ITL Assignment

FACULTY OF LAW
(Foundation in Law)
TRIMESTER 1, 2014/2014 SESSION
PIL0012 – Introduction To Law
Sitt Tatt Berhad v Flora a/p Gnanapragasam & Anor

(GROUP PL 02 )
No. ID Name Signature

1 11427002 Leong Khai Yean
2 1142700296 Muhammad Amir Rizah Bin Mohammad Faizal
3 1142700182 Lim Yi Ruo
4 1142700253 P.Thaneshwaran A/L Parmasivam

5 1142700267 Teo Yi Khang
6 1142700261 Muhammad Azri Bin Azly Sham

7 1142700276 Chan Pei Ling
8 1142700249 Zackry Bin Mohamed
9 1142700205 S.Avinashkumar
10 1142700266 Vivien Chee Juey Harn
Coordinator/Lecturer : Madam Maizatul Azila Binti Chee Din
Tutor : Madam Maizatul Azila Binti Chee Din
Date Submitted : ……………………………………

ACKNOWLEDGEMENT
&
Selamat Sejahtera
Special thanks to our lecturer, Madam Maizatul Azila Binti Chee Din, for her willingness in
helping and guiding us throughout the times.We also would like to express our gratitude to our
friends for being courteous and helpful.
Last but not least, to our family, without their supports and guidance, we will not be able to
finish this assignment on time. We also would like to thank all our families for being helpful and
understanding at all the times.
Sincerely,
Leong Khai Yean (ID No: 11427002)
Muhammad Amir Rizah Bin Mohammad Faizal (ID No: 1142700296)
Lim Yi Ruo (ID No: 1142700182)
P.Thaneshwaran A/L Parmasivam (ID No: 1142700253)
Teo Yi Khang (ID No: 1142700267)
Muhammad Azri Bin Azly Sham (ID No: 1142700261)
Chan Pei Ling (ID No: 1142700279)
Zackry Bin Mohamed (ID No:1142700249)
Vivien Chee Juey Harn (ID No: 1142700266)
S.Avinashkumar (ID No: 1142700205)
DECLARATION
We declare that this material, which we now submit for assessment, is entirely our own work and
has not been taken from the work of others, save and to the extent that such work has been cited
and acknowledged within the text of our work. We understand that plagiarism, collusion, and
copying are grave and serious offences in the university and accept the penalties that would be
imposed should we engage in plagiarism, collusion or copying. We have identified and included
the source of all facts, ideas, opinions, and viewpoints of others in the assignment references.
Direct quotations from books, journal articles, internet sources, module text, or any other source
whatsoever are acknowledged and the source cited are identified in the assignment references.
This assignment, or any part of it, has not been previously submitted by us or any other person
for assessment on this or any other course of study.
Dated THIS DECLARATION on 2nd of September 2014
Leong Khai Yean (ID No: 11427002)

