THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 5/4 - 1546/05

BETWEEN

ENCIK SAIFUL NAFIS BIN SHARIFF

AND

AIRASIA SDN BHD

AWARD NO: 2239 OF 2007

Before : TUAN CHEW SOO HO - CHAIRMAN

Venue : The Industrial Court of Malaysia, Kuala Lumpur

Date of Reference : 14.9.2005

Dates of Mention : 6.1.2006, 6.3.2006, 5.5.2006, 10.7.2006, 14.9.2006, 15.12.2006, 28.6.2007 & 18.7.2007

Dates of Hearing : 17.1.2007, 20.3.2007, 28.3.2007 & 17.4.2007

Representations : Encik Mahadi b. Muhammad of Messrs Mahadi Redzuan & Co., Solicitors for the Claimant

: Encik Ahmad Nazery b. Shamsudin and Miss YH Teh of Messrs YH Teh & Quek, Solicitors for the Respondent

Reference :

This is a reference by the Honourable the Minister of Human Resources

Malaysia under Section 20 (3) of the Industrial Relations Act 1967 arising out of

the dismissal of Encik Saiful Nafis bin Shariff, (hereinafter known as “the

Claimant”) by AirAsia Sdn. Bhd., (hereinafter known as “the Respondent”).

1

AWARD

Facts of the Case

Claimant commenced his employment with the Respondent on 10 December

1999 as a Cashier with a salary of RM966.00 per month. Effective from 13

December 2000, Claimant was confirmed as Senior Account Clerk with an

increase in his salary to the sum of RM1,034.00. At the time of his dismissal,

Claimant alleged his average income inclusive of allowances was RM1,800.00 per

month.

Vide its letter to show cause dated 6 February 2003 issued to the Claimant, the

Respondent alleged that the Claimant had failed to attend work without approval

from his supervisor for 7 dates stated therein for which Claimant had replied vide

his letter dated 17 February 2003. The Respondent quite apparently not being

satisfied with the Claimant’s explanation, issued him with a notice of domestic

inquiry dated 25 February 2003. In this notice of domestic inquiry, the allegation

of charge is that Claimant had, without approval from his supervisor, failed to

attend work on 10 dates as listed therein. The domestic inquiry was scheduled

on 12 March 2003 at 10.00 a.m. at the AirAsia Corporate Office at Level 4 of the

Main Terminal Building of KLIA but the Claimant failed to attend the said inquiry.

The inquiry panel then unanimously found the Claimant guilty of the said charge.

2

Claimant alleged that he did not attend the domestic inquiry because the

Respondent had changed the venue of the inquiry where he was notified via SMS

during the night of 11 March 2003. Claimant explained that on the dates in the

allegation of charge except 15 and 20 January 2003, he was on duty in the

Markas Logistik Tentera Darat Malaysia at Jalan Padang Tembak, Kuala Lumpur;

on 15 January 2003, he was on emergency leave as his father-in-law was

seriously ill in Kuala Kubu Bharu and for 20 January 2003, there was a confusion

as to the replacement holiday for Thaipusam but averred that he was also on

emergency leave. Claimant denied that he had committed any misconduct and

contended that his dismissal was, inter alia without just cause or excuse. He

therefore prayed for reinstatement with full backwages.

The Issue

The sole issue before this Court is whether the Claimant was dismissed with or

without just cause or excuse.

The Law

In OP Malhotra’s The Law of Industrial Disputes Volume II Sixth Edn.2004 at

page 1135, on the issue of absence without leave, the learned author had said of

the following:

3

“An employee is under an obligation not to absent himself from work

without good cause during the time at which he is required to be at work

by the terms of his contract of service. Absence without leave is

misconduct in industrial employment warranting disciplinary punishment.

Even if the workman is not absent from the employer’s business premises,

his absence from the specific place of duty where he is required to be,

without permission, would also constitute an act of misconduct.

Therefore, the absence of an employee from duty, if it amounts to

misconduct inconsistent with faithful discharge of his duties, would

constitute good cause for his dismissal.”

