Harapan R Sdn. Bhd. vs. RY
Jabatan Perhubungan Perusahaan
7 October 1997
The parties to the dispute are Harapan R Sdn. Bhd. (hereinafter referred to as ‘the company’) and Encik RY (hereinafter referred to as ‘the claimant‘).
The dispute is over the claimant’s dismissal by the company on 5 April 1994.
The claimant contends that the dismissal was without just cause or excuse and prays for reinstatement to his former position without loss of benefits.
争议双方是 Harapan R Sdn. Bhd.（以下简称’公司‘）和 Encik RY（以下简称’申诉人‘）。
争议是关于1994年4月5日，申诉人被公司解雇的问题。
申诉人辩称，解雇是没有正当理由或借口的，并要求在不丧失福利下，恢复他以前的职位。
The Company
The company has adduced evidence before the Court to show that the claimant was absent from work without leave being approved on three separate occasions.
On each occasion, the claimant proceeded to go on leave despite being told his application for leave had not been approved.
The company had treated his absence from work as absence without leave, and on each occasion, it issued a warning letter to the claimant.
The authority for approving leave applications was the executive director A, after the recommendation of supervisor B (the claimant’s immediate superior).
First Absence Without Leave
The claimant’s application for a leave commencing 14 November 1993 to 18 November 1993 had been sent to executive director A directly for approval. After discussing with supervisor B, and due to the exigency of service, he disapproved the application.
The claimant was duly informed by supervisor, B but he did not turn up for work from 14 November to 18 November 1993.
When the claimant was issued a show cause letter, he refused to acknowledge receipt.
Executive director A subsequently called the claimant to his office for an explanation, and the claimant did not give any explanation.
Second Absence Without Leave
The claimant again applied for leave from 25 February to 28 February 1994.
Executive director A approved two days out of the four days applied for and duly informed the claimant, but he did not return to work from 1 March 1994 to 5 March 1994.
When executive director A confronted the claimant after his return, the claimant said he had informed the telephone operator about his leave.
The managing director was briefed on this incident and decided to issue a second Show Cause Letter to the claimant, who did not give any explanation. A second Warning Letter was sent to him.
Third Absence Without Leave
The claimant again asked for leave from 16 March 1994 to 17 March 1994, and the leave was not approved by executive director A.
The claimant was informed of the refusal of his leave, but he, nevertheless, did not turn up for work from 16 March to 18 March 1994.
The claimant again refused to give any explanation and was issued a final warning letter.
The board of directors made a decision to dismiss the claimant, and a letter of dismissal dated 5 April 1994 was sent to the claimant.
The company contended that it had done more than required to be fair to the claimant before dismissing him.
The claimant
The claimant completely denied being absent without leave. He denied he had applied for leave on all three occasions. He denied the signature on the leave forms. He challenged the accuracy of the punch cards. The information brought out is that the company went out of its way to forge those documents produced as exhibits in Court and concocted the whole story to mislead the Court.
The claimant, however bizarrely, did not put his case on the authenticity of the leave forms when cross-examining the company’s witnesses. The claimant only cross-examined at great length and in minute detail the particulars contained in the leave forms, including whether the executive director was the proper authority to approve or disapprove leave in the company.
The claimant also complained that he was not given an opportunity to be heard by the company before the decision to dismiss him. This is a breach of his fundamental right guaranteed in s. 14 of the Employment Act 1955 .
The claimant further contended that there was no cogent evidence produced before the Court that the misconduct alleged was in fact, committed to justify the punishment of dismissal.
It is also the claimant’s contention that the company’s stand that it was unnecessary for a charge sheet to be given to the claimant for the reason of dismissal under s. 15(2) was a wrong statement of law. The law lays down the procedure for employer to impose disciplinary action after due inquiry.
申诉人完全否认未经休假而缺席，他否认他在所有三个场合都申请了休假；他否认请假单上的签名，他也对打卡的准确性提出质疑。所带出来的信息是，公司不惜伪造那些作为法庭证物的文件，编造了整个故事来误导法庭。
然而，申诉人在盘问公司证人时并没有就请假单的真实性提出异议。索赔人对休假表格中包含的详细信息进行了详尽的盘问，包括执行董事是否有权批准或不批准公司的休假。
申诉人还抱怨说，在决定解雇他之前，公司没有给他机会让他做出解释。这违反了《1955年劳工法令》第14条对员工所保障的基本权利。
申诉人进一步争辩说，公司并没有向法庭提出有力的证据，证明所指控的不当行为确实存在，以作为解雇处罚的理由。
申诉人还辩称，公司表明立场，在第15(2)条文下的解雇，公司是没有必要向申诉人提供指控表以告知被解雇的理由，这在法律上是错误的陈述。法律规定了雇主在进行适当调查后采取纪律处分的程序。
The claimant in his testimony denied he had received the several warning letters and had no knowledge of their contents.
