IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4/4-2602/20

BETWEEN

JOSEPH LIM CHIEN SHIUH

AND

DANCOM TT&L TELECOMMUNICATIONS (M) SDN BHD

AWARD NO: 1052 OF 2021

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

Chairman

VENUE : Industrial Court, Kuala Lumpur.

DATE OF REFERENCE : 22.10.2020.

DATE OF RECEIPT OF
ORDER OF REFERENCE : 12.11.2020.

DATES OF MENTION : 09.12.2020, 25.02.2021, 11.03.2021,

15.04.2021.

DATE OF HEARING : 24.03.2021.

REPRESENTATION : Mr. Kanarasan Ghandinesen & Ms.

Malathi Natarajan of Messrs Ghandi,
Counsel for the Claimant.

Ms. Maylee Gan Suat Lee & Mr. Tai

Foong Ken of Messrs Maylee Gan & Tai,
Counsel for the Company.

1
THE REFERENCE

This is a reference dated 22.10.2020 by the Honourable Minister of

Human Resources pursuant to section 20 (3) of the Industrial Relations

Act 1967 (“The Act”) arising out of the dismissal of Joseph Lim Chien

Shiuh (“Claimant”) by Dancom TT&L Telecommunications (M) Sdn

Bhd (“Company”) on the 31.07.2020.

AWARD

[1] The parties in this matter filed their respective written submissions

dated 07.04.2021 (Claimant’s Written Submissions), 07.04.2021

(Company’s Written Submissions), 14.04.2021 (Claimant’s Written

Submissions in Reply), and 14.04.2021 (Company’s Written

Submissions in Reply).

[2] This Court considered all the notes of proceedings in this matter,

documents and the cause papers in handing down this Award namely:-

(i) The Claimant’s Statement of Case dated 23.12.2020;

(ii) The Company’s Statement in Reply dated 06.01.2021;

2
 (iii) The Claimant’s Rejoinder dated 20.01.2021;

(iv) The Claimant’s Bundle of Documents – CLB;

(v) The Company’s Bundle of Documents – COB1;

(vi) The Company’s Additional Bundle of Documents – COB2;

(vii) Claimant’s Witness Statement – CLW-WS (Joseph Lim

Chien Shiuh); and

(viii) Company’s Witness Statement – COW1-WS (Raymond

Chia Keow Ooi).

INTRODUCTION

[3] The dispute before this Court is the claim by Joseph Lim Chien

Shiuh (“Claimant”) that he had been dismissed from his employment

without just cause or excuse by Dancom TT&L Telecommunications (M)

Sdn Bhd (“Company”) on the 31.07.2020.

[4] The Company is in the business of Telecommunication and IT

Solution. The Claimant commenced employment with the Company on

3
the 19.07.2017 as the General Manager with a monthly basic salary of

RM15,000.00. Having served the required probationary period in

employment, the Claimant was confirmed in his position on the

01.05.2018. The Claimant was subsequently re-designated as Acting

General Manager – Operations with effect from 01.07.2018 which

included new job responsibility. Again on the 28.03.2019, the Claimant

was re-designated as General Manager-East Malaysia effective

01.04.2019. The Claimant accepted this new position but objected to be

placed in East Malaysia as the market there did not warrant a full time

General Manager to be resident there. The Company then agreed that

the Claimant be retained in his last position held but would also be

responsible in overseeing the East Malaysian business. Between

December 2019 and May 2020, the Company appointed two new senior

officers namely Head of Business Development and General Manager

wherein the Claimant states that these senior officers took over the

Claimant’s functions and that the Claimant was made to report to them.

On 12.05.2020, the Company issued an internal Memorandum to all its

employees informing them that the Company will implement austerity

measures effective 01.04.2020 till 30.06.2020. Some two weeks later on

the 01.06.2020 on the basis of austerity initiatives to ensure long term

sustainability of the Company’s business, the Claimant was informed

that he will be terminated from his employment with the Company

4
effective 31.07.2020. The Claimant now states that the Company had

dismissed him without just cause or excuse from his employment with

the Company as the Claimant’s position was not redundant and his job

functions still remained in existence at the time of his dismissal from his

employment with the Company. In the circumstances the Claimant also

states that his dismissal from employment with the Company was not a

bona fide exercise of the Company’s managerial powers and now prays

that he be reinstated to his former position without any loss of wages or

other benefits. The Company on the other hand contends that the

Claimant was terminated from his employment due to redundancy

arising out of the austerity initiatives of the Company as the Company’s

business was badly affected by the COVID 19 pandemic since March

2020 and that the termination of the Claimant from his employment with

the Company was with just cause or excuse.

