INDUSTRIAL COURT MALAYSIA

CASE NO: 19(15)(6)(22)/4-2312/20

BETWEEN

LEE TECK KHIN

AND

SEPANG AIRCRAFT ENGINEERING SDN BHD

RECTIFICATION OF AWARD NO. 2211 OF 2023

1) By virtue of section 30(9) of the Industrial Relations Act 1967 at page 1, the

aforesaid Award 2211 of 2023 is hereby rectified to read as follows:

DATE OF HEARING : 10.11.2021, 11.11.2021, 12.11.2021, 07.12.2021,

09.12.2021, 10.12.2021, 14.12.2021, 15.12.2021.

REPRESENTATION : Messrs. Albar & Partners

2) By virtue of section 30(9) of the Industrial Relations Act 1967 at page 3 and

page 4 paragraph 6, is hereby rectified to read as follows:

[6] This Court considered all the notes of proceedings in this matter, documents

and the cause papers in handing down this Award namely:

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 a) The Claimant’s Statement of Case dated 23.11.2020.

b) The Company’s Statement in Reply dated 14.12.2020.

c) The Claimant’s Reply dated 28.12.2020.

d) The Company’s Bundle of Documents – COB ;

e) Common Bundle of Documents (Part A) – marked as “CBD-A”

f) Common Bundle of Documents (Part B) – marked as “CBD-B”

g) Non Agreed Bundle of Documents (Part C) – marked as “CBD-C”

h) Company’s Additional Bundle of Documents – marked as “COB-1”

i) Claimant’s Additional Bundle of Documents – marked as “CLA-1”

j) Company’s Witness Statement (Mohamed Raziff Abdul Hamid) – marked as

“COW-WS1”

k) Company’s Witness Statement (Wan Anita Binti Mohd Zaki) – marked as

“COW-WS2”

l) Company’s Witness Statement (Cyril Dubouloz) – marked as “COW-WS3”

m) Claimant’s Witness Statement (Lee Teck Khin) – marked as “CLW-WS1”

INTRODUCTION

[7] The dispute before this Court relates to the claim by Lee Teck Khin (“the

Claimant”) that he was dismissed from his employment without just cause or

excuse by Sepang Aircraft Engineering Sdn. Bhd. (“the Company”) on the

06.03.2020.

[8] The Claimant’s employment had been terminated by the Company due to his

misconduct committed by him.

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 CLAIMANT’S CASE

[9] Pursuant to a letter of Appointment dated 07.01.2008, the Claimant was

employed by the Company as Chief Financial Officer with a salary of

RM21,000.00 plus Employees' Provident Fund (EPF) and was provided

with company car, reimbursement of expenses related to the operations

of the company car and mobile phone usage and life and medical

insurance benefits. The Claimant's final monthly salary with the

company was RM36,750.00 plus Employees' Provident Fund (EPF) .

Additionally, the Company had on average, given the Claimant 2 (two)

months-Annual bonus. Reference is made to the letters confirming

bonuses for 2016 and the Claimant's 2018 EA form.

[10] On 03.06.2019 the Company issued a show cause letter to the

Claimant. Prior to this there had been no disciplinary action taken

against the Claimant, no complaints in his file and the Claimant’s work

had been recognized to the extent that he received annual bonuses and

had been appointed acting Chief Executive. The Claimant responded to

the show cause letter by way of a reply dated 11.06.2019. This reply

was accompanied by a chronology and the documents referred to in the

chronology.

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[11] The Company suspended the Claimant (with pay) with effect from

07.08.2019 and launched investigations against him. His suspension

was extended several times until his eventual termination.

[12] On 28.11.2019, the Company issued a second show cause letter to the

Claimant. The Claimant gave the Company a written reply dated

03.12.2019.

[13] By way of a letter dated 30.12.2019, the Company issued a Notice of

Domestic Inquiry against the Claimant.

COMPANY’S CASE

[14] Pursuant to the Claimant's Letter of Appointment dated 07.01.2008, the

Claimant was employed and commenced his employment with the

Company on 07.01.2008 as a Chief Financial Officer ("CFO") with a

salary of RM21,000.00 per month.

[15] The Claimant's employment had been terminated by the Company due

to his misconduct committed by him.

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[16] It is an undisputed fact that prior to his dismissal a Domestic Inquiry was

conducted against him on 17.01.2020.

[17] Vide a Notice of Domestic Inquiry dated 30.12.2019, four (4) charges in

respect of the Claimant's misconduct were levelled/preferred against

him. The Domestic Inquiry was conducted on 17.01.2020.

