Latitude Tree Furniture Sdn Bhd v Suhaimi Bin Husin (W-01(A)-471-12/2017)

AND SUHAIMI BIN HUSIN … 1ST RESPONDENT

MAHKAMAH PERUSAHAAN, MALAYSIA … 2ND RESPONDENT [In the matter of the High Court of Malaya at Kuala Lumpur (Appellate and special powers) Judicial Review Application No. WA-25-169- 09/2016 Between Suhaimi Bin Husin … Applicant

And Latitude Tree Furniture Sdn Bhd … 1st Respondent

Mahkamah Perusahaan, Malaysia … 2nd Respondent] CORAM ABDUL RAHMAN SEBLI, JCA KAMALUDIN MD SAID, JCA HAS ZANAH MEHAT, JCA JUDGMENT OF THE COURT [1] This appeal was against the decision of the Kuala Lumpur High Court quashing the whole of the Industrial Court’s (2nd respondent) award dated 24.6.2016 which favoured the appellant factory. [2] In finding the 1st respondent’s dismissal by the appellant to be with just cause and excuse, it was the Industrial Court’s finding that the 1st 2 respondent “bertindak agresif seperti mahu bergaduh”. This finding did not find favour with the learned High Court Judge, hence her decision to set aside the award. Having heard arguments by both sides, we allowed the appellant factory’s appeal by a unanimous decision and restored the Industrial Court’s award. These are the grounds of our decision. [3] The facts are as follows. The record of the Human Resources Department of the appellant factory shows that the 1st respondent had a string of disciplinary problems, two of which were for serious misconduct. The first instance of serious misconduct was on 10.1.2005 at 11.50 a.m. when the 1st respondent while holding the post of Production Executive assaulted one Muzaimi bin Mustafa with a stick measuring 8 inches long and 3 inches thick at the workplace. The victim was the Line leader in the Rough Mill Department. [4] For this misconduct, the 1st respondent was served with a Letter of Suspension dated 11.1.2005, suspending him for 7 days without pay pending investigation. He was later found guilty and was suspended for 14 days without pay from 18.1.2005 to 2.2.2005. He was also warned not to repeat the offence and that if he did, stern action would be taken against him. [5] The second instance of serious misconduct was on 9.11.2008 at 8.00 a.m. when the 1st respondent as Head of the Seat Department punched and injured his subordinate one Talaha bin Mat Niza during a fight with the latter. He was found guilty and suspended for 7 days without pay from 15.1.2008 to 20.11.2008. He was given a final warning that if he repeated the offence, he would be dismissed immediately. 3 [6] Other than being guilty of serious misconduct, the 1st respondent was also guilty of poor work performance, as follows:

Poor work attendance vide Letter of Reminder dated 28.10.2008 when he was the Executive in the IE-PRC department.

Causing losses to the company as a result of poor work performance in his capacity as I.E Executive.

On 27.11.2011, the 1st respondent in his capacity as I.E Executive was served with a reminder letter for his poor performance and was advised to improve.

