The punishment meted out against the appellant was disproportionate. On the issue of misrepresentation to BITC [17] The main complaint of the appellant is that the Industrial Court had failed to make a proper judicial appreciation in accepting the whole or any part of the evidence placed before him. In raising this issue, learned counsel for the appellant contended that the Bank had failed to establish the alleged misrepresentation on the part of the appellant. [18] The allegation against the appellant was that he had misrepresented to the Bank regarding the Survey data. According to learned counsel for the appellant, the Bank had failed to establish the appellant’s assertion that a number of 290 members of the staff had responded to the survey was wrong. [19] In support of this contention, learned counsel highlighted that COW- 1, Kavin Lim himself, could not verify whether the number of 290 respondents to the survey was verified by the Bank. Encik Kavin is the Head of Industrial Relations of the Bank. During cross-examination, COW-1 could not confirm whether the figure of 290 was indeed accurate or otherwise. The extension of the argument is that if the Bank could not verify the actual number of respondents to the survey, the question of misrepresentation does not arise. [20] It is for this reason that learned counsel for the appellant submitted that the Bank is not in the position to conclude whether or not the figure of 290 respondents obtained by the appellant was true or false. Whether the appellant had misled Ms Kayatthri [21] The issue before the Industrial Court was whether the appellant had attempted to mislead the Bank’s HR by asking his colleague, Ms Kayatthri, to lie on his behalf and state she was one of the respondents to the Survey who did not understand the cybersecurity material that was presented. [22] As part of the investigations into the Survey results, the appellant was required to forward two names to COW-1 as to who had voted for the option since COW-1 could not understand the information shared. According to COW-1, he needed “more material” for the ongoing investigation. [23] Upon such request, the appellant furnished two names – Ms Laaleethah Kalidass and Ms Kayatthri. Ms Kayatthri was summoned for an interview with COW-1. Prior to the interview, the appellant had spoken to Ms Kayatthri and it was alleged that the appellant had asked Ms Kayatthri to lie to the HR. COW-1 had caused Ms Kayatthri to affirm a statutory declaration to that effect: Q18: Who told you to tell this lie to HR? A: Suresh [the appellant]. [24] With respect, I find that the learned Chairman had erred in giving weight to this statement. I say this for two reasons. First, Ms Kayatthri was not called by the Bank to give evidence. Secondly, the statement made by Ms Kayatthri, though it was part of the evidence before the Industrial Court, is, in fact, an out-of-court statement. The Industrial Court did not have the opportunity to observe the demeanour of Ms Kayatthri, who made the statement, since she was not subject to cross-examination. [25] I believe the law is trite. It can be found in the judgment of the Court of Appeal in Ng Chooi Kor v Isyoda (M) Sdn Bhd [2010] 3 MLJ 492 CA. It was held that the court would give minimal weight to statements which are not tested in cross-examination. In delivering the judgment of the Court, Ahmad Maarop JCA (later PCA) made the following observations: All the matters which we have just discussed had escaped the scrutiny of the learned judge in the court below in considering the weight to be given to D15 and D16. It was easy for the learned judge to say that he believed Soo. But unlike the appellant, Soo’s statements in D15 and D16 could not be tested in court by the process of cross-examination, and in our view this had severely affected the weight to be attached to the contents of D15 and D16. [26] In the circumstances, it is, therefore, my finding that the Industrial Court had erred in giving weight to the statement made by Ms Kayatthri and in eventually concluding that the appellant had told Ms Kayatthri to lie on his behalf. Did the alleged misrepresentation prejudice the Bank? [27] The Industrial Court found that the alleged misrepresentation made by the appellant had prejudiced the respondent Bank. According to the learned Chairman, the misrepresentation had deprived the Bank of the opportunity to ascertain the true effectiveness of the IT Security Awareness Month. In other words, the misrepresentation had concealed the truth as to the effectiveness of the Bank’s initiative. [28] The learned Chairman found the concealing of the truth as misconduct on the part of the appellant. Relying on Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union [1990] 1 MLJ 5, the learned Chairman held that the misconduct was “so serious in breach of accepted practice that by standard of fairness and justice the employer should not be bound to continue the employment”. [29] Before me, learned counsel for the appellant submitted that the Bank could not possibly be prejudiced. To begin with, according to learned counsel, the Survey conducted by the Bank was not the only method used to gauge the effectiveness of the IT Awareness Week. It was suggested at the BITC meeting held on 7.7.2020 that there were other means of gauging the effectiveness through social engineering to send convincing spear-phishing emails to assess the cyber security awareness of the staff. [30] In short, taking this as a cue, learned counsel for the appellant contended that the Bank was not deprived of opportunities of ascertaining the effectiveness of the IT Awareness Week. In any event, learned counsel for the applicant submitted that there was evidence, as confirmed by COW-2, that the purported misrepresented information, which was the subject matter of the appellant’s dismissal, was never corrected or revisited by the Bank. [31] From the evidence at the hearing before the Industrial Court, this Court can safely conclude that the appellant had indeed mispresented his