[5] The Claimant gave evidence under oath and remained the sole

witness for his case. The Company’s evidence was led by COW1

(Raymond Chia Keow Ooi, who is the HR Manager of the Company

whose responsibilities amongst other is to supervise matters relating to

the Human Resources of the Company).

5
THE COMPANY’S CASE

[6] The Company’s case can be summarised as follows :-

(i) The Claimant was employed by the Company on 19.07.2017 as

the General Manager.

(ii) The Claimant was dismissed from his employment with the

Company on the 31.07.2020.

(iii) At the time of the Claimant’s dismissal from his employment

with the Company, the Claimant’s position was Acting General

Manager – Operations for Apple Beats Division.

(iv) The Claimant was dismissed from his employment with the

Company as the Claimant’s position had become redundant at

the time of his dismissal from employment with the Company.

6
(v) At the time of the Claimant’s dismissal from employment with

the Company, the Company was facing financial challenges

which resulted in the Company downsizing and merging its

departments which ultimately resulted in the Claimant’s position

becoming redundant.

(vi) At the time of the dismissal of the Claimant from employment,

the Company was facing an unprecedented business slow

down and financial difficulties due to the COVID19 pandemic

that had affected the world.

(vii) The Company had carried out austerity initiatives which had

resulted in the Company restructuring its business and this had

also resulted in the business operations reduced from 6

divisions to 4 divisions wherein the iPhone Division and Beats

Division was consolidated into Apple Core Division.

7
(viii) At the time of the Claimant’s dismissal from employment, the

whole of the Apple Beats Division was absorbed and

consolidated into Apple Core Division. The Claimant’s position

as the Acting General Manager of the Apple Beats Division

became redundant as the Apple Core Division covers a wider

range of products which was already headed by an existing

General Manager and as such the Company would not require

2 General Managers to head one Division namely the Apple

Core Division.

(ix) The dismissal of the Claimant from his employment with the

Company arising from this reorganisation and downsizing was a

genuine reorganisation of the Company’s business and this

managerial powers was exercised in a bona fide manner.

8
 (x) The dismissal of the Claimant from his employment was carried

out with just cause or excuse and that the Claimant’s case

against the Company be dismissed.

THE CLAIMANT’S CASE

[7] The Claimant’s case can be summarised as follows:-

(i) The Claimant commenced employment with the Company on

the 19.07.2017 as General Manager with a monthly basic salary

of RM 15,000.00. The Claimant was a confirmed employee of

the Company.

(ii) Almost a year into his employment, the Claimant was then re-

designated to the position of Acting General Manager –

Operations of the Company with effect from 01.07.2018.

9
(iii) Some 9 months later, the Claimant was notified that due to

expansion of the Company’s business to East Malaysia, the

Claimant will be redesignated as General Manager – East

Malaysia effective 01.04.2019.

(iv) The Claimant objected to any relocation to East Malaysia as the

market there did not warrant a full time General Manager to be

resident there. Thereafter the Company agreed that the

Claimant will oversee East Malaysia from his current position.

(v) In mid December 2019, the Company appointed a new General

Manager and thereafter in February 2020, the Claimant was

instructed to report to this General Manager who was taking

over certain functions of the Claimant.

(vi) Again in May 2020, the Company appointed another new

General Manager and the Claimant was instructed to report to

10
 this General Manager as she was taking over the Claimant’s

portfolio immediately.

(vii) On the 12.05.2020, the Claimant received a memorandum of

the Company informing him that the Company had decided to

implement austerity initiatives effective 01.04.2020 until

30.06.2020 due to COVID 19 pandemic that had impacted the

world which resulted in a Movement Control Order imposed in

Malaysia by the Government of Malaysia.

(viii) However within approximately 2 weeks from the date of the

Company’s memorandum dated 12.05.2020, on the

01.06.2020, the Claimant was suddenly given a letter informing

him that his employment with the Company will be terminated

effective 31.07.2020 on ground of the Company’s austerity

measures/initiatives to ensure the Company’s long term

sustainability of business.

11
(ix) The Claimant was instructed to leave the Company immediately

on the 01.06.2020 and thereafter placed on garden leave until

his last date of service on the 31.07.2020.

