INDUSTRIAL COURT OF MALAYSIA

CASE NO: 13(25)(5)/4-886/13

BETWEEN

MOHD LUKMAN SHAMSUDDIN & 9 OTHERS

AND
SYARIKAT PRASARANA NEGARA BERHAD / RANGKAIAN PENGANGKUTAN
INTEGRASI DERAS SDN BHD
AWARD NO: 1146 OF 2019

BEFORE : DATO' TAN GHEE PHAIK – CHAIRMAN

VENUE : Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE 27.3.2013

:
DATES OF MENTION : 22.05.13; 22.07.13; 22.08.13; 27.09.13; 30.10.13;
29.11.13; 24.01.14; 26.02.14; 25.03.14; 25.04.14;
30.04.14; 08.05.14; 30.09.14; 30.10.14; 28.11.14;
21.10.15; 18.11.15; 04.03.16; 05.04.16; 19.04.16.

DATES OF HEARING : 17.05.16; 18.05.16; 01.09.16; 07.09.16; 15.11.16;

16.11.16;17.11.16; 13.03.17; 27.03.17; 12.09.17;
02.10.17; 16.11.17.
:
REPRESENTATION Mr. Varathan Panner Selvam
Malaysian Trades Union Congress
Representative for 5 Claimants

Lt Kol (B) Hj Mohd Akhir bin Hj Hamzah

Malaysian Employers’ Federation.
Representative for the Claimant

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 AWARD
Background
[1] This is a reference by the Honourable Minister of Human Resources

under Section 20(3) of the Industrial Relations Act 1967 (Act 177) ('IRA')

on 27.3.2013 to the Industrial Court arising out of the dismissal of ten (10)

Claimants on 18.9.2012, 22.10.2012 and 23.10.2012 and was received

by the Court on 15.4.2013. However, only five (5) Claimants (hereinafter

collectively referred to as “the Claimants”) pursued their claims and filed

their Statement of Case (“SOC”) in the Industrial Court against Syarikat

Prasarana Negara Berhad (hereinafter referred to as 'the Respondent').

[2] The Claimants’ case is that they have all been unfairly and unjustly

dismissed from their employment. All the Claimants are seeking

reinstatement to their previous employment. The issue before the Court

is whether the Respondent has proven on a balance of probability that it

was fair and just to dismiss all the Claimants in view of their misconduct

as set out in the Charges preferred against them. And if the Respondent

fails to satisfy that burden of proving that it had acted with just cause or

excuse in dismissing them, then the Court shall either reinstate them to

their previous employment or order compensation to be duly paid to them

in lieu of reinstatement.

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[3] All the 10 Claimants have been charged with misconduct and were

found to be guilty of some or all of the Charges preferred against them

after a Domestic Inquiry (“DI”) was carried out. Only the 5 Claimants listed

below proceeded with the hearing before the Court.

(a) Claimant number 4 is Faizuly Shah bin Yahya (“C4”). He was a bus
driver and was dismissed on 18.9.2012.

(b) Claimant number 6 is Muhammad Faiz bin Mohd Rashid (“C6”). He

was also a bus driver and was dismissed on 22.10.2012.

(c) Claimant number 8 is Maani bin Madjan (“C8”). He was also a bus
driver and was dismissed on 23.10.2012.

(d) Claimant number 9 is Ahzam bin Baharom (“C9”). He was also a

bus driver and was dismissed on 23.10.2012.

(e) Claimant number 10 is Yusoff bin Bavajee (“C10”). He was also a

bus driver and was dismissed on 22.10.2012.

[4] As the other 5 claimants did not proceed with the hearing, their

claims were struck out on 21.10.2015. At the hearing, the representative

for the Respondent informed the Court that the Respondent will only be

proceeding with the Charges involving the fraudulent use of the Password

and ID of the Enforcement Officer by the name of Zaiful Bin Idris (“COW6”)

and the Maintenance Technician, Nor Hisam Bin Mohamad Bazin

(“COW2”). The other Charges of misappropriation of the bus fares

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collected involving the wrongful printing out of fabricated waybills by the

Claimants and then fraudulently submitting only the amounts stated in the

fabricated waybills to the Respondent instead of submitting the total

amount of bus fares actually collected as recorded by Respondent’s Data

Central Recording System (CDCRS), were dropped from the hearing in

Court.

[5] The CDCRS is managed by the Fare Collection System Department

(FCSD). The Head of Department of FCSD was the late Encik Aminza

Bin Abdul Aziz (“COW4”) who was one of the witnesses who testified on

behalf of the Respondent in this case. The Court was fortunate to hear

his testimony despite the many adjournments that happened in this case

for various reasons. Shortly after he gave his evidence in Court, the Court

was informed that he had passed away in the Holy City of Mecca (May he

rest in peace) where he was assigned by the Respondent to work as its

IT Specialist for the Ticketing System of the Al Mashaaeer Al Mugaddasah

Metro Line of Mecca Saudi Arabia.

