3/22/23, 1:43 PM Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275

JX GOH Aug 18, 2020 7 min read

Loganathan Maniam v Murphy Sarawak Oil Co Ltd

 
Facts of the Case

The claimant had been employed by the company as a Construction Superintendent and on another contract
thereafter, as a Construction CSR (Company Site Representative). Approximately three years into his
employment with it, he was sent for assignment to the company’s contractor Brooke Dockyard and Engineering
Works Corp site in Kuching on 2 February 2015. Claimant was stationed there to manage the construction.

On 8 April 2015 (Two months later), claimant was issued a show cause letter on charges of sexual harassment
of his subordinate COW1. Claimant was also suspended for 7 working days from 8 April 2015 through the
letter. The company had extended the claimant’s suspension until further notice via its letter dated 15 April
2015. The company issued to the claimant a Notice of Domestic Inquiry to be held on 14 May 2015 via its letter
dated 6 May 2015 bearing 4 charges.

Charge No. 1: Verbally harassed your secretary, COW1 by calling her “Sayang” publicly; in front of Murphy’s &
Brooke Dockyard’s personnel and through electronic massages.

Charge No. 2: Physically harassed your secretary COW1 by putting your hand around her shoulders and
shaking her hands unnecessarily.

Charge No. 3: Paying unwelcome attention to your secretary COW1 by offering and/or giving her unwanted
presents and messages.

Charge No. 4: Abusing your position as company Site Representative by instructing and/or expecting your
secretary COW1to carry out work outside her scope of work.

The claimant responded to the show cause letter but the company proceeded to conduct a Domestic Inquiry
(‘DI’) against him, at the conclusion of which he was found guilty of Charge No. 1. Thus, the company had
dismissed the claimant with immediate effect through its Letter of Dismissal dated 7 July 2015.

Claimant contends that his dismissal had been tainted with mala fide, had been an act of discrimination
against him and that it had been carried out without just cause and excuse.

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3/22/23, 1:43 PM Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275

Issues of the Case

Whether his dismissal from employment had been carried out with just cause and excuse.

Judgments of the Court

In the case of Shell Malaysia Trading Co Sdn Bhd v. National Union of Petroleum & Chemical Industry Workers
[1986] 1 ILR 677, the Industrial Court stated that:

“It is for the management to determine whether the act of the workman constitutes misconduct and whether it
merits an order of dismissal. However, in determining whether there has been such misconduct, it must have
facts upon which to base its conclusions and it must act in good faith without caprice or discrimination and
without motive of victimization or intimidation or resorting to unfair labour practice and there must be no
infraction of the accepted rules of natural justice. When management does have facts from, which it can
conclude misconduct, its judgement cannot be questioned provided the above mentioned principles are not
violated.”

In Ireka Construction Berhad v. Chantiravathan Subramaniam James [1995] 2 ILR 11 the following was stated:

“It is a basic principle of industrial jurisprudence that in a dismissal case the employer must produce
convincing evidence that the workman committed the offence or offences the workman is alleged to have
committed for which he has been dismissed. The burden of proof lies on the employer to prove that he has just
cause and excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee.
The just cause must be, either a misconduct, negligence or poor performance based on the facts of the case.”

The standard in which the employer has to prove that the act of terminating the employee was carried out with
just cause or excuse is on a balance of probabilities. (Telekom Malaysia Kawasan Utara v. Krishnan Kutty
Sanguni Nair & Anor [2002] 3 CLJ 314.)

As a Court of Arbitration, s. 30(5) of the Industrial Relations Act 1967 (Act 177) requires the Court to decide a
case in accordance with equity and good conscience. (Harris Solid States (M) Sdn Bhd & Ors v. Bruno Gentil
Pereira & Ors [1996] 4 CLJ 747 CA)

The claimant contended that the DI was held in breach of the Rules of Natural Justice as inter alia he was not
given sufficient time to prepare for his defence as the details of the charge was only given to him on 6 May
2015, about eight days prior to the DI. The claimant also contended that the details of the allegations made
against him was not made known to him when the Show Cause letter was issued on 10 April 2015 and neither
was it revealed to him when the suspension imposed on him was extended on 15 April 2015. He also
contended that he was not given the witness statements of the witnesses that the company had called for the
inquiry and as such, he was unable to prepare for his defence.

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3/22/23, 1:43 PM Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275

The concept stated in the case of Skypak International (M) Sdn Bhd v. Foong Kah Tin [1987] 1 ILR 495 had
been submitted by the claimant and is also being referred to by this court, where the followings were stated:

“(i) That the workman whose conduct or misconduct is being inquired into must have reasonable notice of the
case he has to meet.
(ii) That he must have a reasonable opportunity of being heard in his own defence according to the maxim audi
alteram partem and this includes inter alia, the opportunity to face and challenge his accusers, witnesses and
whatever evidence there is against him, and
(iii) That the hearing must be held before an impartial tribunal ie. A person who is neither directly nor indirectly
a party to the case.”