[18] The said four (4) charges are as follows: -

CHARGES AGAINST THE CLAIMANT

“First Charge

You have been observed to approve transactions that were not complying with

appropriate Business processes. As a consequence, the Company lost

USD131,986 paid to a fraudulent overseas bank account, despite findings from

HQ audit highlighting earlier this year the Company processes at risk and to be

corrected.

As a Chief Financial Officer (“CFO”) of the Company, you are expected to

exercise a stringent checking process before any Company financial

transactions.

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Second Charge

On the 24th of July 2018, you had confirmed vide a letter to the Treasury

Operations department of Airbus S.A.S. that the Company “has received the

Airbus Group Treasury Golden Rules 2017 and has bank accounts and

payments systems in compliance with the Airbus Group Treasury Golden Rules

2018”.

However, despite your confirmation, it was reported under the “Internal Controls

Fit Check Results for Sepang Aircraft Engineering” dated 24th of January 2019

(“Fit-Check”) issued by Airbus S.A.S that you had continued to authorize cash

advance (petty cash) payments to staff in the year 2018 and 2019 which is non-

compliance to the Rule 10 of the Treasury Golden Rules 2018.

“…Petty cash advances paid to employees incl. ~1000MYR for emergencies

e.g. travel abroad…Entity claims to have a validation by board for petty cash,

but no Treasury validation.”

The specific recommended action given to you was to “shut down petty cash

schemes.” Despite this specific recommended action, you failed to implement

this resulting in the Head of Finance Malaysia issuing a memo dated 2nd of May

2019 to highlight on the ongoing non-compliance and immediate remedial

action.

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In the circumstances, you failed to discharge your responsibility in an efficient

manner and promote the interests of the Company by not implementing specific

internal controls as recommended. Your act and/or conduct contravenes the

Code of Conduct and Discipline under the Employee Handbook of the Company

which amounts to a serious misconduct.

Third Charge

On the 5th of November 2015, you had invited an external DQS auditor for

body-massage service at Golden Sun Reflexology Sdn Bhd amounting to

RM158.00 (Ref No. 342009). You had submitted a Local Entertainment & Other

Expenses Claim Form to the Company for the reimbursement of the cost of the

body-massage service.

In the circumstances, you had participated, whether directly or indirectly, in an

activity which could lead to a conflict of interest within or outside hours of work

that is prohibited under the Company Code of Conduct.

Your act and/or conduct contravenes the Code of Conduct and Discipline under

the Employee Handbook of the Company which amounts to a misconduct.

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 Fourth Charge

On the 3rd of November 2015, you had invited an external DQS auditor for body-

massage service at Proto Bestari Sdn Bhd amounting to RM 132.00 (Ref No.

1058753). You had submitted a Local Entertainment & Other Expenses Claim

Form to the Company for the reimbursement of the cost of the body-massage

service.

In the circumstances, you had participated, whether directly or indirectly, in an

activity which could lead to a conflict of interest within or outside hours of work

that is prohibited under the Company Code of Conduct. Your act and/or conduct

contravenes the Code of Conduct and Discipline under the Employee

Handbook of the Company which amounts to a misconduct.

[19] The Company held a domestic inquiry on 17.01.2020 to deliberate on the

charges contained in both show cause letters and the Claimant appeared

to defend himself. The charges were merged into one inquiry. The charge

in the first show cause letter became first charge and the charges in the

second show cause letters became second, third and fourth charge. The

minutes of the inquiry can be seen by way of a letter dated 04.02.2020,

the Company informed the Claimant that he had been found guilty of first

and second charges and not guilty of third and fourth.

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 [20] By way of a letter dated 10.02.2020, the Company informed the Claimant

that the decision had been taken to dismiss him with effect from

06.03.2020.

[21] The Claimant disputes the findings of the domestic inquiry with concerning

of first and second charges and states that his dismissal was unlawful

and/or without just cause.

In respect of the First Charge or 1st misconduct

[22] It is an undisputed fact and the Company respectfully submits that on or

about 26.11.2018, the audit team from Airbus S.A.S. Headquarters had

conducted an internal audit or “fit-check” exercise to assess the

Company’s finance processes.

[23] Resulting from the fit-check exercises, a Fit-Check Memo dated

24.01.2019 was issued by the Company which was addressed directly to

the Claimant as Chief Finance Officer and Head of Finance of the

Company at the material time.

[24] It is also an undisputed fact that under item 6.2 of the Fit-Check Memo, it

had concluded and highlighted as follows: -

(a) That bank account changes were under the control of the Head of

Finance of the Company which is the Claimant herein;

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 (b) That there was no systematic cross check with regards to supplier

location for example country of bank account within the Company;

and

(c) Advised the Claimant to implement Airbus Group standards for bank

account management in the Company.

