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2020 MarsdenLR 681
INDUSTRIAL COURT KUALA LUMPUR
MOHAMMAD HASZRI ABU HASSAN & ORS – Appellant
Versus
SPADPRO BERHAD – Respondent
Award No: 674 Of 2020 [Case No: 15/4-750/19]
Dismissal due to redundancy stemming from external government actions is lawful, provided there is no showing of bad faith or ulterior motives.
Headnote:(A) Industrial Relations Act 1967 – Subsection 20(3), Section 29(d), Section 30(5) – Dismissal of employees due to redundancy – The court found the Company's reason for dismissal due to the dissolution of SPAD legitimate, highlighting that the Claimants failed to demonstrate bad faith or just cause for their termination. (Paras 26, 34, 52)
(B) Dismissal and Just Cause – The court reaffirmed that dismissal can be lawful if it is due to operational requirements resulting from external governmental changes, provided no ulterior motive is shown. (Paras 48, 54)
Facts of the case: The Claimants, all senior management employed by SPADPRO, were terminated following the public dissolution of SPAD, which ceased the Company's operations. They alleged unfair dismissal, asserting a lack of prior notice and no options for other employment.
Findings of Court: The Court found the dismissals were legitimate and with just cause due to the Company's operational cessation resulting from the governmental dissolution of SPAD. The Claimants did not provide evidence to refute the Company's claims. (Paras 52, 53)
Issues: The crucial issues were whether the dismissal was bona fide and with just cause due to the redundancy stemming from SPAD's dissolution. (Paras 26, 36)
Ratio Decidendi: The court held that the Company's motive for dismissal was genuine, not bad faith, and operational decisions were dictated by external circumstances leading to redundancy, fulfilling the requirements of just cause. (Paras 38, 54)
Result: Claims dismissed.
AWARD
Reference
[1] This is a reference made under subsection 20(3) of the Industrial Relations Act 1967 ("the 1967 Act") arising out of the dismissal of MOHAMMAD HASZRI BIN ABU HASSAN, ZACHARY ISMAIL BIN ZEE ISMAIL, WAN NOORUL QAMAR BINTI WAN NOOR, FAIZATUL AKMAR BINTI ABU BAKAR and MOHAMAD FAUZI BIN CHE RUS ("The Claimants") by SPADPRO BERHAD ("The Company") on 31 August 2018.
Background
[2] By way of Interim Award No 2376/2019 dated 28 August 2019 this case No 15/4-750/19 [MOHAMMAD HASZRI BIN ABU HASSAN] was consolidated and heard together with case no 19/4-752/19 [ZACHARY ISMAIL BIN ZEE ISMAIL],19/4-754/19 [WAN NOORUL QAMAR BINTI WAN NOOR], 4/4-827/19 [FAIZATUL AKMAR BINTI ABU BAKARA] and 4/4-828/19 [MOHAMAD FAUZI BIN CHE RUS] against SPADPRO BERHAD. The Court fixed 23 August 2019 for hearing of this matter.
[3] The Claimants subsequently on 30 September 2019 filed an application to join the followings as parties to this dispute:
a. Mohd Azharuddin Bin Mat Sah
the Director and shareholder of the Company and former commission member of Suruhanjaya Pengangkutan Awam Darat [SPAD]-(Proposed Joinee No 1);
b. Dr Prodyut Dutt
the Director and shareholder of the Company (Proposed Joinee No 2);
c. Datuk Himmat Singh A/L Ralla Singh
former commission member of SPAD (Proposed Joinee No 3);
d. Dato' Asri Bin Hamidin @ Hamidon
former commission member of SPAD (Proposed Joinee No 4);
e. Datin Paduka Dr Dahlia Binti Rosly
former commission member of SPAD (Proposed Joinee No 5);
f. Dato' Slow Kim Lun @ Slow Kim Lin
former commission member of SPAD (Proposed Joinee No 6); and
g. Agensi Pengangkutan Awam Darat[APAD]
the current agency taking over SPAD (Proposed Joinee No 7).
[4] The joinder application was heard and the application was dismissed. In the said proceedings, the Claimants did not at all dispute nor challenged the evidence adduced by Proposed Joinees No 1, 3, 4, 5, and 6 that they were workmen employed by Government for SPAD a statutory body established under a written law while Proposed Joinee No 7 [APAD] the agency which took over SPAD was a also Government agency.
[5] The Court was satisfied that by virtue of s 52 of the Industrial Relations Act 1967 , the provisions of the act are not applicable on workmen employed by the Government for SPAD and APAD which is a Government agency.
[6] As for Proposed Joinee No 2, it was also unchallenged and undisputed evidence that Proposed Joinee No 2 whose employment as Director of the Company was terminated by the Company along with the Claimants employment. Therefore, he could not be made to represent the interest of the Company.
Ex Parte Hearing
[7] On 8 October 2019, the Court proceeded with the hearing ex-parte after it was convinced that the Company been served with the relevant forms, notices and letters to its last known business address informing it of the mention dates and hearing dates.
[8] Arising from the Claimants' Joinder Application, the Court was aware that there would be no representative from the Company to represent the Company or to attend and file any documents into Court to defend the Claimants' claims against the Company.
[9] The Court, in exercising its power under s 29(d) of the Industrial Relations Act 1967 ("the IRA ") allowed the Claimants' application to proceed with the hearing of this matter on 14 October 2019 in the absence of the Company's representative.
[10] The Court's role in an ex parte hearing was explained by OP MALHOTRA IN THE LAW OF INDUSTRIAL DISPUTES, VOLUME 1, 6TH EDITION at page 1063 where the learned author said as follows:
"A rule empowering the tribunal to proceed ex parte if a party is absent and sufficient cause is not shown for his absence, would not enable it either to do away with the inquiry or to straightaway pass an award without giving a finding on the merits of the dispute. In other words, the absence of a party does not entail consequence that an award will straightway be made against him."
[11] The Court is required to determine the matter
