The doctrine of frustration justifies termination of employment when unforeseen circumstances, such as imprisonment, prevent an employee from fulfilling their contract.

AWARD

Andersen Ong Wai Leong:

B. Background Of The Case

[1] The case was first heard by the former learned Chairman, Dato' Mohd Dusuki Bin Mokhtar in year 2017 who had since left the Industrial Court of Malaysia on transfer to other agency. Pursuant to Award No: 958 of 2017 [[2017] 3 MELR 273], the learned Chairman had dismissed the claimant's claims and/or case against the company on the ground that the Industrial Court has no jurisdiction to hear the claimant's case as the representation by the claimant was only filed on 8 January 2014, beyond the time frame of 60 days provided under the IRA .

[2] The claimant subsequently filed an application for judicial review vide High Court of Temerloh. Application for Judicial Review No: CB-25-04-10-2017 [[2018] MLRHU 153] against the aforesaid decision of learned Chairman in dismissing his claims and/or case against the company. Pursuant to High Court Order dated 18 February 2020, the claimant's claims and/or case was remitted back to the Industrial Court for the Industrial Court to determine whether the claimant was dismissed for just cause or excuse.

C. Facts

[3] The company is a multinational electricity company with its core activities in the generation, transmission and distribution of electricity to Malaysian households and business premises.

[4] Pursuant to a letter of employment dated 30 May 2005, the claimant commenced his employment with the company as "Pemandu secara kontrak tetap berpenggal" on a one year fixed-term contract basis, effective from 15 June 2005.

[5] At the end of the aforesaid contract term, the claimant was offered employment on permanent basis with the company as "Pemandu Kenderaan Tingkatan Biasa", Grade TD03 with effect from 15 June 2006 vide letter of employment dated 24 June 2006.

[6] By a letter dated 31 January 2011, the claimant was promoted to the position of Auger Crane Operator, Grade TD04 by the company, effective 14 February 2011. The claimant had held the same position until he was dismissed by the company.

[7] By a letter dated 11 February 2011, the company informed the claimant that he was required to report to the Manager of the company's Raub Station where he would be placed in the Engineering Services Unit - Auger Crane Team, with effect from 14 February 2011.

[8] The claimant was arrested and remanded by the police on 31 July 2012. He was subsequently charged in Raub Magistrates Court under s 15(1) the Dangerous Drugs Act 1952 ("the DDA ") and Raub Sessions Court under s 39A(2) of the .

[9] The claimant did not report for work on 31 July 2012 as he was in the custody of the police and did not inform the company. The company then received a call from the Royal Police District Headquarters in Raub, Pahang on 1 August 2012 informing the company that the claimant has been arrested on 31 July 2012.

[10] Meanwhile, the company had issued a show cause letter to the claimant dated 31 July 2012 for his failure to report for work on 31 July 2012. However, the aforesaid show cause letter was never sent or delivered to the claimant after the company was being notified of claimant's arrest on the following day on 1 August 2012.

[11] By a letter dated 8 August 2012, the police informed the company inter alia that the claimant was arrested for possession of dangerous drugs on 31 July 2012 and was tested positive for Methamphetamine.

[12] Subsequently, the police via letter dated 26 September 2012 informed the company that the claimant was being charged in Court under ss 39B and 15(1) of the DDA and detained without bail at the Penor Prison, Kuantan, Pahang Darul Makmur ("the Penor Prison').

[13] By a letter dated 10 October 2012, the company informed the claimant that given his detention at the Penor Prison and his inability to report for work at the work place and to perform his duty as Auger Crane Operator, his contract of employment was deemed frustrated and his last day of employment with the company was on 31 July 2012 ("the Letter of Termination"). The r