Muehbaeur Tehnologies Sdn Bhd Chan Shee Chuen

IN THE HIGH COURT OF MALAYA AT PENANG JUDICIAL REVIEW APPLICATION NO. PA-25-25-04/2020 In the matter of Order 53 of the Rules of Court 2012 Application of Muehbaeur Technologies Sdn Bhd for Judicial Review For an Order of Certiorari And In the matter of Industrial Court Award No. 287 of 2020 dated 29 January 2020 and received by Applicant’s counsel on 10 February 2020 And In the matter of section 20 of the Industrial Relations Act 1967 BETWEEN MUEHBAEUR TECHNOLOGIES SDN BHD … Applicant AND CHAN SHEE CHUEN … Respondent GROUNDS OF DECISION Introduction 1. This is a judicial review application for an order of certiorari to quash Award No. 287 of 2020 of the Industrial Court (“Award”). I allowed the judicial review application. Here are my grounds. Background facts 1 2. Vide a Letter of Appointment dated 1.8.2010 and Letter of Offer of Employment dated 1.12.2010, the Respondent was appointed as Group Leader (Service Department) effective 1.12.2010 with a monthly salary of RM7,300. Inter alia, the Respondent's Letter of Appointment expressly provided that: “7) Training - Employees are required to accept training when so requested ...”. 3. Vide a Notice of Transfer dated 19.7.2017, the Respondent was transferred to his last-held position of Assembly Group Leader End Test with effect from 1.8.2017. He was further informed that he would be reporting to one Koh Yong Heng, referred to as “COW-3” during the proceedings before the Industrial Court (“COW-3”). 4. Following the Respondent's transfer to the position of Assembly Group Leader End Test, he was required to undergo technical endtest training which consisted of two phases, namely Phase 1 and Phase 2. The Respondent completed Phase 1 of the technical endtest training between 1.8.2017 and 18.8.2017. 5. With regard to Phase 2 of the technical endtest training, COW-3 and the Applicant's Managing Director, one Sekar Ramasamy, referred to as “COW-4” during the proceedings before the Industrial Court (“COW-4”), followed-up with the Respondent on numerous occasions in August 2017. Vide an email dated 11.8.2017, COW-3 directed the Respondent to attend endtest training with two other employees, namely one Nor Haqimi Mohamed and one Darren Wong, from 22.8.2017 to 11.9.2017. 2 6. As of October 2017, the Respondent had yet to complete his technical endtest training. As a result, vide an email dated 9.10.2017, COW-3 informed the Respondent that he would need to do the training stage by stage. The Respondent was further directed to plan out with his endtester for the training, and to update COW-3 by the end of the day. Vide a reply email dated 12.10.2017, the Respondent informed COW-3 that he could not proceed with the endtest training, and asserted inter alia that he did not have time for the training and that he had, “already drop all [his] skills about machines as doing all arrangement task”. Vide a response also dated 12.10.2017, COW-3 stressed that the main purpose of the training was for the Respondent to familiarise himself with the endtest activities. COW-3 further reiterated that the Respondent should plan out his training stage by stage. 7. Vide an email dated 13.10.2017, COW-4 thereafter further highlighted to the Respondent that, “[t]he only way is to have experience is working on the machine so in this case training is simply a must”. And stated that the Respondent should arrange and plan his training wisely. However, as a result of the Respondent's failure to revert with his training schedule after more than 10 days, COW-4 followed-up with an email dated 24.10.2017, enquiring inter alia, whether his earlier email was being ignored. The Respondent then replied vide an email dated 24.10.2017 requesting until 27.10.2017 to check and revert. 8. As a result of the Respondent's failure to provide the Applicant with a training schedule, COW-4 again wrote to the Respondent on 31.10.2017 reiterating his expectation that the Respondent provide a training schedule. The Respondent replied vide an email dated 1.11.2017, alleging that he was too busy and ending with, 3 “I already explained to you via email my shortcoming as below and you keep pushing me. If that is the case, issue me a warning letter.” 9. Vide a reply email dated 2.11.2017, COW-4 highlighted that other Group Leaders had completed the training without issue, and further requested that the Respondent proactively raise any difficulties with him and COW-3. As the Respondent failed to respond to COW-4's email, vide another email dated 20.11.2017, COW-4 expressed his disappointment with the Respondent. Vide a reply dated 20.11.2017, the Respondent said, “Sekar, You can just issue me a warning letter. Topic close.” 10. The Applicant issued the Respondent with a show cause letter dated 22.11.2017, whereby 3 allegations of misconduct were set out against him, as follows: “(1) That you had, by your repeated refusal to attend the technical trainings as evidenced through your emails dated 12.10.2017, 1.11.2017 and 20.11.2017, despite clear direction from your superior, Mr Sekar Ramasamy, to do so, have committed repeated acts of insubordination (“1st Charge”); (2) Further to charge (1), you had, by your statements in your emails dated 1.11.2017 and 20.11.2017, i.e. “If that is the case, issue me a warning letter” and “You can just issue me a warning letter. Topic close” demonstrated a willful and deliberate defiance to the orders of your superior (“2nd Charge”); and (3) That you had, through your responses to your superior in your emails dated 1.11.2017 and 20.11.2017, had conducted yourself in a manner designed to disrespect and disparage your superior, Mr Sekar Ramasamy, and/or in a manner calculated to lower his esteem in the sight of his co-team (“3rd Charge”).” 4 11. Vide a reply dated 28.11.2017, the Respondent denied the charges of misconduct and gave the excuse that he was allegedly fully occupied with his daily tasks, and contended that there was no official planning for the training by COW-3. As the Applicant was dissatisfied with the Respondent's response, the Applicant issued a Notice of Domestic Inquiry dated 14.12.2017 affording the Respondent with the opportunity to respond to the charges levelled against him at a domestic inquiry conducted on 21.12.2017. The domestic inquiry panel found the Respondent guilty of the 1st and 2nd Charges. 12. Having considered the domestic inquiry report and the evidence, the Applicant concluded that the Respondent was guilty of the following 3 charges of misconduct, and accordingly terminated the Respondent's services with immediate effect vide a dismissal letter dated 12.1.2018, “(1) That you had, by your repeated refusal to attend the technical trainings as evidenced through your emails dated 12.10.2017, 1.11.2017 and 20.11.2017, despite clear direction from your superior, Mr Sekar Ramasamy, to do so, have committed repeated acts of insubordination; (2) Further to charge (1), you had, by your statements in your emails dated 1.11.2017 and 20.11.2017, i.e. “If that is the case, issue me a warning letter” and “You can just issue me a warning letter. Topic close” demonstrated a willful and deliberate defiance to the orders of your superior; and (3) That you had, through your responses to your superior in your emails dated 1.11.2017 and 20.11.2017, had conducted yourself in a manner designed to disrespect and disparage your superior, Mr Sekar Ramasamy, and/or in a manner calculated to lower his esteem in the sight of his colleagues.” 13. Subsequent to his dismissal, the Respondent filed a representation under section 20 of the Industrial Relations Act 1967 to be reinstated to his former position. The matter was then referred to the Industrial Court for adjudication and registered as Industrial Court Case No. 9/4-2524/18. 