AWARD41064
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Sultan Idris University of Education**We aren't endorsed by this school
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LAW 123
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Law
Date
Dec 30, 2024
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35
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1 IN THE INDUSTRIAL COURT OF MALAYSIA CASE NO.: 19/4-1485/23 BETWEEN RADZUAN BIN ABDUL KADIR AND ZB SECURITY SERVICES SDN BHD AWARD NO : 1688 OF 2024 BEFORE : Y.A. PUAN HAJAH ZALINA BINTI HAJI AWANG @ MAMAT - Chairman VENUE : Industrial Court Malaysia, Kuala Lumpur DATE OF REFERENCE : 25.09.2023. DATES OF MENTION : 15.11.2023, 31.01.2024, 25.04.2024. DATE OF HEARING : 08.08.2024. REPRESENTATION : Claimant - Represent himself Company –Unrepresented and was not present
2 Reference This is a reference dated 25.09.2023 by the Director General of Industrial Relations, Malaysia under Section 20(3) of the Industrial Relations Act 1967 pertaining to the dismissal of RADZUAN BIN ABDUL KADIR (referred to as “theClaimant”)by ZB SECURITY SERVICES SDN BHD (referred to as “theCompany”)on 31.01.2023.Procedural History [1] Pursuant to the Court’s directive on a date fixed for case management on 15.112023held before Assistant Register,31.01.2024 and 25.04.2024held before the Chairman, the parties were ordered to file the relevant pleadings on specified dates and fixed for the hearing on 08.08.2024.It must be noted that the Claimant was present while the Company was not present. [2] Hence, this case was ordered to proceed with the hearing ex-parte because the Company was absent and did not file Statement in Reply as ordered by this Honourable Court, this Court had only considered the Claimant’s Statementof Case, the Claimant’s Bundle of Documents marked as CLB1, the Claimant’soral evidence in this Honourable Court as at Statement Of Case Court on 08.08.2024. [3] The hearing proceeded through an ex-parte hearing due to the absence of the Company’s representative or the Company Counsel and did not filed Statement In Reply and Bundle of Documents under Section 29 (d) and (g) of the Industrial Relations Act 1967
3 [4] The Court informed the Company of proceeding the case through A.R Registered when was posted on 09.05.2024 was received but the Company, the Representative of the Company did not come to the Court. FACTS OF THE CASE [5] After the mentioned date was fixed for administrative purposes and file management purposes, this Court commenced and completed the trial of this case on 08.08.2024,where evidence was duly recorded from one (1) witness for the Claimant:(a) CLW-1: the Claimant [6] The cause papers and documents filed in this matter are as follows:- (i) The Claimant's Statement of Case dated 09.11.2023; and (ii) The Claimant's Bundle of Documents - CLB 1. [7] On 08.08.2024on the scheduled date for a full hearing despite notice being issued to the Company but no representative of the Company was present and so this Honourable Court proceeded to hear the matter ex-parte pursuant to section 29(d) and (g) of the Industrial Relations Act 1967.
4 [8] The Claimant gave evidence under oath and adopted he gave his oral evidence as in Statement of Case as his examination in chief. [9] The Claimant was a former employee of the Company.[10] The Claimant commenced his employment with the Company as a guard on 11.08.2022. [11] The Claimant was offered a salary of RM1,330.00per month. [12] The Claimant stated that during his tenure with ZB Security Services Sdn Bhd, his duties were also carried out with responsibility where the instructions for assignment were given orally and in writing. [13] In the meantime, during the term of service of the Claimant with ZB Security Services Sdn. Bhd., the terms/conditions of service shall be subject to his/her appointment letter. [14] The Claimant stated that the Claimant's contract of service is on a permanent basis and the probationary period stipulated in his position is 6 months. [15] Referring to the letter of the Claimant to Siti Aishah Binti Mat, the general manager of ZB Security Services Sdn. Bhd .dated 18 January 2023, stated about the change of the Claimant's position from permanent to not permanent. [16] The Claimant informed that referring to the letter dated 7 November 2022, from 10 November 2022 to December 2022, the Claimant has been changed from KPJ Bandar Kinrara to Hospital Pengajar (HPUPM) University Putra Malaysia (UPM).
