2(12)/4-462/19

INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 2(12)/4-462/19

BETWEEN
AHMAD KAMAL ARIFFIN BIN KAMARUDIN & 7 OTHERS
AND
HICOM AUTOMOTIVE MANUFACTURERS (MALAYSIA) SDN. BHD.
(consolidated with Cases No.: 12/4-463/19, 12/4-464/19, 12/4-465/19, 12/4-466/19,
12/4-467/19, 12/4-468/19, 12/4-472/19, via Interim Award No. 2032 of 2019 dated 15.7.2019)

AWARD NO.: 1484 OF 2021

Before : Y.A. PUAN NOOR RUWENA BINTI DATO’

MOHD NURDIN – CHAIRMAN (Sitting Alone)

Venue : Industrial Court of Malaysia, Kuala Lumpur

Date of Reference : 02.04.2019

Dates of Mention : 16.05.2019; 13.06.2019; 05.07.2019; 02.08.2019;

08.08.2019; 04.09.2019; 27.09.2019; 29.09.2020;
25.01.2021; 08.02.2021; 29.03.2021; 12.04.2021;
27.04.2021

Dates of Hearing : 16.10.2019; 17.10.2019; 18.10.2019; 29.11.2019;

15.01.2020; 16.01.2020; 29.01.2020; 16.03.2020;
04.08.2020; 05.08.2020; 06.08.2020; 07.08.2020;
15.02.2021

Representation : Mr. Chandra Segaran Rajandran

From Messrs Prem & Chandra
Counsel for the Claimant

: Ms. Mehala Marimuthoo with Ms. Sabrina Jamaluddin

From Messrs Shook Lin & Bok
Counsel for the Company

Reference:

This is a reference made under subsection 20(3) of the Industrial Relations Act 1967
(“the 1967 Act”) arising out of the dismissal of Ahmad Kamal Ariffin Bin Kamarudin
(hereinafter referred to as “the Claimant”) by Hicom Automotive Manufacturers
(Malaysia) Sdn. Bhd. (hereinafter referred to as “the Company”) on 13 November
2018.

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AWARD

[1] The Ministerial reference in this case required the Court to hear and
determine the Claimant’s complaint of dismissal by the Company on 13 November
2018 and was received by the Industrial Court on 5 April 2019.

Background

[2] In this matter, there were seven other claimants whom had filed their claims of
unfair dismissal against the same company. The order and identification of all eight
claimants, since they were all represented by the same counsel, were as follows:

Case No. Claimants

(i) 12/4-462/19 Ahmad Kamal Ariffin Bin Kamarudin (CLW1)
(ii) 12/4-463/19 Saiful Johari Bin Johar (CLW2)
(iii) 12/4-464/19 Ahmad Faidzal Bin Ali (CLW3)
(iv) 12/4-465/19 Ahmad Amiruddin Bin Rosdi (CLW4)
(v) 12/4-466/19 Mohd. Shukor Bin Shuib (CLW5)
(vi) 12/4-467/19 Rosnizan Bin Abu Samah (CLW6)
(vii) 12/4-468/19 Khairul Nisa Binti Abdul Rahim (CLW7)
(viii) 12/4-472/19 Zais Madi Bin Osman (CLW8)

[3] For the purpose of this hearing, the eight claimants will also be collectively
referred to as “the Claimants”. During the pleadings stage, an application was made
on 5 July 2019 by the Claimants’ Counsel for the eight cases to be consolidated as
they involved the same company, witnesses and had similar facts and issues. The
Company’s Counsel did not object to the application and the Court ordered that all
eight cases to be consolidated vide Award No. 2032 of 2019 dated 15 July 2019.
The hearing dates for the consolidated cases were fixed for 16 to 18 October 2019
and additional dates to be provided later as appropriate. The Claimants had been
employed in the Company in various capacities, which will be detailed out later in this
Award.

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[4] The hearing commenced with the Company’s witnesses on 16 October 2019
in Kuantan, upon the Claimants’ application since most of them were based in
Pekan, Pahang. However, it could not be completed within the three days allocated
due to some technical difficulties and was adjourned to be continued in Kuala
Lumpur on 29 November 2019, 15-17 January 2020, 29 January 2020, 16-17 March
2020. Nevertheless, the hearing date of 17 March 2020 had to be vacated due to the
implementation of the Movement Control Order 2020 (MCO) by the Government in
light of the Covid-19 pandemic. The hearing then continued on 4-7 August 2020 and
15 February 2021. The Claimants’ last witness testified on 15 February 2021 via live
video link (remote hearing technology), from his house in Pekan, Pahang because
the witness was not well to travel to Kuala Lumpur to testify. The Court had obtained
both parties’ consent to proceed in that manner, as provided for under the Industrial
Court Practice Note No. 1 of 2021. Moreover under the MCO, interstate travel was
not permitted unless for emergency reasons. Written submissions were filed and
exchanged by the parties in accordance with the Court’s instructions. Finally, the last
written submissions in reply were filed on 27 April 2021.

[5] There were many documents tendered by the parties and they were identified
and marked in the following manner:

i. Company’s Bundle of Documents for the First Claimant – COB1

ii. Company’s Bundle of Documents for the Second Claimant – COB2
iii. Company’s Bundle of Documents for the Third Claimant – COB3
iv. Company’s Bundle of Documents for the Fourth Claimant – COB4
v. Company’s Bundle of Documents for the Fifth Claimant – COB5
vi. Company’s Bundle of Documents for the Sixth Claimant – COB6
vii. Company’s Bundle of Documents for the Seventh Claimant – COB7
viii. Company’s Bundle of Documents for the Eighth Claimant – COB8
ix. Company’s Bundle of Documents Volume 9 – COB9
x. Company’s Bundle of Documents Volume 10 – COB10
xi. Company’s Bundle of Documents Volume 11 – COB11
xii. Company’s Bundle of Documents Volume 12 – COB12
xiii. Company’s Bundle of Documents Volume 13 – COB13

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xiv. Company’s Bundle of Documents Volume 14 – COB14

xv. Company’s Bundle of Documents Volume 15 – COB15
xvi. Ikatan Dokumen Pihak Yang Menuntut Jilid 1 – CLB1
xvii. Ikatan Dokumen Pihak Yang Menuntut Jilid 2 – CLB2
xviii. Ikatan Dokumen Pihak Yang Menuntut Jilid 3 – CLB3
xix. katan Dokumen Pihak Yang Menuntut Jilid 4 – CLB4
xx. Ikatan Dokumen Pihak Yang Menuntut Jilid 5 – CLB5

Brief Facts

[6] The Company was incorporated in 1983, a subsidiary company of DRB-

HICOM Berhad (“the Group”) and based in Pekan, Pahang It specializes in assembly
of automotive units for passenger cars and commercial vehicles. At the material time,
the Company assembled certain models of the Mercedes Benz and Volkswagen
marques for the Malaysian market. The Claimants are a group of eight former
executives of the Company whom have brought their action under the provision of
subsection 20(3) of the 1967 Act for the alleged dismissals without just cause or
excuse by the Company on 13 November 2018.

[7] On 21 November 2017 the Company’s Chief Executive Officer (CEO), Ismail
Bin Pandak, received via WhatsApp, images of the last two pages of a purported
petition letter through a whistleblower. The incomplete petition letter was signed by a
total of 22 employees of the Company, and they had allegedly organized a secret
campaign to remove the CEO from the Company, to get him transferred to the Group
office in Shah Alam. It appeared from the last paragraph of the incomplete letter that
it called for such action to be taken by a “Dato’ Sri” due to alleged victimization of the
Company’s employees, and residents of Pekan in general, by the CEO and also
mismanagement within the Company. The petition letter ended with the sentence
“Sekiranya perkara ini tidak berlaku dalam masa 3 bulan dari sekarang, kami akan
memberi kepercayaan kepada Parti lain untuk membantu kami semasa PRU14
nanti.”. Attempts were made to obtain the complete copy of the petition letter but the
Company only managed to recover it much later.

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[8] Meanwhile, the Company carried out an investigation by interviewing some of

the individuals named in the incomplete petition letter to ascertain whether it indeed
existed. Some of them admitted to signing it and some neither denied or agreed to
signing and another said he was forced to sign it. Out of the 22 employees, 11 had
resigned and from the remaining 11, the Company had identified eight of them as the
Claimants. Subsequent to the investigation, an employee by the name of Mohamed
Yaacob Bin Mamat (“Mohamed”) was hauled up before a domestic inquiry (DI) panel
in March 2018 for the misconduct of gathering some employees from the rank of
Non-Executives and below within the Company to conspire to oust the CEO. The
Company consulted the Group on the next steps to be taken. It was close to the
General Elections by the time the investigation was completed and the matter of the
DI for the said Mohamed was on-going. Mohamed was subsequently dismissed. The
Claimants were identified and the Company issued show cause letters and
suspension letters dated 4 July 2018 to them. They were suspended for 14 days with
immediate effect to enable the Company to gather more information pertaining to the
said conspiracy. They were given seven days to provide a written explanation to the
show cause letters on the following charge:

“Anda telah didapati membawa atau cuba membawa pengaruh

atau tekanan luar bertujuan untuk menukar Ketua Pegawai
Eksekutif Hicom Automotive Manufacturers (Malaysia) Sdn. Bhd.
iaitu Ismail Bin Pandak dengan menyokong dan menandatangani
satu bantahan berbentuk dokumen yang akan dihantar dan/atau
telah dihantar kepada Dato’ Sri Haji Mohd Najib Bin Tun Haji
Abdul Razak yang pada ketika itu ialah Perdana Menteri
Malaysia.”.

[9] The Claimant responded to the show cause letters within the stipulated time,
but the Company was dissatisfied with their explanation. Two DI sessions for the
Claimants were convened on 25 September 2018 and 26 September 2018,
respectively, pursuant to a Notice of DI dated 7 September 2018 issued to them. The
Notice of DI contained a more detailed charge of the earlier charge and premised
upon the Company’s Dasar Dan Tatacara Tatatertib at DTT48 that governed its

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employees’ conducts. Subsequently, they were found guilty of the charge against
them. The Company managed to obtain a complete copy of the petition letter dated
16 November 2017 after the DI was completed and a copy of the document was
produced at the hearing. They were dismissed from service on 13 November 2018
with immediate effect and later appealed against the dismissals. The Appeal Panel
dismissed their appeals on 14 January 2019. The Claimants filed their
representations under subsection 20(3) at the Jabatan Perhubungan Perusahaan
(JPP) on 16 November 2018 on the basis that their dismissals were without just
cause or excuse. They claimed that the delay by the Company in taking action
against them showed that the Company had condoned the matter. It was also the
Claimants’ contention that the Company was determined to terminate their services
at all costs and even advertised for the position of Assistant Manager of Industrial
Relations, a position which CLW1 held during the material time.

[10] The Company denied the Claimants’ contention and claimed that it was acting
within the scope of its Dasar Dan Tatacara Tatatertib at DTT48 which provided that
“it is a serious offence to bring or attempt to bring influences or pressure from
external sources for the purposes of submitting/presenting or supporting a claim
which relates to the services of anyone one particular individual or for other
employees.”. The Company contended that the series of actions by the Claimants
were serious misconducts and contrary to its Disciplinary Policies and Procedures
Handbook. Moreover, they by their actions, had tarnished the Company’s good name
or image. The Company further denied that it condoned the Claimants’ actions and
explained that the delay was justified due to a number of considerations, amongst
others, that the complete petition letter was obtained rather late, that the General
Election was just around the corner then, and it had to tread carefully due to the
perceived threat in the petition letter. The Company also respected the fasting month
and Hari Raya Puasa celebrations that were approaching because it did not want to
be blamed as being insensitive and causing hardship to the Claimants during that
time. The Company prayed that the Claimants’ claims to be dismissed as it was
justified in its actions.

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Representation on dismissal

[11] The Claimants prayed that this Court hold their dismissals as being without
just cause or excuse, a breach of natural justice and their right to livelihood under the
Federal Constitution, manifestly unreasonable and based on its mala fide intention, in
violation of fair labour practices and that the Company’s action was discriminatory,
and without due regard to their long service with the Company. They pleaded that
they were victimized by the Company and that it (the CEO) had wanted to get rid of
them. The Claimants prayed that they be reinstated to their former position with no
loss of salary and all other benefits.

[12] The Claimants made their representation under section 20(3) of the 1967 Act
and where such representations have been made and are referred to the Industrial
Court for inquiry, it is the duty of the Court as stated by the Federal Court in the case
of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. and another
appeal [1995] 2 MLJ 753 to determine whether the termination or dismissal is with or
without just cause or excuse. In Hotel Malaya Sdn. Bhd. & Anor v. National Union
of Hotel, Bar & Restaurant Workers & Anor [1982] 2 MLJ 237 it is stated that in
exercising this quasijudicial function, the Court’s functions comprise an investigation
of the facts, an analysis of the facts, findings of facts and lastly the application of the
law to those findings. Hence, the role of the Court is to determine whether the
dismissals are without just cause or excuse. Although it is incumbent upon the Court
to inquire into the issue of justness or the excuse on its merits, the Court must first be
satisfied that the Claimants are indeed dismissed.

[13] In the present case, the dismissals are not disputed. Therefore, the Court has
only to consider on a balance of probabilities whether there is just cause or excuse in
the Company’s actions of dismissing the Claimants. The burden of proof is on the
Company to discharge where the dismissal is not disputed, as stated in the case of
Weltex Knitwear Industries Sdn. Bhd. v. Law Kar Toy [1998] 7 MLJ 359, where it
was held:
“The law is clear that if the fact of dismissal is not in dispute, the burden
is on the company to satisfy the court that such dismissal was done with
just cause or excuse. This is because, by the 1967 Act, all dismissal is

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prima facie done without just cause or excuse. Therefore, if an employer

asserts otherwise, the burden is on him to discharge. However, where
the fact of dismissal is in dispute, it is for the workman to establish that
he was dismissed by his employer. If he fails to, there is no onus
whatsoever on the employer to establish anything for in such a situation
no dismissal has taken place and the question of it being with just cause
or excuse would not arise.”.

The Company's Case

[14] The Company called six witnesses in support of its case as follows:

(i) Azmi Bin Wahap (COW1), former General Manager, Human Capital
Department;
(ii) Abd. Rahman Bin Yit (COW2), Manager, Body Shop Department (Volkswagen
Operation);
(iii) Mohd. Junit Bin Ali (COW3), Executive, Property Facility Management;
(iv) Nor Faisal Bin Md. Nor (COW4), Acting Vice President, Industrial Relations
Department, Pos Malaysia;
(v) Ismail Bin Pandak, Chief Executive Officer (COW5); and
(vi) Terence Soo Thean Hin (COW6), Head of Manufacturing and Engineering,
DRB-HICOM Berhad.

[15] The hearing commenced with the first five Company witnesses testifying in
Kuantan, Pahang. And then it continued at the Industrial Court in Kuala Lumpur with
the Company’s last witness and followed by the Claimants’ witnesses. COW1 was
the first to take the stand and was extensively cross-examined by the Claimants’
Counsel; COW1 being a witness for the Company at the two DI sessions and also
one of the key witnesses for the Company’s case. In order to appreciate the facts of
the case, I will set out the pertinent contents of the witness statements of both parties
albeit most of them are lengthy and repetitive.

[16] COW1’s witness statement was admitted in Court and marked as COWS1. He
retired from the Company on 31 March 2019. He joined the Company in 2012 and
had been the GM of the Company’s Human Capital Department since 1 September
2016 until his retirement where he had taken up a VSS offer. He stated that in the

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year 2017, the Company had about 1,974 employees and the majority of them were
residents of Pekan, Pahang. The then Prime Minister, Dato’ Sri Haji Mohd. Najib Bin
Tun Haji Abdul Razak, was also the Member of Parliament for the Pekan
constituency. The Claimants were long-serving employees of the Company. A
summary of the relevant information on the Claimants were as follows:

Claimant Position Department Joining Date and Last Drawn

Completed Years Salary
of Service (as at
Nov 2018)
CLW1 Assistant Human Capital 2.1.1990 RM5,323,00
Manager Department (28 years)
CLW2 Assistant ICC & QIT 25.3.1987 RM4,512.00
Manager Development (31 years)
CLW3 Manager Paint Shop 11.12.2013 RM11,352.00
(4 years)
CLW4 Senior Plant Engineering 1.9.2010 RM2,713.00
Executive (8 years)
CLW5 Assistant Logistics 1.6.2015 RM5,870.00
Manager Department (3 years)
(Volkswagen
Operation)
CLW6 Assistant Logistics 4.8.2010 RM5,415.00
Manager Department (8 years)
(Volkswagen
Operation)
CLW7 Executive Human Capital 19.9.1995 RM3,048.00
Department (23 years)

CLW8 Assistant Production 17.8.1995 RM4,188.00

Manager Engineering (23 years)
(Mercedes Benz
Operation)

[17] COW1 testified that on 21 November 2017 he received via WhatsApp two
images from the Company’s CEO, COW5, displaying parts of a letter (“the said
letter”) containing statements made to a Dato’ Sri alleging victimization by the CEO
and his cronies and requesting for the CEO to be transferred out from the Company’s
branch in Pekan, Pahang. There was an ultimatum issued that if the aforesaid did not
take place within three months, the signatories would enlist the help of other political
parties during the 14th General Election (GE). The said letter was signed off by 22

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individuals who were identified by COW1 as employees of the Company. A copy of

the two-page letter is as follows:

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[18] The letter stated that some of them had handed in their resignation letters
while others were awaiting action by the CEO. COW1 told the Court that it was
disheartening to know that such threats, if true, were in fact made by employees or
former employees of the Company. He said attempts were made to obtain the
complete version of the said letter but it was difficult for the Company because it
came through a whistleblower and the Company only managed to recover it much
later. Therefore, the Company decided to investigate further to ascertain whether
there was such a letter issued. Having identified the 22 individuals, the Company
carried out an investigation by interviewing some of them who were named in the
said letter including CLW2, CLW3 and CLW6. At that time, the Claimants were still
with the Company together with Md. Muzaiman Bin Isron (“Muzaiman”) and Ahmad
Zafir Bin Abd. Samad (CLW9). According to COW1, 12 of them were no longer with
the Company and their details were as follows:

No. Name of Former Employee Status

1. Najmi Bin Sulaiman Last day of service on 30.9.2015

2. Saharudin Bin Ismail Last day of service on 31.10.2016

3. Mohd. Zakir Bin Talib Last day of service on 9.2.2017

4. Nurul Shuhada Binti Ishak Last day of service on 2.8.2017

5. Mohd. Shamran Bin Hussin Last day of service on 12.10.2017

6. Mohd. Osman Bin Deraman Last day of service on 1.11.2017

7. Wan Zuki Bin Wan Hassan Dismissed on 3.11.2017

8. Manan Bin Karim Last day of service on 30.11.2017

9. Nik Adnan Bin Nik Abdullah Last day of service on 1.12.2017

10. Umran Bin Talib Last day of service on 31.12.2017

11. Shamsul Kamal Bin Main Last day of service on 31.12.2017

12. Johari Bin Amzat Last day of service on 12.3.2018

[19] COW1 told the Court that some of them admitted to signing it, while some
neither denied or agreed to signing and another said he was forced to sign it. Out of

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the 22 employees, 11 had resigned and from the remaining 11, the Company had
identified eight of them as the Claimants. It is noted that those who had resigned were
not charged.

