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2024 MarsdenLR 901
INDUSTRIAL COURT KUALA LUMPUR
ABDUL FARID ABDUL KADIR – Appellant
Versus
MINETECH RESOURCES BERHAD – Respondent
Award No: 892 Of 2024 [Case No: 7/4-2217/21]
The employer must provide just cause for dismissal; failure to do so constitutes unlawful termination under the Industrial Relations Act 1967.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – Claimant dismissed without just cause or excuse – The Company failed to provide cogent reasons for termination, constituting unlawful dismissal – The burden of proof lies on the employer to justify dismissal – The concept of termination simpliciter is not applicable under the Act. (Paras 20, 28, 29, 37)
(B) Employment Law – The employer must provide convincing evidence of misconduct or poor performance to justify dismissal – The Court found no evidence of unsatisfactory performance or prior warnings issued to the Claimant. (Paras 24, 35)
Facts of the case: The Claimant was employed as Executive Director of Finance, receiving a salary of RM45,000.00. He was dismissed without notice and without just cause, following a breakdown in working relationships and alleged performance issues. (Paras 3-12)
Findings of Court: The Claimant's dismissal was found to be improper and unfair, lacking good faith. The Court ruled that the Claimant was dismissed without just cause or excuse. (Paras 37)
Issues: Whether the dismissal was with just cause or excuse, and whether the Company provided adequate justification for the termination. (Paras 20, 28)
Ratio Decidendi: The Court emphasized that the employer bears the burden of proof in dismissal cases, and the dismissal must be justified with cogent evidence. The Court rejected the Company's claims of performance issues due to lack of evidence. (Paras 24, 28)
Result: Claimant's claim allowed, with monetary compensation awarded. (Paras 38, 39)
AWARD
Reference
[1] This is a reference by the Honourable Minister of Human Resource, Malaysia to this Industrial Court under s 20(3) of the Industrial Relations Act 1967 ("The Act") for an award in respect of the dispute arising out of the alleged dismissal of ABDUL FARID BIN ABDUL KADIR ("the Claimant") by his employer, MINETECH RESOURCES BERHAD ("the Company").
Documents In Court Files
[2] The Court takes cognizance of the followings papers and documents files;
I. Statement of case dated 5 October 2021
II. Statement in reply dated 26 October 2021
III. Rejoinder dated 9 November 2021
IV. Claimant's Bundle of Documents (CLB1, CLB2 & CLB3)
V. Company's Bundle of Documents (COB1, COB2 & COB3)
VI. Witness Statement of Claimant (CLWS1)
VII. Witness Statement of Dato' Awang Daud Bin Awang Putera (COWS1)
VIII. Witness Statement of Awgku Mohd Reza Farzak Bin Awg Daud (COWS2)
IX. Witness Statement of Azlan Shah Bin Zainal Arif (COWS3)
X. Witness Statement of Chin Leong Choy, Matt (COWS4)
XI. Company's Written Submission dated 29 January 2024
XII. Company's Bundle of Authority dated 29.1 2024
XIII. Company's Written Submission in Reply dated 26 February 2024
XV. Claimant's Written Submission dated 29 January 2024
XVI. Claimant's Bundle of Authority dated 30 January 2024
XVII. Submission in reply of the Claimant dated 26 February 2024
XVIII. Claimant's Bundle of Authority (2) dated 27 February 2024
Brief Facts
Claimant's Case
[3] The Claimant was employed on 1 April 2020 as Special Officer to Group Managing Director and Head, Special Projects and Business Development in ADAP Capital Sdn Bhd with a basic salary of RM22,000.00 and a fixed allowance of RM3,000.00. The major shareholder was Dato' Awang Daud Bin Awang Putera ("Dato' Awang").
[4] The Claimant received RM5,000.00 from Trans Fame Offshore Sdn Bhd ("Trans fame"), a Company controlled by Awgku Mohd Reza Farzak Bin Awg Daud ("Mohd Reza") being the son of Dato' Awang. The Claimant was appointed as NonIndependent and Non-Executive Director of the Company on 24 April 2020 and subsequently then Claimant was re-designated as the Executive Director of Finance of the Company on 12 June 2020. This position of Executive Director was offered to the Claimant with the condition that the Claimant resigned from ADAP Capital Sdn Bhd.
[5] The Claimant received a salary package of RM45,000.00, car allowances of RM8,500.00 and other allowances of RM5,000.00. The Claimant reported to Dato' Awang during the tenure of his employment. The Claimant's responsibilities amongst others were to oversee the Finance Department, the Corporate & Legal Department and Corporate Finance Department of the Company.
[6] On 29 August 2020, the Claimant contacted Mohd Reza in respect of a default payment of the monthly allowance that the Claimant received from Trans Fame. Mohd Reza informed the Claimant that Trans Fame was undergoing restructuring process and promised to pay the Claimant's allowance in October 2020 after the application for Injunction is being lifted. On 14 October 2020, the Claimant demanded for the allowance again however Mohd Reza informed the Claimant that the Company was under the judicial management and it is not possible to pay the Claimant his monthly allowances as he was not Trans Fame's employee.
[7] Meantime, the Claimant advised Mohd Reza to resume his responsibility as the Executive Director of Corporate Services in the Company as the Claimant had excessive workload to handle. There was a friction between the Claimant and Mohd Reza as Mohd Reza wanted to oversee the legal department which was already under the purview of the Claimant. This issue had eventually led to the termination of the Claimant.
[8] Prior joining the Company, Mr Chin Leong Choy ("Mr Chin") being the Group Executive and the son of the second largest shareholder of the Company, was in charge of the total operation and the legal department of the Company. The Claimant oversees the legal department after the appointment. Neve
