Since the purpose of this article is to serve as an illustration, all real names and dates have been altered.
AC Ltd. v CKS
Industrial Court 7 February 1995
The parties to the matter before the Court are AC Ltd. ("the company") and CKS ("the claimant").
The issue before the Court is the claimant's dismissal on 11 November 1993.
The Claimant
The claimant was employed by the company as an assistant manager (sales) on 26 May 1992.
The claimant contends that:
his dismissal is without any just cause or excuse and/or in breach of the principles of natural justice and/or an unfair labour practice and/or unlawful.
The Company
In the statement in reply, the company contends that:
the claimant failed and/ or refused to carry out his functions properly, diligently and/or as required by his contract of employment, which resulted in the poor performance by the claimant of his job.
to assist the claimant in improving his work performance and attitude, the company provided the claimant with counselling.
Despite the attempts by the company to assist the claimant, he was non-cooperative and failed and/or refused to respond positively.
Further, the claimant had, at several counselling sessions, challenged the management of the company to dismiss him and or take him to Court.
The company contends that the dismissal was lawful, with just cause or excuse and under the principles of natural justice and fair labour practice.
The conduct and attitude of the claimant complained of by the company are tabulated in a company's memorandum dated 24 July 1993, which can be summarised as follows:
Punctuality;
Failure to inform the company when leaving the office for an official or personal appointment;
Poor Performance:
Time-keeping
Failure to submit reports on time;
Agency visits; and
Production;
Non-cooperative & disrespectful attitude
The company's working hours were from 8.30 a.m. to 5.00 p.m. with lunch hours from 12.45 p.m. to 1.30 p.m.
COW4 (Witness No 4 for the Company), the head of the department to which the claimant was attached to, told the Court that the claimant was consistently late to work.
Initially, the claimant was verbally counselled on his impunctuality on several occasions, but he did not improve. For the months from March to May, the claimant was late for work between 4 to 14 times a month.
In the month of June, the claimant also failed to clock in and clock out regularly.
Subsequently, COW4 issued written reminders, first on 24 June 1993, followed by another show cause letter dated 6 July 1993, and he only replied to the third show cause letter dated 14 July 1993. His reasons for coming to work late were:
serving the company's clients in their respective offices in the morning; and
meeting with agents and agency leaders before they leave for the field in the morning.
COW4 contends that the claimant's clients started work at 9.00 a.m. Therefore, the claimant's reason for impunctuality was not acceptable. The claimant continued unpunctual from July to October despite being given a warning letter dated 21 July 1993.
He was late between these 4 months, from 10 to 19 times each month. COW4 testified that, unlike other latecomers, the claimant refused to heed to his advice to improve his punctuality and was habitually late. It was clearly reflected in his punch cards from March to October.
The claimant was notified of his areas of weakness by COW4 at a counselling session, the performance review was recorded and contained in a memorandum sent to the claimant as follows:
Memorandum
To: CKS Subject: Performance Review Date: 24 July 1993
This refers to our discussion dated 24 July 1993 in the presence of SF.
Appended below are the following:
A) Punctuality
You have requested I clarify the meaning of tardiness. Please note my letter to you dated 20 July 1993 is self-explanatory.
B) I take this opportunity to discuss with you your performance to date, which is a concern to management.
1) Morning Appointment - Reminder Should you have a morning appointment, give 1 day's notice with the following particulars to either L, B, Y or me:
Time of appointment
Name of company
Person in charge
Purpose of visit, e.g. presentation of proposal, service etc.
This appointment should be recorded in the diary at Tan Yean Cheng's desk before the appointment. This ensures management knows your whereabouts
2) Appointment If you have an appointment and you are unable to clock out, call back our office before 5 pm to inform the above personnel as in 1) above and provide the following information:
Name of company
Purpose of visit
3) Lunch hour - Reminder Lunch hour for A Ltd. staff is 12.45 pm to 1.30 pm (45 minutes). If you have an early lunch appointment or you will be back later than the stipulated time, kindly inform the relevant personnel and provide the same information as in item (1),
4) Production Production for the period December 1992 to June 1993 (updated 7 months) as per the list attached.
All the key result areas, i.e. production, proposals, field calls, workshops & CEB cases, are far below the pro-rata month-to-date target. You are advised to ensure for future months, all the key result areas meet or exceed the target.
Note: Individual production & activity report was given to you every month. This is for you to update & monitor your key result areas.
5) Reports - Reminder Again, we have the unpleasant task to remind you, all reports required must be submitted on time. This, you have not done. The following reports include:
The weekly activity report and summary
Prospect's listing
Show cause letter for May's activity & production monthly report.
This was told to you, and you agreed to reply between 13 July to 17 July 1993. To date, we have not received your reply.
