Part 4FIT & PROPER PUNISHMENT

PRE PANZANA:CONFLICT OF VIEWS AT HIGH

COURT,COURT OF APPEAL.

Q : Whether Industrial court should review proportionality of punishment

REVIEW:OMilan Auto[1995] 3 MLJ 537.OItem 5 second schedule IRA 1967.OSunmugam’s case- adress mind.OCritism of British Leland’s case.OOther jurisdiction-India,South Africa.

OPublic vs Private employees.OCircumstances.

NO REVIEW.O Principles-who best to judge.O See Tan Tek Seng & British LelandO Proportionality only if out of proportion.O Not left to hunch of tribunalO Section 30(5)-clean hands.O Must plead.O Knowingly making a false statement.

PANZANA:O Industrial Court can review punishment.O Section 20(3)&30(5)IRA 1967,item 5 2nd sch.O Industrial Court must consider minor or major

misconduct .cannot merely substitute.O Must not only consider factors favorable to

claimant but also to company.O Direct it’s mind to all matters and decide

whether it would have reached another conclusion. The Federal Court was convinced that had the Industrial Court done so it would have found that the dismissal was reasonable.ie fair and not unfair.

OBSERVTION:O Position is clear Industrial Ct cannot

substitute a major misconduct to be a minor one.

O Industrial Court must take all matters into consideration ie: those favorable to claimant as well as to company.

O It must then ask itself whether having those factors in mind it would have reached another conclusion in that the dismissal of the claimant was reasonable.ie was it fair and not unfair.

Mistakes to be avoided:

Findings of DI.-stating that employee should be punished except dismissal.

State minor or major misconduct.

State circumstances and whether knowingly commit misconduct.

Claimant’s position of trust and confidence.

Take into account claimant’s service record and consequences of misconduct. Please note court can only decide on punishment based on what is pleaded and evidence adduce through company’s witnesses.

Keep records of reasons for meeting out punishment as those involve may forget or no longer in service when the case ends up in court.

POST PANZANAO HARIANTO EFFENDY BIN ZAKARIA &

8 LAGIO VO MAHKAMAH PERUSAAN & 1 LAGI

O Decision of federal court dtd 20 Oct 2014.

HARIANTO’S CASEO Background;O The appellants were members of NUBE and

held a picket outside Bumiputra Commerce Bank on 9,13,14,20 and 21 October 2003.

O At 1.25 pm on 21.10.03 they proceeded to the banks side entrance holding placards and balloons . They then proceeded to lobby and Entered the banking hall. The bank then suspended them , held a DI and Dismissed them.

Harianto’s caseO The Industrial Court found their

dismissal and punishment to be just and fair.

O The High Court and Court OF Appeal upheld the decision of the Industrial Court.

O They appealed to the Federal Court stating that the Courts below failed to consider that their misconduct warranted the punishment of dismissal.

Harianto’s caseO The Federal Court dismissed their Appeal.O Based on the facts and CCTV recordings

the Industrial Court was right to have found that the Appellants had committed the alleged misconduct.

O On the question of punishment the court reiterated the principles in Panzana .

O The Court went on to say the Appellants did not apologise or show remorse quoting the case of British Leyland.[1981] IRLR 91.

Harianto’s case.O The long standing and unblemished records of

service does not insulate them from dismissal quoting Lord Evershed M R in

O Laws V London Chronicle Ltd.O [1959] 2 ALL ER 285 at pp 287 and 288.O The conduct of barging through the entrance

with picket materials ,releasing balloons in the banking hall thereby bringing disrepute to the bank among its customers is a very serious misconduct involving the core of the banks business and dismissal would have been the inevitable punishment,

THANK YOU.