5 The matter was heard in the Industrial Court on 13.5.2019, 15.5.2019, 31.5.2019 and 7.6.2019. On 29.1.2020, the Industrial Court handed down its decision in Award No 287/2020. 14. In its Award, the Industrial Court ruled that the dismissal of the Respondent was without just cause and excuse, on the basis that, (a) The endtest trainings were not mandatory; (b) As a result, the Respondent's refusal to attend the endtest trainings was not tantamount to insubordination as the said trainings were optional; (c) There was no evidence of the Respondent's willful and deliberate defiance of his superiors; and (d) The Respondent's conduct was not disrespectful and disparaging to the Applicant's Managing Director i.e. COW-4. 15. The Industrial Court ordered the Applicant to pay a sum of RM295,200 as backwages and compensation in lieu of reinstatement to the Respondent. The Applicant's grounds of application 16. The Applicant’s case is this. The Respondent was dismissed upon being found guilty of 3 charges of misconduct, whereby he had, (a) displayed repeated acts of insubordination, (b) openly and willfully acted in defiance of the orders of his superiors, and (c) acted in a manner calculated to disrespect the Applicant's Managing Director. 6 17. The Applicant says that the foregoing are serious acts of misconduct which go to the root of the employment relationship whereby the Applicant could no longer repose the necessary trust and confidence to maintain the Respondent in its employment. The Applicant submits that the most fundamental implied duty of an employee is to obey the orders of his master. Based on the applicable legal principles governing the misconduct of insubordination, the Applicant avers that the termination was justified in the circumstances. According to the Applicant, the said misconducts emanate from the Respondent's own conduct over the course of several months whereby he had refused to attend the technical training related to his new role, despite repeated instructions from his superiors which included the said Managing Director. 18. The grounds in support of the Applicant's application are as follows: (a) The Industrial Court erred in law when it failed to properly have regard to the facts and evidence establishing that the endtest trainings were mandatory. (b) The Industrial Court erred in law in concluding that there was no insubordination as it failed to take into account the Respondent's superior's express written instructions. (c) The Industrial Court erred when it failed to take into account the relevant factor that the Respondent had acknowledged that the direction to him to attend Phase 2 of the training was a valid and lawful instruction. (d) The Industrial Court erred in law in failing to properly apply the legal principles governing insubordination and willful disobedience when it found that the Respondent's failure to attend Phase 2 of the training despite repeated reminders by his superiors, was not tantamount to insubordination. (e) The Industrial Court committed an error of law in concluding that the 2nd Charge had not been established when it held that the Respondent's communication to the Managing Director vide his emails dated 1.11.2017 7 and 20.11.2017, did not indicate a demonstration of a willful and deliberate defiance to the orders of his superior. (f) The Industrial Court failed to consider the gravity of the Respondent's conduct and that the Applicant could no longer repose the necessary trust and confidence to maintain the Respondent in its employment. (g) The Industrial Court committed an error of law and acted perversely in finding that the 3rd Charge had not been established. Decision 19. The decision of inferior tribunals may be reviewed for both process and substance on the grounds of ‘illegality’, ‘irrationality’, ‘procedural impropriety’ and ‘proportionality’. (See the Federal Court case of R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147). 20. The function of the Industrial Court in dealing with a reference under section 20 of the Industrial Relations Act 1967 is only to determine whether the misconduct complained of by the employer as the ground of dismissal is in fact committed by the workman, and if so, whether such ground constitutes just cause or excuse for the dismissal. (See the Federal Court case of Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344). 21. The findings of the Industrial Court are amenable to judicial review where the facts do not support the conclusion arrived at by the Industrial Court. Or where the findings of the Industrial Court have been arrived at by taking into consideration irrelevant matters or by failing to take into consideration relevant matters. (See the Federal Court case of Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629). 8 22. In order to succeed in an application for judicial review, the Applicant must establish that the Industrial Court in holding that the dismissal of the Respondent was without just cause or excuse, had erred in law and acted in excess of and/or without jurisdiction in that: (a) It failed to take relevant matters into consideration; (b) It had taken irrelevant matters into consideration; (c) It failed to apply the legal test and principles on insubordination; and/or (d) It had come to a decision which was so perverse and devoid of plausible justification that no reasonable body of persons or tribunal similarly circumstanced would have arrived at such a finding. 23. I am satisfied that the Industrial Court had committed errors of law as explained below. In relation to the 1st Charge, the Industrial Court erred in law when it failed to properly have regard to the facts and evidence establishing that the endtest trainings were mandatory 24. The 1st and 2nd Charges relate to the misconduct of insubordination and of openly and wilfully acting in defiance of the orders of the superior. In this case, the Respondent had failed to comply with the repeated directions of his immediate superiors to arrange for and to go for Phase 2 of the endtest training. Whereby it had been expressly made known to him the importance and the necessity of the said training to enable him to effectively carry out his functions. 25. The Industrial Court held: 9 “[27] ... No evidence been adduced by the Company that the training program was mandatory and it was conducted based on the Claimant's convenience. … [30] The Claimant's superior (COWS-3) did not direct the Claimant to attend the training secession ... … [32] ... [h]e did not disobey or not follow the COWS-3 and COWS-4 instruction ... [33] Therefore, no any conducts of insubordination by the Claimant. Since there was no any act of insubordination, the Claimant is not guilty for the first charge." 26. My opinion is that in reaching the above finding, the Industrial Court had committed an error of law when it failed to have regard to several material documentary and oral evidence. 27. Firstly, the Industrial Court failed to consider that the requirement to attend training was a contractual term. The Respondent's Letter of Appointment expressly provided that: “7) Training - Employees are required to accept training when so requested …”. 28. Apart from the foregoing, the Respondent's functions as Assembly Group Leader End Test as listed in his Job Description, included, (a) The description, “Able to support and do the endtest when need ...”, “Support endtester to settle their problem such as parts follow up, software or vision issue and so on ...”. (b) The requirement for the holder to possess, “Technical understanding, multidisciplinary for mechanics and electronics”. (c) The necessity to, “Improvement activities on the section in terms of process control and quality control”, “organization development and training for the team”, “standardize the training plan for the new end tester and also will need to develop the refreshment training for the existing team member”. 