[6] The data in the CDCRS is co-owned by the Information Technology

(IT) Department and FCSD. COW1, Pn Sallizatul Azra Binti Razali was

the Assistant Vice President of the IT Department (“AVP IT”) at the

4
material time till to date. The Audit Trail Data plus other related relevant

data were printed and presented in the Company’s Bundles of Documents

(“COB1” to “COB9”) and were explained by her in her oral testimony in

Court and in her Witness Statement, (“COWS1”) and in her written

statement in answer to cross examination, marked as “COWS1a”. Both

COW1 and COW4 testified at the hearing based on the data from the

CDCRS in the said documents.

[7] COW3 is En Muhar Khairuddin. His witness statement is marked

as COWS3. Apart from his testimony in COWS3, he was asked further

supplementary questions during the hearing. COW3 was referred to

photographs at p 17 COB9. According to COW3, the photo shows the

location of the machines in all the Respondent’s buses. He testified that

the Respondent has 2 types of machines in all their buses, either the KDE

machines shown on p17 COB9 or the IRIS machine shown on p18 COB9.

Photo 2 in p17 and p18 COB9 show the location of the machine which is

exactly (directly) facing the driver. When a passenger boards the bus, the

passenger will drop their fare into the coin box and the driver will punch

the ticket for the passenger. The busses are one-man operated busses.

5
[8] Photo 3 in P17 and p 18 of COB9 show the position of the machines,

vis a vis the driver and the enforcement officer who will board the bus to

check on the driver and the passengers. COW3 explained that when an

enforcement officer boards the bus, the enforcement officer will have to

go close to the driver because the ticketing machine is facing the driver.

Thus, according to COW3, as in Photo 3 if the enforcement officer were

to punch in his password and ID, the chances are very high that the bus

drivers will see the entering of the password and will be able to obtain the

password of the enforcement officer. The Court is able to accept the

testimony of COW3 that the bus driver can obtain the password of the

enforcement officer due to the very close proximity between the driver and

the ticketing machine especially if the enforcement officer does not ensure

that the bus driver looks away when he is keying in his ID and password.

Claimant No 4 (“C4”): Faizuly Shah bin Yahya

[9] In his testimony, COW3 stated that maintenance of the bus will not

be done to the bus whilst it is on the road. Maintenance on the bus will

only be carried out when the bus is in the bus depot. However, the data

from the CDCRS shows that the password and ID of the maintenance

technician was used during the time when the buses were on the move

during the trips made by the Claimants. In his testimony, the Technician,

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En Nor Hisam bin Mohamad Bazin (“COW2”) stated that he was not aware

that his password and ID were being used by the Claimants until he was

told to attend a Domestic Inquiry (DI). In his witness statement marked

as COWS2, his answer to Q11 is that the bus drivers will be around him

watching him carry out maintenance work to the ticketing machines in the

depot and so they will be able to get to know his ID and password.

[10] In cross examination, COW2 testified that he will only log once in

the mornings when the drivers ask him to change the time and date on

the Ticketing machine on their buses and that he will not log in several

times per trip as what had happened. Moreover, he testified that the Bus

Route on which his ID and password had been used is not where he is

assigned to work.

[11] When he was asked why and what benefit the bus drivers will get if

they get to know his ID and password, his answer to Q8 in COWS2 is as

follows:

“ID dan Kata Laluan juga boleh digunakan untuk mengubah masa dan
tarikh yang direkod dalam mesin tiket bas. Misalnya, pemandu apabila
tamat tugas antara jam 8.00 pagi hingga jam 1.00 tengah hari dan
kutipan tambang sebenarnya berjumlah RM500.00 boleh dengan
menggunakan ID dan Kata Laluan menukar semula masa kepada jam

7
 8.00 pagi hingga jam 1.00 tengah hari dan mengeluarkan tiket untuk
jangka masa tersebut hingga menunjukkan jumlah kutipan yang kurang;
misalnya RM100.00. Ini bermakna dia boleh tidak menyerahkan
sebanyak RM400.00”.

[12] In cross examination, when it was put to COW2 that he was the one

who had keyed in the password and ID himself when he carried out the

maintenance work on the bus WBP 3247 on 12.7.2011 for C4, COW2

denied and did not agree. His reply is that at rows 10 and 11 COB8 at p

175 on 12.7.2011, he was working at Depot Cheras and not at the Depot

PD3. Therefore he could not have been the one to key in the password

and ID for PD3.