6) From the prospect list, it was evident that you have a lack to follow-up on the proposals.
As per L's discussion with you and his memo dated 24 July 1993. Please comply with immediate effect.
7) Agency visits During the sales meeting on the 1993 updated and 1994 budget held on 29 April 1993, you gave us the 1993 updated budget of RM700,000 FYP. You have also submitted an action plan for agency visitation twice a month to conduct the workshop. Both of your submission was accepted by management.
Note: In May, you conducted zero workshops and June 1 workshops.
Again, you are advised to comply with the agreed number of workshops immediately.
Any workshop you conduct must be reported in your weekly activity and summary report.
8) Daily appointments and activities This memo reminds you that whenever you have an appointment with an agency, policyholder, broker or prospect, you are required to record it in the diary before going out of the office.
9) Meetings In meetings, you must contribute your ideas for the department's benefit and all present.
10) Time Management Your management of time needs improvement. Normally, it does not take a whole day to see two (2) prospects. Your reason for the delay is waiting for the prospect.
The following suggestion are offered:
Call up to the prospect to confirm the appointment before you visit them,
Get the assistance of the service executive when the case has been closed to service your client.
After the discussion, I asked you whether you had any questions, understood or were clear about our discussion. And this is to reconfirm you have no questions to ask, and you acknowledge you understand and is clear about the issues discussed.
The company views your performance seriously.
You are advised to comply with our department and company's requirement and improve your performance immediately. Yours sincerely,
signed ... Mr X Asst. Vice President
The claimant ignored COW4's instruction and did not record his whereabouts whenever he left the office for official or personal matters as stipulated in para. 8 of the memorandum.
It is the company's contention the claimant's poor performance was the result of his attitude in time-keeping, submission of reports and agency visiting. Hence his production was low. It was not due to the increase in the budget for production for assistant managers,
The company admitted taking away 16 agencies from the claimant's portfolio but contended the claimant was given the Japanese Account, which was a lucrative account.
As to XYZ Marketing Plan, which the claimant was initially involved in securing the account, it was pointed out the claimant's wife was the officer in charge of the matter in XYZ, and she had to decide the approval of the deal.
To avoid the allegations of conflict of interest, COW4 transferred the account to another assistant manager.
It is also the company's contention that assistant managers were given credit for the deal closed by them irrespective of allotment of the agency. The company permitted encroachment into each other's agency.
The company contends that the claimant's attitude towards his head of department, COW4 was disrespectful and non-cooperative. The claimant challenged COW4 to either transfer him out or terminate his employment. This has prompted COW4 to put the following comments in his year-end appraisal:-
Unwilling to accept suggestions & changes resulting in poor production performance, field calls & proposals issued. Despite being told to be punctual, he is habitually late and often absent without informing the office.The claimant demonstrated his disrespect for COW4 by refusing to sign or put any comments on the appraisal form.
The company had communicated to the claimant that his indiscipline, in particular, concerning his punctuality, was unacceptable, and in consequence, disciplinary action had to be taken against him.
It is the submission of the company the misconduct of the claimant viewed cumulatively made it impossible to continue to keep him in employment, and his dismissal was justified.
The claimant has denied in his testimony before the Court the misconduct allegedly committed by him, resulting in his dismissal.
He told the Court he could not clock in on time and arrived late for work in the morning because while on his way to the office, he had to meet with his agents or brokers at the car park for discussions.
He has to meet them before going to the office to clock in, as it would not be practical to ask his agents and brokers to wait for him to clock in first before meeting them.
He contended he was not the only one who clocked in late; other assistant sales managers like himself also clocked in late.
Moreover, they were not served with a show cause letter or warning letter but were given verbal counselling. It is the submission of the claimant he should not be blamed for having committed misconduct when in the interest of the company and for the convenience of the agents and brokers he met before clocking in.
The punch cards should not be used as a yardstick to ascertain that the claimant was a habitual latecomer.
The claimant refuted COW4's allegation that he failed to carry out instructions to keep the office informed about his whereabouts by making an entry in his diary.
He pointed out that COW4 did not produce the notebook or diary to show he did not make any entries regarding his whereabouts.
The claimant testified that he always wrote down in the diary and notebook and followed up with phone calls to the office to inform the office about his whereabouts.
He contended that there was no evidence of always missing during office hours. He disputed the evidence of COW2 (Witness No 2 for the Company) and COW4.
On the failure to meet his budget allocated, the claimant explained that the company increased his budget for the year 1993 from RM500,000 to RM700,000 and took away 16 agencies from him.
Furthermore, the company credited the business closed by the claimant's agents to other assistant sales managers.
It is the claimant's contention he was singled out for failing to meet the budget as other assistant sales managers were unable to achieve the monthly budget set for each of them.
