INDUSTRIAL COURT MALAYSIA. CASE NO. 16/4-502/14 BETWEEN WONG CHEN FENG AND WONDERFUL COMPOUND SDN. BHD. AWARD Ni 331 OF YEAR 2017 BEFORE : YA. TUAN DUNCAN SIKODOL Chairman (sitting alone) VENUE : Industrial Court of Malaysia, Johor DATE OF REFERENCE: 25.06.2014. DATES OF MENTION : 12.08.2014; 02.09.2014; 08.10.2014; 22.12.2014; 26.01.2015; 25.02.2015; 03.03.2015; 16.03.2015; 14.04.2015; 06.05.2015; 26.05.2015; 17.06.2015; 27.08.2015; 13.10.2015; 11.04.2016. DATES OF HEARING : 20.11.2014; 03.12.2014; 10.12.2014; 23.02.2016; 26.10.2016; 28.11.2016. REPRESENTATION i Mr. M. Kalaichelvan From Messrs Abd Halim Ushah & Associates Counsel for the Claimant. Mr. Mathews George From Messrs Mathews George & Co Counsel for the Respondent.REFERENCE: This is a reference by the Honourable Minister of Human Resources under Section 20(3) of the Industrial Relations Act 1967 ("the Act") arising out of the dismissal of WONG CHEN FENG (hereinafter referred to as “the Claimant’) by WONDERFUL COMPOUND SDN. BHD. (herein referred to as “the Company”) on the 14" November 2013. AWARD Brief Background Facts 1. The Claimant commenced employment with Wonderful Wire & Cable Berhad (WWCEB) on the 3” August 2009 as a Sales Executive with a basic monthly salary of RM1650.00. He was confirmed in his position by a letter dated the 26" March 2010 with an increase in salary to RM1900.00 and subsequently by a letter dated 22% March 2011, he was promoted to become the Sales Administration Manager with a monthly salary of RM3000.00 with effect from 1 March 2011. Following the setting up of a new Company ( Respondent Company), WWCB through a memo dated the 1* February 2011, informed all its customers that the Respondent Company would be taking over the business of WWCB and that all purchase orders are to be issued to the Company. 2, By a letter dated the 25" May 2012, the Claimant was transferred from WWCB to the Company with effect from 1“ June 2012 under the same terms and conditions of service. And by a letter dated the 30" July 2012, the Claimant's salary was increased to RM6000.00. 3. On the 11” October 2012, the Company issued a show cause letter to the Claimant alleging the Claimant's failure to disclose his interest in a Company known as Tutto Engineering Supply Sdn. Bhd. and that he has been supplying raw materials to 2the Company without the Company's approval. Dissatisfied with the Claimant's reply, the Company via notice dated 11" November 2013, directed the Claimant to attend a domestic inquiry (D1) on the 14" November 2013 with the following charges; 1. That the Claimant as the Sales Administration Manager of the Company had secretly, deliberately and/or failed to inform the Company that he was a Director and majority shareholder of Tutto Engineering Sdn. Bhd. which supplied PVC compound to the Company at a price higher than the market price. 2. That the Claimant had failed to inform the Company about the “conflict of interest’ and had deceived the Company to buy PVC compound from Tutto and obtained secret profits, thereby causing the Company to owe Tutto and / or incur losses of RM709,543.00. 4. During the DI, the Claimant was found guilty and was dismissed with effect from the 14” November 2013 vide letter dated the same. The Claimant now contends that his dismissal by the Company was without just cause or excuse. He contends that he did not commit the misconduct as charged. He therefore seeks to be reinstated to his former position or be given compensation in lieu of reinstatement. The Law 5. Inthe often cited case of MILAN AUTO SDN BHD v WONG SHE YEN (1995) 4 CLJ 449, the duty of the Industrial Court in dismissal cases on a reference under s. 20 was stated by His Lordship Mohd Azmi FCJ as follows; .."As pointed out by this Court recently in Wong Yuen Hock v Hong Leong Assurance (1995) 3 CLJ 344, the function of the Industrial in dismissal cases on a reference under s. 20 is twofold: first, to determine whether the misconduct complained by theemployer has been established and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal”. 6. tis trite law that the Company bears the burden to prove that the claimant had committed the alleged misconduct and the conduct warrants the Claimant's dismissal. See Ireka Construction Bhd v Chantiravanathan a/l Subramaniam James (1995) 2 ILR 11 (Award No. 245 of 1995). The Company needs only to prove misconduct justifying the dismissal or termination on the balance of probabilities. See Telekom Malaysia Kawasan Utara v Krishnan Kutty a/l Sanguni & Anor (2002) 3 CLU 314, (CA). 