[13] Again at rows 15 and 16 p175 COB8, at 7.03 and 7.04 on 12.7.2011

involving the same driver who is C4, COW2 did not agree that he was

working at that place at that time. The same for rows 21 and 22, 28 and

29, 32 and 33, 37 and 38, 41 and 42, 52 and 53, 58 and 59, 68 and 69,

76 and 77 on 12.7.2011 in COB8. COW2 also denied that he carried out

maintenance on 13.7.2011 and 15.7.2011 in respect of the bus driven by

C4 because the maintenance records showed that the maintenance was

carried out in another depot and not in the depot where COW2 was

stationed at. COW2 further testified that he will not be logging into the

8
system to do maintenance for the same bus several times a day and at

most, he will only log in once in the mornings only.

[14] COW4 went through each and every row of the data printed out from

the CDCRS in respect of the wrong doing committed by the 5 Claimants.

The timeline of C4 using the ID and password of COW2 and COW6 is as

shown in p1-p3 of COW9. In COWS1a, COW1 had similarly shown that

on 12.7.2011, C4 had used the ID and password of COW2 for 22 times.

The record of the log in time is tabulated in Table 1 of COWS1a. The full

details are shown in the pages indicated in the columns in COB1, COB8

and COB9. Table 2 of COWS1a shows the use of the password and ID

belonging to COW6 who was the assistant enforcement officer at that time

for as many as 9 times on 12.7.2011.

[15] On 13.7.2011, C4 used COW2’s ID and password to access the

Ticketing Machine 11 times and he used the ID and password of COW6

as well as shown in Tables 3 and 4 of COWS1a respectively. Then again

on 15.7.2011, C4 made use of the ID and password of COW2 and COW6

to access and make changes to the Ticketing Machine that was under his

control. According to COW4, the password and ID were used to make

changes to the Ticketing Machine to show the amount collected on the

9
bus route was less than the amount actually collected in the Ticketing

Machine.

[16] According to the CDCRS records, the actual waybill from the

Ticketing Machine shows that a higher amount was collected. However,

by using the ID and password of COW2 and COW6, C4 and the other

Claimants were able to make changes to the Ticketing Machine and to

print another waybill which indicates that a lower sum had been collected.

The waybill with the lower sum is then handed over to the Respondent

together with the lesser amount of cash collected. The changes made to

the waybills usually result in a difference of about RM100 plus on each

occasion.

[17] For example, in column H p1 of COB9, C4 should have submitted a

waybill of RM346.80 and handed over the sum of RM346.80 to the

Respondent but because of the tampering done to the actual waybill by

using the ID and password of COW2 and COW6, C4 was able to produce

a fictitious waybill for the sum of RM201.70 and C4 only handed in the

sum of RM201.70 to the Respondent. The CDCRS shows 2 waybills, one

for the sum of RM346.80 and another one for RM201.70 but C4 is

10
unaware of that and he only submitted the waybill for RM201.70. This has

caused the accounts of the Respondent to become haywire.

[18] COW4 pointed out many other incidents of tampering showing that

C4 has used the password and ID of COW2 and COW6 to change the

transaction time in issuing tickets to passengers in the bus he is driving.

Pages 9-15 COB9 shows every ticket transaction that was issued on

15.7.2011. On p16 COB9, COW4 pointed out that the time 13.26 pm has

been changed to 5.50 am, the serial number of the ticket is continuous

and keeps going up even though the time has been changed because the

ticket number cannot be manipulated. Further at 8.20 am, all the 9 tickets

were issued within less than 2 minutes for trip number 4. According to

COW4, this is an impossibility because the shortest journey time will be

half an hour and not 2 minutes. Moreover, 8.20 am is peak time and

therefore, it is not possible for all the tickets to be issued in less than 2

minutes and as if a single trip can be completed in 2 minutes. .

[19] All the other instances where C4 has used the password and ID of

either COW2 or COW6 to fraudulently change the time and the amount of

fares collected are set out in detail in Table 3 to Table 6 of COWS1a.

COW1 explained in detail each transaction with cross references to

11
COB1, COB8 and COB9 when she gave her testimony in Court. The

Court does not intend to set out her evidence in totality except to state that

the Court has noted all the evidence adduced regarding all the instances

of misconduct complained of by the Respondent and the Court finds that

all the Charges of misconduct against C4 have been proven on a balance

of probability by the Respondent and the Court is satisfied that C4 has

carried out acts of dishonesty, which if not explained, will give the

Respondent just cause and excuse to dismiss him. The Court will deal

with the explanations given by C4 and all the other Claimants collectively

as all the Claimants have all given the same answer for the Charges

against them.

