DISMISSAL: Misconduct - Misrepresentation - Claimant misrepresenting his qualifications in order to secure the job - Effect of - Whether the club had relied on the misrepresentations - Effect of - Whether the club had proven the misconduct against the claimant - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

DISMISSAL: Misconduct - Misrepresentation - What constitutes misrepresentation - Whether the claimant's actions had constituted misrepresentation - Effect of - Whether the charges had been proven against the claimant - Effect of - Whether dismissal without just cause or excuse - Industrial Relations Act 1967, s. 20(3)

ROYAL SUNGEI UJONG CLUB v. VIJAYSANKAR ARUMUGAM
INDUSTRIAL COURT, KUALA LUMPUR
ONG GEOK LAN
AWARD NO. 1272 OF 2009 [CASE NO: 15/4-2233/04]
28 OCTOBER 2009

AWARD

(NO. 1272 of 2009)

Ong Geok Lan:

[1] The parties to the dispute are Royal Sungei Ujong Club ("the club") and Vijaysankar a/l Arumugam ("the claimant"). The claimant had alleged in his Statement of Case that the club had unfairly and wrongfully dismissed him on the ground that he was dishonest and had misrepresented his educational qualifications to the club. The claimant contended that the decision to dismiss him was without just cause or excuse.

[2] The case was heard and the hearing completed before the previous Chairman in June 2006, a few months before his tenure expired. The parties subsequently filed in their submissions and the last submission was tendered in December 2007. Upon perusing the notes of evidence and the submissions by counsels for both parties the court hereby hands down this Award.

Background Facts

[3] By a letter dated 25 May 2000 (p. 1 of AB-1) the claimant had applied to the club for the position of Club Manager. A copy of the claimant's letter is reproduced herein below:

May 25, 2000

The President

Sungai Ujong Club

P.O. Box 76

70700 Seremban

Negeri Sembilan.

Attn: Dr. Parim Singh

Dear Sir,

RE: Application For the Post Of Club Manager

I refer to your conversation dated 25 May 2000 for the above position.

Allow me to introduce myself briefly, I am holding a Master in Business Administration Major in human resources. I write to enquire if could offer me an appointment on the Club Manager position of your long established renowned club.

I'm 30 years old, unmarried, and a Malaysia citizen of Chindian origin.

I have considerable 9 years working experience. Which three are in Sport & recreational club business environment in various capacities and acquired considerable knowledge of business affairs and office management, which I'm eager to put good use in your sport and recreational club that is prepared to appoint me to its staff.

The attached resume of mine will provide you more information about my work experience. I will be glad to attend an interview to furnish you more details. May I therefore express the hope that you will consider my application and give me a favourable reply.

Yours faithfully,

...

A. Vijaysankar

(emphasis added)

[4] As stated in his letter the claimant had attached his resume (p. 2 of AB-1). The relevant portion of his resume is reproduced herein below:

		Resume
Post Applied	:	Club Manager
Name		Vijaysankar Arumugam
Address		No. 1 Jalan 10/26, Tmn Sri Rampai, Setapak Jaya, 53300 Kuala Lumpur.
Age		30
D.O.B.		10 September 1970
Marital Status		Single
Religion		Hindu
Race		Indian
Height/Weight		169/72 kg
Status Of Health		Excellent
Nationality		Malaysian
Education & Qualification
Nov 1996-Dec 1998		University of Wales – UK
		Master in Business Administration
		Major in Human Resources
		Post Graduate in Business
		Administration
Apr 1993-Apr 1995		University of New Castle
		Diploma in Human Resources
		Management
Mac 1990 - Nov 1991		Sek Men Keb Temerloh
		Sijil Tinggi Pelajaran Malaysia - Full Cert.
Jan 1988 - October 1989		Sek Men Keb Mentakab
		Sijil Pelajaran Malaysia - Grade 2 (science)
Jan 1985 - Oct 1987		Sek Men Hwa Lian
		Sijil Rendah Pelajaran - Grade A
Others 1990		Cert. In Leadership Training
1995		Cert. In Train The Trainer

[5] Thereafter the claimant was called for an interview on 9 October 2000 before the Club's General Committee. The claimant was subsequently appointed as the Club Manager for a fixed period of 2 years commencing from 1 December 2000. The terms of the employment were contained in an agreement dated 1 December 2000 (see pp. 10 to 13 of AB-1).