5 [17] In December 2022, the Claimant was transferred to KPJ Bandar Kinrara again. The Claimant found that the Claimant's salary statements in November 2022 and December 2022 had been converted to not as permanent employees when previously the Claimant was a permanent employee at ZB Security company Services Sdn. Bhd. [18] The Claimant has worked for one (1) year and seven (7) months which is from 11.08.2022 to 31.01.2023when he was constructively dismissed. [19] The Claimant was constructively dismissed due to the actions of the Company. [20] At all material times, the Claimant did not do anything against the as the Company rules and regulations. [21] The Claimant also never committed any misconduct or was subject to any disciplinary proceedings during his employment with the Company. The Issue [22] The sole issue that arose for the determination of this Court was whether the Claimant was terminated with just cause or excuse. That notable pronouncement in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd [1987] 1 MELR 32; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 (of the then Supreme Court of Malaysia(of the then Supreme Court of Malaysia) as per Tun Salleh Abas LP, has practical relevance here, which went like this:
6 “When the Industrial Court is dealing with a reference under s. 20, the first thing that the Court will have to do is to ask itself a question of whether there was a dismissal, and if so, whether it was with or without just cause or excuse.”“When the Industrial Court is dealing with a reference under s. 20, the first thing that the Court will have to do is to ask itself a question of whether there was a dismissal, and if so, whether it was with or without just cause or excuse.”[23] In the case of Syahirah A Karim v. Baiduri Dimensi Sdn Bhd [2019] 2 LNS 3192 (Award 3192 of 2019) 24, on the issue of the Company’s letter titled “Acceptance of Resignation Notice”, YA Chairmanheld that: “[90] In Lewis v. Motorworld Garage Ltd[1985] IRLR 465, Neil LJ held as follows: .. it is now established that the repudiatory conduct may consist of a series of acts or incidents, some of them quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee....... In the very first day where he was subordinated to the said GM, the latter abused his superior position in an arbitrary and capricious manner which was manifestly vindictive in nature. It is the court’s finding that the conduct of the company cumulatively considered amounts to a repudiatory breach of the implied term of trust and confidence. While the company might not have calculated to
7 destroy or seriously damage the said trust and confidence, the said conduct had the likelihood of such an effect on the employment relationship between the claimant and the company. The court accordingly holds that the claimant had been constructively dismissed by the company.”[24] The same issues in this case were on discussed in the case of Manissah Mahmud Lwn. Medilu Sdn. Bhd. [2023] 3 ILR 293, Award No. 1412 tahun 2023, Elangkovan Muniandy V Akm Partners Sdn. Bhd. [2023] MELRU 1957, Lee Huey Ming V Smart Glove International Sdn. Bhd. [2024] MELRU 428, Mohd Khairul Syazwi Maliha Lwn YR Capital Sdn. Bhd. [2023] MELRU 2369, Award No. Tahun 2023, Muhammad Hairol Faizol Mat Jalal Lwn. YR Capital Sdb. Bhd. [2023] MELRU 2373, Award No. 2373 Tahun 2023.The General Principle [25] In Colgate Palmolive Sdn. Bhd. v. Yap Kok Foong [1998] 2 MELR 208; [1998] 2 ILR 965 (Award 368 of 1998), it was held as follows: "In a s. 20 reference, a workman's complaint consists of two elements: firstly, that he has been dismissed,and secondly that such dismissal was without just cause or excuse. It is upon these two elements being established that the workman can claim his relief, to wit, an order for reinstatement, which may be granted or not at the discretion of the Industrial Court.
8 As to the first element, industrial jurisprudence as developed in the course of industrial adjudication readily recognizes that any act which has the effect of bringing the employment contract to an end is a 'dismissal within the meaning of section 20. The terminology used and the means resorted to by an employer are of little significance; thus, contractual terminations, constructive dismissals, non-renewals of contract, forced resignations, retrenchments and retirements are all species of the same genus, which is Vismissal'..." [26] In Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 MLRA 415 [1981] 2 MLJ 129 Raja Azlan Shah CJ (Malaya) (as Al-Marhum DYMM Paduka Seri Sultan Azlan Shah Sultan Perak Darul Ridzuan, then was) speaking for the Federal Court ruled: "Where representations are 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."
9 [27] That learned author, Dr. Dunston Ayadurai in his erudite text Industrial Relations In Malaysia: Law & Practice 3rd Edition on page 297 states: "A workman can seek a remedy under section 20 only if he had been dismissed. More often than not, there is no dispute that there was an actual dismissal of the workman by his employer. The only issue for the Industrial Court to determine is whether the dismissal had been for just cause or excuse, the onus of proving the existence of the same being cast upon the employer." [28] And this onus or burden of proof on the Company is based on a standard of a balance of probabilities (see lreka Constructions Berhad v. Chantiravathan AIL Subramaniam James [1995] 1 MELR 373; [1995] 2 ILR II and Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1 MERL 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002 ] 3 AMR 2898. [91] It is submitted by the Company that the Claimant had failed to comply with instructions from superiors when she declined to attend the meeting on 28 December 2018 and failure to comply with supervisor’s orders would tantamount to misconduct. Whilst the position of law stated by the Company is indeed correct, the actions of the Company in this case however illustrates that the Company was not merely disciplining the Claimant. [92] The ill motive of the Company became crystal clear when the Company had failed to give a proper reply to the Claimant’s grievances or complain about the unfair treatment she was undergoing via her letter dated 14 January 2019. Similarly, when the Claimant after 3 days of non-response from the Company
10 wrote to inform that she was claiming constructive dismissal due to the Company’ s actions, the Company did not even see it fit to deny her allegations. Instead, the Company had quickly acknowledged the Claimant’s letter within a day and considered that the Claimant had willingly resigned from the Company. Through its actions, the Company’s intent to drive the Claimant out of her employment is transpicuous to this Court. ”Role of Industrial Court [29] The role of the Industrial Court was lucidly explained by His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in a Federal Court Case of Goon Kwee Phoy V. J & P Coats (M) Bhd [1981] 1 MLRA 415; [1981] 2 MLJ 129 as follows: “Where representations are made and are referred to the Industrial Court forenquiry, it is the duty of the Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason or excuse for the action taken by him, the duty of the Industrial Court will be to enquire whether that reason or excuse has or has not been made out. If it finds as a fact that it has not been proven, 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 the employer, and that Court or the High Court cannot go into another reason not relied on by the employer or find one for him.”