Claimant No 6 (C6): Muhammad Faiz bin Mohd Rashid

[19] The dates and timeline of C6 using the ID and password of COW6

is shown in p4-p5 of COW9. In her testimony and her witness statement

in COWS1a, at Table 7 – Table 21, COW1 has identified the number of

times C6 has used the password and ID of COW6 to access and make

changes to the Ticketing Machine even when COW6 had not been on duty

on the bus route that C6 is driving or when COW6 had been on annual

leave.

12
[20] As stated by the Respondent in its written submission at p16, C6

had logged-in using the ID of COW6 at 23.29.06 pm on 28.4.2011 as

shown in Table 7 even though no inspection was carried out by COW6 on

this date and at this time, on the bus driven C6. The Respondent

extracted the relevant data from the CDCRS and printed out “Data Pada

Waybill Inspektor Bus Enforcement” and adduced the data at p23 COB2.

It was recorded that the bus was not inspected on 28.4.2011. Hence, the

ID of COW6 should not have appeared on the waybill of C6 for 28.4.2011.

In Row 4, Column G, of COB9, it can be seen that COW6 was using his

own ID on a different Bus Route which is U411 at 11:23:43 pm and not on

the Bus Route of C6 which is U43.

[21] Another misconduct committed by C6 is on the date of 29th April

2011. There was a log-in using the ID and password of COW6 at the Bus

Route U43 at 07:40 am from the bus that C6 was driving on that day at

that time. See column E and F at p4 of COB9. It is noted in column G

that the ID and password of COW6 was also used at Bus Route U30 at

07:33 am and Bus Route U22 at 07:50 am. According to COW1, the

Ticketing Machine in Bus No WQA 647 driven by C6 is under the control

and responsibility of C6 and whatever that is keyed into the Ticketing

Machine will be captured by the CDCRS as shown in the Tables. Thus,

13
as there were no inspections carried out by COW6 on Bus Route U43,

COW6 did not use his password on Bus Route U43 which was under the

authority and control of C6, it behoves C6 to offer the Court a plausible

explanation as to why the password and ID of COW6 came to be used in

the Ticketing Machine that is under his control.

[22] COW4 testified in Court that the purpose of using the ID and

Password of COW6 is to deprive the Respondent of monies rightfully

belonging to the Respondent. C6 had used the ID and password of COW6

to find out the amount of fares collected and registered in the Ticketing

Machine during the trip. C6 had then adjusted the time and amount

collected in the Ticketing Machine to produce a fabricated waybill so that

he can submit an amount that is very close to the amount stated in the

fabricated waybill when in actual fact, he is duty bound to submit the full

amount collected in the Ticketing Machine to the Respondent without the

benefit of knowing the amount registered in the original waybill. COW4

referred to p189 COB8 in the last 2 columns where the amount stated in

the waybill and the amount collected is almost always the same to show

proof of the unlawful use of the ID and password of COW6 by C6.

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[23] According to COW4, the same pattern is used throughout for all the

other misconduct perpetrated by C6. In his reply to the Respondent’s

show cause letter adduced at p 28 COB2, C6 has admitted to using the

ID of COW6 and has apologised for the wrong doing, stating that he did

not know that it is a “kesalahan” (wrong doing) and he promised not to

repeat the wrong doing. On top of that, he has also offered to pay back

the short fall in the actual amounts handed over to the Respondent after

the trips he had made. He did not show up for the court hearing to give

any further evidence.

[24] C6 has not provided any cogent evidence to suggest that the

Respondent has been wrong in its Charges of misconduct against him

and C6 has also not rebutted any of the evidence adduced in Court

against him. He had in actual fact admitted to his wrong doing in his reply

to the show cause letter and his case should not have been referred to

this Court in the first place. It makes no sense to put an employer through

such a tedious task of proving its case when the facts clearly show that

the employee is guilty of the serious misconduct he is charged with and

has even offered to pay back the amounts that are short.

15
[25] The Industrial Relations Department (“IRD”) is advised to relook at

its role and to keep the objects of the IRA uppermost in its mind when

dealing with such cases. The IRD is to ensure that industrial disputes are

speedily and fairly disposed of and must act fairly to both employer and

employee alike to ensure a harmonious, fair and equitable working

environment with workers of high productivity who are honest and who

can work independently with integrity for good employers. Employees

who cannot resist the temptation of pocketing any cash they see that

belongs to the employer have no business working at these types of jobs

and should rightly be dismissed. Such dismissals cannot in any way be

considered to be unfair or unjust when the evidence of such misconduct

has been adduced by the employer or where there are admissions or even

apologies emanating from the employee himself.