10 And the role description was, “to perform jobs resulting in high quality where the performance and result leads to a satisfied customer”. 29. The Industrial Court's finding that the training was not mandatory goes against the clear documentary evidence. The Industrial Court had not considered this crucial piece of evidence in its assessment and findings. This is a clear error of law. 30. Secondly, the Industrial Court failed to consider that the Respondent had been transferred to a position that required the training. It was in evidence before the Industrial Court that the Respondent had been newly transferred to the position of Assembly Group Leader End Test. Whereby the Notice of Transfer dated 19.7.2017 expressly informed the Respondent that, “In order to assist you in adapting to the new position, you will be provided additional training, and you will be provided with a Training Schedule in due course”. 31. The training was relevant to the Respondent's role as a group leader. Other group leaders had gone for the training. As early as August 2017, the Respondent had been directed on the issue of training. During cross- examination, the Respondent admitted that he had been prompted about the training from as early as 4.8.2017 vide COW-4's email. “22. Q: Referring to CLB-1 now, page 104. Based on this email from Mr. Sekar, he was prompting you about the training from as early as 4.8.2019, correct? A: Yes.” 32. This would have been soon after the Respondent had been transferred effective 1.8.2017. The necessity for the Respondent to have 11 undergone the relevant training following his transfer was underpinned by COW-4 who had testified as follows: “In connection with this new role, it was necessary that the Claimant undergo specialised end-test training”, and further, “the purpose for the Claimant undertaking the training was to ensure he was familiar with the activities of his department”. 33. COW-4 had also issued emails dated 13.10.2017 and 24.10.2017 to the Respondent to convey the written instruction that training is clearly mandatory: “Isn't it important to know what others doing and where can we help? The only way is to have experience is working on the machine so in this case training is simply a must. Kindly arrange it and plan it wisely. If next email arrive then it should be the training schedule …” 34. The evidence before the Industrial Court is thus clear that the training was compulsory and the Respondent was directed by his superiors to attend the training. The Industrial Court failed to take into account this crucial and relevant evidence. (a) COW-3’s email dated 11.8.2017 informing the Respondent, “And as I told you to have the endtest training together with Darren and Haqimi on DS20k from 22/Aug-11/Sep, so pls arrange your time to join the training”. (b) COW-3’s email dated 9.10.2017 informing the Respondent, “You will need to do the training stage by stage as now no more machine can do the training in 1 time ... Pls plan out with your endtester for the training. Pls update this by today”. (c) COW-3’s email dated 12.10.2017 informing the Respondent, “I know you cannot fully in the training but as I mention in previous email pls plan by stage. It is also OK. If in this case you will not be able to join all the others training due to no time at all? I think this is not make sense. Actually is how to do the arrangement and how to plan it. Pls plan it out”. 12 (d) COW-4’s email dated 13.10.2017 informing the Respondent, “[t]he only way is to have experience is working on the machine so in this case training is simply a must”. (e) COW-4's email dated 24.10.2017 “Did I miss your planning email? Or it's ignored?”. (f) COW-4’s email dated 31.10.2017 informing the Respondent, “I'm expecting a professional training schedule from a leader not a single sentence. Why you cannot submit it to us?”. (g) COW-4’s email dated 2.11.2017 informing the Respondent, “Issuing warning letter will change your attitude? We need to get better not worse. All GL of end test when through the training and they did the same thing you are doing and much more. So excuse cannot be the reason of not getting things done. I humbly request you to change and talk to me as well as Koh when you are not feeling comfortable. We intend to help you not the other way around on what you think”. (h) COW-4’s email dated 20.11.2017 informing the Respondent, “I'm truly disappointed as no action been done from your side! Today will be your last day of response!” 35. Thirdly, the Industrial Court failed to consider the Respondent's own conduct or acknowledgement. In cross-examination, the Respondent agreed that as an End Test Group Leader, it was reasonable for the Applicant to require him to undergo some form of training. The Respondent had in fact already completed Phase 1 of the training. The Respondent's own letter dated 10.8.2017 had admitted, “As you aware I don't have any skill and knowledge at the said Assembly End Test Department, nevertheless I accept your direction of transfer. I had carried out my duties at the said Department but I unable to continue due to new requirement and skills.” 36. Vide his email dated 24.10.2017, the Respondent had informed his superiors that he would revert with his proposed schedule by 27.10.2018, itself an acknowledgement for the need for training. Despite 13 acknowledging the instructions to attend the training and having received multiple reminder emails, the Respondent failed to do so. The Respondent had issued a challenge that a warning letter be issued to him for his failure to go for the training and consider the matter closed. This is a clear indication of his awareness that the failure to comply with the requirement to go for the training, warranted disciplinary action to be taken against him. 37. The Respondent argues that there was no clear instructions from the Applicant directing the Respondent to attend Phase 2 of the technical end test training with specific date, time and venue mentioned. However, it is not in dispute that the Applicant did not specify the date/time/venue. On the contrary, the Applicant had always been consistent that the Respondent was given the freedom and flexibility to decide on when to attend the training subject to his schedule. 38. The foregoing was indicative of the Applicant's consideration of the Respondent's workload and senior position. The Respondent was aware that it was left to him to arrange for his training. Nevertheless, the Applicant was also unwavering that the Respondent was required to attend the said training, and he was never given the option as to whether he could dodge the said training altogether. The language and tone of COW-3's and COW-4's numerous emails to the Respondent were unequivocal, namely that it was mandatory for him to have arranged and gone for Phase 2 of the technical end test training. 39. The Respondent contends that he was purportedly too busy to arrange to attend the training, plus the fact that the machine was allegedly not ready, thus he was not disobeying COW-3's and COW-4's instructions. This contention is devoid of merit. The Respondent's own 14 documents confirmed that he had expressly informed his superiors that he was not going to attend the said training, contrary to their express instructions for him to do so. 40. Based on the foregoing relevant factors which the Industrial Court failed to take into account, I am of the opinion that the Industrial Court erred in finding that the end-test training was not mandatory as the finding goes against all documentary and oral evidence. The Industrial Court further erred in concluding that the Respondent was not guilty of the 1st Charge on the basis that he was only asked to plan for training. The evidence is clear that the Respondent was allowed to his plan his own schedule for the training, and thereafter was expected to attend the same. In relation to the 1st and 2nd Charges, the Industrial Court erred in law in concluding that there was no insubordination and failed to apply the correct legal test and principles on insubordination 41. The Industrial Court held as follows: “The Claimant's superior did not direct the Claimant to attend the training secession. COWS-3 requested the Claimant to plan to slot in the training. CLB- 1 at page 17, COWS-1 only requested the Claimant to plan for the end test training. The said document was sent a copy to COWS-4. Having regards to the said instruction there is no any element of insubordination. The company's allegation of insubordination against the Claimant is not proven by the Company”. 