7. The Company in this case has in the letter of dismissal dated 14" November 2013 (COB 50) stated that the Claimant was dismissed for the reason that he was found to have concealed his interest in a Company known as Tutto Engineering Supply Sdn. Bhd. which has been supplying raw materials without the approval of the Company. This Court therefore has to determine whether the Company has made out its case, itnesses 8. The Company called 2 witnesses to establish its case. The Claimant on the other hand called 3 witnesses. The following are the witnesses who testified at the hearing of this case; COW1- — Chan Chang Choy and her witness statement was marked as COWS-1 COW2- Lilian Low and her witness statement was marked as COWS-2 CLW1 - Fam Hong Chiang and his witness statement was marked as CLWS-1. CLW2- Wong Chen Feng and his witness statement was marked as CLW-2 CLW3 - Wong Ah Piaw and his witness statement was marked as CLWS-3. 49. The following bundle of documents and Exhibits were also used in court and marked as follows; Bundles of Documents Company's Bundle of Documents COB, Company's Supplementary Bundles of Documents 1 (COB1), Company's Supplementary Bundles of Documents 2 (COB2), Claimant's Bundle of Documents (CLB), Claimant's Supplementary Bundles of Documents 1 (CLB1). Issues for determination 10. In this case, it is an undisputed fact that the Claimant was dismissed by the Company on the 14" November 2013. Based on Colgate Palmolive (M) Sdn Bhd v Yap Kok Foong & Another Appeal (2001) 3 CLJ 9, it now remains to be considered whether the dismissal was with just cause or excuse. Since the Company had conducted a DI prior to the Claimant's dismissal, it is therefore necessary to examine whether the Company had complied with the rules of natural justice when it conducted the DI. Whether the DI held by the Company against the Claimant was valid? 11. Its trite law that where a DI had been conducted, the court should first consider whether or not the DI was valid and whether the DI notes are accurate. See Bumiputra Commerce Bank Bhd v Mahkamah Perusahaan Malaysia & Anor (2004) 7 CLJ77. 12, The Claimant in paragraph 22 of the statement of case alleged that the finding of guilt by the DI panel is perverse as the panel was made up of members from outside the Company and closely connected to and/or associated with the said Chan 5Chang Choy (COW1). 13. I have carefully scrutinized the notes of proceedings given at the domestic inquiry and this Court is satisfied that natural justice had indeed been compromised The allegation by the Claimant in respect of the composition of the DI panel was indeed true as admitted by Chan Chang Choy in cross examination, In Skypak International Sdn. Bhd and Foong Kah Tin (Award 161 of 1987) the Industrial Court stated as follows; “In gist, the principles of natural justice in the context of a disciplinary inquiry maybe stated as follows;” 1. That the workman whose conduct or misconduct is being inquired into must have reasonable notice of the case he has to meet. 2. That he must have a reasonable opportunity of being heard in his own defence according to the maxim audi alteram partem and this includes inter alia, the opportunity to face and challenge his accusers, witnesses and whatever evidence there is against him and 3. That the hearing must be held before an impartial tribunal. i.e.A person who is neither directly nor indirectly a party to the case. 14, Here, by COW1's own admission of CLW2's allegation, there has indeed been a blatant miscarriage of justice. In the circumstances, this Court is therefore satisfied that the DI that was conducted against the Claimant was flawed for breach of the rule of natural justice and thus unsafe for this Court to rely on. 615. Given that the DI is flawed, this Court shall therefore rely on the Court of Appeal's decision in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals (1997) 1 CLJ 665 and proceed to hear the evidence of all the witnesses for both sides and determine whether the Claimant's dismissal was with just cause or excuse. Whether the dismissal of the Claimant was with just cause or excuse? Company's case 16. The Company's main witness was Chan Chang Choy (COW1), the General Manager of the Company as well as its Director, the other one being Wong Ah Piaw ( CLW3), the Claimant's father. 