ANG BEE HONG v. HSBC BANK MALAYSIA BERHAD
INDUSTRIAL COURT, KUALA LUMPUR
SAROJINI KANDASAMY
AWARD NO. 213 OF 2017 [CASE NO: 4(23)/4-580/14]
2 FEBRUARY 2017

DISMISSAL: Breach of company rules and policies - Conflict of interest with the bank's business - Claimant buying property that had been subject to foreclosure proceedings, below its market value - Whether she had had an arm's length transaction with the Borrower - Factors to consider - Effect of - Position held by the claimant in the bank - Whether she had abused her position - Whether her conduct had been in conflict of interest with the duty she had owed to the bank - Evidence adduced - Effect of - Her explanations - Whether could be accepted - Whether she had been aware of the COE and its contents - Claimant's length of service in the bank - Whether her actions had constituted serious misconduct which had warranted her dismissal - Whether her dismissal had been without just cause and excuse

DISMISSAL: Breach of company rules and policies - Dishonesty - Whether the claimant had bought property that had been subject to foreclosure proceedings, below its market value - Evidence adduced - Evaluation of - Effect of - Claimant failing to disclose her true identity to the Borrower - Reasons for the same - Whether she had acted ethically and with integrity - Position held by the claimant - Whether she had opened the bank up to the risk of public scrutiny and legal action - Factors to consider - Whether she had been in breach of the bank's COE - Whether it had been serious misconduct that had justified her dismissal

DISMISSAL: Misconduct - Claimant failing to disclose to the bank that she had entered into a potentially compromising or conflicting business relationship with the Borrower - Whether she had been in breach of the COE - Factors to consider - What she should have done - Claimant informing the bank after the event - What that had shown - Whether she had been aware of the contents of the COE - Factors to consider - Whether her actions had constituted serious misconduct justifying her dismissal - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)

DISMISSAL: Misconduct - Claimant mortgaging her existing residence and obtaining an additional loan facility from an outside financial institution without the bank's approval - Whether she had been in breach of the COE and her employment letter - Factors to consider - Perusal of - Evaluation of - Effect of - Whether she had been aware of the contents of the COE - Whether her actions had constituted serious misconduct justifying her dismissal

DISMISSAL: Misconduct - Seven charges of misconduct levelled against the claimant in relation to, inter alia, the abuse of her position in the bank and her breach of the COE - Whether the charges had been proven against her - Factors to consider - Evidence adduced - Effect of - Claimant in a special category of employees in the financial services industry - Whether there had been a higher standard of integrity put on her in executing her duties and responsibilities - Position held by her in the bank - Her length of service in the banking industry - Whether her misconduct had been serious enough to warrant her dismissal

LIEW WING FAI @ LEW WING FAI v. DRY CUT SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
SAROJINI KANDASAMY
AWARD NO. 214 OF 2017 [CASE NO: 4/4-433/15]
2 FEBRUARY 2017

CONTRACT OF EMPLOYMENT: Terms and conditions - Notice of termination - Company raising other reasons not stated in his termination letter as reasons for his dismissal - Whether ought to be allowed - Factors to consider - Effect of

DISMISSAL: Breach of company rules and policies - Dishonesty - Claimant allegedly misleading the company on the new recruit's salary - Whether proven by the company - Evidence adduced - Effect of - Whether the company had succeeded in proving this allegation against him - What the company should have done - Whether dismissal without just cause and excuse

DISMISSAL: Breach of company rules and policies - Dishonesty - Claimant allegedly not following the company's procedures to ship out products to its customers - Whether proven by the company - Evidence adduced - Effect of - Whether the company had succeeded in proving this allegation against him - Whether his dismissal had been with just cause and excuse

DISMISSAL: Breach of company rules and policies - Fraud - Whether the claimant had forged the company's employees' signatures on the DOs - Evidence adduced - Evaluation of - Effect of - Claimant's explanations - Whether acceptable - Whether this allegation had been proven by the company against him - What it should have done - Whether dismissal without just cause and excuse

EVIDENCE: Burden of proof - Company alleging forgery of Mages's signature - Whether a personal visual comparison had sufficed - What it should have done - Effect of - Whether the legal threshold had been satisfied

EVIDENCE: Burden of proof - Whether discharged by the company in proving the allegations against the claimant - Evidence adduced - Evaluation of - Whether dismissal without just cause and excuse

EVIDENCE: Documentary evidence - Company relying on Mages's police report to prove the allegation against the claimant - Whether Mages had had personal knowledge of the matters stated therein - Whether the police report had been a report made contemporaneous with the occurrence or the existence of the facts stated therein - Whether it had probative value - Whether its prejudicial effect had outweighed its probative value - Factors to consider - Effect of - Evidence Act 1950, s. 73A

EVIDENCE: Documentary evidence - Whether the charges brought against the claimant had been defective for want of material particulars - Factors to consider - Effect of

EVIDENCE: Witness - Failure to call - Company failing to call Mages - Whether it had taken all reasonable steps to locate her - Factors to consider - Whether it had been withholding or suppressing her attendance or refusing to adduce her as a witness - Evaluation of the evidence - Effect of - Whether an adverse inference ought to be drawn against it

EVIDENCE: Witness - Failure to call - Company failing to call the new recruit - Reasons for the same - Whether an adverse inference ought to be drawn against it - Evidence Act 1950, s. 114(g)

INDUSTRIAL COURT: Remedies - Compensation - Backwages - Whether backwages ought to be awarded to him - Claimant serving the company for less than a year - Effect of

INDUSTRIAL COURT: Remedies - Reinstatement - Company relying on post-termination events to show that the claimant had not been interested in reinstatement - Whether that ought to be allowed - Claimant seeking reinstatement in his Statement of Case and his sworn testimony - Whether a speculation as to his intentions by the company could be deemed to be against the principles of equity and good conscience and an abuse of the objectives of the Industrial Relations Act 1967

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