Employment & Labour Law

Mohamed Fithri Bin Ismail v Pelabuhan Tanjung Pelepas Sdn Bhd

Citation: Award No. 305 of 2019; Date of Judgment: 17 January 2019; Name of Court: Industrial Court; Source: Industrial Court

INDUSTRIAL COURT OF MALAYSIA

CASE NO: 16/4-339/18

BETWEEN

MOHAMED FITHRI BIN ISMAIL

AND

PELABUHAN TANJUNG PELEPAS SDN. BHD.

AWARD NO. 305 OF YEAR 2019

BEFORE: YA PUAN SUMATHI MURUGIAH - CHAIRMAN (SITTING ALONE)

Venue: Industrial Court of Malaysia, Johor Branch

Date of Reference: 12.12.2017.

Dates of Mention: 06.02.2018; 09.04.2018; 16.05.2018; 30.05.2018; 10.07.2018; 27.12.2018.

Dates of Hearing: 03.09.2018; 05.12.2018; 02.01.2019.

Reference:

The reference under Section 20(3) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources Malaysia, is regarding the dismissal of Mohamed Fithri bin Ismail (“the Claimant”) by Pelabuhan Tanjung Pelepas Sdn. Bhd. (“the Company”) on 02.08.2017.

AWARD

Brief Facts

[1] The Claimant was employed by the Company has a RTG Operator (Terminal Operator) on 04.01.2013 and was confirmed in his position on 15.04.2014.

[2] In August 2015, the Claimant was relocated to the Emergency Respond Team of the Company as an Emergency Assistant to monitor and manage the Disposal Ground Area (DG Area).

[3] On 02.08.2017, the Claimant was instructed by the Human Resource Department of the Company to meet En. Haji Zainal and En. Hairil on an alleged Police Report No. PTP 0973/17 being made on the events happened at the said DG Area on 31.07.2017.

[4] The Claimant thereafter received a termination letter by the Company on 02.08.2017 with immediate effect.

The Company's case

[5] The Company is in the sea port business that manages and operates a container terminal conducting loading and unloading of containers to or from ships for export, import and especially transhipment cargo servicing ships from abroad.

[6] On 01.08.2017, a team of auxiliary police raided the Claimant's team member, Zulfarid Bin Mohd Nor's (Zulfarid) house after receiving information from the Intelligence Unit, Auxiliary Police Pelabuhan Tanjung Pelepas (PTP) on stolen goods from a container at the DG Area.

[7] During the raid, various brands of bottles of perfume, bottles of hair shampoo and toothbrushes were found hidden under Zulfarid's bed. Due to that incident, the Company had terminated Zulfarid's employment with the Company. Zulfarid and the Claimant were working in the same team at that material time.

[8] On 01.08.2017, the Claimant had met with SM/PB Mohd Affendi at the Criminal Investigation Office, Auxiliary Police PTP and surrendered five (5) bottles of Carolina Herrera perfume (black), one (1) bottle of Carolina Herrera perfume (gold), one (1) bottle of Dior perfume (gold), one (1) bottle of Dior perfume (blue) and two (2) bottles of Dolce & Gabbana (gold) (collectively referred as “the items”).

[9] Upon investigation, both the Claimant and Zulfarid had admitted that they had used the department's vehicle, Nissan Navara with the registration number WYT 2423 to pick up the items at the DG Area and then had transferred the same to their own vehicles.

[10] The Company had contracted Syarikat Pelepas Cemerlang to dispose the goods in the DG Area and upon investigation had found out that Zulfarid and the Claimant had taken some of the goods which were to be disposed from the DG Area without permission from the customer of the Company.

[11] The Company stated that the act which the Claimant committed had jeopardise the trust that the customers have on the Company to dispose the goods on behalf of them and had also tarnished the Company's credibility.

[12] The Company having gone through the details of the facts and evidence adduced by the Auxiliary Police PTP and admission by the Claimant, the Company decided to terminate the Claimant's employment effective from 02.08.2017.

[13] The Claimant submitted an appeal letter. Nevertheless, the Company upheld the decision on the termination vide letter dated 21.08.2017.

[14] The Company called two (2) witnesses to give evidence in court, they are:

i. Mohd Affendi Bin Kasidi (COW-1) - Sarjan Mejar, Penyelia Bahagian Siasatan, Pejabat Polis Bantuan Pelabuhan Tanjung Pelepas Sdn. Bhd.

ii. Hairil Razlan Bin Hayata (COW-2) - Pengurus Kanan Sumber Manusia (Hubungan Perusahaan dan Pekerja) with the Company.

[15] Being the investigating officer of the Auxiliary Police PTP, COW-1 had given evidence that he was the officer who had recorded the Claimant's statement who had taken the items at the DG Area. He was also the officer who had seized some of the goods meant for disposal which had been taken from the DG Area from Zulfarid's house. According to COW-1, the Claimant had stated that on 31.07.2017 at around 1 pm together with Zulfarid, he had gone to the DG Area to monitor the containers and noticed workers organising the goods which were to be disposed. The Claimant had stated that Zulfarid had taken some of the goods meant for disposal and he had taken the items. The Claimant had also confessed that he had taken a total of ten (10) bottles of branded perfume being the items mentioned in para 8 hereinabove.

[16] COW-1 in his capacity as the investigating officer had in his statement stated that the Claimant's case was classified as theft. The Claimant had taken the items from the DG Area without the permission or knowledge of owner and had moved the items without the knowledge of the Customs and or the Company. COW-1's statement in the COWS-1 is as follows:

21. Q: Merujuk kepada pengalaman anda, perbuatan YM diklasifikasikan sebagai kes apa?

A: Kes jenayah iaitu mencuri. YM telah didapati mengambil barang-barang tersebut tanpa kebenaran dan pengetahuan pemilik barang dan mengeluarkan dan mengalihakan barang-barang tersebut tanpa pengetahuan pihak kastam ataupun pihak Syarikat. Setiap barang yang hendak dibawa keluar daripada pelabuhan mestilah perlu diisytiharkan dan mendapat kebenaran daripada Kastam atau Syarikat.

[17] COW-2 had given evidence that based on the recorded statement given by the Claimant to the Auxiliary Police of PTP, wherein the Claimant together with Zulfarid had admitted taking some of the goods which were meant for disposal, including the items from the DG Area, the Company did not conduct a DI.

COUNSEL

For the Claimant: Mdm. Noor Liana binti Hashim from Messrs Kamal Hisham & Associates

For the Respondent: Mr. Najmuddin bin Hakim from Malaysian Employers Federation

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