17. It was the evidence of COW1 that when the Claimant joined WWCB in 2009, there was no disclosure in his Application for Employment that he was one of the Director and major shareholder of Tutto Engineering Supply Sdn Bhd since 2003. According to COW1, Tutto at the material time was not the supplier of raw materials (PVC Compound) to WWCB but only a customer purchasing cables from WWCB until WWCB was taken over by the Company in 2012. 18. COW1 went on to say that sometime in 2013, he was informed by a supplier associate that Tutto belongs to Wong Ah Piaw’s son. As a result, COW1 said, he then instructed the Accounts Deparment to give him the past record of transaction of Tutto with the Company for his perusal. It was then according to COW1 that he found out that the Company owed Tutto a sum of RM709,543.00 as of 12.7.2013 and that Tutto had started to supply PVC Compound to the Company as early as August 2012, after the Company had taken over the business operations from WWCB. He also said that he conducted a Company search on the 16.8.2013 at SSM and the search result revealed that the Claimant was one of the Director and major shareholder of Tutto,holding almost 84% of the shares in Tutto since 2003. COW/ went on to state further that he then arranged for a meeting with Wong Ah Piaw and the Claimant and inquired about this matter but the Claimant told him that there was nothing wrong with Tutto supplying raw materials to the Company with an intention to obtain profits. Being dissatisfied with the Claimant's answer, he said, he then lodged a police report on the 110.2013. 19, COW1 also alleged that after he suspended the Claimant, Wong Ah Piaw refused to cooperate with him in the Company's daily management and operation of the Company resulting in a 3° party taking legal action against the Company in Johore Bahru High Court and the Company's productions had to stop due to Wong Ah Piaw's refusal to sign cheques to pay suppliers. He went on to say that as a result of the deadlock, he was then compelled to file an action in JB High Court and amongst others applied for an appointment of Manager to run the daily operations of the Company. However, before the trial was heard, the Company according to him was wound up on the 19.03.2013 by a supplier for outstanding payments. 20. COW1 also went on to say that pending the suspension of the Claimant, he did conduct investigation and it was revealed to him that Tutto has sold raw material to the Company at a sum which was 100% higher than those other suppliers. He also said that Tutto has also unlawfully utilised one of the Company's assets ie a factory known as No.8 Jalan Bayu 2/6, Taman Perindustrian Tampoi Jaya, 81200 Johor Bahru as its office. 21. Following the findings, COW1 said that the Company then issued the Claimant a show cause letter and the Claimant replied the said show cause letter vide letter dated 17.10.2013. However, the Claimant's reply to the show cause letter according to COW1 was unsatisfactory as he failed to explain his failure to declare his interest in Tutto and his conflict of interest position which was detrimental to the Company. Hence, a DI was conducted.22. The Company's 2” witness was M/s Lilian Low, the Secretary of Wonderful Compound Sdn Bhd. According to her, she was invited by the Company to sit as a panel member in a DI held against the Claimant on the 14.11.2015. She said that the findings of the panel in respect of the charges against the Claimant are as follows; 1. Non Declaration of interest. Guilty 2. Pricing above Lack Evidence Market value 3. Try to conceal Guilty related party transaction 4. Incur loss to Company Lack Evidence 5. Conflict of Interest Guilty 23, She went on to say that the panel found the Claimant guilty of the charges against him because it was clear from the evidence tendered that the Claimant had failed to disclose to the Company his position of interest with Tutto Engineering Supply Sdn Bhd during his 4 years with the Company, which benefited him directly or indirectly. She also said that the Claimant did not appear to the panel members as being forth right with his answers and was evasive. 24. However, when asked where was it stated in the Letter of Appointment dated 25.5.2012 that the Claimant must declare his interest in any other Company, COW2 replied “Cant say". | derived the conclusion based on the fact that his father was a Director of the Company and there was no declaration of interest by related party, the Claimant’. She further said “.. he did not declare that his father has an interest in the Company, WCSB and by that has got an interest in any transaction or dealings....infringement of Companies Act not Letter of Appointment.” 