PATRICK FRANCIS v. EMIRATES

[2014] 1 MELR

Patrick Francis v. Emirates

295

PATRICK FRANCIS v. EMIRATES Industrial Court, Kuala Lumpur Hapipah Monel Award No: 1832 of 2013 [Case No: 19/4-719/10] 15 November 2013 Dismissal: Misconduct — Misuse of position, authority and company’s properties — Lack of professional behavior — Claimant dismissed on grounds of loss of confidence and gross misconduct — Whether disciplinary process against claimant in breach of natural justice — Whether company succeeded in proving misconduct — Whether dismissal with just cause or excuse Domestic Inquiry: Procedural impropriety — Details of charges not given to claimant prior to inquiry — Whether claimant had been given a fair opportunity to defend himself — Whether company had breached rules of natural justice — Whether domestic inquiry conducted had been void ab initio The claimant, an Airport Service Manager, was told by the company to attend a disciplinary hearing to answer allegations of misconduct made against him. The alleged offences were that of: (i) misusing position of authority and the company’s properties; (ii) offloading a staff member who was on a full commercial ticket without just cause; (iii) complaints received from staff members about the claimant’s conduct and lack of professional behavior, in particular, the consumption of alcohol in the company’s lounge whilst on duty; (iv) harassment of staff; and (v) lack completion of mandatory courses. A domestic inquiry (‘DI’) was conducted merely by way of questions and allegations put forward by the Chairman for the claimant to answer. Details of the allegations were not given to the claimant prior to the inquiry. The Chairman who conducted most of the questions was also the person who issued the notice of suspension and was involved in parts of the investigation process. None the witnesses who made the allegation against the claimant was produced to give evidence at the inquiry and to be cross-examined by the claimant. The primary investigator had attempted to get a witness to give a statement to implicate the claimant after the conclusion of the DI. The primary investigator then sat on the panel of inquiry to judge the claimant. As a result of the findings of the disciplinary hearing, the company dismissed the claimant on the grounds of loss of confidence and gross misconduct. The claimant contended that his dismissal was without just cause or excuse. Regarding charges (i) and (ii), the claimant explained that the incident was related to a staff member (‘the staff ’) who had acted violently during his tenure of employment which included destroying the company’s property. When the employee resigned, the claimant had written a letter to the Malaysian Airport Berhad notifying them of the employee’s resignation and conduct.

296


[2014] 1 MELR

Held (allowing the claimant’s claim): (1) The details of the allegations were not given to the claimant at any time prior to the inquiry and the charges preferred against the claimant were made in a very general manner with no particular details given. The claimant was then given only five days to attend the DI. Thus, it was almost impossible for the claimant to prepare his defence to the various allegations. Further, the primary investigator admitted during cross-examination that the procedure adopted in the DI was wrong. The roles of the Chairman of the panel of inquiry and the primary investigator showed that the whole disciplinary process against the claimant were in breach of natural justice and the decision arising therefrom was null and void. (paras 7, 9, 10 &12) (2) Regarding charges (i) and (ii), the claimant had lodged a complaint to the Area Manager and a notice was also sent to the staff requesting him to explain his conduct. Hence, the claimant could not be faulted in issuing the letter to Malaysia Airport Berhad as all he had done was in the best interest of the company. Further, the claimant had with the consent of the Area Manager, told the staff to go home and to be in station. The staff defied that order and proceeded to purchase a full fare ticket to fly overseas. The claimant thus decided to offload the employee. This decision was done in concurrence with the Area Manager, who was not produced by the company to rebut this assertion and hence the claimant’s unchallenged evidence was accepted as the truth. (para 16) (3) The incident of offloading took place much earlier than the date of the claimant’s suspension. In fact, no complaint was even made against the claimant and no inquiry was instituted against him at the material time. Hence, if there were any wrongdoing by the claimant, it was a stale complaint and was merely used by the company to terminate the claimant’s services. (para 18) (4) Charges (iii) and (iv) were supposed to have taken place a long time before the commencement of the investigation against the claimant. The exact dates of the allegations could not be proven by the company. Further, there was no complaint or police report made against the claimant regarding the said charges by the relevant staff members. (paras 19-20) (5) Charge (v) was unbelievable as the claimant was a well known person in the airport by reason of his position for which he had been re-elected even after the alleged incidences. No evidence was produced to prove the said charge save for the bare statement of a witness and hearsay evidences of another witness who purportedly heard about it from other sources. Further, no complaint was made by any of the witnesses contemporaneously at the time of the incident. (paras 25-26) (6) The procedure adopted by the company to dismiss the claimant was based on unsubstantiated allegation by a certain staff which was made long after the alleged incident. The allegation were concocted to support the company’s act in summarily terminating the claimant. No other plausible explanation could

[2014] 1 MELR


297

be deduced as the company’s action was in clear violation of the rule of natural justice. The company had also found the claimant guilty of some other charges not referred to him at the outset. Thus, the termination was a termination simpliciter without any just cause or excuse. (paras 28 & 31) Case Commentaries • Where an employee is accused of serious acts of misconduct, a thorough investigation should be conducted, after which if sufficient evidence of the misconduct having been committed has been uncovered, a domestic inquiry should be held to ensure that the employee is given an opportunity to defend himself before a penalty is imposed. • Charges of misconduct laid against an employee should be clearly drafted and complete with the material or necessary details such as when the misconduct occurred, where it occurred and a general description of the misconduct, without which an employee cannot be expected to prepare a proper defence. For example, in this case, one of the charges against an accused employee merely read: “Misusing position of authority and company’s properties.” • Members of a domestic inquiry panel are expected to be neutral at all times including during the conducting of the inquiry. They are not encouraged to ask any questions of the accused employee. If the evidence produced by the employer against the accused employee is inadequate, insufficient or not credible, they will have little choice but to find the employee not guilty of the charges laid against him. In order to ensure neutrality of the inquiry panel, none of its members should have been involved in any manner in the investigation conducted by the employer to collect evidence against the employee. • Where an employee makes a complaint against a fellow-employee which leads to a domestic inquiry being held, the complainant is required to attend the inquiry and give evidence during the inquiry. Any statement given by the complainant to the employer or his representative prior to the inquiry is not sufficient. The complainant must be present at the inquiry so that he or she may be cross-examined by the accused employee. • Where a letter of termination is issued to an employee who is being dismissed on the grounds of misconduct, the employer should take care not to include any reasons for the dismissal which were not stated in the charges laid against the employee. Case(s) referred to: Ah Moi v. Tenaga Nasional Bhd [2009] 2 MLRA 304 (refd) Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 1 MLRA 415 (refd) Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 2 MLRA 23 (refd) Syarikat Permodalan Kebangsaan Bhd v. Mohamed Johari Abdul Rahman [2004] 2 MELR 37 (refd)

298


[2014] 1 MELR

Legislation referred to: Industrial Relations Act 1967, s 30(5) Counsel: For the claimant: James Culaz; M/s Culaz & Associates For the company: Emran Arifin (Tee Shiau Sang with him); M/s Wong & Partners