On 28.6.2012, the 1st respondent in his capacity as the KD Cross Cut Executive was served with a second reminder letter for poor attendance. In this second reminder, the 1st respondent was severely warned that if he repeated his poor attendance, the company would take disciplinary action to terminate his employment. [7] The Human Resource Manager of the appellant factory Norudin bin Mamat gave evidence that he had given counseling sessions to the 1st respondent after receiving complaints from the 1st respondent’s Head of Department and other employees in the Rough Mill Department. [8] The termination process of the 1st respondent’s employment with the appellant factory was initiated after receiving a verbal complaint from a Bangladeshi by the name of Mansur Md Fazlul Karim (COW-1) who worked as a forklift driver in the Rough Mill Department. He was given the 4 task of driving the forklift in the Rough Mill, the one and only forklift owned by the Rough Mill Department to assist the workers in the department to “angkat kayu”. [9] The complaint by Mansur was that at about 11.50 a.m. during working hours on 10.12.2012 at the KD Cross Cut section in the Rough Mill premises, the 1st respondent pulled his shirt collar to get him to come down from the forklift so that he could use the forklift to stack up the reject wood. The complaint is detailed in Mansur’s Witness Statement, as follows: “Sebelum pertengkaran berlaku saya di panggil oleh seorang pekerja bernama Talaha Mat Niza (No: Pekerja 00715) untuk membawa kayu dan semasa pandu forklift, saya dengar Suhaimi panggil saya. Dia marah saya “kenapa panggil dua, tiga kali tidak mendengar”. Saya berdiam sahaja. Encik Suhaimi terus berkata “sebab apa lambat?” Saya menjawab “Saya mana ada lambat”. Encik Suhaimi terus berkata “Mau gaduh ke?” Saya jawab “Kenapa nak bergaduh, kamu boskan?” Encik Suhaimi terus tarik leher baju saya dengan kuat dan mengajak sekali saya gaduh. Saya diam sahaja dan merasa takut dia cakap kasar, panggil saya bodoh dan matanya merah. Selepas itu Encik Suhaimi memanggil Encik Muzaimi ke tempat berlaku pertengkaran dan Encik Muzaimi suruh saya beredar dari tempat kejadian untuk mengelak dari berlaku pergaduhan. Saya pergi ke pejabat pengurusan untuk malapurkan apa yang berlaku.” [10] This was the proverbial last straw that broke the camel’s back. The 1st respondent had been given a final warning that he would be dismissed summarily if he showed any form of physical aggression towards his colleagues. He had also been counseled by the Manager of the Human Resource Department to refrain from showing any form of physical aggression towards his fellow workers, bearing in mind he had committed the same offence twice before on two of his colleagues. 5 [11] On the instruction of the Factory Manager, the Assistant Manager of the Human Resource Department carried out investigation and interviewed a total of 10 witnesses with regard to the incident and took their evidence. [12] A show cause letter dated 10.12.2012 was served on the 1st respondent in the following terms: “…anda telah melakukan kekasaran fizikal kepada Mansur (T0043) dengan melakukan perkara berikut

Mengajak pekerja bawahan tersebut iaitu Mansur [pemandu forklift] untuk bergaduh semasa waktu kerja.

Menarik baju pekerja terbabit dan mengugut dengan niat bagi mencederakannya.

Membuat ugutan yang bertujuan menakutkan pekerja.

Gagal mematuhi peraturan Syarikat 4.08 Procedur.” [13] The 1st respondent replied to the show cause letter, explaining his side of the incident at some length. Amongst others, his explanation was that: “Apabila dia tidak turun, saya pun memanggil Muzaimi yang ketika itu ada berdekatan dengan tempat saya. Semasa saya memanggil Muzaimi dia pun mengangkat kayu dan masih lagi membebel tidak berhenti-henti seolah-olah membuat kerja secara paksa. Sejurus kemudian Muzaimi datang dan dia berkomunikasi dengan Muzaimi, dan saya nampak Muzaimi memberi isyarat tangan kepadanya seolah-olah menyuruh nya beredar dari situ.” 6 [14] The appellant company was not satisfied with the 1st respondent’s explanation and proceeded to serve the Notice of Domestic Inquiry dated 17.12.2012 with the same 4 charges against the 1st respondent. However, the Domestic Inquiry was held in the absence of the 1st respondent. A Letter of Termination dated 25.12.2012 was served on the 1st respondent based on the 4 charges. [15] Dissatisfied with the termination, the 1st respondent appealed to the management for a re-consideration of his case but was rejected. He then lodged a complaint under section 20 of the Industrial Relations Act 1967, which was referred to the 2nd respondent for adjudication. [16] Because the Domestic Inquiry was conducted in such a way that it offended the rules of natural justice, the hearing at the Industrial Court was conducted de novo. [17] The appellant factory’s contention before us was that the learned judge erred in finding that there was impropriety in the judicial making process by the Industrial Court, citing Multimedia Development Corporation Sdn Bhd v Clarence Augustine Tee Teck Huo [2018] 5 CLJ

[18] In allowing the 1st respondent’s application for review, the learned judge found that the Industrial Court was wrong in finding that the 1st respondent “bertindak agresif seperti mahu bergaduh”. According to the learned judge, the finding was not supported by the evidence, in particular the evidence of COW-2, whose evidence was that both the 1st respondent and the complainant (COW-1) were aggressive and he was not sure who was the more aggressive of the two. 7 [19] Added to that, COW-2 did not know if they were quarreling or were engaged in a normal conversation. The learned judge referred to the following testimony of COW-2: “13: Anda tak dengar apa yang dikatakan antara Mansur dan Penuntut. - Tak dengar. 14: Nampak En. Suhaimi lebih agresif. Tak dengar perbualan mereka. - Ya. Setuju. 15: En. Mansur pun agresif juga. - Ya Setuju. 16: Anda nampak sahaja. Anda tak tahu siapa lebih agresif. - Tak tahu. 17: Nampak gerakan mulut. Ya. ………