(x) The Claimant also received a letter dated 10.06.2020 from the

Company which unilaterally reduced his salary by a 10%

reduction effective 01.06.2020. Thus for the month of June and

July, the Claimant was paid a salary with a 10% reduction.

(xi) The Claimant claims that his position was not redundant and

that his job scope and functions remained in existence at the

time of dismissal from employment with the Company.

(xii) The Company had made various attempts to sideline or

marginalise the Claimant before eventually resorting to

dismissing him from his employment.

12
 (xiii) The dismissal of the Claimant premised on the alleged austerity

initiatives or workforce rightsizing has no substantive or

procedural justification.

(xiv) The Claimant’s dismissal from employment with the Company

was arbitrary, not a bona fide exercise of the Company’s

managerial powers and prerogative of reorganising the

Company’s business.

(xv) The dismissal was without just cause or excuse and that the

Claimant be reinstated to his former position in the Company

without any loss of wages and other benefits.

THE LAW

Role and function of the Industrial Court

[8] The role of the Industrial Court under section 20 of the Industrial

Relations Act 1967 is succinctly explained in the case Milan Auto Sdn.

Bhd. v. Wong Seh Yen [1995] 4 CLJ 449. His Lordship Justice Mohd

13
Azmi bin Kamaruddin FCJ delivering the judgment of the Federal Court

had the occasion to state the following:-

“As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ

344; [1995] 2 MLJ 753, the function of the Industrial Court in dismissal

cases on a reference under s. 20 is two-fold firstly, 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. Failure to determine these issues on the merits

would be a jurisdictional error ...”

[9] The above principle was further reiterated by the Court of Appeal

in the case of K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ

347 where his lordship Justice Mohd Ghazali Yusoff, JCA outlined the

function of the Industrial Court:-

“[21] The learned judge of the High Court held that the Industrial Court had

adopted and applied a wrong standard of proof in holding that the respondent

has failed to prove dishonest intention and further stating that the respondent

has not been able to discharge their evidential burden in failing to prove every

element of the charge. He went on to say that the function of the Industrial

Court is best described by the Federal Court in Wong Yuen Hock v. Syarikat

14
 Hong Leong Assurance Sdn Bhdand Another Appeal [1995] 3 CLJ 344 where

in delivering the judgment of the court Mohd Azmi FCJ said (at p. 352):

On the authorities, we were of the view that the main and only function

of the Industrial Court in dealing with a reference under s. 20 of the

Act (unless otherwise lawfully provided by the terms of the reference),

is to determine whether the misconduct or irregularities complained of

by the management as the grounds of dismissal were in fact committed

by the workman, and if so, whether such grounds constitute just cause

or excuse for the dismissal”

[10] It will not be complete this if this Court fails to make reference to

the decision of the Federal Court in the case of Goon Kwee Phoy v. J &

P Coats (M) Bhd [1981] 1 LNS 30 where His Lordship Raja Azlan Shah,

CJ (Malaya) (as HRH then was) opined:

“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

15
 Court or the High Court cannot go into another reason not relied on by the

employer or find one for it.”

Burden Of Proof

[11] Whenever a Company had caused the dismissal of the workman, it

is then incumbent on part of the Company to discharge the burden of

proof that the dismissal was with just cause or excuse. This Court will

now refer to the case of Ireka Construction Berhad v. Chantiravathan

a/l Subramaniam James [1995] 2 ILR 11 in which case it was stated

that:-

“It is a basic principle of industrial jurisprudence 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 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.

16
Standard Of Proof

[12] In the case of Telekom Malaysia Kawasan Utara v. Krishnan

Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal had

laid down the principle that the standard of proof that is required to prove

a case in the Industrial Court is one that is 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 a

criminal prosecution. 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.”

17
The Law On Redundancy And Retrenchment

[13] In the case of William Jacks & Co. (M) Sdn. Bhd v. S

Balasingam [1997] 3 CLJ 235 his lordship Justice Gopal Sri Ram JCA

delivering the judgment of the Court of Appeal had the occasion to

define the term "retrenchment" as an exercise by the Company when

dealing with excess labour supply that does not include dismissal by way

of punishment for misconduct. His lordship had this to state:-

“The issue before that Court was whether there was a genuine retrenchment

exercise vis-a-vis the respondent. Retrenchment means: "the discharge of

surplus labour or staff by the employer for any reason whatsoever otherwise

than as a punishment inflicted by way of disciplinary action" (per S.K. Das J

in Hariprasad v. Divelkar AIR [1957] SC 121 at p. 132).