42. In my view, the Industrial Court did not properly address its mind to the legal test and principles on insubordination and wilful disobedience. I refer to the following authorities. 43. One of the landmark decisions on the concept of insubordination was expounded by the Federal Court in Ngeow Voon Yean v Sungei Wang 15 Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 3 CLJ 837 at 849-850, wherein it was held: “[28] In Malaysia, the general rule governing the doctrine of superior orders is nothing more than the duty of obedience that is expected of an employee. The most fundamental implied duty of an employee is to obey his employer's orders. The classic modern statement of that duty is found in the judgment of Lord Eversherd M.R. in Laws v. London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 to be as follows: It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard - a complete disregard - of a condition essential to the contract of service namely the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally. [29] Working as instructed is the employee's basic consideration under a contract of employment ... … [34] The duty of an employee at common law is also similar in that he is to comply with all lawful and reasonable orders given by his employer with respect to the performance of such functions within the scope of his employment. That duty is one of the fundamental obligations which are deemed to be impliedly undertaken in every contract of hiring.” 44. In Menon v The Brooklands (Selangor) Rubber Co. Ltd. [1968] 1 MLJ 15, the High Court said: “It is well-established law that wilful disobedience of a lawful and reasonable order of the employer will justify summary dismissal. It is also axiomatic that one act of disobedience or misconduct can justify instant dismissal if it is of a nature which goes to show that the servant is repudiating the contract or one of its essential conditions.” 45. Further, the Federal Court in Menon v The Brooklands (Selangor) Rubber Co. Ltd. [1968] 2 MLJ 186 at 187 said: 16 “In this case there had been a previous warning of unsatisfactory work before the warning letter was delivered and the appellant's persistent refusal to acknowledge receipt of the letter fully justified, in my opinion, the view which the learned judge took at the trial that the appellant was not merely rejecting the letter but was rejecting also the criticism of his work contained in it and was giving clear notice to his employers that he did not accept their criticisms and did not intend to heed the warning. This, in addition to the contumacious manner in which he refused to obey instructions to see the manager of the estate, went far beyond a mere isolated act of disobedience of a lawful order. It challenged and rejected the whole fabric of the relationship of employer and employee and effectively destroyed the trust which must subsist in any such relationship where the employee holds a responsible position.” 46. From the above cases, for insubordination to arise, the following elements must be present: (a) the employer / superior must have issued a lawful instruction; (b) the instruction was conveyed to the employee; and (c) the employee had disobeyed or failed to have complied with the lawful instruction. 47. It is my finding that all the above elements are present in the instant case and that the Industrial Court had not sufficiently considered the evidence before it in its totality. 48. First, that the employer / superior must have issued a lawful instruction. In this case, the Respondent's superiors had issued clear and lawful instructions to the Respondent to attend the training. The instructions were conveyed in writing as follows: (a) Email dated 9.10.2017 issued from COW-3 to the Respondent:- “You will need to do the training stage by stage as now no more machine can do the training in 1 time ... Pls plan out with the endtester for the training. Pls update this by today.” 17 (b) Email dated 13.10.2017 issued by COW-4 to the Respondent:- “… in this case training is simply a must. Kindly arrange it and plan it wisely.” 49. The instructions were lawful because the Respondent was required under his job description and letter of appointment to attend job trainings. 50. Second, that the instruction was conveyed to the employee. It is not in dispute that the Respondent was aware of the aforesaid requirements. In fact, during cross-examination, the Respondent was referred to his job description as End Test Group Leader. He said “Yes”, to the question, “So I put it to you that it was reasonable for the Company to require you to undergo some training as you took on the role as an End Test Group Leader”. 51. In his email dated 9.10.2017, the Respondent acknowledged his superior's instructions to him to attend the meeting when he stated as follows: “Dear Sir, Will plan again to slot in the training.” 52. The Respondent's email dated 24.10.2017 informing that he would revert with his proposed schedule by 27.10.2018 is a further acknowledgement for the need for training. Further, the fact that the Respondent gave excuses for why he could not proceed with the training was in itself an affirmation that he understood that he needed to go for the training. 53. During the proceedings before the Industrial Court, the Respondent had agreed that his superiors expected him to undergo and complete the technical training. He also conceded that it was reasonable of the Applicant to require him to undergo some training. 18 “21. Q: So I put it to you that it was reasonable for the Company to require you to undergo some training as you took on the role as an End Test Group Leader A: Yes. … 58. Q: Based on all of the emails which we went through, do you agree that it is quite clear that Mr Sekar and Mr Koh had expected you to undergo and complete the technical training? A: Yes. … 59. Q: Looking specifically at your email at page 16 of COB-1, the middle email here. Based on your email, it is clear that you understood that Mr Sekar and Mr Koh had directed you to undergo the endtest training, because you have written to them to give explanations why you cannot proceed with the training, correct? A: Yes.” 54. I am of the view that the excuse given by the Respondent was baseless and the Industrial Court erred in taking the same into account. The Industrial Court failed to take into account the following relevant factors: (a) COW-3 and COW-4 had given the Respondent directions as early as August 2017 immediately following his transfer; (b) The Respondent was given sufficient time to comply (between October and November 2017); and (c) The Respondent had unequivocally reverted that he was not going to comply, before disciplinary action was subsequently taken against him. 55. Third, that the employee had disobeyed or have failed to comply with the lawful instruction. The Respondent - vide his emails dated 12.10.2017, 1.11.2017 and 20.11.2017 - had made it clear that he would not be complying with the directions of his superiors. 