11 [30] The role of the industrial Court in a dismissal case has been further propounded by another landmark case held by the Federal Court. His Lordship Mohd Azmi FCJ (then) speaking for the Federal Court coram in Milan Auto Sdn Bhd v Wong Seh Yen [1995] 2 MLRA 23; [1995] 3 MLJ 537; [1995] 4 CLJ 449; [1996] 1 AMR 049 observed as follows:“Aspointed out by this Court recently in Hong Leong Assurance Sdn Bhd vs Wong Yuen Hock [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a reference under s 20 is twofold, first, to determine whether the misconduct complained of by the employer has been established, and secondly, whether the proven misconduct constitutes just cause or excuse for the dismissal”.Burden of Proof [31] The burden of proving that the employee is guilty of the allegation of misconduct or negligence as the case may be and establishing the reasons for dismissal rests squarely upon the employer. This was aptly stated by the Industrial Court Chairman in Stamford Executive Centre v. Dharsini Ganesan [1985] 2 MELR 245; [1986] 1 ILR 101 as follows: "It may further be emphasized here that in a dismissal case the employer must produce convincing evidence that the workman committed the offence or offences the workman is alleged to have committed for which he has been dismissed. The burden of proof lies on the employer. He must prove the workman guilty, and it is not the workman who must prove himself not guilty. This is so basic a principle of industrial jurisprudence that no employer is expected to come to this Court in ignorance of it,"
12 [32] In Ireka Construction Berhad v. Chanthiravathan all Subramaniam James [1995] 1 MELR 373; [1995] 2 ILR 11 - (Award No 245/1995),the Industrial Court had this to say with regards to the burden of proof in dismissal cases: "It is basic principle of industrial jurisprudence that in a dismissal case the employer must produce convincing evidence that the workman committed that offence or offences the workman is alleged to have committed for which he has been dismissed. The burden of proof lies on the employer to prove that he has just cause and excuse for taking the decision to impose the disciplinary measure of dismissal upon the employee. The just cause must be, either a misconduct, negligence or poor performance based on the facts of the case..." [33] The standard of proof applicable to dismissal cases is the civil standard of proof on a balance of probabilities as decided by the Court of Appeal inTelekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3 AMR 2898as follows: "Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including "theft", is not required to be satisfied beyond reasonable doubt that the employee has "committed the offence", as in a criminal prosecution... In our view the passage quoted from Administrative Law by H. W. R. Wade & C.F. Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature and gravity of the issue."
13 [34] In the case of Manimaran Karuvanan v. Tav Facility Solution (M) Sdn Bhd [2020] MELRU 1374the Company failed to turn up when the case was called for hearing. The Industrial Court had proceeded with an ex-parte hearing on the merit of the case pursuant to s 29(d) of the IRA 1967. It was held inter alia as follows: ... "As such, both parties had been sufficiently informed of the hearing dates fixed for this case. However, the Company failed to turn up in Court on the Hearing date. Hence, the hearing was ordered to proceed Ex-Parte pursuant to s 29(d) of the IRA 1967. In relation to this, the Court is guided by the case of Lee Mei Wan v. Ultimate Media Group Pte Ltd [2017] MELRU 1668.It was observed that: Ex-parte Hearing [4] Subsection 29(d) of Act 177 provides for an ex-parte hearing without the presence of one of the parties to the dispute as follows: "The Court may, in any proceedings before it: (a) …(d) hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as maybe prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear." Therefore, the Court was of the view that in the circumstances of this case, an ex-parte hearing was warranted due to the Company's failure to attend Court although the Notice of Hearing and the earlier Notice of Mention had been served on it as stated above."
