INDUSTRIAL COURT OF MALAYSIA

CASE NO.: 6(15)/4-485/20

BETWEEN

HASMADI BIN HAMZAH

AND

PETROLIAM NASIONAL BERHAD (PETRONAS)

AWARD NO : 2574 OF 2022

Before : Y.A. REIHANA BTE ABD. RAZAK – Chairman

Venue : Industrial Court Malaysia, Kuala Lumpur

Date of Reference : 21.02.2020.

Dates of Mention : 13.07.2020; 26.08.2020; 17.09.2020; 17.12.2020;

18.02.2021; 18.03.2021; 16.03.2021; 10.05.2022;
Dates of Hearing : 20.04.2021; 21.04.2021; 04.05.2021; 28.09.2021;
29.09.2021; 12.10.2021; 20.10.2021; 08.12.2021;
16.12.2021; 15.02.2022.

Representation : Mr. Simrenjeet Singh together with Mr. Ng Tat Sum

From Messrs Simrenjeet, Tay & Co.
Counsel for the Claimant

Claimant present in person

Ms. Wong Keat Ching together with Ms. Wong Yen Ni

From Zul Rafique & Partners
Counsel for the Company

Company’s Representative:
Mr. Mohd Norazami Muhammad – IR Manager

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REFERENCE

This was a reference by the Minister of Human Resources pursuant to

section 20(3) of the Industrial Relations Act, 1967 arising out of the
dismissal of HASMADI BIN HAMZAH (“the Claimant”) by PETROLIAM
NASIONAL BHD (the Company).

AWARD

CLAIMANT’S CASE

[1] The Claimant commenced his employment with the Company with
effect from 19.10.2009, as a contractual employee in the position of
Executive (Rig Planner and Analyst), Drilling Department of PETRONAS
Carigali Sdn Bhd.

[2] The Claimant was made a permanent employee and was appointed
to the position as Manager (Rig Planning), Drilling Management System of
PETRONAS Carigali Sdn Bhd with effect from 3.5.2012.

[3] The Claimant then was promoted as the Head of Rig Planning in the
Wells Department of PETRONAS Carigali Sdn Bhd with effect from
26.8.2015.

[4] With effect from 1.9.2016, the Claimant was appointed as the
Manager (Wells Equipment and Rig Move) in the Wells Department of
PETRONAS Carigali Sdn Bhd. The Claimant was then seconded to
PETRONAS Iraq Garraf Ltd as Manager (Wells Engineering Contract),
Wells Department with effect from 1.9.2018.

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[5] At the time of dismissal on 5.12.2019, the Claimant was serving as
Head (Wells Projects – Development), Wells Department of PETRONAS
Carigali Sdn Bhd and his last drawn basic salary was RM28,672.00.

[6] The Claimant was given a show cause notice and a suspension letter
dated 21.8.2019 where the Company alleged that he had committed
misconduct by placing himself in a potential conflict of interest and/or
conflict of interest position for the reasons that the Claimant: -

a) went to Jakarta between 16.9.2018 to 18.9.2018 for a golf

trip at Suvarna Jakarta Golf Club with one Badrul Hisham
Ismail who was a director in MKN Odyssey Ventures Sdn
Bhd- a registered contractor of the Company without
prior approval from the Company;

(b) had received gift and/or entertainment in the form of

return ticket from Kuala Lumpur International Airport
(“KLIA”) to Soekarno Hatta International paid by MKN
Odyssey; and

(c) had received gift and/or entertainment from Badrul in the

form of refreshments at KLIA, lunch and dinner during the
golf trip at Suvarna Jakarta Golf Club, golf fees at
Suvarna Jakarta Golf Club, accommodation at Hotel
Santika Hayam Wuruk Jakarta during the golf trip and
massage room with refreshment at Fortune Hotel Spa &
Lounge.

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[7] The Claimant vide a letter dated 3.9.2019, replied to the show cause
notice and denied all the allegations.

[8] The Claimant avers that Badrul who was his friend and his neighbor
invited him to go on a holiday golf trip to Jakarta.

[9] The Claimant contended that he accepted the invitation of the said
Badrul who was his friend as it was during his annual leave prior to him
being mobilized to Iraq and that the trip was on friendship basis.

[10] The Claimant contended that he had paid for all his portion of
expenses for the trip to Badrul and had provided the receipts to the
investigating officer.

[11] The Claimant also asserts that at the time he went with Badrul on the
Jakarta golf trip, his role in the Company did not involve any contractual
scope related to MKN Odyssey and his scope of work did not involve any
business with MKN Odyssey or Badrul.

[12] The Claimant asserts that Badrul volunteered to make all necessary
arrangements for the golf trip as he has been a a regular golf player and
being familiar with making arrangements in Jakarta.

[13] The Claimant contended that on 8.10.2019, he was informed that the
Company had decided to hold a domestic inquiry (DI) in respect of the
misconduct allegations against him.

[14] The Claimant contended that the DI conducted was in contravention

of the rules natural justice and in a prejudicial manner.

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[15] The Claimant avers that the decision of the DI panel finding him guilty
on the 5 charges alleged against him was an unfair decision and that his
dismissal was without just cause and excuse.

COMPANY’S CASE

[16] The Company contended that in February 2018, it was made aware
that the Claimant had put himself in a conflict of interests situation when he
had gone for a golf trip to Jakarta with one Badrul Hisham Bin Ismail
(Badrul) and the expenses of which was paid by MKN Odyssey Ventures
Sdn Bhd., a registered contractor of the Company.

[17] The Company avers that after carrying out investigation, vide a
Notice to Show Cause dated 19.8.2019 the Claimant was required to
provide his written explanation in respect of the 6 allegations of misconduct
as specified in the notice to show cause.