19 56. In his email of 12.10.2017, the Respondent had expressly indicated he would not proceed with the training, “As spoken last week about this topic, I have mentioned that I can't proceed with training for end test task on machine … I really don't have time for machine training.” 57. Vide his witness statement, the Respondent confirmed, in relation to his email dated 20.11.2017 replying to COW-4, “Due to my daily task I unable to attend the training secession and, that, I believe that if the company issue me a warning letter the matter would be end.” During cross-examination, he agreed that the Applicant could issue him a warning letter for not attending the training. 58. Vide his email dated 20.11.2017, the Respondent informed COW-4, “Sekar, You can just issue me a warning letter. Topic close.” From the Respondent's own email, it is evident that he refused to comply with his superiors' express written instruction. 59. During the domestic inquiry proceedings, the Respondent had in fact said: “If let's say the Human Resources give me a warning letter, the case will be closed, That I don't need to go through training already”. This indicates the Respondent's mindset and intention not to comply. The Respondent was unabashed about wanting to avoid training, and was willing to be issued a warning letter as a result thereof. During the 20 proceedings before the Industrial Court, the Respondent further confirmed that he did not complete the technical training. Failure to consider that the Respondent had no reasonable excuse to refuse the attend the training 60. It is not disputed that the Respondent gave the excuse of his heavy workload and busy schedule to justify his non-compliance. However, the Respondent was given the flexibility to attend the training in stages over a period of 3 months. And to schedule the same in accordance with his workload. This is clear from his superior's email dated 12.10.2017, as follows: “I know you cannot fully in the training but as I mention in previous email, pls plan by stage. It is also OK.” 61. Notwithstanding such accommodation, the Respondent still did not take the necessary steps to comply, Instead he defiantly challenged the management that he would rather accept disciplinary punishment for his conduct in not complying. It is not open to an employee to justify his own disobedience of a lawful order. In this case, the Respondent’s own emails indicate his awareness of his responsibility to prepare his own training schedule, which he was given the flexibility to arrange. 62. In my opinion, the Industrial Court failed to consider that: (a) The Respondent's superiors were aware of his schedule which was why they allowed him to stagger the training. (b) The Respondent's superiors gave him the flexibility of arranging for the training to suit his schedule. 21 (c) The Respondent's superiors had exercised restraint and patience in dealing with the Respondent's continued failure to attend the training. (d) Other groups leaders were able to attend the training. (e) At no time was Phase 2 of training deferred or waived. (f) The Respondent had in fact arranged the schedules of his subordinates to enable them to attend the said training. 63. I find that the excuse given by the Respondent was without merit and the Industrial Court erred in taking the same into account. During re- examination, the Respondent asserted that the reason he did not join the technical training was because Nor Haqimi Mohamed and Darren Wong were his subordinates. However, COW-3’s email dated 11.8.2017 to the Respondent had expressly directed him, “And as I told you to have the endtest training together with Darren and Haqimi on DS20k from 22/Aug- 11/Sep, so pls arrange your time to join the training.” Further, in comparing the training schedules of the said Nor Haqimi Mohamed and Darren Wong and that of the Respondent, it is apparent that the training topics included the very ones which the Respondent ultimately did not complete himself, specifically, ‘Machine Endtest detail training: DS20’. 64. Apart from the Respondent's job description which emphasized the need for training as well as COW-4’s emails dated 13.10.2017 and 24.10.2017 directing the Respondent to plan his training schedule and stressing that, “training is simply a must”, the Industrial Court had failed to consider the following evidence before it, on the importance of the said technical training, namely: (a) COW-4’s evidence during the proceedings, 22 “26. Q: The correspondence email between you and the Claimant, did you notify how important is this training? A: Yes, I did notify.” (b) COW-3’s evidence during the proceedings, “35. Q: Can you explain to the Honourable Court, how important of technical training? A: This technical training has the end test machine training, familiar the end tester, daily task. If not familiar with this task, it will affect our machine quality.” (c) During the domestic inquiry, COW-3 had confirmed, “… see another email I request ‘then if like that this is your team. Then you plan the manpower plan the activities. Then why not you plan by stage’. So for example first day you learn how to do the warm up stage by stage. I never fix ... you must complete within 2 weeks, you can spend one hour or two hours on one stage first. Then I ... I request him to plan himself to slot in plan he's available. Able to do this training. That's why will come to the email that I did request him to plan by stage. So I don't want to fix the time for him already. I asked ... I request him to plan according to his daily task to slot in by stage. Maybe he need to take 2 months, 3 months, unless already start with the plan. But ah ... there is no plan out till now.” (d) The minutes of the domestic inquiry proceedings whereby it was explained to the panel, “… The main objective of this training is to enable Chan have the necessary knowledge, skills and ability to be on his job efficiently and effectively. Ok. As part of his position as a Group Leader, he will have subordinates who will look for him whenever they have issues on machines. Ok. As a Group Leader, he must be able to advise and give them the support technically. Also to help his subordinates to further improve on their current conditions whenever they need help and also to run the department efficiently and effectively. Ok. In addition to this, one of the JD also indicates ‘support to solve the issue’; ok this reinforces the example that was given just now. Ok. The second phase of the training is needed to understand the machine better and also to support and solve problem ... problems that the machine has.” (e) The repeated reminders issued to the Respondent from August to November 2017 as detailed above. 23 (f) The Respondent's own conduct of attending Phase 1 of the said technical training, in acknowledgement of the importance of attending the same. 65. I find that the Industrial Court erred in law when it failed to examine the evidence in totality and failed to show judicial appreciation for the nature of the various emails which had been sent to the Respondent by his superiors including the Applicant's Managing Director. And which the Respondent confirmed receiving during cross-examination, whereby the Respondent's superiors had clearly and expressly directed him to go for the technical endtest training. 