For dismissal cases, the burden is on the employer to prove the misconduct of

the employee for which he was dismissed on a standard of probability; see

Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002]

3 CLJ 314

Evaluation & Findings

A D.I. was scheduled and conducted on the 12 March 2003 in the absence of the

Claimant who was notified of the change of venue at the eleven hour of the date

of D.I.; he was notified via SMS on the night of 11 March 2003. The Respondent

had contended that the new venue at AirAsia Corporate Office at Lot N1 Level 4

4

Main Terminal Building of the KL International Airport was still within the airport

premises which the Claimant was aware of but he chose not to attend the said

D.I. Whatever may be the reason or contention of the parties, it has to be borne

in mind that one of the main functions and purposes of conducting a D.I. is to

enable an employee the opportunity to be heard before a panel of impartial

members and to challenge his accuser of the misconduct alleged against him in

consonant with the principles of natural justice. The fact of the instant case is

that the panel had proceeded with the findings of the guilt of the Claimant

without rendering him the opportunity to be heard; their respective decision can

be seen in the individual panel member’s report COB p. 14-16 and the report of

the chairman of the panel of inquiry in COB p. 17-18. No inquiry notes were

tendered to show that the D.I. panel had heard the evidence produced by the

Respondent though COW1 Miss Ling Siew Lee stated in her Witness Statement

that in the D.I. she was asked as to the complaint of the Claimant’s absence

from work without permission and there was no record to show that those

evidence, if any, had been recorded to indicate that the Respondent had proved

its case before D.I. panel before they made their respective decision whether

individually or collectively. This Court cannot thus hold that the D.I. panel had

arrived at a just decision basing on evidence without the note or record to show

that evidence was produced before them. On account of the fact that the

Claimant was not heard in the D.I. and the fact that no evidence had been

shown to have been produced before the panel members of the D.I. before they

5

made their decisions of finding the Claimant guilty of the charge, this Court will

have to hold that the D.I. held against the Claimant on 12 March 2003 is not

valid; see Bumiputra Commerce Bank Bhd v. Mahkamah Perusahaan Malaysia &

Anor [2004] 7 CLJ 77. Nevertheless, in Ngeow Voon Yean v. Sungei Wang Plaza

Sdn Bhd & Anor [2004] 1 CLJ 8, the Court of Appeal held, inter alia, that:-

“[3] A defective domestic inquiry, or even the absence of one, is not fatal

to a dismissal which is otherwise not bad. Hence, the admittedly

unsatisfactory domestic inquiry in the instant case did not play a

pivotal role in determining the legality of the claimant’s dismissal

by the company.”

Claimant was dismissed from his employment with the Respondent on account of

his absence from work without permission from his supervisor as per the charge

in the notice of domestic inquiry (D.I.)/ COB p. 11 and in the charge sheet during

the D.I. as in COB p. 13. The charge leveled against him reads as follows:

“Anda didapati tidak hadir bekerja tanpa kebenaran dari penyelia anda

terlebih dahulu pada tarikh-tarikh seperti berikut:

(1) 2 Januari 2003

(2) 3 Januari 2003

6

(3) 7 Januari 2003

(4) 15 Januari 2003

(5) 17 Januari 2003

(6) 20 Januari 2003

(7) 23 Januari 2003

(8) 11 Februari 2003

(9) 13 Februari 2003

(10) 14 Februari 2003”

Since this is the reason that the Respondent chooses for the action taken, the

duty of this Court will be to enquire whether that excuse or reason has or has

not been made out. If this Court finds as a fact that it has not been proved,

then the inevitable conclusion must be that the termination or dismissal was

without just cause or excuse; see Goon Kwee Phoy v. J & P Coats (M) Sdn Bhd

[1981] 2 MLJ 129 FC.