[18] By a letter dated 3.9.2019, the Claimant replied to the Company’s

notice to show cause [CLB-1, pages 87 – 91].

[19] The Company not being satisfied with the Claimant’s explanations,
decided to hold a domestic inquiry (DI) to enable the Claimant to answer to
the allegations of misconducts to an independent panel.

[20] The DI against the Claimant proceeded as scheduled wherein the

Company dropped the 1st sub-charge to Charge no. 3 and the Claimant
pleaded not guilty to all the other charges of misconduct preferred against
him.

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[21] The Company avers that the DI was conducted in accordance with
the principles of natural justice where the Claimant was given full
opportunity to advance his defense, cross-examine the Company’s
witnesses, and produce his witnesses and evidence.

[22] The Company contended that after having considered all the
evidence and testimonies of the witnesses produced during the DI, the DI
panel found the Claimant guilty of Charges No. 1, 2, 3, 4 and 6 and not
guilty of Charge No. 5.

[23] By letter dated 5.12.2019, the Claimant was informed of the findings
of the DI panels, and due to the seriousness of the proven misconducts,
the Company made a decision to dismiss the Claimant from his
employment with immediate effect as it no longer could place the
necessary trust and confidence in the Claimant.

[24] By a letter dated 23.12.2019, the Claimant appealed against the

Company’s decision of dismissing him with immediate effect.

[25] The Company rejected the Claimant’s appeal as it found that there
was no cogent reason to overturn the dismissal decision imposed against
the Claimant.

LAW

[26] The function of the Industrial Court in a reference under Section 20 of

the Industrial Relations Act 1967 been spelt out clearly by the Federal
Court in the case of GOON KWEE PHOY V J&P COATS (M) BHD [1981]
2 MLJ 129 where his Lordship Raja Azlan Shah, CJ (Malaya) stated:

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 “… where representation is 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.”

[27] It is trite law that the Company bears the burden to prove that the
employee had committed the alleged misconduct and that the misconduct
warrants the employee's dismissal.

[28] In this case, as the fact of dismissal is not disputed. As such, the only
issue, which is left to be deliberated before this court, is whether the
dismissal of the Claimant by the Company was with just cause or excuse.

[29] In the case of TELEKOM MALAYSIA KAWASAN UTARA V.

KRISHNAN KUTTY SANGUNI NAIR & ANOR [2002] 3 CLJ 314 the Court
made it clear that the standard of proof that is required for dismissal cases
is one that is on the balance of probabilities.

EVALUATION AND FINDINGS

[30] The Claimant was dismissed by the Company after the DI panels
found him guilty on the 5 out of 6 charges of misconducts leveled against
him.

[31] The five charges of misconducts that the Claimant were found guilty
relates to the Claimant’s failure to comply with the Company’s Conduct of

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Business Ethics (“COBE”). The Claimant was alleged to had gone on a
golf trip to Jakarta between 16 to 18 September 2018 funded by MKN
Odyssey Ventures Sdn. Bhd. (MKN), a registered contractor of the
Company, without the Company’s approval or permission.

[32] It is the duty of this Court to determine whether the Company on a

balance of probabilities had proven the allegations of misconduct preferred
against the Claimant and whether the proven acts of misconduct warrants a
dismissal.

[33] In the present case, the Company had conducted a domestic inquiry
(DI). The Court is mindful that when a DI has been conducted by the
Company prior to the employee's dismissal, the duty of the Court is to
consider whether the DI was valid and whether the inquiry notes are
accurate.

[34] At the outset, the Claimant contended that the DI conducted by the
Company was in violation of the principles of natural justice on the ground
that the charges are defective and ought to be held void because lack of
material particulars about his position in the Company and also on Badrul’s
relationship with MKN in the charges.

[35] The Company avers that the Claimant attended the DI where during
the DI proceeding, he had the opportunity to explain himself or raise any
confusion if any on the charges leveled against him.

[36] The Company also asserts that the Claimant was provided the
opportunity to examine the documents, adduced evidence and cross-

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examines and challenge the Company’s witness’s testimonies of the during
the DI.

[37] Upon perusing the DI notes, it is the considered view of this Court
that the DI was properly and regularly constituted. The DI proceeding was
conducted in a fair and proper manner with no procedural impropriety.
There is also no evidence of any breach of the fundamental rules of natural
justice

[38] The Court finds that the allegations as in the notice to show cause
were the exact charges before the DI panels and the Claimant all along
understood the charges, as he was able to provide his defense.

[39] There is no evidence to show that the Claimant during the DI raised
any issue about the charges being defective or that he was confused about
the charges leveled by the Company on him.

[40] The Claimant knew what the substance of the charges was and was
able to prepare a proper defense for it when he replied to the show cause
letter and at the DI without raising any confusion.

[41] The Court is also of the view that the Claimant's position or title did
not prejudice him at the DI or the hearing before this Court. To render the
charges defective or void now would be inconsistent with the spirit and
intent of the Industrial Relations Act 1967 as well as the principles of equity.

[42] There is also no evidence before the Court that the Claimant at the
material time had challenged the authenticity and accuracy of the DI notes.

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As such, the DI notes were accurate and the findings of the DI in respect of
the charges preferred against the Claimant were valid and not perverse.

[43] Nonetheless having said that, the findings of the DI is not binding
upon the Industrial Court as the Court rehears the matter afresh in a de
novo hearing. In HONG LEONG EQUIPMENT SDN BHD V. LIEW FOOK
CHUAN & OTHER APPEALS [1997] 1 CLJ 665, it was stated as follows:
The fact that an employer has conducted a domestic inquiry
against his workmen is, in my judgment, an entirely irrelevant
consideration to the issue whether the latter had been
dismissed without just cause or excuse. The findings of a
domestic inquiry are not binding upon the Industrial Court
which rehears the matter afresh. However, it may take into
account the fact that a domestic inquiry has been held when
determining whether the particular workman was justly
dismissed.