Whether the retrenchment exercise in a particular case is bona fide or

otherwise, is a question of fact and of degree depending for its resolution

upon the peculiar facts and circumstances of each case. It is well-settled that

an employer is entitled to organise his business in the manner he considers

best. So long as that managerial power is exercised bona fide, the decision is

immune from examination even by the Industrial Court. However, the

Industrial Court is empowered, and indeed duty-bound, to investigate the facts

and circumstances of a particular case to determine whether that exercise of

power was in fact bona fide”.

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[14] The process of retrenchment can arise in a Company due

to redundancy where there exists a surplus of labour or where a

business requires fewer employees of whatever kind as explained in the

following cases below.

[15] In the case of Vithylingam Letchumanan v. Ice Room Food &

Beverage Management Sdn. Bhd. [2015] 4 ILR 655, the learned

chairman Eddie Yeo Soon Chye (as he then was) had opined that:-

"The term “redundancy” has been defined by Dunston Ayudurai in "Industrial

Relations in Malaysia, Law & Practice", 3rd edn at pp. 255 and 256 as follows:

Redundancy refers to a surplus of labour and is normally the result of

a reorganisation of the business of an employer, and its usual

consequence is retrenchment, ie, the termination by the employer of those

employees found to be surplus to his requirements after the reorganisation.

Thus, there must first be redundancy or surplus of labour before there can be

retrenchment or termination of the surplus."

[16] In the case of Stephen Bong v. FCB (M) Sdn. Bhd. & Anor

[1999] 1 LNS 131 his lordship Nik Hashim J had this to say:-

19
 "With respect, I agree with Mr N Sivabalah's submission that it is not the law

that redundancy means the job or work no longer exists. Redundancy

situations arise where the business requires fewer employees of whatever

kind '(Harvey on Industrial Disputes)'. In the case before me, it is the

Company's case that there was reduced work and reduced business, which

made the applicant's position as an executive director in charge of one group

redundant. The Industrial Court is right when it held that the applicant was

redundant."

[17] In determining whether the Claimant was dismissed with just

cause or excuse by the retrenchment exercise undertaken by the

Company this Court will ask these pertinent questions:-

(i) Whether there was a genuine need for the reorganization

exercise by the Company;

(ii) Whether a genuine redundancy situation had arisen which led

to the retrenchment of the Claimant; and

(iii) Whether the Company had complied with the accepted

standards and procedure when selecting and retrenching the

Claimant.

20
[18] To this effect this Court is guided by the reasoning contained in the

case of Mohd Nor Hassan & Ors v. Continental Sime Tyre Pj Sdn.

Bhd. [2014] 3 ILR 144. If the Company is able to answer all the above

three questions in the affirmative, then this Court must come to a

conclusion that the retrenchment exercise undertaken by the Company

against the Claimant is a bona fide exercise of the managerial powers of

the Company.

[19] Further in the case of Bayer (M) Sdn. Bhd. v. Ng Hong Pau

[1999] 4 CLJ 155 the his lordship Justice Shaik Daud Ismail JCA,

delivering the judgment of the Court of Appeal had the occasion to opine

as follows:-

"The burden is on the appellant to prove actual redundancy on which the

dismissal was grounded. (See Chapman & Others v. Goonvean &

Rostawvack China Clay Co. Ltd. [1983] 2 All ER). It is our view that merely to

show evidence of a re-organisation in the appellant is certainly not sufficient.

There was evidence before the court that although sales were reduced, the

workload of the respondent remained the same. After his dismissal his

workload was taken over by two of his former colleagues. Faced with these

evidence, is it any wonder that the court made a finding of fact that there was

no convincing evidence produced by the appellant that the respondent's

functions were reduced to such an extent that he was considered redundant."

21
EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[20] It is the Company’s case that the Company was badly affected by

the COVID19 pandemic since March 2020 and the business was

challenging since the Government of Malaysia imposed a Movement

Control Order (MCO) since March 2020. As a consequence, the

Company needed to restructure its organisation in order to sustain itself.

