WANG GEE KIANG 1. ) ISI CONTROL SDN BHD 2. ) MAHKAMAH PERUSAHAAN MALAYSIA

WA-25-95-02/2020 Kand. 74 07/08/2022 22:14:46 Pihak-pihak: Bagi Pihak Pemohon : Annou Xavier, Tristan Ng Kien Hann & Goh Jia Yi Tetuan Azri, Lee Swee Seng & Co. Bagi Pihak Responden : Vasanthi Rasathurai & Harvinder Singh Sidhu Tetuan Vin Law Co DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN MALAYSIA SEMAKAN KEHAKIMAN NO: WA-25-95-02/2020 Di dalam perkara mengenai satu permohonan kebenaran untuk perintah- perintah Certiorari mengenai keputusan No. Awad 3080 2019 bertarikh 27.11.2019 dalam kes No. Mahkamah Perusahaan Malaysia 14/4-297 /19; Dan Di dalam perkara mengenai Seksyen 20(3, Akta Perhubungan Perusahaan, 1967; Dan Di dalam perkara mengenai Aturan 53, Kaedah-kaedah Mahkamah Tinggi, 2012; Dan Di dalam perkara mengenai Jadual 1, Akta Mahkamah Kehakiman, 1964 1 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal ANTARA WANG GEE KIANG …PEMOHON (NO. K/P: 550607-10-6124) DAN 1. ISI CONTROL SDN BHD (NO. SYARIKAT: 221401-V) …RESPONDEN- 2. MAHKAMAH PERUSAHAAN MALAYSIA RESPONDEN JUDGMENT Introduction [1] The applicant was appointed as the Business Development Manager by ISI Control Sdn Bhd, the 1st respondent company, on 22.7.1991. His last drawn salary before his termination was RM18,000 per month. [2] The 1st respondent company is involved in trading, installing, commissioning and supplying electrical and instrumentation equipment. [3] It is not in dispute that at the material time, the applicant’s wife, Ms Soo Chin Lay, was a director of the 1st respondent company. Apart 2 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal from being a director, Ms Soo was also the Internal Sales Manager of the company. She ceased to be a director in September 2018. [4] On 19.7.2018, the applicant was terminated from his employment on the main allegation of a conflict of interest. The letter of termination inter alia states as follows: I have gathered conclusive evidence over the recent months of gross conflict of interest between your group of companies (see Appendix A) and ISI SB. You are the director of the said companies which [sell] similar products to ISI SB. In addition I have found that you use the resources and staff of ISI to further the interests of your group of companies. Your continued presence and involvement in ISI SB is (sic) not in the interests of the company. Hence I have to terminate your [service] immediately. Best regards, ISI CONTROL SDN BHD xxx LIM CHENG JEEN [5] The dispute was then referred to the Industrial Court on 29.10.2018. 3 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal At the Industrial Court [6] At the Industrial Court, COW-1 is Lim Cheng Jeen, the 1st respondent’s director. In his evidence, COW-1 testified that as the Business Development Manager of the 1st respondent company, the applicant was actively involved in the business of other companies without first obtaining approval from the 1st respondent. [7] There were 4 companies mentioned by COW-1 which the applicant was said to have been involved in. They were: (a) Schmierer SEA Sdn Bhd (“Schmierer”); (b) PIC Engineering and Services (“PIC Engineering”); (c) Time Electronics Asia (“Time”); (d) SEA Sino Trading & Consultancy Services (“SEA Sino”). [8] According to COW-1, the 1st respondent company wanted to supply 30 sets of Bourdon Tube Pressure Gauge to one of its customers, Kensains Sdn Bhd (“Kensains”). The price quoted to Kensains after a discount was RM50,250. The applicant’s wife, Ms Soo, was also involved in preparing the quotation on 24.4.2018. [9] At the same time, the applicant’s company, Schmierer, also sent a quotation to Kensains for the same product and number of units on 23.4.2018. According to COW-1, the applicant referred to himself as Business Development Manager in Schmierer. On another occasion, the applicant held out himself as Schmierer's Technical and Engineering Manager. 4 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] The quotation from Schmierer, also prepared by Ms Soo, offered a more significant discount to Kensains. The total price quoted by Schmierer was RM47,737.50. The price is well below the one quoted by the 1st respondent. [11] Needless to say, Kensains decided to place the order with Schmierer. [12] COW-1 further testified that the applicant had emailed to one Paul Woodley, who was attached to a Philippines company, BP Eco System Equipment Corp (“BP Eco System”). In the email dated 12.12.2017, the applicant suggested to Mr Woodley that Schmierer products were better than the 1st respondent company. [13] The Industrial Court found that the 1st respondent company had successfully proven that the applicant had conducted himself in a manner that was in a conflict of interest of the company. According to the Industrial Court, the applicant’s misconduct was serious in that the applicant had betrayed the trust reposed on him by the 1st respondent company. [14] The Industrial Court accepted the testimony of COW-1 that: (a) The applicant's action had resulted in the 1st respondent company having to incur loss since Kensains had opted to accept the quotation from Schmierer to the detriment of the 1st respondent. 