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’s 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