14 [35] Nevertheless, the Court must not forget its ultimate duty in considering the relevant facts and determining the case on merit albeit hearing the matter Ex-Parte. This Court is guided in this respect by the case of Wong Brothers Building Construction v. Chao Chee Siam [2005] 1 MELR 792; [2005] 2 ILR 356 in which the Company was absent during the date of the hearing. The Court continued to hear the case on an ex-parte basis, wherein the Court held inter alia, as follows: "The Court is mindful of the role in ex parte hearing by referring to the case Of Ike Video Distributors Sdn Bhd v. Chan Chee Bin [2004] 2 MELR 278; [2004] 2 ILR 687where the Learned Chairman quoted from the book "The Law of Industrial Disputes" by OP Malhotra Vol 3rd Edition At p 716: "A rule empowering the tribunal to proceed EX-PARTE if a party is absent and sufficient cause is not shown for his absence, would not enable it either to do away with the inquiry or straight away pass on an Award without giving finding on the merits of the disputes. In other words, the absence of a party does not entail the consequence that an Award will straightaway be made against him" [Emphasis Added] [36] Having put the factual matrix of the case in perspective, the duty of this Court in relation to unfair dismissal claims under s 20(3) of the Industrial Relations Act such as the present case, is the need to ask itself the following issues: i) Whether there is a dismissal, and if yes; ii) Whether the dismissal was with just cause and excuse
15 Standard of Proof [37] The standard of proof applicable to dismissal cases is the civil standard of proof on a balance of probabilitiesas decided by the Court of Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 1 MELR 4; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3 CLJ 314; [2002] 3 AMR 2898 as follows:“Thus,we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including “theft”, is not required to be satisfied beyondreasonable doubt that the employee has “committedthe offence”,as in a criminal prosecution…In our view the passage quoted from Administrative Law by H. W. R. Wade & C.F. Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature and gravity of the issue.”Law on Ex-Parte [38] In the case of Manimaran Karuvanan v. Tav Facility Solution (M) Sdn Bhd [2020] MELRU 1374the Company failed to turn up when the case was called for a hearing. The Industrial Court had proceeded with an ex-parte hearing on the merit of the case pursuant to s 29(d) of the IRA 1967. It was held inter alia as follows: …“Assuch, both parties had been sufficiently informed of the hearing dates fixed for this case. However, the Company failed to turn up in Court on the Hearing date. Hence, the hearing was ordered to proceed Ex-Parte pursuant to section 29(d) of the IRA 1967. In relation to this, the Court is guided by the case of Lee Mei Wan v. Ultimate Media Group Pte Ltd [2017]2 LNS 1668. It was observed that:
16 Ex-parte Hearing [4] Subsection 29(d) of Act 177 provides for an ex-parte hearing without the presence of one of the parties to the dispute as follows: "The Court may, in any proceedings before it: (a) ... (d) hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as maybe prescribed by the president or in the absence of any party to the proceedings who has been served with a notice or summons to appear.”Therefore, the Court was of the view that in the circumstances of this case, an ex-parte hearing was warranted due to the Company’sfailure to attend Court although the Notice of Hearing and the earlier Notice of Mention had been served on it as stated above.”[39] Nevertheless, the Court must not forget its ultimate duty in considering the relevant facts and determining the case on merit albeit hearing the matter Ex-Parte. This Court is guided in this respect by the case of Wong Brothers Building Construction v. Chao Chee Siam [2005] 1 MELR 792; [2005] 2 ILR 356 in which the Company was absent during the date of the hearing. The Court LS ntinued to hear the case on an ex-parte basis, wherein the Court held inter alia, as follows: “The Court is mindful of the role in ex parte hearing by referring to the case Of Ike Video Distributors Sdn. Bhd. V. Chan Chee Bin [2004] 2 ILR 687 where the Learned Chairman quoted from the book “The Law ofIndustrial Disputes”by O.P. Malhotra Vol. 3rd Edition. At p 716: “A rule empowering the tribunal to proceed EX-PARTE if a party is absent and sufficient cause is not shown for his absence, would not
17 enable it either to do away with the inquiry or straight away pass on an Award without giving finding on the merits of the disputes. In other words, the absence of a party does not entail the consequence that an Award will straightaway be made against him” (emphasis added)”Issues [40] Having put the factual matrix of the case in perspective, the duty of this Court in relation to unfair dismissal claims under Section 20(3) of the Industrial Relations Act such as the present case, is the need to ask itself the following issues: i) Whether there is a dismissal, and if yes; ii) Whether the dismissal was with just cause and excuse Courts’s Findings [41] It is trite law that for dismissal cases, the burden of proof rests on the Company as employer to prove on a balance of probabilities.In the case of Telekom Malaysia Kawasan Utara v Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314the Court of Appeal has laid down the principle that the standard of proof required to prove a case in the Industrial Court is based on the balance of probabilities wherein his lordship Justice Abdul Hamid Mohamad, JCA opined:-: “Thus, we can see that the preponderant view is that the Industrial Court, when hearing a claim of unjust dismissal, even where the ground is one of dishonest act, including “theft”, is not required to be satisfied beyond reasonable doubt that the employee has “committed the offence”, as in acriminal prosecution.