[44] As such, the hearing before the Industrial Court itself provides a
better and impartial forum for the Claimant to put forth his case before the
Industrial Court for a just decision to be made.

[45] The charges on which the Claimant were found guilty relates to the
Claimant’s actions of putting himself in a conflict of interest situation when
he went on a golf trip and received gifts or entertainment during the trip
from one Badrul from MKN that was a registered contractor of Petronas
(Company) without prior approval of the Company.

[46] Charge 1 [COB-1, page 1] against the Claimant reads as follows

Charge No.1
“That you, Hasmadi bin Hamzah (StaffNo:136499),during
your tenure as Manager (Wells Engineering Contract),
PETRONAS Carigali Sdn Bhd, Thi Qar, Iraq had committed
a serious misconduct in between 16September 2018 and
18 September 2018, when you placed yourself in a

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 potential conflict of interest situation when you went to
Jakarta for a Golf Trip at Suvarna Jakarta Golf Club with
Badrul Hisham Ismail (BHI) the Director of MKN Odyssey
Ventures Sdn.Bhd,a registered PETRONAS Contractor
without prior approval from PETRONAS.

Your action as depicted above amounts to misconduct

and in violation to: -

i. PETRONAS Code of Conduct and Business Ethics

(CoBE), Part I: Core Values and Culture, Section 2. 2 and
Section 2.3: Corporate Values and Cultures; and/or

ii. PETRONAS Code of Conduct and Business Ethics

(CoBE), Part II A: Conflict of Interest, Section 1: Duty
Regarding Avoidance of Conflict of Interest, Section 1.3;
and/or

iii. The generality of PETRONAS Code of Conduct and

Business Ethics (CoBE), Part IV: Discipline, Disciplinary
Process and Sanctions, Section1: Importance of Good
Conduct and Discipline; Section1.3;(xix) engaging in any
illegal or unethical practices such as taking or giving bribes
or receiving any illegal gratification whether in monetary
terms or otherwise; and/or

iv. Other express and/or implied terms of your

employment.”

[47] The Claimant submits that there was no conflict of interest situation
because it was an invitation to go on a golf excursion from his friend, one
Badrul whom he had known for almost 9 years.

[48] The Claimant also contended that he was of the view that he don’t
have to obtain any approval from the Company or of his superior to attend
the Jakarta golf trip with Badrul because he was on his annual leave before
departing for his deployment to Iraq.

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[49] The Claimant claimed that the conflict of interest situation does not
arise because Badrul was neither an employee nor a director of MKN and
that he was never made aware of the involvement MKN a registered
contractor of the Company in that trip.

[50] The Claimant also contended that the Company failed to establish
that he took advantage of his position in the Company which give rise to
any conflict of interest situation with the Company as the purpose of the
golf trip was a personal holiday for him with friends with his own expenses.

[51] The misconduct in Charge 1 is premised on the Claimant who is a

Manager (Wells Engineering Contract), Petronas Carigali Sdn Bhd that had
gone on a golf trip to Jakarta with one Badrul Hisham bin Ismail (Badrul)
alleged to be related with MKN Odyssey Ventures Sdn.Bhd (MKN) a
registered Petronas (Company) contractor which had given rise to a conflict
of interest situation.

[52] The Claimant never disputes the fact that he did go on the golf trip to
Jakarta between 16 to 18 September 2018 with one Badrul.

[53] It was also undisputed fact that MKN is a registered contractor of

Petronas (Company). As such, the element of the Charge 1 that remains to
be proven is whether the Claimant’s action of going on the golf trip to
Jakarta between 16 to 18 September 2018 with the said Badrul of MKN
gives rise to any conflict of interest situation of the Claimant’s position.

[54] The Claimant confirmed that he had been an employee of the

Company since 2009 and that he is familiar with the terms in COBE about
the “Corporate Values and Culture” of the Company, and to be bound by

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Clause 1.1 of Part II: Duties of Good Faith, Fidelity, Diligence and Integrity,
Part IIA: Conflict of Interest of COBE.

[55] From the Claimant’s testimony, the Court opined that the Claimant
has full knowledge of all the integral parts of COBE and he is well aware
that the Company placed a strong emphasis on its COBE provisions.

[56] With such admission, it is clear that the Claimant understood clearly
that he was required to take necessary steps to inform or check with the
Company if he was faced with a conflict of interest situation.

[57] The Claimant never disputed that MKN was a registered contractor of
the Company and that he all along knew very well the said Badrul and
Badrul’s position with MKN.

[58] The Claimant knew that Badrul was not a stranger to MKN. As such,
the Claimant’s contention that Badrul is not a director or employee of MKN
but was merely a consultant for MKN does not change the fact that Badrul
is affiliated with MKN, a registered contractor of the Company.

[59] The Claimant’s contention that he did not have to disclose or obtain
clearance from the Company’s HR department or his superior because the
Jakarta golf trip with Badrul was a holiday trip with friends not a trip
intended for business networking purposes in this case is not accepted.

[60] Badrul (the Claimant’s witness) in his testimony during the DI

confirmed that his purpose of inviting the Claimant was for networking
because the Claimant had “knowledge of rig and also the contract for
wells”. The Claimant did not challenge nor dispute Badrul’s testimony in the

13
DI that Badrul in his capacity as the Business Development Director of
MKN invited him on the Jakarta trip and that the purpose of the trip was
related to MKN business.

[61] The Claimant in fact admitted during cross-examination that the

information reflected in Badrul’s Voluntary Statement and testimony during
the DI was accurate.

[62] From the unchallenged and undisputed Badrul’s testimony, it clearly

shows that the Claimant always knew Badrul’s role in MKN was to do
networking and build relationships with clients, including Petronas
(Company).