Claimant No 8 (C8): Maani bin Madjan

[26] The timeline of C8 using the ID and password of COW6 is as shown

in at column G, p6 of COW9. COW4 explained that Bus Route T430

assigned to C8 is very different from Bus Routes U25 and U45 and other

Bus Routes. The ID and password of COW6 was used on 2 occasions on

Bus Route T430 which is under the control of C8 as he is the assigned

driver of the bus on T430 and the same ID and password belonging to

16
COW6 was also used on Bus Routes U25 and U45 at about the same

time. According to COW6, this clearly shows an unauthorised use of the

password and ID of COW6 by C8 on Bus Route T430.

[27] On top of that, the amount of fares collected by C8 did not vary much

with the amount stated in the waybill. The Respondent knew that the

amount collected per day was too low even though the amount seems to

tally with the amount stated in the waybill. The modus operandi is that C8

will not issue tickets to the passengers who have paid their fares and by

using the ID and password of COW6, C8 will then get to know the amount

of fares that has been recorded in the waybill and hence he will know how

much money to hand over to the Respondent at the end of his shift and

keep the rest of the fares collected for himself.

[28] COW1 testified in cross examination that C8 used the ID and

password of COW6 when COW6 was on annual leave on 3 occasions and

on one occasion, the password and ID of COW6 was used on another

Bus Route 2 minutes before it was used on a bus captained by C8. COW1

referred to Tables 22-25 in COWS1a to show the number of times the ID

and password of COW6 was used by C8. COW3 has also testified that

due to the proximity between the Ticketing Machine and the driver, there

17
is no way any other person would have access to the Ticketing Machine

which is facing the driver as shown in the photographs at p17-18 of COB9

without the knowledge or consent of the driver.

[29] From the cross examination of COW1, it is indisputable that there is

no way COW6 could have accessed the Ticketing Machine whilst C8 was

driving the bus, particularly as COW6 was on annual leave or was

assigned to another Bus Route and was not on the Bus Route driven by

C8. In fact, it is not C8’s defence that COW6 had got on to his bus to

inspect the bus or tickets. Again, his defence is the same as that of the

other Claimants “tidak tahu-menahu” which is a bare denial and which

cannot be accepted by the Court in the face of the overwhelming evidence

adduced by the Respondent.

Claimant No 9 (C9): Ahzam bin Baharom

[30] The timeline of C9 using the ID and password of COW6 is shown in

p7 of COW9. On p17 of COB4, C9 has admitted in his reply to the

Respondent’s show cause letter that he had used the ID of COW6 to see

the amount collected on the bus trips. C9 said that he did not know that

the collection was short of the amount stated in the waybill. C9 claimed

18
that he had no ill intention when using the ID and password of COW6 and

that he will pay back the shortfall to the Respondent.

[31] According to COW4, 2 items in this case raised the Respondent’s

suspicion that the waybill has been tampered with. One is the amount

stated in the waybill which is almost so exact and almost tallies with the

actual amount collected. When an almost perfect amount matching the

amount in the waybill is handed over by C9, it means that C9 has access

to the waybill for the trip and knows the amount registered in the waybill

and has thus submitted an amount that is close to the amount stated in

the waybill.

[32] According to COW4, there are drivers who ask the passengers to

hand over their fares to him and not put it directly by themselves into the

Ticketing Machine. In that way, the driver then gets to keep the money for

himself. Further, about 90% of the drivers do not give out change to the

passengers. Therefore, there will always be excess money in the

Ticketing Machine. Thus, when the driver hands over an almost exact

amount of cash as that recorded in the waybill, the Respondent will know

that the driver has had sight of the waybill before handing over the cash

collected to the Respondent

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[33] The second item that raised the Respondent’s suspicion is the very

low amount of fares handed over to the Respondent’s office after each

trip. According to COW4, the Bus Routes plied by the Respondent will not

give a return of less than RM100.00 per trip. Thus, looking at the last two

columns of “Waybill Amount” and “Actual Amount Counted” on p184 of

COB8, he immediately knew that something was amiss as the amounts

collected were way too low at RM41.00 and RM59.00 and the waybill

amount and the actual amount collected almost turned up perfectly

matched.

[34] C9 has admitted to using the ID and password of COW6 in order to

see if there was a shortage in the collection or not. In cross examination,

C9 has also agreed that using the ID of COW6 is prohibited and that it is

wrong to do so. Based on this admission, knowing fully well that he is not

supposed to be using the Enforcement Officer’s (COW6) password and

ID, the Court finds that the Respondent has proven the Charges against

C9. The evidence given by COW1 is very clear on p7 of COB9 and has

not been rebutted by C9. The answers given by COW1 during cross

examination further concretises the Respondent’s case against C9.