[21] The Company’s sole witness COW1 (Raymond Chia Keow Ooi)

gave evidence that as a result of the COVID 19 pandemic and the MCO,

the Company undertook austerity measures where employees with a

salary scale of RM10,000.00 and above per month had to take a 10%

pay cut. A few business units have to be merged and some staff had to

be terminated in order for the Company to continue to sustain. COW1

further gave evidence that the Company had to down size. Amongst the

staff who had to be terminated due to this downsizing exercise was the

Claimant. The Claimant was the General Manager of the Apple Beats

Business Division which is a smaller business portfolio of the Company

which had to be merged with Apple Business Division and as a result the

Apple Beats Business which the Claimant was heading no longer

existed and this resulted in the Claimant becoming redundant. COW1

also gave evidence that the Claimant’s performance over a period of 3

22
years had not been promising and the Claimant was generally

argumentative, uncooperative, and ill tempered which had caused much

discomfort to other staff. COW1 had also given evidence that the

Claimant had been dishonest in not making full and frank disclosures

about his past employment matters.

[22] The Claimant had denied the allegations contained in the evidence

of COW1. The Claimant had given evidence that he was not aware of

any austerity measures or the downsizing of the Company which led to

his dismissal. The Claimant further gave evidence that between April

2019 to June 2020 as the designated General Manager – East Malaysia

he had performed many duties including overseeing the profitability of

the Company’s business wherein there were managers, supervisors and

executives who were assigned different areas and all these employees

of the Company reported to him. The Claimant’s evidence points to the

fact that the Claimant’s job scopes and responsibilities existed at the

time of the dismissal of the Claimant from his employment with the

Company.

[23] From the evidence led in Court , it could also be seen that shortly

before the Claimant’s dismissal from his employment with the Company ,
23
the Company was systematically taking away many of the Claimant’s job

scope and placing them with other General Managers suggesting

something sinister that the Company was planning against the Claimant.

[24] This Court had perused the Company’s memorandum dated

12.05.2020 wherein the Company was purportedly pursuing certain

austerity measures in view of the COVID19 pandemic and the MCO. As

at the date of the memorandum dated 12.05.2020, any potential

retrenchment exercise by the Company remained something that was

unclear. The memorandum itself was directed at the Dancom Group and

not the Company specifically. Further the management had also given

its commitment in the memorandum that the management is committed

to discontinuing the austerity initiative and would evaluate the

reinstatement of the austerity initiative upon assessing the status of

recovery of the Group business and revenue to the pre COVID 19 level

of performance in due course.

[25] For convenience the salient part of the memorandum dated

12.05.2020 is produced here in verbatim which states :-

“The above austerity initiatives are necessary to ensure business continuity of

Dancom Group and to mitigate any drastic measures to be taken which could

24
 include cost cutting measures or retrenchment exercises. The Management is

committed to discontinue the abovementioned austerity initiatives and would

evaluate the re-instatement of the austerity initiatives upon assessing the

status of recovery of the Group business and revenue to the pre COVID 19

level performance in due course...”

[26] There is no evidence before this Court that the Company had

taken any measures in its commitment to discontinue the purported

austerity initiatives or whether it had undertaken any assessment of the

status of recovery of the Company’s business in due course as

promised. Instead within a short period of 2 weeks, the Company was

very quick to give notice of the termination of the Claimant from his

employment on ground of the purported austerity initiatives and

downsizing of the Company’s workforce. The decision of the Company

to seize the COVID19 pandemic as an opportunity to terminate the

Claimant from his employment smacks rash and ill thought exercise by

the Company. In any event the method, manner and the persons who

made the decision to select the Claimant for the retrenchment exercise

on grounds of redundancy were not adequately explained by the

Company. COW1 admitted in cross examination that he was not

involved in the selection process of the Claimant for retrenchment

purpose as this was carried out by the management involving other

25
senior officers of the Company. How the selection process was carried

out remains unclear. None of the officers of the Company who

participated in the selection process of the Claimant for retrenchment

were called to give evidence in Court. The Company also failed to

adduce proper and adequate evidence on the alleged financial

difficulties leading to the austerity measures or the retrenchment

exercise carried out by the Company.

[27] Based on the evidence before this Court, it becomes clear that the

Company had been dissatisfied with the Claimant for many reasons

ranging from his alleged poor performance over a period of 3 years, the

Claimant’s purported behaviour of being an argumentative,

uncooperative and ill tempered person which had caused much

discomfort for other staff and these cumulative issues may have been

the real reason for the Company to dismiss the Claimant from his

employment with the Company. The Company had even alleged

dishonesty on part of the Claimant for a certain non disclosure.

