Monday, August 24, 2009


At a recent HR group meeting in JB, we discussed the recent case of Automotive Manufacturers Sdn Bhd v Ahmad Mohd Som (Award No 361 of 2009).

The employee in this case was employed as an operator in the maintenance department of Automotive Manufacturers Sdn Bhd. The Company found that he had been habitually late and frequently failed to swipe in and out his attendance card at the barcode system on numerous occasions between January 2001 and August 2002.

In August 2002, the company issued him a show cause letter alleging 35 occasions of lateness between January 2001 and August 2002 and failing to swipe his card 31 times during the same period.

The claimant replied , inter alia, requesting for a DI to be convened because he felt that the show cause letter was unfair to him seeing as the offences alleged in it spanned over a period of more than a year.

A DI was eventually held and the claimant was found guilty and was dismissed. He appealed to the company but was turned down.

The claimant subsequently took the case to the Industrial Court and 7 years later the Court decided in his favour, awarding him more than RM20k in damages.

There are a few lessons to be learnt from this case.

Always take immediate action each time a breach of disciplinary policy occurs. In this case the Company accumulated 20 months’ worth of alleged offences and used that to slap the termination notice on the employee without a single warning, written or otherwise, being issued to him throughout the entire period the alleged offences were supposed to have occurred. The Court opined as such: ”The Court is of the view that by not taking immediate disciplinary action against the claimant for the aforesaid serious misconducts…the company is deemed to have condoned the claimant’s past acts of serious misconducts…” The Court only took in consideration one occasion of misconduct, which was the most recent one alleged by the Company, and threw out the rest. Based on this one single misconduct alone, the Court could not find the employee guilty of serious misconduct constituting just cause and excuse for dismissal.

All general terms and conditions of employment, including disciplinary offences and their corresponding punishment, must be made known to all employees. In this case the employee was not given a copy of the Company’s Code of Conduct, and the Company failed to prove on the balance of probabilities that the employee knew the consequences of his misconduct.

Never terminate an employee because of personal vendetta or ulterior motives. In this case, the claimant contended that the Company purposely used the excuse of habitual lateness to kick him out because he was involved in the formation of an employees’ union. The Company had issued him a letter asking him to withdraw his membership of the union, which was wrong in law in the first place, and when the employee refused to sign the letter the Company began to find fault with him. In the end, they had to pay for it. Now imagine the damages if the claimant is a senior-ranking employee. I personally know someone who was awarded RM1.3 million in damages after he was unfairly dismissed by his employers because of political and racial motives. He was my law lecturer, and one of the reasons why I am specialising in employment laws.

If you really want to give someone the boot for reasons nothing whatsoever to do with work, make sure you get your own ass covered. In this case, the Company produced the MIS Manager as one of their witnesses during the Court hearing. The witness was asked why the barcode system printout showed that the employee did not swipe his card on certain particular dates. The witness’s reply? “Kemungkinan barcode rosak.” The Court threw the case out of the window.