[25] On 21.02.2019, the Head of Finance or Airbus Malaysia, Mr. Cyril

Dubuloz, who is COW3 had sent an e-mail to alert the Company’s Finance

team, including to the Claimant, to recommend extra caution about the

fraudulent requests for payment, highlighting the fact that the requests may

come from what looks like a legitimate “airbus.com” e-mail address, and

forwarded a typical scam e-mail. Importantly, Mr Cyril had in his said e-

mail alerted the Company’s finance team, including the Claimant herein on

the followings: -

a. How a typical scam is conducted and forwarded a typical scam e-

mail;

b. To always check with Mr. Ting Kok Heng from the Company’s

finance team or himself if a similar e-mail is received by any of the

finance team members;

c. that the Company’s Chief Executive Officer, Mr. Raymond or himself will

never send a request like the typical scam e-mail without copying

someone else; and

d. He had also instructed the Claimant to forward the risk e-mail to his

team.

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[26] It is an undisputed fact that on 25.2.2019, the Claimant received an e-mail

from a fake or scam e-mail address, raymond.lim@aiirbus.com posing as

the Company’s Chief Executive Officer which gave instruction to the Claimant

to process a payment of “USD153.815” to a fraudulent bank account in the

USA. The change to a bank account in the USA (from France initially) was

exactly the risk highlighted in the Fit-Check Memo.

[27] It is the Company’s respectful submissions that the said instructions should

have alerted the Claimant, as the Chief Finance Officer at the material times,

on the veracity of the claims to be paid, given that the said fake/scam e-mail

had stated, inter alia:-

a. that “our normal bank account been placed under AUDIT”;

b. “so this week we will be using our SUBSIDIARY BANK ACCOUNT”; and

c. a dubious “Letter of Authorization” was enclosed to the e-mail;

[28] The Claimant as the Chief Finance Officer of the Company should have known

that the Company was not under any “audit” during that material time and that

the Company did/does not have a “subsidiary”.

[29] About one (1) month later, on 26.3.2019, the Claimant received another e-mail

from a fake or scam e-mail address, nicolas.clemencon@aiirbus.com,

posing and/or impersonating an Airbus colleague of the Claimant and

instructing the Claimant to make a “balance payment” to a “subsidiary bank

account”.

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[30] The dubious e-mail dated 26.3.2019 was sent directly to and addressed to the

Claimant. The contents of the dubious e-mail dated 26.3.2019 were similar to

the e-mail dated 25.2.2019.

[31] With respect, the Company submits that it is an undisputed fact that on the

printed version of the dubious e-mail dated 26.3.2019, the Claimant had

given handwritten instructions to “Lee Din” to use the fraudulent bank

account.

[32] In the payment instruction by the Claimant, the Claimant stroke

through/crossed out the correct/legitimate bank account details and wrote a

handwritten instruction to “cancel, change A/C”.

[33] On 26.3.2019, the Claimant, as Chief Finance Officer, instructed his team

directly to change the correct/legitimate bank account to the fraudulent bank

account.

[34] On 27.3.2019, a “transfer of fund” letter addressed to CIMB Bank Berhad

with the fraudulent bank account details was signed off by the Claimant, as

the Company’s CFO. The payment was subsequently approved on CIMB

Bank Berhad’s portal by the Claimant.

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[35] On 29.3.2019 and 15.4.2019, two (2) payments were made and approved by

the Claimant to a fraudulent bank account for a total sum of USD131,986.00

to a fraudster posing as an Airbus Avionic representative claiming to have

changed his/her bank account from France to the USA and who used the

exact same statements as the fraudster posing as the CEO of the Company

in the e-mail dated 25.2.2019.

[36] Based on the above undisputed facts, it is the Company’s respectful

submission and contention that there were sufficient elements to alert him as

the CFO of the Company and further clearly there was no process in place

to ensure that a change of bank account was controlled under the purview of

the Claimant at the material time.

[37] The Company had conducted investigations against him and on the matters

as stated in the preceding paragraphs herein. Based on the Company’s

investigation, the Company had found out and concluded that the Claimant

was responsible for the authorization of USD131,986 to be paid to a

fraudulent oversea bank account as the Claimant was the CFO for the

Company at the material time.

[38] Based on the Company’s findings, the Company had thereafter issued a

show cause letter dated 3.6.2019 whereby it had levelled/preferred a charge

against the Claimant due to his 1st misconduct act.