[63] Without any evidence to the contrary from the Claimant, the Court
finds that the Claimant could not deny not knowing the purpose of the
Jakarta golf trip must be for networking purposes and not a holiday trip with
close friends.

[64] The Claimant knew the purpose of the golf trip with Badrul was for
business networking or business development purpose and not for holiday
fun with friends.

[65] The Court opined that as the Claimant was well aware of Badrul’s
role in MKN, he must have known that the golf trip with Badrul is for a
business networking purpose for MKN and could not be a leisure holiday
trip as there were no spouses, family members or other friends invited in
the trip.

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[66] All the evidence adduced only goes to show that Badrul whom the
Claimant always knew was affiliated with MKN that was also known to be a
registered contractor of the Company invited the Claimant.

[67] The Claimant’s stand that he don’t have to disclose or obtain

clearance from the HR department because he was of the view that the golf
trip to Jakarta with Badrul is his personal activity and holiday with his
friends is clearly an afterthought.

[68] It was also undisputed evidence before the Court that Badrul handled
all the arrangements and paid the Claimant’s expenses first.

[69] The Court is of the view that knowing Badrul taking charge of
handling all the arrangements and paying for the expenses first, it should
had immediately raise an alarm in the mind of the Claimant as to why
Badrul offered to handle all the logistics and pay first for his expenses if it
was a personal holiday with friends or neighbors.

[70] It is obvious that the Claimant knew that Badrul invited him on the golf
trip not for a personal holiday with friends but for MKN’s business
networking purpose because Badrul and MKN took care of all the
arrangements prior to the departure. The Claimant is only to join the trip
without having to do or pay anything at all.

[71] The Court also finds it strange as to why the Claimant claimed that
this Jakarta golf trip with MKN is his holiday trip with friend as this is not the
first time he was invited by MKN and Badrul to participate in golf trips.

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[72] The Claimant in his reply to the show cause letter [CLB-1page 87–91]
states that he had declined participation in a golf tournament in 2017
because the tournament was organized by Badrul of MKN, a local agent for
PetroVietnam Drilling which provided offshore rigs in Malaysia including to
Petronas.

[73] The Court is of the view that if in 2017 the Claimant did not participate
in the golf trip invited by Badrul of MKN on the ground that the trip puts him
in a conflict of interest situation, why didn’t he find that the Jakarta golf trip
in 2018 also organized by Badrul of MKN would give rise to a conflict of
interest situation too.

[74] The Court is of the opinion that if the Claimant in 2017 finds that the
invitation to go on a golf trip from Badrul of MKN a registered contractor of
the Company puts him in a conflict of interest situation, then the same
nature of invitation by the same Badrul of MKN still a registered contractor
of the Company in 2018 will put the Claimant n a conflict of interest
situation too.

[75] If in 2017 the Claimant could straight away make a decision of not to
participate in the golf trip invited by Badrul of MKN on the ground that the
trip puts him in a conflict of interest situation, why didn’t he make the same
decision too in 2018 for the Jakarta golf trip as the invitation came from the
same Badrul of MKN.

[76] The Court is of the view that the least the Claimant could have done
was to seek clarification or check with his superior or anyone from the HR

16
department whether the Jakarta golf trip would give rise to a conflict of
interest situation with his position in the Company.

[77] Had the Claimant tried or attempted to check with either his superior
or anyone from the HR department of the Company, he would have cleared
doubts and justifies his action. Unfortunately, the Claimant failed or refused
to do so for reasons best known to him.

[78] There was no evidence at all to show that the Claimant had or
attempted to check with his superior or anyone from HR department on the
status of the Jakarta golf trip before participating with Badrul of MKN in the
trip.

[79] There was no evidence adduced by the Claimant to show that his job
responsibilities, knowledge, or expertise in 2018 does not relate to any of
MKN’s nature of business. Neither did the Claimant adduce any evidence
to show that Badrul has got nothing to do with MKN or MKN’s business.

[80] The Claimant contended that MKN deals with rigs required for the
drilling of wells and that MKN’s activities or nature of business has no
connection with his job or position in the Company is unaccepted.

[81] The Court perused the Claimant’s Staff CV found in COB-2, page
180-181 to see what were the Claimant’s job responsibilities, knowledge
and expertise as Manager (Wells Equipment and Rig Move) and his last
held position as Manager (Wells Engineering Contract).

[82] From the Claimant’s CV, it shows that the Claimant had been in the
rig planning industry from 2010 to 2016, and he later moved into area of

17
wells equipment, rig move, and wells engineering contract from 01.09.2016
to 31.8.2018.

[83] The Claimant’s CV shows that his key responsibilities as a Manager

(Wells Equipment and Rig Move) is reflected in COB-2, page 256 – 257],
while his job scope as Manager (Wells Engineering Contract) is reflected in
COB-4 page 2.

[84] It is clear that the Claimant’s experience from his position with the
Company as Manager (Wells Equipment and Rig Move) is very relevant
and related with his position as Manager (Wells Engineering Contract) and
related with MKN’s activities or nature of business.

[85] The Claimant too agreed that as Manager (Wells Equipment and Rig
Move), he was responsible for ensuring smooth drilling operations done by
registered contractors of the Company.

[86] The Claimant also agreed that in his last held position as Manager
(Wells Engineering Contract), he was to “drive performance management
KPIs with major service contractors and providers” [page 2, COB-4].

[87] The Court is of the view that having such KPIs, the Claimant
obviously have close contact with MKN’s activities or nature of business.
As such, the Claimant should have had an awareness to take greater care
in his actions so as not to find himself in a position of conflict of interest with
the contractors of the Company connected with rig and wells nature of
business work in the oil and gas industry.