18 On the other hand, we see that the courts and learned authors have used such terms as “solid and sensible grounds”, “sufficient to measure up to a preponderance of the evidence,” “whether a case... has been made out”, “on the balance of probabilities” and “evidence of probative value”.In our view the passage quoted from Administrative Law by H.W.R. Wade & C.F. Forsyth offers the clearest statement on the standard of proof required, that is the civil standard based on the balance of probabilities, which is flexible, so that the degree of probability required is proportionate to the nature of gravity of the issue. But, again, if we may add, these are not “passwords” that the failure to use them or if some other words are used, the decision is automatically rendered bad in law.”Whether Sufficient Notice Were Given for the Dismissal [42] Similar to other dismissal cases under s 20(3) of the IRA 1967, the standard of required is merely on a balance of probabilities. See: Telekom Malaysia wasan Utara v Krishnan Kutty Ail SaiiM' Nair & Anor [SUPRA][43] The Court of Appeal in the case of Ng Chang Seng v Technip Geoproduction (M) Sdn Bhd & Anor [2020] 3 MELR 311; [2021] MLRA 261; [2021] 1 MLJ 447B held that:-
19 "[58] To justify the termination on ground of redundancy the comparison to be made is not so much to the staff that had been retrenched but to those being retained in preference to the claimant and to see if the company had justified that in showing the retrenchment of the claimant was reasonable in the circumstances of the case. The fact which the High Court highlighted at paras (2)(4 and (17)(ii) of the judgment that on the same month as when the claimant was retrenched, 16 other employees from the instrument department had also been retrenched is not relevant in determining whether the claimant had been rightly selected for retrenchment other than showing that the retrenchment in the company was pervasive and a gripping reality. [59] Likewise when the High Court emphasized that overall 492 of the company's employees had been retrenched and that globally 6,000 employees of the Technip Group were retrenched at para 17(10 of its judgment. What is relevant is whether the claimant ought to have been selected for retrenchment having regard to the employees in the same instrument department that remained. It is not a case of since so many have been retrenched it is a matter of time before the axe would fall on the claimant and that when it does the claimant would have no right to complain because the many that received the same fate did not." [28]The comparison should be made between the Claimant and those who are being retained by the Company, and not those who have been retrenched. The fact that other employees were also retrenched is not relevant to whether the Claimant was rightly selected for retrenchment.
20 (29] The Court of Appeal in the case of Ng Chang Seng v Technip Geoproduction (M) Sdn Bhd & Anor (SUPRA) further held that :-"[60] We accept as correct the following tests as laid down in Lilly Industries (M) Sdn Bhd v Billy Wayne Seisor [2006] 2 MELR 215; [2006] 3 ILR 1507 at para 26 that the company must prove the following: Firstly, there must be redundancy. Secondly, the dismissed workman must have been correctly selected for retrenchment (objective criteria). And thirdly, the employer should have adopted a fair procedure before carrying out the retrenchment. These form the three pillars upon which an employer sets the stage from which he puts forth an arguable case to justify the dismissal of a workman for the reason of redundancy. There is one common beam that connects these three pillars. That is, the unshakable proposition of law which imposes the burden upon the employer to prove the existence of these prerequisites and thus establish the correctness of the dismissal. (Emphasis added.)" [44] In summary, the burden is on the Company to prove the following:- a) There must be redundancy b) The dismissed employee must have been correctly selected for retrenchment (objective criteria); and c) The Company should have adopted a fair procedure before carrying out the
21 retrenchment. [45] Be that as it may, there had NOTbeen an iota of evidence adduced by the any to justify the dismissal of the Claimant. [46] Refer the Industrial Court’s case of Kam Seng Eu v Oud Essentials Sdn Bhd [2019]1 ILJ 110where the Industrial Court had held as follows:- "The company claimed that they are insolvent and was in the process of being wound up, but when the court requested for documentary proof of winding up, the company failed to produce and Mr Steven Malcolm Watts himself not be seen present in the court. At the full trial, the claimant was present, but the company has not been represented by any authorised person. Held, allowing the claim and awarding the claimant RM92 000 in back wages: (1)... The company had failed to attend the hearing no evidence was adduced to show the company's reason to terminate the claimant's employment in the company. Therefore, the court found that the company has notdischarged its burdenof proving lts case on the balance of probabilities and the claimant's dismissal is without just cause or excuse..." [47] The Company has not provided any documentary evidence to support its reason for the Claimant's dismissal.