The ingredient of the charge above is that without the prior approval from his

supervisor or superior, Claimant was found to be absent from work on those

dates listed above. The main contention of the parties herein is that the

Respondent alleged that the Claimant had not sought prior approval from his

supervisor for his absence from work whereas the Claimant asserted that he was

on duty attending to invoices in relation to collection of arrears owed by the

7

Armed Forces Malaysia (ATM) at the Armed Forces Logistic Department at Jalan

Padang Tembak, Kuala Lumpur on all those dates except 15 and 20 January

2003 and that there was no requirement that he should obtain prior approval

from his supervisor before going for duty there as he was instructed to do so by

the Chief Financial Officer, Raja Mohd Azmi Raja Razali and the Director of

Corporate Communication, Abdul Naseer Abu Kassim to focus his duty on ATM to

resolve the payments problems. Claimant also stated that he had nevertheless

informed other colleagues of his attendance to work at ATM Logistics

Department.

According to COW1, Miss Ling Siew Lee, the Respondent’s Senior Account

Executive at the material time, Claimant’s duties, among others, were to attend

to matters relating to ATM ie to prepare billing and collection for flight services

used by the staff of ATM, to compile documents relating to payments, dates of

the payments made, total collection and other related matters. On attendance,

COW1 emphasized that Claimant was required to inform her being the Claimant’s

supervisor or superior and to obtain her permission before Claimant went out to

any place to do the collection as there was no necessity for a staff to go out of

office at all time because some of these duties could be done via telephone, e-

mail, fax or correspondence as in the case of Claimant’s successor after

Claimant’s dismissal. Claimant’s movements had also to be reported to her

especially when Claimant was attending work outside office; this was in the

8

event of any accident and other incidents. COW1 asserted that Claimant had

failed to inform her of his whereabout and failed to obtain her permission to

carry out work outside office and that would be construed as missing from the

office during working hours or did not attend to work without approval from her.

In addition, the failure of the Claimant to inform COW1 or the Account Division

Manager would be an act of insubordination. COW1 herself had met with the

Claimant several times after Claimant had been often missing from the office and

advised him that he had to inform her in advance on each occasion that he could

not come to office or wherever he wanted to go. Warnings and reminders were

also given to Claimant who was further informed that his act was an offence

against discipline. In spite of that, Claimant did not change his attitude. Hence,

the matter was reported to the Account Division Manager and the Chief Financial

Officer, Raja Mohd Azmi Raja Razali (COW2). On 9 September 2002, COW2 had

issued the Claimant with a memo (COB p.5) reminding the Claimant that he was

to report to his superior in the event he was absent from work by 9.30 a.m.

Despite this memo, Claimant continued to behave the same without informing

COW1 where he went or where he was and was missing from office during

working hours. Further advice was given on several occasions thereafter but the

Claimant did not change. Claimant was found to be absent without prior

permission for the respective dates in January 2003 as listed in the charge.

Claimant at one point in time seemed to suggest that tacit consent from COW2

and another was given to him to be at ATM to carry out his duties and to focus

9

on the collection from ATM and that he reported directly to them. However,

COW2 said very clearly that Claimant’s line of reporting was to the Assistant

Manager, Finance whom COW1 was subsequently and Miss Sharon Yong, the

Manager, Finance Division who was the Head of Department; Claimant was told

that he had to comply with all instructions and report directly to his immediate

superior, the Assistant Manager who would report to the Manager, Finance and

the Manager, Finance would in turn report to COW2. Hence, Claimant was not

required to report directly to COW2 though COW2 had the overall supervisory

power over all staff in the Finance Division. COW2 asserted that at the material

time, Claimant was required to report to COW1. COW2 had also personally

informed the Claimant to whom he had to report to and who would supervise

Claimant’s work and duties that had been entrusted to him. By COW2’s evidence

in this respect, this Court finds that the contention or the impression cast by the

Claimant that he probably reported directly to COW2 without the necessity to

report to COW1 as his immediate superior and that he could go to ATM as and

when he liked to perform his duties there without having to obtain prior approval

from COW1 or the his Manager, is being refuted. COW2 stated that the

Respondent had issued Claimant with a letter to show cause vide COB p.7 and

Claimant vide his letter of reply dated 17 February 2003 (COB p.9-10) admitted

that he did not convey his absence from office to COW1 as follows:

10

“Seingat saya setiap kali ‘hilang pada waktu pejabat’, saya akan pasti

melaporkan pergerakan saya kepada teman pejabat yang bagi saya boleh

menyampaikan kepada si penyelia tadi. Yang menjadikan perkara ini

rumit adalah kerana saya tidak menyampaikan ketidakhadiran saya

melaluinya sahaja.”