Muhammad Amir Rizah Bin Mohammad Faizal (ID No: 1142700296)
Lim Yi Ruo (ID No: 1142700182)
P.Thaneshwaran A/L Parmasivam (ID No: 1142700253)
Teo Yi Khang (ID No: 1142700267)
Muhammad Azri Bin Azly Sham (ID No: 1142700261)
Chan Pei Ling (ID No: 1142700279)
Zackry Bin Mohamed (ID No:1142700249)
Vivien Chee Juey Harn (ID No: 1142700266)
S.Avinashkumar (ID No: 1142700205)
Facts Before Appeal
Sitt Tatt Berhad v Flora a/p Gnanapragasam & Anor
The Chairman of the Industrial Court, with sufficient judicial appreciation of the evidence
adduced before him had chosen to accept the evidence of the first respondent (Flora
a/p Gnanapragasam & Anor).
The Chairman had accepted the evidence of the first respondent on the fact that the
applicant (Sitt Tatt Berhad), failed to call Sivanada Manickam (Senior Manager of the
Human Resources Department of Sitt Tatt Berhad), Desmond Yeap (Senior Manager of
Operation of Sitt Tatt Berhad) and Nik Murad Nik Khamil (Executive Director of Sitt Tatt
Berhad).
With the above issue, the Chairman had stated that:
“The company sought to disprove the claim of harassments through the cross
examination of the claimant without producing the three relevant witnesses namely
Sivanada, the accused, Desmond Yeap the Senior Manager Operations to whom
the complains were made and also Nik Murad bin Nik Khamil, the Executive
Director who interviewed the claimant in this matter. The reason for not bringing
them in this hearing is that they had left the company and are not traceable.
However from the statement made by the company’s witness Gomathy Dewi,
COW 2 the Company Legal Officer, only little effort was made to serve them with
the notice of hearing, least of all with subpoenas 1. Subpoenas were applied for on
Desmond Yeap and Nik Murad but no attempt was made to serve on them. As
regards to Sivanada no attempt at all was made to get him to come to court. In
words of COW 2, ‘As for Siva his address uncertain. Did not send anyone to check
Siva on his last known address or home.’ Thus the provision of s 114(g) of the
Evidence Act can be validly invoked against the Company.”
The Chairman had also put into words on the issue of whether the several incidents of
harassments and annoyance and non-action on the part of the higher management of
the company to react on the complaints by the applicant constituted a breach on the
implied or/and express terms of the contract employment. He said that:
“To my mind the single incident at the hotel in Penang on 10 July 1997 was a
sufficient cause for the claimant but only if she had reported officially to the
company. But wisely or otherwise she preferred to keep quiet about the incident
hoping it would be a ‘one-off incident’. In fact the court is pleased that the claimant
did not exhibit her anger the next morning at breakfast but had carried on her
official task as though nothing had transpired the previous night. Nothing exacting
happened until one month later. It happened again 4 months later in December
1
A writ ordering a person to attend court.
followed by another 3 months later in Mid-April. Yet another on 2 May 1998 which
broke the camel’s back. She wrote a letter of resignation.”
The Chairman later concluded that there was a breach on the implied terms of the first
respondent contract of employment.
During 14 December 2001, an award, namely No 998 was handed down by the
Industrial court. The Industrial Court held that the first respondent (Flora a/p
Gnanapragasam) was constructively dismissed and consequently, the applicant, (Sitt
Tatt Berhad) was ordered to pay the first respondent back wages in lieu of
reinstatement2 in the sum of RM48, 680.
Facts on Appeal
The first incident
The conduct of Sivananda is a serious misconduct of sexual harassment
against the claimant the company’s female single employee.
The second incident
It is a serious misconduct of sexual harassment if not a sexual annoyance
by Sivananda on his subordinate female employee.
The third incident
Although it may not amount to sexual harassment it was nevertheless
an unfair labour practice both having to work after office hours and
2
In place of the restoration of previous condition/former position.
subjected to annoyance.
The fourth incident
The comments by Sivananda were mischievous and annoying.
The fifth and sixth incident
Sivananda’s conduct was not only most unbecoming of a superior officer
but were intended to harass and embarrass her. Furthermore, the order
to go back home the same evening from Penang was to say the least very
cruel and most unreasonable order.
The seventh incident
The way the appraisal was conducted was not annoying and the shouting
the following day was merely to get back on her and vent his anger for
having spurned him.

Issue/Decision/Ratio Decidendi
Main issue: (pg 162 [1])

Whether an order of certiorari under O 53 of the Rules of the High Court 1980 (RHC) by the
applicant to quash Award No 998 of 2001 handed down by the Industrial Court on 14 December
2001 is valid.
Decision: (pg 168 [19])
The judge is of the view that the industrial Court in handing the Award No 998 of 2001 had not
made a perverse finding or erred in law or acted in excess of its jurisdiction.
Before Appeal-Issue 1: (pg 167 [13])

Whether the provision of s 114 (g) of the Evidence Act can be validly invoked against the
Company due to the failure of the applicant to call Sivananda, Desmond Yeap and Nik Murad to
rebut claims of harrasment.
Decision: (pg 167 [13],[14])
On this issue, the Chairman of the Industrial Court stated that “the company sought to disprove
the claim of harassment through the cross-examination of the claimant without producing the
three relevant witnesses namely Sivananda, the accused, Desmond Yeap, the senior Manager
Operations to whom the complaints were made and also Nik Murad bin Nik Khamil, the
executive Director who interviewed the claimant in this matter. The reason for not bringing them
in this hearing is that they had left the conpany and are not traceble. However from the statement
made by the company’s witness Gowmathy Dewi, COW 2 the Company Legal Officer, only little
effort was made to serve them with the notice of hearing, least of all with subpoenas. Subpoenas
were applied for for on Desmond Yeap and Nik Murad but no attempt was made to serve on
them. As regards to Sivananda no attempt at all was made to get him to come to court. In words
of COW 2, ‘As for Siva his address uncertain. Did not send anyone to check Siva on his last
known address or home’. Thus the provision od s 114(g) of the Evidence Act can be validly
invoked against the Company.”
The judge then decides that he is in complete agreement with the Chairman. Section 114(g) of
the Evidence Atct was rightly invoked against the applicant.
The Ratio Decidendi
The Chairman gave his reasons for the choice he made.

Whether there was a delay on the part of the first respondent to raise the claims of sexual
harassment and the failure to lodge a police report.
Decision: (pg 167 [15],[16])
The Chairman of the Industrial Court addressed it in the following words: “Does the law require
the claimant in such a situation to lodge a report to the police? If it is, what there are the
functions of Desmond Yeap and Nik Murad as Senior Management Officers of the company or
both the claimant and Sivananda. The Court find it is not the claimant who is guilty of any
dereliction but these two officers who were guilty of dereliction of their duties in not taking any
remedial measures. The facts showed that they had convinced and condoned the acts of
Sivananda.”
The judge states that he is in full agreement with the Chairman . It is evidence that the first
respondant did raise the issue with Desmond Yeap and the same was within the knowledge of
Nik Murad. But no action was taken by both of them to protect the first respondant.
The Ratio Decidendi
To my mind the single incident at the hotel in Penang on 10 July 1997 was a sufficient cause for
the claimant but only if she had reported officially to the company. But wisely or otherwise she
preferred to keep quiet about the incident hoping it would be a ‘one-off incident’.