[6] As the expiry of the 2 years' contract drew close, the claimant had by his letter dated 22 October 2000 (pp. 14 and 15 of AB-1) requested that he be considered to be placed on a permanent establishment and also for an increment. His said letter is reproduced herein below:

Tuesday, 22 October, 2002

From: The Club Manager

Sungei Ujong Club

Seremban.

To: The Club President

Sungei Ujong Club

Seremban.

Dear Sir,

Re: Employment At SUC

I would like to request the President and the Committee of Management to consider placing me on a permanent establishment, as well as am requesting for an increment in salary.

The following reasons are the reasons to support my request.

- Two years of temporary employment should prove the worthiness of the Manager's capabilities and performances.

- I am asking for a salary of RM5,400 This may appear to be unreasonable increase but the committee must take into consideration that the previous manager was paid a starting salary of RM5,000 but I started with RM4,000, which is considered to be very low for a Club Manager. I also would like to highlight that I am a Master Graduate and have a proven track record on F & B sales services at the previous Club and SUC.

- I, as the Club Manager, also have extra duties to take charge of. It is the Banquet Hall, which is now the centre of most activities and requires more attention from me.

- My working hours are also very long. I am usually required to work for about 12 hours a day.

- I have to mention, Sir, that under my strict supervision the F & B Sales improved tremendously and the losses have been cut by about RM100,000 last year.

- The F & B services, Sir, have improved considerably compared to two years ago.

- I would be very humbly like to point out the Committee of Management that putting the Manager on contract of employment to avoid huge payment in compensation, due to committee error, by sacking the manager without just cause, is truly unfair. That's why the Employment Act is for protecting such employees from being terminated without unreasonable cause. By putting a good manager under contract employment Sir, will only make the Manager's post open to threat by committee members.

I can ensure the committee of Management that I will always do my best and will remain committed to you and the SUC.

I hope, Sir, the Committee of Management would consider my case favourably.

Yours faithfully,

...

A. Vijaysankar

Club Manager.

c.c. Administrative Chairman.

(emphasis added)

[7] Vide a letter dated 13 November 2002 (p. 16 of AB-1) the club notified the claimant that his contract would be extended for another 2 years with effect from 1 December 2002 and that his salary would be increased from RM4,000 to RM5,000.

[8] On or about September 2003, the club discovered that the claimant had been dishonest about his qualifications when he applied for the position of Club Manager. The claimant was issued with a show cause letter dated 13 September 2003. The claimant replied to the show cause letter vide his letter dated 16 September 2003. The club did not find the reply to be satisfactory. The claimant was suspended with full pay and a domestic inquiry was held on 3 October 2003. The 2 charges levelled against the claimant were as follows:

(i) That you committed an act of dishonesty by declaring on your job application to the club that you are an MBA Degree in Human Resources Management holder (University of Wales) since 1998, when in fact you are not.

(ii) That you committed an act of dishonesty by declaring in your job application to the club that you posses a Diploma in Human Resource Management from the University of Newcastle but you instead produced a laminated certificate from the Asia Pacific International University, Geneva.

[9] At the conclusion of the Domestic Inquiry, the claimant was found guilty of both the charges levelled against him. By a letter dated 30 October 2003, the club terminated his services.