5 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) By attempting to deal with BP Eco System, the applicant had acted against the interest of the 1st respondent company. The fact that Schmierer was eventually awarded the contract to supply Bourbon Tube Pressure Gauge from BP Eco System meant that the applicant, again, had acted in the manner that caused losses to the 1st respondent company. (c) The applicant has been the sole proprietor of PIC Engineering since 15.3.2012. The 1st respondent was not aware of the formation of PIC Engineering, whose main business activities include industrial process control equipment. The nature of this business is the same as that of the 1st respondent, where the applicant is employed as the Business Development Manager. The Industrial Court found that by establishing a potentially rival company, the applicant was in breach of his fiduciary duty to the 1st respondent. (d) The applicant was also the sole proprietor of Time and SEA Sino. The two companies were also in the business of supplying industrial and commercial equipment. (e) The Industrial Court had rejected the applicant’s testimony that his action was to ensure the 1st respondent secured the contract from Kensains and BP Eco System. According to the Industrial Court, by Schmierer giving a more significant discount to Kensains and BP Eco System, the applicant had denied the 1st respondent the opportunity to secure the contract. In the grounds of judgment, the Industrial Court held as follows, where “PYM” refers to the applicant: 6 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal Tindakan PYM sebaliknya menunjukkan beliau sememangnya hendak mencuri pelanggan Syarikat ISI Control dengan memberikan potongan yang lebih besar dan sudah tentu pelanggan akan memilih Schmierer SEA untuk membekalkan produk tersebut kepada mereka. (f) The applicant failed to adduce any corroborative evidence to support his contention that the establishment of his companies was with the consent of the 1st respondent. According to the applicant, he had obtained permission from one Encik Jess from the 1st respondent company. But the applicant failed to call Encik Jess to testify at the Industrial Court. (g) The Industrial Court also found that the applicant had abused his position by using the 1st respondent’s fund to pay the monthly rental of RM2,000 for a premises that he had used as storage for his companies since December 2019. The applicant’s argument that the tenancy was for the mutual benefit of the 1st respondent was rejected by the Industrial Court on the ground that the tenancy agreement was in the applicant's name. (h) The applicant had misused the 1st respondent’s fund to pay for the insurance premium for his family members without the consent of the 1st respondent. 7 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal (i) Finally, the applicant was also found to have used the 1st respondent’s staff members to benefit his personal companies. There was no evidence to suggest that the applicant’s action was consented to by the 1st respondent. [15] For the aforesaid reasons, the Industrial Court, in its award, held that the dismissal of the applicant was with just cause and excuse. [16] The applicant’s claim was then dismissed. At the High Court: The Judicial Review [17] Aggrieved by the award of the Industrial Court, the applicant commenced judicial proceedings for an order of certiorari to quash the same. [18] The main thrust of the applicant’s case is that the 1st respondent company was aware of the formation of the 4 impugned companies. According to learned counsel for the applicant, the applicant had informed Lim Sheng Seaw (“Encik Jess”), who is the indirect shareholder of the 1st respondent company. [19] In any event, SEA Sino was incorporated on 3.11.2008, whereas PIC Engineering was formed on 15.3.2012. Learned counsel for the applicant submitted that the Industrial Court failed to take into account that the two companies were incorporated before COW-1’s appointment as the director of the 1st respondent company. 