22 Decision [48] It must be said that by being absent from attending the hearing and produce witnesses to contradict the Claimant’sevidence during trial, the companies must be taken to agreeing to the Claimant’s contentions or that the Company had nointerest to challenge the Claimant’s testimony. It must be noted that above all, the Company had filed its Statement in Reply to answer the Claimant’sStatement of Case.[49] In the foregoing, this Court finds that the Claimant was in fact terminated by the Company dated 31.01.2023.Be that as it may, the Company had failed discharge the burden of proof that the Claimant was terminated with just cause or excuse with the issuance of the Notice of Termination against the Claimant. The Company had failed to show that it had acted bona fide in terminating the Claimant’s services. [50] It is therefore this Court’s conclusion basedon equity and good conscience that the Claimant had successfully made out his case of termination without just cause or excuse. The Company had failed to prove its case of a valid dismissal of the Claimant by failing to attend and give evidence on the hearing date. It must necessarily follows that the Claimant’scase be hereby allowed. [51] Refer to the case of Lee Lok Kan v Foodteller Sdn Bhd & Anor [2020] MLRHU 1806
23 "In the present case, at the time of dismissal, the Claimant had already reached the statutory minimum age of retirement of 60 years. This is because s 4(1) of the Minimum Retireinent Age Act 2012 states as follows: "Notwithstanding any other written law, the minimum retirement age of an employee shall be upon the employee attaining the age of sixty years." The effect of the Minimum Retirement Age Act 2012 is that all employees in the private sector will now have to retire at the age of 60 years. In view of the statute, there can no longer be any more arguments on whether a Company has a retirement policy. This is because the law now is that the employee will retire upon attaining the age of 60 years. In conclusion, as the Claimant in the presence case had attained the age of 61 years 3 months at the time of his dismissal. Hence, he has reached the minimum retirement age of 60 years at the time of the dismissal. Consequently, the issue of reinstatement does not arise and it follows that the issue of compensation [ie back wages and compensation in lieu of reinstatement] also does not arise. a) The Applicant's claim was dismissed by the 2nd Respondent for the following reasons: a) Section 4(1) of the Minimum Retirement Age Act 2012 states that the minimum retirement age shall be upon the employee attaining the age of 60 years old.
24 b) As the Applicant was above 60 years old when he filed his representation, the remedy of reinstatement is not available to him. c) As the Applicant had reached the minimum retirement age at the time of dismissal, the issue of reinstatement and consequently the issue of compensation in lieu of reinstatement and payment of back wages does not arise. Minimum Retirement Age a) The Applicant was born on 20 March 1955 and was 61 years 3 months at the time of his dismissal. The Applicant was 63 years old when he gave his evidence before the Industrial Court. The Applicant claimed that he is to be reinstated to his former position with full back wages and benefits from the date of dismissal to the date of reinstatement, [27] Following the Share Sale Agreement on 1 November 2014, the Applicant resigned from all his posts in the 1st Respondent with effect from 31 October 2014 (letter of resignation dated 31 October 2014-exhibit "LLK-5" of the Applicant's Affidavit In-Support, Jilid 1, p 54). Since 1 November 2014, the Applicant had ceased to be an employee of the 1st Respondent (the Applicant was 59 years 7 months). He sold all his shares, relinquished his roles and ceased employment with the 1st Respondent. b) Subsequently, Mr Chen Chee Chan was appointed as the new CEO of the 1st Respondent with effect from 1 November 2014 (letter of appointment dated 31 October 2014, exhibit "LLK-5" of the Applicant's Affidavit In-Support, Jilid 1, p61).
25 c) Since 1 November 2014, purely as a mark of respect to the Applicant and 7' based upon his representation that he would volunteer his time to assist in transitioning between managements at the 1st Respondent, the Applicant was accorded a purely "ceremonial post" which allowed him to be provided with a reason to maintain office space in the 1st Respondent. This was also to ensure that the Applicant was able to comply with his obligations of achieving the target which was set and agreed upon in the Shareholders Agreement to avoid forfeiture of the rest of his shares. d) The Applicant was not involved in any matters, roles, tasks and/or duties which are normally associated with the role of a CEO and/or Managing Director since 1 November 2014. The Applicant ceased to be a director as well as an employee of the 1st Respondent since November 2014. As the Applicant was no longer an employee since November 2014, he ceased to be on the payroll and no longer received any remuneration including salary and allowances from the 1st Respondent, As such, he is not entitled to any remuneration including salary and allowances from the 1st Respondent from 1 November 2014. e) As the Applicant's conduct in engaging in a long-standing acrimonious and very public feud with Mr Chen Chee Chan was adversely affecting staff morale and does not demonstrate an intention of reciprocating the goodwill and respect accorded to him, the 1st Respondent accordingly exercised their discretion to bar the Applicant from entering its premises save except
26 to remove his belongings on 1 July 2016 (the Applicant was 61 years 3 months). f) The 1st Respondent's aforesaid action does not amount to an act of I dismissal/termination of the Applicant as he was no longer an employee of the 1st Respondent since November 2014, In the circumstances, the allegations that the 1st Respondent's action amounts to an unlawful termination of employment are without basis. g) The Applicant claimed for reinstatement with full back wages and benefits ' from the date of dismissal to the date of reinstatement, The 2nd Respondent in its Award said that since he has reached the minimum retirement age of 60 years at the time of dismissal. Consequently, the issue of reinstatement and compensation do not arise. h) The court refers to s 4(1) Minimum Retirement Age Act 2012 which states: "4. (1) Notwithstanding any other written law, the minimum retirement age of an employee shall be upon the employee attaining the age of sixty years." There was no single evidence from the 1st Respondent with regards to the retirement age in the Company. Since there is no retirement age in the company or set by the Company, the Applicant's counsel submits that the Applicant has not attained any retirement age yet. Counsel for the Applicant also submitted that an employer can always set its retirement age above 60 years old. The issue is whether the Company has set any retirement age for the employee?