The claimant averred that he did not challenge his head of department, COW4, to sack him during verbal counselling, but it was COW4 who challenged him to resign if he was not happy.
The claimant contends that COW4 was a man capable of putting everything down in writing and would have issued a show cause letter for the claimant's challenge if he indeed had challenged COW4. He was obviously lying about the challenge.
Finally, the claimant complained about how he was dismissed without being allowed to clarify, explain or defend himself.
No show cause letter was issued, and no charges were preferred against the claimant before the company decided to dismiss him.
He contends that from the evidence, there was a personal conflict between the claimant and his superior, COW4, who practised favouritism between the claimant and other assistant sales managers.
COW4 was out to gun him down and victimise him.
Court's Evaluation
On the question of the claimant's unsatisfactory performance in his production to meet his allocated budget, the Court finds that the removal of 16 agencies had affected the claimant's output of the business.
But with the background fact of personal conflict between COW4 and the claimant, the action of removing the claimant's agencies and the encroachment into the claimant's areas of business do not appear to be free from bias and prejudice.
There is no dispute that the working hours for the company were within the claimant's knowledge.
There is also no dispute that the claimant was consistently late to work.
The claimant's justification was that it was done in the best interest of the company.
On a balance of interests, he chose to act in a single, solitary act of indiscipline.
But the facts of the present case show that after verbal and written warnings, the claimant persisted in coming late without regard to his superior's instructions.
There is evidence of repetition of the same offence soon after a written warning.
In some months of the material period, the claimant was almost late every day.
When a show-cause letter to him requesting a reply, the claimant did not reply to the letter.
He continued to flout the discipline by coming late. A fresh show-cause was issued to him, and he again ignored the letter and continued his impunctuality.
The claimant failed to reply to the show cause letters despite repeated reminders. The claimant only explained lateness after the third show-cause letter.
The Court, however, did not find any reasonable or valid excuse in his reply to the show cause letter. In Yee Lee Corporation Bhd. V. Mallika A/p Paul; it is stated that:
Lateness is absence without leave for the period between the time the employee is required to arrive and the time he actually does arrive. As a species of unauthorised absence, it, too is misconduct. It is the excuse that though she was late, she had always accomplished her work on time. It is the Court's view that the companabsenty has the right to demand the claimant to be present at the starting time in the morning. It is irrelevant that the claimant was late to work only for a few minutes. It is still misconduct, especially when she had been warned to be punctual. The misconduct aggravates when the lateness is persistent.
Before considering the merits and demerits of the respective contentions of the parties concerning the occurrence of the events which led to the claimant's dismissal, the Court must make it absolutely clear that wilful disobedience to a lawful order is serious misconduct which may justify instant dismissal.
This is because such disobedience strikes at the root of the employer-employee relationship and is detrimental to discipline.
In my view, it is an implied condition of the contract of employment that an employee shall obey the lawful orders of the employer.
Any wilful or deliberate and intentional disobedience of the orders is tantamount to a repudiation of the terms of the contract.
The facts in the present case as regards the lateness to the office and the refusal to abide by the instructions of a superior are substantially not in dispute.
It would appear from the submission of the learned Counsel of the claimant the Court is urged, on the ground of the undisputed fact that there was a personal conflict between the claimant and his superior, there should be a finding of victimisation.
In light of the conduct and attitude of the claimant involving the series of incidents with his superior and his continued behaviour to ignore written warnings, it is evidentially impossible to come to a finding of victimisation.
Victimisation means one of two things.
The first is where the workman concerned is innocent. Yet, he is punished because he has somehow displeased the employer, for example, by being an active union member on workmen who were acting prejudicially to the employer's interest.
The second case is where an employee has committed an offence, but he is given punishment quite out of proportion to the gravity of the offence simply because he has incurred the employer's displeasure.
There is no evidence in this case of victimisation, but the conduct of the claimant viewed cumulatively showed his disrespectful attitude in rejecting his superior's instructions and challenging the company's policy.
The claimant entertained no criticisms and heeded no warnings.
Such behaviour, undermined the whole fabric of the hierarchy of superior and subordinate and effectively destroyed the trust which must subsist in any employer and employee relationship.
The Court is mindful there was a personal problem between the claimant and his immediate superior, COW4, and personal conflict had been reported to the general manager (GM), the head of the company in Malaysia.
The GM had counselled the parties to resolve their dispute. When this had failed, the GM sought the human resources department to look into the matter and advise him.
It would appear all senior personnel concurred with the GM that the claimant should be dismissed for the problem he had with his immediate superior in maintaining the company's policy and discipline.
For the reasons above, it is the finding of the Court that the claimant's repeated defiance of order undermining the authority of his immediate superior in wilful and deliberate circumstances justifies his dismissal.
The Court holds that his dismissal was with just cause or excuse.
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