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[88] COW-2 in his Voluntary Statement, [COB-1, page 40] describes MKN
Odyssey as a “licensed service company for providing rig for Petronas”,
while Badrul in his Voluntary Statement in COB-1page 43 described the
relationship between MKN Odyssey and Petronas as “PETRONAS is one
of many MKN Odyssey clients which have potential to acquire the rig
services.”

[89] The Court finds that although the Claimant may not have been
involved directly deal in any MKN business, work with MKN or with Badrul,
the Claimant was aware that his position and scope of work was inter
related to MKN’s nature of business with the Company.

[90] Given this facts, the Claimant obviously would be in conflict of

interest when he went on the Jakarta golf trip with a registered contractor of
the Company without his employer (Company) or his superior in the know
about the trip. The Claimant’s failure to declare or obtain approval from the
HR department or from his immediate superior was a clear breach of
COBE.

[91] From the Claimant’s own testimony, Badrul is a long-time friend of his
since year 2009, which stemmed from a business connection and had
grown into a close friendship. It is obvious that over the years, having
grown a close relationship with Badrul, the Claimant surely knew Badrul’s
employment history, including the fact that Badrul is still with MKN and a
few other companies.

[92] The Claimant attempted to put up a defense that Badrul (CLW-3)

was not a contractor or director of MKN, therefore attending the said

19
Jakarta golf trip with Badrul who is just the Claimant’s long-time friend
could not create a conflict of interest situation for the Claimant with the
Company. It is very difficult to believe that the Claimant never knew about
Badrul’s employment history who is his longtime friend since year 2009.

[93] Nurhidayat (COW-2) in his evidence confirmed that Badrul's

relationship with MKN as a Business Development Director is responsible
for developing MKN Odyssey's business. This evidence however was
never challenged by the Claimant or Badrul.

[94] Badrul in his evidence states that the nature of his position in MKN
was to assist MKN in their business development and he represented MKN
to obtain information and contracts.

[95] Badrul further testify that he was representing MKN in inviting the
Claimant to the Jakarta golf trip for networking purposes and confirmed
during cross-examination that he had invited the Claimant on the Jakarta
trip for business networking reasons. The Claimant never challenged the
evidence about Badrul’s nature of position in MKN and the purpose of the
trip either with the Company’s witnesses nor with Badrul.

[96] Neither did the Claimant challenged Badrul’s evidence when Badrul
confirmed that MKN had paid for the Claimant's expenses on the Jakarta
trip, and that the Jakarta trip was approved by MKN to be undertaken by
Badrul together with the Claimant.

[97] The Court is of the view that being fully aware of Badrul’s position
either as a Consultant or Business Development Director with MKN a

20
registered contractor of the Company, there was a high degree of conflict of
interest for the Claimant to be involved with Badrul togather with MKN.

[98] The Claimant should have been aware that his close relationship with
Badrul and the nexus between the nature of his work with Badrul’s role in
MKN a registered contractor of the company, would surely create a conflict
of interest situation. In such a situation, the Claimant owed a duty to check
with the HR department or at least seek clarification with superior before
hopping along with Badrul on the trip.

[99] The Court is satisfied that the Claimant had breached Clauses 1.1
and 1.2 of COBE as the Claimant had failed to avoid a conflict of interest
situation and also failed to take the necessary steps to check whether his
going on the Jakarta golf trip with Badrul of MKN, a registered contractor of
the Company would be in breach of the Company’s strict rules in COBE.

[100] The Claimant’s action of going on the said Jakarta golf trip with
Badrul who was affiliated with MKN a registered contractor of the
Company, compounded with the Claimant’s position in Petronas having
knowledge in wells and rig services, thereby giving rise to the conflict of
interest situation.

[101] The Court is satisfied that the Claimant had abused his position for
personal gain and compromised his integrity by going on the golf trip to
Jakarta with Badrul, when he knew that Badrul represents MKN a
registered contractor of the Company that was in the business of providing
rig services and drilling wells for the Company.

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[102] The Claimant at all material time knew that MKN is in the nature
of business which is related to his knowledge and expertise in wells
equipment, drilling and rig services given his role in the Company.

[103] It is obvious that by not informing the Company about the Jakarta
trip and went on the trip with Badrul of MKN, the Claimant has placed
himself in a position where he is in a position to take advantage of his role
in the Company and where his personal interest conflicted with the interest
of his employer.

[104] Charge 2, 3, 4 and 6 are related to the to allegations of the

Claimant receiving gifts or entertainment in in the form of expenses paid for
during the Jakarta golf trip.

[105] Charge 2 is in relation to the flight tickets for the trip allegedly paid
by MKN, a registered contractor of the Company. Charge 2 is as follow: -
Charge No. 2
“That you,Hasmadi bin Hamzah (StaffNo:136499),during
your tenure as Manager (Wells Engineering Contract),
PETRONAS Carigali SdnBhd, Thi Qar, Iraq had committed
a serious misconduct in between 16September 2018 and
18 September 2018, by placing yourself in a conflict of
interest situation when you received gift and/ or
entertainment in the form of return flight ticket from Kuala
Lumpur International Airport (KUL) to Soekarno Hatta
International (CGK) paid by MKN Odyssey Ventures Sdn
Bhd who is a registered PETRONAS Contractor with
booking confirmation number– N7F5UC.