66. The emails issued to the Respondent included: (a) The email dated 11.8.2017 informing the Respondent to attend training with two other employees, Nor Haqimi Mohamed and Darren Wong, “And as I told you to have the endtest training together with Darren and Haqimi on DS20k from 22/Aug-11/Sep, so pls arrange your time to join the training.” (b) The email dated 23.8.2017, informing the Respondent, “Please ensure you follow the endtest training. As I will need you able to do the endtest for the machine, as the endtest leader my expectation is he should know how to do the endtest.” (c) The email dated 9.10.2017, informing the Respondent, “You will need to do the training stage by stage as now no more machine can do the training in 1 time ... Pls plan out with your endtester for the training. Pls update this by today.” (d) The email dated 12.10.2017 informing the Respondent, “I know you cannot fully in the training but as I mention in previous email pls plan by stage. It is also OK. If in this case you will not be able to join all the others training due to no time at all? I think this is 24 not make sense. Actually is how to do the arrangement and how to plan it. Pls plan it out”. The aforesaid email had been issued - on the very same day - in response to the Respondent's email dated 12.10.2017 wherein the Respondent had indicated he was too busy to proceed with the training. (e) COW-4’s emails dated 13.10.2017 and 24.10.2017 directing the Respondent to plan his training schedule and stressing that, “training is simply a must”. (f) The email dated 31.10.2017 informing the Respondent, “I'm expecting a professional training schedule from a leader not a single sentence. Why you cannot submit it to us?”. 67. Even if the Respondent's letter of employment, letter of transfer and job description did not already make it clear to him, the repeated emails sent by his superiors expressly made the Respondent fully cognizant of the need for him to attend the said training. During cross-examination, the Respondent answered “Yes” to the question that based on the foregoing emails, it was clear that COW-3 and COW-4 expected him to undergo and complete the training. 68. From the documentary and oral evidence, there was a clear and lawful order issued to the Respondent to undergo the said end test training. I find that the Industrial Court erred in failing to fully judicially appreciate the same. The Industrial Court had failed to properly consider the overall facts and evidence on the matter and apply the correct legal test and principles on insubordination. From the evidence, the Respondent had clearly committed the acts as described in the 1st and 2nd Charges and therefore committed insubordination. 25 The Industrial Court committed an error of law in concluding that the 2nd Charge had not been established when it held that the Respondent's communication to the Managing Director vide his emails dated 1.11.2017 and 20.11.2017, did not indicate a demonstration of a wilful and deliberate defiance to the orders of his superior 69. The Industrial Court held: “As for second charge, the Claimant had issued statements in his emails dated 1.11.2017 and 20.11.2017, i.e. ‘If that is the case, issue me a warning letter’ and ‘You can just issue me a warning letter. Topic close’ demonstrated a willful and deliberate defiance to the orders of your superior ... [th]ere is no evidence that these statements were amounting to demonstrate of a willful and deliberate defiance to the orders of his superior. ... They are unable to show to the Court that the action was done in deliberate and willful manner.” 70. In coming to such conclusion, the Industrial Court erred when it failed to properly consider the nature and content of the Respondent's emails dated 1.11.2017 and 20.11.2017 which respectively read, “If that is the case, issue me a warning letter” and “You can just issue me a warning letter. Topic close”. Whereby he had expressly confirmed to his superiors that he has no intention of going for the training. And further challenged the Applicant's repeated reminders / directions on the issue of the training by stating that they could just issue him with a warning letter. 71. The Industrial Court further compounded its error of law by taking into account the following irrelevant factors: (a) The superiors were aware of the Respondent's workload. (b) The Respondent was given the flexibility to determine his schedule. (c) No arrangements were made to enable the Respondent's attendance of the training. 26 72. The Industrial Court further erred when it failed to consider the Respondent's admission during cross-examination that it was not appropriate to tell his superior that the topic was closed when the Respondent had been directed to do something and had not done it. “52. Q: Please refer to Q&A12 of your witness statement. You state here that you believe that if the company issues you a warning letter, the matter would end. Meaning that you would have accepted a warning letter? A: Yes. 53. Q: So basically you are saying that the Company can issue you a warning letter for not attending the training, correct? A: Yes. … 63. Q: Do you believe that it is appropriate to tell your superior ‘topic close.’ when he has been directing you to do something and you have not done it? A: No, not appropriate.” The Industrial Court committed an error of law and acted perversely in finding that the 3rd Charge had not been established 73. The elements of the 3rd Charge are that the Respondent - vide his emails dated 1.11.2017 and 20.11.2017 - had disrespected, disparaged and lowered the esteem of his superior the Managing Director. Industrial jurisprudence has long established that rudeness and insolence towards a superior are serious misconducts which justify the penalty of dismissal. 74. The Federal Court in Harianto Effendy Zakaria & Ors v Mahkamah Perusahaan Malaysia & Anor [2014] 8 CLJ 821 at 837 confirmed, “[43] With regard to the appellants' contention that the courts below did not take into consideration the fact that the appellants were all long standing employees of the bank with no past records of disciplinary problems, we agree with the appellants that this is one of the matters that ought to be taken into consideration in deciding whether it was reasonable to dismiss them or not. However, there is no fixed rule of law to suggest that it was unreasonable to dismiss 27 employees with unblemished records for a single instance of insolence. It depends on the nature of the misconduct”. 75. The Industrial Court in Raja Nazim Raja Nazuddin v Padu Corporation [2019] 2 ILR 388 at 420-421 opined, “[129] It is a trite in industrial jurisprudence that the use of derogatory, insulting, insolent or impertinent language towards superior officers which lessens or impairs their authority, position or dignity is treated as misconduct that warrants dismissal. In Barney Production BC Sdn Bhd v. Philomina FF Silvari [1994] 2 ILR 60 (Award No. 232 of 1994) the court held as follows: On the contrary, the cumulative effect of language used and the disrespect shown towards senior officers of the company has undoubtedly lessened or impaired their authority, position and dignity, such a misconduct deserves the punishment none other than dismissal.” 76. The Industrial Court in Ng Hui Kheng v DNP Materials Sdn Bhd [2020] 2 LNS 1045 said, “[43] Notwithstanding the above, it is also clear to the court that the Claimant had challenged and questioned the authority of the MD and refused to comply with the Company's legal and reasonable instructions. As a senior officer holding the position of Executive Director, she was expected to lead her staff but when she challenged her superior on what her colleagues were already complying with, it was setting a bad precedent that she could do as she wished. This could lead to disrespect for the higher management, defiance of superior's orders and in any establishment, cause conflict and result in dire consequences for the Company. The court reiterates that insubordination and refusal to follow superior orders are very serious misconduct which cannot be condoned by employers". 