8 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal [20] Secondly, learned counsel for the applicant contended that the Industrial Court had also failed to consider the fact that prior to the termination of the applicant’s employment, the applicant had already contributed and distributed a total sum of RM446,183.91 from the impugned companies to the 1st respondent company. [21] It is the contention of learned counsel for the applicant that the Industrial Court did not consider that COW-1 was aware of the existence of the impugned companies. One instance of the purported knowledge of COW-1 is that a total sum of RM144,000, being the management fees, was paid by the impugned companies to the 1st respondent. According to learned counsel, the payment appeared in the 1st respondent’s Report and Financial Statements for the Financial Year Ended 31.12.2016. COW-1 signed the report as one of the directors of the 1st respondent company. [22] Learned counsel further submitted that one of the cheques made to Time for the sum of RM295,000 was co-signed by COW-1. [23] Thirdly, learned counsel for the applicant submitted that the applicant never abused the 1st respondent's resources and members of the staff for his or his companies’ benefit. On the contrary, it was the applicant who sponsored the training of the 1st respondent’s staff. [24] The applicant conceded that he had used some of the members of the 1st respondent’s staff. However, the applicant compensated it by giving bonus payments to the 1st respondent’s staff and contributing to the EPF and Inland Revenue Board payments. According to 9 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal learned counsel, the applicant even sponsored the 1st respondent’s staff's company trip. [25] For the aforesaid reasons, learned counsel for the applicant submitted that the 1st respondent’s claim that the applicant had abused the company’s staff and resources and thereby created a conflict of interest is unsustainable. [26] My attention was then drawn to the judgment of the Federal Court in Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288 FC. Learned counsel for the applicant submitted that the case carries the proposition that this Court can still scrutinise the finding of facts of the Industrial Court and come to a different conclusion. [27] Fourthly, on the rental of the premises for storage, learned counsel for the applicant contended that the rental payment was initially made in December with the knowledge of Encik Jess. [28] The fact that the tenancy agreement was in the applicant’s name does not preclude the 1st respondent from accessing the said premises. [29] Finally, the applicant argued that the 1st respondent had breached the principle of natural justice when terminating the applicant. According to learned counsel, the 1st respondent had failed to give the applicant any show cause letter to enable the applicant to provide his explanation to defend himself. Neither was there any domestic inquiry process prior to his dismissal. 10 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal [30] In any event, according to learned counsel, the termination letter issued by the 1st respondent did not clearly state the charges against the applicant. [31] For the aforesaid reasons, learned counsel for the applicant submitted that the award of the Industrial Court was irrational and is tainted with a series of errors of law. The Analysis [32] Let me begin by outlining the general proposition that since the matter was referred to under s 20 of the IRA, the duty of the Industrial Court is two-fold: (a) To determine whether the misconduct of the applicant which formed the grounds of his dismissal by the 1st respondent was, in fact, committed by him; and (b) If so, whether such grounds constitute just cause or excuse for dismissal. The above proposition can be seen from the judgment of the Federal Court in Wong Yuen Hock v Syarikat Hong Leong Assurance Sdn Bhd & Anor Appeal [1995] 3 CLJ 344 FC. [33] The next issue is whether the failure to particularise the reasons, if at all, is fatal to the legality of the termination of the applicant’s employment. I believe the law is even if the 1st respondent did not 11 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal state any reason or proffered a different reason for the termination in the termination letter, the issue could still be raised by the 1st respondent company at the proceedings before the Industrial Court itself. [34] In Askoma Sdn Bhd v Mahkamah Perusahaan Malaysia & Anor [2022] 1 MLRH 72, it was held that even if no reason or a different reason altogether in the notice of termination, the Industrial Court would have a right to enquire into other grounds subsequently raised by the employer to justify the