[20] The Company began investigations into the said letter by meeting with and
speaking to some of the individuals named in the list. He met with CLW6 whose name
was listed at No. 13 in the letter at pages 1-2 of COB9. His evidence in respect of the
queries made was as follows:

“7. Q: What transpired during the meeting?

A: Together with the CEO and General Manager of Finance, En. Noor
Reizman Mohamad, I met with En. Rosnizan (listed at no. 13, Tab 1, p. 2 of
COB-9) who was in the foremost shown the said letter (and the respective
names and signatures) by the CEO through his handphone and queried of their
involvement in the same. En. Rosnizan gave the excuse that he was unsure
whether he signed the letter or not.

Subsequently, I met with En. Ahmad Faidzal (listed at no.2, Tab 1, p. I of

COB-9), En. Saiful Johari {listed at no. 4, pp. Tab 1, p. 1 of COB-9) and En.
Md Muzaiman bin Isron (“En. Muzaiman”) (listed at no. 10, Tab 1, p. 2 of
COB-9) on separate occasions and by myself. The employees were also
asked on their involvement in the said letter.

En. Faidzal admitted to signing the said letter and stated that in his
previous place of employment, he has been involved in similar acts of
seeking help from politicians to solve internal issues within the companies.
En. Saiful Johari neither denied nor agreed to signing the said letter
whereas En. Muzaiman came out to say that he was forced by En. Kamal
Ariffin at the Engineering Workshop to sign the said letter.”.

[21] Subsequent to the investigation, an employee by the name of Mohamed

Yaacob Bin Mamat (“Mohamed”) was hauled up before a domestic inquiry (DI) panel
in March 2018 for the misconduct of gathering some employees from the rank of
Non-Executives and below within the Company to conspire to oust the CEO. The
Company began its investigation therein on 2 February 2018. The DI for Mohamed
took place in March 2018. Mohamed was subsequently dismissed in June 2018. He

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filed a representation under subsection 20(3) of the 1967 Act and was referred to the
Industrial Court (Case No. 21/4-2994/18).

[22] COW1 told the Court further:

“9. Q: What transpired with the Claimants thereafter?

A: Based on the available contents of the said letter and the report received
from the whistleblower, the Company consulted the Group, DRB-HICOM Berhad
on the appropriate steps to be taken. It was close to the elections when we
completed the investigation and at the same time, the matter involving En.
Mohamed Yaacob was ongoing. Therefore, it was only subsequent to that that
the Claimants were issued with a show cause and suspension letter dated
4.7.2018. The show cause letters were issued to gather further explanation
considering that the Claimants during the discussions did not deny/dispute that
such letter was in fact issued with their signatures.
The Claimants were suspended from work with half pay for a period of fourteen
(14) days from 4.7.2018 until 17.7.2018 and was required to provide a written
explanation within seven (7) days from the date the letter was issued towards the
following charge put forth against them:

“Anda telah didapati membawa atau cuba membawa pengaruh atau

tekanan luar bertujuan untuk menukar Ketua Pegawai Eksekutif Hicom
Automotive Manufacturers (Malaysia) Sdn Bhd iaitu Ismail bin Pandak
dengan menyokong dan menandatangani satu bantahan berbentuk dokumen
yang akan dihantar dan/atau telah dihantar kepada Dato’ Sri Haji Mohd Najib
bin Tun Haji Abdul Razak yang pada ketika itu adalah Perdana Menteri
Malaysia.

Dengan ini anda didapati telah melanggar Dasar Dan Tatacara Tatatertib
dibawah kesalahan berat lampiran DTT (48) iaitu membawa atau cuba
membawa apa-apa bentuk pengaruh atau tekanan luar untuk mengemukakan
atau menyokong sesuatu tuntutan berhubung dengan perkhidmatan sama
ada tuntutan itu tuntutan perseorangan atau tuntutan lain-lain kakitangan.”
(see Tab 3, pp. 23 - 24, COB-1)

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[23] The Claimants replied to the show cause letter within the time provided and
purported to give their explanation towards the charge preferred against them (see
Tab 3, pp. 25 - 28, COB1) (see also Tab 3, pp. 32 - 33, COB2) (see also Tab 3, pp.
17 - 19, COB3) (see also Tab 3, pp. 15 - 16, COB4) (see also Tab 3, pp. 17 - 18,
COB5) (see also Tab 3, pp. 20 - 21, COB6) (see also Tab 3, pp. 19 - 21, COB7) (see
also Tab 3, p. 17 and pp. 18 - 19, COB8). The Claimants’ suspensions were further
extended from 18 July 2018 until further notice with full pay to facilitate further
investigations into the matter. He also told the Court that the Company did not
manage to obtain a complete copy of the petition letter dated 16 November 2017 until
much later after the DI was completed. In the cross-examination of this witness, he
explained about the delay in taking disciplinary actions as the fasting month and Hari
Raya Aidil Fitri season were also approaching and the Company’s action was taken
after the religious occasions ended.

[24] The Claimants responded to the show cause letters within the stipulated time,
but the Company was dissatisfied with their explanation. The Claimants namely,
CLW1, CLW2, CLW3, CLW4 and CLW7 gave near identical replies and generally
stated that they did not admit guilt but that the issues/problems arose as a result of
inter alia, the following:

i. employees, including the old timers were allegedly resigning under intense
pressure from the CEO since year 2016 and this continued until the issuance
of the show cause letters to 10 employees, including the Claimants;

ii. the Company had allegedly condoned the misconduct because of the delay in
its actions against the Claimants. This was specifically so because the Deputy
General Manager Operations, En. Jeffri bin Sidin had already addressed the
misconduct in his weekly assembly meet with the employees on 30
November 2017;

iii. several Claimants were placed on Performance Improvement Plan (PIP) by

the CEO and that no further action was taken despite the expiry of the term,
therefore it was tantamount to condonation of the poor performance by the
Company;

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iv. several of the Claimants were allowed by the CEO to raise their grievances at
the Operation Executive Excellence (“OEE”) workshop which took place on
30 – 31 October 2017 and that the organizers had purportedly assured them
that their grievances will be communicated to the senior management at the
Group level;

v. reference was made to the meeting on 13 November 2017 between the CEO,
the General Manager of Finance and the Claimant, CLW2;

vi. that the high turnover of staff was allegedly brought to the attention of Mr.
David Azzuddin Buxton, the General Manager of Human Capital Division at
the Group;

vii. the Company allegedly did not take this matter seriously because the show
cause and suspension letters were served by an Executive at the Human
Capital Division instead of any staff holding a managerial or higher position in
the Human Capital Division;

viii. the performance evaluation by the Claimants for FY 2016/2017 and FY

2017/2018 were poor despite the fact that in previous years, they were given
much higher ratings;

ix. several employees had been reprimanded by the CEO in public, including by
allegedly saying that he would dismiss CLW1;

x. the problems that transpired at the Company were directly connected to the
pressures allegedly created by the CEO or COW1; and

xi. that the CEO and COW1 would open up their hearts to accept their
explanation so that in the Hereafter they would not be searching for
forgiveness from them.

[25] COW1 added that there were some specific replies that were put forth by
the Claimants, which are as follows:
“En. Ahmad Kamal Ariffin bin Kamarudin
i. En. Kamal Ariffin raised his dissatisfaction over my appointment as the
General Manager of Human Capital by alleging that my performance has been
weak, I had no Human Resource background and that I have caused my

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subordinates from the divisions I had served in the past, such as the IMS &
Quality department to suffer from intense pressure;

ii. on 15.2.2018, En. Kamal Ariffin came across an advertisement in ‘Job Street’
for the position of Assistant Manager in Industrial Relations, similar to the
position held by him at the time. This purportedly depicts the Company’s
intention to dismiss him and seek replacement;

iii. on 22.2.2018, the Deputy General Manager of Operations allegedly made

sarcastic remarks where he informed En. Kamal Ariffin, “En. Kamal, awak
masih kerja lagi, ingat dah tak kerja dah.” This was purportedly said in the
presence of others and therefore evinces the Company’s intentions to get rid
of En. Ahmad Kamal;

iv. on 2.2.2018, En. Kamal Ariffin was accused on getting involved in another
matter against one En. Mohamed Yaacob bin Mamat (Kuala Lumpur Industrial
Court Case No.: 21/4-2994/18) who was dismissed from service on
30.6.2018. In the matter therein, En. Mohamed Yaacob was dismissed for
colluding to oust the CEO; and

v. the problem at the Company was allegedly occasioned by the pressure

placed by the CEO and me and our attempts to oust En. Ahmad Kamal.
(see Tab 3, pp. 2S - 28, COB1)

Puan Khairun Nisa binti Abdul Rahim

i. the Housekeeping Department under Puan Khairun Nisa’s responsibility is
allegedly often placed under pressure for different issues and day to day work
were often disrupted by ad hoc incidents which then results in them being
penalized in terms of their performance when their major responsibility is not
completed; and

ii. there is one incident where Puan Khairun Nisa received conflicting
instructions from the CEO and myself with regards tohandling of a tree in front
of the workplace. She allegedly suffered substantial stress as a result of this
incident.
(see Tab 3, pp. 19 - 21, COB7)

En. Rosnizan bin Abu Samah

i. that he had spoken to the CEO, the General Manager of Finance and me

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about the said letter and that we were purportedly satisfied with his
explanation that he was not involved in the matter; and

ii. that his performance rating had continued to dip from 2.9 to 2 in FY 17/18
and that I gave no explanation for the same despite his request for
explanation. Instead, I merely told him to place his grievance in an appeal
letter.
(see Tab 3, pp. 20 - 21, COB6)

En. Mohd Shukor bin Shuib

i. En. Shukor vehemently denied his involvement with the said letter and
denied knowing its existence;

ii. that he had provided his declaration to his superior officer, the Head of
Operations, VW, En. Mohd Yamin Ghazali denying any role in the signing of
the memorandum that is being circulated; and

iii. he has not been called for any query and therefore he is of the assumption
that the matter has been settled.
(see Tab 3, pp. 17 - 18, COB5)

En. Zais Madi bin Osman

i. vide a letter dated 9.7.2018, En. Zais Madi confirmed that he had signed
the said letter for the removal of the CEO at the insistence of his friends. The
letter was received by the Company on 10.7.2018 at 10.45am; and

ii. subsequently on the same day vide another letter dated 9.7.2018 the
Claimant asked for the first letter to be retracted and gave the same general
response provided by most of the Claimants.
(see also Tab 3, p. I7 and pp. 18 - 19, COB8).”.

[26] COW1 told the Court that the Company was not satisfied with the Claimants’
explanations because the Claimants through their responses were suggesting that
they were not guilty of the alleged misconduct, inter alia, because of the various
issues that they claim pressured them to react in such manner and that generally the
pressure was created by the CEO and himself (COW1). Moreover, there was an
admission by CLW8 which he attempted to retract, and also the complete denials by
CLW5 and CLW6. He stated that a Notice of Domestic Inquiry dated 7 September

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2018 was issued notifying the Claimants that a DI would be convened on 25

September 2018 for CLW1, CLW2, CLW3, CLW4 and CLW8 and on 26 September
2018 for CLW5, CLW6 and CLW7 to hear and allow the Claimants to answer the
following charge of misconduct:

“Di antara bulan November 2017 dan Disember 2017, anda telah didapati
terlibat di dalam satu kempen secara sulit yang melibatkan serarnai 10
orang pekerja kumpulan Eksekutif di mana anda telah menyokong dan
menandatangani satu dokumen berbentuk bantahan yang akan atau telah
dihantar kepada Dato’ Seri Haji Mohd Najib bin Tun Haji Abdul Razak
yang merupakan Perdana Menteri pada ketika itu.

Petisyen tersebut ditujukan kepada bekas Perdana Menteri Malaysia

yang mengandungi, antara lain, pernyataan seperti berikut:

“Kami memohon dan merayu agar Dato’ Sri melakukan

sesuatu agar Ketua Pegawai Eksekutif - Encik Ismai Pandak
supaya ditukarkan ke Ibu Pejabat DRB-HICOM Shah Alam
keluar dari daerah Pekan.”

Dokumen tersebut bertujuan khas untuk mendesak pengaruh luar

supaya mengambil tindakan ke atas Ketua Pegawai Eksekutif Encik
Ismail bin Pandak supaya diambil tindakan ke atas beliau dengan
ditukarkan ke Ibu Pejabat DRB-HICOM, Shah Alam dan keluar dari
Daerah Pekan.

Dengan ini anda didapati telah melanggar Dasar Dan Tatacara Tatatertib
dfbawah kesalahan berat lampiran DTT (48) iaitu membawa atau cuba
membawa apa-apa bentuk pengaruh atau tekanan luar untuk
mengemukakan atau menyokong sesuatu tuntutan berhubung dengan
perlchidmatan sama ada tuntutan itu tuntutan perseorangan atau
tuntutan lain-lain kakitangan.”.
(see Tab 4, pp. 30 - 31 of COB1)

[27] The Notice of DI contained a more detailed charge compared with the earlier
charge and premised upon the Company’s Dasar Dan Tatacara Tatatertib Policy at
DTT48 that governed its employees’ conducts. Subsequently, they were found guilty

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of the charge against them. They were dismissed from service on 13 November 2018
with immediate effect and later appealed against the dismissals. However, they were
made aware of the opportunity to appeal against the Company’s decision within
seven (7) days from the date the letter was issued (see Tab 5, pp. 148 - 149, COB1).
All Claimants exercised their right to appeal as against the dismissal (see Tab 5, p.
150, COB1) (see also Tab 5, p. 132, COB2) (see also Tab 5, p. 115, COB3) (see
also Tab 5, pp. 15 - 16, COB4) (see also Tab 5 , p. 77, COB5) (see also Tab 5, p. 81,
COB6) (see also Tab 5, p. 90, COB7) (see also Tab 5, p. 105, COB8). The Appeal
Panel however dismissed the appeals on 14 January 2019 (see Tab 5, p.151,COB1).
The Claimants filed their representations on 16 November 2018 on the basis that
their dismissals were without just cause or excuse. They claimed that the delay by
the Company in taking action against them showed that the Company had condoned
the matter. It was also the Claimants’ contention that the Company was determined
to terminate their services at all costs and even advertised for the position of
Assistant Manager of Industrial Relations, a position which CLW1 held during the
material time.

[28] The witness also told the Court about Ahmad Zafir bin Abd Samad (“Ahmad
Zafir”) as the other employee who was in the service of the Company at the time of
discovery of the said letter. Ahmad Zafir was the Manager for Industrial Relations
for the Company. Subsequently, he was in Mecca and came back with bad health
having undergone operation and wheel-chair bound. Vide a letter dated 1 March
2019, Ahmad Zafir submitted his resignation letter whereby his last day of service was
on 31 March 2019 (see Tab 2, p. 21, COB9). Out of compassion for his condition at
that time, the Company accepted the resignation and no further action was taken
against him.

[29] COW2 was the Company’s Manager in the Body Shop Department,
Volkswagen Operation (VW). He has been with the Company since 28 February
1989. He stated in his witness statement marked as COWS2 that he knew about the
so-called campaign to oust the CEO from Pekan, Pahang. In early November 2017,
he said CLW1 invited him to attend a gathering of the Company’s employees with
former employees due to b held on 15 November 2017. CLW1 allegedly told him that

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the gathering was “hanya untuk makan-makan dan bersembang dengan rakan-
rakan.”. And so, on 15 November 2017 at around 9.00pm, COW2 attended the event
at the Royal Golf Club, Pekan (“the Golf Club”). He said upon arrival, he met his
friends and he was happy to see them especially those who had left the Company.
They ate and exchanged stories until a State Assemblyman, ADUN Peramu Jaya by
the name of Dato’ Seri Sh Mohamed Puzi bin Sh Ali and his wife arrived. Not long
after, they were all ushered into a meeting room with the Golf Club.

[30] COW2 said he remembered his colleagues and former employees who were
present and named CLW1, CLW2, CLW3, CLW7 and CLW8 as well as CLW9, Mohd
Junit Bin Ali, Johari Bin Amzat, Shamsul Kamal Bin Main, Manan Bin Karim, Wan
Zuki Bin Wan Hassan, Suhaimi Bin Nordin, Mohd. Osman Bin Deraman, Mohd.
Shamran Bin Hussin, Nurul Shuhada Binti Ishak and one “Zul Unta”. There, he found
out about the meeting purpose. The meeting started with CLW1 giving a welcoming
speech and introducing the ADUN Peramu Jaya. CLW1 informed the attendees that
the meeting was held to garner support from his colleagues and former colleagues in
order to oust the CEO and COW1 from the Company. He said all of them were asked
by CLW1 and the ADUN Peramu Jaya to air their problems in the Company with the
CEO and COW1. Only some of the attendees related their problems at the workplace
and with the CEO while others just listened. He stated further that CLW1, CLW2,
CLW3, CLW7 and CLW9 talked about the Performance Improvement Plan (PIP).

