Under the Employment Act, actual job functions determine entitlement to retrenchment benefits, irrespective of salary or job title, and the Employee Handbook forms part of the service contract.

JUDGMENT

Tun Abd Majid Tun Hamzah J:

[1] The appellant appealed against the decision of the Assistant Director of Labour ("ADL") Pulau Pinang dismissing his claim for retrenchment benefits amounting to RM38,745.80. Having heard the appeal, I allowed the said appeal with costs.

[2] On 30 April 2020 the appellant a chef de partie was retrenched and was paid his April salary besides a month salary in lieu of one-month notice. At the material time he earned a monthly salary of RM2,562.00. He filed his complaint pursuant to ss 69(1)(a) of the Employment Act 1955 ("Act 265") seeking for retrenchment benefit. The respondent took the position that the appellant was not entitled to such benefit as he was neither a manual worker nor a supervisor and his monthly salary exceeded RM2,000.00.

Decision Of The Labour Court

[3] The learned ADL found for the respondent. She held that as the appellant's monthly salary exceeded RM2,000.00 the nature of his job must involve manual labour or supervising other employees engaging in manual labour in order to be protected under Act 265 as provided in the First Schedule. She arrived at this conclusion, according to her, based on the evidence of the respondent and appellant's admission during cross-examination that the appellant's task was more towards planning, monitoring and preparation of food. He did not supervise the chefs/cooks and commises.

[4] Learned counsel for the appellant submitted that the learned ADL misdirected herself when she read s 69A of Act 265 in isolation. She pointed out that s 69A must be read with s 69B. She further referred to the Employee Handbook ("Handbook") in particular subclauses 1.13 and 1.15. It was her contention that the Handbook was part of the appellant's service contract. Clause 1.13 has provided for exceptions for payment of termination benefits which do not apply to the appellant. She further submitted that the respondent cannot blow hot and cold pertaining to compliance with the Handbook and at the same time arguing the said Handbook was not part of the contract. In her alternative argument, learned counsel submitted that the appellant was a supervisor and sub-paragraph 2(3) of the First Schedule would apply. Among the authorities referred to were T Balasubramaniam, A Practical Guide To The Employment Act 1955 , Hemanbabu Aplanayara v. Admal Education Sdn Bhd , Poominathan Kuppusamy v. Bersprin Stationers Sdn Bhd , [2003] 3 MLJ 249; [2003] 3 CLJ; [2003] 3 AMR 640, Lee Loy & Ors v. Poh Kam Sang & Anor; [2018] 3 MLJ 240 and Vengataselam Chellappan v. Federal Power Sdn Bhd ; 2019 MarsdenLR 2807 ; [2019] 3 ILR 442.

[5] Learned counsel for the respondent submitted that the learned ADL was correct in finding that the appellant was not entitled to any retrenchment or termination benefits. He pointed out that the appellant was not an employee under Act 265 as para 1 of the First Schedule of Act 265 did not apply to him as the appellant earned more that RM2,000.00 per month. He further argued that sub-paragraphs 2(1) and (3) have no application too as the appellant was not a manual worker nor involved in any supervision work and cited the case of Colgate Palmolive Sdn Bhd v. Chong Foo Weng , 2001 MarsdenLR 2298 in support of his contention. As regards the Handbook, learned counsel submitted that the Handbook merely served as a guide for employees and has no legal standing. The Handbook itself provides that in the event of any legal dispute the parties should refer to Act 265.

Analysis And Findings

[6] Subsection 2(1) of Act 265 defines employee as:

"employee means any person or class of persons -

(a) included in any category in the First Schedule to the extent specified therein; or

(b) in respect of whom the Minister makes an order under subsection (3) or s 2A;".

The First Schedule provides-

"Employee

1. Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such person's wages do not exceed two thousand ringgit a mont