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 Upon receiving the Claimant’s reply to the show cause letter dated 11.6.2019

and pending the investigation on the Claimant’s 1st misconduct act, the

Company had suspended the Claimant’s duty on full pay with effect from

7.8.2019 until 6.1.2020 vide Letters of Suspension dated 7.8.2019, 26.8.2019,

3.10.2019, 29.10.2019 and 25.11.2019 respectively.

In respect of the Second Charge or 2nd misconduct

[39] It is an undisputed fact that every year Airbus S.A.S Head Quarters (HQ)

requires the Chief Finance Officer (CFO) of each entity (in the case of the

Company, the Claimant) to confirm their compliance or non-compliance to

the Treasury Golden Rules through an Attestation.

[40] Two (2) pertinent rules are that no petty cash and no corporate credit cards

shall be used by the employees/staff of the Company and authorized by the

Chief Finance Officer (CFO).

[41] Vide an email dated 23.5.2018, the Claimant received a request from Airbus

S.A.S Headquarters to fill up the Treasury Attestation. Attached to the

request were, inter alia, the Treasury Golden Rules, a template of the

attestation to be filled up (Microsoft Word Document) and a memorandum

describing the tasks to be done.

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[42] On 24.7.2018, vide a letter to the Treasury Operations department of Airbus

S.A.S, the Claimant had confirmed, whereby he had signed and returned the

Treasury Attestation to Airbus, that the Company “has received the Airbus

Group Treasury Rules 2017 and has bank accounts and payment systems

in compliance with the Airbus Group Treasury Golden Rules 2018”.

[43] On or about 26.11.2018, the audit team from Airbus S.A.S Headquarters

conducted a “fit-check” exercise to assess the Company’s finance

processes. Resulting from the fit-check exercise, a Fit-Check Memo was

released on 24.1.2019, which was addressed directly to the Claimant as

Chief Finance Officer (CFO) and Head of Finance of the Company. The Fit-

Check Memo concluded, inter alia “Petty cash advances paid to

employees including ~1000MYR for emergencies e.g. travel abroad.

Entity claims to have a validation by board for petty cash, but no

Treasury validation.” With the recommendation to “Implement group

standard on corporate credit cards with input from Treasury – shut

down petty cash schemes”.

[44] The specific recommended action given to the Claimant was to “shut down

petty cash schemes.” Despite this specific recommended action, the

Claimant had failed to implement it which was not in compliance with Rule

10 of the Treasury Golden Rules 2018. This prompted Mr. Cyril, as the Airbus

Malaysia Head of Finance, to issue a memo dated 2.5.2019 to highlight on

the ongoing non-compliance and immediate remedial action.

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[45] The petty cash scheme was finally shut down in June, 2019.

[46] Based on the Company’s investigation, the Company had found out and

concluded that the Claimant was responsible for the non-compliance of the

Airbus Group Treasury Golden Rules 2018 since the Claimant, as the

CFO of the Company, was in charge of the bank accounts and payment

systems of the Company. Further, the Claimant as the personnel who signed

and returned the Treasury Attestation to Airbus S.A.S. Headquarters

confirming that the Company was in compliance with the Treasury Golden

Rules which excludes the use of petty cash and/or corporate credit cards

failed to highlight the non-compliance for example on the usage of petty cash

and/or corporate credit cards.

[47] Subsequent to the investigations the Company had issued a show cause

letter dated 28.11.2019 against the Claimant. The Company had found that

the Claimant, as Chief Finance Officer of the Company, had failed to apply

sufficient level of scrutiny towards the business operations in adherence to

Airbus Internal Financial Control Standards and Ethics & Compliance

policies and to comply with the Company’s business ethical Code of

Conduct. Details of the charges levelled against the Claimant can be found

in the show cause letter dated 28.11.2019.

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 [48] After the Company received the Claimant’s reply to the show cause letter

dated 3.12.2019, and pending the ongoing investigations on the misconduct

committed by the Claimant, the Company further extended the suspension

of the Claimant’s duty until 6.3.2020 vide Letters of Suspension dated

25.12.2019 and 20.1.2020 respectively.

In respect of the Third and Fourth Charges or 3rd and 4th misconduct

[49] On 3.11.2015 and 5.11.2015, the Claimant had invited an external DQS

auditor for body massages, paid for them and claimed back the cost for him

and the auditor.

[50] It is the Company’s contention that the Claimant had participated, whether

directly or indirectly, in an activity which led to a conflict of interest within or

outside hours of work that is prohibited under the Company Code of Conduct.

[51] Upon the conclusion of the investigations, the Company found the Claimant’s

explanations and or replies for the two show cause letters unsatisfactory

and/or unacceptable. Instead of dismissing the Claimant immediately at that

material time, the Company had further conducted the said Domestic Inquiry

in respect of the four charges.