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Claimant No 10 (C10): Yusoff bin Bavajee

[35] The timeline of C10 using the ID and password of COW6 are shown

in p8 of COW9. On 12.7.2011, COW1 testified that C10 used the

password and ID of COW6 to log in 4 times. Looking at the log in times

allegedly by COW6 in the bus driven by C10 on Bus Route U43 on

12.7.2011, the Court immediately has cause to query as to why COW6

will need to board the bus 4 times to inspect the bus and to print out the

waybill at 10:27:23, at 12:45:25, and again at 13:50:03 and lastly at

16:34:59. COW1 pointed out in the last column of Table 28 and Table 29

of COWS1a that no inspection was carried out by COW6 at those times.

At about the times mentioned, the ID and password of COW6 was used

elsewhere, that is on Bus Route U88 at 10.23 am, on Bus Route U22 at

12.44 pm, on Bus Route U48 at 13.49 pm and on Bus Route U6 at 16.34

pm respectively.

[36] COW1 further referred to Tables 30-38 in COWS1a and showed that

the times when COW6 was allegedly using his ID and password on the

bus, C10 was the captain of the bus. Further, at the times when COW6

was allegedly using his ID and password on the bus, he was in actual fact

elsewhere on other Bus Routes or was on annual leave. According to the

duty roster and annual leave records that were adduced at pp89-94 in

21
COB5, COW1 was able to show that COW6 was never assigned to be the

Enforcement Officer on the bus driven by C10. In his testimony, COW6

said he made a police report when he found out that the drivers were

making use of his ID and password to print out the waybills.

[37] in his testimony, COW4 referred to p185 COB8, where he told the

Court that what had happened in this case is the same thing that has

happened in the other cases where the ID and password of COW6 was

used even though COW6 was actually working in another location which

is far away from the Bus Route C10 is assigned to. Thus, it is not logical

that COW6 can be on the bus driven by C10.

[38] Another thing which pointed to the illegal use of COW6’s ID and

password is that the daily amount submitted to the Respondent is too little

as explained earlier. COW4 referred to line No 13 at p185 of COB8. On

29.7.2011, the amount recorded as due from the waybill was RM101.20.

However, another waybill was submitted for the sum of RM13.90 as seen

in the second last column together with the sum of RM14.00!

22
[39] COW4 then referred to p1 COB9 to show that all the Claimants have

been doing similar things to deprive the Respondent of its daily takings of

the bus fares and that the one example in p1 COB9 applies to all the

Claimants except for the dates and time. COW4 pointed out that the

Respondent’s Fare Collection System (CDCRS) is co-owned by the IT

Department and his department which is the Fare Collection Department

as stated earlier. Therefore, when cases such as these happen, his

department will do a forensic investigation, line by line, going through the

audit trail as in p 112 COB8 which is part of the master list.

[40] At line No. 26, p112 COB8, it can be seen that on 12.7.2011, at

08:57:13 and logged out at 08:57:18, the password and ID of COW6 was

used at another bus route and in line No. 27 of the same document, it can

be seen that the password and ID of COW6 was used again at 09:09:14.

This information is reflected on p1 COB9 at line No. 5. This shows that

C4 was using the ID and password of COW6 because the time difference

between the two log-ins is too short and it is impossible for COW6 to be

on 2 different bus routes that are so far apart. The comments in the last

column of p1 COB9 summarises the findings of the Respondent’s

CDCRS.

23
[41] Looking at the Audit Trails for the 5 Claimants which have been all

adduced in COB8, it is clear that there are definitely multiple log-ins by the

5 Claimants using the ID and password of COW2 and COW6. After

hearing the testimonies of the witnesses, the Court is satisfied that the

Ticketing Machine in the bus is always under the full control of each of the

Claimants during the time they first start their shift until the end of their

shift and there is no other person who could have accessed the Ticketing

Machines without the knowledge or consent of the Claimants.

[42] The Claimants have all pleaded ignorance to the events that had

taken place in their witness statements except for C9 who said in his Q&A

13 in CLWS9 that he had admitted to using the ID for Charges 2-3 after

he was advised to do so by the Union Representative in the hope of

obtaining a lighter sentence. However, during cross examination, C9 did

admit that he is not supposed to use anyone else’s password and ID. He

also admitted that with reference to p38 line 10 and 11 in COB4, the bus

he was driving WQA 691 was not inspected by COW6 on 20.5.2011. He

further admitted that COW6’s ID and password had been used in his bus

even though COW6 did not inspect his bus.

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[43] All the Claimants have answered “tidak tahu-menahu” in the use of

the password and ID of COW4 and COW6 and on how the passwords or

ID came to be used in the ticketing machines in the buses that were in

their control except for the admissions of C9 as stated above in the cross

examination . All the bus drivers are the captains of the buses they are

driving and they have been put in charge of the buses whilst they are on

that particular shift. According to COW1, everything that these captains

of the buses do in the bus with regards to the Ticketing Machines is

captured and sent to the Respondent’s CDCRS.