25. When asked whether she was referring to the Application Form dated 03.08.2009 from WWCB, she replied that she did not see the Application Form from WWCB. She also admitted in cross examination that she was not aware that WWCB was taken over by WCSB. She was also not able to show in cross examination as to 9where it was stated in the Letter of Appointment at pages 18-27 of COB that there was a need for the Claimant to make a declaration if he was a supplier/customer. 26. As to the panel's recommendation on the punishment for the Claimant, she said ‘our recommendation was as follows: “Dismissal of the Claimant as Sales Admin Manager, refer to Application for Employment dated 03.08.2009 under Section H and Category 3(a) ' did not declare as suppliers/customer’s and section 1 ( Declaration) ‘is found that | have made false declaration on the form, the Company reserves the right to terminate my services’. Claimant's case 27. The Claimant's first witness was Fam Hong Chiang (CLW1) who was the Factory Manager of Metro Wire & Cable Sdn Bhd at the material time. He said he started his employment with WWCB sometime in 1989 as a Supervisor and later promoted to the position of Production Manager. As production manager, his duties amongst others were to arrange production schedule according to manufacturing order from planning department, make sure all the order from sales department can be completed on time, deal with purchasing department, planning department and quality control department to ensure all orders can be completed and to arrange trial run for new product design by the Director Mr Wong Ah Piaw ( CLW3) and new market and/or customer developed by sales department. 28. According to CLW1, in 2010, CLW1 designed and created a new formula technology with regards to the raw materials used for manufacture of cables. He also said that it was common knowledge amongst the management staff including COW1 that the Claimant was a Director and shareholder of a Company called Tutto Engineering Supply Sdn Bhd (TESSB).29. When asked whose decision was it to buy or get the supply of the raw materials ( PVC Compound) from TESSB and who fixed the purchase price, he said it was Jointly decided by Lee Fat Choy ( Advisor to MD) and Wong Ah Piaw (CLW3). After all, it was Wong Ah Piaw who designed or created the new formula and since WWCB benefited from it, WWCB agreed to buy the raw materials from the Claimant at the agreed price. He also said that the PVC Compound supplied by TESSB was of high quality, special grade and a unique formula where no other suppliers could match. 30. In February 2011, when the Respondent Company consisting of COW1 and Wong Ah Piaw as shareholders of equal shares and as Directors took over the business of WWCB, the Company continue to buy the PVC Compound from TESSB until October 2013, where he said COW1 asked them to stop purchasing the said compound from Tutto and sourced other suppliers from China. But unfortunately the Company could not deliver the finished products on time. Further, the finished products were defective and could not be delivered to their customers thus creating a lot of problems and losses to the Company. COW1 according to CLW1 had no choice but to instruct them to use the balance of the stock supplied by Tutto. As to whether COW‘ have full knowledge of the fact that, the Claimant is the son of Wong Ah Piaw, CLW1 said yes. 31. According to the Claimant ( CLW2), he was the Director of TESSB since 2003 and WWCB had been dealing with TESSB since 2001 purely on a commercial necessity. He also said that COW1 did not raise any objections as he was happy that the Company was making substantial profits from the sale of products manufactured from raw material supplied by TESSB. 32. By aletter dated 25.05.2012, CLW2 said that he was transferred from WWCB to the Company under the same terms and conditions as in the previous Company. He also said that when he was transferred to the Company, he was not given any declaration form to sign or require to declare his interest in any other Company. He ulalso said that the Company was not undergoing any losses at the material time and the Company's performance improved tremendously because of the PVC compound, and from August 2012 onwards, the Company's sales revenue increased from RM 1 million to RM2.5 million. 