His defence is that he was framed for the three applications for leave on three separate occasions and his signature on the leave forms was forged.
申诉人在其证词中否认他收到过几封警告信，也不知道其内容。
他的辩护是，他是在三个不同的场合被陷害申请休假的，他在休假表上的签名是伪造的。
The Evaluation Of Evidence And Findings
It is true that in a dispute for unfair dismissal the burden is on the employer to prove the employee’s misconduct to justify its action of dismissal.
The Court has thoroughly scrutinised the documentary and oral evidence of the company as against that of the claimant’s and has come to the finding that the company has established its case against the claimant.
The company has adduced evidence to show that an employee had to fill up the application form for leave prior to going on leave and submitted it for approval by the executive director. That was a definite procedure for employees to apply for leave.
诚然，在不公平解雇的纠纷中，雇主有责任证明雇员的不当行为，以证明其解雇行为的合理性。
法庭彻底审查了公司的文件和口头证据与申诉人的证据，并得出结论，公司已经建立了针对申诉人的案件。
公司举出的证据显示，员工在休假前必须填写休假申请表并提交给执行董事批准。
这是员工申请休假的一个明确程序。
The Witnesses
The company called five witnesses to give evidence that the claimant was absent without leave on three occasions when his application for leave was rejected. The witnesses included two senior executives of the company, the managing director and the executive director besides the executive from the assignor of the quarry operation.
The claimant admitted in his evidence he had no problem working with executive director and had never walked out from his job. Three witnesses had personal knowledge of the claimant’s absence when they communicated with each other, when the claimant was absent, not one occasion but on all the three occasions.
Their evidence was not rebutted and their corroboration remained intact. The claimant’s forgery defence had failed miserably.
公司传唤了五名证人，以证明申诉人有三次请假申请被拒绝依然缺勤。证人包括公司的两名高级管理人员、总经理、执行董事，以及采石场业务转让方的管理人员。
申诉人在他的证词中承认，他与执行董事在工作上没有出现任何的问题，也从未擅自离开工作岗位。三位证人在相互交流时，都清楚知道申诉人的缺席，而申诉人的缺席，并非只是一次而已，而是公司所提及的三次。
他们的证据没有被反驳，他们的佐证完整。申诉人的辩护纯属无稽之谈。
The claimant’s witness stated in evidence that the claimant was warned once orally and twice in writing for being absent without leave. One of the written warnings as follows:
申诉人的证人在证据中说，因请假申请被拒绝而缺勤的申诉人，受到一次口头警告和两次书面警告。其中一次书面警告如下：
Kepada Encik RL, Pemandu Dumper.
AMARAN TERAKHIR TIDAK HADIR BERTUGAS
Berhubung dengan perkara di atas, dimaklumkan bahawa RL k/p No. xxxxxxx telah tidak hadir bertugas pada 16 Mac, 1994 hingga 18 Mac, 1994 iaitu selama 3 hari.
2. Buat pengetahuan, amaran pertama dan amaran kedua pihak kami telahpun kemukakan tetapi tiada apa-apa tindakan dan perhatian yang diambil.
3. Saya berharap perkara ini dapat perhatian daripada pihak tuan. Segala kerjasama yang diberikan diucapkan terima kasih. Sekian.
Yang menjalankan tugas, signed … (MANAGING DIRECTOR) HARAPAN R SDN. BHD.
The claimant has not produced evidence to substantiate his allegation that his leave application forms and punch cards were forged.
The company had produced all the documents the claimant disputed before the Court and also had 5 witnesses to substantiate its allegation against the claimant.
Their evidence had withstood the cross examination by the claimant.
There is no reason for them to jointly concoct the story of absence without leave and to lie before this Court.
Hence, the Court accepts their evidence as true.
申诉人没有拿出证据来证明他的休假申请表和打孔卡是伪造的指控。而公司也向法庭出示了申诉人所争议的所有文件，同时还有5名证人来证实其对申诉人的指控。
他们的证据经得起申诉人的盘问，他们没有理由共同编造未经批准休假的故事并在法庭上撒谎。
因此，法庭接受他们的证据。
An employee’s entitlement to annual leave cannot be claimed as of right and he must obtain permission from his employer relieving him from duty of attending work. Unless the leave sought is granted, an employee cannot absent himself from duty and if he does, it is absence without leave, a fundamental breach of the employee’s contract of employment.
