Robin Khoo Kah Chong v Logik Pengurusan Sdn Bhd (P-02(A)-550-03/2017)

2.Robin Khoo Kah Chong … Respondents] CORAM HAMID SULTAN ABU BACKER, JCA ABDUL RAHMAN SEBLI, JCA MARY LIM THIAM SUAN, JCA JUDGMENT OF THE COURT [1] The dispute in this appeal was over the dismissal of the appellant by his employer, the respondent company (“the company”). The Industrial Court decided that the dismissal was without just cause and excuse, and awarded the appellant a sum of RM470,442.00 as compensation for wrongful dismissal and backwages. 2 [2] The High Court however decided otherwise, finding that the appellant’s dismissal was with just cause and excuse. The learned High Court Judge held that the Industrial Court committed serious errors of law and accordingly quashed the Industrial Court’s award. Hence the present appeal by the appellant. [3] The facts are these. The respondent company is a logistics company with branches throughout the country. The appellant was the branch manager of the company’s Penang branch. His last drawn salary including allowances was RM23,402.00. [4] The appellant’s duties and responsibilities included the development of airfreight and logistics related services, including sales with emphasis on global accounts and the carrying out of policies as set by the LEP Group in general. However, under the appellant’s management, the Penang Branch suffered continuous losses from 2006 until May 2009. At that time, around 2007 or 2008, the appellant was discussing plans for migration to New Zealand. [5] At the end of 2008, there was a change in the company’s management. The new Managing Director (“MD”) reviewed the operations of all company branches in the country and requested all branch managers, including the appellant, to prepare a plan on how to increase and improve their respective businesses and profitability. [6] However, the appellant only came up with the idea to either close the branch or reduce the number of staff in that branch. The appellant even obtained information from the Labour Department on ways to terminate employees. 3 [7] In early 2009, the MD sent the appellant an e-mail asking for suggestions on increasing the business of the branch but the appellant did not provide any idea or suggestion, other than to close or downsize the Penang Branch. [8] The appellant was then on sick leave from 9 June 2009 until 23 October 2009. The respondent doubted whether he was genuinely sick as the medical certificates submitted by the appellant were issued well before the appellant began the relevant leave period. The respondent believed that the appellant was never ill and was probably using the time to prepare for his migration to New Zealand. [9] Whilst the appellant was on leave, the MD took over the management of the Penang Branch and immediately turned it around, whereby the branch started to generate profits. [10] When the appellant returned in October 2009 from his extended sick leave, there were discussions about ideas to restructure his branch and he was asked for his business plan. The management did not agree with his suggestion to close the Penang Branch because it had good potential. The company’s intention was to expand all branches to protect the company’s and its employees’ interests. [11] The appellant was further given a draft Job Description and was requested to revert with a plan of action. However, the appellant failed to respond to the Job Description despite a lapse of over one month. Further, the appellant failed to provide a business plan since end of 2008 despite numerous requests to do so. 4 [12] Therefore, taking into account the Penang Branch’s continuous losses under the appellant’s management, his failure to respond on his draft Job Description and his failure to provide a business plan for the branch, the MD concluded that the appellant had failed as a branch manager due to his passive management approach. The company accordingly issued a letter of termination to the appellant on 2 December 2009 with an opportunity for the appellant to explain why he should not be terminated. [13] We must say at the outset that we agree with the appellant that the case is one relating to findings of fact by the Industrial Court. It was for the Industrial Court to determine whether the appellant’s termination was with or without just cause. In Goon Kwee Phang v J & P Coats (M) Sdn Bhd [1981] 2 MLJ 129 the Federal Court held, inter alia, as follows: “Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse.” [14] Having gone through the record of appeal, it is clear to us that the Industrial Court had embarked on a detailed review of all the evidence, both oral and documentary, presented by the appellant and the respondent. The contrary finding of the High Court is consequently erroneous as the learned Chairman