[31] COW2 did not participate in the session as he viewed that it was not proper to
discuss matters pertaining to the Company there. Moreover, he did not have any
problem with the Company. He said a typewritten letter was circulated around the
table for them to sign, he read it and just passed it on to the person sitting next to him
in the meeting. He said he did not put his signature in that letter. The witness was
shown a copy of the letter at pages 3-7 of COB9 which was the complete version
dated 16 November 2017. COW2 disagreed that it was the letter which was
circulated on the night of 15 November 2017. The said letter was circulated around
the table about three times because not everyone who attended had put down their
signatures therein.

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[32] Afterwards, the ADUN Peramu Jaya read out the content of the said letter and
informed them that there were not enough signatures to support the move to oust the
CEO and COW1. Therefore, the ADUN Peramu Jaya said maybe they need not oust
the two persons at one go but to do it in stages. COW2 told the Court that those who
had signed the said letter then discussed the matter and a decision was made to
proceed with the action against the CEO first. More signatures would be gathered to
bring the matter up to the then Prime Minister through the ADUN Peramu Jaya.
COW2 then left the meeting. He said to his knowledge the letter dated 16 November
2017 was circulated among the Company’s employees and some of his colleagues
were asked by CLW1 to sign the letter.

[33] COW3 was an Executive at the Property Facility Management and has been
working with the Company since 1 November 1988. His evidence was similar to
COW2’s in most parts except he stated in his witness statement marked as COWS3
that he did not see the letter dated 16 November 2017 but he knew about such a
letter addressed to the then Prime Minister. He told the Court that he went to the
gathering on 15 November 2017 together with COW2 and Suhaimi Bin Nordin. He
said earlier that morning, CLW1 came to his workplace at the Bengkel Kejuruteraan
and invited him to meet up with colleagues and former employees of the Company
that night. It was during the session with the ADUN Peramu Jaya that he learnt the
actual purpose of the meeting on 15 November 2017. He remembered some of the
attendees including COW2, CLW1, CLW2, CLW3, CLW7. CLW8, CLW9, Mohd Junit
Bin Ali, Johari Bin Amzat, Shamsul Kamal Bin Main, Manan Bin Karim, Wan Zuki Bin
Wan Hassan, Suhaimi Bin Nordin, Mohd. Osman Bin Deraman, Mohd. Shamran Bin
Hussin, Nurul Shuhada Binti Ishak and one “Zul Unta”.

[34] Similar to COW2, this witness did not share anything with the meeting
because he did not have any problem with the Company and he too did not sign the
said letter. He also said the same thing about what the ADUN Peramu Jaya had told
them and that they needed more signatures to bring the matter up to the then Prime
Minister.

[35] COW4 testified that he was with Pos Malaysia, a subsidiary of DRB-HICOM
Berhad when he became the DI panel Chairman together with two other panel

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members, Muhammad Izzat Bin Mahadzir and Noraini Binti Dahlan. The DI was held
on 25 September 2018 against CLW1, CLW2, CLW3, CLW4, CLW8 and Muzaiman.
As Muzaiman was absent on that day and no request was made to hear his case at a
later date, the DI panel heard his case ex parte. The typed-written minutes of the DI
was exhibited in the Company’s first bundle of documents marked as COB1. He
stated that the charge was read out to the Claimants and the process and standard
procedures of the DI explained to them. They pleaded not guilty. CLW1 and CLW3
represented the six claimants. COW1 was called as the Company’s witness. They
were given the opportunity to cross-examine the Company’s witnesses and to call
their own witnesses. The DI was adjourned for submissions and decision. The DI
panel found CLW1, CLW2, CLW3, CLW4, CLW8 and Muzaiman guilty of the charge
against them.

[36] The Claimants claimed that their signatures were forged by the CEO with the
aim to oust them. But according to the Company witness, there was no suggestion
who would forge their signatures and there were no plausible reasons for the alleged
forgery. The witness told the Court that the two-page document showed parts of a
letter with the names and signatures of 22 existing and past employees which the
Claimants denied their involvement or having knowledge of the said letter. The DI
panel was of the view that based on a balance of probabilities, the Claimants signed
the letter themselves and the signatures were not forged. The DI panel also took note
at the hearing that the Claimants never denied knowing the existence of the letter in
the reply to the show cause letter. He said they only took this stance at the DI
proceeding. In short, the DI panel did not believe them for the contradicting evidence
given by the Claimants both in the reply to the show cause letter as well as at the DI
when they claimed they had no knowledge of the said letter. Moreover, CLW2’s reply
to the show cause letter stated he had intention of raising complaints about the CEO
to the then Prime Minister. The DI panel viewed that CLW2’s admission at the very
least mirrored the true intention of all Claimants. The DI panel concluded that the
said letter was for the attention of the Prime Minister despite the Claimant’s denial of
the “Dato’ Sri”. He added that the Claimants raised issues which were mere
technicalities and not actual evidence. COW4 stated further that the Claimants had
exposed private matters within the Company and their personal grievances on the
CEO to third parties.

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[37] COW4 stated that he was also the DI panel Chairman together with two other
panel members on 26 September 2018 against CLW5, CLW6 and CLW7. Similarly,
the typed-written notes of DI were exhibited in COB5. He stated that similarly as the
previous day, he had also explained the charges and procedures to the remaining
Claimants. The DI panel also found them guilty. They were satisfied that the
Claimants on 26 September 2018 had intention to do as charged when in the show
cause letters the Claimants did not deny signing the letter and repeated the issues in
the Company were direct results of the CEO’s actions and the Company’s witness
COW1.

[38] COW5 testified next, the Company’s star witness so to speak, against whom
the main complaints by the Claimants were directed. He has been in the employ of
the Company since 2011. He was the General Manager of Operations before
appointed as the Acting Chief Operating Officer effective 14 March 2016. Thereafter,
he was re-designated as the Chief Executive Officer (CEO) at the Company on 1 May
2017 and later extended effective 14 March 2018 until further notice. As CEO, COW5
is entrusted by the stakeholders to lead, manage and operate the business to
ensure its success. He stated that as the CEO, he needs to set strategic goals for the
business and drive towards performance. His duty is to ensure that the organization
and the personnel are aligned towards the common goal and everyone
understands the duties and responsibilities. COW5 stated that he is “…entrusted by
the stakeholders to balance the resources, put the right people in the right
positions, develop a shared culture and goal, ensure it is applied from top to bottom,
emphasize on good values to enable people to perform their best, set the bar so that
they know their direction, place proper metrics to gauge the performance, appreciate
them and reward them. At the end of the day, the progress of the business is
determined by the morality of the staffs. So, happy and productive staffs bring about
better yield for the Company.”.

[39] COW5 stated further that the initial year of his appointment was
understandably challenging. The Company was not seeing as much profit as it was
capable of and as part of the role given to the CEO by the Board and Group, it was
necessary to implement changes in terms of how the Company operated to drive
productivity. It took him time to obtain the buy in from the employees. He said he

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made sure that he was not distant from the employees and got directly involved in
their development. Despite his hectic operational schedule, he said he took time to
meet the senior management team as well as the Executives on a monthly basis to
ascertain their progress at world. For those lagging behind in terms of their Key
Performance Index (KPI) that was set with their superiors at the start of the year,
COW5 heard their concerns, guided them to ascertain the problems and achieve the
goals. The changes proved fruitful for together they managed to turn the Company
around. For the first time in eighteen (18) years, the Company made substantial profit
and was able to pay out bonus in 2017 and better bonus in 2018 and then in 2019.
The less than satisfactory performers were not left out. To motivate them, the
Company also paid bonus and told them to strive harder.

[40] In 2018, Company managed to gain the trust and loyalty from the existing
Customer, Mercedes Benz Malaysia (“MBM”) when MBM has agreed to renew the
contract for another 5 years instead of just 3 years’ term and planning for new and
high technology models to be assembled. The Company also has secured new
businesses from new partners i.e. Mitsubishi Motors Malaysia Sdn Bhd in 2019 and
Hap Seng Trucks Distribution Sdn Bhd in 2018. He stated that these further
evidences customer’s confidence on the Company’s capabilities. COW5 further
stated that productivity of the employee contributed to the profit which led to the
Company improving its finance and business infrastructure, upskill its employees and
provide better facility for the benefit of the employees at large, inter alia, the
Company’s ability to pay off the bank loan, ability to complete the construction of
New Paint Shop in 2017 which amounting to RM231 Million and also to sustain the cost
to operate it, provide more training opportunities with higher cost such as Managerial
Development Programme (MDP), Executive Development Programme (EDP) and
paid team building to the employees which was fully sponsored by the Company and
in 2018, the Company managed to provide better infrastructure with new facilities for
the welfare of the employees such as new cafe, child care centre and gymnasium.
He stated that the Company also managed to curtail the turnover of staffs which has
been high in the previous years before he helmed the Company (see Tab 6, p. 73,
COB9).

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[41] In regard to the PIP of CLW1, CLW2, CLW3, CLW5, CLW6, CLW7 the witness
stated:

“During my monthly management meetings, as I review the performance of the

employees (and their respective subordinates), I kept track of their performance and
whether they are able to achieve the FY 2017/2018 KPI before year end. In that
regard, I identify the hurdles faced by the employees at the start of the financial
year in April to May 2017 from the beginning to mid financial year so that these
issues are curbed earlier on and employees can be well within their way to reach
their targets by year end. Those with serious areas of concern and gaps in the
performance are identified, placed on PIP, guided back on the expectations,
the KPI and led towards improvement. There were 12 employees who were placed
on PIP at the material time (October 2017 to November 2017). In that regard, the
Claimants; En. Saiful Johari and En. Ahmad Faidzal were placed under PIP and
monitored by me, while En. Kamal Ariffin, En. Shukor, En. Rosnizan and Puan
Khairun Nisa were monitored by their superiors respectively (see Tab, . 47 - 69,
COB9). The aim is guide them to achieve their potentials.”.

[42] He stated that in respect of the results of the PIP:

“Shortly after the commencement of the PIP, the Claimants were involved in
an allegation of serious misconduct which directly implicated me; therefore, the
PIP process for all employees was put on hold. However, their performance was
continuously monitored and they were told to keep working on the gaps identified.
This led to improvement in terms of the performance for those who had the
initiative to continue to strive to be good at what they are doing. No one was
dismissed from their services as a result of the PIP. That was never the intention
for the PIP in the first place.”.

[43] COW5 stated that the OEE is an annual workshop run by a third-party
consultant which is designed to train the employees to execute their functions with
excellence. In its usual practice, the Company sends its top performers to attend the
workshop so that they can come back to lead and motivate their team to perform
better. But, in year 2017, it determined that the right persons to attend would be those
who were capable of performing but not reaching out to their full potential. The OEE

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took place on 30 – 31 October 2017, where some of the participants included CLW1,
CLW3 and CLW5.

[44] On 21 November 2017, COW5 received the last two pages of a letter
(pages 1-2 of COB9) from a whistleblower. At the time, he was only made aware of
the letter containing statements made to a ‘Dato’ Sri’ alleging victimization by himself
as the Chief Executive Officer. The objective of the letter was to remove him from the
Company in Pekan and included an ultimatum that if this does not take place within
the next three (3) months, the signatories will seek the support of another political
party for the 14'h General Election. The letter was named and signed by twenty-two
(22) past and present employees of the Company. Many attempts were made to
recover a complete copy of the letter however the Company only managed to
recover it much later (Tab 1, pp. 3 - 7, COB9) after the DI had been completed.

[45] COW5 stated that sometime after receipt of the letter, COW1, the General
Manager of Finance, En. Noor Reizman Mohamad (“En. Riezman”) and he met up
with CLW6. He also met with CLW2 and CLW5 separately, together with En.
Riezman. They were shown the pages of the letter from his handphone. He said they
were not shocked by the contents of the letter or the presence of their signatures.
CLW2 neither denied nor agreed to signing the said letter. CLW5 denied signing the
letter before admitting he did and eventually denying signing it again. CLW6 said he
was unsure whether he signed the same or not.

[46] He said similar acts of misconduct involving the non-executives and below
arose at about the same time. COW1 was required to take charge of
investigation into both matters and report to the DRB-HICOM Group for further
instructions.

[47] COW6 is the Head of Manufacturing and Engineering at DRB-HICOM. He is

overall in charge of the operations at the Group level and the Chief Executive Officer
of the Company (COW5) reports directly to him. The facts concerning the disciplinary
matters that arose at the Company and the charge preferred against the Claimants
implicated the CEO. He said, in this regard, there was a need for an independent
decision maker to review and decide on the culpability of the Claimants, the severity

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of the misconduct alleged as well as the appropriate decision to be made in terms of

punishment.

[48] COW6 stated that the misconduct committed by the Claimants was serious in
nature, which attacked the integrity of the most senior member of the Company and
exposed internal issues in the Company to outside influences without regard to the
due processes in place.

[49] The Company’s Dasar dan Tatacara Tatatertib Policy classifies the following
breaches DTT-2(48) and DTT-2(35) as severe misconduct which could in turn lead to
dismissal after due inquiry into the offence alleged (see Tab 6, pp. 175 - 176 of
COB1). DTT-2(48) provides:

DTT-2(48):
Membawa atau cuba membaca apa-apa bentuk pengaruh atau
tekanan luar untuk mengemukakan atau menyokong sesuatu
tuntutan berhubung dengan perkhidmotan sama ada tuntutan itu
tuntutan perseorangan atau tuntutan lain-lain kakitangan.)

[50] Now, the Claimants contended that the Company could not rely on DTT-2(35)
because it was not the basis for their dismissal and also not stated in the charge. I
will deal with this issue later in the Award.

[51] The Company only obtained the full contents of the letter after the findings
were made by the DI panel. COW6 said the petition letter showed that:
(a) the Claimants not only attempted to coax the former PM to remove
the CEO but also cast aspersions so as to tarnish his reputation and
the reputation of the General Manager, Human Resources;
(b) they portrayed the CEO as a person who employs/empowers sexual
offenders;
(c) they alleged that the CEO practiced cronyism and promoted bad
work culture;
(d) they alleged that he administered the Company with bad faith and
that his actions were designed to victimize the employees so to get

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rid of them from their services and destroy their livelihood;

(e) they alleged that the CEO was a tyrant who operated with vengeance
and was assisted by an incompetent General Manager, Human
Resources who acted in accordance to the whims and fancies of the
CEO;
(f) they alleged that the General Manager, Human Resources was an
uncompassionate and ungenerous manager who caused pain and
suffering to his subordinates; and
(g) threatened the former PM that his failure to remove the CEO within
the three (3) months’ time frame, would result in the ruling coalition
losing the support of the 22 employees (including the Claimants) who
would throw their support to a differing faction. The former PM was
the Pekan Member of Parliament from the then ruling coalition.

[52] COW6 added that the contents of the said letter were similar to the replies to
the show cause by the Claimants, inter alia, that staffs were being treated and
removed from their services in an unfair and high-handed manner by the CEO and
the General Manager, Human Resources after the CEO reigned power. He stated
that:
(a) the Claimants in their replies to show cause did not dispute the charge
but were claiming that they were not guilty of the charge because of the
pressure they were placed in by the CEO;
(b) the Claimants CLW3 and CLW8 admitted to signing the petition;
(c) CLW3 admitted in person to the General Manager Human Resources,
the CEO and the General Manager, Finance in November 2017 during
a meeting. CLW8 admitted in his reply to show cause dated 9.7.2018 as
follows: (see Tab 3, page I7, COB8).

“saya ingin menjelaskan bahawa penglibatan saya di dalam isu ini adalah
secara tidak sengaja...

Dalam masa yang sama, saya terns diajukan satu borang/dokumen untuk
ditandatangan. Atas desakan rakan-rakan di dalam bilik tersebut, saya terus

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menurunkan tandatangan tanpa membaca isi kandungan dokumen tersebut yang

disangkakan hanya borang kehadiran.”

Of course, after that, he attempted to retract it with the standard reply used by
almost all of the Claimants (see Tab 3, pp. 18 - 19, COB8) but it does not
negate the admissions made.

(d) Muzaiman, who was an Executive of Production Engineering at the

Company, admitted during his meeting with COW1, COW5 and En.
Riezman that he was forced by CLW1 at the Engineering Workshop to
sign the said letter. He did not respond to the show cause letter nor
attend the DI.

[53] Hence, COW6 stated that there was no doubt that the Claimants did hold a
secret campaign, did sign and support the removal of the CEO by coaxing the
external force and threatening to withdraw their support if the former PM refused to
throw in his support to them. COW6 stated further that removal of anyone from the
service is strictly within the Company’s prerogative. The right to take disciplinary
action is also strictly within the Company’s powers, no one else. The service of an
employee in an organization is strictly determined by the reciprocal rights and
obligations between the employee and his employer. No external party or force has
any right to demand or execute anything therein, otherwise it will cause mayhem.
Therefore, the attempts (whether successful or otherwise) to use external force
to meddle in the affairs of the Company is a serious offence and allowing this
to take place would completely destroy the trust and confidence the various
stakeholders have on the Company and the entire DRB-HICOM group.

[54] Purportedly the Claimants had problems at the Company, there is grievance
procedure to rely upon (see Tab 6, pp. 199 - 203, COB1), whistle blower policy
(see Tab 6, pp. 207 - 208, COB1), report to COW6 or go straight and report to the
Group Managing Director. Not only were these conducts of the Claimants in breach
of Dasar Dan Tatacara Tatatertib Policy of the Company, DTT-2 48, but also
tarnishes the image or the Company’s good name (see rule DTT-2(35) Dasar
Dan Tatacara Tatatertib Policy of the Company at Tab 6, pp. 175 - 176, COB1). The
Domestic Inquiry Panel found the Claimants guilty and having considered the gravity

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of the offence as well as all relevant facts and circumstances of the case, the
Claimants were dismissed from their service with effect from 13 November 2018.

