diterima? Boleh terangkan kepada Mahkamah mengenai MYMY? Seingat saya adalah surat tawaran serta beberapa dokumen lain di dalam satu envelop, di dalam satu sampul surat yang sama.

Q: So tidak ada elemen pemalsuan dalam surat tersebut kan? Saya tak perasaan. …

Q: So dalam dokumen itu Encik Nazri inin boleh lihat MYMY? Betul? MYMY, surat tawaran untuk MYMY. ….

Q: Tidak pernah Nampak dokumen yang cut macam ini? Tidak pernah.” [19] From the above notes of proceedings, COW-3 gave evidence that he had received the documents from the CEO office, which includes the „surat tawaran untuk MYMY‟. There was no evidence of forgery at this 12 stage. Thus, the change of name from “Asmidah Enterprise” to “MYMY Enterprise” was done in the CEO office. In view of this evidence, there is no evidence to show that the Claimant had committed the forgery. There was also no evidence as to when the alleged forgery was committed, and neither did the Company establish the motive of the forgery. [20] This is supported by the finding of facts by the Industrial Court at page 9 of the Award: “Mengikut keterangan COW-3 bahawa cadangan asal kontrak ini diberi kepada Asmida Enterprise (rujuk COB-1 mukasurat 28 dan 29) tetapi telah di „tempered‟ dan diubahsuai kepada MYMY Enterprise (rujuk COB-1 mukasurat 32 dan 33). Berdasar dari keterangan COW-3 (Kamarul Nazri Abdul Aziz) menunjukkan Pihak Menuntut 2 tahu berhubung perkara ini dan Pihak Menuntut 2 telah menerima ‘tempered proposal’ dari pejabat Pihak Menuntut 1.” (emphasis added) [21] Therefore from the above finding of facts, it shows that the Claimant had received the „tempered proposal‟ from Pihak Menuntut 1 (the 1st Claimant before the Industrial Court). If the Claimant had received the „tempered proposal‟, then the document was already „tempered‟ before the Claimant received the same. The only logical conclusion is that the Claimant did not forge the said document. 13 [22] The irony of the Award is that, despite finding that the „tempered document‟ came from the Pihak Menuntut 1 (the 1st Claimant before the Industrial Court), the Industrial Court found that „Pihak Menuntut 1‟ was not guilty of forgery. Yet the Industrial Court found that the Claimant, who was the recipient of the „tempered document‟ to be guilty of forging the document. [23] Based on the reasons enumerated above, I am of the considered opinion that the evidence before the Industrial Court does not support the Industrial Court‟s finding that the Claimant had committed forgery. I therefore find that the Award is perverse and is hereby quashed. Remedies [24] Since I find that there is no evidence that the Claimant had committed forgery of the documents, I will allow the Claimant‟s application for an order of declaration that his dismissal by the Company was made without just cause and excuse. [25] Premised on R. Rama Chandran v. Industrial Court & Anor [1997] 1 CLJ 147, I will not revert the case to the Industrial Court, but will proceed to hear arguments on the monetary compensation. [26] There are two (2) types of monetary compensation:

Compensation in lieu of reinstatement; and

(ii) Back wages. 14 [27] The Claimant was employed on 20.1.1998. The Claimant‟s employment was terminated on 27.5.2011, and the Award was delivered on 29.1.2018. As at the date of the Award, the Claimant was 57 years old. [28] The Company takes the position that when the Claimant was terminated in 2011, the Company‟s policy on retirement age was 55. Therefore, the Claimant is not in a position to be reinstated, as he had passed the retirement age when the Award was delivered in

Consequentially, the Claimant is not entitled to the „compensation in lieu of retirement‟. This is premised on the case of Unilever (M) Holdings Sdn Bhd v. So Lai & Anor [2015] 2 ILR 265, which held that where a workman cannot be reinstated because his age had exceeded his retirement age at the date of the Award, the issue of compensation does not arise. [29] However, I agree with the Claimant than when the Award was delivered in 2018, the Minimum Retirement Act 2012 (“Act 753”) was enacted, where it was provided in subsection 4(1) that the minimum retirement age of an employee “shall be upon the employee attaining the age of 60 years”. [30] Therefore, when the Award was delivered in 2018, the Claimant being only 57 years old, was in a position to be reinstated to his former position in the Company, as Act 753 had already extended the minimum retirement age to 60 years. 15 [31] Even if the Claimant was under a contract of employment which stipulates that the retirement age is 55 years, such term would be void pursuant to section 7 of Act 753, which reads: “Invalidity of term of contract of service and collective agreement

(1) Any retirement age in a contract of service or collective agreement made before, on or after the date of coming into operation of this Act which is less than the minimum retirement age provided under this Act, shall be deemed to be void and substituted with the minimum retirement age provided under this Act.

Any term in a contract of service or collective agreement relating to retirement age shall be void if it excludes or limits the operation of any provision of this Act.” (emphasis added) [32] Therefore, I am of the considered opinion and I agree with the Claimant that had the Claimant continued with his employment and not been unfairly dismissed, by operation of Act 753, the statutory age of retirement is 60 years. Hence, since the Claimant was 57 years at the date of the Award, then the Claimant is entitled to compensation in lieu of reinstatement – (years of employment x last drawn salary) = (12 x RM13,604.00) Total sum of RM163,248.00. 16 [33] In respect of Back Wages, the Claimant gave evidence that after his dismissal, he was unemployed for one year. In Koperasi Serbaguna Sanya Bhd (Sabah) v. Dr. James Alfred (Sabah) & Anor [2000] 3 CLJ 758, the Court of Appeal held that the purpose of back wages is to compensate the workman for the period he has been unemployed because of the unjustified act of dismissal. [34] Therefore for the 12 months of unemployment, the Claimant herein is to be compensated the sum of RM163,248.00 (12 x RM13,604.00). (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 31 May 2019 17 Counsels/Solicitors for the Appellant Amritpal Singh [Tetuan Amritpal Singh, Kuala Lumpur] Counsels/Solicitors for the Respondent Rebecca Sonali Alfred [Lee Hishamuddin Allen & Gledhill, Kuala Lumpur] REFERENCES: 1) Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 2) Sanjeev Kumar a/l Veerasingam v. Public Prosecutor [2015] MLJU 32 3) R. Rama Chandran v. Industrial Court & Anor [1997] 1 CLJ 147 4) Unilever (M) Holdings Sdn Bhd v. So Lai & Anor [2015] 2 ILR 265 5) Koperasi Serbaguna Sanya Bhd (Sabah) v. Dr. James Alfred (Sabah) & Anor [2000] 3 CLJ 758