33. As to the police report lodged by COW1 against him, the Claimant said the Police never took any action against him. Instead, he said the police had referred the matter to SSM and subsequently upon inquiries made by him, SSM told him verbally that there was no offence committed by him or TESSB and that the Company's allegation of conflict of interest is a non issue. 34, Because of the high quality and special grade of the PVC compound supplied by TESSB, Wong Ah Piaw (CLW3) confirmed that the decision to purchase the said material from TESSB at RM15.00 was made by Lee Fatt Choy who is the Advisor to the MD and himself and that it was a purely commercial decision. He also confirmed that he had authorized his son, CLW2's Company TESSB to market the material created by him and that COW1 had no objection to it and also had agreed to the price. It was also common knowledge according to him that all the staffs including COW1 who was only a manager that CLW2 was involved in TESSB. At times, he also said that even the purchasing manager of WWCB used to forward the purchase orders to TESSB through his son 36. In early 2011, WWCB according to CLW3 was going through some financial problems. So he and COW1 formed the Respondent Company where both of them have equal shares and were Directors of the Company as well. He said, he assumed the role of MD and was in charge of the entire operation of the Company including Purchasing and Production whereas the said COW1 was appointed as the GM and was in charge of Human Resource Department and Marketing and Sales Department. COW! also reports to him directly. By memo dated 01.02.2011, he said WWCB notified all its customers that the Company would be taking over the business of 2WWCB and that all purchase orders were to be issued to the Company. The employees of WWCB were also transferred to the Company. 36. CLW3 also confirmed that the Respondent Company continued to purchase PVC Compound from TESSB at the same agreed price and that that the Company's sales revenue increase. Subsequently, a dispute between him and COW1 on various issues affecting the Company arose. He said COW then attempted to oust him and take control of the management of the Company. He said COW told him either he leaves the Company voluntarily or he will initiate voluntary winding up proceedings of the Company. In fact, according to CLW3, COW1 was continuously absent for 4 days in early October, 2013 and refused to sign cheques for payment to suppliers. He said COW1 even removed cheques from the Company. 37. He went on to say that when COW1 did not get his son's support to take over the management of the Company, he then schemed a plan to get rid of his son from the Company by issuing a show cause letter to him for failing to declare his interest in TESSB, Evaluation and Findings 38. In Goon Kwee Phoy v J&P Costs (M) Bhd (1981) Raja Azian Shah CJ Malaya as he then was stated that “ if the employer chooses to give reason for the action taken by him, the duty of the IC will be to enquire whether that excuse or reason has or has not been made out. If it 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. The proper inquiry of the Court is the reason advanced by it and that the Court or the High Court cannot go into another reason not relied on by the employer or find one for it”Based on the above pronouncement, | shall now consider whether the Company has on a balance of probability proven its case against the Claimant. 39. According to the Letter of Termination dated 14.11.2013, the Company's reasons for termination of the Claimant's employment was as follows: 1. That the DI on the 14.11.2013 found that the Claimant had secretly, deliberately and/or failed to inform the Company that he was the Director and majority shareholder of Tutto Engineering Sdn Bhd, which supplied PVC Compound at a price higher than the market price 2. That the Claimant's action in not informing the Company about the “conflict of interest" and trying to deceive the Company to buy the PVC Compound from Tutto and the Claimant's intention to obtain secret profit had caused the Company to owe Tutto Engineering Sdn Bhd and /or incur losses of RM709,543.00. 