It is the court’s view that all the contentions made by the claimant can be dismissed because the charges
framed against him which was made known to him via the Notice of DI dated 6 May 2015 was replied by him
via his letter dated 11 May 2015. However, the claimant’s contention that the panel members acted as
prosecutors during the DI proceedings needs to be looked at closely. It is proven that the panel members were
actively involved in questioning the claimant at the inquiry.

In the case of K Kavitha Krishnan v. Aetins Sdn Bhd [2016] 1 ILR 156, it was held that:

“The court held that the DI as not valid in view of how the DI had been conducted including where the panel
members had played active roles as if they were prosecuting officers.”

The prosecuting officer in the inquiry was one of the investigating officers. The roles of the prosecutor and the
investigating officer should be kept separate to ensure independent evidence being given at the inquiry.

Based on the facts, the court is of the opinion that there are fundamental flaws in the manner the DI
proceeding was conducted and as such the Rules of Natural Justice was indeed breached. In such
circumstances, the decision derived by the DI panel in such a proceeding is highly unlikely to be independent
and impartial. The DI proceeding held in this case is deemed invalid and its findings there on will not be taken
into consideration by the court.

The evaluation and findings of this case will thus be premised upon the evidence adduced and admitted during
the course of the hearing before the court. In Dreamland Corp (M) Sdn Bhd v. Choong Chin Sooi & Industrial
Court Of Malaysia [1988] 1 CLJ 1; [1988] 1 CLJ (Rep) 39, it was held that:

“The important effect of omission to hold an enquiry is merely that the Tribunal would not have to consider only
whether there was a prima facie case but would decide for itself on the evidence adduced whether the charges
have really been made out.”

The court is also guided by the principles enunciated in the case of Hong Leong Equipment Sdn. Bhd. v. Liew
Fook Chuan & Other Appeals [1997] 1 CLJ 665:

“The fact that an employer has conducted a domestic inquiry against his workman is, in my judgment, an
entirely irrelevant consideration to the issue whether the latter had been dismissed without just cause or
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3/22/23, 1:43 PM Loganathan Maniam v Murphy Sarawak Oil Co Ltd [2020] 2 ILR 275

excuse. The findings of a domestic inquiry are not binding upon the Industrial Court which rehears the matter
afresh.”

The court then proceeded to evaluate each of the four charges against the claimant. In relation to Charge No.
1, the court found that the claimant had indeed addressed COW1 as “saying” more frequently than the
claimant is willing to admit. The term “saying” as it is known in the Malay speaking region is an endearment
which generally indicates intimacy and or relationship beyond friendship when involving two people. The
relationship between the claimant and COW1 is an employment relationship ie, a professional relationship.

It is undoubted that the claimant not only being a man but was the superior to COW1 at that material time.
Furthermore, the employment history of the claimant indicates that the claimant had only commenced his
assignment with Brooke’s in Kuching on 4 February 2015. Based on the evidence adduced in court, in such a
short period of time of holding his position at the company, the claimant had used such endearments to
address his female secretary.

As for Charge No. 2 and No.4, based on the evidence in court, the company had successfully proven on a
balance of probabilities that the claimant had indeed acted in the manner stipulated in both these charges as
apart from COW1, there is evidence given by COW2 and COW4 in support of COW1’s evidence.

Charge No. 3 involves physical items which were said to have been given to COW1 by the claimant. The
existence of these gift items is undeniable but the issue which has given rise to a charge being formed against
the claimant revolves around the intention in gifting these items to his female secretary. The court held that the
claimant should be aware of the fact that gifting a female subordinate items which were very personal in nature
ie. flowers on Valentine’s Day and perfume is unacceptable and is open to display the giver’s intention to be
personal.

Based on the above findings of the court, the court is of the view the company had proven the claimant’s
misconduct on the balance of probabilities. In the circumstances of this case, it is the considered view of the
court that it is unreasonable to expect the company to have continued the claimant’s employment. The
claimant’s claim is hereby dismissed.

Principles of the Case

The following conducts can constitute as misconduct in the workplace:

Verbal harassment such as calling your subordinate “sayang” or "darling" without consent.

physical harassment such as putting your hand around her shoulders and shaking your subordinate’s
hands unnecessarily.

paying unwelcome attention to your subordinate by offering and/or giving unwanted presents or
messages.

abusing your position by instructing and/or expecting your subordinate to carry out work outside their
scope of work.

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