findings, which he presented to the BITC on 13.5.2020. The appellant intentionally increased the number of the respondents. Furthermore, the appellant had never disclosed to the BITC that the screenshot that was part of the presentation was an “edited” screenshot. The appellant admitted this during cross-examination: Q: Now, my question to you is, can you confirm that when you submitted this information to the BITC, you had never told them the slide being presented contained an edited screenshot? A: No. [32] Since the issue of misrepresentation had been established, the question that arises is whether the dismissal of the appellant was justified. In Palmco Oil Mill v Ooi Ching Lang [2005] 1 ILR 587, the claimant, a plant manager was dismissed by the company, which operated oil palm mills, inter alia on the ground, that he had wilfully misrepresented to the company of the Daily Production Performance Report (“DPPR”) for the period from January to October 1998 by providing false and misleading data, which led to a misleading assessment of the PKO yield achieved by the plant. [33] The Industrial Court held that the main issue that required deliberation concerned the truthfulness of reporting the actual quantity of oil in cake data and not the technical reasons for the variances. Documentary evidence, in the form of the DPPR and Work in Progress (“WIP”) figures, clearly indicated the abnormality of the adjustments wilfully made by the claimant and were designed to present a false yield picture or manipulate the management. [34] Under the circumstances, the Industrial Court further held that the punishment of dismissal was proportionate because of the claimant's senior and responsible position and the element of trust at stake. The claimant had been playing around with the company's assets. Not only had he been misleading the management, but in effect, he was also misleading himself, and this made it impossible for him to continue to carry out his duties and responsibilities. [35] In the instant case, the appellant’s contention is that such a misrepresentation did not prejudice the Bank. With respect, I find that this line of argument is untenable. To begin with, one cannot expect the Bank to use data that is tainted with wrong and doctored information. It is therefore understandable when COW-2 testified that the Bank “did not go back to talk about the survey”. The appellant cannot therefore hide behind the argument that since the Bank did not use the data that he presented, the Bank is not, therefore, prejudiced. What if the misrepresentation was not discovered and the Bank used it for the purpose of analysing the effectiveness of the IT Awareness Week? [36] In the first place, the appellant should not have doctored the data or edited the screenshot for the purpose of the slide presentation. As the Head of GITS, the appellant should have realised that any such attempt would be prejudicial to the Bank. With respect, the learned Chairman was correct in concluding that the concealing of truth amounts to misconduct. The consequence of the misconduct is, therefore, to my mind secondary. Whether the dismissal was actuated by ulterior motives [37] The appellant is aggrieved in the manner the Bank had moved in dismissing him without according him a reasonable opportunity to respond to the allegation of misconduct. Learned counsel for the appellant attracted my attention to cl 9 of the Bank’s Disciplinary Policies, which states that: … the employee shall be accorded reasonable opportunity to respond to the allegation of misconduct. [38] According to learned counsel for the appellant, at the very least, the Bank should have issued a show cause letter to the appellant prior to his dismissal. Further, the appellant was not informed of any right of appeal against the dismissal in accordance with cl 13 of the Bank’s Disciplinary Policies. [39] The appellant also contended that his dismissal was actuated by malice. His argument is this. According to the appellant, COW-2 had been wanting to get rid of him one year prior to the incident. At the trial before the Industrial Court, the appellant adduced transcripts of the conversation between him and COW-2. The transcripts revealed that COW-2 expressed his intention for the appellant to leave the Bank. [40] Under the circumstances of the case, it is the appellant’s case that the issue of the Survey results had given the opportunity to commission the investigation into the matter with a view of engineering the expeditious dismissal of the appellant. To compound the matter, COW-2 is not only the complainant but also one of the three members of the panel who took the ultimate decision in dismissing the appellant. [41] In response to these contentions, learned counsel for the Bank submitted that the appellant was given ample opportunities to defend himself. There were a series of emails correspondence that the appellant held with COW-2. At the same time, investigation interviews were conducted with COW-1 on 21.7.2020, 27.7.2020 and 5.8.2020 following the appellant’s failure to provide a reasonable explanation to COW-2 on how he had conducted the survey. [42] As to the right of appeal, COW-1 had confirmed that the Bank Disciplinary Policies were made available to all employees and the appellant ought to have been aware of his rights: COW-1: But this policy, this disciplinary policy is made available to all employees. So, the Claimant should be aware of his rights. [43] Learned counsel for the Bank contended that the presence or absence of notice to show cause nor the right to appeal does not add to or diminish the strength of the Bank’s case. The defect, if at all, can be cured by the inquiry in the Industrial Court. In canvassing this line of argument, learned counsel relied on the judgment of the Federal Court in Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd & Anor Appeal [1995] 3 CLJ 344 SC. [44] In that case, the appellant, an insurance claims manager of the respondent, was dismissed from his employment on the ground of gross dereliction of