COW2 further emphasized that it was the company policy that all rules of the

Respondent had to be complied with by all employees. To enforce discipline,

wherever Claimant would want to go, he had to obtain prior permission from his

superior or from the Manager Finance Division; this was also considered a

direction from a superior officer to officers or staff junior to him or her which had

to be complied with by the junior officers or staff. He confirmed the dates of the

Claimant’s absence from work without prior approval as stated in the Charge

Sheet COB p.13. Although COW2 endorsed that he had given instruction to the

Claimant to attend to the arrears of unsettled bills by ATM, his instruction was

still subject to the Claimant having to obtain permission from his superior. In

other words, although Claimant might have to go to ATM, he was still required to

inform his superior and at the same time to obtain her approval to carry out his

duties out of office. On the justification for the Claimant’s dismissal, COW2

confirmed that he being the Chief Financial Officer and Chief Executive Officer of

the Respondent had the jurisdiction to dismiss any employee but the Director of

Corporate Communication had not had that jurisdiction; he had personally given

11

the Claimant warning for several times to change his attitude and to comply with

company policy to report where he went and where he was at the working time

to his superior. Claimant had, however, failed to change and repeated his

mistake or misconduct despite the fact that he had been also given reminders

and warning by COW1 but such misconduct was recurring. Hence, COW2 had

no choice but was compelled to dismiss the Claimant. COW2 denied that he had

ever promised the Claimant any commission or bonus for the successful

collection of the outstanding bills from ATM.

Claimant explained that on 2, 3, 7, 17 and 23 January 2003 and 11, 13 and 14

February 2003, he was on duty at ATM Logistics Camp in Jalan Padang Tembak,

Kuala Lumpur to attend to invoices relating to outstanding payments from ATM

which were due to the Respondent for aircraft rental. For that purposes, ATM

had provided him with a room to carry out his duties there. He averred that on

the above dates, he had informed the other staff of his duties at ATM because he

was assigned by COW2 and the Director of Corporate Communication to focus

his duties on ATM to settle the payment problems and complaints raised by ATM.

Claimant claimed that he had on several occasions tried to contact Miss Sharon

Yong (Manager Finance) at about 8.30 a.m. to inform her of his duties at ATM

but his calls were often not answered by her. When these occurred, Claimant

would inform other staff of his attendance at ATM. Claimant also produced letter

CLB p.61-62 from Mejar Razali bin Nasir to confirm that he was working at ATM

12

on 2, 3, 7,17 and 23 January 2003 and a letter CLB p.59 from Kapten Azman bin

Che Mohd Salleh dated 13 February 2003 to the effect that he was often at 673

Kem Transit, Kor Perkhidmatan Di Raja, Jalan Ampang, Kuala Lumpur to check

on the name lists of the ATM passengers who had taken the flights. A further

letter from Mejar Hamim Zairin bin Hj Hamzah dated 13 February 2003 vide CLB

p.60 also certified Claimant’s presence at the ATM Logistics Camp in relation to

his work and for the month of January 2003, his attendance was more often

because of several financial matters and payments for the 2002 year end

account for the Respondent. Claimant said that he had been attending to ATM

outstanding bills collection matters since 2002 and produced CLB p.5-15, 18, 21-

29, 36-48 and 50 to establish his assignment and the duties he had performed

there or relating thereto, inter alia. He further produced his applications for

visiting pass and the visit passes issued to him by the ATM Logistics Camp vide

CLB p.16, 17, 19, 20, 30-32, 34-35, 51 and 58. For the date 15 January 2003,

one of the dates listed in the charge, Claimant explained that he had to take

emergency leave because his father-in-law was seriously ill in Kuala Kubu Bharu,

Selangor. He said he had informed the other staff in the Respondent and or his

superior Miss Sharon Yong. As regards the date 20 January 2003 in the charge,

Claimant said he took for granted that it was a public holiday. Thaipusam fell on

18 January 2003 on the third Saturday of the month. Claimant said he

anticipated the Respondent to declare 20 January 2003 (Monday) as replacement

holiday but it was at the eleven hour that the Respondent issued a memo that

13

Thaipusam was a working day and not a public holiday. There was a

misunderstanding between himself and the Respondent over this public holiday.

Accordingly to Claimant, the Respondent’s policy or procedure for application of

leave was that he needed to submit his application 14 days before the day of the

leave applied for. However, he would not obtain a reply until the date of his

leave. Thus, Claimant took for granted that his leave had been approved by the

Respondent.

From the evidence above-mentioned, it is clear evidence that there is no dispute

as to the dates that Claimant was alleged to be absent from work or that he was

not in the office during working hours as stated in the charge. What the

Claimant had contended was that he had informed other staff in the Finance

Division of his duties at the ATM Logistics Camp. He had apparently abandoned

his contention that it was COW2 and the Director of Corporate Communication

who had purportedly given him the tacit approval to be at ATM without having to

seek prior permission from his immediate superior. In the light of COW2’s

evidence, undoubtedly, Claimant had to shift his version. He said he had called

Miss Sharon Yong, Manager Finance Division to inform the same but she

apparently did not answer her hand phone. Miss Sharon was not called as a

witness. From the Claimants evidence recapitulated, it was said that Claimant

had called his Manager Finance, Miss Sharon Yong on those dates in the charge

in January 2003 as stated by him at about 8.30 a.m. but Miss Sharon Yong did

14

not answer the calls. Throughout his evidence in chief, he had never mentioned

that he had ever called COW1 to inform her of his attendance to work at ATM

nor sought her permission. However, from the Claimant’s cross-examination on

COW1, it was suggested to her that Claimant had communicated with her but

not Miss Sharon Yong at 8.30 a.m. in December 2002 to January 2003 to inform

her that he was at the ATM Camp but COW1 did not answer her hand phone. To

this Court, Claimant’s version of the event had itself raised a doubt whether he

had attempted to inform, in particular, Miss Sharon Yong at 8.30 a.m. in January

or as his cross-examination on COW1 that he had attempted to inform COW1 at

8.30 a.m. in January 2003 since December 2002 was not relevant to the charge

in his case or that he had attempted to inform both or none of them. His version

of having called to inform his superiors was put in suspect. Further, Claimant

had also claimed that he had informed other colleagues in the Finance Division of

his out of office duties or when he was working at ATM Camp. However, this

Court finds that such facts of his defence was never put to the Respondent’s

witnesses in challenge of their evidence that Claimant had indeed informed the

other colleagues in the Finance Division to, in turn inform either the Manager or

COW1 of his whereabout. In Sivalingam Periasamy a/l Periasamy & Anor [1995]

3 MLJ 395, the Court of Appeal referred with approval the passage from the case

of Browne v. Dunn [1893] 6 R 67 at page 400 of the following:

15

“It is essential that a party’s case be expressly put to his opponent’s

material witnesses when they are under cross-examination. A failure in

this respect may be treated as an abandonment of the pleaded case and if

a party, in the absence of valid reasons, refrains from doing so, then he

may be barred from raising it in argument. It is quite wrong to think that

this rule is confined to the trial of criminal causes. It applied with equal

force in the trials of civil causes as well.”

It is pertinent to the Claimant’s defence of the charge if he had informed his

colleagues to notify COW1 or the Manager of his duties in the ATM Camp and if

they had done so on his behalf without COW1 and/or the Manager Finance

raising any objection, then it would be a complete defence for the Claimant that

he had received tacit consent from either COW1 and/or his Manager through the

colleagues that he had informed. However, this does not seem to be so.

Claimant had in fact not named any of his colleagues in the Finance Division

whom he had so informed nor call anyone of them to be his witness to verify

that he had so informed them and or that they had notified COW1 or the

Manager of what the Claimant had indeed informed them. This Court finds that

Claimant had merely paid lip service that he had informed his colleagues in his

department without even naming which of the colleagues that he had so called.

