The court established that an employer can unilaterally amend employment terms like retirement age, provided employees are notified of the changes, which are binding unless explicitly contested.

AWARD

Paramalingam J Doraisamy:

[1] The Ministerial reference in this case required the Court to hear and determine the claimant's complaint of dismissal by the company on 28 March 2019.

I. Procedural History

[2] The Court received the letter pertaining to the Ministerial reference under s 20(3) of the Industrial Relations Act 1967 on 2 October 2019.

[3] The matter was thereafter fixed for mention on 24 October 2019, 12 December 2019, 16 December 2020, 22 March 2021 and 15 June 2021.

[4] The trial proceeded on 5 October 2021, 6 October 2021 and concluded on 15 October 2021.

Parties' Position On The Merits

(a) The Claimant

[5] The claimant had been working with a company known as China Communication Construction company (CCCC) as an expatriate in WM Railway Project Ethiopia (East) Africa from February 2015 to February 2016.

[6] The claimant was 52 years old when she was offered the job as a Senior Translator in the company in August 2015. During negotiations pertaining to the terms of the employment, the claimant had sought clarification from the company on her retirement age wherein the company's representative, ie Soo Meng Yee (COW-2; Senior Human Resource Executive), vide an email dated 28 August 2015 had confirmed that the retirement age for the claimant would be 60 years old following the laws of Malaysia.

[7] The company's representation and the pre-contractual promise that the claimant's retirement age would be 60 years old had induced the claimant to accept the job offer from the company.

[8] Vide an email dated 28 August 2015, the claimant had informed the company that she has decided to join the services of the company. In the email, she had also attached the signed copy of the Letter of Appointment dated 17 August 2015 which was forwarded earlier by the company during the negotiation.

[9] The claimant commenced employment as a Senior Translator on 1 March 2016 with a basic salary of RM11,000.00 per month and a travelling allowance of RM200.00 per month. She was later confirmed in her employment on 1 August 2016 as a Senior Translator with a basic salary of RM13,000.00 and travelling allowance of RM300.00.

[10] When the claimant joined the company in 2016, the Human Resources Manager, ie Danny Ng, had verbally informed the claimant that her retirement age would be 60 years old.

[11] The company's Staff Handbook which was made available to the claimant (when she joined the company) had provided that the retirement age for all employees would be 60 years old (cl 2.9).

[12] However, vide a Memo dated 17 December 2018, the company claimed that they had notified all of its employees including the claimant about the revised version of the Staff Handbook from Revision 1 to Revision 2 effective from 1 January 2019. According to the company, the Memo and the soft copy of the Staff Handbook Revision 2 were circulated via email dated 18 December 2018 to all of its employees, including the claimant.

[13] One of the salient terms of the Staff Handbook Revision 2 includes cl 2.9 on the age of retirement. Staff Handbook Revision 2 introduced a new cl 2.9.1 and cl 2.9.2 which differentiates between the retirement age for Malaysian employees (60 years old) and the retirement age for China Chinese employees (which does not expressly state the retirement age but refers to the China Policy of Retirement Age).

[14] When the company requested the claimant to acknowledge receipt of the Staff Handbook Revision 2, the claimant initially protested to give her acknowledgement. However, due to fear that her salary would be withheld and the threat made by the company's officer that no other employees had refused to sign, the claimant had then given her signature for the purpose of acknowledging the receipt of the said Staff Handbook.

[15] On 26 February 2019, a meeting was held between the claimant and the company's representatives wherein during the said meeting the claimant was given a Notice of Retirement dated 25 February 2019. The claimant protested against