Your action as depicted above amounts to misconduct and

in violation to: -

i. PETRONAS Code of Conduct and Business Ethics

22
 (CoBE), Part I: Core Values and Culture, Section 2.2
and Section2.3: Corporate Values and Cultures;
and/or

ii. PETRONAS Code of Conduct and Business Ethics

(CoBE), Part IIA: Conflict of Interest, Section 1:
Duty Regarding Avoidance of Conflict of Interest,
Section 1.3; and/or

iii. The generality of PETRONAS Code of Conduct and

Business Ethics (CoBE), Part IV: Discipline,
Disciplinary Process and Sanctions, Section1:
Importance of Good Conduct and Discipline;
Section 1.3; (xix) engaging in any illegal or
unethical practices such as taking or giving bribes
or receiving any illegal gratification whether in
monetary terms or otherwise; and/or

iv. PETRONAS Anti-Bribery and Corruption (ABC)

Manual, Part2B(ii)Receiving Entertainment; and/or

v. Other express and/or implied terms of your

employment.

[106] The Claimant contends that the flight cost is not gift or entertainment
from MKN to him because he had paid Badrul 6 million Rupiah as his own
portion of the expenses spent for the Jakarta golf which covers the flights
cost as declared by Badrul in his Statutory Declaration [page 195, COB-2].

[107] It is not disputed that the Claimant’s flight tickets to Jakarta was
arranged, handled and paid by MKN before the departure.

[108] COW-2 the Finance Director of MKN in his evidence states that
Badrul had provided him with screen shots of both the Claimant’s and his
passport information for MKN to purchase the flight tickets to Jakarta for
the Claimant and him. This evidence was never disputed by the Claimant.

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[109] It was also unchallenged evidence of COW-2 that vide an email
dated 12.9.2018 [COB-1page 38], COW-2 instructed a staff one Firdaus, to
purchase 2 return tickets from Kuala Lumpur to Jakarta for 2 persons as in
the email with passport attached of the Claimant’s and of Badrul’s.

[110] COW-2’s evidence about MKN purchasing the flight tickets to

Jakarta for the Claimant and Badrul is also reflected in COB-1 page 26-29
which consist of Maybank statement of credit card account for purchase of
flight tickets for the Claimant and Badrul by MKN in the amount of
RM1,708.00, online booking confirmation from Malaysian Airlines with
details of the Claimant’s and Badrul’s flight and payment voucher by MKN
for the payment of 2 flight tickets for the “business trip” to and from Jakarta
amounting to RM1,708.00.

[111] These documentary evidence only goes to show that MKN had paid
Claimant’s flight tickets and it is therefore clear that MKN paid for the
Claimant’s flight tickets in respect of Charge 2.

[112] COW-2 too in his evidence states that the flight booking was for
MKN networking and business development purposes. The Claimant never
challenged this evidence.

[113] Badrul too in cross examination agreed that the Claimant gave him
a copy of his passport for the purpose of purchasing the tickets to Jakarta
and that MKN had bought and paid for the Claimant’s flight tickets.

[114] As it is not disputed that the Claimant had given him a copy of his
passport to Badrul for purchasing the tickets to Jakarta, the Claimant’s

24
contention that that he did not know that MKN paid for his flight tickets is
unaccepted and is clearly an afterthought.

[115] The documentary evidence of the receipts, payment vouchers and

payment of flight tickets submitted by Badrul in his Claim Form to MKN
were validated by Nurhidayat (COW-2) to be legitimate was also not denied
by the Claimant.

[116] It was also not disputed that the Claimant did not tell Badrul not to
give his passport details to any one in MKN to purchase the flight tickets to
Jakarta. As such, the Claimant knew all along that his flight tickets is to be
purchased by MKN.

[117] The Court finds it immaterial whether the Claimant had reimbursed
MKN for the flight ticket as there is no good basis for the Claimant to get
Badrul to purchase flights ticket for a holiday trip and paid through MKN
knowing very well that MKN is a registered contractor of the Company.

[118] If indeed the Claimant had intended to pay for his own expenses,
the Claimant ought to have paid for his own flight tickets in Ringgit Malaysia
straight to Badrul when he gave him a copy of his passport without having
to involve MKN to purchase the tickets and advanced the payments as
reflected in the payment vouchers.

[119] The Claimant could have made all the flight arrangement himself
without involving Badrul or MKN’s finance department. The fact that Badrul
got MKN to handle the flights arrangements for both him and the
Claimant’s, it only goes to show that the trip is not a holiday trip with friends
but more to a business networking for MKN with the Claimant.

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[120] There was also no explanation as to why the Maybank credit card
account statement for purchase of flight tickets for the Claimant and Badrul,
online booking confirmation from Malaysian Airlines with details of the
Claimant’s and Badrul’s flight and payment voucher amounting to
RM1,708.00 is all under MKN’s name not on Badrul or the Claimant’s
name.

[121] Charge 3 is as follow: -

Charge No.3

“That you, Hasmadi bin Hamzah (StaffNo:136499), during

your tenure as Manager (Wells Engineering Contract),
PETRONAS Carigali Sdn Bhd, Thi Qar, Iraq had committed
a serious misconduct in between 16September 2018 and
18 September 2018, by placing yourself in a conflict of
interest situation when you received gift and/or
entertainment at occasions and/or any of the occasions as
follows: -

Lunch and Dinner from Badrul Hisham Ismail (BHI) the

Director of MKN Odyssey Ventures Sdn Bhd during Golf
Trip at Suvarna Jakarta Golf Club.

[122] Charge 3 is concerning the following alleged entertainments

received by the Claimant that consist of: -
a) Refreshments at Hotel Santika amounting to
Rp302,500 on 16 September 2018;

b) Lunch and refreshments at Royale Jakarta Golf

Club amounting to Rp 2,872,640 on 17 September
2018;

c) Dinner expenses amounting to Rp 640,750 on 17

September 2018;

26
 d) Refreshment at lkan Bakap Kalimantan amounting
to Rp 39,600 on 18 September 2018; and

e) Refreshment at SKS T3 Bandar Soekarno-Hatta

Tangerang for Rp 211,200.