For these reasons, on the balance of probability, this Court finds it difficult to

accept this aspect of the Claimant’s evidence. The crux of the charge is that he

16

had failed to obtain prior approval or permission from his superior. Claimant had

not shown that he had prior approval or permission. He seemed to suggest that

permission was granted by COW2 when Claimant was instructed to focus on

collection of payment from ATM. But, with the evidence of COW2 that that did

not constitute prior approval or permission to waive Claimant’s need to obtain his

superior’s approval, Claimant’s contention would have no basis. Claimant had

tendered and referred the visit passes issued to him upon his applications but

upon a scrutiny of these visit passes and his applications, it is sad to say that

none of them had reference to the relevant dates as spelt out in the charge and

thus they are irrelevant in so far as the charge is concerned. Consequently, this

Court holds that the Respondent had proved on a balance of probability that the

Claimant had failed to obtain his superior’s prior approval or permission before

he left for duties outside his office even if this Court were to accept that he

might be at the ATM Camp vide CLB p.59-62 and therefore Claimant was

deemed to have been absent from work without prior approval on the dates

except 15 and 20 January 2003 as stated in the charge when he was not granted

the approval or permission to be out of the office.

In respect of Claimant’s absence from work on 15 January 2003, Claimant

explained that he was on emergency leave and that he had informed his

colleague of the same presumably anticipating the latter to inform the superior

or Manager. It has to be borne in mind that the granting or refusal of leave is

17

the absolute discretion of the employer depending on the exigency of service of

the particular employee at a particular time. An employee cannot claim that his

leave is automatically approved once he has tendered his leave application.

Hence, the onus is on the employee to ascertain the approval of his leave

application before he goes on leave on the dates he has applied. Claimant in our

instant case wanted an emergency leave on ground that his father-in-law was

seriously ill. It would only be appropriate and sensible for him to speak to his

superior officer or Manager or whosoever who had the authority to grant him

leave or to approve his leave for that particular day of emergency bearing in

mind that he had to have the approval before he could go on leave. This Court

could not see any reason why Claimant failed to get the approval of COW1 or his

Manager Finance to approve his emergency leave on this 15 January 2003 before

he went on leave. He took the risk by merely informing his colleague without

any confirmation later of the approval before he went on leave. The act of the

Claimant in not seeking prior approval before he went on emergency leave only

goes to show his indifference towards the rules and regulations of the

Respondent that he had to comply with. Article 17 and in particular 17.3 of the

Respondent’s terms and conditions of service (COB p.33-34) had prescribed the

mode of application for leave. Emergency leave may differ slightly. Be that as it

may, Claimant had not informed this Court which colleague of his that he had

informed of this intended emergency leave nor did he call this colleague as a

witness. He had also not tendered or applied that the Respondent tendered his

18

leave application form for that day if he had in actual fact applied for such a

leave. It is an accepted practice that if an employee could not turn up for work

for emergency reason, his leave application could be submitted on the day that

he came back to work after the said leave. Nevertheless, the oral approval from

the superior officer must be obtained in advance before Claimant could claim

that he was on emergency leave. There was no approval granted for this date.

Thus, this Court finds that Claimant’s claim that he was purportedly on approved

emergency leave on 15 January 2003 is a bare assertion in the absence of any

proof to that effect and Claimant, in the absence of any evidence that his

emergency leave application had been approved by any of his superior officers

who were authorized by the Respondent to approve his leave, is absent without

leave. Claimant alleged that his father-in-law was seriously ill which necessitated

him to apply for an emergency leave. Nevertheless, he did not produce any

evidence to indicate that his reason was not mere allegation but a fact which

substantiated his leave application. E-mail of COW1 in COB p.6 was a complaint

or a notification to the Respondent’s Legal Adviser of the days that the Claimant

was absent citing 15 and 20 January 2003 to be among the dates that Claimant

did not turn up for work. This does not show the approval of these two dates to

be the emergency leave of the Claimant. Had there been an approval, 15 and 23

January 2003 would not have been included as the days that Claimant did not

turn up for work. On a balance of probability, this Court holds that Claimant was

absent without his leave being approved by the Respondent.