dismissal. [35] In any event, it is not disputed that the applicant was given the right to be heard and a fair opportunity to present his case before the Industrial Court. [36] The second main issue to my mind is whether this Court can disturb the finding of facts of the Industrial Court in accepting COW-1’s evidence and rejecting the applicant’s testimony. Learned counsel for the applicant urged this Court to scrutinise the finding of facts of the Industrial Court and come to a different conclusion. He relied on Nik Ramli Nik Hassan. [37] My understanding of the case is that a reviewing judge should not disturb such a finding unless it could be shown to be based on the grounds of illegality or plainly irrational. [38] Now, lest we miss the wood for the trees, the main finding of facts that needed to be made by the Industrial Court is (a) the alleged 12 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal misconduct of the applicant was indeed committed by him and (b) the grounds constituted just cause or excuse for dismissal. [39] From the evidence before her, the learned Chairman of the Industrial Court found that the applicant, through his companies, had caused the 1st respondent to suffer loss by acting against the interest of the 1st respondent company. It is not in dispute the securing of the supply contracts to the applicant’s Schmierer company from Kensains and BP Eco System was made at the time when the applicant was the Business Development Manager of the 1st respondent. [40] By any account, this is gross misconduct and a serious conflict of interest. Even if there was a contribution from the impugned companies to the 1st respondent company, it does not negate the applicant's misconduct. The contribution, if any, is claimable in a civil court. It does not legalise the clear conflict of interest on the applicant's part towards the 1st respondent company. [41] In the circumstances, even if COW-1 was aware of the formation of the impugned companies, the knowledge in itself is irrelevant to justify the applicant's misconduct. [42] The conduct of the applicant resulted in the 1st respondent losing the two supply contracts to Schmierer. It was at the expense of the 1st respondent company when the applicant was still in its employment. From this perspective, the finding of facts of the Industrial Court could not be said to be based on the grounds of 13 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal illegality or plainly irrational within the context of Nik Ramli Nik Hassan. [43] In the instant case, as in Nik Ramli Nik Hassan, there were no substantial flaws in the reasoning or the conclusions of the Industrial Court. The Industrial Court had conducted a detailed review of all facts and evidence, both oral and documentary and had drawn inferences from the conduct of the applicant before concluding that the applicant was guilty of serious misconduct and conflict of interest. [44] From the grounds of the judgment, it is quite apparent that the learned Chairman of the Industrial Court had made her finding of facts based on the credibility of the witness, in particular, the evidence of COW-1. The findings are immune from judicial review. [45] I do not think that this Court can interfere with said findings unless there are found to be unreasonable or bereft of any plausible justification, that no reasonable tribunal could have reached them. It is not the case here. In Colgate Palmolive (M) Sdn Bhd v Yap Kok Foong & Anor Appeal [2001] 4 MLJ 97 CA, Gopal Sri Ram JCA (later FCJ) made the following remarks: It is a case where the Industrial Court rejected the respondents’ evidence that they were entitled to retire at 60 years of age. This was a finding of fact based on the credibility of witnesses. It was immune from judicial review. Yet the learned judge set this finding aside and awarded compensation to the respondents until 14 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal they attained 60 years of age. This was clearly wrong. [46] The same proposition can be seen in Quah Swee Khoon v. Sime Darby Bhd [2000] 1 MLRA 856 CA. [47] In the circumstances of the case, the award of the Industrial Court was not tainted with any reviewable error. [48] On the contrary, the dismissal was with just cause and excuse within the meaning of the proposition stated by the Federal Court in Wong Yuen Hock. [49] This application for judicial review is therefore dismissed with costs of RM10,000 subject to allocatur. Tarikh: 7 Ogos 2022 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. 15 S/N NqIg3QssokuFoFeSHJlxZA **Note : Serial number will be used to verify the originality of this document via eFILING portal