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2021 MarsdenLR 4249
HIGH COURT MALAYA MUAR
DWL TRADING SDN BHD – Appellant
Versus
TAY CHIAU XUAN (ENCLS 1 4 5 6 7 8 9 10 & 11) – Respondent
[Civil Appeal No: JB-16-6-09/2020]
An employer must conduct a due inquiry before dismissing an employee under s 14 of the Employment Act 1955, failing which the dismissal is void and the employee is entitled to termination benefits.
Headnote:(A) Employment Act 1955 – Section 14 – Termination of employment – Due inquiry requirement for dismissal – The Appellant failed to adhere to procedural safeguards under s 14, as no inquiry was conducted prior to termination, violating natural justice principles. (Paras 33, 34, 36, 59)
(B) Termination Benefits – The Respondent entitled to a payment of RM14,832.09, which includes in lieu of notice and termination benefits as determined by s 60J and reg 6 of the Employment (Termination and Lay-off Benefits) Regulations 1980. (Paras 56, 58)
Facts of the case: The Respondent was employed as a salesperson and was terminated without a proper inquiry, leading her to seek clarification regarding her employment status. (Paras 5, 14, 34)
Findings of Court: The court concluded that the Appellant's actions constituted a failure to comply with the necessary legal requirements regarding employment termination. (Paras 34, 36)
Issues: The main issues included compliance with s 14 of the Employment Act and entitlement to termination benefits. (Paras 14, 35)
Ratio Decidendi: The court emphasized that dismissal without due inquiry is fundamentally flawed and renders the dismissal void. (Paras 34, 36)
Result: The appeal was dismissed, affirming the Director-General's decision. (Para 63)
JUDGMENT
Introduction
[1] This is an appeal against the decision of the Director-General of Labour (Summons No KBR /10102/2020/0008) given on 23 August 2020 whereby the Director-General of Labour after a full hearing and ordered as follows:
i. That DWL Trading Sdn Bhd (Company No 1127780-H) the Appellant, who address is at No 36 Jalan Kundang 4, Taman Bukit Pasir, 83000 Batu Pahat, Johore is to pay Tay Chiau Xuan (NRIC: 961014-01-5354) the sum of money amounting to RM14,832-09.
ii. The payment is to be made within 14 days from the date of the Order.
iii. Late penalty charges as well as interest at the rate of 8% per annum on all outstanding sum and the calculation shall commence from the 31st of the month until full and final settlement.
[2] The Cause Papers are as follows:
i. Notice of Appeal (Enclosure 1).
ii. Appeal Record (Enclosure 4).
iii. Supplementary Appeal Record (Enclosure 5).
iv. Supplementary Appeal Record (Enclosure 6).
v. Supplementary Appeal Record (Enclosure 7).
vi. Supplementary Appeal Record (Enclosure 8).
vii. Supplementary Appeal Record (Enclosure 9).
viii. Supplementary Appeal Record (Enclosure 10).
ix. Memorandum of Appeal (Enclosure 11).
The Background Facts
[3] The Appellant is a company incorporated in Malaysia under the Companies Act 1965, trading under the name and style of Syarikat DWL Trading Sdn Bhd (Company No 1127780-H) and whose address is at No 36 Jalan Kundang 4, Taman Bukit Pasir, 83000 Batu Pahat, Johore.
[4] The Respondent is a Malaysian citizen, of full age and was working for the Appellant. The Respondent, first started working for the Appellant as a part time female salesperson for handphone accessories beginning 2013 and she later became a full time sales person from 2014 until 25 January 2020.
[5] Vide a Letter of Offer to the Respondent from the Appellant which was dated 10 April 2017, she was given a full time staff status.
[6] She received a monthly salary of RM1,100-00 per mensem and a 6% commission from her total monthly sales. She worked for 6 days a week with 1 day as a rest day or off day, which is dependent upon her schedule.
[7] For the period between 3 August 2017 until 23 September 2019, the Appellant issued 7 letters of warning to the Respondent for her poor performance. It was said that before a warning letter was issued, the Appellant would give counselling sessions to the Respondent and the Appellant later installed a finger print attendance machine to record the punctuality of the Respondent s attendance at work.
[8] On 18 January 2020 at 2.49pm, a Director of the Appellant by the name of Ng Chun Chin texted the Respondent vide a WhatsApp application on her handphone on the status if work needed to be given to the Respondent. After the 18 January 2020, the Respondent worked as usual until 20 January 2020.
[9] The Respondent informed via the text messages that she wishes to extend the Chinese New Year Leave for an extra few days until 29 January 2020 although she was scheduled to resume duty on 27 January 2020. Her request was to extend her leave for the Chinese New Year for 2 extra days ie 28 and 29 January 2020.
[10] In this conversation via text messages, Mr Ng further reprimanded the Respondent for failing to apply for her annual leave in accordance with the proper procedure by filling in the proper forms instead for asking for leave via text messages on the WhatsApp application and took it for granted that her request for leave will automatically be approved by the Appellant.
[11] What the Respondent did was to verbally ask for leave and not fill in the proper documents for annual leave application.
[12] Mr Ng further chided the Respondent for failing to respect her employer and for failing to complete her tasks within the allotted time. Further to the reprimand, Mr Ng warned the Respondent that if she failed to deliver the task as directed and in accordance with the time line given, the Respondent must either change her attitude, and resume duty on 27 Jan