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 [52] Upon the outcome of the said Domestic Inquiry, the Company’s Human

Resources department issued a letter dated 4.2.2020 to inform the Claimant

on the result of the domestic inquiry where by he was found guilty on the

First and Second charges and not guilty for the Third and Fourth charges.

[53] The Claimant’s employment with the Company was terminated with effect

from 06.03.2020 vide a Letter of Termination of Employment dated

10.2.2020 due to the severity of the misconduct acts committed by the

Claimant.

THE LAW

Role and function of the Industrial Court

[54] The role of the Industrial Court under section 20 of the Industrial Relations

Act 1967 is succinctly explained in the case Milan Auto Sdn. Bhd. v. Wong

Seh Yen [1995] 4 CLJ 449. His Lordship Justice Mohd Azmi bin

Kamaruddin FCJ delivering the judgment of the Federal Court had the

occasion to state the following:-

“As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ

344; [1995] 2 MLJ 753, the function of the Industrial Court in dismissal

cases ona reference under section 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

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 just cause or excuse for the dismissal. Failure to determine these

issues on the merits would be a jurisdictional error ...”

[55] The above principle was further reiterated by the Court of Appeal in the case

of K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ 347 where his

lordship Justice Mohd Ghazali Yusoff, JCA outlined the function of the

Industrial Court:-

“[21] The learned judge of the High Court held that the Industrial Court had

adopted and applied a wrong standard of proof in holding that the respondent

has failed to prove dishonest intention and further stating that the respondent

has not been able to discharge their evidential burden in failing to prove every

element of the charge. He went on to say that the function of the Industrial

Court is best described by the Federal Court in Wong Yuen Hock v.

Syarikat Hong Leong Assurance Sdn Bhdand Another Appeal [1995]

3 CLJ 344 where in delivering the judgment of the court Mohd Azmi FCJ

said (at p. 352):

On the authorities, we were of the view that the main and only function

of the Industrial Court in dealing with a reference under s. 20

of the Act (unless otherwise lawfully provided by the terms of the

reference), is to determine whether the misconduct or irregularities

complained of by themanagement as the grounds of dismissal were

in fact committed by the workman, and if so, whether such grounds

constitute just cause or excusefor the dismissal”

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[56] It will not be complete this if this Court fails to make reference to the decision

of the Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M)

Bhd [1981] 1 LNS 30 where His Lordship Raja Azlan Shah, CJ (Malaya)

(as HRH then was) opined:

“Where representations are made and are referred to the Industrial Court

for enquiry,

it is the duty of that Court to determine whether the termination or

dismissal is with or without just cause or excuse.

If the employer chooses to give a reason for the action taken by

him the duty of the Industrial Court will be to enquire whether that

excuse or reason has or has not been made out. If it finds as a fact

that it has not been proved, then the inevitable conclusion must be that

the termination or dismissal was without just cause or excuse. The proper

enquiry of the Court is the reason advanced by it and that Court or the

High Court cannot go into another reason not relied on by the employer

or find one for it.”

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Burden Of Proof

[57] Whenever a Company had caused the dismissal of the workman, it is then

incumbent on part of the Company to discharge the burden of proof that

the dismissal was with just cause or excuse. This Court will now referto the

case of Ireka Construction Berhad v. Chantiravathan a/l Subramaniam

James [1995] 2 ILR 11 in which case it was stated that:-

“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.”

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Standard Of Proof

[58] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty

Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal had laid

down the principle that the standard of proof that is required to prove a

case inthe Industrial Court is one that is on the balance of probabilities

wherein hislordship Justice Abdul Hamid Mohamad, JCA opined:-

“Thus, we can see that the preponderant view is that the Industrial

Court, when hearing a claim of unjust dismissal, even where the ground

is one of dishonest act, including "theft", is not required to be satisfied

beyond reasonable doubt that the employee has "committed the

offence", as in a criminal prosecution. On the other hand, we see that

the courts and learned authors have used such terms as "solid and

sensible grounds", "sufficient to measure up to a preponderance of the

evidence," "whether a case... has been made out", "on the balance of

probabilities" and "evidence of probative value". In our view the

passage quoted from Administrative Law by H.W.R. Wade & C.F.

Forsyth offers the clearest statement on the standard of proof

required, that is the civil standard based on the balance of

probabilities, which is flexible, so that the degree of probability

required is proportionate to the nature of gravity of the issue. But,

again, if we may add, these are not "passwords" that the failure to use

them or if some other words are used, the decision is automatically

rendered badin law.