40. In respect of the 1* charge, according to COW2, the DI panel's recommendation to the Company for dismissal of the Claimant's employment was allegedly based on the invoices from Tutto dated 12.04.2012 and 20.03.2013 respectively, the SSM profile Of Tutto and the lack of declaration by the Claimant of his interest in Tutto. However, since those invoices from Tutto was not even in existence at the time the Claimant joined WWCB and signed the Application for Employment form dated 3.8.2009, how can it be relied upon by the panel in determining whether the Claimant was guilty of misconduct. Thus, if the Claimant's dismissal was based on a false declaration made by the Claimant on the application for employment form dated 03.08.2009 as alleged, than that document where the false declaration was made should have been produced before the panel and sought the Claimant's clarification. This was however not done as admitted by COW2 when she said, she cannot even remember whether the 14Prosecutor referred to the said Application Form and sought clarification from the Claimant. In fact COW2 stated that she did not see or recall seeing this Application Form from WWCB. 41, Thus, since there was no requirement on the part of the Claimant in his Letter of Appointment to declare his interest in any Company as confirmed by COW1 himself, how can the Claimant be accused of deliberately failing to inform the Company of the same. Further, under the terms and conditions of Employment, Schedule 2 states that “non declaration of interest’ is not an offence. As such, this Court finds that the Company has not proven that the Claimant deliberately failed to inform the Company of his interest in Tutto Engineering. 42. In respect of the 2™ charge, this Court also finds that the Company has not proven its case based on the following findings; 1. The allegation of conflict of interest against the Claimant was not an offence under Schedule 2 of the Letter of Appointment and did not warrant any disciplinary action. COW1 admitted that he merely followed the recommendation of the DI to dismiss the Claimant although conflict of interest was not an offence. 2. The Claimant cannot be faulted or said to have put himself in a conflict of interest situation as it was the decision of CLW3, acting on behalf of the Company to purchase the PVC compound from Tutto with the blessings and consent of COW1. Such consent and blessings of COW1 can be deduced from COW's own evidence when he testified in cross examination that Mr Wong Ah Piaw (CLW3) was in charge of purchasing raw materials and production and it was CLW3's responsibility to decide where to buy the PVC Compound in the best interest of the Company. He even went on Isto testify that it was CLW3's job and he doesn't question him at all. COW''s claim that he did not know that the Company purchased the PVC compound from Tutto therefore cannot be believed as. being a Director as well as General Manager of the Company in charge of Marketing, Sales and Admin, how can he claim not to be in the know. Further, it was confirmed by CLW3 in examination in chief and supported by CLW/1 that it was common knowledge amongst the management including COW1 and staffs of WWCB and later the Company that the Claimant was the son of CLW3 and that he was. involved in Tutto and that the Company purchased the PVC Compound from Tutto out of commercial necessity as the raw material were of high quality, special grade and unique formula In fact CLW1 testified that no other suppliers could match the raw materials supplied by TESSB. CLW1 even said that when they were instructed by COW/1 to stop purchasing the compound from TESSB, COW1 then sourced for other suppliers from China but the products were defective and of low quality resulting in losses for the Company. Due to that CLW1 said that COW1 instructed them to use the balance stock from Tutto to manufacture finished products. That the Company suffered loss as a result of the Claimant's misconduct is not proven as based on the Company's Liquidator's Management Accounts ending 31-1-2014, the Company even made a profit of RM2,252,801. There was also no evidence that the purchase price of PVC compound from Tutto was much higher than the market price and this was confirmed by the DI panel. 