Award 39476

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IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO.: 19/4-512/20

BETWEEN

IRWIN BIN INDRA

AND

1. OPTOTRONICS SEMICONDUCTORS SDN. BHD.

2. SIMON SOH

3. ZAINAL ABIDIN BIN ISMAIL ALYAMANI

AWARD NO : 2212 OF 2023

BEFORE : Y.A. ZALINA BINTI AWANG @ MAMAT


- Chairman

VENUE : Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE : 21.02.2020

14.08.2020, 26.03.2021, 20.04.2021, 25.01.2022,


DATES OF MENTION :
03.01.2023, 08.05.2023

DATE OF HEARING : 18.07.2023

REPRESENTATION : Claimant – Mr. Ariffin bin Haron


Messrs. Nor, Iyani, Eswanddy & Co
(Counsel for the Claimant)

Company – Unpresented and was


not present

1
REFERENCE

This is a reference by the Honourable Minister of Human Resources, under Section

20(3) of the Industrial Relations Act 1967 dated 21.02.2020 pertaining to the dismissal

of IRWIN BIN INDRA (hereinafter referred to as “the Claimant”) by OPTOTRONICS

SEMICONDUCTORS SDN. BHD. (hereinafter referred to as “the Company”) on

22.07.2019.

Procedural History

[1] Pursuant to the Court’s directive on a date fixed for case management on

08.05.2023 held before the Chairman, the parties were ordered to file the relevant

pleadings on specified dates and fixed for hearing on 18.07.2023. It must be noted that

the Claimant was present while the Company had been absent.

[2] Hence, this case was ordered to proceed with the hearing ex-Parte because of

this award, this Court had only considered the Claimant’s Statement of Case, the

Claimant’s Bundle of Documents marked as CLB1, the Claimant’s Witness Statement

marked as CLWS1 and the Claimant’s Written Submission.

[3] The hearing was proceeded by way of an ex-parte hearing due to the absence of

the Company’s representative or the Company Counsel.

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FACTS

[4] After the mention date was fixed for administrative purposes and file

management purposes, this Court commenced and completed the trial of this

case on 18.07.2023, where evidence was duly recorded from two (2) witnesses

for the Claimant :

(a) CLW-1 : the Claimant

(b) CLW-2 : Nor Harzanariah Binti Ismail

[5] The Claimant commenced employment with the Company on 22.12.2009 for the post

of Lighting Design Engineer for the New & Product Development Department, with

a basic salary of RM 2,800.00 per month. On 19.01.2011, the Claimant received

an increment and the adjusted basic salary is RM3,200.00 per month with effect from

January 2011. On 29.01.2013, the Claimant received another increment which made

the Claimant’s new salary RM 4,400.00 effective January 2013. On 17.02.2014, the

Claimant received another increment with the newly adjusted basic salary of RM

4,650.00 per month with effect from January 2014.

[6] The Company transferred the Claimant from Kamunting Plant, Taiping to Puchong

Office, Selangor, with the title Senior Design Engineer with effect from 29.12.2014

vide the Company’s letter dated 05.12.2014. On the same day, the Company had

confirmed the Claimant’s allowances entitlement amounting to RM 1,800.00 per

month with effect from 29.12.2014.

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On 25.09.2017, the Company had given the Claimant’s living expenses allowance of

RM 500.00 per month with effect from September 2017. On 01.06.2018, the Claimant

was promoted to Assistant Manager for the Sales & Marketing Division with a basic

salary of RM 5,650.00 per month with effect from 23.05.2018.

[7] The said employment was permanent. The Claimant's last drawn salary was RM

8,225.00 per month until his terminated of employment. The Claimant had discharged

his duties and responsibilities to the best of his abilities and in the interests of the

Company and he had maintained a clean and unblemished tenure as an employee.

[8] The Claimant now presents before this Court to aver that his respective terminations

from service were without just cause or excuse and were contrary to the principles of

equity, good conscience and natural justice.

CLAIMANT’S CASE

[9] The Claimant had a legitimate expectation that his fixed term contract would be on

a permanent. However, things started to turn sour when the Company failed to pay

the Claimant's full monthly salary and instead only paid his salary by way of staggered

payments. The Claimant contends that the Company' s continuous conduct in failing

to pay him his half monthly salary for May 2019 and full monthly salary for both June

2019 and July 2019 were wilful breaches of the Company’s obligations under the

terms of the employment contract.

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[10] The Claimant had repeatedly demand and payment of his salary to the

Company’s Chief Operating Officer. Mr Noel Leong, informing of his

predicaments due to the Company' s failure to pay the Claimant's half monthly

salary for May 2019 and full monthly salaries for June 2019 and July 2019.

