AWARD NO. 405 OF 1996 [4 SEPTEMBER 1996]

AWARD

The parties to the dispute are Jashin Engineering (M) Sdn. Bhd. (hereinafter referred to as 'the company') and Palayam Nagappan (hereinafter referred to as 'the claimant').

The dispute is over the dismissal of the claimant by the company with effect from 1 September 1991.

In the statement of case the claimant avers that he joined the services of the company on 9 April 1990 as a lorry driver with a starting salary of RM450 and was confirmed employee of the company. His last drawn salary was RM500.

The claimant contends that his dismissal contravenes s. 14(1) of the Employment Act 1955 as no inquiry was held before he was dismissed.

Further, the claimant contends that the said dismissal was an act of unfair labour practice, against the principles of natural justice, mala fide and without just cause or excuse.

The claimant prays:

i) reinstatement to his original position with full average backwages including any other benefits whether monetary or otherwise continuing up to the date of the award.

In the statement in reply the company contends that the claimant was at all material times not an employee of the company.

The company avers the claimant resigned from the employ of the company when the claimant intimated to one Tan Peak Hoon that he was resigning and will not report for work.

The claimant was involved in an accident outside the premises of the company a few days after the notice to resign.

The company prays that the claimant's claim be dismissed.

In his testimony before this Court the claimant stated that on 22 August 1991, whilst on his way to work on his motorbike, the claimant was involved in an accident at Batu Tiga, Shah Alam.

The claimant suffered fracture of his left leg and was given medical leave for two (2) weeks.

The claimant sent the medical leave chit to his company on 24 August 1991 through a colleague.

On the expiry of the two (2) weeks' medical leave, the claimant was given a further two (2) weeks medical leave.

The claimant took the medical leave chit personally and handed it to COW1 and asked for his August 1991 salary.

COW1 paid the claimant his salary and informed him that he had already been dismissed by the company. There was nothing in writing regarding his dismissal.

The company's only witness is its working director, COW1, who testified that the claimant had worked for the company as its lorry driver for only two months. She was unable to say which were the two months the claimant was with the company and in which year. What she could recall is that when the claimant met with an accident it was after the claimant had left the company's services. According to COW1 the claimant told her that he wished to leave and COW1 said she agreed. There was nothing in writing. No letter of resignation was tendered by the claimant.

The company was not denying that the claimant was involved with an accident at Batu Tiga on 22 August 1991 and suffered injuries but the company contended that at the material time of the accident the claimant was not an employee of the company. He had resigned earlier.

There was no denial that on 24 August 1991 the first medical certificate was given by the claimant through his colleague to the company and his two weeks' medical leave began on 24 August 1991 and ended 5 September 1991.

There was also no denial that the second medical certificate was given to the company by the claimant personally.

But the company through the evidence of COW1 maintained that the claimant had resigned before he met with an accident on 22 August 1991 and did not turn up for work after his resignation.

The company disputed the claimant's date of commencement of employment with the company and insisted it was not 9 April 1990 but it should be 9 April 1991. COW1, however, admitted she had signed a letter dated 2 May 1991 in which she had increased the claimant's salary to RM500 per month. The letter marked as Exh. CL1 reads:

Jashin Engineering (M) Sdn. Bhd.

(General Contractor & Supp