Cross-Examination, Interrupted

I was called in as counsel for a case because the previous counsel was having a torrid time in the industrial court. So strong was the pressure brought to bear to settle the claim it unsettled him and the client. His vigorous refusal did not meet well with industrial insistence. After a stormy final case management, he advised the client to get another lawyer. He didn’t think his presence would assist in advancing the case.

I think that the proper thing to do. If a matter develops beyond the remit of our competency, the professional thing to do would be tell the client and assist with finding them an appropriate competent lawyer. When I spoke to him about the handover he told me he would lend whatever assistance I needed. That was reassuring because the trial was in two weeks. He also told me to expect a challenging time and wished me luck. That was not reassuring because the trial was in two weeks.

We were for the company.

The company sacked the general manager and the accounts manager, who were husband and wife. They ran the company’s subsidiary on the East coast. They had managed it for close to thirty years before they were caught. They were sacked for embezzlement. They stole from the company and sold it to their son’s company for cheap. How they did so was simple but effective because it demonstrated a profound understanding of the company‚Äôs ordering and account system.

How it worked was like this: The wife submitted a transfer order to the warehouse. The goods listed in it would be brought from the warehouse to the sales delivery bay. The invoice drawn up was supposed to reflect all the goods in the transfer order. But she dropped a few items from the invoice. The husband would remove those dropped items from the sales delivery bay so the actual ordered items matched those stated in the invoice. Once payment was received the transfer order merged with the invoice so any trace of her dropping those items would not appear in the system. Those items would be sold to their son’s company at a much reduced price to show sales thereby make the theft harder to detect.

All that unraveled when the company received a tip off. It immediately carried out a forensic audit on the company. It discovered embezzlement to the tune of at least three hundred thousand ringgit in the last three years with every possibility of it going on for longer.

Both were called for a meeting with the holding company management to explain themselves. The husband turned up, confessed, promised to pay back, and pleaded with them not to file a police report. He wrote out his resignation letter on the spot and left. A formal email to him was sent accepting his resignation. The wife was terminated before the end of the day.

A few days later, they claimed unfair dismissal. He claimed he was forced into his resignation. She claimed there was no disciplinary inquiry carried out.

We were fixed for two days trial. We would go first. The next day would be the husband and wife. On the day of trial, first thing in the morning, the lawyers were ushered in to the chairperson’s chambers.

“So can parties settle?”

“Your Honour, … “

“Wait, who are you? I haven’t seen you before.”

“[FA] for the company. I have been recently appointed, Your Honour.”

“What happen to the other fella?”

“He has another matter to take care of, Your Honour.”

“Hmph. Another matter. Right,” he scoffed. “So, can parties settle?”

“I’m afraid that is difficult for our client.”

“Why?”

“Because we are alleging they stole from the company, Your Honour. If they settle this claim, it would set a bad example for the rest of the company. A police report was lodged and investigations are ongoing. If the situation were not so dire we would certainly try to work something out.”

“Look lah, thirty years they were working for the company. He just got terminated like that.”

“That’s his story, Your Honour. We have ours. He stole. She stole. We can prove it.”

“Yah. Yah. Look. It’s an inquisitorial system here. You know that? I will determine what the facts are. Now, I give parties one more chance to settle. If you cannot, we start the case at nine thirty sharp. Thank you.”

It did not go as badly as I thought it would. The chairperson seemed disappointed at my attendance. Perhaps he was hoping for more of the same. The moment we got out the door, opposing counsel and I looked helplessly at each other.

“So, for formality’s sake. Can or not?”

“If they want everything back then don’t think so,” came his practiced reply.

“I thought so. Cannot lah then.”

“Yah, cannot. See you later.”

The company went first.

By our evidence we proved the embezzlement that went on in the company. We proved several months before the discovery, the company announced a policy prohibiting the subsidiary company from entering into contracts with employee family related companies. Both husband and wife were in breach of that policy for selling stolen goods to their son’s company at a severely reduced price. A notice was sent to each employee of all the company subsidiaries. They had to sign and return the notice to headquarters. We also proved there was no undue influence at the meeting.

The husband went first. I started his examination by establishing he was ineligible for reinstatement because he was past the company age of retirement. Then I established his relationship with his wife, their employment, and that he was aware of the company’s policies about breach of trust. I had just finished taking him through the company’s policy notice and was about to undermine him when I heard a command from the tribunal.

“Stop!” the chairperson said with his right hand up, perhaps for benefit of the hard of hearing. Except there were no such people in the room. I turned from the witness to him.

“Yes, Your Honour?”

“Sit down. Let me show you how it is done,” he announced.

And then proceeded to cross-examine the husband about selling the stolen items to his son and his failing to abide by the company’s policy notice. So enthusiastic was the chairperson that by the time he was done there was little left for me to do save for a few matters.

Never before or after that case have I ever been stopped in cross-examination, for one, and two, being told to sit down and watch it being done by a tribunal. My team and I were thunderstruck. We looked about and nodded slightly at each other to acknowledge we were experiencing the same reality together. At that moment it felt as if we were in the twilight zone but without the signature introduction theme song to welcome us.

It felt like being present in a reality where we could no longer be sure of what we knew. This was not my first industrial court case. I had been through many by then so I knew this was not how it went down. Or anywhere, for that matter. Though I was supposed to be enjoying what I assumed was my advocacy lesson, at the back of my mind, I could not help but feel concerned.

After the husband, the wife folded like a bad poker hand. Their game was up.

From a lawyer’s perspective, it is not enough for a win. The judicial process and the grounds of judgment have to be solid too. If they are not, the decision is vulnerable to being overturned if appealed, or, in the case of an industrial court, judicially reviewed. But if no appeal or judicial review is initiated then whatever error in the judgment remains final and binding.

Section 30 of the Industrial Relations Act 1967 requires an industrial court to decide based on “equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.” That is understood to mean the industrial court adopts a slightly more generous approach to the reception of evidence i.e., evidence that would be excluded by the Evidence Act 1950 may be accepted by the industrial court. Having said that, it could not ignore the Act altogether.

It was not understood to mean the legal fact-finding system was that of an inquisitorial system. That is where the judge carries out her own investigation about the facts of the case. In an adversarial system, two parties present their version of the case and evidence to support it; the judge decides which is the likelier version.

As far as I know, the adversarial system applies in the industrial courts. Always has.

That was my concern with my unexpected advocacy lesson.

In the end, the company won.

The chairperson did not request for a portion of our fees.

Despite my concern, the claimants didn’t judicially review the decision.

My team was happy with the win.

And I was blessed with a rare moment in my legal experience.

All’s well that ends well.

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