16Even if the Claimant had committed misconduct in that he failed to disclose his interest in Tutto when he joined WWCB, but the Company by allowing Tutto to continue supplying PVC compound to the Company had condoned his action such that the Company cannot after such condonation go back on its election to condone and claim a right to dismiss the Claimant. This was stated clearly by the High Court in Sungai Wangi Estate v Uni (1975) 1 MLJ 136 had stated as follows: “vnudmisconduct is deemed condoned where an election is made to retain an employee guilty of misconduct even if, at that time, the employee has falsely denied the misconduct as long as the denial is known to be false or the employer does not care whether it is true or not because the employee is too valuable to dismiss. Although it was only after 1 month before the employer took action to dismiss the Claimant after realising his misconduct, nevertheless such time taken in the view of this Court is unreasonable as the facts shows that COW1 knew about the Claimant's interest in Tutto since 2003 when he conducted a search at SSM on the 16.8.2013. However, he went on to contradict himself by saying that sometime in September 2013, he was informed by a supplier associate about the Claimant's interest in Tutto. And it was only on the 11-10-2013 that he issued a show cause letter to the Claimant. He could have issued the show cause letter upon his discovery of the Claimant's interest at SSM. But he waited and tried to resolve his dispute in the Company with CLWS. This shows that the conflict of interest issue is never the reason for the Claimant's dismissal. 17Conclusion 43. In the final analysis, based on the totality of evidence adduced by both parties as well as submissions made and also having regards to equity and good conscience as well as substantial merits of the case without regard to technicalities and legal form as stated in s. 30(5) IRA, this court finds that the Claimant's dismissal was without just cause or excuse. The termination is now rendered unjust and unlawful. Accordingly, the Claimant's claim is hereby allowed. Hence | shall now examine the remedy. Remedy 44, Based on the Court's assessment of the industrial climate between the parties, it is certainly not conducive to reinstate the Claimant as the relationship between the Company and the Claimant has been badly strained. In the circumstances, it is inappropriate to order the remedy of reinstatement. Instead, the Claimant will be awarded compensation under 2 heads namely, back wages and compensation in lieu of reinstatement. Back wages 45. Back wages is calculated based on the Claimant's last drawn salary but limited to 24 months. See Court practice Note 1 of 1987. From the back wages, the Court is required to make a deduction for any contributory conduct; post dismissal earnings and delay in the hearing of the case but such a deduction need not involve a mathematical calculation. See Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Sdn Bhd (Sabah) & Anor (2001) 3 CLJ 541. a. Contributory Factor | have carefully examined the facts and evidence in this case and | am of the view that 18there is no contributory factor on the part of the Claimant in allegation against him. Hence, under this item, no deduction shall be made. b. Delay From an examination of the notes of proceedings, | noticed that the Claimant did not occasion any delay in connection with the hearing of this ministerial reference. Hence, there is also no deduction down under this head. ¢. Gainful employment At the time of dismissal, the Claimant's last drawn salary was RM6000.00. According to the Claimant, after his service was terminated, he was self employed earning about, RM3000.00 - RM4000.00 a month. In considering the amount of back wages to be awarded in this case, the Court takes note of the decision in Dr James Alfred case (supra). Hence, | am of the considered opinion that a scaling down of 20% for post, dismissal earnings is appropriate in the circumstances. 46. In conclusion, | hereby hand down to the Claimant a monetary Award in the total sum of RM151,200.00 in lieu of reinstatement, which is arrived as follows: a. Back wages from the date of dismissal (14.11.2013) to the last date of hearing (28.11.2016) but limited to 24 months minus 20% RMRM6,000.00 x 24 - 20% RM 115,200.00 b. Compensation of one month's salary for each completed year of service. In this case, evidence was adduced that the Claimant started his employment with on the 26.8.2009 until his employment was terminated on the 14.11.2013. RM6,000.00 x4 RM24,000.00c. Salary for November 2013 ( 2 weeks) RM 3000.00 d. Payment in lieu of notice of termination (6 weeks salary) RM 9000.00 TOTAL RM151,200.00 It is further ordered that the Company shall pay the total amount of RM151,200.00 to the Claimant subject to statutory deductions if any, through the Claimant's Solicitor’s firm of Tetuan Abdul Halim Ushah & Associates within 30 days from the date of this Award. HANDED DOWN AND DATED THIS 2"°DAY OF MAY 2017. ( DUNGAN $yKOD HAMA INDUSTRIAL COURT MALAYSIA JOHOR 20