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2023 MarsdenLR 637
INDUSTRIAL COURT KUALA LUMPUR
ABIGAIL VINODHINI – Appellant
Versus
AN MARKETING SDN BHD – Respondent
Award No: 1584 Of 2023 [Case No: 7/4-1911/21]
An employer must prove just cause for termination; failure to do so results in a ruling of unjust dismissal and entitlement to compensation.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Termination of employment - Claimant terminated by Company without just cause or excuse - Court found no evidence of misconduct or tardiness justifying dismissal - Company failed to prove its case on balance of probabilities - Claimant entitled to compensation for loss of earnings. (Paras 17, 19, 43, 45)
(B) Employment Contract - The absence of stipulated working hours in the contract led to ambiguity regarding tardiness - Communication regarding work time was informal and not a strict requirement of the contract. (Paras 25, 27, 36)
Facts of the case:
The Claimant was employed under a fixed-term contract and was terminated on her first day of work for alleged tardiness and bad attitude. The Claimant contended the termination was without just cause. (Paras 3, 8, 9)
Findings of Court:
The Claimant was not a habitual latecomer, and the Company did not provide adequate evidence to justify the dismissal. The termination was ruled as lacking in good faith and fairness. (Paras 43, 44)
Issues: Whether the termination was justified based on the alleged tardiness and behavior of the Claimant. (Para 16)
Ratio Decidendi: The burden of proof lies with the employer to establish just cause for termination, and the absence of clear evidence leads to the conclusion that the dismissal was unjustified. (Paras 19, 43)
Result: Claim allowed; compensation awarded to the Claimant amounting to RM48,000.00.
| Table of Content |
|---|
| 1. reference to the industrial court (Para 1 , 2) |
| 2. claimant's employment and termination details (Para 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 3. company's allegations against the claimant (Para 10 , 11 , 12 , 13 , 14 , 15) |
| 4. issue of termination justification (Para 16) |
| 5. legal standards regarding dismissal (Para 17 , 18 , 19 , 20 , 21) |
| 6. court's evaluation of evidence (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 7. witness credibility and testimonies (Para 30 , 31 , 32 , 33 , 34) |
| 8. procedural irregularities in termination (Para 35 , 36 , 37 , 38 , 39) |
| 9. inconsistencies in company’s claims (Para 40 , 41 , 42) |
| 10. court's finding on termination justification (Para 43 , 44) |
| 11. court's order and remedy (Para 45 , 46) |
Reference
[1] This is a reference by the Honorable Minister of Human Resource, Malaysia to this Industrial Court under s 20(3) of the Industrial Relations Act 1967 ("The Act") for an award in respect of the dispute arising out of the alleged termination of Abigail Vinodhini ("the Claimant") by his employer, An Marketing Trading Sdn Bhd ("Company").
Documents In Court Files
I. Statement of case dated 21 September 2021
II. Statement of reply dated 6 October 2021
III. Rejoinder dated 18 October 2021
IV. Claimant's Bundle of Document (CLB 1)
V. Company's Bundle of Document (COB 1)
VI. Witness Statement of the Claimant (CLWS1)
VII. Company's Witness Statement of SHAHIDA BINTI AB HAMID (COWS1)
VIII. Company's Witness Statement of NG SAW KHENG (Supervisor/COWS2)
IX. Claimant's Written Submission dated 29 March 2023
X Claimant's Bundle of Authorities
XI. Company's Written Submission dated 28 March 2023
XII. Company's Bundle of Authorities
XIII. Claimant's Written Submission In Reply dated 12 April 2023
XIV. Claimant's Bundle of Authorities (2)
XV. Company's Written Submission in Reply dated 12 April 2023
[2] The Claimant's claim is for termination of the employment by the Company without just cause or excuse.
Brief Facts
The Claimant's Case
[3] The Claimant commenced her employment with the Company effective from 7 November 2020 with monthly salary of RM4,000.00 as Business Development Manager via a letter of offer dated 1 October 2020. It was a fixed term contract for a period of 1 year commencing from 7 November 2020 to 1 November 2021.
[4] The Claimant resigned from her previous employment with B Beaute Elegant Sdn Bhd on 7 October 2020 to officially join the Company on 7 November 2020. On 8 November 2020, the Claimant received a WhatsApp message from the Company instructing the Claimant to come to work at 8.30pm on 9 November 2020. This text was sent to the Claimant on 8 November 2020 at 6.15pm.
[5] On 9 November 2020, the Claimant entered the office premises at around 8.40am, however the Claimant was asked to wait outside the COWS2's room until 9am.
[6] Subsequently, the Claimant was given a warning letter by COWS2 alleging that she was late to work. The Claimant signed the letter but copy of the same was not provided to the Claimant.
[7] The Claimant commenced her work thereafter and she was called for a discussion pertaining her job scope with COWS2. In the discussion, the Claimant was asked to leave the office as she has been terminated by the Company. The Claimant immediately left the office.
[8] The Claimant was served with the letter of termination on 9 November 2020 via WhatsApp from COWS1 around 2.09pm. The reason for the termination was stated as Claimant's bad attitude and failure to respect the supervisor.
[9] The Claimant alleged that the termination was done without just cause or excuse.
The Company's Case
[10] The Company alleged that the original letter of offer was dated 1 November 2020 however the Claimant had changed the date to 9 November 2020 as she had informed the Company that she was unable to commence work on 1 November 2020.
[11] The Company claimed that the vital term of the letter of offer was that '...the Company reserves the right at all times to terminate this service of business development manag