Tidak ada pergaduhan berlaku yang ada hanyalah perbualan biasa. - Tak tahu. [20] The learned judge also referred to the testimony of COW-4 who according to her proved that there was no quarrel between the 1st respondent and the complainant (COW-1): “7: Tidak ada pergaduhan berlaku hanya percakapan biasa? - Setuju ……… 10: Ada nampak Penuntut tarik baju Mansur? - Tak ada. 8 ……… 12: Cadangkan tidak ada pergaduhan berlaku? - Ya. …….. 15: Kamu tak dengar Penuntut ajak Mansur untuk bergaduh? - Setuju. 16: Kamu tak dengar Penuntut ugut Mansur? - Tak dengar. 17: Tak dengar Penuntut akan mencederakan Mansur? - Ya.” [21] The learned judge then concluded: “[20] Therefore, I am of the considered opinion that if the Industrial Court had taken into consideration the above evidences of COW-2 and COW-4, they are not supportive of the evidence on COW-1, bearing in mind that the Domestic Inquiry had rejected the evidence of COW-1 at the end of the Domestic Inquiry in respect of the 1st charge.” [22] On the question of whether the 1st respondent had acted aggressively towards the complainant, the learned Industrial Court Chairman found as follows: “19. Isu pertama yang Mahkamah ini perlu putuskan adalah berkaitan dengan kejadian antara Penuntut dan COW-1 pada 10.12.2012 di tempat kerja mereka.

Atas isu ini terdapat saksi isitu COW-2. Walaupun dia tidak mendengar apa yang dikatakan antara COW-1 dan Penuntut kerana suasana bising di kilang berkenaan, tetapi COW-2 nampak Penuntut bertindak agresif seperti menarik kolar baju COW-1. COW-4 yang dipanggil oleh Penuntut juga berkata bahawa keadaan antara Penuntut dan COW-1 adalah tegang dan COW-1 seperti tidak berpuas hati. 9