[11] In the Claimant’s letter dated 22.07.2019, the Claimant officially notified the Company

that due to its breach of the employment contract terms and its failure to remedy the

said breach, the Claimant has thus been constructively dismissed by the Company

effective from 23.07.2019.

THE ISSUE

[12] 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. [1988]

1 CLJ 45 (of the then Supreme Court of Malaysia) as per Tun Salleh Abas LP,

has practical relevance here, which went like this:

“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.”

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[13] 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 Puan Rajeswari Karupiah held 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

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.”

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THE GENERAL PRINCIPLE

[14] In Colgate Palmolive Sdn. Bhd. v. Yap Kok Foong [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 lust

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.

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'..."

[15] In Goon kwee Phoy v. J & P Coats (M) Bhd. [1981] 1 LNS 3018 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:

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"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."

[16] That learned author, Dr. Dunston Ayadurai in his erudite text Industrial Relations

In Malaysia: Law & Practice 3rd Edition at 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."

[17] 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] 2 ILR 1119 and Telekom Malaysia Kawasan

Utara v. Krishnan Kutty Sanguni Nair & Anor [2002] 3 CLJ 314)

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[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

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. ”

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ROLE OF INDUSTRIAL COURT

[18] 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 Lns 30; [1981] 1 Mlj 129 at page

136 as follows:

“Where representations are made and are referred to the Industrial Court for
enquiry, 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 orexcuse. 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 notrelied on by the employer or find
one for him.”

[19] 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] 4 CLJ 455 observed as follows:

“As pointed out by this Court recently in Hong Leong Assurance Sdn Bhd vs
Wong Yuen Hock [1995] 2 MLJ 753, the function of the Industrial Courtin 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”.

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BURDEN OF PROOF

[20] 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,"

[21] 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.

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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..."

[22] 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 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 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."

[23] In the case of Manimaran Karuvanan v. Tav Facility Solution (M) Sdn Bhd

[2020] MELRU 1374 the 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:

12
... "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."

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[24] 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 MELR 278; [2004]

2 ILR 687 where 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]

[25] 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

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STANDARD OF PROOF

[26] 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 in TELEKOM

MALAYSIA KAWASAN UTARA V. KRISHNAN KUTTY SANGUNI NAIR & ANOR.

[2002] 3 CLJ 314 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 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 ofprobability required is proportionate to the nature and gravity of the
issue.”

LAW ON EX-PARTE HEARING

[27]In the case of MANIMARAN KARUVANAN V. TAV FACILITY SOLUTION (M)

SDN BHD [2020] 2 LNS the 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 section 29(d) of the IRA 1967. It was held inter aliaas 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 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:

15
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 failureof any party
to submit any written statement whether of case or reply to the Court within such
time as maybe prescribed by the President orin the absence of any party to the
proceedings who has been servedwith 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 failureto attend Court although
the Notice of Hearing and the earlier Notice of Mention had been served on it as
stated above.”

[28] 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. CHOO CHEE SIAM [2005] 2 ILR 356 IN which the Company

was absent during the date of the hearing. The Court continued to hearthe 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 of Industrial Disputes” by
O.P. Malhotra Vol. 3rd Edition. At p 716:

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“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)”

ISSUES

[29] 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 RelationsAct

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

COURT’S FINDINGS

[30] 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 314 the 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:-:

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“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.”

[31] As stated in the Dismissal Letter, the Company claimed that the reason for the

Claimant’s dismissal was financial difficulties caused by the Covid 19 pandemic.

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WHETHER SUFFICIENT NOTICE WERE GIVEN FOR THE DISMISSAL

[32] Similar to other dismissal cases under s 20(3) of the IRA 1967, the standard of

proof required is merely on a balance of probabilities. See: TELEKOM MALAYSIA

KAWASAN UTARA v KRISHNAN KUTTY A/L SANGUNI NAIR & ANOR (SUPRA).

[33] The Court of Appeal in the case of NG CHANG SENG v TECHNIP

GEOPRODUCTION (M) SDN BHD & ANOR [2021] 1 MLJ 447 held that :-

“[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)(vi) 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(ii) of its judgment.

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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.”

[34] 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.

[35] 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 Selsor [2006] 3 ILR 1507 at para 26 that the company

must prove the following:

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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.)”

[36] 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 retrenchment.

[37] Be that as it may, there had NOT been an iota of evidence adduced by the

Company to justify the dismissal of the Claimant.

