Mashkon Hj Samuri v Orang Kampung Holdings (M) Sdn Bhd  3
The appellant ("Mashkon") was formerly an employee of
the respondent ("the Company").
Mashkon's employment with the Company was terminate
pursuant to an internal investigation which was conducted in
respect of 3 original charges against him, which are: -
failure to complete handover duties to the acting factory
failure to use the punch card since 1 January 2007; and
failure to comply with the instructions of the Company in
participating in a game at Majlis Sukan Melaka.
Apart from the 3 original charges, Mashkon also faced an
additional set of 11 new charges.
Mashkon pleaded guilty to the 3 original charges.
However, the panel members of the Disciplinary Inquiry
("DI") found that the 11 new charges were serious
offences and the explanations given by Mashkon were not
Therefore the DI was of the view that Mashkon's service
with the Company ought to be terminated.
The Industrial Court ("IC") found that Mashkon's
termination was without just and valid excuse and that the
dismissal was not an appropriate order under the circumstance of
The IC awarded compensation and backwages to Mashkon.
Dissatisfied, the Company filed an application for judicial
review to quash the decision of IC's award.
The High Court Judge ("HCJ") allowed the judicial
review application holding that the dismissal was with valid and
Hence, this appeal by Mashkon on the ground that the HCJ had
erred in law and in fact.
DECISION: Allowing Mashkon's appeal with costs.
As Mashkon had been sanctioned by way of a warning letter
pertaining to his breach of non-clocking in of his time card, in
law, no further or subsequent action could be taken against
The Company had based its disciplinary action against Mashkon
on the same breach, for which he had been penalized albeit by way
of a warning.
Such an action of the Company was not allowed by law, wherein
Mashkon had been penalized twice for the same offence.
Having established misconduct on part of the employee, the IC
has the authority to exercise equity in deserving cases.
In this case where the IC is involved, the right to prove
"a just cause or excuse for the dismissal" no longer
resided within the exclusive domain of the employer in the private
The Company had also failed to show that Mashkon's failure
to handover duty properly had in fact resulted in important
information not being passed to the Company, thereby exposing the
Company to various unfavourable legal actions.
The IC had the necessary jurisdiction to depart from the
punishment that was imposed by the employer.
Furthermore, the circumstances warranting such a drastic
punishment were not established by the Company.
Therefore, there was no jurisdictional error committed by the
IC for the HCJ to disturb the award.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The commissioner found that the worker was fit to return to his work as a driver, as recommended by the medical evidence.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).