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EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT OF THE
MISCONDUCT

[59] The Claimant was offered employment as a Chief Finance Officer by

the Company and the Claimant having accepted the offer commenced

employment with the Company.

[60] This Court had considered all the evidence in this case and based on

the facts of this case and the evidence before this Court, this Court is

satisfied that the Company is able to show that the Claimant's was

terminated by the Company due to his misconduct committed by him.

Termination due to misconduct is a significant and often challenging

process for Company. Misconduct in the workplace refers to behavior

or actions by the Claimant that violate company policies, ethical

standards, or the law. Company have a responsibility to maintain a safe

and compliant work environment, and when Claimant engage in

misconduct, he may face termination. Here are key considerations

related to termination due to misconduct of the Claimant.

a) Investigation: Before terminating the Claimant for misconduct, it's

crucial to conduct a thorough and impartial investigation. This process should

include gathering evidence, speaking to witnesses, and allowing the Claimant

an opportunity to present their side of the story. By the evidence of before this

Honourable Court, this has been done by the Company.

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b) Clear Policies and Guidelines: The Company should have well-

defined workplace policies and guidelines that explicitly state what constitutes

misconduct. This clarity helps both the Claimant and Company understand

the expectations and potential consequences. These evidence were

produced by the Company’s Witness Statements by:

(i) Company’s Witness Statement (Mohamed Raziff Abdul Hamid) –

marked as “COW-WS1” who was the Chairman of Domestic Inqury and

General Manager of Airbus Helicopters Simulation Centre.

(ii) Company’s Witness Statement (Wan Anita Binti Mohd Zaki) – marked

as “COW-WS2)” who was Head of Human Resource for Airbus Entities

in Malaysia.

(iii) Company’s Witness Statement (Cyril Dubouloz) – marked as “(CLW-

WS3)” who was Head of Finance of Malaysia.

c) Progressive Discipline: In some cases, the Company may implement

a progressive discipline approach, which includes a series of escalating

consequences for repeated misconduct. This might start with verbal or

written warnings before progressing to suspension and ultimately,

termination. This has been done by show cause letter was given to the

Claimant by the Company.

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 (i) Company’s Witness Statement (Mohamed Raziff Abdul Hamid) –

marked as “COW-WS1” who was the Chairman of Domestic Inqury and

General Manager of Airbus Helicopters Simulation Centre.

(ii) Company’s Witness Statement (Wan Anita Binti Mohd Zaki) – marked

as “COW-WS2)” who was Head of Human Resource for Airbus Entities

in Malaysia.

(iii) Company’s Witness Statement (Cyril Dubouloz) – marked as “(CLW-

WS3)” who was Head of Finance of Malaysia.

[61] From the witness statement shows the evidence there are as per

below:

i) The Company had issued a show cause letter dated 3.6.2019 whereby it had

levelled/preferred a charge against the Claimant due to his first misconduct

act. Upon receiving the Claimant's reply to the show cause letter dated

11.6.2019 and pending the investigation on the Claimant's first

misconduct act, the Company suspended the Claimant's duty on full pay

with effect from 7.8.2019 until 6.1.2020 vide Letters of Suspension

dated 7.8.2019, 26.8.2019, 3.10.2019, 29.10.2019 and 25.11.2019

respectively.

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ii) Based on the Company's books and records which COWS-2 have

accessed to, Airbus S.A.S Headquarters requires the Chief Finance Officer

of each entity in the case of the Company, the Claimant to confirm their

compliance or non-compliance to the Treasury Golden Rules through an

Attestation;

iii) Two (2) pertinent rules are that no petty cash and no corporate credit cards

shall be used by the employees/staff of the Company and authorized by the

Chief Finance Officer;

iv) Vide an email dated 23.5.2018, the Claimant received a request from

Airbus S.A.S Headquarters to fill up the Treasury Attestation. Attached to

the request were, inter alia, the Treasury Golden Rules, a template of the

attestation to be filled up (Microsoft Word Document) and a memorandum

describing the tasks to be done;

v) On 24.7.2018, the Claimant had confirmed, whereby he had signed and

returned the Treasury Attestation to Airbus vide a letter to the Treasury

Operations department of Airbus S.A.S, that the Company "has received

the Airbus Group Treasury Rules 2017 and has bank accounts and

payment systems in compliance with the Airbus Group Treasury Golden

Rules 2018".