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[55] COW6 stated that Clause 10 of the DTT Policy (page 169 Tab 6, COB1)
provides for appeal process to an appeal panel within the Company. However, since
the matter in hand implicated the CEO, the Management Committee (“MANCO”),
comprising of Senior Management Members from DRB-HICOM reviewed the
decision to dismiss as well as the appeals by the Claimants. The Claimants generally
claimed that they were not guilty of the charge and that the punishment was too
heavy. However, the Company’s decision to dismiss was upheld by the Appeal
Panel. It is pertinent to note at this juncture, CLW5 in his appeal admitted to
committing the misconduct. A copy of the letter of dismissal (CLW1’s which is the
same as for the other Claimants) is reproduced below for ease of reference:

[56] The Court noted that the dismissal was based on the findings of the DI panel
which found the Claimants guilty after they were given the right to be heard at the DI. As
the charge that was premised on DTT2(48) was a serious offence, the Company stated
that it had no other choice but to dismiss the Claimants after they were found guilty of the
same. The charge in the dismissal letter is the same as per the DI Notice dated 7
September 2018. They were also accorded the right to appeal the Company’s decision to
the Group which they did on 14 November 2018. Nevertheless, the Group dismissed their
appeal after about two months.

The Claimants’ Case

[57] All the Claimants testified under oath in Court. Ahmad Zafir was also called to
testify on their behalf and he did so on the last day of the hearing from Pekan, Pahang. It
is noted that their evidence were similar in structure and contents as they pleaded similar
facts in regard to their dismissal from the Company, attributing the acts of victimization
against them to COW5 and COW1. I have gone through all their witness statements and
evidence given in Court and I am of the view that it is unnecessary to reproduce all of
them here. However, I will highlight the evidence given by CLW1 who was the Claimants’
first witness and had the most to say during the hearing; notably because he was also an
executive holding the position of Assistant Manager of Industrial Relations at the material
time and the focal person in the Claimants’ case. I had noted too that mostly the facts
given by both parties’ witnesses were not seriously disputed because they were in

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consensus on the main facts. It was the manner in which they were allegedly mistreated
by the Company that became the main issue of concern.

[58] The Court has highlighted CLW1’s evidence in his witness statement marked as
CLWS1A about the events that had transpired at his workplace which led to his claim for
unfair dismissal as follows:

“3. Sila sebut apa telah berlaku ditempat kerja sampai awak against them by
digantung kerja.

Bagi prestasi kerja tahun kewangan 2015/2016 saya telah berjaya mendapat tahap
penilaian 4 (commendable) dan menerima kenaikkan gaji sebanyak 7%. [Ikatan
Dokumen Yang Menuntut (IDYM) m.s.2] Saya berada ditahap terbaik yang dinilai
oleh pengurusan terdahulu. Selama lebih 28 tahun sepanjang perkhidmatan saya
dengan Syarikat, tidak pernah menerima pencapaian prestasi di bawah paras 3
(commendable).

Semua kakitangan Syarikat dimaklum melalui satu memorandum bahawa

berkuatkuasa pada 14.3.2016 Encik Shamsuddin Bin Mohamed Yusuf Ketua Pegawai
Eksekutif Syarikat tersebut telah ditukar ke CTRM Melaka dan beliau diganti oleh
Encik Ismail Bin Pandak sebagai Pemangku Ketua Pegawai Operasi.

Pada sekitar tahun 2016/2017 Ismail Pandak telah melantik beberapa anggota baharu
pilihan sendiri yang diberi kuasa yang luas untuk mencari maklumat tentang dan
kegiatan Eksekutif / Pengurus “orang-orang lama” untuk di bawa balik kepada Ismail
Pandak. Salah seorang dari anggota pilihan Ismail Pandak itu, telah menyalah
gunakan kuasa yang diberi dengan melakukan gangguan seksual kepada tiga (3)
orang kakitangan wanita. Perbuatan ini memberikan tekanan dan trauma kepada
kakitangan wanita tersebut. Saya sebagai pegawai penyiasat dalam kes ini telah
diberi tekanan kerana Pengurus Besar Modal Insan kurang yakin perlaku gangguan
seksual itu bersalah dan meminta saya supaya menjaga kebajikan keluarga perlaku
tersebut. Ini adalah kerana perlaku tersebut adalah “informer kepada Ismail Pandak”.
Bagi tahun 2017 seramai 27 orang kakitangan majoriti `orang-orang lama` yang
berjawatan Eksekutif ke atas yang telah berkhidmat melebihi dari 10 tahun telah
berhenti dan 19 orang daripadanya adalah disebabkan oleh tekanan (pressure/stress)
dari Encik Ismail Bin Pandak. Pada tahun 2016 pula seramai 24 orang kakitangan
telah meletakkan jawatan. Ismail Pandak telah melantik sebagai Pengurus Besar
Modal Insan Tuan Haji Azmi Wahap untuk menerajui Jabatan Modal Insan walaupun
Tuan Haji yang tidak `perform` dan bukan dalam bidang Human Resource dan
dahulunya pernah memegang jawatan Ketua Pegawai Operasi dan menjadi superior
kepada Encik Ismail Bin Pandak tetapi diturunkan pangkat menjadi Pengurus Besar
Kualiti dan kemudian pula sebagai Pengurus Besar Modal Insan. Mana saja jabatan

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yang Tuan Haji Azmi Wahap ditempatkan seperti Jabatan IMIS & Kualiti telah
menyebabkan kakitangan di jabatan itu mengalami tekanan.

Mulai dari bulan September 2017 saya telah ditugaskan oleh Tuan Haji Azmi Wahap
untuk mengangkut bekalan air minum RO Water di 15 lokasi dalam Syarikat dari
Hicom Automotive 1 ke Hicom Automotive 2 berjumlah 40 botol sehari. Sambil
melakukan tugas asasi sebagai Penolong Pengurus IR, saya juga diarahkan untuk
menangkap perokok siang dan malam, memastikan operator di operasi pengeluaran
tidak bermain telefon bimbit atau duduk tanpa melakukan kerja pada setiap masa
semua kerja ini terpaksa dilakukan dengan 4 orang kakitangan. Keperluan manpower
untuk membantu kerja saya tidak diberi malah urusan mengangkat air terpaksa
dilakukan sendiri. Saya juga ditugaskan untuk menangkap perokok dan memecat
mereka seminggu 3 orang. [IDYM m.s.17-18] Pertanyaan demi pertanyaan di
lemparkan ke arah saya dan disalurkan melalui WhatsApp Chat Group dan dimalukan
dalam Chat Group tersebut. Selanjutnya saya ditekan dan dikenakan kecaman supaya
akan berhenti kerja dari Syarikat atas dasar tidak perform dan walaupun saya tetap
melaksanakan tugas-tugas sehingga berjaya tetapi apabila pengiraan prestasi melalui
KPI untuk tahun 2016/2017 diberi pencapaian KPI paras 2 dan untuk tahun
2017/20188 pula paras 1 menjejas kenaikan gaji dan bonus, sengaja untuk
`demoralize` saya bermotif untuk menyingkirkan saya dengan mudah. Sepanjang 28
tahun saya berkhidmat dalam Syarikat, saya tidak pernah didapati penilaian prestasi
kerja sebegini. Pada 10.11.2017, saya telah diletakkan di atas Pelan Peningkatan
Prestasi / Performance Improvement Plan ("PIP") 60 hari.

4. Sila jelaskan lebih lanjut mengenai penilaian prestasi kerja dan PIP tersebut.

Beberapa kakitangan Eksekutif dan ke atas termasuk saya telah diserahkan PIP atas
arahan Encik Ismail Bin Pandak yang pada ketika itu sudah meningkat jawatan ke
Ketua Pegawai Eksekutif (KPE) Syarikat tersebut. PIP untuk saya telah diserahkan
oleh Tuan Haji Azmi Wahap dan Tuan Haji beritahu saya kalau saya tak perform tiga
(3) bulan saya akan dipecat kerana itu KPI untuk Tuan Haji, dengan hasrat saya
meletak jawatan sebelum habis tempoh PIP tersebut. Oleh sedemikian, saya terpaksa
sign PIP itu. Walaubagaimana pun saya masih kekal berkhidmat dan jujur kepada
Syarikat tersebut yang kian lama adalah periok nasi saya dan saya enggan meletak
jawatan.

PIP yang dijalankan ini adalah sangat berbeza dari yang dipraktikkan oleh HQ DRB-
HICOM. [IDYM m.s.12-16] PIP yang diberikan kepada saya adalah bertujuan untuk
menamatkan perkhidmatan saya sekiranya gagal mencapai sasaran yang diberikan
sedangkan di HQ DRB-HICOM PIP bertujuan untuk memperbaiki dan
mempertingkatkan prestasi pekerja.

Pada tempoh yang berkaitan, PIP diberi hanya kepada kakitangan yang tidak disukai
oleh KPE Encik Ismail Bin Pandak.

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PIP telah digunakan sebagai satu alat untuk menekan beberapa Eksekutif / Pengurus
termasuk saya untuk meletak jawatan. Ini adalah kerana sebelum Ismail Pandak
menjadi KPE beliau adalah Ketua di Bahagian Kualiti, saya bersama pasukan HR
bekerja dengan menerima arahan dari ketua kami tetapi Ismail Pandak banyak
menggangu urusan HR dan pasukan HR tidak bersetuju dan bercanggah pendapat
dengan beliau. Sehinggalah Ismail Pandak dilantik menjadi KPE dan ianya memberi
kesan dan beliau memandang serong kepada saya dan pasukan HR. Perkara ini amat
memberi tekanan kepada saya apabila pegawai-pegawai yang mengetuai Jabatan HR
Encik Rodzal Bin Had dan Encik Yusri Sopian yang mengarah saya dan pasukan HR
dalam menjalankan tugastugas HR, telah meninggalkan Syarikat. Pihak Syarikat telah
menyalahgunakan PIP untuk menindas dan/atau menekan saya dengan tujuan saya
meletak jawatan. Semasa PIP dijalankan saya tidak menerima sebarang bantuan dari
pihak Syarikat malah diberi tugas berbagai-bagai tugas agar PIP tersebut gagal dicapai
oleh saya.

Bagi tahun kewangan 2015/2016 sebelum lagi Ismail Pandak menjadi KPE, Syarikat
sudah bermula menikmati keuntungan. Semua kakitangan mengetahui, keuntugan ini
bukanlah dari setiap hari pengeluaran kenderaan, ia adalah dari pampasan yang
dibayar oleh VW dari tahun 2017 hingga 2020. Mana kakitangan eksekutif ke atas
yang bukan kroni KPE akan menerima prestasi amat rendah manakala kroni KPE akan
menerima keputusan prestasi tinggi.

Pada 15.2.2018 saya terbaca dalam Job Street yang mengiklankan jawatan IR Asst
Manager bagi mengantikan tempat saya di Syarikat sedangkan saya masih bekerja
lagi. Ini menunjukkan pihak Syarikat telah mempunyai perancangan untuk memecat
saya dan menggantikan dengan pekerja baru.

Pada 22.2.2018 Encik Jeffri Sidin Timbalan Pengurus Besar telah mengeluarkan kata-
kata sindiran kepada saya berbunyi “Encik Kamal, awak masih bekerja lagi. Ingat dah
tak kerja dah” sambil ditertawakan oleh beberapa orang kakitangan yang berada
dipejabat HCD. Mercedes Benz Operations (MBO). Ini jelas menunjukkan pihak
pengurusan Syarikat mempunyai niat dan perancangan supaya saya tidak bekerja lagi
di Syarikat.

Melalui emel pada 14.5.2018 saya telah majukan aduan kepada superior saya Tuan
Haji Azmi Wahap, Pengurus Besar Modal Insan. Saya amat tidak berpuas hati dan
minta untuk mendapat diperjelaskan secara ringkas:

(i) Pada 20.4.2018 setelah penilaian KPI 2017/2018 saya telah dinilai oleh Tuan
Haji Azmi dengan mendapat markah dari 3.02 (competent) diturunkan kepada
1.51 (unsatisfactory) [IDYM m.s.19];

(ii) Semenjak dua (2) tahun pengurusan Syarikat di bawah kepimpinan Encik Ismail
Pandak dan Modal Insan di bawah kepimpinan Tuan Haji Azmi Wahap, saya

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telah menerima penilaian prestasi KPI yang amat mendukacitakan seperti

berikut:

[1] Bagi tahun kewangan 2016/2017 markah 2.50 (average) diturunkan

kepada 2.09 (average). Semasa berbincang dengan saya, Tuan Haji Azmi
Wahap walaupun telah mengata perkara ini akan dirujuk semula dengan KPE,
tetapi saya dapati daripada KPE bahawa perkara ini tidak langsung dibawa
kepada KPE.

[2] Bagi tahun kewangan 2017/2018, markah 3.02 (competent) diturunkan

kepada 1.51 (unsatisfactory) dan tiada penjelasan diberi oleh Tuan Haji Azmi
Wahap.

Cara yang dilakukan oleh Tuan Haji Azmi Wahap ini sengaja dirancang untuk
memberi tekanan kepada saya untuk berhenti dari Syarikat. Saya kekal enggan
meletak jawatan.

5. Ada pernah majukan aduan kepada pengerusan atas Syarikat atau di DRB
Hicom mengenai Ismail Pandak?

Ada. Melalui satu program workshop Operational Execution Excellence (OEE) yang
dianjurkan oleh pengurusan atas Syarikat yang telah diadakan di Akademi Latihan
DRB-HICOM di Port Dickson pada 30hb dan 31hb Oktober 2017 perserta-perserta di
beri `lampu hijau` oleh Encik Ismail Bin Pandak untuk membincangkan apa sahaja
isu yang berlaku di Syarikat. Melalui workshop tersebut perserta-perserta termasuk
saya telah meluahkan isi hati, isu pemberhentian beramai-ramai dan masalah yang
dihadapi oleh kami akibat tindakan Ismail Pandak kepada Consultant/pengendali
workshop dengan harapan agar perkara itu akan dimajukan kepada pengurusan
atas. Isu tidak puas hati dengan ketidakadilan Ismail Pandak adalah penyebab
utama pemberhentian yang tinggi di Syarikat. Isu yang sama juga dilaporkan kepada
Encik David Azzuddin Buxton pada ketika itu Pemangku Ketua Modal Insan, Human
Capital Divisyen di HQ DRB-HICOM. Pengendali workshop telah berjanji untuk
membawa isu ini kepengetahuan pihak atasan DRB-HICOM. Saya telah juga terima
surat penghargaan dari HQ DRB-HICOM Group Human Capital untuk maklumbalas
dan cadangan-cadangan yang dimajukan oleh saya dalam workshop tersebut.
[IDYM m.s.3-11] Saya telah di undang untuk menghadiri upacara penutup OEE
dianjurkan oleh DRB-HICOM tetapi saya tidak dibenarkan untuk menghadiri majlis
tersebut kerana pihak Syarikat takut saya akan berjumpa dengan GMD untuk
membincangkan maklumat yang dibincangkan semasa bengkel tempoh hari.

Selanjutnya, pada dasarnya semua isu berkaitan Encik Ismail Bin Pandak telah
dilaporkan kepada HQ DRB-HICOM mengikut saluran dalaman yang betul, tetapi
Encik Ismail Bin Pandak telah membalas dendam dengan mengambil langkah-
langkah untuk menindas saya sampai di buang kerja. Isu pemberhentian beramai-
ramai oleh kakitangan berjawatan Eksekutif dan ke atas ini telah juga dimajukan
kepada Encik David Azzuddin Buxton di Human Capital Divisyen, HQ DRB-HICOM.

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Pada ketika itu dimaklum bahawa Pengarah Urusan Kumpulan (Group MD) DRB-
HICOM Dato’ Sri Syed Faisal Albar Syed A.R. Albar akan melawat HAMM Pekan dan
tersedia peluang untuk bersemuka dan berhujah terus dengan Group MD tetapi
lawatan kepada Syarikat tidak berlaku dan Group MD hanya melawat Isuzu Hicom
Malaysia Sdn Bhd yang juga anak syarikat DRB-HICOM terletak di Pekan, Pahang.
Permintaan Encik David Azzuddin Buxton untuk maklumatmaklumat lanjut berkait
dengan isu-isu tersebut di atas juga tidak dapat dipatuhi kerana disekat oleh Tuan
Haji Azmi Wahap.

Pada 13.11.2017 semasa perjumpaan antara rakan sekerja iaitu Encik Saiful Johari
Bin Johar dengan KPE dan Pengurus Besar Kewangan satu sesi pembentangan
bulanan Kempen Penjimatan Elektrik telah bertukar menjadi sesi soal selidik apabila
KPE bertanyakan kepada Encik Saiful Johari tentang penglibatan di dalam kumpulan
yang mengumpulkan tandatangan. Encik Saiful Johari telah menjelaskan bahawa
apabila mendapat PIP semua yang terlibat berasa takut dan bimbang dan oleh
kerana PIP diserahkan oleh KPE sendiri maka pihak-pihak yang terlibat walaupun
telah salurkan grievance kepada HQ DRB-HICOM tiada langkah selain dari merayu
kepada orang atasan iaitu Y.A.B Dato’ Sri Hj. Mohd Najib (DSN) selaku Perdana
Menteri dan Menteri Kewangan ketika itu memandangkan Menteri Kewangan adalah
pemegang saham yang terbesar di dalam Syarikat dan DRB-HICOM sendiri. Bila
ditanyakan adakah salah sekiranya beliau membuat aduan kepada DSN, KPE
menjawab “tidak salah”. Walaubagaimana pun selepas itu hubungan di antara
kalangan tertentu anggota Eksekutif dan keatas termasuk saya dengan KPE menjadi
semakin suram.