77. The Industrial Court in Jong Siew Fah v Crystal Realty Sdn Bhd [2006] 2 LNS 1115 was of the view that, “Rudeness in a work place is the highest form of disrespectful behavior and disobedience which should not be tolerated by any employer. Disobedience is misconduct. It is even more serious when it is accompanied by rude behavior. If 28 an employee is rude to his employer or his agents, the fabric of mutual respect is destroyed and the employer has to move on with the employee just by tolerating him. There will come a time when the rudeness will take a steep gradient where all hell breaks loose and the employer will have no choice but to show the door to the employee with no hesitation. This is what has happened in the case before me. The claimant's rudeness has gone beyond tolerance as it is manifested by her banging the table and slamming the door to demonstrate her rudeness. In the words of Ghaiye, ‘rude behavior towards superior officers will amount to remissness for which the workers can be dismissed. A subordinate who behaves in such an impertinent fashion cannot be allowed to continue in service.’ (See B.R Ghaiye, Misconduct in Employment 2nd Edition at page 591 to 592.)” 78. In Clarence Samford a/l Krishnasamy v Competitive Supreme Sdn Bhd (Award No. 1066 of 2015), the Industrial Court said: “[42] The Claimant had been issued a second letter of warning for reporting late for work on 24 July 2006 which had caused delay in the daily operation of the Penang branch. The court has found that the Claimant's attitude in not being able to accept superiors' instructions and even questioning superiors' directions as serious acts of insubordination. They cannot be condoned by the Company as acts of insubordination would lead to disrespect in any establishment and cause conflicts and dire consequences. After considering all the above, the court confirms the decision of the Company that the punishment of dismissal meted against the Claimant was appropriate and commensurate with the misconduct committed by the Claimant.” 79. In Ahmad Nazri Mustafa v Boustead Petroleum Marketing Sdn Bhd [2017] 2 ILR 336 at 354, the Industrial Court said: “[67] Insubordination denotes the tendency or state of mind of any act which is contrary to the subordinate position of the employee. When an employee challenges the authority of the superior it amounts to giving formal notice to the officer that the employee will no longer act in the subordinate capacity and will not receive any orders or instructions from the superior officer. Challenging the authority is therefore, contrary to the basic character of the employer and employee relationship. This will therefore constitute insubordination”. 29 80. On this note, it is worth reiterating the content of the Respondent's two emails. (a) The Respondent's email dated 1.11.2017 to both COW-3 and COW-4 reads, “I already explained to you via email my shortcoming as below and you keep pushing me. If that is the case, issue me a warning letter”. He copied the email to himself. (b) The Respondent's email dated 20.11.2017 to COW-4 reads “Sekar, You can just issue me a warning letter. Topic close.” He also copied this email to himself. 81. COW-4 had testified on his reaction to the Respondent's email of 20.11.2017, “Based on his email, it was clear that the Claimant blatantly disregarded my authority and had no intention of complying with my instruction to him that he undertake the training, which was first given to him a month and a half before. His language and tone was, to me, openly and deliberately defiant and disrespectful, in spite of the repeated attempts by Mr Koh and myself to be supportive and to assist the Claimant to do the training in stages. What was also clear from his disparaging language was that he was not even interested in having a proper discussion or to work collaboratively to fix the issue. Given his openly defiant and insubordinate attitude, I reported the matte to the Company's Human Resources Department for their further action.” 82. Furthermore, during cross-examination, the Respondent had admitted as follows, “Q: Do you believe that it is appropriate to tell your superior ‘topic close.’ when he has been directing you to do something and you have not done it? A: No, not appropriate.” 83. In the circumstances, there was no basis for the Industrial Court to have held that, “There is no evidence adduced by the Company that the conduct of the Claimant had caused disrespect and disparage to the Company Managing Director. The 30 problem was between the Claimant and COW-3 & 4. However, the outburst of the Claimant is not tantamount to disrespect and disparaged the Managing Director.” 84. In coming to the said conclusion, the Industrial Court committed an error of law in, (a) failing to show judicial appreciation for the fact that the Respondent's correspondence to the said Managing Director, was an open challenge to the said superior's authority which goes to the very root of the employment relationship. (b) failing to show judicial appreciation for the fact that even a single act of failing to comply with a lawful instruction is an act of gross insubordination and would justify the termination of the employee's services. 85. In finding the Respondent not guilty of the 3rd Charge, the Industrial Court also took into account the irrelevant factor that the domestic inquiry panel did not find the Respondent guilty of this charge. Since both the Applicant and the Industrial Court are not bound by the findings of the panel and the Industrial Court's duty is to consider the matter de novo based on the evidence adduced before it. The Industrial Court erred in relying on the said decision of the panel instead of properly evaluating the evidence that was produced before it during the proceedings. 86. The law is clear in respect of the status of a domestic inquiry. I refer to the following authorities. 87. The Court of Appeal in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665 at 670-671, confirmed that the Industrial Court is not bound by the findings of a domestic inquiry. “[10] The fact that an employer has conducted a domestic inquiry against his workman is an entirely irrelevant consideration to the issue whether the latter had 31 been dismissed without just cause or excuse. The findings of a domestic inquiry are not binding upon the Industrial Court which rehears the matter afresh. However the Industrial Court may take into account the fact that a domestic inquiry has been held when determining whether the particular workman was dismissed.” 88. The Federal Court in Wong Yuen Hock (supra) where the facts revolved around the failure of the company in question to hold a domestic inquiry despite the requirement to do so as provided in the terms of employment, had confirmed (at page 356), “The very purpose of the inquiry before the Industrial Court was to give both parties to the dispute an opportunity to be heard irrespective of whether there was a need for the employer to hold a contractual or statutory inquiry. We were confident that the Industrial Court as constituted at present was capable of arriving at a fair result by fair means on all matters referred to it. If therefore there had been a procedural breach of natural justice committed by the employer at the initial stage, there was no reason why it could not be cured at the rehearing by the Industrial Court.” 89. The Industrial Court would in fact be committing an error of law in blindly accepting the findings of the domestic inquiry panel without evaluating the evidence adduced before it during the trial proper. The Federal Court in Milan Auto Sdn Bhd v Wong Seh Yen [1995] 4 CLJ 449 at 455 confirmed, “the function of the Industrial Court in dismissal cases on a reference under s. 20 is two-fold firstly, to determine whether the misconduct complained of by the employer has been established, and secondly whether the proven misconduct constitutes just cause or excuse for the dismissal. Failure to determine these issues on the merits would be a jurisdictional error which would merit interference by certiorari by the High Court. … The Industrial Court could not therefore shy away or excuse itself from determining the two issues required to be determined in dismissal cases under s. 20 reference. In our view, the Industrial Court had in the present appeal committed jurisdictional error in omitting to carry out its basic functions.” 