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vi) On or about 26.11.2018, the audit team from Airbus S.A.S Headquarters

conducted a "fit-check" exercise to assess the Company's finance

processes;

vii) Resulting from the fit-check exercise, a Fit-Check Memo was released on

24.1.2019, which was addressed directly to the Claimant as Chief Finance

Officer and Head of Finance of the Company. The Fit-Check Memo

concluded, inter alla "Petty cash advances paid to employees incl. -

1000MYR for emergencies e.g. travel abroad. Entity claims to have a

validation by board for petty cash, but no Treasury validation." With the

recommendation to "Implement group standard on corporate credit cards

with input from Treasury- shut down petty cash schemes"

viii) The specific recommended action given to the Claimant was to "shut down

petty cash schemes." Despite this specific recommended action, the

Claimant had failed to implement it which was not in compliance with Rule

10 of the Treasury Golden Rules 2018. This prompted Mr. Cyril, as Airbus

Malaysia Head of Finance, to issue a memo dated 2.5.2019 to highlight on

the ongoing non-compliance and immediate remedial action.

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ix) The petty cash scheme was finally shut down in June, 2019.

x) The Company had conducted investigations against the Claimant and on

these matters.

xi) Based on the Company's investigation, the Company had found out and

concluded that the Claimant was responsible for the non-compliance of the

Airbus Group Treasury Golden Rules 2018 since the Claimant, as the Chief

Finance Officer of the Company, was in charge of the bank accounts and

payment systems of the Company. Further, the Claimant as the personnel

who signed and returned the Treasury Attestation to Airbus S.A.S.

Headquarters confirming that the Company was in compliance with the

Treasury Golden Rules which excludes the use of petty cash and/or

corporate credit cards failed to highlight the non-compliance on the usage

of petty cash and/or corporate credit cards.

xii) The Claimant had also failed to raise any queries/questions as to the

contents of the Treasury Golden Rules and Treasury Attestation but

proceeded to sign and return the same with handwritten notes not related

to the petty cash and/or corporate credit cards non-compliance.

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 The Claimant's act gave the Company the impression that the Claimant had

understood the contents of the Treasury Golden Rules and the Treasury

Attestation.

xiii) The Company had also found out that the Claimant had participated to a

meeting with a Treasury Specialist from France a few days before he

signed and returned the Treasury Attestation where he could have raised

any queries/questions about the Treasury Golden Rules and the Treasury

Attestation. However, the Claimant had failed and/or did not raised any

question during the meeting.

xiv) Further, in 2018, before the Claimant signed and returned the Treasury

Attestation, Airbus S.A.S. Headquarters had initiated a "One Roof

Malaysia" plan whereby to harmonize and integrate Airbus subsidiaries,

including the Company. The Claimant had numerous meetings either in

person or via conference calls with Airbus Finance Individuals, including but

not limited to Giles Portier, Airbus Helicopters Malaysia Chief Finance

Officer (based in Subang), Airbus APAC Chief Finance Oficer, Guilhem

Cambefort (based in Singapore) as well as other Airbus Finance individuals

from Malaysia, Singapore, Asia and France. However, the Claimant did not

interact or raise any queries or questions about the Treasury Golden Rules

and the Treasury Attestation throughout all these meetings.

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xv) Therefore, the Company concluded that, the Claimant who alleged that he

was not given guidance in respect of the Treasury Golden Rules and the

Treasury Attestation was merely an afterthought contention since he had

signed and acknowledged the same and had numerous opportunities to

raise any queries/questions on the same, but the Claimant had failed to do

so.

xvi) The Company also concluded that based on the Fit-Check Memo

released by Airbus S.A.S. Headquarters on 24.1.2019 which was

addressed directly to the Claimant as Chief Finance Officer and Head of

Finance of the Company, it was recommended for the Claimant to shut

down petty cash schemes in the Company. Despite this specific

recommended action from the Headquarters, the Claimant failed to

implement the same. Therefore, as the Head of Finance of Airbus Malaysia,

Mr. Cyril had issued a further memo dated 2.5.2019 to highlight on the

ongoing non-compliance and required the Claimant's immediate remedial

action. However, no remedial action was taken by the Claimant.

xvii) Hence, the Company concluded that the Claimant is guilty and

responsible for the second misconduct because the Claimant had failed to

discharge his responsibility in an efficient manner and failed to promote the

interests of the Company by not implementing specific internal control as

recommended by Airbus S.A.S. Headquarters.

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xviii) The Company also concluded that the Claimant as the Company's Chief

Finance Officer was expected to know the standard of job performance

required from him, the demand of his job and the Company's expectation

on him. Therefore, the failure to shut down petty cash schemes was due to

the negligence of the Claimant.

xix) Finally, the Claimant made a false declaration to Headquarters,,which was

relying on such statements from subsidiaries all over the world to assess

the level of compliance to the Group policies.

xx) Based on the Company's documents and/or records which COWS-2 have

accessed to, subsequent to the investigations the Company had issued a

show cause Letter dated 28.11.2019 against the Claimant. The Company

had found that the Claimant, as Chief Finance Officer of the Company, had

failed to apply sufficient level of scrutiny towards the business operations in

adherence to Airbus Internal Financial Control Standards and Ethics &

Compliance policies and to comply with the Company's business ethical

Code of Conduct. Details of the charges levelled against the Claimant can

be found in the show cause letter dated 28.11.2019.