6. Sila jelaskan mengenai penggantungan kerja dan Surat Tunjuk Sebab yang
ditangani awak.

Saya diserahkan dengan Surat Tunjuk Sebab dan Penggantungan Kerja bertarikh
4.7.2018 dan diminta menjawab kepada alegasi yang dimajukan. Saya digantung
kerja berkuatkuasa dari 4.7.2018 hingga 17.7.2018. Melalui surat bertarikh 16.7.2018
penggantungan kerja saya dilanjutkan dan saya kekal digantung kerja sehingga
dibuang kerja. Selanjutnya pihak Syarikat tidak mengemukakan kepada saya apakah
dokumen yang disebut “…bantahan berbentuk dokumen yang akan dihantar
dan/atau telah dihantar kepada DSN…”. Hanya pada sesi Siasatan Dalaman pihak
Syarikat telah sampaikan kononnya ‘bantahan berbentuk dokumen’ yang telah
ditandakan Eksibit CE5 semasa Siasatan Dalaman. Tempoh 2 bulan yang disebut
dalam Surat Tunjuk Sebab tersebut ”Di antara bulan November dan Disember 2017”
adalah terlalu lama, bermacam-macam dokumen yang telah ditandatangani oleh
saya.

Saya telah menjawab kepada Surat Tunjuk Sebab melalui surat bertarikh 9.7.2018
dan mengaku tidak bersalah di atas pertuduhan yang disediakan. Saya mengulangi
di sini kandungan Jawapan saya kepada Surat Tunjuk Sebab. Saya telah memberi

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penjelasan terperinci dalam Jawapan kepada Surat Tunjuk Sebab mengenai antara
lain:

(i) Perkara tekanan kepada anggota Eksekutif dan ke atas berterusan hingga
seramai 10 orang kakitangan termasuk saya telah diserahkan Surat Tunjuk
Sebab dan Penggantungan Kerja selama 14 hari dengan separuh gaji.

(ii) Asas alegasi yang dibangkitkan dalam Surat Tunjuk Sebab bahawa
...membawa atau cuba membawa pengaruh atau tekanan luar bertujuan
untuk menukar Ketua Pegawai Eksekutif Hicom Automotive Manufacturers
(Malaysia) Sdn Bhd iaitu Ismail Bin Pandak dengan menyokong dan
menandatangani satu bantahan berbentuk dokumen yang akan dihantar
dan/atau telah dihantar kepada Dato‘ Seri Haji Mohd Najib bin Tun Haji Abdul
Razak yang pada ketika itu adalah Perdana Menteri Malaysia` telah di war-
warkan dalam sesi taklimat mingguan pada 30.11.2017 bertempat di Operasi
Mercedes oleh Timbalan Pengurus Besar Encik Jeffri Bin Sidin kepada
semua kakitangan HICOM.

(iii) Tambah pula, Encik Ismail Bin Pandak bersama Tuan Haji Azmi Wahap telah
memanggil beberapa orang termasuk Saiful Johari Bin Johar dan Mohd
Shukor Bin Shuaib untuk disoal siasat pada bulan November 2017 tentang
penglibatan di dalam kumpulan yang mengumpulkan tandatangan. Pihak
pengurusan tidak mengambil berat / serious tentang perkara ini kerana tiada
tindakan tata tertib diambil hasil siasatan tersebut. Tetapi selepas keputusan
PRU14 diumum dan DSN terlepas memegang jawatan Perdana Menteri /
jawatan Menteri Kewangan, pihak pengurusan mengambil kesempatan untuk
membuka balik isu dan keluarkan Surat Tunjuk Sebab dan Penggantungan
Kerja pada tarikh 4.7.2018 lebih kurang lapan (8) bulan selepas isu mula-
mula berbangkit. Saya menyatakan tindakan Syarikat disifatkan sebagai
condonation.

(iv) Apa yang telah dilakukan adalah berbentuk penganiayaan dan ketidak adilan.

(v) Semua masalah yang berlaku di Syarikat ini adalah disebabkan tekanan dan
berbagai usaha dari KPE dan Pengurus Besar Modal Insan supaya saya
tidak lagi bekerja di Syarikat.

(vi) Tekanan kerja jelas dinampak apabila Encik Abd Rahman Bin Jusoh,
Pengurus Modal Insan (penandatangan Surat Tunjuk Sebab dan
Penggantungan Kerja) yang bermula berkhidmat pada 23.3.2018 telah
meletakkan jawatan pada 26.8.2018 kerana terpaksa berada di kawasan
pengeluaran setiap hari serta terpaksa melakukan kerja mengarut yang
bukan skop kerja Human Resources.”.

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[59] The rest of CLW1’s evidence was about the DI proceedings and subsequent
events up to the dismissal and the appeal process. He stated that COW1 who was the
Company’s witness at the DI was unable to give the complete date and time in the charge
mentioned in the DI notice. CLW1 admitted that he signed the petition letter dated 16
November 2017 and the earlier exhibit i.e the two-page letter (pages 1-2 of COB9)
because he stated that there was no outside or external influence as the former
Prime Minister being the Minister of Finance on behalf of the Federal Government,
was the biggest shareholder in the Company and DRB-HICOM itself, having an
interest in GLCs including the Group. CLW1 denied that there was a secret campaign
as charged by the Company and that the matter had been blown out of proportion
because the former Prime Minister was no longer holding any post in the Government.
Moreover, he stated that the charge was defective and ambiguous due to the words “akan
dihantar/telah dihantar” and it would be unsafe for his defence to rely on the charge. He
also claimed that there was no evidence that the petition letter was eventually sent to the
former Prime Minister, and if it was indeed sent to the latter, there was no external
influence in the matter.

[60] In CLWS1B, the witness in his answer to Question 16 told the Court that:

“Petisyen tersebut disediakan oleh Encik Ahmad Zafir bin Abd Samad
pada masa itu beliau adalah Pengurus Modal Insan di Syarikat. Beliau
juga hadir dimajlis jamuan di Kelab Golf Di Raja Pekan pada
15.11.2017. Saya tidak berpendapat meletak tandatangan saya dalam
petisyen tersebut adalah salah atau bercanggah dengan DTT-2 (48)
kerana yang anjurkan majlis jamuan tersebut adalah seorang pengurus,
jawatan tinggi dalam Jabatan Modal Insan.”
…
Tambah lagi kami bukan berhasrat untuk membawa tekanan luar.
Dalam petisyen, COB-9 muka surat 6, peranggan terakhir baris pertama
`Pihak kami memohon kerjasama dan bantuan dari Yang Berbahagia
Dato’ Sri…..’

Petisyen ini bukan bantahan tetapi kami memohon kerjasama dan

bantuan. Pihak syarikat tidak menyiasat kes ini dengan sempurna,
samada petisyen ini telah dihantar atau belum kepada DS Najib. Apa
yang pasti sekarang, Ismail Pandak CEO masih bekerja lagi dengan
HAMM, tetapi malangnya kami telah dipecat oleh beliau.”.

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[61] And then in his answer to Question 17, CLW1 stated:

“17. Adakah anda setuju, perbuatan anda ini telah
menjejaskan reputasi Ismail Pandak sebagai CEO?

Tidak setuju. Ini adalah kerana setiap CEO yang dilantik hanya
dipinjamkan dari HQ selama 2 atau 3 tahun sahaja. Mana-mana CEO
yang bermasalah akan ditarik semula oleh pihak HQ. Dalam hal ini apa
yang kami laporkan kepada HQ tidak diambil tindakan yang sewajarnya.
Pihak HQ tidak pernah memanggil kami untuk berbincang.

[62] At present, COW5 is still the CEO of the Company despite CLW1’s assertion
above. We now come to the evidence of Ahmad Zafir (CLW9), the former IR Manager,
who appeared to be the person co-ordinating the meeting on the night of 15 November
2017 and the petition letter. The Court gathered earlier that there was a draft petition letter
circulated during the said meeting and some of them had signed it as the draft letter went
around the table. The draft was later amended because in the version dated 16 November
2017, COW1’s name was no longer in there whereupon the ADUN Peramu Jaya’s advice,
the group of employees and ex-employees were told to focus their efforts to oust COW5
first. CLW1 told the Court that the petition letter was taken by Ahmad Zafir after that
night’s event.

[63] CLW9’s evidence was similar to the Claimants in that he was also a victim of the
Company’s (COW5 and COW1) target to remove the older employees and placed on a 60
days’ PIP which was not a means to improve their performance but an arbitrary measure
to terminate their service after 60 days. Nevertheless, this witness clarified a few things in
terms of the “mystery” surrounding the petition letter. He stated that he was the person co-
ordinating the petition letter with the ADUN Peramu Jaya after their complaints to the
Company and the Group HR, Mr. David Azzudin Buxton, fell on deaf ears and no action
was taken despite several complaints against COW5 and COW1. However, he did not
show proof of his assertions that he had been in contact with the Group HR, Mr.
David Azzudin Buxton and that the complaints had been forwarded to the latter. He
said he was well-versed with the grievance procedures but had to take this move of
approaching the ADUN Peramu Jaya when their complaints were not resolved by the
Group and/or the Company. He also created the WhatsApp Group for the aggrieved
employees to enable easier communication among them, and which was later disabled

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after the petition letter came to the knowledge of the CEO. He also told the Court that the
date 16 November 2017 on the petition letter was changed by him from 15 November
2017 and that there were no two different petition letters. He was also the person who
drafted the petition letter based on the complaints by the aggrieved employees.

[64] CLW9 stated further that he did not forward the complaints to COW1 who
was the General Manager for Human Capital because he was also one of the
recipients of the PIP and would have been dismissed after 60 days. Moreover,
he said the complainants did not want the matter to be brought up to COW1
because he was the person causing them the problems. CLW9 said he was
involved because he would be dismissed through the PIP and felt responsible to
ensure that the matter would be resolved via the OEE and HR HQ, which did not
materialise.

[65] It is noted that CLW9 also stated that he suspected some of the attendees that
night was the traitor whom had informed the management about the petition letter.
He said he kept the petition letter and did not forward it to anyone after 15 November
2017. He said he changed the date to 16 November 2017 because he wanted to
meet up with the ADUN Peramu Jaya but the latter was not around on that date. He
also admitted that he had a younger brother who was the local UMNO Bahagian’s
Treasurer. Due to his deteriorating health condition (diabetes and heart problem) he
opted for early retirement and has been receiving SOCSO pension since May 2019.

[66] On another note, CLW9 in his witness statement mentioned that there was
case whereby an ex-employee of the Company by the name of Mohamed Yaacob
Bin Mamat won an unfair dismissal claim against the Company at the Industrial Court
via Award dated 1 November 2019. He was found not guilty by the Industrial Court
and was to be “…reinstated to his former position as a Foreman…”.

[67] Before I go on to evaluate the evidence, a copy of the complete version of the
petition letter dated 16 November 2017 is reproduced below for reference:

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Evaluation and Findings by the Court

[68] In Milan Auto Sdn. Bhd. v. Wong Seh Yen [1995] 4 CLJ 449, it was stated
that the functions of the Industrial Court were:

“As pointed out by the Court recently in Wong Yuen Hock v. Syarikat
Hong Leong Assurance Sdn. Bhd. (1995) 2 MLJ 753, the function of the
Industrial Court in dismissal cases on a reference under s.20 is twofold,
first 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”.

[69] In determining whether the Claimants’ dismissal was with just cause or
excuse, the Court will deal with the issues raised by the parties during the hearing
and in their submissions, as appropriate.

i. Defective charge
[70] The Claimants raised the issue about the charge during the DI being unclear
as at that time, the Company did not produce the complete version of the letter
(pages 3-7 of COB9). After perusing all their responses to the show cause letters, the
Court observed that the Claimants replied to the show cause letter within the time
provided and gave their explanation towards the charge preferred against them (see
Tab 3, pp. 25 - 28, COB1) (see also Tab 3, pp. 32 - 33, COB2) (see also Tab 3, pp.
17 - 19, COB3) (see also Tab 3, pp. 15 - 16, COB4) (see also Tab 3, pp. 17 - 18,
COB5) (see also Tab 3, pp. 20 - 21, COB6) (see also Tab 3, pp. 19 - 21, COB7) (see
also Tab 3, p. 17 and pp. 18 - 19, COB8). From the documents before the Court, it
did not appear that the Claimants were unable to conduct their defence, unclear
about the charges or did not know which document they were referring to. They all
referred to their alleged victimization by COW5 in the replies to the show cause letter,
inferring that they knew about the existence of the petition letter which was directed
against and complaining about COW5’s conduct.

[71] In the case of K. Kavitha Krishnan v. Aetins Sdn. Bhd. [2016] 1 ILR 156, a
case of misconduct of conflict of interest and that the allegations against the claimant

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had been defective for lack of material particulars. The claimant was not given
sufficient time to prepare her defence and was given the show cause letter on the
day when the domestic inquiry was held. In the present case, the charges (and the
“prosecution” by the Company) were not perfect but I am of the view that the charges
revealed sufficient material particulars to enable the Claimants to prepare their
defence. Moreover, the Company’s witnesses have explained that they only
managed to obtain the complete version of the letter after the DI had been
concluded. Comparing the two documents, ie the two-page version and the complete
version of the letter, it could be seen that they are the same document. I am of the
view that the Claimants have not been prejudiced by the charge that was stated in
the Notice of DI, which was the charge they were faced with at the DI on 25 and 26
September 2018. All Claimants also admitted to signing the said petition letter at the
hearing despite not admitting to it at the DI and they gave their explanation about
why they did not admit earlier (see the supplementary witness statements of the
Claimants).

[72] There were many issues raised by the Claimants to counter the Company’s
case that the dismissal was with just cause or excuse. But one must not be side-
tracked by the ancillary points of the case, such as the dismissal of Mohamed which
the Court opines as irrelevant to the Claimants case, or the fact that others whom
had resigned were not punished, or the fact that the Claimants did not admit to
signing the letter at first. One important point that must be remembered is that the
Claimants admitted to signing the petition letter in the end after stating that when they
were issued the show cause letters on 4 July 2018, the Company did not give the
complete version. Therefore, they did not agree to the charge. As I have stated
above, the incomplete version came from the complete version and pertaining to the
same issue. I find that the contents of page 1 of COB9 are the same as page 6
and contents of page 2 of COB9 are the same as page 7. The order of the
names and signatures are also the same on both documents.

[73] The fact that there was an earlier verson of the petition letter that was
circulated to the meeting on the night of 15 November 2017 at the Golf Club did not
damage the Company’s case whereby the offending letters were the documents at

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pages 1-2 and 3-7 of COB9 although the latter document was obtained much later
when the DI had been concluded. CLW9 had explained that he changed the date on
the petition letter as he was supposed to meet the ADUN Peramu Jaya on was 16
November 2017. We also know that COW1’s name had been taken out from the
earlier version after the attendees of the said meeting were advised by the ADUN
Peramu Jaya to focus their efforts on getting COW5 out first from the Company.

ii. The Domestic Inquiry

[74] The other issue of importance is the DI held on 25 and 26 September 2018. It
was the finding of guilt upon all the claimants which resulted in the Company
dismissing them from service. Upon perusal of the report of the DI panel at pages
137 to 147 of COB1, I am of the view that the Claimants had been given ample
opportunity to defend themselves against the charge. CLW1 acted as the Claimants’
representatives. At the end of each DI session, submissions were made by both
parties. I am of the view that there was no breach of the rules of natural justice as
claimed by the Claimants. Regardless, the Court is not bound by the decision of the
DI panel as the case is heard de novo when it is referred to the Industrial Court.

[75] I will very briefly address the issue of the DI which is to highlight from a case
law the point that the findings of a DI panel are not binding on the Court and that the
Court will hear a case de novo despite the findings of a DI panel. In Hong Leong
Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeal [1997] 1 CLJ 665 at
page 716 it was held that:

“The fact that an employer has conducted a domestic inquiry against his
workman is, in my judgment, an entirely irrelevant consideration to the
issue whether the latter had been dismissed without just cause or
excuse. The findings of a domestic inquiry are not binding upon the
Industrial Court which rehears the matter afresh. However, it may take
into account the fact that a domestic inquiry had been held when
determining whether the particular workman was justly dismissed”.

[76] In Bharat Forge Co. Ltd. v. A.B. Zodge and Another (1996-11-LLJ-643)
(SC) the court held that a domestic inquiry may be vitiated by either for non-

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compliance of the rules of natural justice or for perversity. Any disciplinary action
thus taken on the basis of a vitiated inquiry does not stand on a better footing than a
disciplinary action with no inquiry. Two principles emerge from this, that the principles
of natural justice must have been adhered to at the domestic inquiry stage and where
the domestic inquiry has been vitiated for some reason, the Court can hear the case
de novo. In the present case, I am satisfied that the rules of natural justice had been
adhered to by the Company in the holding of the DI as well as the proceedings in the
DI itself. The Claimants had been given the opportunity to present their case and
were also represented at the DI by CLW1 who was an IR Assistant Manager. If I am
wrong on my finding that the rules of natural justice had been followed by the DI
panel in its proceedings, nevertheless, the Court had heard the case de novo and
had been able to make its findings on material points of the case based on the totality
of the evidence adduced by the Company and by the Claimants.

iii. The standard of proof and reasonable grounds

[77] This Court in the case of Viswanathan B Narayanan v. Malaysian Airline

System Berhad [2019] 2 ILR 319 stated:

“[61] In discharging its duty in a case under a reference in a section

20 of the 1967 Act, what is important for the Court is to determine
whether the dismissal was with just cause or excuse. The Company
must produce convincing evidence that the Claimant had committed the
offences he was alleged to have committed and for which he was
dismissed: Stamford Executive Centre v. Dharsini Ganesan [1986] 1
ILR 101. The Industrial Court is a court of equity and not a criminal
court. The Court needs only to be satisfied that at the time of the
dismissal, there were reasonable grounds for believing the offence put
against the employee was committed; and there were such reasonable
grounds indeed. The test is not whether the employee did it but whether
the employer acted reasonably in subsequently dismissing him: Utusan
Melayu (M) Bhd. National Union of Journalists Malaysia [1991] 2 ILR
840.”.