[123] The Claimant admitted in his Voluntary Statement that he had

participated in dinner and lunches with Badrul while in Jakarta.

[124] The Claimant contends that the meals and refreshments during the
trip were paid by Badrul and that he had reimbursed Badrul for his portion
of the expenses.

[125] Nurhidayat (COW-2), testified that MKN paid for all the items stated
in the Badrul’s Claim Form, including the lunch and dinner.

[126] Badrul (CLW-3) to in his examination-in-chief states that the claims

he made on the claim form includes the Claimant’s share of lunch and
dinner expenses in the Jakarta golf trip.

[127] As it was not challenged, it is clear that MKN had paid for the
Claimant’s lunch and dinner expenses in the Jakarta golf trip as claimed by

Badrul with MKN.

[128] The Court is of the view that there is no reason as to why must
Badrul be the one to be responsible to pay or advanced the expenses first
for others who had gone with him on the trip if it was a holiday trip.

27
[129] The Claimant could have paid for his portion of expenses on the
same day after each meal to ease the burden of Badrul if it was a personal
holiday trip.

[130] Since Badrul of MKN took the responsibility to pay for all the
expenses first, Badrul’s conduct can be construed or implies that the golf
trip is not a holiday trip but for MKN’s benefit. That is why Bedroll and MKN
have to take charge of everything who were invited on to trip.
The Claimant’s contention that he had reimbursed Badrul is clearly an
afterthought because could not jive with Bandrul’s conduct.

[131] Charge 4 is related to the golf fees at Suvarna Jakarta Golf Club
amounting to Rp3,460,600 also paid by Badrul on 16 September. The
charge is as follows: -
Charge no 4

“That you, Hasmadi bin Hamzah (StaffNo:136499), during

your tenure as Manager (Wells Engineering Contract),
PETRONAS Carigali Sdn Bhd, Thi Qar, Iraq had
committed a serious misconduct in between
16September 2018 and 18 September 2018,by placing
yourself in a conflict of interest situation when you
received gift and/or entertainment in the form of golf fees
at Suvarna Jakarta Golf Club from Badrul Hisham
Ismail(BHI) the Director of MKN Odyssey Ventures Sdn
Bhd who is a registered PETRONAS Contractor.

[132] It was admitted by the Claimant in his Voluntary Statement, reply in

the Notice to Show Cause and in the DI proceeding that he had gone to
Jakarta and played golf at Suvarna Jakarta Golf Club.

28
[133] The Claimant however contended during the DI that his name does
not appear in the Suvarna Jakarta Golf Club’s receipts.

[134] Badrul on the other hand, in his testimony confirmed that he had
made arrangement for the Claimant to play golf in Suvarna Jakarta Golf
Club and that the Claimant was present at the golf course even though his
name does not appear in the bill.

[135] The Claimant attempted to deny playing golf at the Suvarna Jakarta
Golf Club because his name does not appear in the bill. However, the
Claimant admitted in his Voluntary Statement, reply in the Notice to Show
Cause and testimony in the DI proceeding that he had gone to Jakarta on
16 to 18 September 2018. With Badrul’s unchallenged testimony confirming
that he had made arrangement for the Claimant to play golf, both these
evidence only goes to show that the Claimant was present at the golf
course and surely had played golf too there as arranged by Badrul. No
other evidence to the contrary adduced to show that the Claimant did not
played golf at all at the Suvarna Jakarta Golf Club.

[136] The fact that the Claimant was present at the golf course is not
disputed and Badrul’s testimony confirming that he had made arrangement
for the Claimant to play golf never challenged, it is only obvious that Badrul
is to make the payment too for MKN’s business purpose and not a holiday
trip to be handle by individual golfer. The bill will not be under the
Claimant’s name because he did not make any payment of the golf fees.
The Company had proven Charge 4 against the Claimant.

29
[137] The Court finds the Claimant’s contention that he did not receive
any gifts or entertainment in as in Charge 4 because he had paid back
Badrul 6 million rupiah which cover for his portion of the golf fees is an
afterthought because no evidence to support the Claimant’s contention.

[138] Charge 6 is about the massage expenses and refreshment at

Fortune Hotel Spa & Lounge Jakarta on 17 September 2018. Charge 6 is
as follows: -
Charge No 6
“That you, Hasmadi bin Hamzah (Staff No: 136499), during
your tenure as Manager (Wells Engineering
Contract),PETRONAS Carigali Sdn Bhd,ThiQar,Iraq had
committed a serious misconduct in between16 September
2018 and 18 September 2018, by placing yourself in a
conflict of interest situation when you received gift and/ or
entertainment in the form of Massage Room and / or
refreshment at Fortune Hotel Spa & Lounge, Jakarta from
Badrul Hisham Ismail HI) the Director of MKN Odyssey
Ventures Sdn Bhd who is registered PETRONAS
Contractor.

[139] The Claimant admitted in his Reply to Show Cause Letter [CLB-1,
pages 87–91] and also during the DI [COB-2, page 99], that he had the spa
massage with Badrul on the Jakarta trip and that he had reimbursed the
expense accordingly.

[140] The Court is of the view that the massage is in its nature a very
personal activity and the Claimant should have paid for his own massage
services at the spa itself immediately after the massage rather than getting
Badrul to pay for him first and later to reimburse Badrul on individual

30
portion calculated by Badrul for the massage and the refreshments at the
spa.

[141] It is therefore obvious that in the absence of any evidence to the

contrary adduce by the Claimant, the massage and the refreshments at the
Fortune Hotel Spa & Lounge is a gift or entertainment received by the
Claimant and that he had placed himself in a conflict of interest situation
receiving it.

[142] The Claimant’s contention that the massage and the refreshments
at the Fortune Hotel Spa & Lounge is not a gift or entertainment received
by him because he had reimbursed back this expenses to Badrul when he
paid 6 million rupiahs is an afterthought and cannot be accepted by this
Court.