[44] No positive averments had been made by any of the five Claimants

in respect the compelling evidence presented by the Respondents

regarding the dishonest acts carried out by the Claimants whilst the buses

are under their control and custody. Mere averments of “tidak tahu-

menahu” are not sufficient to dispel the evidence against them. The result

is that the Court has nothing upon which to disbelieve the overwhelming

body of evidence presented by the Respondent in proving that it has on

the balance of probability proven the incidents of misconduct on the part

of all the Claimants and that the dismissal of all the Claimants are with just

cause and excuse.

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[45] In its Written Submission at p5-6, the Respondent’s representative

had referred to the case of Aik Ming (M) Sdn. Bhd. & 8 Ors v Chang

Ching Chuen & 3 Ors [1995] 3 CLJ 639 at 659, where the Court of Appeal

held as follows:

“The rule in Browne v Dunn [1893] 6 R 67 has been applied by

Indian Courts in the context of the Indian Evidence Act 1872, on
which is based our Evidence Act 1950. I need only refer to the
decision in Carapiet v Derderian AIR [1961] Cal. 359, where
Mukharji J, at p. 362 of the report, expressed the principle in the
following words:

“The law is clear on the subject. Wherever the opponent has

declined to avail himself of the opportunity to put his essential and
material case in cross-examination, it must follow that he believed that
the testimony given could not be disputed at all. It is wrong to think that
this is merely a technical rule of evidence. It is a rule of essential justice. It
serves to prevent surprise at trial and miscarriage of justice, because it gives
notice to the other side of the actual case that is going to be made when the
turn of the party on whose behalf the cross-examination is being made comes
to give and leads evidence by producing witnesses. It has been said on high
authority of the House of Lords that this much a Counsel is bound to do when
cross-examining that he must put to each of his opponents’ witnesses in turn,
so much of his own case as concerns that particular witness or in which that
witness has any share. If he asks no question with regard to this, then he
must be taken to accept the plaintiffs’ account in its entirety. Such failure
leads to miscarriage of justice, first by springing surprise upon the party when
he has finished the evidence of his witnesses and when he has no further
chance to meet the new case made which was never put and secondly,
because such consequent testimony has no chance of being tested and
corroborated”. [Emphasis added]

[46] It is the Respondent’s contention that the Claimants had failed to put

their essential case to the Respondent’s witnesses. Therefore, it must

follow that the evidence relating to the commission of the many instances

26
of misconduct given by COW1, COW3 and COW4 remain unchallenged

and must be taken in their entirety. As stated earlier, all the Claimants

have stated that they are unaware and know nothing about the keying in

of the ID and passwords on the busses driven by them. The Court is

unable to accept their version as none of them could show when the bus

Ticketing Machine was not within their control or that others could have

access to the Ticketing Machine, which is placed right in front of their faces

without their knowledge.

[47] In his decision in Universiti Islam Antarabangsa Malaysia v. Nik

Roskiman Abdul Samad & Anor [2017] 1 MELR 351, Azizul Azmi Adnan
JC noted as follows:

“[30] Now, in an ordinary civil action, a defendant need not advance an

affirmative defence; he may simply step back and put the plaintiff to strict proof
of the matters claimed. If he does so, however, he will be precluded from
adducing evidence at trial of an affirmative defence, since to do so would deny
the plaintiff of advance notice of the position taken by the defendant.

[31] In my view, this modality does not exist for an employee in an action
pursuant to a reference to the Industrial Court under the Industrial Relations
Act 1967. By virtue of r 9(3) of the Industrial Court Rules 1967, a claimant is
obliged to set forth the relevant facts supporting his claim. The fact that the
burden of proving that the dismissal was not without just cause or excuse lies
on the employer does not absolve the employee of the obligation of putting
forward an affirmative case, since it is the employee who has put into motion
the claim by his representations to the Director General for Industrial Relations
pursuant to s 20 of the Industrial Relations Act 1967.

[32] Thus, it will not be open to an employee to simply state that he will put
the employer to strict proof of the existence of a just cause or excuse. He must
put forward an affirmative case as to why his dismissal was not based on a just
cause or excuse”.

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[48] The principles in the above decisions simply means that the

answers given by the Claimants of “tidak tahu-menahu” cannot be

accepted by the Court. The Claimants must put forward an affirmative

case as to why his dismissal was not based on a just cause or excuse.

Further, nothing was put forth during cross examination to rebut the

evidence given by COW1 and all the other witnesses for the Respondent

and no reasons were given to show why their Ticketing Machine yielded

the recordings that showed extensive tampering and fabrication with the

use of the password and ID of COW2 and COW6. Thus, there is nothing

before the Court for the Court to consider.

