AWARD

This was a reference by the Honourable Minister of Human Resources pursuant to s. 20(3), Industrial Relations Act 1967 arising out of the dismissal of Tan Sim Poh (hereinafter referred to as 'the claimant") by Gestetner Office Automation on 30 April 1999 (hereinafter referred to as "the material date").

By consent, the name of the employer was amended to Ricoh (M) Sdn. Bhd. (formerly known as Gestetner Sdn. Bhd.) (hereinafter referred to as "the company"). The company admitted liability.

The following facts were not disputed. The claimant was appointed as a Service Representative by the company on 1 January 1972. He was the Product Manager at the material date. His last drawn basic salary was RM5,934 per month. He received a car allowance of RM350 per month. He was allowed to claim reimbursement for club expenses up to RM73.50 per month upon production of receipts. The retirement age for the employees of the company was fifty-five years. The claimant was fifty-three years old at the date of the hearing. He was paid a gratuity of RM126,332 and three months basic salary in lieu of notice of termination.

COW1, the Human Resource Manager of the company testified that she knew the claimant for seven years from 1 July 1992. She was a Human Resource Executive at the material date. The claimant reported to the Operations Manager who is currently the Managing Director of the company. She described the relationship between the claimant and the said Operations Manager as strained. The said Operations Manager expressed his frustration to her that he found the claimant stubborn. Likewise, the claimant expressed to her that he found it stressful working with the said Operations Manager.

CLW1, the claimant testified that the said Operations Manager told him in front of his subordinates that he could not work with him and that he did not trust him. He stated that he was unemployed after his dismissal and he worked for his family company.

The court did not order reinstatement as it would not be conducive for industrial harmony as the claimant had a previous acrimonious relationship with the current Managing Director of the company. Further, the claimant is fifty-three years old and would be due for retirement in two years if he were to be reinstated.

The period of employment was twenty-seven years four months. The last drawn salary was RM6,284 per month. The court awarded compensation in lieu of reinstatement at RM6,284 per year for twenty-seven years. The sum of RM126,332 which was paid as gratuity was deducted from the compensation in lieu of reinstatement awarded.

Counsel for the claimant submitted that compensation in lieu of reinstatement should be awarded for the period from the date of dismissal to the date of hearing. He relied on the decision of the court of Appeal in Koperasi Serbaguna Sanya Bhd (Sabah) v. Dr James Alfred (Sabah) & Anor, [2000] 4 MLJ 87 . The Industrial court had awarded compensation in lieu of reinstatement from the date of dismissal until the date of hearing. The court of Appeal held at pp. 767 and 768 as follows:

I now turn to the award for compensation in lieu of an order of reinstatement. Now, there are many imponderables that influence the making of such an award. They are too numerous for me to mention. They include such matters as the stigma which an act of dismissal carries with it. There is also the drawback that the workman if and when the finds alternative employment may have to start from a lower rung. The assessment is highly subjective and discretionary. So long as the award is not one that makes one look upon it askance, it must be upheld. The principles that are to be applied to such an award should, in my judgment, be more or less the same as those governing an award of damages for personal injury. They were summarized by Hashim Yeop A. Sani FJ (as he then was) in Pang Ah Chee v. Chong Kwee Sang, [1985] 1 MLJ 153; [1985] CLJ (Rep) 236; [1985] 2 CLJ 221 , 225 as follows:

It has however long been settl