The employer must prove genuine redundancy and follow proper procedures for retrenchment; failure to do so results in dismissal being deemed without just cause.

AWARD

Zulhelmy Hasan:

Reference

[1] This is a reference by the Honourable Minister of Human Resources of Malaysia dated 7 October 2020 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 9 October 2020 arising out of the alleged dismissal of SUHAILA BINTI TALIB (hereinafter referred to as "the Claimant") by PEARL DISCOVERY DEVELOPMENT SDN BHD (hereinafter referred to as "the Company") on 30 April 2020.

Factual Backgrounds

[2] The hearing of this matter took place together with another three (3) matters namely; 10(8)(16)/4-2007/20, 10(8)(16)/4-2293/20 and 10(8)(16)/4-2294/20 which were heard before Y A Puan Azwarnida binti Affandi, the Chairperson at the Industrial Court of Malaysia, Johor Branch on 26 May 2022, 19 July 2022, 12 December 2022 and 13 December 2022. Due to unforeseen circumstances and transfer of the previous presiding Chairperson to another government agency, the President of the Industrial Court of Malaysia on 15 July 2024 had transferred all four (4) matters to the Industrial Court of Malaysia, Perak Branch for the Chairman of the said division to handed down the Awards for each of four (4) matters including the present case pursuant to s 22(2) dan 22(3), dan s 29(g) of the Industrial Relations Act 1967 .

[3] The Company is the property developer of Puteri Cove Residence & Quayside (hereafter to be referred as PCR) located in Puteri Harbour, Iskandar Puteri. The principal activity of the Company is real estate development. The ultimate holding company of the Company is Pacific Star Development Limited (PSDL), a limited liability company listed and incorporated in Singapore. The Company is the subsidiaries of PSDL are collectively referred to as PSD Group.

[4] The dispute before this Industrial Court is over the termination of the Claimant's services as the Company's Sales Ambassador, the position of which was effective from 9 November 2015 until 30 April 2020 at which point it will terminate, unless extended by the Company, by giving one (1) month prior written notice. The Claimant was offered the position of Sales Ambassador from 9 November 2015 vide a Latter of Appointment dated 23 October 2015 (at pp 13-19 of CLB-D1) with a monthly salary RM3,400.00 and the Claimant shall serve a probationary period of three (3) months from the date of employment. Despite the Letter of Appointment, the Company had nonetheless terminated the Claimant vide a Letter of Terminated dated 1 April 2020 (p 21 of CLB-D1) after she had served with the Company for 4 years and 5 months.

[5] The Claimant's job function included that of Sales Ambassador for Tower 1 and Tower 2 of PRC, Puteri Harbour included marketing for purchasers for Puteri Cove residence and conducting roadshows. Later, she held the position of Assistant Leasing Executive for a year. The Claimant has also held the position of Administrative Executive where she assisted the Building Manager and reported to him.

[6] The Company stated that the termination of the Claimant from his employment with the Company had to be done on in view that the Company at the material period was facing dire financial constraint and business operations that were severely affected during the Covid-19 pandemic despite that the Company had made every effort but due to the position and job function of the Claimant becoming redundant, then the retrenchment exercise was inevitable. The Company is not able to maintain its normal business operations due to unprecedented challenges, being the Covid-19 pandemic combined with the Movement Control Order (MCO) and overall macroeconomic slowdown in Malaysia and across the region.

[7] The Company had also in the Letter of Termination dated 1 April 2020 gave one month's notice of termination in writing effective from the date of the Letter of Termination to the Claimant wherein her last day of service shall be on 30 April 2020. Hence, the Claimant was paid her salary in full up until her last day of ser