Whether the several incidents of harassments and annoyance and non-action on the part of the
higher management of the company to react on the complaints by the applicant constituted a
breach on the implied or/and express terms of the contract employment.
Decision: (pg 168 [17],[18])
The Chairman of the Industrial Court put it in the following words: “ To my mind the single
incident at the hotel in Penang on 10th july 1997 was a sufficient cause for the claimant but only
if she had reported officially to the company. But wisely or otherwise, she preferred to keep quiet
about the incident hoping it would be a ‘one-off incident’. In fact the court is pleased that the
claimant did not exihibit her anger the next morning at breakfast but had carried on her official
task as though nothing had transpired the previous night. Nothing exacting happened until one
month later. It happened again 4 months later in December followed by another 3 months later in
Mid-April. Yet another on 2 May 1998 which broke the camel’s back. She wrote a letter of
resignation.”
The judge decided that the Chairman was right to conclude that there has been a breach on the
implied terms of the first respondant contract of employment. It follows that the Chairman was
also right to conclde that the first respondant had been constructively dismissed by the applicant.
The Ratio Decidendi
In fact the court is pleased that the claimant did not exhibit her anger the next morning at
breakfast but had carried on her official task as though nothing had transpired the previous night.
Nothing exacting happened until one month later. It happen again 4 months later in December
followed by another 3 months later in Mid-April. Yet another on 2 May 1998 which broke the
camel’s back. She wrote a letter of resignation.
Stare decisis
In Palmolive (M) Sdn Bhd v Yap Koh Foong & Anor [2001] 2 MLJ 600 and MBF
Unit Trust Management Berhad v Mahkamah Perusahaan Malaysia & Anor [2004] 5 MLJ
526, it is trite law that findings of facts of the Industrial Court cannot be impugned in
the judicial review proceedings and certiorari cannot be used as a disguise to appeal
from findings of facts. Once there is evidence to support a finding of fact, the reviewing
court would not interfere with it. And it is not the reviewing court’s function to interfere
with the sufficiency of evidence. The conclusion of finding is purely left to the
Industrial Court and the reviewing court would not interfere merely because the latter
might come to different conclusion.
Conclusion/Overall Decision
In conclusion, the judge views was that the Industrial Court in handing the Award
No 998 of 2001 had not made a perverse finding or erred in law or acted in excess
of its jurisdiction and therefore the applicant’s application is dismissed with costs

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FACULTY OF LAW

TRIMESTER 1, 2014/2014 SESSION

PIL0012 – Introduction To Law

Sitt Tatt Berhad v Flora a/p Gnanapragasam & Anor

No. ID Name Signature

2 1142700296 Muhammad Amir Rizah Bin Mohammad Faizal

3 1142700182 Lim Yi Ruo

4 1142700253 P.Thaneshwaran A/L Parmasivam

6 1142700261 Muhammad Azri Bin Azly Sham

Coordinator/Lecturer : Madam Maizatul Azila Binti Chee Din

Tutor : Madam Maizatul Azila Binti Chee Din

Date Submitted : ……………………………………

Dated THIS DECLARATION on 2nd of September 2014

Leong Khai Yean (ID No: 11427002)

Facts Before Appeal

Sitt Tatt Berhad v Flora a/p Gnanapragasam & Anor

a/p Gnanapragasam & Anor).

With the above issue, the Chairman had stated that:

Evidence Act can be validly invoked against the Company.”

implied or/and express terms of the contract employment. He said that:

broke the camel’s back. She wrote a letter of resignation.”

respondent contract of employment.

Gnanapragasam) was constructively dismissed and consequently, the applicant, (Sitt

reinstatement2 in the sum of RM48, 680.

The first incident

The conduct of Sivananda is a serious misconduct of sexual harassment

against the claimant the company’s female single employee.

The second incident

It is a serious misconduct of sexual harassment if not a sexual annoyance

by Sivananda on his subordinate female employee.

The third incident

Although it may not amount to sexual harassment it was nevertheless

The fourth incident

The comments by Sivananda were mischievous and annoying.

The fifth and sixth incident

Sivananda’s conduct was not only most unbecoming of a superior officer

cruel and most unreasonable order.

The seventh incident

having spurned him.

Main issue: (pg 162 [1])

Before Appeal-Issue 1: (pg 167 [13])

Before Appeal-Issue 2: (pg 167 [15])

Before Appeal-Issue 3: (pg 168 [17])

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