27 i) There was no retirement age in the 1st Respondent. In the absence of any retirement age in the 1st Respondent, then what is the retirement age applicable in the 1st Respondent? One could not presumed any numbers of retirement age applicable in the Company or allowed any employee to work until death unless the Applicant can prove otherwise which is none in this case. In such circumstances, the Minimum Retirement Age Act 2012 applies. The Act clearly provides that all employees will retire upon attaining the age of 60 years regardless whether a Company has a retirement policy. The 2nd Respondent did not err in law and in fact in finding that the minimum retirement age of 60 years old applies to the Applicant. Reinstatement And Compensation in Lieu Of Reinstatementa) Whether the Applicant is entitled to claim for compensation in lieu of reinstatement in view of the fact that he was way passed the minimum retirement age of 60 years The 2nd Respondent did not err in law and had fully considered the legal principles and facts set out by the Federal Court in Unilever (M) Sdn Bhd (supra). In the said case the Federal Court held that reinstatement is a statutory recognised form of specific performance which can only be ordered in a situation where a legal basis for such performance exists.
28 b) The Federal Court further explained on "compensation in lieu of reinstatement" in its judgment and said this: [20] From the phrase "compensation in lieu of reinstatement", it is our judgment that the element of compensation will only arise when the employee is in a position or situation to be reinstated. It is a condition precedent to such compensation. Our view is fortified by the clear provision of s 20(1) of the IRA 1967, where the primary remedy of such a representation to the Director General is for the workman "to be reinstated in his former employment". If a workman cannot be reinstated because his age has exceeded his retirement age, the issue of compensation cannot arise. Corollary to that logic, it cannot be in lieu of his reinstatement. After all, reinstatement is a statutorily recognised form of specific performance. On that premise, such specific performance can only be ordered in a situation where the legal basis for such performance does exist. One cannot substitute when the one to be substituted does not or cannot exist. This can be seen in the legal maxim: "lex non cogit ad impossibilia", ie, the law does not compel the impossible." INTENTIONALLY LEFT BLANK
29 Back Wages c) Whether the Applicant is entitled for back wages. The remedy of back wages (maximum of 24 months only) is only available if the employee has yet to reach the age of retirement. The Court of Appeal in the case of Boustead Hotels & Resort Sdn Bhd v. Basiah bt Jaafar & Ors [2016] 3 MELR 361; [2016] 5 MLRA 386; [2016] 4 MLJ 555; [2016] 8 CLJ 1,held that an award of back wages can only be made if the employee has yet to reach the retirement age. As the Applicant had exceeded the retirement age of 60 years old, the remedy of back wages is not available to him.The Second Respondent did not err in law when he decides that since the issue of reinstatement does not arise therefore the issue of compensation [ie back wages and compensation in lieu of reinstatement] also does not arise. Remedy i) Reinstatement a) Based on the Court's assessment and age of the Claimant which is 62 old at this year 2024 and as it is certainly not conducive to reinstate the Claimant as the age of the Claimant and by Section 4(1) of the Minimum Retirement Age Act 2012 states that the minimum retirement age shall be upon the employee attaining the age of 60 years old. b) As the Applicant was above 60 years old when he filed his representation, the remedy of reinstatement is not available to him. c) The Claimant will be awarded with an appropriate remedy accordingly.