[78] The charge was preferred based on the Company’s investigations after the
two-page letter landed into the possession of COW5. It was insinuated by the
Claimants that COW5 could have orchestrated the petition letter them and blamed in
order to get rid of them. Now, on a balance of probabilities, this assertion in itself is

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ludicrous because the Claimants admitted to putting their signatures on the said letter
and CLW9 admitted that he was the one who organised the meeting on 15
November 2017 an the petition letter. Moreover, if their assertion is true, why would
COW5 give the Company only the last two pages of the petition letter? The
Company proceeded to dismiss the Claimants after the DI panel found them all
guilty. It reasonably believed that the Claimants were guilty of the misconduct
charged. The Court applies the case of Mohd Saufi Ahmad Rozali & Anor v.
Puspakom Sdn. Bhd. [2013] 2 ILR 144 as follows:

“[7] Hence, even the standard of proof on the balance of

probabilities may be too rigid a standard and the standard now is of
reasonable belief. This standard has been reaffirmed by the Court of
Appeal in the case of K A Sanduran Nehru v I-Berhad [2007] 1 CLJ 347.
This case established that the test is not whether the employee did
it but whether the employer acted reasonably in thinking the
employee did it…”.

[Emphasis added]

[79] Therefore, based on the above, the Court opines that the standard of proof is
only on a balance of probabilities. This is different from a criminal charge where the
standard of proof is “beyond a reasonable doubt” at the end of the prosecution. So,
the test is whether the Company acted reasonably in thinking the Claimants had
misconducted themselves in respect of signing the petition letter dated 16 November
2017 in order to garner external support in their efforts to oust COW5. COW6 who
signed the dismissal letters of the Claimants stated that as the allegations in the
petition letter were directed against the Company’s top management, an independent
decision maker was needed to review and decide on the culpability of the Claimants,
the severity of the misconduct alleged as well as the appropriate decision to be made
in terms of the punishment. After they were dismissed, the Claimants had gone
through the appeal process but unfortunately, the appeal was not allowed. I am of
the considered opinion that the Company had acted reasonably in carrying out
investigations on the two-page letter, issuing the show cause letters, convening and
holding the DI, considering the report of the DI panel in order to come up with a
suitable punishment for the misconduct and informed the Claimants of their right to
appeal the Company’s decision.

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iv. The Performance Improvement Plan (PIP)

[80] The PIP was another issue of concern with the Claimants. CLW1, CLW2,
CLW3, CLW5, CLW6 and CLW7 were placed under the PIP on 10 November 2017.
The so-called offending paragraph in the PIP can be seen at page 17 of COB1 as
follows:
“Timeline for Improvement, Consequences & Expectations:
Effective immediately, you are placed on a 60-day PIP. During this time
you will be expected to make regular progress on the plan outlined
above. Failure to meet or exceed these expectations, or any display of
gross misconduct will result in further disciplinary action, up to and
including termination. In addition, if there is no significant improvement
to indicate that the expectations and goals will be met within the timeline
indicated in this PIP, your employment may be terminated prior to 60
days. Furthermore, failure to maintain performance expectations after
the completion of the PIP may result in additional disciplinary action up
to and including termination.

The PIP does not alter the employment at-will relationship. Additionally,
the contents of this PIP are to remain confidential. Should you have
questions or concerns regarding the content, you will be expected to
follow up directly with me.”.

[81] I gathered from the evidence that since COW5 took over as the Acting CEO,
the Claimants were unhappy with the changes brought about by the new superior.
From the documents before me and the PIP forms, the emphasis were more on
achievements of KPIs. I noted that the PIP was written “Reviewed on 15 January
2018” and with a comment “To continue monitoring for next 2 months”. It was signed
by COW1. The Claimants were not dismissed after 60-days and they admitted it.
Under cross-examination, CLW1 agreed that the word used in the PIP was “may be
terminated” and not “shall be terminated”. In fact, none of them were dismissed
because of non-improvement in their performance after being put under the PIP.
Nevertheless, they and CLW9 alleged that COW5 made the process difficult for them
and at times refused to meet them for his signature and comments on the PIP.
COW5 denied this allegation. He had given evidence that:

“…However their performance was continuously monitored and they were told
to keep working on the gaps identified. This led to improvement in terms
of the performance for those who had the initiative to continue to strive to be

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good at what they are doing. No one was dismissed from their services as a
result of the PIP. That was never the intention for the PIP in the first
place.”.

[82] COW1 was cross-examined that the PIP format was not the same as that
used by the Group. He agreed to the Counsel’s suggestion that the guidelines did not
state that the PIP was to be 60 days. He did say that the PIP could be extended as
there was no hard and fast rule. After scrutinising all the evidence before it on this
issue, the Court opines that the Claimants’ responses were pre-mature. Whatever
grievance the Claimants had in respect of the PIP and with COW5 and COW1, the
Company stated that in the end there was no punishment meted out on the
performance issue. Rather, action was taken under DTT2(48).

v. The Grievance Procedure

[83] It was the Claimants’ contention that they had to resort to the petition letter
because their complaints to the Company and the Group were not resolved despite
being in contact with the Group HR. The OEE was used as an avenue for the
Claimants to air their grouses but they alleged that no further action was taken after
that session in Port Dickson on 30-31 October 2017 and their relationship with
COW5 deteriorated after they complained openly about their dissatisfaction regarding
the Company’s management. They also claimed that what they did was not wrong
because CLW9 being the Manager of IR was the person who co-ordinated
everything.

[84] Meanwhile, COW5 gave evidence that the OEE was not considered as part of
the Company’s grievance procedures. As stated earlier, he had explained that the
OEE was an annual workshop run by a third-party consultant designed to train the
employees to execute their functions with excellence. I am of the view that COW5’s
evidence on this issue is more probable than the Claimants. It was not a proper
grievance procedure in the DTT-16 (COB1 pages 199-203). A copy of the flow chart
on the grievance procedure is as below:

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[85] CLW1 stated that “Kami juga telah melaporkan masalah ini kepada HR HQ
iaitu Mr David Buxton melalui email dan Whatsapp. Email pada 22 Nov 2017 dan
Whatsapp - 20, 21 & 22 Nov 2017 tapi tiada penyelesaian yang baik dari pihak
Pengurusan untuk perkara ini.”. It is noted that the communication to David Azzudin
Buxton were made starting 20 November 2017, that was around the time when
COW5 obtained the two-page letter (on 21 November 2017) and informed COW1.
They then commenced informal queries in that respect. I am of the view that the
communication to David Buxton was rather late and not in accordance with the DTT-
16 abovementioned. They also did not apply to subpoena David Azzudin Buxton to
testify on their assertion that the complaint was brought to his attention.

[86] COW6 told the Court that there were grievance procedures to rely upon,
namely DTT-16 and the Group Whistleblower Policy (see Tab 6, pp. 207 - 208, COB1),
they could report to COW6 or go straight and report to the Group Managing Director.
CLW1 told the Court that they wanted to meet the GMD when the latter came to visit
the Company but they could not because the GMD only visited the Isuzu-Hicom plant
site in Pekan. On this note, I am of the view that this was a rather lame excuse given
by the Claimants because if they were really serious in approaching the Group, be it
the Group HR Manager or the GMD to complain about COW5, they need not rely
only on e-mails, telephone or WhatsApp conversations. They were senior executives
and many old-timers, not some non-executives or newbies, and they were all earning
quite well. There was nothing to stop them from physically going over to the HQ in
Shah Alam to lodge their complaints if they were really dissatisfied with COW1’s
handling of their grievances.

[87] Another option would be by utilizing the Whistleblower Policy which protects
the identity of the complainant/informant (see pages 206-207 of COB1). It looks quite
simple enough and the complaint would be made to the Audit Committee Chairman,
the GMD, the Group CEO or Head of Group Internal Audit Division. Any complaints
against a senior management of the Group’s subsidiary company would be directly
made to the Audit Committee Chairman. Obviously, the Claimants did not use this
grievance procedure as well. From the evidence available before me, I have found
that the Claimants did not follow the Company’s grievance procedures despite having

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CLW9 and CLW1 (HR personnel) in their group. Clearly the Claimants were wrong to
take such action into their own hands instead of going through the proper
procedures. They claimed that because of the 60 days PIP, they had to take that
action but the Court views that they were also insubordinate by using external
influence to remove the CEO from the Company in Pekan, Pahang. The Industrial
Relations Department (JPP) and Labour Department (JTK) also did not inform the
Claimants whether the Company had victimised the them by its actions in respect of
the PIP. CLW1 stated in cross-examination that they were not informed the results.
However, I am of the view that had the Company been found to have victimised the
Claimants in issuing the PIPs, the two departments would have summoned the
Company and taken legal action against it.

vi. Whether the Company’s image was affected and damage suffered

[88] One of the points raised was that the Claimants’ action did not bring about any
damage to the Company’s image nor did it suffer any loss. It was contended by the
Claimant that the charge they faced was only under DTT2(48) and the Company
rather belatedly brought in DTT2(35). The Court has heard the evidence of COW1,
COW5 and COW6 that the Claimants’ action had tarnished the Company’s image
and good name. COW5 also testified that he was summoned to face and explain to
one of their clients (MBM) and which was an important investor, about the petition
letter. This fact was not challenged by the Claimants. COW5 testified during
examination in chief that:

“When the two page letter was shared with me on 21.11.2017, I shared the letter
immediately with my superior in DRB. After that, it came to the knowledge of many
employees as well as our customers, mainly Mercedez Benz Malaysia (MBO) and
Volkswagen Group Malaysia. The impact of the letter – I was called my MBO to
explain what is happening and to justify our action in making sure that the production
quality and operation of MBO will not be disturbed. They raised their concern
because this letter involves middle and senior management who are supposed to
work on productivity and quality of the products we produce. I have to explain to them
my action plan to make sure they are confident that the operation can run without
interruption. I was also asked in my weekly meeting with VW Plant manager in Pekan
about the letter and the consequences of the said letter to the VW operation. Similarly
I have to explain my action plan how to make sure the operations in VW will not be
interrupted and quality and output will be met as per the requirements.

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Secondly the big impact will be on the integrity of the management of the company in
the eyes of the rest of the about 2,200 employees of the Company. Because it
involves middle management and senior management, some of the employees are
spreading rumours about the allegations like sexual harassment, cronyism practiced
by me, the CEO and the management of the company. Besides that, attending some
functions and events in Pekan, I would also need to justify the rumours that the
Company is in the midst of removing long serving members, which is a pure slander
and not the truth. Similarly in Pekan in the community of Pekan, there are rumours
spreading around about this matter which is also affecting my family, my school going
children are asked at school and also the community having negative perception
about the Company. Personally, I was also called up to DRB Hicom, investigated
about the allegations which I denied and put out my explanation to the management
of DRB HICOM however it is damaging the reputation – personal reputation as well
as the reputation of the Company in the eye of the shareholder.

Most importantly, the customers, MBO and VW are the existing customers where we
put our dependency on their trust, confidence to provide us with more volumes and
new models for the growth and success of the company. Around the same time, we
were also talking to several potential new customers where we need to strike a deal
by explaining our workforce capability in directly to make sure employment
sustainability of the operation and the company.”.

[89] To my mind, the action of MBM to summon COW5 to explain himself was
serious enough and served as a warning to the Company that the investor did not
want a repeat of the incident. On another note, COW5 also told the Court that the
allegations against him had also affected his children where they were asked about
the matter at school. Pekan being a town and not quite a city, his evidence on this
was not surprising. The Claimants may not have intended such a consequence but it
showed that they were reckless and only interested to get COW5 out by all means
without sparing a thought about the welfare of his children (family).

vii. Condonation by the Company

[90] The Claimants contended that by the delay in taking action against them,
almost a year after the petiton letter was discovered, therefore the Company had
condoned their actions. The Company’s witnesses (COW1 and COW5) explained
there was no condonation of the Claimants’ action and stated that the delay in taking
disciplinary action was due to a combination of factors. These factors were that the

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complete petition letter was obtained rather late, that the General Election was just
around the corner then, and it had to tread carefully due to the perceived threat in the
petition letter. The Company also respected the fasting month and Hari Raya Puasa
celebrations that were approaching because it did not want to be blamed as being
insensitive and causing hardship to the Claimants during that time. The Claimants
was unable to challenge the Company’s answer on this matter. It is a well-known fact
that in late 2017, the country was gearing up for the 14 th General Election and in fact,
it was held on 9 May 2018. The Court takes judicial notice that the Ramadan month
started on 17 May 2018. The Hari Raya Aidil Fitri followed about a month later,
around mid-June 2018. The show cause letter was issued dated 4 July 2018. They
were suspended for investigations and an extension of suspension was given two
weeks later. The Notice of DI was dated 7 September 2018 and the DI sessions were
held on 25 and 26 September 2018. The Claimants handed their written submissions
dated 2 October 2018 and the Report of the DI was dated 15 October 2018. After
deliberating the report, the Company dismissed them on 13 November 2018. I find
that the Company has explained the delay sufficiently and did not indicate that it had
relinquished its right to take disciplinary action on the petition letter.

[91] In the case of MASCOM (M) Sdn Bhd v. Dominic Din Hatt [2005] 3 ILR 347,
the learned Chairman of the Industrial Court (as he then was) stated:

“The question of condonation does not arise here as applying the

principles of condonation quoted in the case of CM CM Perniagaan
Malaysia Sdn Bhd v. Ong Su Ping [2004] 3 ILR 711 which the learned
Chairman said that "It is the unexplained delay to discipline the
employee that attracts the principle of condonation. There was no such
undelay here. The company also did not show that it had relinquish its
right to punish the claimant.”.

vii. Victimisation

[92] It is well-settled law that the onus of proving victimization is on the party
alleging it. In the MASCOM Case, the learned Chairman of the Industrial Court also
stated the following:

“I) Victimisation.

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The question of proving victimisation is upon the person alleging it.

"The Law of Industrial Disputes" vol. 2 at p. 903 by OP Malhotra provides that:

Victimisation is a serious charge by an employee against an employer

which reflects to a degree, upon a subjective attitude of the employer
evidenced by certain acts and conducts. The onus of establishing
victimisation is upon the person who alleges it. The charge of victimisation
being a serious one; it must be properly and adequately pleaded; giving all
particulars upon which the charge is based to enable the employer to fully
meet them. In other words, the charge must not be vague and indefinite.
The act of victimisation being an amalgam of facts relating to acts and
conduct, inferences and attitudes, these have to be established by safe and
secure evidence. More allegations or vague insinuations are not enough.

In VDO Instruments (M) Sdn. Bhd. v. Lau Hit Imm [2004] 3 ILR 392 the
learned Chairman referred to LC Malhotra and "Dismissal, Discharge
Termination Of Service And Punishment" 9th edn. at p. 762 where inter
alia it was stated that:

Victimisation means one of two things. The first is where the

workman concerned is innocent and yet he is being punished
because he has in some way displeased the employer, for
example, by being an active member of a union of workmen... The
second case is where an employee has committed an offence but
he is given a punishment quite out of proportion to the gravity of
the offence, simply because he has incurred the displeasure of the
employer.

Victimisation consists in punishing an employee for any object other than

the one of inflicting just and appropriate punishment for a proven lapse.”.

[93] The Claimants’ case is premised upon the purported victimisation by COW5
and to a certain extent, COW1. I have gone through all the documentary evidence
before me, and the evidence in cross-examination of the witnesses. More often than
not, when compared to the Claimants’ version of events, as supported by the
documents tendered by both parties, the Court views that the Company’s version was
more probable than the Claimants’ version. I have also observed the demeanour of
the witnesses in Court and the manner in which they answered the questions posed
to them. The two witnesses, COW5 and COW1 portrayed by the Claimants as “evil”
persons were in fact credible witnesses. They may certain interests in this case
because it involved their reputation, but I have also heard the evidence of COW6 who
was part of the party that made the decision to dismiss the Claimants. He is from the

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Group, not the Company and an independent witness as far as the Court is
concerned. In my view, he gave a fair assessment of the case and explained the
rationale for the dismissals.

[94] All the documentary evidence were made available for the Court’s scrutiny by
both parties and all witnesses were subjected to rigorous cross-examination. In my
assessment of the witness, I did not find any evidence to show that COW1 had an
ulterior motive to get rid of the Claimants from the Company. There was no evidence
to show what he stood to gain by the Claimants’ dismissal. At that material time,
COW1 was already 52 years old and he retired about 4.5 months after the Claimants
were dismissed. He was an engineer by qualification but he had been with the Group
and the Company for a total of almost 30 years. I am of the view that attacking
COW1’s background, that he was not qualified as a GM of Human Capital, was a
futile exercise. It is a subjective matter. To give an example, one former Prime
Minister was a qualified doctor but he helmed the country for a total of 24 years.

[95] Meanwhile, I would say that COW5 is a “young boss” to helm the Company as
CEO at roughly the age of 38 years. From his evidence and the other witnesses, I
gathered that COW5’s style of management was “unpalateable” to the Claimants and
probably to some of those who had left the Company. Nevertheless, he has given
evidence that the Company was able to earn bigger profits after he took over in 2016.
It was the Claimants’ contention that the Company was able to earn such profits
because of payments made by VW. But the question is, why was the previous CEO
unable to collect such payment from VW? Going back to my earlier point, from my
assessment of the evidence, I am further of the view that some of the long-serving
employees, including the Claimants, may have been complacent with their ways and
were reluctant to make changes to their working methods after the GM took over as
CEO. As COW5 stated, it took some time for him to obtain the buy-in from the
employees. The Claimants, such as CLW1 and CLW7 complained that they were
tasked to do things that were not under their job scope. Nevertheless, the letters of
offer of confirmation in appointment (CLW1’s was dated 1 August 1997, COB1 at
page 10) dictated that “You will be required to carry out such duties and job functions
as may be instructed from time to time by the Company or persons acting on behalf
of the Company...”. There was nothing to suggest that this term had changed over th

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years of his service with the Company. Even CLW1 under cross-ecxamination agreed
that he had to carry out any additional duties assigned by he Company from time to
time. In regard to CLW1’s claim that the Company had advertised for an Assistant
Manager of IR to replace him, COW5 under cross-examination had stated that CLW1
used to have an executive by the name of Sharifah Nabilah who had left the
Company. The advertisement was for her replacement and not in respect of CLW1’s
position. Therefore, at this stage I am unable to, conclude that the Claimants had
been victimised by either COW5 or COW1.

