13 March, 2019
In the recent Industrial Court Case of Vigneswaran Thevar a/l Annanthan v Malaysia Airlines Berhad Award N: 679 of 2019 dated 25 February 2019, we had successfully defended the Company against a claim for unfair dismissal.
The former employee was dismissed on 3 charges of misconduct involving his actions in assisting and facilitating the release of a cargo which was wrongly declared as frozen fish and later discovered to be anteater-meat after it was confiscated by Jabatan Perhilitan Malaysia.
The Industrial Court held that the performance of the Company’s witnesses were consistent and credible and therefore held that the Company had sufficiently proven Charges 1 and 2 against the Claimant. This case illustrates the value of the testimony of a witness before the Learned Chairman in coming to its decision.
In relation to Charge 3 against the Claimant which involves the Claimant corroborating with his brother in law in the release of the said cargo, the Court decided that the Claimant’s actions of printing the Airway bills and by making payment of RM300.00 was done to assist his brother in law in obtaining approval which finally led to the release of the said cargo. The sequence of events drew a reasonable inference that the Claimant had abetted his brother in law. Despite an absence of conclusive evidence to the same, the Court relied on circumstantial evidence to rule that the sequence of events irresistibly pointed to the conclusion that the Claimant had given the original Delivery Order to his brother in law. This lends credence to the Company’s charge in which the Claimant had corroborated with his brother in law to the false classification of cargo and the subsequent release of the cargo.
The case illustrates the fact that in spite of the absence of conclusive evidence, the Courts may nevertheless make a finding based on the circumstantial evidence readily available and also the evidence of credible witnesses.
The Company was represented in the instant matter by Vijayan Venugopal, who is a Partner in our Industrial Relations Practice.
Please click http://www.shearndelamore.com/alerts/Industrial-Court-of-Malaysia.pdf to read the text of the judgment.
For further information, please contact:
Sivabalah Nadarajah, Partner, Shearn Delamore & Co
sivabalah@shearndelamore.com