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[38] Refer the Industrial Court’s case of KAM SENG EU v, OUD ESSENTIALS SDN

BHD [2019] 1 ILJ 110 where 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 and 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 not discharged its

burden of proving its case on the balance of probabilities and the claimant’s

dismissal is without just cause or excuse…”

[39] The Company has not provided any documentary evidence to support its reason

for the Claimant’s dismissal.

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DECISION

[40] It must be said that by being absent from attending the hearing and produce

witnesses to contradict the Claimant’s evidence during trial, the companies must be

taken to agreeing to the Claimant’s contentions or that the Company had no interest

to challenge the Claimant’s testimony.

It must be noted that above all, the Company had failed to file its Statement in Reply

to answer the Claimant’s Statement of Case.

[41] In the foregoing, this Court finds that the Claimant was in fact terminated by the

Company by virtue of its letter dated 22.07.2019. 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.

[42] It is therefore this Court’s conclusion based on 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

necessary follows that the Claimant’s case be hereby allowed.

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REMEDY

a) Reinstatement

[43] The amount of compensation in lieu of reinstatement is allowed on the

basis of one month salary for each completed year of service. In the case of

the Claimant,he had served the Company for 9 year and six months. The

Claimant commenced employment with the Company on 22.12.2009 until

constructively dismissed on 22.07.2019

b) Backwages

[44] For the item of backwages, it is to be appreciated that it is one of discretionary

as enunciated in Hotel Jayapuri Bhd V National Union Of Hotel, Bar &

Restaurant Workers & Anor [1979] 1 LNS 32.

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 twenty (20) months salary based onhis last drawn salary prior

to his termination from the Company.

[45] 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:

INTENTIONALLY LEFT BLANK

24
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 not
exceed twenty four months backwages from the date of dismissal
basedon the latest drawn salary of the person who has been dismissed
withoutjust cause or excuse

[46] Having considered the totality of the facts and circumstances of the case this

Court awards backwages of eighteen (18) months to multiply with the Claimant’s last

drawn basic monthly salary as per Claimant’s Bundle of Authority marked as CLB1 is

RM5650.00.

[47] This Court having ruled that the Claimant was dismissed from his employment without

just cause or excuse by OPTOTRONICS SEMICONDUCTORS SDN. BHD. will now

consider the appropriate remedy for the Claimant.

[48] The Claimant was a confirmed and permanent employee of this Company. The

Claimant commenced employment with this Company by first becoming the employee

of OPTOTRONICS SEMICONDUCTORS SDN. BHD. on the 22.12.2009. The

Claimant was dismissed from his employment with this Company 22.07.2019. The

Claimant had thus served the Company for a period of 9 years 6 months.

INTENTIONALLY LEFT BLANK

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[49] 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.

[50] 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

without just cause or excuse;

[51] The Claimant's last drawn wages basic salary was RM5650.00 as per Claimant’s

Bundle of Documents.

[52] 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.

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[53] 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 541

where 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

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)

[54] This Court must take into account the post dismissal earnings 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 22.07.2019; while the Claimant received

new employment on 18.01.2021.

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[55] In line with section 30 (6) and 30 (6A) of “The Act” and after having considered all

the facts of case on the appropriate sum to be awarded and after taking into account

the Claimant’s received new employment on 18.01.2021, this Court hereby orders

that the Claimant be paid (one) 1 month wages totaling RM5650.00 for every year of

service completed totaling (nine) 9 years as compensation in lieu of reinstatement

and backwages of the last drawn basic salary of RM5650.00 for 18 months. This will

amount to: -

i) BACKWAGES ORDERED:

RM5,650.00 X 18 months = RM101,700.00

ii) Deduction 5%

RM101,700.00 – RM5,650.00 = RM96,615.00

iii) Compensation in lieu of Reinstatement:

RM5,650 X 9 months = RM50,850.00

RM96,615.00 + RM50,850.00 = RM147,465.00

Total: RM147,465.00

INTENTIONALLY LEFT BLANK

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FINAL ORDER OF THIS COURT

[51] It is this Court’s order that the Company namely OPTOTRONICS

SEMICONDUCTORS SDN. BHD., directors of the Company SIMON SOH and

ZAINAL ABIDIN BIN ISMAIL ALYAMANI jointly and/or severally pay the Claimant a

sum of Ringgit Malaysia one hundred fourty-seven thousand four hundred sixty five

(RM147,465.00) only less statutory deduction (if any) within 30 days from the date of

this Award.

HANDED DOWN AND DATED THIS 6th DAY NOVEMBER OF 2023

-signed-

(ZALINA BINTI AWANG@MAMAT)


CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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