[96] On the other hand, the Claimants told the Court that they did not admit to
signing the petition when confronted with the question. It was only after the hearing
started that they filed a supplementary witness statement admitting that they did not
agree at first because they have not seen the complete petition letter. But how many
petition letters were going around in Pekan at that time? Upon perusal of the
documents at pages 1-2 and 3-7 of COB9, clearly there were various handwritings
and signatures on the last pages. I have, for good measure, compared the
signatures of the Claimants on their witness statement with those on pages 2
and 7 of COB9, and I find that they were the same. It could not have been forged
by others (who were not named) as was suggested by the Claimants during the DI.
The fact that they changed their stories and later in the witness statements of all the
Claimants marked as CLWS1B, CLWS2B, CLWS3B, CLWS4B, CLWS5B, CLWS6B,
CLWS7B and CLWS8B they explained why they lied at the DI goes to the credibility
of each of the Claimants, unfortunately.

[97] Moreover, there was also evidence from the Claimants that they had a
WhatsApp group prior to being “caught” with the two-page letter. They all testified
that the WhatsApp group was deleted after they were found out on 21 November
2017. This fact goes to prove that the Claimants knew what they did by submitting
the petition letter to Putrajaya was clearly wrong. It does not matter that there were
contradictions between the Claimants and CLWS9 about whether the letter was
subsequently sent to Putrajaya because eventually it landed with COW5 through the
whistleblower and all of them could not deny that their signatures were there on
paper.

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Whether the Charge has been proved by the Company

[98] The burden of proof is on the Company to discharge on a balance of

probabilities that the dismissals were with just cause or excuse. There were many
witnesses for both sides in the hearing, six for the Company and nine for the
Claimants. There were also many documents filed on behalf of both parties. A lot is
at stake for the Company, namely its reputation, where it dismissed eight senior
employees in the Executives category if the Court finds that the dismissals were
without just cause or excuse. The Claimants also stand to lose their jobs in the
Company if the dismissals are upheld. The Court owes a duty to scrutinize all the
evidence available before it and supported by the submissions from both sides.

[99] The Claimants had to answer the following charge of misconduct during the
DI and it was also the same charge in the letter of dismissal:

“Di antara bulan November 2017 dan Disember 2017, anda telah
didapati terlibat di dalam satu kempen secara sulit yang melibatkan
serarnai 10 orang pekerja kumpulan Eksekutif di mana anda telah
menyokong dan menandatangani satu dokumen berbentuk
bantahan yang akan atau telah dihantar kepada Dato’ Seri Haji Mohd
Najib bin Tun Haji Abdul Razak yang merupakan Perdana Menteri
pada ketika itu.

Petisyen tersebut ditujukan kepada bekas Perdana Menteri

Malaysia yang mengandungi, antara lain, pernyataan seperti
berikut:

“Kami memohon dan merayu agar Dato’ Sri melakukan sesuatu

agar Ketua Pegawai Eksekutif - Encik Ismail Pandak supaya
ditukarkan ke Ibu Pejabat DRB-HICOM Shah Alam keluar dari
daerah Pekan.”

Dokumen tersebut bertujuan khas untuk mendesak pengaruh

luar supaya mengambil tindakan ke atas Ketua Pegawai Eksekutif
Encik Ismail bin Pandak supaya diambil tindakan ke atas beliau

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dengan ditukarkan ke Ibu Pejabat DRB-HICOM, Shah Alam dan

keluar dari Daerah Pekan.

Dengan ini anda didapati telah melanggar Dasar Dan Tatacara

Tatatertib dfbawah kesalahan berat lampiran DTT (48) iaitu membawa
atau cuba membawa apa-apa bentuk pengaruh atau tekanan luar untuk
mengemukakan atau menyokong sesuatu tuntutan berhubung dengan
perlchidmatan sama ada tuntutan itu tuntutan perseorangan atau tuntutan
lain-lain kakitangan.”.

[100] In regard to DTT-2(35), that is, Menjatuhkan imej atau nama baik syarikat
melalui apa-apa cara sama ada secara lisan, tulisan atau perbuatan, since the
Claimants were not charged under this DTT, the Court will not consider it against the
Claimant as part of the charge under DTT-2(48). Nevertheless, it is worth noting that
the Company was affected by the circulation of the petition letter to a certain extent
where MBM summoned COW5 to explain the matter to them. This I have covered
earlier and will not repeat the same.

[101] COW6 had summed up the elements of the charge where he stated:

(a) the Claimants have been involved in a secret campaign for the
removal of the CEO from the Company;
(b) they supported and signed a protest letter that was addressed
to the former PM;
(c) which was sent or intended to be sent to the former PM;
(d) the Claimants specifically request and appeal that the former PM
does something so that the CEO is transferred out of Pekan to the
Group’s Headquarters Office at Shah Alain;
(e) the letter is specifically intended to coax the former PM to take
action against the CEO and remove him from Pekan; and
(f) therefore, it is deemed to be in breach of the Dasar Dan Tatacara
Tatatertib Policy of the Company, in specific at DTT 48 which
stipulates that:
“It is a serious offence to bring or attempt to bring influences or
pressure from external sources (or the purposes of submitting

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presenting or supporting a claim which relates to the services of

anyone one Particular individual or (or other employees).”.

[102] As stated earlier in this Award, there is no doubt that the Claimants had signed
the petition letter before CLW9 took it away. It was undisputed that the meeting was
held outside the Company’s premises at night in the presence of outsiders. This goes
to the element that it was a secret campaign organized by CLW9 and his friends; at
that stage, the ADUN Peramu Jaya was already an external influence brought in to
lobby the then Prime Minister to entertain their demands. We have established also
the fact that CLW9 said he took the letter back after the 15 November 2017 meeting
and changed the date to 16 November 2017. He said he kept it, but he was unable to
support this assertion. Even the Claimants pointed to CLW9 as the person
responsible for the said letter. COW5 stated that he received an image of the two-
page letter via WhatsApp on 21 November 2017. Sometime between 16 November
2017 and 21 November 2017, the petition letter made its way to Putrajaya. Evidence
was given by COW1 under cross-examination “…we have information from the
whistleblower that the images were taken from the PM office”. The Claimants under
cross-examination agreed that the Prime Minister was not involved in the
management of the Company. Therefore, there was the external influence element
under DTT2(48). The Claimants and the other persons who signed the petition letter
had given an ultimatum to the then Prime Minister that if he did not comply with their
demands for the CEO to be transferred out of Pekan within three months, “Kami akan
memberi kepercayaan kepada Parti lain untuk membantu kami semasa PRU 14
nanti.”.

[103] I have considered the written submissions and replies by both parties and I do
not wish to comment on each and every part of the submissions. Nevertheless, I
would mention here that I agree with the submission by the learned Counsel for the
Company that CLW1 and CLW9’s evidence in regard to the petition letter
contradicted each other and that they were both not telling the truth. Therefore, on
the totality of the evidence before the Court, I find that the Company has
proved the charge on a balance of probabilities against all the Claimants. The
Claimants are hereby found guilty of the charge as stated in the Notice of DI
dated 7 September 2018 and letter of dismissal dated 13 November 2018.

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Proportionality of the punishment of dismissal

[104] The Court has found on a balance of probabilities that the Company has
proved the charge against all the Claimants and that the Claimants were guilty of the
misconduct charged; that is, there was just cause or excuse for their dismissal. It
now boils down to whether the punishment of dismissal by the Company was
proportionate in light of the evidence available before the Court.

[105] In Ang Beng Teik v. Pan Global Textile Bhd Penang [1996] 4 CLJ 313, the
Court Appeal held that:

“Accordingly, in our judgment, the Industrial Court when it comes to

decide whether a workman was dismissed without cause or excuse is
wholly unconcerned with whether there was a repudiation by the
workman of his contract of employment which was accepted by the
employer, but rather with the broader question whether what happened
to the workman was just and equitable. If, at the end of the day, it finds
that the conducts of the workman in all circumstances of the case was
such that he deserve what he got then, cadit quaestio. But, if it finds that
the act or omission on the part of the employer that deprived the
workman of his proprietary right to earn a living to have been made
without just cause or excuse, then it will, and must, interfere. It must set
matters right by making an award in favour of the workman. It may
reinstate him. Or, if reinstatement is not appropriate relief, it will usually
award him reasonable compensation according to the circumstances of
the particular case.”.

[106] OP Malhotra in his book The Law of Industrial Disputes, 6th Edition at page
1116 defined “misconduct” as follows:

“Any conduct on the part of an employee inconsistent with the faithful

discharge of his duties towards his employer would be a misconduct.
Any breach of the express or implied duties of an employee
towards his employer, therefore, unless it be of trifling nature,
would constitute an act of misconduct…”.

[Emphasis added]

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[107] In Holiday Inn Kuching, Sarawak v. Puan Elizabeth Lee Chai Siok,
Sarawak [1990] 2 ILR 262, the word “misconduct” was defined as any conduct
inconsistent with the faithful discharge of his duties or any breach of the express or
implied duties of an employee towards his employer. In Syarikat Kenderaan Melayu
Kelantan Sdn. Bhd. v. Transport Workers Union [1995] 1 ILR 79, the term was
defined as “conduct so seriously in breach of the accepted practice that by standard
of fairness and justice the employer should not be bound to continue the
employment”. The misconducts that the Claimants were alleged to have committed,
were in respect of breaches of the Company’s DTT Policy and more importantly, it
was about using external influence to remove a key personnel in the Company.

[108] In Pearce v. Foster & Others [1886] 17 QBD 536, the Court of Appeal held
the following:
“The rule of law is, that where a person has entered into the position of
servant, if he does anything incompatible with the due or faithful
discharge of his duty to his master, the latter has a right to dismiss
him…”.

[109] The principle in the above case has been applied in the case of Mohd. Azizi
Bin Sohan v. Asian Kitchen (M) Sdn. Bhd. (Award No. 1407 of 2017) where the
learned Chairman had stated:

“In this context, courts have consistently held that the followings are acts of
misconduct:

(a) Where the act or conduct of the employee is prejudicial or likely to be

prejudicial to the interests of the employer or to the reputation of the
employer;

(b) Where the act or conduct of the employee is inconsistent or

incompatible with the due or peaceful discharge of his duty to his
employer;
…”.
[Emphasis added]

[110] The Company has to prove that the misconduct was serious and grave in
nature, which if proven, may warrant instant dismissal. In Zainudin Bin Kassim v.

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Johan Ceramic Berhad [2008] 2 LNS 1447, the learned Industrial Court Chairman
had stated the following:

“The right to control employees is a distinguishing feature of a contract

of employment. The right to control implies the right to ask the employee
what work to do. It is a dominant characteristic in the relationship of
employer and employee, which marks off the employee from an
independent character. As such, the employee must subject himself to
the said control and behave accordingly. (See Misconduct in
Employment by B.R.Ghaiye at p. 42)”.

[111] The case of Ngeow Voon Yean v. Sungei Wang Plaza Sdn. Bhd. /
Landmarks Holding Berhad [2006] 5 MLJ 113 reiterated the principles in Pan
Global Textiles Bhd Pulau Pinang v. Ang Beng Teik [2002] 1 CLJ 181 in which
Ahmad Fairuz FCJ at page 197 held that:

“It is generally held that the proper course for an employee is to obey the
orders when it is given and protest about its illegality in separate
proceedings. The distinction is made on the basis that if a worker is
allowed to judge the legality of every order and to disobey it if he thinks it
is not legal, it would be impossible for the management to get the work
done. If an employee takes upon himself to disobey an order which he
thinks not lawful or unreasonable, two courses are open to him. He can
point out his difficulties, if any, to the superior and if the latter insists on
the order being carried, he can do the work and take up the matter with
the union. If he disobeys he must take the risk, if the court finds that the
order was lawful and reasonable. When a worker refuses to comply with
the instructions of his superiors and his defence is that he wants to verify
whether the order is approved by the Manager, this amounts to
insubordination and dismissal is justified. This principle also applies to
transfer orders. (BR Ghaiye on Misconduct in Employment).

[112] I will now go on to consider the proportionality of the punishment of dismissal

on the Claimants. Reference is made to the case of British Leyland UK Ltd v. Swift
[1981] IRLR 91 which had been applied in the case of Norizan Bakar v. Panzana
Enterprise Sdn. Bhd. [2013] 4 ILR 477 which is a Federal Court decision and Said
Dharmalingam Abdullah v. Malayan Breweries (Malaysia) Sdn. Bhd. [1997] 1
CLJ 646, where the court had made the following observation:

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“There is a band of reasonableness within which one employer may

reasonably take one view: another quite reasonably take a different
view. One would quite reasonably dismiss the man. The other would
quite reasonably keep him on. Both views may be quite reasonable. If it
was quite reasonable to dismiss him then the dismissal must be upheld
as fair; even though some other employers may not have dismissed
him.”.

[113] In Ngiam Geok Mooi v. Pacific World Destination East Sdn. Bhd. (Civil
Appeal No.P-02(IM)-974-06/2015) the Court of Appeal had referred to Norizan
Bakar’s Case and stated:

“In that case, the Federal Court has affirmed the position that the
Industrial Court is empowered and indeed is duty bound to consider
proportionality of punishment by the employer in the event the charge is
made out against the employee. By relying upon this case, it was the
contention of learned counsel that the punishment meted out by the
respondent in summarily dismissing the appellant from service was
grossly excessive, harsh and disproportionate to the nature of the
charge established against the appellant.”.

[114] There have been a few cases involving the Company at the Industrial Court
and some of them may be useful to be considered in determining the issue of
proportionality of punishment of dismissal. In Hicom Automative Manufacturers
(Malaysia) Sdn Bhd 2. ISUZUHICOM Malaysia Sdn Bhd. v. Shahrulazman Ming
& 18 Ors. [2019] 1 LNS 1917, the learned High Court Judge (as she then was) held:

[18] In the present case, the Industrial Court has made a finding that the
Applicants had proven the charges of misconduct in paragraphs [93] and
[96] of the Award:

“[93] Mahkamah juga berpandangan bahawa tindakan kesemua

PYM adalah yang masing-masing dipertuduh sebagaimana [2019] 1
LNS 1917 Legal Network Series 8 pertuduhan yang dikenakan
dalam prosiding Siasatan Dalaman jelas bertentangan dengan
Klausa 35 di mana tindakan itu telah menjatuhkan imej atau nama
baik syarikat dan juga Klausa 48 iaitu tindakan itu telah membawa
atau cuba membawa apa-apa bentuk pengaruh atau tekanan luar
untuk mengemukakan atau menyokong sesuatu tuntutan berhubung
dengan perkhidmatan sama ada tuntutan itu adalah tuntutan secara
perseorangan atau tuntutan lain-lain kakitangan. Selain itu, hujahan
yang dimajukanoleh peguam PYM bahawa majlis yang dihadiri oleh

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mereka itu tiada bezanya dengan majlis yang dianjurkan aleh Datin
Sri Rosmah ketika itu di mana terdapatnya bendera-bendera BN.

[96] Oleh yang demikian, berdasarkan keseluruhan keterangan

yang dikemukakan iaitu dari saksi-saksi serta keterangan
dokumentar dan setelah memberi pertimbangan kepada hujahan
bertulis dan hujahan balas dan autoriti-autoriti PYM dan Pihak
Syarikat, Mahkamah ini membuat dapatan dalam keadaan dan fakta
kes ini bahawa Pertuduhan Salah Laku terhadap PYM telah Berjaya
dibuktikan di atas imbangan keberangkalian.” (emphasis added)
[19] The Industrial Court has made a finding that the Claimants are
guilty of the charges of misconduct. The Claimants did not challenge
these findings. Therefore, the next issue to be decided is whether
such grounds of misconduct constitute just cause or excuse for the
sentence of dismissal to be imposed on the Claimants

...

[20] After considering the evidence, the Industrial Court has made a
finding that the sentence of dismissal from the employment to be
without just cause and excuse. The Industrial Court then considered
that reinstatement is not practicable as it would not be conducive to
industrial harmony for the Claimants to return to their place of
employments with the Applicants. Therefore, the Industrial Court
has awarded back wages and compensation in lieu of
reinstatement, with a deduction of 10%.

[21] However, the Applicants take the position that the Industrial
Court has erred in law in failing to appreciate that the acts of
misconduct committed by the Claimants were serious enough to
warrant dismissal from their employment.”.

[115] The learned Judge in the end upheld the Industrial Court’s findings but
then went on to substitute the 10% deductions with 30% from the backwages
awarded. The court stated on the issue of proportionality of punishment of
dismissal:

“[26] I am of the considered opinion that the Industrial Court has

considered the relevant considerations before deciding that the sentence
of dismissal is without just cause and excuse. The Industrial Court had
duly considered the long years of service of the Claimants, that the
Claimants did not have a history of serious misconduct, that the
misconduct are not criminal in nature or resulted in monetary loss to the

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Applicants and that there was no evidence that the acts of the Claimants
had tarnished the reputation of the Applicants.

[27] However, the Applicants submit that the attendance and the
participation of the Claimants at the political event is serious in nature
and that the conduct of the Claimant had affected and/or lowered the
good name of the Applicants as the political event gave a false or
misleading impression that the Applicants were involved in political
activities. COW-1, for the Applicants gave evidence that the Applicants
main customer is the Government of Malaysia and it is important for the
Applicants to maintain good relations with the government. COW- 1 had
testified that:

“Di samping itu, adalah penting untuk DRB-HICOM mengadakan

hubungan baik dengan Kerajaan Malaysia. Ini kerana
DRB HICOM membekalkan banyak kenderaan rasmi kerajaan.
Maka kerajaan Malaysia merupakan pelanggan penting bagi pihak
syarikat.”.

[116] In the case of Muhamad Sukeri Bin Mahudin v. Hicom Automotive

Manufacturers (Malaysia) Sdn Bhd & Anor & Other Appeals [2019] 1 LNS 2161,
the learned High Court Judge (as he then was) held:

“[39] Next, on the applicants’ dismissal, the Industrial Court has taken
into consideration the seriousness of the applicants’ misconduct which
has tarnished the 1st respondent’s image and in contravention of the
Rules 35 and 48 of the DTT. The Industrial Court then finds that
punishment of dismissal was proportionate to the nature and gravity of
the applicants’ misconduct.

[40] Clearly the applicants misconduct had destroyed the trust and
confidence the 1st respondent’s placed on the applicant which warrants
for the applicant’s dismissal.

(see Norizan Bakar v. Panzana Enterprise Sdn Bhd [2013] 9 CLJ 409)

[41] On this justification for dismissal, Lord Esher MR in Pearce v.

Foster [1886] 17 QBD 536, said this: “The rule of law is that where a
person has entered into the position of a servant, if he does
anything incompatible with the due and faithful discharge of his
duty to his master, the latter has the right to dismiss. The relation of
master and servant shall be in a position to perform his duty faithfully,
and if by his own act he prevents himself from doing so, the latter may
dismiss him.” Lopes LJ in the same case then said this: “If a servant
conducts himself in a way inconsistent with the faithful discharge of his
duty in the service, it is misconduct which justifies immediate dismissal.”.

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[42] Having considered the applicants’ misconduct and the totality of

evidence, I agree with the Industrial Court as to the seriousness of the
misconduct and has no reason to interfere with the punishment by the
Industrial Court.”.

[117] The claimant/appellant then brought his case to the Court of Appeal in
Muhamad Sukeri Bin Mahudin v. Hicom Automotive Manufacturers (Malaysia)
Sdn Bhd & Anor & Other Appeals [2021] 1 ILR 323. The Court of Appeal held:

“[30] Here, the applicants’ action clearly has brought disrepute to the 1st
respondent’s reputation and an action to obtain influence from outside to
support the demand made in the propose Collective Agreement although
the 1st respondent’s management has explained the financial situation
of the 1st respondent.

[31] As such, the Industrial Court’s finding that the applicants’ action is in
breach of Rules 35 and 48 of the DTT is correct.

...

[34] The Chairman of the Industrial Court had considered all facts and
circumstances of this case, and viewed that the act of the appellants had
tarnish the first respondent’s image, whether directly or indirectly,
tantamount to a serious act of misconduct. At the end, the Chairman of
the Industrial Court said in his judgment:

[47] And further, even if the assembly was held after working hours, it is
still incumbent upon the Claimant to conduct himself in such a manner
so as not to bring disrepute to the Company’s image (Perwira Habib
Bank Berhad v. Yusoff bin Zakaria [1995] 1 ILR 136). The very act of the
Claimant in resorting to wear a face mask, albeit a handkerchief,
projects an image that the Company’s employees are largely unruly
individuals working in a Company that is bereft with employment
problems. This clearly tarnishes the Company’s reputation. And at that
point in time, whether the assembly was being conducted peacefully or
otherwise becomes irrelevant under the circumstances.

[35] The learned High Court Judge agreed with the Industrial Court’s
decision that the punishment of dismissal of all the appellants were
proportionate to the nature and gravity of the appellants’ misconduct.
Without doubt the appellants’ misconduct were so serious which had
destroyed the trust and confidence of the first respondent placed on the
appellants which warrants for the appellants’ dismissal.”.

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Note: It has been brought to this Court’s attention that leave has been granted for the
appellant in the above case to appeal to the Federal Court against the decision of the
Court of Appeal.

[118] Based on all the above cases, this Court concludes that the superior courts
have been consistent in their decision where the applicants’ misconducted under
DTT2(48) and on the totality of evidence, the Courts have agreed with the Industrial
Court’s decision as to the seriousness of the misconduct where the punishment of
dismissal was upheld. In the Shahrulazman Ming’s Case, the High Court agreed
with the Industrial Court that the dismissal was too harsh and compensation in lieu of
reinstatement was meted instead. Nevertheless, it is noted that the misconduct in that
case was committed by non-executive employees of the Company, it was a serious
misconduct but not serious enough for them to be dismissed.

[119] On the issue of long-serving employees, in Felda Global Ventures Holding

Berhad v. Mahkamah Perusahaan Malaysia & Satu Lagi [2020] 1 LNS 645 the
learned High Court Judge stated the following:

“[20] Mahkamah Persekutuan dalam kes Harianto Effendy Zakaria &

Ors v. Mahkamah Perusahaan Malaysia & Anor [2014] 4 ILR 241,
ada menjelaskan seperti berikut:

"[43] With regard to the appellants' contention that the courts below did
not take into consideration the fact that the appellants were all long
standing employees of the bank with no past records of disciplinary
problems, we agree with the appellants that this is one of the matters
that ought to be taken into consideration in deciding whether it was
reasonable to dismiss them or not. However, there is no fixed rule of
law to suggest that it was unreasonable to dismiss employees with
unblemished records for a single instance of insolence. It depends
on the nature of the misconduct. In this connection Lord Evershed MR
opined in Laws v. London Chronicle Ltd [1959] 2 All ER 285 at pp 287
and 288:

'It is clear and sound law that to justify dismissal for one act of
disobedience or misconduct it has to be of a grave and serious nature'.

Later he concluded, in the plaintiff's favour, that what she had done, or
not done, on June 20, 1958, was not sufficiently grave to justify
dismissal. With all respect to the learned judge, I think that his
proposition is not justified in the form in which he stated it. I think that is

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not right to say that one act of disobedience, to justify dismissal, must be
of a grave and serious character. I do, however, think (following the
passages which I have already cited) that one act of disobedience or
misconduct can justify dismissal only if it is of a nature which goes to
show (in effect) that the servant is repudiating the contract, or one of its
essential conditions; and for that reason, therefore, I think that one finds
in the passages which I have read that the disobedience must at least
have the quality that it is 'wilful'; it does (in other words) connote a
deliberate flouting of the essential contractual conditions."

[21] Selanjutnya, isu sama ada pemohon mengalami kerugian atau responden
kedua mendapat keuntungan bukan suatu yang relevan bagi kesalahan yang
dilakukan oleh responden kedua seperti dinyatakan di dalam pertuduhan-
pertuduhan yang dirujuk terdahulu. Jelasnya kesalahan responden kedua
adalah tidak mematuhi polisi dan prosedur pemohon serta penipuan
berhubung pembelian "Air Compressor" berkenaan. Sehubungan itu,
Mahkamah Perusahaan telah memberi penekanan yang tidak relevan dalam
keputusannya tersebut.

[120] In the present case, it is noted that the Company had adduced evidence to
counter the Claimants’ claim that they had unblemished records of service (see
pages 22 – 46 of COB9) in respect of CLW1, CLW2, CLW3, CLW5, CLW6 and
CLW7 where warning letters and show cause letters were issued for various
misconducts. This Court agrees with the case law abovementioned that there is no
fixed rule of law to suggest that it was unreasonable to dismiss employees with
unblemished records for a single instance of insolence. It depends on the nature of
the misconduct.

[121] Applying the case of Norizan Bakar above, the issue of whether it was
reasonable for the Company to dismiss the Claimant would depend on the
seriousness of the allegation of misconduct. The principle in that case is if the Court
is of the view that it was fair for the company to dismiss a claimant, then the
dismissal must be upheld as fair. The principle in the British Leyland Case is “If it
was quite reasonable to dismiss him then the dismissal must be upheld as fair; even
though some other employers may not have dismissed him.” These two principles
were similar in that would a reasonable company have retained the Claimant in the
circumstances of the case? It is noted that on the facts of that case too, the claimant
Norizan Bakar’s dismissal was upheld by the Federal Court due to the gravity of the

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misconduct committed which had destroyed the trust and confidence that the
company in that case would have placed on him.

[122] In the present case, it is evident from the facts that the Claimants had
committed the misconduct charged which fell under the category of serious
misconducts in the Company’s DTT Policy. It was all Claimants’ breach of the
Company’s rules and policies as stated in DTT-(2) 48 of the Dasar dan Tatacara
Tatatertib Policy. All of the Claimants admitted to signing the petition letter in order to
obtain the former Prime Minister’s support to oust COW5 from the Company in
Pekan, Pahang. COW6 stated that the Company could no longer maintain an
employee who had committed serious misconducts towards their superior who was a
very important member of the Company’s top management.

[123] In the case of Zainol Zakaria v. UEM Builders Berhad [2019] 2 LNS 2695,
where it was held by the Industrial Court that:

“The court is of the view that a person in a managerial role cannot

compare himself with a rank and file staff that acts upon instructions and
can therefore take refuge in not having been instructed or told. A person
in a managerial role is required to give his attention to the operation, to
exercise supervision and control over the same and to initiate preventive
or corrective steps as required securing the interest of the company.”.

[124] In the case of Tan Poh Thiam v. Nestle Products Sdn. Bhd. [2009] 9 CLJ
504 the High Court held that:

“[29] It cannot be denied that apart from competence and industry, honesty
and integrity are amongst the key characteristics that any employee should
possess, no matter what form of employment the employee is engaged in.
However, such characteristics assumed significant importance especially for
someone holding the position held by the applicant who was a senior employee
of the company….”.

[125] The Court finds that the principles in the cases above have been consistently
applied by the Industrial Court; where the employee’s conduct is incompatible with
the due or peaceful discharge of his or her duties, the employer has a right to dismiss
the employee. In the present case, the Claimants were employees in the Executive

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category and senior staff whom had been with the Company for a long time,
especially CLW1, CLW2 and CLW7 and CLW8. They were in managerial roles and
could not compare themselves with employees from the rank and file category such
as in the Shahrulazman Ming’s Case.

[126] The Claimants had referred to a case in the Industrial Court pertaining to an
employee of the Company, in the case of Mohamed Yaacob Bin Mamat [2019] 2
LNS 2882 wherein the said claimant won his case against the same company. He
was a Foreman in the Company and was dismissed on 30 June 2018 for a charge
under DTT2 (22) “Menghasut, menfitnah atau menyebarkan khabar angin sehingga
menjejaskan nama baik kakitangan atau nama baik syarikat”. The claimant averred
that the 30 January incident should be seen in a different light. It was averred that he
took 5-10 minutes to queue up and to pay for his food, out of the 20 minutes allocated
for his break time. He contended that there was no opportunity nor time to agitate or
influence other workers or to organise a meeting with co-workers to cause the
management to fall. The Chairman in that case allowed his claim and I am of the view
that that case could be distinguished on its facts. In the present case, the Claimants
admitted that they had signed the petition letter and the opportunity to commit the
misconduct was present as can be seen in the evidence of COW2 and COW3.

[127] In the case of Abdun Nasir Bin Muhammad v. Cyberview Sdn. Bhd. [2015]
2 LNS 1346, the facts in that case to a certain extent was similar to the present case
where the claimant had written and circulated a letter dated 8 August 2012 with the
title "Aduan Ketidakadilan dan Penganiayaan Yang Dilakukan oleh En. IR. Hafidz
Hashim, Pengarah Urusan Cyberview Sdn. Bhd. Terhadap Abdun Nasir Muhammad,
Pengurus Besar Pemasaran Cyberview Sdn. Bhd." to the Prime Minister and six (6)
other individuals who held ministerial and high ranks in the Government service. The
learned Chairman found the claimant guilty of the charge and stated:

“[28] It was not disputed that the said letter was written by the Claimant and
since the letter contained statements which the Company had found to be
baseless allegations, the court does not see how the word "finds" would not have
fitted the allegations stated in the show cause letter. At that juncture, that was
what the Company had found after conducting the investigations so it was for the
Claimant to answer to the allegations put forth against him. Instead, the Claimant

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had replied in the manner he had done and further circulating the reply letter to
those who were not part of the Company's management. The court is of the view
that the charges were not defective but had contained sufficient information for
the Claimant to know what he was alleged to have committed. Everything
revolved around the said letter and the violation of the Company's terms and
conditions of service. The Claimant was a senior member of the Company's
management and for him to deny that he was unaware of the Company's terms
and conditions of service is clearly unacceptable.
...

[35] In respect of the first charge, the Claimant in his reply to the Company was
basically saying it was not wrong for him to write to the Prime Minister, who was
also the Finance Minister, because the Minister of Finance Incorporated was the
majority shareholder of the Company. With respect, the court begs to disagree. In
respect of any grievance of an employee, it is not proper for the employee to write
to the shareholders. The Claimant could have written to the management and
even if the terms and conditions and the policy of the Company were silent, there
would have been nothing to bar the Claimant to write to the Chairman or the
Board of Directors of the Company and alleged that he had not been treated fairly
by COW2.
…

[40] … The Claimant had clearly betrayed the trust and confidence reposed on
him as he had conducted himself in a manner inconsistent with the faithful
discharge of his duty. Hence, the court agrees with the Company and holds the
view that the punishment of dismissal meted against the Claimant was
appropriate in view of the seriousness of the misconduct that had been
committed. The punishment of dismissal was warranted and the Claimant's
dismissal was for a just cause or excuse. The Claimant's claim is hereby
dismissed.”.

[128] As stated earlier, the Claimants alleged mala fide on the part of the Company
and it had victimized them through the actions of COW5. However, the Court is
unable to find any evidence to support the claim of mala fide, which is for the
Claimants to prove since they alleged it against the Company. In my opinion, COW5
may be strict in his management style but as employees, they must adhere to the
grievance procedures available. Otherwise, the Claimants’ indifference and
irresponsible attitude would set a bad example to subordinate employees in the
Company. I reiterate that on the totality of the evidence before it, the Court finds that
there was no malicious intention on the part of the Company in the manner it carried
out the PIP, the show cause letters, the DI and termination of employment. The

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Claimants may not have liked their superiors COW1 and COW5, but they cannot pick
and choose their bosses. As COW6 stated:

“The service of an employee in an organization is strictly determined by the

reciprocal rights and obligations between the employee and his employer. No
external party or force has any right to demand or execute anything therein,
otherwise it will cause mayhem. Therefore, the attempts (whether successful
or otherwise) to use external force to meddle in the affairs of the Company is a
serious offence and allowing this to take place would completely destroy the
trust and confidence the various stakeholders have on the Company and the
entire DRB-HICOM group.”

[129] When asked whether it would be possible to reinstate the Claimant to their
previous positions in the Company, COW6 replied that the allegation and findings of
guilt are viewed by the Company as grave misconducts. All Claimants have also
expressed their strong personal grievances with the management at the Company
thereby effectively severing any trust and confidence the Company has for them. He
said it is not possible to reinstate any of the Claimants to their previous positions.

[130] Moreover, the Claimants did not show the slightest remorse when they
admitted to signing the petition letter. The Claimants tried to justify their misconduct
with those reasons they had outlined against COW5 and COW1 and that the
allegation against them were in bad faith. However, the Court finds their reasons as
untenable. Whatever their grievance against COW5 and COW1, the Claimants must
follow the grievance procedures provided in the Company.

[131] As stated earlier, I have considered the well-written submissions and case
laws cited by both parties and I do not wish to elaborate in detail here on each and
every point of submission as the Court has made its finding of facts and applied the
principles in the case laws that have been cited above. Suffice to say that the Court
is unable to agree with the learned Claimants Counsel’s submissions and finds the
Claimants misconduct justified a dismissal on the charge in the Notice of DI. Their
disobedience towards the Company showed complete disregard of a condition
essential to the contract of service, “…namely the condition that the servant must
obey the proper orders of the master and that, unless he does so, the relationship is,
so to speak, struck at fundamentally”; Ngeow Voon Yean’s Case.

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[132] The Court is of the view that no reasonable employer would in this case have
retained the Claimants in its employment after being found guilty of the said charge,
regardless that they could have been given a warning instead. The Company had
lost its trust and confidence in the Claimants due to the serious nature of the
misconduct charged against them who were its very senior employees from the
Executives category. They formed the backbone of the Company and it was not a
suitable case for letting the Claimants off lightly with just a warning. Therefore, given
the circumstances of the misconducts charged upon all eight claimants and
the relevant facts of the case, I find that the decision to dismiss the Claimants
was reasonable and fair.

[133] In Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn. Bhd. [2010] 8
CLJ 629, it was held by the Federal Court that where the facts do not support the
conclusion arrived at by the Industrial Court, or where the findings of the Industrial
Court has been arrived at by taking into consideration irrelevant matters, and had
failed to consider relevant matters, such findings are always amenable to judicial
review. This Court in arriving at its decision has only considered relevant matters and
disregarded irrelevant matters and weighed the relevant evidence before it on the
balance of probabilities whether the dismissal was with just cause or excuse.

[134] I would note here the following observation in Dr. Ashgar Ali Ali Mohamad’s
book, Dismissal from Employment and the Remedies, Lexis Nexis Publication
2007, it was stated at page 14:

“The ‘right to work’ and ‘right in the work’ are two different concepts. The
former deals with the individual right to be employed, which is in conformity
with Article 23 of the Universal Declaration of Human rights 1948, which
provides that the ‘right to work’ is the natural right of every man to obtain
employment’, while the latter implies ‘proprietary right’ in employment. At
common law, there is no legally enforceable ‘right to work’. The House of
Lords in Allen v Flood [1898] AC 1 (HL) observed:

a man has no right to be employed by any particular employer, and has

no right to any particular employment if it depends on the will of
another.”
[Emphasis added]

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[135] In the circumstance, the Court finds the dismissal was warranted because the
Company could no longer repose the necessary trust and confidence in the Claimant.
Therefore, given the seriousness of the misconducts by the Claimants, the dismissal
was with just cause or excuse.

[136] This has been a long award but it is necessarily so in view of the complexities
and large volume of evidence adduced in this case.

Conclusion

[137] In conclusion, the Court finds, having considered all evidence available before
it and bearing in mind subsection 30(5) of the 1967 Act to act according to equity,
good conscience and the substantial merits of the case without regard to
technicalities and legal form, the Company has been able to prove on a balance of
probabilities that the dismissal of all the eight (8) Claimants were with just cause or
excuse. Accordingly, the Claimants’ claims are hereby dismissed.

HANDED DOWN AND DATED 7 OCTOBER 2021

-signed-

(NOOR RUWENA BINTI DATO' MOHD NURDIN)

CHAIRMAN
INDUSTRIAL COURT MALAYSIA
KUALA LUMPUR

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