32 90. The Court of Appeal in Lim Eye Thun v Majlis Peguam Malaysia & Anor [2010] 2 CLJ 45 at 64 confirmed that a flawed domestic inquiry can never render an otherwise fair dismissal, unfair. “[60] I say that the failure to conduct a domestic inquiry or the carrying out of a flawed domestic inquiry would not affect the dismissal of an employee”. 91. It should also be borne in mind that an employer is at liberty to reject the findings of a domestic inquiry panel. Even assuming the panel in this case had officially found the Respondent not guilty, the Industrial Court was nonetheless entitled to depart from the said finding as confirmed in Ismadei Sahnam v Proton Edar Sdn Bhd [2011] 3 ILR 311 at 321-322, “[63] Jikapun keputusan panel adalah betul, mahkamah ini tidak terikut dengan keputusan itu. Dalam kes RHB Bank Berhad v. Jankins Selina Lazer Pereira [2006] 3 ILR 2127 (Award No. 1504 of 2006). Y.A. Pengerusi dalam kes itu memutuskan bahawa pihak pengurusan adalah tidak terikat dengan keputusan siasatan dalaman. Petikan di ms. 2144: ‘This court holds the opinion that the decision of a DI does not bind the management of the bank if the bank, based on the overwhelming evidence of the high probability of the claimant being involved in the misconduct alleged against him, acted bona fide when it reversed the finding of the Panel of the DI and decided to dismiss the claimant in the interest of the bank and its clients’.” 92. The Industrial Court failed to consider that the Respondent in this matter failed to show any remorse of his actions or made any attempt to apologise. The Court of Appeal in Freescale Semiconductor Malaysia Sdn Bhd v Edwin Michael Jalleh & Anor [2013] 8 CLJ 1001 at 1009 in quashing the decision of the High Court considered, “[18] Further, the required remedy is that the misconduct does not occur again. There is no effort to apologise. There is no evidence of any such apology and that such apology was accepted by those in the workplace. Instead, the respondent's defence was of denial. It implies a lack of contriteness.” 33 93. The Industrial Court further failed to take into account that based on the Applicant's records, the Respondent had a number of disciplinary issues in the preceding years. Including a number of times where he had been issued warning letters or verbal counselling, as follows, (a) Documentation of verbal warning dated 15.5.2021; (b) Warning letter dated 10.4.2014; (c) Warning letter dated 19.5.2014; (d) 2nd Warning letter dated 19.5.2014; (e) Notification letter dated 4.6.2014; (f) Warning letter dated 3.6.2015; (g) Warning letter dated 7.7.2015; (h) Counselling/Verbal warning Form dated 26.6.2015; (i) Warning letter dated 9.5.2017; (j) Notification letter dated 31.5.2017. 94. Past misconduct of an employee is a relevant factor to be considered in determining whether the punishment of dismissal is harsh. In Kamala Loshanee a/p Ambalavanar v Jaffnese Co-Operative Society [1998] 7 MLJ 61 at 66, the High Court held, “The previous warnings could not be considered as 'spent’ even though the final warning was issued some 12 years prior to the incident. Since the final warning was breached by the applicant's misconduct, the respondent society could not be expected to overlook the past bad record of the applicant and to confine itself to the particular incident of this case ... Thus, the learned Chairman of the Industrial Court was right to take the past misconduct as a relevant consideration for the purpose of determining the appropriate punishment for the subsequent misconduct.” 34 95. Based on the foregoing factors coupled with the gravity of the Respondent's misconducts, my view is that dismissal was warranted in the circumstances. I find support in the following authorities. 96. In Dalmalingam a/l Subramaniam v United Packaging Industries Sdn Bhd (Award No. 1636 of 2010), the Industrial Court said: “Whether or not the Claimant subsequently carried out the orders is irrelevant for this Court to consider. Even if it was, the Claimant did not carry out the orders until a verbal exchange expressing his reluctance was made in front or other staffs ... The fact remains that the Claimant did not respond and obey the order of a superior and was not willing to co-operate as a team-player and this is insubordination." 97. In Diethelm Malaysia Sdn Bhd v Low Tee Jaw [1997] 3 ILR 999 at 1003, the Industrial Court said: “What the claimant was submitting is that if he had purported good reasons he was justified to disobey or refuse to obey the specific instruction of his superior. No employee can claim as of right and for whatever reasons, to disobey the legitimate orders of his superior, unless the orders are unlawful. To do so will constitute violation of discipline, a misconduct justifying the discharge of the employee. The mere fact that the superiors are not supportive or indifferent to the employee's discontent would not be a good defence to a charge of wilful insubordination.” 98. In Chocolate Products Management Sdn Bhd v Phee Cheew See [1994] 1 ILR 35 at 38, the Industrial Court held: “It is the finding of this Court, in the context of employer-employee relationship that the wilful and deliberate defiance of a written lawful order is not a minor infringement of the established standards of conduct. It is a serious infringement of the express or implied condition of the contract of employment and the appropriate punishment is dismissal.” 35 Conclusion 99. For the reasons above, the Industrial Court had taken into account irrelevant facts, failed to consider relevant matters, had acted outside its jurisdiction and had arrived at an erroneous decision based on the evidence adduced both oral and documentary, and the applicable principles of law. This is an appropriate case to warrant the interference of the reviewing Court. I therefore allowed the Applicant's application with costs of RM5,000. Dated 3 January 2022 Quay Chew Soon Judicial Commissioner High Court of Malaya, Penang Civil Division NCvC 1 Counsels Raymond TC Low and Grace Chai (Messrs Shearn Delamore & Co) for the Applicant. Palaniappan Ramasamy and Sobanaranee Venogopal (Messrs Palani) for the Respondent. Cases cited R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344 Ranjit Kaur S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 Ngeow Voon Yean v Sungei Wang Plaza Sdn Bhd/Landmarks Holding Bhd [2006] 3 CLJ 837 Menon v The Brooklands (Selangor) Rubber Co. Ltd. [1968] 1 MLJ 15, HC Menon v The Brooklands (Selangor) Rubber Co. Ltd. [1968] 2 MLJ 186, FC Harianto Effendy Zakaria & Ors v Mahkamah Perusahaan Malaysia & Anor [2014] 8 CLJ 821 Raja Nazim Raja Nazuddin v Padu Corporation [2019] 2 ILR 388 Ng Hui Kheng v DNP Materials Sdn Bhd [2020] 2 LNS 1045 Jong Siew Fah v Crystal Realty Sdn Bhd [2006] 2 LNS 1115 Clarence Samford a/l Krishnasamy v Competitive Supreme Sdn Bhd (Award No. 1066 of 2015) 36 Ahmad Nazri Mustafa v Boustead Petroleum Marketing Sdn Bhd [2017] 2 ILR 336 Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665 Milan Auto Sdn Bhd v Wong Seh Yen [1995] 4 CLJ 449 Lim Eye Thun v Majlis Peguam Malaysia & Anor [2010] 2 CLJ 45 Ismadei Sahnam v Proton Edar Sdn Bhd [2011] 3 ILR 311 Freescale Semiconductor Malaysia Sdn Bhd v Edwin Michael Jalleh & Anor [2013] 8 CLJ 1001 Kamala Loshanee a/p Ambalavanar v Jaffnese Co-Operative Society [1998] 7 MLJ 61 Dalmalingam a/l Subramaniam v United Packaging Industries Sdn Bhd (Award No. 1636 of 2010) Diethelm Malaysia Sdn Bhd v Low Tee Jaw [1997] 3 ILR 999 at 1003 Chocolate Products Management Sdn Bhd v Phee Cheew See [1994] 1 ILR 35 Legislation cited Order 53 of the Rules of Court 2012 Section 20 of the Industrial Relations Act 1967 37