19

As regards the Claimant’s absence on 20 January 2003, it was an admitted that

Claimant did not report for work on that day as according to him, there was

a confusion as to whether 20 January 2003 was a replacement holiday for

Thaipusam which fell on 18 January 2003 which was a non-working Saturday.

Again, as stated earlier and reiterated herein, the onus is on the Claimant as an

employee to ascertain in advance whether a day is or is not a holiday before he

enjoys the day off even though the Respondent may declare or not declare that

day to be a holiday or a replacement holiday. No employee can have the right to

assume any day to be a holiday or replacement holiday. Claimant for that matter

could have easily call the office or his Human Resource Department or its officers

to seek confirmation whether 20 January 2003 was a replacement holiday.

There is, therefore no question of any confusion or misunderstanding as raised

by the Claimant. Anyway, Claimant claimed that he was on emergency leave on

that day and that he had informed his colleague about it. Again, he did not call

directly to COW1 or the Manager of his department or even COW2 to seek prior

approval orally before he took the day off. Claimant merely informed his

colleague and assumed his application would automatically or definitely be

approved when there is no such term and condition in his contract of service to

express so. Such indifferent attitude is unbecoming and a clear violation of

discipline. Claimant had submitted that vide e-mail from COW1 to the

Respondent’s Legal Adviser Charles Chow Chon Jin (COB p.6), the Respondent

was aware that the Claimant was on emergency leave on 15 and 20 January

20

2003 and it was unfair to take disciplinary action against him for his absence.

However, this Court wishes to emphasize again that approval or refusal of leave

application is the prerogative of the employer and it is not as a matter of right of

the Claimant that any of his leave application must be approved even though he

is entitled to have annual leave. There is no approval granted in the instant

case; Claimant merely assumed that his application for emergency leave would

have been approved without he himself ascertaining the approval before he went

on emergency leave. He took the risk and must face the consequences that he

would be construed as being absent if no approval was granted as in this case.

On the balance of probability, this Court holds that the Claimant was absent

without leave or without prior approval from his superior on 20 January 2003.

On the charge as a whole, this Court finds, on a balance of probability, that the

Respondent had proved the charge against the Claimant that he was absent

without prior approval or permission from his superior on the dates as listed in

the charge above quoted which is a misconduct

On the ensuing issue whether the Claimant’s dismissal was with or without just

cause or excuse, evidence of COW1 and COW2 showed that they had

respectively advised, reminded or warned the Claimant of his lackadaisical

attitude pertaining to attendance and the need to inform his superior before he

left for work outside the office. COW2 had even issued a memo to that effect as

in COB p.5. Claimant was adamant and turned a deaf ear to all the advice,

21

reminders or warnings and continued to do as he liked on his attendance

repeating his absence from office without prior permission from his immediate

superior. It is an open challenge to the discipline and tolerance of the

Respondent. COW2 in deciding to dismiss the Claimant had asserted that the

Respondent had no choice but to dismiss the Claimant because of his repeated

misconduct in spite of the numerous advice, reminders and or warnings having

been given to him. This Court is of the view that any reasonable employer as

the Respondent would, in the circumstances of this case, have reacted as the

Respondent to dismiss the Claimant; see Taylor v. Parsons Peebles Ltd [1981]

IRLR 119. This Court finds no reason to disagree with the Respondent with its

action against the Claimant who did not heed any form of advice, reminders and

or warnings and hence, it could only be reasonably inferred that he was not

interested in his employment with the Respondent. In equity, good conscience

and the substantial merits of this case, this Court holds that the Claimant’s

dismissal is therefore with just cause or excuse.

Consequently, Claimant’s claim is hereby dismissed.

HANDED DOWN AND DATED THIS 31 OF OCTOBER 2007

(CHEW SOO HO) CHAIRMAN

INDUSTRIAL COURT MALAYSIA KUALA LUMPUR

22