Keterangan dari dua saksi ini adalah lebih menyokong keterangan COW-1 yang menyatakan penuntut bertindak agresif, memarahi COW-1 dan menarik kolar baju dan tidak menyokong keterangan Penuntut yang hanya memohon penjelasan kenapa lambat tetapi ditengking dengan angkuh oleh COW-1 lalu Penuntut menyentuh baju supaya COW- 1 turun dari forklift.” [23] The learned Industrial Court Chairman had also made the following finding (paragraph 36 of his award): “Dalam kes ini kejadian yang berlaku antara Penuntut dan COW-1 adalah jelas dari segi keterangan. Kejadian ini adalah berpunca dari Penuntut dimana dia telah menarik kolar baju COW-1 dengan agresif serta memarahi COW-1. Penafian oleh penuntut yang kononnya dia hanya menyentuh supaya COW-1 turun dari forklift adalah tidak munasabah dan tidak diterima serta tidak selaras dengan saksi-saksi di tempat kejadian dan keterangan keliling yang lain.” [24] It is clear that the learned Industrial Court Chairman accepted the evidence of the complainant (COW-1) and rejected the evidence of the 1st respondent. [25] On point of principle, it is now settled that the decision of an inferior tribunal is amenable to judicial review where the facts do not justify the decision or where the findings of the Industrial Court are arrived at by taking into consideration irrelevant matters or disregarding relevant matters: Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629; [2010] 6 MLJ 1. In that case, Raus Sharif FCJ (as he then was) delivering the judgment of the Federal Court said: “[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 10 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 “proportionality” which permits the courts to scrutinise the decision not only for process but also for substance. It allowed the courts to go into the merits of the matter. Thus, the distinction between review and appeal no longer holds.” [26] With due respect to the learned High Court Judge, we found no justification for her to interfere with the Industrial Court’s finding of fact that the complainant had acted aggressively towards the complainant (COW- 1) and had pulled his shirt collar. On the evidence before him, the learned Industrial Court Chairman was perfectly entitled to make such finding. [27] The finding is not perverse or plainly wrong. Most importantly, having seen and heard the witnesses giving evidence, the Industrial Court Chairman was in the best position compared to the learned judge to assess the credibility and reliability of the witnesses. [28] It is true that the testimonies of COW-2 and COW-4 which the learned judge referred to in her grounds of judgment seem to suggest that there was no quarrel between the 1st respondent and the complainant, but it must be remembered that the area where the incident took place was noisy and the 1st respondent was seen by COW-2 pulling the complainant’s (COW-1) shirt collar. This is clear evidence of aggression on the part of the 1st respondent. [29] The probabilities of the case point to the fact that the 1st respondent was angry with the complainant (COW-1) for not responding to his repeated calls, hence his aggressive behaviour towards the complainant. With due respect, the learned judge was also wrong to take into account the fact that the evidence of the complainant (COW-1) was rejected at the 11 Domestic Inquiry. She should only consider evidence adduced at the Industrial Court proceedings. [30] The breach of the rules of natural justice at the earlier Domestic Inquiry (which was held in the absence of the 1st respondent) is of no consequence as the matter was heard de novo by the Industrial Court. In this regard, this court in Harianto Effendy Zakaria & Ors v Mahkamah Perusahaan Malaysia & Anor [2013] 5 CLJ 733 made the following observations at page 737: “In Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal [1995] 3 CLJ 344 the Federal Court held that the defect in natural justice by the respondent in that case could and ought to be cured by the inquiry in the Industrial Court. Mohd Azmi bin Hj Kamaruddin FCJ said at p. 356: The very purpose of the inquiry before the Industrial Court was to give both parties to the dispute an opportunity to be heard irrespective of whether there was a need for the employer to hold a contractual or statutory inquiry. We were confident that the Industrial Court as constituted at present was capable of arriving at fair result by fair means on all matters referred to it. If therefore there had been a procedural breach on natural justice committed by the employer at the initial stage, there was no reason why it could not be cured at the re-hearing by the Industrial Court.” [31] The 1st respondent by his aggressive behaviour had clearly breached the appellant factory’s rules and regulations, on top of the fact that he had been warned not to repeat the offence. In Jye Tai Precision Industrial (M) Sdn Bhd v Victoria Arulsamy [2008] 1 CLJ 760 this court inter alia held as follows: “Here, the respondent was indeed involved in a fight with another employee of the appellant. It does not really matter who started the fight or whether she was provoked into it but the fact remains that she had breached the appellant’s Rules and Regulations by 12 fighting with another employee in the company’s car park. Though the respondent had appealed to the appellant’s management to be given another chance in view of her long service record, this was turned down when it was discovered that she had been previously warned by her supervisor not to repeat a similar sort of incident. Another reason why her appeal was rejected was because the appellant has a workforce of over 400 where discipline among the workers in the factory must be maintained. Based on these facts we do not detect any irrationality in the Industrial Court award to warrant the High Court to examine the substance of the decision and even if it did, to return a different conclusion from that of the Industrial Court. [32] As for the issue of punishment, the following observations by this court in another case, UMW Equipment Sdn Bhd v Parantaman Ramasamy & Anor [2014] 5 CLJ 906 are relevant: “As far as punishment was concerned, the facts showed that this was not the first time that the respondent had been brought before the domestic enquiry for similar misconduct. The first domestic enquiry which was held on 20 April 1998 found the respondent guilty of five charges of misconduct but the appellant decided to give him another opportunity by giving him a final warning that any further act of misconduct and infringement of the appellant’s rules and regulations would result in termination of service. The judgment of the Industrial Court shows that the respondent had been issued with warning letters relating to his discipline and punctuality even before the first enquiry was held. Verbal warning had also been given to him in the past. Learned counsel for the appellant submitted that the misconduct which preceded the second enquiry was the proverbial straw that broke the camel’s back leaving the appellant with no choice but to terminate his employment upon the respondent being found guilty of the charges against him. Past misconduct is a relevant factor and the Industrial Court, had in the past, taken into consideration in determining whether the punishment is harsh or otherwise. (See Malayan Banking Bhd v Association of Bank Officers, Peninsular Malaysia & Anor, supra and Industrial Court cases cited in Kamala Loshanee Ambalavanar v Jaffnese Co-Operative Society [1998] 1 LNS 339; [1998] 7 MLJ 61). 13 [33] It was for all the reasons aforesaid that we allowed the appellant’s appeal, set aside the High Court’s decision and restored the Industrial Court’s award. ABDUL RAHMAN SEBLI Judge Court of Appeal Malaysia Dated: 7th August 2019 For the Appellant: Marina Netto of Messrs Christy Marina & Associates. For the Respondent: Auzan Hasanuddin bin Sazali and Marwan Abdullah of Messrs Mu’az Aiman Halem Auzan & Associates.