Employment dismissal based on age must evidence just cause; the failure to provide a written contract undermines claims of negligence.

Amrik Singh:

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Honourable Minister of Human Resources arising out of the dismissal of Low Boey Foon ("the Claimant") by ATM Management Team Sdn Bhd ("the Company") on 30 August 2019.

Preliminary

[2] In handing down this Award, this Court has perused the pleadings, the witnesses' statements, oral and documentary evidence with the notes of proceedings as well as the written submissions and the accompanying bundle of authorities filed by the parties in this matter.

[3] This Court would like to express its gratitude to the learned counsel for the Claimant to have painstakingly prepared the lengthy notes of evidence in typed form for the Court's easy reference in handing this Award.

Brief Facts

[4] Prior to the commencement of the Claimant's employment with the Company, the Claimant was almost 59 years of age and had just recently quit her job in DELL Incorporation as its Global Finance Director. Least that the Claimant knew that in a WhatsApp Group chat that she had joined, one Michael Soon Jun Chew (Michael Soon) was also in the same WhatsApp group chat and was her former school mate and a director of the Company.

[5] Coincidently, Michael Soon was hoping to get a suitable candidate for the position of General Manager to oversee his Company's entire financial department and when met with the Claimant, found the Claimant's experience and exposure to be useful and suitable for the Company.

[6] Upon an arranged meeting between the Claimant, Michael Soon and another director of the Company, Dato Sri' George Lim Tong Chay (Dato' Sri), the Claimant was offered the position as General Manager in the Company with a monthly salary of RM10,000.00 a month. The Claimant accepted the offer and commenced her duties effective on 1 February 2017.

[7] At the date of the commencement of her employment with the Company, the Claimant was 59 years and 2 months of age.

[8] After 2 years in employment with the Company, sometime in February 2019, Michael Soon alleged that there has been financial loss of approximately RM5,000,000.00 in relation to an on going development project and began to cast suspicioun on the Claimant and the Company's Finance Manager, Felicia Wong.

[9] When suspicions were soon aroused, that the Company's fund has been mismanaged, on 25 August 2019, Michael Soon confronted the Claimant to accused her of mismanaging the fund that had caused the Company substantial losses. The Company then discovered that a sum of RM2,208,853.81 was overpaid to Messrs Syama Izar & Co, a legal firm which was in charge of conveyancing matters for the Company.

[10] The Company claims that Michael Soon and Dato Sri had earlier given repeated warnings to the Claimant to be cautious when dealing with the Company's monies since she was employed to take care of the finances of the Company.

[11] On 29 August 2019, the Claimant was asked by Lily Yeap, the Operational Manager to tender her resignation or face termination to which the Claimant refused and the same was asked of Felicia Wong. Due to the Claimant's refusal to tender the resignation letter, on the following day, 30 August 2019, the Claimant's service was terminated by a notice of termination dated 30 August 2019. Felicia Wong had also got her employment with the Company terminated on the same date. Hence, the Ministerial reference to have the Claimant's claim determined whether her dismissal was with or without just cause or excuse.

The Company's Case

[12] For the Company, Micheal Soon (COW 1) was the sole witness. The Company is a property admini