[143] It is the Court’s finding that for Charges 2, 3, 4 and 6, there is no

cogent and convincing evidence to show that the Claimant had repaid
Badrul for the total expenses of the Jakarta trip allegedly in the sum of 6
million Rupiah.

[144] It should be noted that Badrul’s Statutory Declaration dated

28.8.2019 stating that the Claimant had paid 6 million Rupiah as expenses
for the Jakarta golf trip was only issued 1 year after the trip and there were
no records of such payment of the 6 million Rupiah with Badrul.

[145] The Claimant too on the other hand during cross-examination

admitted that the Statutory Declaration by Badrul was meant to support his
defence at the DI proceeding. With this fact, it is obvious that the content of

31
Badrul’s Statutory Declaration is tailored with the intention to deny the
allegations of possible misconducts to be levelled against the Claimant.

[146] Badrul too confirmed that there was no precise calculation done
between him and the Claimant for each item of expenses that he paid for
the Claimant and though Badrul saved the receipts, he did not use the
receipts to do accurate calculations of how much the Claimant owed him.

[147] The Court opined that Badrul’s Statutory Declaration does not
provide a breakdown with regards to what the 6 million Rupiah consists of.
As such the 6 million Rupiah allegedly paid by the Claimant to Badrul is not
the accurate account of the total expenses spent by the Claimant on the
Jakarta trip.

[148] The Claimant too did not challenge COW-1’s evidence that the total
expenses would amount to more than 6 million Rupiah per person. In fact,
the Claimant eventually agreed during his cross-examination that the 6
million Rupiah did not consist of all the expenses incurred on the trip.

[149] The Court finds that the Statutory Declaration made by Badrul 1
year after the trip stating that the Claimant had reimburse all the expenses
spent on the trip to Badrul is an afterthought. The Statutory Declaration in
itself does not exculpate the Claimant from the charges of misconduct of
conflict of interests.

[150] The Court finds from that the facts and evidence adduced, the
Company had sufficiently proven the elements of the charges regarding the
Claimant having gone on the Jakarta golf trip with Badrul and having
received gifts or entertainment in relation to the said trip.

32
[151] The Court is satisfied that the Claimant’s actions of going on the
Jakarta golf trip with expenses paid by MKN, the Company’s registered
contractor, had amounted to breaches of the Company’s policies, in
particular conflict of interest.

[152] The Claimant too knew Badrul’s in his capacity and role in MKN
invited him for the golf trip, made all the arrangements and paid for the
expenses solely for business networking activities of MKN with the
Claimant not for holiday with friends.

[153] The Court is of the view that the alleged payment by the Claimant
which was made at the end of the trip raises doubt on the Claimant’s
contention that he did not obtain personal benefit and entertainment or gift
from MKN through Badrul.

[154] The Court also finds that there is no cogent reason for him to delay
the payment if it was personal holiday with friends and there is also no
good reason why t Claimant did not pay Badrul the exact amount for the
flight expenses incurred.

[155] If the Claimant had intended to pay for his own expenses, he ought
to have paid the lump sum of 6 million Rupiah to Badrul at the very
beginning of the trip so that at the end of the trip, Badrul could calculate the
Claimant’s portion of expenses and if any additional expenses exceeding 6
million Rupiah, the Claimant could pay him back for any shortfall.

[156] Having concluded that the Company had proven on a balance of

probabilities the misconducts against the Claimant, the next question for
this Court to consider is whether the dismissal that was based on the 5

33
charges of misconduct against the Claimant was justified in circumstances
of the case.

[157] The Claimant contended that his dismissal by the Company was
without just cause or excuse and that the Company’s decision to dismissed
him was unduly harsh to the misconducts alleged against him.

[158] It is clear that the Claimant had knowingly placed himself in a

position where his personal interest conflicted with the interest of the
Company and his conduct destroyed the very basis of the employment
relationship between the employer and employee.

[159] In the present case, when the Claimant went on the Jakarta golf trip
and received gifts or entertainment in various forms without the knowledge
of the Company or his superior, the Claimant placed himself in a position
where he was seen taking advantage of his position in the Company and
his personal interest conflicted with the interest of the Company.

[160] The Claimant had conducted himself in a way that was inconsistent
with the faithful discharge of his duties to the Company and the Claimant’s
action amounts to serious charges of misconduct related to conflict of
interest.

[161] The misconducts for which the Claimant was found guilty of, struck
at the very root of the employer-employee relationship as it relates to
betrayal of mutual trust and confidence.

[162] The Claimant showed disregard to comply with the lawful policies
and instructions of his company and this conduct is a serious misconduct. .

34
Such misconduct could not be condoned by a punishment lesser than
dismissal as it would set a dangerous precedent to other employees of the
Company.

[163] In view of the severity of the misconducts, this Court finds that the
Company correctly exercised its managerial prerogative to dismiss the
Claimant. The Claimant’s actions were blatant and also deliberate.
The Claimant’s misconduct forfeited the confidence, and trust of the
Company towards him. The punishment meted against the Claimant was
proportionate and warrants no interference by this Court.

[164] Having regards to the evidence in its totality, based on equity, good
conscience and the substantial merit of the case without regard to
technicality and legal form under section 30 (5) of the Act, the Court finds
that the Company has proven the Claimant’s misconducts on a balance of
probability. The Claimant’s dismissal was with just cause and excuse, and
carried out in accordance to fair labour practice.

The Claimant’s claim is hereby dismissed.

HANDED DOWN AND DATED 8 DECEMBER 2022

-Signed-
(REIHANA BTE ABD. RAZAK)
CHAIRMAN
INDUSTRIAL COURT MALAYSIA
KUALA LUMPUR

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