The employer must substantiate claims of redundancy with concrete evidence; mere assertions are insufficient to justify dismissal under the Industrial Relations Act.

AWARD

Arun Kumar S Kanesin:

Reference

[1] This is a reference made under subsection 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Noor Haizlynda Binti Abu Bakar (hereinafter referred to as "the Claimant") by Diebold Nixdorf Sdn Bhd (hereinafter referred to as "the Company") on 1 May 2020.

A. Preliminaries

[2] This matter arises from the reference by the Honourable Minister of Human Resources dated 23 July 2021, in respect of the dismissal of Noor Haizylynda binti Abu Bakar ("the Claimant") by Diebold Nixdorf Sdn Bhd ("the Company").

[3] The hearing of this matter was held on 22 March 2022 and 29 June 2022, presided by the then Chairman of Court 13, Yang Arif Dato' Muhammad Bukhari Bin Ab Hamid. Subsequent to his retirement, the hearing continued on 20 July 2023 and 21 July 2023 under the then Chairlady of Court 13, Yang Arif Puan Selva Rani Thiyagarajan and the hearing was completed on 21 July 2023.

[4] The award for this matter will now be handed down by the current Chair of Court 13, who took office with effect from 18 November 2024.

[5] The Company had called the following witnesses for its case:

a. Roselina Chan (COW 1)

b. Tan Chooi Wei (COW 2).

[6] For the Claimant, she testified on her behalf and called the following witnesses, namely Mohammad Zhafri (CLW 2) and Nur Hafina (CLW 3) in respect of her case.

B. Factual Matrix

[7] The Claimant commenced employment with the Company with effect from 1 August 2015 in the position of Team Leader (pp 3 - 9 of COB 1).

[8] Subsequently, by letter dated 20 October 2016, the Claimant was promoted to the position of Service Desk Manager (pp 10 - 12 of COB 1).

[9] The Company states that the Claimant's last held position in the Company was Service Desk Operations Manager. The Claimant however maintained that her last held position was Service Desk Manager.

[10] By way of a letter dated 20 January 2020, the Company notified the Claimant that her employment would come to an end, and the Claimant's last date of service will be 30 April 2020. The said letter of severance is at pp 50 - 52 of COB 1.

[11] The Claimant was paid severance payment amounting to RM22,168.22.

[12] The reasons given in the said letter of severance for the Claimant's termination are herein reproduced verbatim:

"Based on the announcement by the VP of Global Service Desks (GSD), Jacqueline Gaylard, in-line with Diebold Nixdorf's strategic direction and to standardized Global Service Desk (GSD) delivery model, the Global Service Desk Centre will be implementing a new organization blueprint around the globe starting from January 2020.

Target design for the Malaysia Global Service Desk (GSD) is being finalized, we regret to inform you that your role under the new organizational blueprint has been made redundant and hereby giving you notice that your contract of service with us is to be ended and your last date of service with us will be 30 April 2020 (Separation Date)."

[13] The Company has pleaded in para 7.2 of its Statement in Reply that a face-to-face townhall meeting was held on 15 January 2020, in which the new organization blueprint was shared with and explained to all employees in the Malaysian Global Service Desk, and Claimant attended the meeting as well.

C. Reasons Given In The Termination Letter Dated 20 January 2020

[14] It is as clear as light of the day that the sole reason for the Claimant's termination in the said letter of severance is redundancy. Considerable time was wasted by both parties in their pleadings, and as well as during the hearing in ventilating extensively on issues in respect of the Claimant's performance and other issues regarding the Claimant's conduct. In this regard, the Court refers to the Federal Court 's decision in Maritime Intelligence Sdn Bhd v. Tan Ah Gek ; [2022] 1 MLRA 56; [2021] 4 ILR 417; [2021] 10 CLJ 663 , where Her Ladyship Justice Nallini Pathmanathan (FCJ) stated as follows:

"[46] By virtue of the clear statutory content of s 20(3), the function of the