[49] With the comprehensive documentary evidence, the oral evidence

of all the Respondent’s witnesses, plus the outright admission by C9 that

he did commit the acts of misconduct; the Respondent is able to prove on

the balance of probability that all the five Claimants are guilty as charged.

Therefore, it is without doubt that the termination of all the Claimants is

with just cause or excuse. The acts of misconduct committed were so

glaring as evidenced from the Audit Trail Data recorded from the Bus

Ticketing Machine.

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[50] The Audit Trail Data has been transmitted from the busses to the

CDCRS. Hence, every single transaction performed on the buses with

regards to the fares and entry into the Bus Ticketing Machine by the

drivers will be captured by the CDCRS. On completion of their shift duties

after every Trip as assigned by the Respondent, the Respondent will be

able to know exactly at what time, which person and how many times an

enforcement officer or maintenance technician has entered into the

CDCRS and for what purpose. As stated earlier, the Court is of the view

that the evidence has been given in great detail by COW1 and has been

exhibited in her witness statement in COWS-1A. COW4 has augmented

the evidence of COW1 with regards to the functioning of CDCRS and

COW3 together with COW2 and COW6 have dispelled any doubts as to

whether the unauthorised use of the password and ID of COW2 and

COW6 could have been committed by anyone else but the Claimants

themselves.

[51] The need for Malaysia to have a workforce that is honest and that

adheres to work practices that abhors pilferage and workers helping

themselves to the till cannot be over emphasised. The Court would be

failing in its duty if it does not dismiss the Claimants’ claims after

compelling evidence has been adduced by the Respondent regarding this

29
malignant practice. Public interest requires that such practices be put to

an immediate stop when proven by the employer on a balance of

probability.

[52] As stated by COW1 and COW4, the forensic investigation shows

that hundreds of ringgit have been siphoned off from the Respondent

everyday by these dishonest bus drivers using the password and ID of

COW4 and/or COW2 to print out fabricated waybills to surrender to the

Respondent. According to COW3, this has caused the Respondent to

suffer losses amounting to the tune of about RM100 million per year. It is

only with the use of technology that the Respondent has been able to

prove that the waybills that were submitted to the Respondent have been

fabricated as the Ticketing Machine in the buses driven by the Claimants

are all connected to the CDCRS in the IT Department of the Respondent.

[53] The Court need only look at the case of Pearce v Foster (1886) 17

QB D 536, 542 cited by the Respondent’s representative to hold that the

Respondent can dismiss the Claimants with immediate effect when the

Claimants as the servants of the Respondent fail to discharge their duties

faithfully and have all engaged in acts of misconduct inconsistent with the

due and faithful discharge of their duties to the master. Per Lopes LJ:

30
 “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”.

[54] In Ponudarai S Karupiah v Malayan Banking Berhad [2014] 2

LNS 1190, the learned Chairman in another division of the Industrial Court

upheld the bank’s decision to dismiss the claimant as being with just

cause or excuse as follows:

“Hence considering the very nature of the banking industry and the position of
trust and confidence that was reposed on him by the Bank it would not be
wrong for the Court to classify the Claimant's acts of misconduct as one that
justified immediate dismissal by his employer. Non-compliance of procedures
are serious misconducts that would warrant dismissal in the banking and
financial institutions. A high standard of care is expected from employees
working in such industries and who deal with public funds. The Claimant's acts
of omissions amount to a breach of the confidential relationship between
master and servant such as would render the servant unfit for continuance in
the bank's employment and therefore the bank had the right to dismiss him.”

[55] Having considered the nature of the job of the Claimants, which is

to receive the fares from passengers and to hand over all the fares

collected to the Respondent who is their employer, without regard to the

amount stated in the waybills, the Court is of the view that the duty

imposed on bank employees in the banking industry must accordingly be

extended to all employees who handle money on behalf of their

employers. A high standard of care is expected from these employees

who are working in similar capacities so that they do not cause any losses

to their employers either by their acts or omissions. The Claimants ought

31
to know that pilferage or theft of their employer’s monies amounts to a

criminal breach of trust for which they can be charged in the criminal

courts. And if they are found guilty, they can be sentenced to

imprisonment and whipping.

[56] Therefore, the Claimants’ claims are dismissed and the Court holds

that all the Claimants have been dismissed with just cause and excuse by

the Respondent. In fact, the Claimants should consider themselves very

fortunate that even with the overwhelming evidence showing the wrong

doing by the Claimants, the Respondent has not commenced criminal

action against them for criminal breach of trust.

HANDED DOWN AND DATED THIS 5th DAY OF APRIL 2019

Signed
(TAN GHEE PHAIK)
CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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