of the Industrial Court had correctly exercised her duty in enquiring into the propriety of the reason that was advanced by the respondent, i.e. ‘poor performance’ and decided that the company had failed to prove that reason, hence the award that the termination was without just cause or excuse. She preferred the evidence 5 of the appellant and the learned High Court Judge had no cogent reason to disagree with her. [15] The learned Industrial Court Chairman’s findings of fact that are relevant to the present appeal are as follows: “(i) Walau bagaimanapun COW-1 bersetuju bahawa tidak terdapat sebarang surat yang memberi teguran kepada pihak menuntut di atas kegagalannya mematuhi arahan tersebut. Sekiranya dakwaan pihak responden adalah benar, maka sudah tentu akan terdapat surat-surat peringatan dan surat teguran dari pihak responden kepada pihak menuntut berkaitan dengan perkara ini. Ketiadaan surat-surat tersebut membuktikan alasan yang digunakan oleh pihak responden adalah tidak berasas sama sekali.” (paragraph 35) “(ii) Kejayaan ini membuktikan bahawa pihak menuntut Berjaya mengurangkan perbelanjaan dan ini menunjukkan pihak menuntut adalah seorang yang mempunyai kecekapan dan pengurusan yang baik dalam menguruskan cawangan Pulau Pinang dan bukan sebaliknya seperti yang didakwa oleh pihak responden. Selain itu, COW-1 juga mengakui prestasi dan produktiviti cawangan Pulau Pinang adalah baik bagi tahun 2008. Oleh itu, ini jelas menunjukkan cawangan Pulau Pinang sebenarnya memperolehi keuntungan setiap tahun dan dengan itu tidak ada sebab kenapa ia perlu ditutup.” (paragraph 37) “(iii) Dakwaan COW-1 bahawa terdapat perbincangan melalui telefon antara COW-2 dengan pihak menuntut jelas tidak benar kerana COW-2 sendiri menyatakan beliau tidak dapat bercakap dengan pihak menuntut pada tarikh tersebut.” (paragraph 39) “(iv) Pihak menuntut tidak diberikan sebarang amaran atau surat tunjuk sebab atau pernah diambil apa-apa tindakan disiplin berkaitan dengan dakwaan yang dikatakan ke atasnya.” (paragraph 40) “(v) Oleh itu, sijil cuti sakit tersebut bukanlah menjadi isu lagi dalam kes ini.” (paragraph 41) 6 “(vi) Namun begitu perjumpaan yang dirancang antara COW-2 dengan pihak menuntut tidak terjadi dan ini menyebabkan draf tersebut tidak dapat diselesaikan.” (paragraph 42) “(vii) Setelah Mahkamah meneliti P & L tersebut (COB-3) didapati Operating Profit adalah konsisten dari tahun 2006 sehingga 2009. Malah tahun 2009 telah menunjukkan peningkatan keuntungan yang ketara setelah pihak menuntut mengambil beberapa langkah antaranya mendapatkan pengurangan bayaran sewa dan memperluaskan peluang perniagaan cawangan tersebut.” (paragraph 43) “(viii) Mahkamah mendapati pihak responden telah gagal membuktikan atas imbangan kebarangkalian bahawa pihak menuntut telah melakukan perbuatan salahlaku seperti yang dinyatakan dalam surat penamatan tersebut. Keputusan penamatan tersebut adalah satu keputusan yang tidak wajar dan tidak sepatutnya diambil oleh pihak responden.” (paragraph 44). [16] We entirely agree with learned counsel for the appellant that there is no illegality in the findings of fact made by the Industrial Court, nor can it be said to be plainly irrational in all the circumstances of the case. In fact there had been a proper and adequate appreciation of the facts and law by the Industrial Court and such findings were amply supported by the evidence. [17] It is clear that the decision of the Industrial Court was consistent with the evidence. The learned High Court Judge ought not to have disturbed her findings of fact on a Judicial Review application. The proper role of the High Court in hearing a Judicial Review application was explained by Raja Azlan Shah FJ (as His Royal Highness then was) in Non-Metallic Mineral Products Manufacturing Employees Union & Ors v South East Fire Bricks Sdn Bhd [1976] 2 MLJ 67 as follows: “For instance, it has no jurisdiction under section 25 of the Courts of Judicature Act to interfere with the findings of fact reached by the Industrial Court on the ground that the decision is erroneous except where there is a clear error of law on the face of the record. 7 It cannot arrogate the powers of a Court of Appeal by substituting its own judgment for that of the Industrial Court on questions of fact and cannot review the evidence.” [18] In the present case, the learned High Court Judge made his own findings of fact and in doing so disagreed with the findings of the Industrial Court that the dismissal was not justified. But disagreement is no basis for judicial review: Malaysian Oxygen Bhd v Soh Tong Wah & Anor Appeal [2015] 3 MLJ 730. [19] The learned High Court Judge had substituted the Industrial Court’s findings of fact on the following:

(i) The failure of the appellant to respond to the draft job description.