The claimant failed to obtain approval before proceeding on leave. The claimant, in fact, defiantly went against the company’s wishes when his leave was rejected, and went on leave. He did not only do it once but he did it 3 times.
The claimant could not justify his defiant attitude towards the question of his absence without leave. Therefore in his evidence before the Court he denied the whole affair. In the Court’s view this is an afterthought so clumsily presented and so untenable.
It is unthinkable to suggest that the managing director, the executive director, the supervisor and all those down the line conspired to get rid of the claimant who was just a driver by forging all the documents. Such a suggestion sounds hollow and unbelievable.
雇员享有的年假不能作为权利要求，他必须获得雇主的许可，免除他上班的义务。除非所申请的假期得到批准，否则雇员不能缺勤，如果他缺勤，就是未经许可的缺勤，原则上违反了雇员的雇佣合同。
申诉人在休假前没有获得批准。事实上，当他的休假被拒绝时，申诉人却轻蔑地违背了公司的意愿，去休假。他不仅缺勤了一次，而且还缺勤了三次。
申诉人无法证明他在未经批准休假的问题上，所采取的蔑视态度是合理的。
因此，在他向法庭提供的证据中，他否认了整个事件。在法庭看来，这是一个事后的想法，陈述得如此笨拙，如此站不住脚。
如果说总经理、执行董事、主管和所有下级人员合谋通过伪造所有文件来摆脱只是一名司机的申诉人，这是不可想象的。这样的建议听起来很空洞，令人难以置信。
The conduct of the company towards the claimant has been one of extraordinary patience and forbearance.
The standard of fairness demonstrated by the company in this case far exceeds the reasonable standard expected of an employer before dismissing an employee for absence without leave.
The company had in fact bent backwards to accommodate the claimant but he went over the limit of tolerance.
He was absent without leave on three occasions and he also exceeded the leave he applied for by overstaying after his leave.
该公司对申诉人的行为是一种特别的耐心和宽容。该公司在本案中表现出的公平标准，远远超过了雇主在解雇未经批准而缺勤雇员的合理标准。
事实上，公司已经弯下腰来照顾申诉人，但他却超过了容忍的限度。
他有三次未经批准而缺勤，而且在请假后逾期不归，也超过了他申请的假期。
The claimant contends that the company failed to conduct an inquiry.
It is the opinion of the Court that the case of dismissal for misconduct is different from committing a fundamental breach of the contract of employment.
There is no need for an inquiry in the case of fundamental breach as compared to a case of dismissal for misconduct.
申诉人辩称，公司没有进行内部听证会（调查）。
法庭却认为，因行为不当而被解雇的情况，与原则上违反雇用合约的情况不同。
与因行为不当而被解雇的案件相比，原则上违反雇用合约的案件是没有必要进行调查的。
Section 15(2) of the Employment Act states follows:
(2) An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.
《1955年劳工法令》第 15(2) 条文规定：
(2) 如果雇员在没有事先向雇主请假的情况下连续缺勤超过两个工作日，则应被视为违反了与雇主的雇佣合约；除非他有合理的理由缺勤，并在缺勤前或在缺勤期间尽早告知或试图告知雇主这种理由。
In the case of Gissco Sdn. Bhd. and Jagjit Singh Mahinder Singh (Award No. 36/88) , it was stated:
Furthermore, Section 15(2) of the Employment Act 1955 does not require an inquiry - it is for the employee to give an explanation to the satisfaction of the employer why he was absent.
在 Gissco Sdn.Bhd. 和 Jagjit Singh Mahinder Singh（第36/88号裁决）一案中的裁决如此说：
此外，《1955年劳工法令》第15(2)条并不要求进行调查 -- 而是只需要雇员向雇主做出令满意的解释，以说明他为何缺席就行了。
Conclusion
The claimant was dismissed because he breached the provision of s. 15(2) of the Employment Act 1955.
That is to say, he absented himself on the three occasions. the Chairman is satisfied from the evidence adduced by the company that it was justified in its action against the claimant.
For the above reasons, the Court finds that the dismissal of the claimant is with just cause and excuse.
The claimant’s claim is dismissed.
申诉人被解雇是因为他违反了《1955年劳工法令》第15(2)条的规定，也就是说，他在这三个段落缺勤。
法庭主席从该公司所提供的证据中确信，它对申诉人的行动（也就是说 – 解雇）是合理的。
基于上述原因，法庭认为解雇申诉人是有正当理由和借口的。因此，驳回申诉人的索赔。
Think (About It)
Could you please explain how the employer prevailed in this court case?
请你解释一下雇主是如何在这个法庭案件中获胜的？
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