Agreed Facts

[10] Prior to the commencement of the hearing, the parties had on 27 July 2005 filed a Statement of Agreed Facts. Both Counsels confirmed that the facts stated therein had been mutually agreed upon. Mr. Manian Raju of Messrs Gunaretnam & Co for the claimant, however, stressed that para. 9 of the Statement of Agreed Facts was not to be construed as an admission by the claimant that he had acted dishonestly. The agreed facts as contained in the Statement of Agreed Facts were as follows:

Statement Of Agreed Facts

1. At all material times, the parties to the above captioned matter are the Royal Sungei Ujong Club of No. 2A, Jalan Dato' Kelana Ma'mor, P.O. Box 76, 70700 Seremban, Negeri Sembilan Darul Khusus (hereinafter referred to as the "the company") and Mr. Vijaysankar a/l Arumugam of 3E-4-5, Block E, Okid Apartment, Jalan Bukit Indah 3/4, Bukit Indah, Ampang 68000 Selangor Darul Ehsan (hereinafter referred to as "the claimant").

2. The issue before this Honourable Court is the dismissal of the claimant from the services of the club with effect from 30 October 2003, allegedly without just cause or excuse.

3. The claimant had applied for the position of Club Manager with the company some time in the year 2000.

4. The claimant was then appointed as the Club Manager of the company on 1 December 2000 and was in the employment of the company until he was dismissed on 30 October 2003.

5. The terms under the Contract of Employment are as follows

Clause 1

The club shall employ the Manager and the Manager shall serve the club as Manager for a period of Two(2) years commencing on the 1st day of December, 2000 subject to determination as hereinafter provided and subject to the further terms and conditions hereinafter provided.

The Manager shall serve a period of probation of three (3) months during which period his employment may at any time be determined by the club without prior notice.

The aforesaid probationary period may be extended by the Club for a period not exceeding three (3) months in the event that the Club shall think fit and proper to do so.

Clause 2

The salary payable to the Manager for the first year of employment including the probation period shall be RM4,000 per menem and shall be paid in arrears at the end of each month. Subject to the performance of the club and that of the Manager the salary of the Manager will be reviewed annually at the sole discretion of the club after the first year of employment.

Clause 3

During the continuance of this agreement, the Manager shall devote his whole time and attention to his duties and shall do all in his power to manage, conduct and superintend the affairs of the club in the best interest of the club and shall not directly or indirectly engage or be concerned or interested in any other business of any kind whatsoever.

6. On 27 June 2001, the company issued in favour of the claimant a Letter of Confirmation informing the claimant that he had satisfactorily completed his probationary period and that his appointment as the Club Manager was confirmed with effect from 1 March 2001.

7. (a) Vide letter dated 13 November 2002, the company informed the claimant that the General Committee had agreed:

(i) to extend the claimant's contract as the Club Manager for a further 2 year term with effect from 1 December 2002.

(ii) to increase the claimant's salary to RM5,000 per month with effect from 1 December 2002.

(iii) to give the claimant a hand phone reimbursement of RM100 per month.

(b) The said terms were in addition to the existing:

(i) meal reimbursement of RM400,00 per month which shall be spent in the club and offset against chits signed by him.

(ii) a housing reimbursement of RM300 per month; and

(iii) a travelling reimbursement of RM150 per month when he is required to travel on account of the club's affairs.

8. However, on 30 October 2003, the company dismissed the claimant from service purportedly for misrepresenting the claimant's academic qualifications to the company.

9. The claimant's competent discharge of his duties is not in issue in the matter at hand as the reason behind the claimant's dismissal is his dishonesty prior to being employed by the club whereby the claimant misrepresented his academic qualifications to the club.

10. The claimant's resume provided to the club on 25 May 2000, stated that between November 1996 and December 1998, the claimant undertook and completed his Master in Business Administration Major in Human Resources Post Graduate in Business Administration.

11. During the pr-employment interview, the claimant informed the interviewing committee that he specialized in Human Resources and that his Masters in Business Administration had exposed him to the areas of marketing, finance, management, human resources and computer science.

12. On or about September 2003, the claimant was issued with a letter of show cause dated 13 September 2003. The claimant responded to the same vide letter dated 16 September 2003. The claimant's services were suspended with full pay and a domestic inquiry was then convened on 3 October 2003 where the claimant was charged as follows:

(i) That you committed an act of dishonesty be declaring on your job application to the club that you are an MBA Degree in Human Resource Management holder, (University of Wales) since 1998, when in fact you are not;

(ii) That you committed an act of dishonesty by declaring in your job application to the club that you posses a Diploma in Human Resource Management from the University of Newcastle but you instead produced a laminated certificate from the Asia Pacific International University, Geneva

13. At the aforementioned domestic inquiry, the claimant was provided with an opportunity to defend the charges against him. However, upon the conclusion of the same, the panel of inquiry found that the charges levelled against the claimant were proved and therefore that the claimant was guilty of both charges.

Dated 27th day of July 2005

[11] On the date of the continued hearing of the case on 19 May 2006, Mr. Vijayan Venugopal from Messrs Shearn Delamore & Co for the club informed the court that no mention of the claimant's academic qualifications had been made in the Statement of Agreed Facts. He said that it was an agreed fact between the parties that at the time of the interview that was on 9 October 2000, the claimant did not possess a MBA Degree in Human Resource Management from the University of Wales. He further stated that the parties were also on common grounds that the claimant did not on 9 October 2000 possess a Diploma in Human Resources Management from the University of Newcastle. Counsel for the claimant confirmed the same.

Issues

[12] The claimant had in para. 9(b) of his Statement of Case contended that there was no misrepresentation as alleged or at all. He stated "academic transcripts and documents were furnished to the General Committee during the job interview." In any event he further stated that the General Committee was not induced by nor relied upon the claimant's qualifications in its deliberation before awarding the job of club Manager to him.

[13] Counsel for the claimant submitted that the only pertinent issues before this court were as follows:

(i) whether the claimant dishonestly misrepresented his qualifications in his application form?

(ii) if there was any dishonest misrepresentation by the claimant whether the club was induced and relied upon the said misrepresentations when it gave the claimant the job?

(iii) In any event whether there was any condonation by the club?

[14] It was an agreed fact that the claimant did not possess the MBA Degree in Human Resource Management from the University of Wales and the Diploma in Human Resource Management from the University of Newcastle at the time of the interview. By stating in his application for the position of Club Manager and also in his resume that he possessed those qualifications, the claimant had made a misrepresentation or a false representation.

[15] The claimant had in his case presented evidence to the effect that the club knew that he did not possess those qualifications but yet they employed him. He therefore contended that there was condonation on the part of the club.

[16] The club, however, stated that the General Committee which interviewed the claimant were not aware of that fact. The Committee approved the claimant's request for an increment. It was only later when the club was updating its documentation that it discovered that the claimant did not possess those qualifications. The show cause letter was then issued on 13 September 2003 to the claimant.

Evaluation Of Evidence

[17] The club called 3 witnesses and they were Ashok Kumar Pillay (COW1) the club's then Club Manager, Matthew Chong (COW2) the Vice Chairman of the Admin Sub Committee from July 2003 to June 2004 and Angelina Lim (COW3) who was the personal assistant to the Club Manager from December 2000 to July 2003 and then held the position of Admin Executive with the club.

[18] COW1 was a formal witness as he joined the club as the club Manager after the claimant was dismissed. His evidence were based on the records kept by the club. Reference was made to the findings of the Domestic Inquiry found on pp. 21 to 23 of AB-1.

[19] COW2 testified that upon being elected as the Vice Chairman of the Admin Sub Committee, he was requested by the new President, Dato' Dr. Nellie Tan-Wong to ensure that the club's documentations were in order for information retrieval purposes. During that exercise, he discovered that the claimant's personnel file did not contain any record of his academic qualifications.

[20] He therefore requested the claimant to submit all his qualifications that he said he possessed during the time he applied for the current job. The first time the claimant told COW2 that he had submitted all the relevant qualifications to the then President, Dr. Parim Singh (CLW1). COW2 testified that he responded by telling the claimant that as far as he was concerned "the file does not contain any of your qualifications and it is your responsibility to submit the records again."

[21] COW2 said that he had made numerous requests to the claimant. One evening the claimant finally submitted certain certificates to Miss Angelina Lim (COW3) to photostat them to keep in the file. COW3 showed him those photostat copies of the certificates when he visited the club office. She told him that the certificates were laminated when the claimant gave them to her to photostat. COW2 said that he did not see the 2 certificates which was declared by the claimant in his resume. The 2 certificates were the Diploma in Human Resource from the University of Newcastle and the Master in Business Administration from the University of Wales, U.K. The only diploma certificate he saw was the diploma in Human Resource Management from "SIDO in association with the Asia Pacific International University, Geneva". That was contrary to the resume attached to the claimant's application for position of Club Manager.

[22] COW2 then referred to the claimant's resume at p. 2 of AB-1. Under the heading "Education and Qualification" the claimant had declared that he possessed a Master in Business Administration from the University of Wales-U.K. which he obtained between November 1996 and December 1998. Below that line he had also stated that between April 1993 and April 1995 he obtained a Diploma in Human Resources Management from the University of Newcastle.

[23] COW2 testified that he then conducted a search via the internet for the Universities the claimant allegedly obtained his diploma from. He also decided to verify whether the claimant had a MBA degree in Human Resources Management as claimed. The search revealed that the "Asia Pacific International University was a university in United States based in San Francisco. They had only one branch that was in Macau, PRC. The search did not reveal that the University had any link or tie-up with any other colleges anywhere in the world, in particular with the one stated in the claimant's diploma certificate. At the same time he managed to find the University of Wales' website in the internet. He did a similar procedure to validate the claimant's claim. The University responded to his e-mail and informed that the claimant had indeed registered with the University for the MBA program majoring in Human Resource Management and that he had completed Part 1 only, which did not entitle him for the award.

[24] The claimant later told COW2 that he only had a partial MBA as he had not completed his dissertation at the time of application for the position and neither did he complete it during his tenure with the Club. COW2 then contacted the KLC Centre for Higher Studies, the Centre which the claimant attended the course locally. He obtained a written confirmation from them which stated that as at August 2003, the claimant had not completed his dissertation, a module which was required for the award of MBA.

[25] COW3 testified that she was the recording secretary in respect of the minutes of a Special General Committee meeting on 9 October 2000 when the Club's Committee members interviewed the claimant for the position of Club Manager. COW3 confirmed that she did record contemporaneous minutes at the time of the meeting and that those documents on pp. 6 to 9 of AB-1 were an accurate and complete record of the events that transpired at the meeting.

[26] COW3 testified that during the interview the claimant was not asked about his qualifications because he volunteered the information himself. She referred to the claimant's declaration in the last paragraph of p. 7 of AB-1 and the 1st 3 paragraphs at p. 8 of AB-1.

Mr. Vijay replied that when he first worked in Malacca Club, it was a challenged. At the time when he took over the club, everything was in bad shape. However, now everything is going smoothly. He is very confident that he would be able to manage SUC. Mr. Vijay said that most of the problems are due to human being, namely the staff. Since he specializes in Human Resources and is able to take the pressure, there should not be any problem. He also said that he had experience in handling a bigger group.

Mr. Robert Choy asked Mr. Vijay, why with his qualification, he does not work in a large organization but likes to do work in a club.

Mr. Vijay said that with his Master in Business Admin, he was exposed to marketing, finance, management, slightly on human resources and computer science. As a Club Manager, he will need all these skills. He said that he also loves sports.

(emphasis added)

[27] COW3 went on to testify that that the claimant did not produce any proof of his qualifications at the interview. The Committee Members only had copies of his application and resume. Based on the minutes neither the claimant nor the Committee Members did at any time during the interview address the fact that the claimant had not completed his MBA. Under re-examination, COW3 confirmed that the minutes were complete and confirmed and signed by the then President, Dr. Parim Singh (CLW1)

[28] Dato' Dr. Parim Singh (CLW1), the President of the club at the time of the claimant's interview before the General Committee was the claimant's 1st witness. CLW1 testified that the Committee Members and he were well aware that the claimant did not have an MBA degree in Human Resource Management at the time of the interview. He said that he had informed the Committee Members prior to the interview on 9 October 2000 that the claimant only had a partial MBA in that he had not completed his dissertation. He went on to state that the Committee Members and he were not induced by the claimant's academic qualifications when they decided to engage him as a Club Manager. He said that the advertisement published by the club made it clear that the club preferred a holder of tertiary education but it was not an essential requirement. CLW1 said that he had indeed advised the claimant that the wording in his letter of application was wrong in that he should state that he was still doing his MBA.

[29] Under cross-examination by counsel for the club, CLW1 gave the following answers:

Q : Do you know whether the statements in p. 2 of AB-1 that the claimant has a Diploma in Human Resources from the University of Newcastle is true?

A : I would not know.

Q : Did the claimant any time tell you that he did posses a Diploma in Human Resources Management from the University of Newcastle?

A : No.

[30] CLW1 testified that he knew on the morning of 9 October 2000 that the claimant did not hold a MBA in Human Resources. He found out when the claimant saw him in his clinic in the morning.

Q : How did you find out on the morning on 9 October 2000?

A : In response to my call, the claimant saw me in my clinic sometime late in the morning. I asked him for application and the C.V. he submitted for the 2nd interview. When I looked at page 1, the first thing that struck me was poor English. I straightaway asked him you claim you are holding an MBA but this English is that of secondary school student. I demanded to see his MBA Certificate. He showed me a document which listed the modules he was supposed to complete for the MBA. I pointed to him that this shows that he was going to obtain an MBA. He said "that is what I mean". Then I told him that I will brief the Committee Members about this first.

[31] Under cross-examination, CLW1 said that he did brief the Committee Members that the claimant did not hold a MBA degree. He said that he briefed them in the evening of 9 October 2000, the date of the interview. He briefed them at 2 places. One was at the squash court where he said he briefed 2 of the Committee Members, Mr. Thomas Liew and Joseph Tan. The second was before the Committee meeting started at about 9.30pm to those who were present at the meeting. He confirmed that the briefing was not recorded in the minutes found on pp. 6-9 of AB-1.

[32] Upon being examined further, CLW1 said that the meeting was called to order by him as the President at about 10pm after his clinic at night. It was then pointed out to him from the minutes which were approved by him that the meeting was actually called to order not by him but by the Vice President, Mr. Robert Choy. It was also put to him that the meeting was called to order at 10pm by the Vice President because he was late and he did not arrive from the clinic. It was then put to him that he could not have briefed the rest of the Committee Members before the meeting started on 9 October 2000 as the meeting started in his absence.

[33] The court notes that there was nothing in the minutes of the Special Committee meeting on 9 October 2000 to indicate that the Committee Members knew or was briefed by CLW1 that the claimant did not possess the MBA degree or the Diploma. On the contrary, the minutes indicated otherwise and also showed that the claimant had orally misrepresented that he possessed a Masters in Business Administration. At p. 8 of AB-1 in the 2nd and 3rd paragraphs, it was minuted as follows:

Mr. Robert Choy asked Mr. Vijay, why with his qualification, he does not work in a large organization but likes to work in a club.

Mr. Vijay said that with his Masters in Business Administration, he was exposed to marketing, finance, management, slightly on human resource and computer science.

[34] There was nothing in the minutes to show that anyone challenged the aforementioned declaration by the claimant that he had a MBA degree. That appears to the court to indicate that the Committee Members were not aware of the claimant's misrepresentation. If as alleged by CLW1 that the claimant was earlier advised in the morning to state that he was still doing his MBA, then CLW1 should have corrected the claimant at the meeting itself. The minutes of the meeting was silent as to any reaction or correction by CLW1, the then President. If as testified by CLW1, he had briefed the Committee Members before the meeting, Mr. Robert Choy, the Vice President would not have asked that question and not responded to the claimant's declaration thereafter. The court finds CLW1's evidence to be questionable.

[35] The court also noted another inconsistency in CLW1's evidence. In his evidence in chief he testified that he and the Committee Members were not induced by the claimant academic qualifications when they decided to engage him as a Club Manager. Yet when considering the claimant's request for an increment, CLW1 had stated that "when the club employed him, his qualifications had been taken into consideration and he been given a salary based on it." (Refer to item (2) of p. 2 of the minutes of the General Committee meeting on 1 November 2002 marked as COE2). It would appear therefore that the Committee did consider the claimant's qualifications as stated in his application and resume.

[36] The claimant took the stand as the 2nd witness for his case. In his evidence in chief he said in answer to Question no. 7 that the members of the panel who interviewed him knew about the status of his MBA degree and the Diploma from APIU (Asia Pacific International University) as he had informed them during the interview and that he had also shown to them the original diploma and the letter dated 5 May 1999 from KLC Center for Higher Studies. This evidence contradicted CLW-1's evidence which stated that CLW1 briefed the Committee Members prior to the meeting. The other pertinent point is that in his reply to the show cause letter (see p. 18 to 19 of AB-1) there is no mention at all regarding the fact that the Committee Members knew about the status of his MBA degree or the Diploma from University of Newcastle. If that was true, the claimant would have mentioned that. The court is inclined to accept the club's submission that the allegation by the claimant that the Committee was informed at the interview was an afterthought.

[37] The court notes that in his letter dated 22 October 2002 for an increment in his salary (p. 14 of AB-1) the claimant had stated as follows:

I am asking for a salary of RM5,400. This may appear to be an unreasonable increase but the Committee must take into consideration that the previous manager was paid a starting salary of RM5,000 but I started with RM4,000 which is considered very low for a Club Manager. I also would like to highlight that I am a Master Graduate -

[38] It was adduced in evidence that even at that time in 2002 the claimant had not obtained his MBA. Yet he again blatantly misrepresented that he possessed a MBA. If as he had alleged he had informed the Committee on 9 October 2000 that he did not possess a MBA, would he had made such a declaration in writing when he knew very well that he still did not possess the MBA degree then? The court thinks not. The evidence seemed to point to the fact that the Committee remained unaware that he did not possess a MBA degree. His contract was not only extended a further 2 years, he was also given an increment to RM5,000.

[39] The claimant's credibility was again called to question when he said in his evidence in chief that at the time he submitted his resume to the club, he had completed and passed all the 12 examination modules for the MBA leaving only the dissertation. He referred to the letter dated 5 May 1999 (CLE5) from the academic director of KLC Centre for Higher Studies. Vijay Kumar, the said academic director was the claimant's 3rd witness (CLW3). He confirmed that as at 5 May 1999 the claimant had completed 8 core modules and 4 majoring modules that were to be taught making a total of 12 modules. CLW3 further confirmed that completing all 12 modules did not amount to getting the MBA degree; the claimant had to complete his dissertation.

[40] By a letter dated 14 June 1999 (CLE7) the claimant had written to the Ketua Pengarah Pendidikan, Jabatan Pendidikan Swasta, Kementerian Pendidikan Malaysia. In the said letter, the claimant had stated that even though he had paid the course fees for the MBA program in full, he had as at 14 June 1999 only managed to finish 6 modules out of the 12 modules. He requested that the Ministry investigate the KLC College and assist him to get a reimbursement of his money from the College. The claimant's own witness CLW3 did not agree with the claimant's statement in his letter dated 14 June 1999.

[41] The letter dated 14 June 1999 (CLE7) showed that even though the KLC Centre had issued the letter (CLE5) stating that he has completed all the 12 modules, the claimant could still state something else. In his attempt to get a reimbursement from the Centre he was prepared to state that he had completed only 6 modules. However when he wanted to justify his claim that he possessed a MBA degree he had stated that he completed all the 12 taught modules. The credibility of the claimant was indeed questionable.

[42] Having considered all the evidence before the court, this court finds on a balance of probabilities that the claimant had misrepresented his qualifications in his application letter and his resume. It is an established principle that misrepresentation is a misconduct whereby the elements of dishonesty and deception are involved. A misrepresentation is a statement which conveys a false or wrong impression. Here the claimant knew that he did not possess those qualifications. Yet he knowingly put in his application and resume that he possessed a MBA. The court finds that the claimant by his conduct had shown his intention to deceive the club.

[43] Counsel for the club referred to the case of Sitt Tatt Industrial Gases Sdn. Bhd. v. Puvananderan Ganasamoorthy [2003] 2 ILR 485 (Award No. 396 of 2003). The Learned Chairman held that since the employer-employee relationship carries with it the duty of fidelity on the part of the employee and also a relationship of trust and confidence, dishonesty on the part of the employee is an attack upon the trust and confidence of the employee. The court referred to several commentaries in her award regarding the commission of misrepresentation to procure or obtain employment. At p. 490, the Learned Chairman stated as follows:

As regards to the commission of misrepresentation to procure or obtain employment, textbook authors are of the opinion, that is a misconduct justifying immediate dismissal. This is the stand of Alfred Avin in his book Employee's Misconduct As Cause for Discipline and Dismissal in India and the Commonwealth. The learned author at paras. 276 at p. 798 in his book states as follow:

By way of contrast, the cases are unanimous that obtaining employment by lying to get the job is industrial misconduct ... . It has been held that an applicant who lies about his age is guilty of employment misconduct. Similarly, an employee may be dismissed because, when applying for the job, he falsely stated that he had passed a qualifying examination, or had never been arrested, or had never worked for the company before, when in fact he had previously been employed and dismissed, or had never worked at all before when in fact he had previously been dismissed for theft, or had not been dismissed from a prior job.

The other learned authors BR Ghaiye and Harvinder Singh in the book Law of Simple Discharge [In Private and Public Sectors] have said at p. 481:

Services can be terminated for mis-representation in getting employment ... . An employee may give wrong particulars at the time of appointment in order to hide his incompetence for bettering his chances of employment. In all such cases the contract secured by misrepresentation becomes invalid ...

and at p. 482:

A workman may misrepresent facts to the employer in order to get employment. If he does so then he is guilty of dishonesty and cheating both.

[44] The claimant in this case had applied for and obtained employment as the Club Manager. COW1 had in his evidence stressed that the claimant as Club Manager had to manage the club and was in charge of all the staff. He also had access to confidential information relating to the members of the club. Since the claimant had misrepresented to the club regarding his qualifications, the club would not be able to repose any trust and confidence on the claimant.

[45] Having regard to the substantial merits of the case and acting according to equity and good conscience the court finds that the dismissal of the claimant was with just cause and excuse. The claimant's case is hereby dismissed.

* * * * * *

Award(s) referred to:
Sitt Tatt Industrial Gases Sdn Bhd v. Puvananderan Ganasamoorthy [2003] 2 ILR 485 (Award No. 396 of 2003)

For the claimant - Manian Raju; M/s Krishna Dallumah, Manian & Indran
For the club - Vijayan Venugopal; M/s Shearn Delamore & Co

Reported by Sharmini Pillai