30 ii) Backwages a) Back wages are calculated based on the Claimant's last drawn salary but limited to 24 months. From the back wages, the court is required to make a deduction for any contributory conduct, post dismissal earnings and delay in the hearing of the case but such a deduction need not involve a mathematical calculation. b) This Court is bound by the principle laid down in the case ofDr. James Alfred (Sabah) v. Koperasi Serbaguna Sonya Bhd (Sabah) & Anor 120011 3 CLJ 541. His Lordship Justice Tan Sri Steve Shim CJ (Sabah & Sarawak) in delivering the judgement of the Federal Court held that: “In our view, it is in line with equity and good conscience that the Industrial Court, in assessing quantum of back wages, should take into account the fact, if established by evidence or admitted, that the workman has been gainfully employed elsewhere after his dismissal. Failure to do so constitutes a jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course, taking into account such employment after dismissal does not necessarily mean that the Industrial Court has to conduct a mathematical exercise in deduction. What is important is that the Industrial Court, in the exercise of its discretion in assessing the quantum of back wages, should take into account all relevant matters including the fact, where it exists, that the workman has been gainfully employed elsewhere after his dismissal. This discretion is in the nature of a decision-making process”
31 In assessing the amount to be awarded, the years of service that the Claimant had rendered for the Company shall be taken into consideration. That being said, it is just and proper that the Claimant be hereby awarded backwages of eight (8) months salary based on his last drawn salary prior to his termination from the Company. c) At the same time, in deciding the quantum for backwages as emphasized earlier on, this Court is also mindful and shall have regard to the following provision which reads as follows: Item 1 of the Second Schedule in [Factors For Consideration In Making An Award in Relation To A Reference Under Sub Section 20(3)] of Section 30(6A) of the IRA 1967: “1. In the event backwages are to be given, such backwages shall notexceed twenty four months backwages from the date of dismissal based on the latest drawn salary of the person who has been dismissed without just cause or excuse d) Having considered the totality of the facts and circumstances of the case this Court awards backwages of eight (8) months to multiply with the Claimant’slast drawn basic monthly salary as per Claimant’s Bundle of Authority marked as CLB1 is RM1330.00
32 e) This Court having ruled that the Claimant was dismissed from his employment without just cause or excuse by ZB SECURITY SDN BHD will now consider the appropriate remedy for the Claimant. f) The Claimant commenced employment with this Company by first becoming the employee of ZB SECURITY SDN BHD on the 11.08.2022.The Claimant was dismissed from his employment with this Company 31.01.2023The Claimant had thus served the Company for a period of one (1) year, two (2) monthsand twenty (20) days. g) The Claimant, in stating that his dismissal from employment with the Company was without just cause or excuse, prays to this Court for reinstatement to his former position in the Company without any loss of wages or other benefits. Considering the factual matrix of this case where the relationship between the Claimant and the Company can only be seen as having deteriorated after the Claimant's dismissal from employment, it is this Court's view that reinstatement of the Claimant to former position in the Company not a suitable remedy in the circumstances of this case. h) As such the appropriate remedy in the circumstances of this case must be compensation in lieu of reinstatement. The Claimant is also entitled for backwages in line with Section 30(6A) of "The Act" and the factors specified in the Second Schedule therein which states:- 1. In the event that backwages are to be given, such backwages shall not exceed twenty-four months' backwages from the date of dismissal based on the last-drawn salary of the person who has been dismissed
33 without just cause or excuse; i) The Claimant's last drawn wages basic salary was RM1330.00 as per the Claimant’s Statement of Case in the Claimant’s Witness Statement CLWS1 and in Claimant’s Bundle of Documents (CLB-1). j) Equity, good conscience and substantial merits of the case without regard to technicalities and legal forms remains the central feature and focal point of this Court in arriving at its decision and these principles will be adhered to by this Court at all times leading to the final order of this Court. k) This Court is further bound by the principle laid down in the case of Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah) & Anor 12001] 3 CLJ 541where his lordship Justice Steve Shim CJ (Sabah & Sarawak) in delivering the judgment of the Federal Court opined:- "In our view, it is in line with equity and good conscience that the Industrial Court, in assessing quantum of backwages, should take into account the fact, if established by evidence or admitted, that the workman has been gainfully employed elsewhere after his dismissal. Failure to do so constitutes a jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course, taking into account of such employment after dismissal does not necessarily mean that the Industrial Court has to conduct a mathematical exercise in deduction. What is important is that the Industrial Court, in the exercise of its discretion in assessing the quantum of backwages, should take into account all relevant matters
34 including the fact, where it exists, that the workman has been gainfully employed elsewhere after his dismissal. This discretion is in the nature of a decision- making process". (emphasis added) l) This Court must take into account the post dismissal earnings (if any)of the Claimant in order to make an appropriate deduction from the backwages to be awarded. In this case the effective date of dismissal was 31.01.2023; while the Claimant unemplyed after the dismissal. m) In line with section 30 (6) and 30 (6A) of “The Act” and afterhaving considered all the facts of case on the appropriate sum to be awarded and after taking into account the Claimant’s received new employment, this Court hereby orders reinstatement paid to the Claimant. Monetary Award i) Backwages ordered: RM1330.00 X 8 months =RM 10,640.00 TOTAL= RM 10,640.00
35 FINAL ORDER OF THIS COURT [52] It is this Court’s order that the Company namely ZB SECURITY SDN BHD, pay to the Claimant a sum of Ringgit Malaysia ten thousand six hundred forty, (RM 10,640.00)only less statutory deduction (if any) within 30 days from the date of this Award. HANDED DOWN AND DATED THIS 29thDAY OCTOBER OF 2024 -signed- (ZALINA BINTI AWANG@MAMAT) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA KUALA LUMPUR