Back
2024 MarsdenLR 2281
INDUSTRIAL COURT KUALA LUMPUR
LIM HOCK KENG – Appellant
Versus
JAKS SDN BHD (A MEMBER OF JAKS GROUP) – Respondent
Award No: 1552 Of 2024 [Case No: 5/4-940/22]
The court upheld the termination of the Claimant's employment as justified due to redundancy, emphasizing the employer's prerogative in managing workforce needs amid financial difficulties.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Termination of employment - Claimant terminated without just cause or excuse - The Company asserted redundancy due to project completion, supported by financial difficulties and managerial prerogatives - Court found the termination to be justified. (Paras 23, 24, 29, 33)
(B) Burden of proof - The Company must demonstrate that dismissal was with just cause or excuse - The standard applied is on the balance of probabilities. (Paras 15, 25)
Facts of the case:
The Claimant was terminated on 31 October 2021 after being employed by the Company since 2012. The Company claimed redundancy due to project completion and financial losses. (Paras 4, 8, 12)
Findings of Court:
The Company successfully proved that the termination was justified based on redundancy and financial necessity, dismissing the Claimant's case. (Paras 33)
Issues: Whether the termination was with or without just cause or excuse; whether the Company's reasons were substantiated. (Paras 23)
Ratio Decidendi: The court ruled that the Company acted within its rights to terminate employment due to redundancy, supported by evidence of financial hardship and project completion. (Paras 29, 33)
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 ("Act") arising out of the termination of Lim Hock Keng ("Claimant") by Jaks Sdn Bhd ("Company") on the 31 October 2021.
[2] The Director General's reference in this case required the Court to hear and determine the Claimant's complaint of termination by the Company on 31 October 2021.
[3] This Court considered the notes of proceedings, documents and cause papers in handing down this Award namely:-
(a) Statement of Case dated 7 July 2022
(b) Statement in Reply dated 3 October 2022
(c) Rejoinder dated 22 February 2023
(d) Claimant's Bundle of Documents - CLB-1
(e) Company's Bundle of Documents - COB-1, COB-2, COB-3, COB-4
(f) Claimant's Witness Statement - CLW-1S (Lim Hock Keng)
(g) Company's Witness Statement - COW-1SA & COW-1SB (Mohd Johari Ghazali)
(h) Company's Witness Statement - COW-2SA & COW-2SB (Saraswathi A/P Narayanan)
(i) Claimant's Written Submission and Reply
(j) Company's Written Submission and Reply
(k) Claimant's Bundle of Authorities
(l) Company's Bundle of Authorities
Background
[4] The dispute before this Court is the claim by the Claimant that he had been terminated from his employment without just cause or excuse by the Company on the 31 October 2021.
[5] On 29 August 1986, the Claimant was employed by Wing Tiek Hardware Sdn Bhd ("WTHSB") as general worker. On 21 December 1988, WTHSB changed its name to Wing Tiek Holdings Bhd ("WTHB"). In 1994, WTHB was taken over by Wing Tiek Steel Pipe Sdn Bhd ("WTSPSB"). On 14 October 2004, WTSPSB had changed its name to Jaks Steel Industries Sdn Bhd.
[6] On 20 March 2012, the Claimant was informed that he would be transferred from Jaks Steel Industries Sdn Bhd to the Company with effect from 26 March 2012 and he will be re-designated as a site supervisor at a construction site at Ara Damansara, Mukim Damansara, Daerah Petaling, Selangor with his conditions of employment remain the same.
[7] On 6 March 2015, the Company assigned the Claimant to a new project site namely "Pakej D43 - Pembinaan Rangkaian Paip Pembentungan Di Batu Jinjang, Kepong, Kuala Lumpur (Reka & Bina)" with his conditions of employment remain the same.
[8] On the 22 July 2021, the Company issued a letter of Release From Contractual Duties (End Of Project) ("RFCD") to the Claimant informing him that he is being terminated from his employment with effect from 30 September 2021 due to his services as senior site supervisor ("SSS") will no longer be required as the "Pakej D43 -Pembinaan Rangkaian Paip Pembentungan Di Batu Jinjang, Kepong, Kuala Lumpur (Reka & Bina)" is coming to an end by 30 September 2021.
[9] The Company had given the Claimant 1 month's notice of the termination.
[10] The Claimant's last drawn salary was RM5,040.00 as SSS.
[11] On 20 September 2021, the Company offered the Claimant temporary employment as SSS from 1 October 2021 to 31 October 2021 with a basic salary of RM5,040.00 which was duly accepted by him.
[12] The Claimant contended that the Company's retrenchment exercise was done in bad faith and without just cause or excuse.
The Duty Of The Industrial Court
[13] The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd ; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 held that:
"When the Industrial Court is dealing with a reference under s 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse.".
[14] The Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd; held that:
"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or re