duty, in that he had improperly sold to himself two motor wrecks belonging to the respondent. The facts showed that the respondent had held no domestic inquiry prior to the dismissal. [45] Pursuant to a reference by the Minister of Human Resources made under s 20(3) of the IRA to determine the propriety of the dismissal, the Industrial Court ruled that the failure to hold an inquiry herein constituted a clear breach of natural justice that rendered the dismissal wrongful ab initio. It was further held that on that ground alone, it was unnecessary to examine the merits of the reference to ascertain whether the dismissal was or was not with just cause or excuse. [46] Both parties, dissatisfied with the award, applied to the High Court for certiorari to quash the same. The applications were dismissed by the learned Judge, who ruled that the Industrial Court, in the circumstances, had not committed any jurisdictional error. [47] The Federal Court held that the defect in natural justice by the respondent could and ought to be cured by the Industrial Court. The Industrial Court is an independent quasi-judicial statutory body capable of reaching fair result by fair method. Despite the initial defect by the respondent in dismissing the appellant, the hearing before the Industrial Court should be taken as a sufficient opportunity for the appellant to be heard to satisfy natural justice and thereby rectify the omission to hold a domestic inquiry. [48] Mohd Azmi FCJ, in delivering the judgment of the Court, held as follows: We were of the view, that for the subsequent body to be able to "cure" the original defect in natural justice, it is essential that the subsequent body is an impartial body and free from partiality, capable of arriving at a fair decision. Unlike, for instance in the case of Trade Union Appeal Committees, the Industrial Court, is clearly an independent quasi-judicial statutory body capable of reaching fair result by fair method, notwithstanding some initial defect by Hong Leong in dismissing the appellant. The Industrial Court proceeding dealing with dismissal cases by management under s. 20 should therefore, in our opinion be categorised under the "intermediate category" of cases referred to in Calvin, wherein the Industrial Court should be capable of curing any procedural defect in natural justice at the management stage of the dismissal dispute. [49] In contending that his dismissal was actuated by malice, the appellant relied on his conversation with COW-2 in July 2019. With respect, I am unable to accept this line of argument. First, there was no evidence before the Industrial that the transcript adduced reflected the whole of the conversation that took place between the appellant and COW-2. Secondly, the conversation took place one year before the misconduct of the appellant and well before the appellant was tasked to conduct the Survey. Thirdly, by his own admission during cross-examination, and despite the appellant’s assertion on the COW-2’s adamant in “firing” him, no disciplinary action was taken against the appellant until the Survey incident. [50] I therefore cannot find any causal link or nexus between the alleged threat made by COW-2 and the eventual dismissal of the appellant, which was based on his misconduct in the Survey incident. [51] In the circumstances, I do not find that the appellant’s dismissal was actuated by malice. On the issue of proportionality [52] In the alternative, even if the misconduct of the appellant had been proven, learned counsel for the appellant submitted that the decision to dismiss the appellant was grossly disproportionate. [53] The basis of learned counsel’s argument is that the Survey results were inconsequential and unimportant to the Bank’s position. [54] In response to this contention, learned counsel for the Bank referred me to the judgment of the Federal Court in Harianto Effendy Zakaria & Ors v Mahkamah Perusahaan Malaysia & Anor [2014] 6 MLJ 305 FC. The case carries the proposition that it is not necessary for the misconduct to be grave and serious to justify a dismissal. [55] Learned counsel for the Bank then highlighted to the Court that honesty and integrity are of utmost importance in the banking industry. In short, the banking industry is sui generis. It is in a class of its own. The said proposition is not without support. There is a plethora of cases which recognised that the banking industry belongs to a special kind of business and services rendered to the public. In Harianto Effendy, the second respondent Bank dismissed the appellants from employment for taking part in an illegal picket within the bank’s premises during banking hours. The Industrial Court upheld the dismissal of the appellants, holding that a deterrent sentence was necessary as the appellants’ actions tended to adversely affect the bank’s good name and relationship with customers. The dismissal was affirmed by the High Court and, subsequently, the Court of Appeal. The appellants appealed to the Federal Court. In dismissing the appeal, Hassan Lah FCJ, speaking on behalf of the apex Court, remarked as follows: In a number of cases, the Industrial Court had held that the banking industry belonged to a special kind of business and services rendered to the public. Therefore a high standard of care and conduct was expected of an employee in the banking industry. [56] During the appellant’s interview with the Bank’s investigation officer, the appellant was evasive and, at times, departed from his earlier email responses to COW-2 and from what he had represented to the BITC on 7.7.2020. One cannot help but conclude that the appellant’s conduct was deliberate. He knew full well that he was supposed to carry out an actual Survey via Workplace. The appellant did not do that. Instead, he edited the screenshot for the purpose of the slide presentation. [57] In light of the above, I have no hesitation in concluding that the punishment to the appellant was proportional to his misconduct. Findings [58] In the result, my findings are as follows: