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General News

Illegally Obtained Documents Admissible in the Industrial CourtMonday, 1 August 2022
Suberan Chandran v Xerox Business Services (M) Sdn Bhd [2019] 1 LNS 597 –
Illegally Obtained Documents Admissible in the Industrial Court
Author: Bernard Kanny
Claimant was a project director with the company. He was to oversee the implementation of the Touch N Go project for the company. The claimant’s role in this project was to manage the implementation process of the project involving the creation and implementation of the Commercial Bank System for Touch N Go Sdn Bhd.
The implementation of the system began on 1.1.2013 and was completed on 26.1.2015. The system was accepted by Touch N Go Sdn Bhd and a Customer’s Acceptance Certificate signed on 5.3.2015. As regards the maintenance and warranty phase for the project, it was handled by the Xerox team in India.
Thereafter, the company issued a Reduction in Workforce Notification dated 3.7.2015 to the claimant for termination of his employment with effect on the same date.
The claimant’s role ceased to exist on his last day of employment. The company never recruited another Project Director upon the claimant’s release.
The claimant’s position ceased to exist because the implementation of the Touch N Go project had been completed. The company was about to commence maintenance and warranty work for the coming years. At the material time, claimant was not the only one affected as the Key Accounts Manager for Touch N Go project was also released.
Dissatisfied with the termination of his employment, the claimant filed a claim for wrongful dismissal.
At trial, the claimant attempted to show that his role as the Project Director was undertaken by Rod Osborne after his termination. The claimant relied on some documents which were given to him by CLW-2 who was a Junior Analyst in the project. These documents were given to the claimant without the consent of the company.
The Company submitted that the claimant had attempted to tender and rely upon documents which had been obtained illegally. The said documents belonged to the company and are private and confidential. The claimant attempted to produce these documents in contravention of his express provision of his letter of appointment. CLW-2 in cross examination had agreed that there was no approval from the company and there was a non-disclosure agreement with the company.
The claimant submitted that these documents were relevant because it showed Ros Osborne had taken over his role as Project Director. Therefore, the documents were admissible.
In dealing with the issue, the Industrial Court held “that industrial jurisprudence approaches the concept of illegally obtained documents differently from civil courts. The test in the civil court is whether it is relevant. If it is, it is admissible. However, with regards to the Industrial Court it is a court of equity and good conscience whereby the party seeking relief must come to court with clean hands. It goes against equity and good conscience to allow the claimant to take and use the employer’s property in that way. Such conduct breaches mutual trust and confidence so paramount in an employer-employee relationship.”
Hence, the Industrial Court held that the documents were inadmissible as it were obtained illegally. The documents were given without the approval of the company. The claimant’s retrenchment was with just cause and excuse and dismissed the claimant’s claim. Being dissatisfied with the decision, the claimant filed for judicial review.

The claimant challenged the Industrial Court Award on the following grounds:
  1. The IC had wrongfully excluded “amended agreements” (documents) tendered by the claimant. The claimant alleged that these documents showed that the Touch N Go project continued to exist and was carried out by Ros Osborne.
  2. The claimant claimed the Touch N Go project continued to exist and was carried out by the company. Hence, his position as the Project Director was still required. Hence, he was not redundant.

The IC had wrongfully excluded the documents tendered and relied by the claimant. The High Court was of the view that the documents were relevant to the case and cannot be ignored by the IC.
Justice Nordin bin Hassan held: “ ….the principle of law in civil court with regard to illegally obtained evidence should also be applicable to the Industrial Court. There should not be a different approach in the application of the principle of law between these two courts where the ultimate purpose is to ensure justice to all parties. This does not mean that the court is condoning any illegal act but if the evidence is already before the court, it cannot be ignored if it is relevant.”
Hence, the principle of law in the Civil Court with regard to illegally obtained evidence is also applicable to the Industrial Court. There should not be a different approach in the application of the principle of law between these two courts where the ultimate purpose is to ensure justice to all parties.
However, the High Court held that the evidence which was excluded by the IC does not effectively assist the claimant particularly when one of the document excluded has a signature of Rod Osborne who signed it as the Managing Director of Asia Pacific Region and not as a Project Director.
Further, the High Court held that even though the IC wrongly excluded the documents, the ultimate decision of the IC was correct based on the available evidence and therefore the decision of the IC should not be disturbed. The application for Judicial Review was dismissed. Being dissatisfied with the decision the claimant filed an appeal to the Court of Appeal.

In a recent decision, the Court of Appeal unanimously concurred with, and upheld, the decision of the High Court.
It is a well-recognized general rule that documents that have been illegally obtained do not affect its admissibility. However, there are exceptions to the rule. One of these exceptions is the employer-employee relationship. The exception arises where an employee surreptitiously obtains documents belonging to his employer in the course of his employment.
In this regard, any document which is taken by an employee, without the permission of his/her employer, cannot be admissible in a court of equity and good conscience. The justification for this is that the employee, having misappropriated the document, does not come to the IC “with clean hands” and thus, is not allowed to rely on the documents despite its relevance to the proceedings. In addition, an employment contract differs from ordinary commercial contracts. The duty of fidelity, loyalty and good faith implicitly arises from a contract of employment, and an employee is expected to act in good faith towards employer.
However, the High Court in SUBERAN CHANDRAN has held that an employee can rely on a document which he has taken from his employer without approval to prove a claim of unfair dismissal provided it is relevant. This decision was affirmed and upheld by the Court of Appeal.
Henceforth, employees will be able to rely on documents which they have obtained in the course of employment to assist them at trial to prove their case against the employer. So long as the evidence sought to be adduced is relevant and before the court, the Industrial Court cannot ignore it.
Industrial Court
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