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2022 MarsdenLR 1238
INDUSTRIAL COURT PENANG
JEYAIPREYAA YELLUMALAI – Appellant
Versus
NATIONGATE SOLUTION (M) SDN BHD – Respondent
Award No: 1678 Of 2022 [Case No: 18/4-614/20]
The withdrawal of an ancillary benefit does not constitute dismissal if not grounded in a contractual obligation.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal of employee – The claim for dismissal was brought by the Claimant alleging unfair termination of employment. It was held that since there was no provision for free transport in the employment contract, the withdrawal of the service did not constitute dismissal. The Claimant failed to prove that she was dismissed as alleged (Paras 30, 82, 108).
(B)
Purpose of Industrial Court – The Court's function is to determine whether the termination was with or without just cause; if the fact of dismissal is disputed, the burden lies on the Claimant to prove the dismissal first (Paras 30, 32, 108).
(C)
Testimony evaluation – Lack of credible evidence was found on the Claimant's allegations regarding her dismissal and any supposed demands for resignation (Paras 96, 108).
Facts of the case:
The Claimant, employed as an operator, claimed she was dismissed when the Company discontinued transportation services. The Company argued that her absence from work indicated she had abandoned her employment (Paras 10, 72, 106).
Findings of Court:
The Court found no evidence supporting the Claimant's claims of dismissal, determining instead that the Claimant had left voluntarily (Paras 106, 108).
Issues
: The main issue was whether there was a dismissal and if so, whether it was with just cause or excuse (Paras 36, 38, 108).
Ratio Decidendi:
The court concluded that the Claimant did not provide any substantiation of her claims, and the circumstances indicated she voluntarily ceased her employment (Paras 82, 108).
Result:
Claimant's claims dismissed.
AWARD
Reference
[1] This is a Ministerial reference made on 21 February 2020 under s 20(3) of the Industrial Relation Act 1967 ("the Act") arising out of the dismissal of Jeyaipreyaa a/p Yellumalai (the "Claimant") by Nationgate Solution (M) Sdn Bhd ("the Company") on 1 November 2019.
[2] This is a reference made on 21 February 2020 by the Honourable Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 (Act 177) ("the Act") arising out of the dismissal of JEYAIPREYAA A/P YELLUMALAI ("the Claimant") by NATIONGATE SOLUTION (M) SDN BHD ("the Company") on 1 November 2019.
Introduction
[3] This case commenced on 24 March 2021 and was jointly heard together with four other unconsolidated cases upon the agreement of the Learned Counsel for the Company and the representative for the Claimant as the alleged dismissal of the four individuals / Claimants arose from identical facts and sequence of events. The other four Claimants whose cases were heard together are as follows:
1. Yogeswari a/p Erajalingam in Case No 18/4-616/20
2. Saranyah a/p Handrou in Case No 18/4-617/20
3. Nalenie a/p Erajalingam in Case No 18/4-618/20
4. Usha Nandini a/p Tangamuthu in Case No 18/4-619/20
[4] I was directed to hear the continuance of this case until completion upon my transfer to Court 18 at the Penang Industrial Court effective 2 May 2022.lt is amply clear from the notes of evidence of the previous Learned Chairman, that the Company's first two witnesses, Ang Kim Hock (COW 1) and Ooi Boon Heng(COW2) had already given their evidence that is to say, that the proceeding began with the Company's witness instead of the Claimants' in view of the fact that dismissal is disputed. Parties however informed the Court that they have no issues and are in agreement with the Company's case being heard first and requested to proceed with the other two Company's witnesses to complete the Company's case. In the circumstances, there should not be any unfavourable issues raised later on against any party.
[5] In addition, parties agreed that the testimony of Usha Nandini (CLW1)in this instant case, as well as that of the Claimant (CLW 2) be adopted as evidence in all the other cases heard together.
Claimant's Pleaded Case
[6] The Claimant commenced employment with the Company effective 8 February 2019 as Operator (Grade 1) with a basic salary of RM1,100.00 a month.
[7] The Claimant avers that her duties involved operating machines to complete production in accordance with the required quality according to schedule or as instructed by her supervisor.
[8] By letter dated 4 September 2019, the Claimant was confirmed in her position effective 8 May 2019.
[9] From the commencement date of her employment with the Company, the Claimant was provided with free transport from her home to work and back home and pleaded that providing the transportation was one of the term of her employment contract with the Company.
[10] The Claimant contended that on 4 October 2019 at or about 4.00pm, the Claimant was called up by the Company's Human Resources Assistant Manager, one Mr Ang Kim Hock known as Mr Alex, (COW1) to his office and was told that her services was no longer needed by the Company and that she would be terminated effective 31 October 2019 without providing any reason. On 9 October 2019, COW 1 demanded that the Claimant tender her resignation immediately without giving any reason for his demand.
[11] Dissatisfied with COW Ts demands for her resignation, the Claimant wrote to the Company's Human Resources Manager, Ms Yong Soo Fuen (COW 4) a letter dated 9 October 2019 (reproduced below) setting out the unlawful demand for her resignation. The Claimant claimed that she did not receive any reply to her letter dated 9 October 2019.
[12] The Claimant averred that she had continued her employment with the Company until 31 October 2019 but on 1 November 2019, being her working day, as she waited for the Company's transport to go to work, the transport did no
