INDUSTRIAL COURT OF MALAYSIA CASE NO: 9/4-143/15 BETWEEN SURAS RAYMOND A/L SANTHANASAMY AND ROBERT BOSCH (MALAYSIA) SDN. BHD. AWARD NO: 174 OF 2019 BEFORE : ¥.A. TUAN DOMNIC SELVAM GNANAPRAGASAM CHAIRMAN (Sitting Alone) VENUE i Industrial Court of Malaysia, Penang Branch. DATE OF REFERENCE : 09.01.2015, DATES OF MENTION : 10.03.2015; 10.04.2015; 11.05.2015; 01.06.2015; 01.07.2015; 30.07.2015; 21.10.2015; 03.05.2016; 20.06.2016; 17.10.2016; 15.02.2017; 25.07.2017; 04.01.2018; 06.06.2018 DATES OF HEARING: 24 04.2018; 29.06.2018; 27.08.2018 REPRESENTATION : Mr. V. Jeevaretnam (together with Mr R. Kumarappan) Messrs Jeeva Partnership Counsels for the Claimant Mr. Md Ismail Wahidin Consultant, Malaysian Employers Federation (MEF) Representative for the Respondent REFERENCE: This is a reference by the Honourable Minister of Human Resources under Section 20(3) of the Industrial Act 1967 dated on 9" of January 2015 arising out of the dismissal Suras Raymond afl Santhanasamy (hereinafter referred to as ‘the Claimant’) on 8" of August 2014 by Robert Bosch (Malaysia) Sdn. Bhd. (hereinafter referred to as ‘the Respondent,Awal This Award originates from a Ministerial Reference dated the 9” of January 2015 issued under Section 20(3) of the Industrial Relations Act 1967 (‘the Act’). This is a complaint by one Suras Raymond a/l Santhanasamy (hereinafter referred to as ‘the Claimant’) who complained that he was terminated without just cause from his employment by his employer Robert Bosch (Malaysia) Sdn. Bhd. (hereinafter referred to as ‘the Respondent’) with effect from 8" of August 2014. The hearing of this matter was completed on 27" of August 2018 after which the parties were directed to file written submissions. This Court now takes the opportunity to place on record herein its sincere appreciation to both the learned Counsels for the Claimant and the Respondent for their professionalism displayed in the conduct of this matter and their assistance to this Court. THE FACTS Claimant's Pleaded Case [1] The Claimant began his career with the Respondent beginning the 16” of April 2012 as a Senior Engineer (5 — IT). He was confirmed to his position some six months later. Pursuant to a letter dated 20" of March 2014, the Claimant's post was reclassified as a Senior Quality Engineer Il (PC 7.2) and had 22 subordinates working under him. [2] On 11 of July 2014, the Claimant was handed with a suspension and show- cause letter with 6 charges levelled against him; inter alia; for abuse of authority, conspiring with another staff to blackmail, extorting and bullying another staff.[3] The Claimant duly submitted a letter of explanation denying the charges categorically. Following the explanation, a Domestic Inquiry (Dl) was convened on 24* of July 2014 and 4" of August 2014 respectively. Consequent to the DI, the Claimant was issued with a letter informing him of the outcome of the DI wherein he was found guilty of 3 out of the 6 charges. He was terminated of his employment vide the same letter. Hence this complaint. The Law [4] tis trite law that where an employer gives reasons for terminating the employ- ment of his employee, it is incumbent upon the employer to justify the reasons. If these reasons are not proved, then the inevitable conclusion must be that the termination was without just cause or excuse. This principle of Industrial Law is laid down by his Lord- ship. Mr. Justice Raja Azlan Shah, CJ (Malaya) in the case of Goon Kwee Phoy v. J&P Coats (M) Bhd. (1981) 2 MLJ 129 at page 136 which reads as follows: "Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the court to determine whether the ter- mination or dismissal is with or without just cause or excuse. if the em- ployer chooses to give a reason for the action taken by him, the duty of the Industrial Court 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 be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into an- other reason not relied on by the employer or find one for it". [5] The onus of proving that the dismissal is with just cause or excuse lies on the em- ployer. It is the employer who must prove that the employee is guilty and it is not the employee who must prove himself innocent. To discharge the onus of proof the em- ployer must adduce cogent and concrete evidence, whether oral or documentary, to