[28] If the Company had been so dissatisfied with the Claimant for an

array of alleged misconducts, then the Company should have preferred

charges of misconducts against the Claimant for each of the issue

complained of and proceed to deal with the Claimant on those issues

26
and if it warrants dismiss the Claimant upon proper and fair deliberation

which the Company failed to do and instead used the alleged

restructuring and downsizing of the Company as a reason to dismiss the

Claimant from his employment with the Company.

[29] Whether the retrenchment due the redundancy of the Claimant, by

the Company was a bona fide act on part of the Company in its

managerial power and prerogative to organise its business in the

manner it considers best must be supported by convincing evidence

before this Court. Having considered the evidence adduced before this

Court, this Court is of the view that the evidence of the Company’s

witness on the alleged bona fide restructuring and reorganisation of the

Company’s business that led to the retrenchment of the Claimant is not

convincing. The selection of the Claimant for retrenchment due to

redundancy remains unclear and reveals unfair labour practices.

[30] Pursuant to Section 30(5) of the Industrial Relations Act 1967 and

guided by the principles of equity, good conscience and substantial

merits of the case without regard to technicalities and legal forms and

after having considered the totality of the facts of the case, the evidence

27
adduced and by reasons of the established principles of industrial

relations and disputes as stated above, this Court finds that the

Company had failed to prove on the balance of probabilities that the

dismissal of the Claimant from his employment with the Company was

with just cause or excuse.

REMEDY

[31] This Court having ruled that the Claimant was dismissed without

just cause or excuse, will now consider the appropriate remedy for the

Claimant.

[32] The Claimant had given unchallenged evidence that he was a

confirmed and permanent employee of the Company. The Claimant

commenced employment with the Company on the 19.07.2017. The

Claimant was dismissed from his employment with the Company

effective 31.07.2020. The Claimant had thus served the Company for a

period of 3 full years.

[33] 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 without any loss of wages,

28
allowance, seniority and privileges. Considering the factual matrix of this

case amongst other where there had been numerous allegations of

misconduct against the Claimant which had resulted in a strained

employer , employee relationship, it is this Court’s view that

reinstatement of the Claimant to his former position in the Company is

not a suitable remedy in the circumstances of this case.

[34] As such the appropriate remedy in the circumstances of this case

must be compensation in lieu of reinstatement. The Claimant is also

entitled for back wages in line with Section 30(6A) Industrial Relations

Act 1967 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

without just cause or excuse;”

[35] The Claimant’s last drawn salary per month was RM15,600.00.

[36] Equity, good conscience and substantial merits of the case without

regard to technicalities and legal forms remains the central feature and

29
focal point of this Court in arriving at its decision and these principles will

be adhered by this Court at all times leading to the final order of this

Court.

[37] 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 [2001] 3 CLJ 541 where his Lordship Justice Tan Sri 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 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 is this Court’s)

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[38] This Court must take into account the post dismissal earnings of

the Claimant in order to make an appropriate deduction from the back

wages to be awarded. There is no evidence of post dismissal income or

earnings of the Claimant before this Court.

[39] Having considered all the facts of case on the appropriate sum to

be awarded and after taking into account that there is no evidence of

post dismissal earnings or income of the Claimant, this Court hereby

orders that the Claimant be paid 1 month salary of the last drawn salary

of RM15,600.00 for every year of service completed totalling 3 years

and back wages of the last drawn salary of RM 15,600.00 for 10 months.

This will amount to:-

(i) Backwages ordered:

RM15,600.00 x 10 months = RM 156,000.00

(ii) Compensation in lieu of Reinstatement:

RM15,600.00 x 3 months = RM 46,800.00

Total amount ordered by this Court: RM 202,800.00

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[40] From the above said amount ordered, this Court will now make a

deduction of a sum of RM 19,383.75 being termination benefits already

paid to the Claimant as stated by COW1 at QA16 of COW1-WS.

[41] As such the final amount payable to the Claimant by the Company

will be RM202,800.00 – RM19,383.75 = RM183,416.25

FINAL ORDER OF THIS COURT

[42] It is this Court’s order that the Company pays the Claimant a sum

of Ringgit Malaysia One Hundred Eighty Three Thousand Four

Hundred Sixteen and Cents Twenty Five (RM 183,416.25) only less

statutory deduction (if any) within 30 days from the date of this Award.

HANDED DOWN AND DATED THIS 19th DAY OF MAY 2021

-signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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