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 xxi) After the Company received the Claimant's reply to the show cause letter

dated 3.12.2019, and pending to ongoing investigations on the

misconducts committed by the Claimant, the Company further extended

the suspension of the Claimant's duty until 6.3.2020 vide Letters of

Suspension dated 25.12.2019 and 20.1.2020 respectively.

xxii) Upon the conclusion of the investigations, the Company found the

Claimant's explanations and/or replies for the two show cause Letters

unsatisfactory and/or unacceptable and hence the Company had issued

against the Claimant with a Notice of Domestic Inquiry dated 30.12.2019

where four (4) charges in regard to the Claimant's misconducts were

levelled/preferred against the Claimant.

The Domestic Inquiry was conducted on 17.1.2020 (hereinafter referred to

as "the said Domestic lnquiry").

d) Due Process: The Claimant has a right to due process, which includes

the opportunity to understand the allegations against him and respond. Based

on the evidence before this, the Company had followed its established

disciplinary procedures and provide the accused Claimant a fair hearing. This

were also has been done by Domestic Inquiry as per Honourable Court

evidence above.

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e) Documentation: Proper documentation is essential. Maintain records

of all relevant incidents, conversations, and actions taken, as this will help

establish the basis for termination and protect the Company in case of legal

challenges. This also has been proved by

i) Common Bundle of Documents (Part A) – marked as “CBD-A”

ii) Common Bundle of Documents (Part B) – marked as “CBD-B”

iii) Non Agreed Bundle of Documents (Part C) – marked as “CBD-C”

iv) Company’s Additional Bundle of Documents – marked as “COB-1”

v) Claimant’s Additional Bundle of Documents – marked as “CLA-1”

f) Consistency: The Company should apply workplace policies and

disciplinary measures consistently across the organization. Inconsistent

enforcement can lead to legal challenges and claims of discrimination. This also

was done by the Company Witnesses:

(i) Company’s Witness Statement (Mohamed Raziff Abdul Hamid) –

marked as “COW-WS1” who was the Chairman of Domestic Inqury and

General Manager of Airbus Helicopters Simulation Centre.

(ii) Company’s Witness Statement (Wan Anita Binti Mohd Zaki) – marked

as “COW-WS2)” who was Head of Human Resource for Airbus Entities

in Malaysia.

(iii) Company’s Witness Statement (Cyril Dubouloz) – marked as “(CLW-

WS3)” who was Head of Finance of Malaysia.

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g) Legal Compliance: It's vital to ensure that any termination due to

misconduct complies with applicable employment laws. Some jurisdictions may

have specific requirements, especially in cases of wrongful termination,

discrimination, or violation of labor laws.

h) Notification and Communication: When informing the Claimant of

their termination due to misconduct, it's essential to handle the situation

professionally and sensitively. Clearly explain the reasons for the termination

and provide any necessary details, such as final pay, return of company

property, or severance agreements. This was also done by the Company by

the documentary and oral evidence produced before this Honourable Court.

Termination due to misconduct is a serious step that should be taken after

careful consideration and adherence to the law and the company policies.

It is essential for the Company to strike a balance between maintaining a

productive, ethical, and safe work environment and ensuring that Claimant’s

rights and due process are respected throughout the termination process.

INTENTIONALLY LEFT BLANK

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[62] Whether the termination of the Claimant by the Company right exercise

on part of the Company in its managerial powers and prerogative to

organise its business in the manner it considers best was supported by

convincing evidence before this Honourable Court.

[63] Pursuant to section 30(5) of “The Act” and guided by the principles of

equity, good conscience and substantial merits of the case without

regard to technicalities and legal forms and after having considered the

totality of the facts of the case, the evidence adduced and by reasons of

the established principles of industrial relations and disputes as stated

above, this Court finds that the Company had proven on the balance of

probabilities that the dismissal of the Claimant from his employment

with the Company was with just cause or excuse.

3) In applying the jurisdiction under section 30(9) of the Industrial Relations

Act 1967, the Court hereby make the said rectifications.

HANDED DOWN AND DATED THIS 15th DAY JANUARY OF 2024

-signed-

(ZALINA BINTI AWANG@MAMAT)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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