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2023 MarsdenLR 2887
INDUSTRIAL COURT KUALA LUMPUR
LILY XAIVER ARIAKOSAMY – Appellant
Versus
PROMETIC TECHNOLOGY SDN BHD – Respondent
Award No: 1698 Of 2023 [Case No: 15(6)/4-1071/21]
The employer must prove redundancy and act in good faith during retrenchment; failure to do so results in dismissal without just cause.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) and Section 60N - Employment termination - Claimant's employment was terminated on grounds of redundancy without proof of actual redundancy - Court held that the Company failed to substantiate the claim of redundancy, resulting in dismissal without just cause. (Paras 19, 21, 24, 30, 42, 46)
(B) Retrenchment - The employer must demonstrate the existence of redundancy and that the retrenchment was executed in good faith - Mere allegations are insufficient to justify termination. (Paras 16, 17, 20, 24)
Facts of the case:
The Claimant was employed on a fixed term contract but was terminated prematurely due to alleged redundancy. The Company did not provide sufficient evidence to support this claim. (Paras 9, 10, 19)
Findings of Court:
The Claimant was dismissed without just cause as the Company could not establish the claimed redundancy. Compensation of RM6,800.00 awarded for loss of employment. (Paras 46, 52)
Issues: Whether the termination was justified based on redundancy and whether the Company complied with the retrenchment procedures. (Paras 19, 30)
Ratio Decidendi: The burden of proof lies with the employer to substantiate claims of redundancy and to ensure that retrenchment is carried out in good faith; failure to do so results in unlawful termination. (Paras 24, 42)
Result: The Court orders the Company to pay the Claimant RM6,800.00 as compensation for loss of employment.
| Table of Content |
|---|
| 1. court's authority and procedure for judgment (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. employment background and termination details (Para 7 , 8 , 9 , 10) |
| 3. arguments related to redundancy and termination (Para 11 , 12 , 13 , 14 , 15) |
| 4. legal framework and burden of proof in retrenchment (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 5. non-compliance with retrenchment notice requirements (Para 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39) |
| 6. employer's responsibility and employee rights (Para 40 , 41 , 42 , 43 , 44) |
| 7. court's finding on dismissal without just cause (Para 45) |
| 8. relief and compensation awarded to claimant (Para 46 , 47 , 48 , 49 , 50 , 51 , 52) |
A. Reference
[1] This is a reference from The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") in respect of the dismissal of LILY XAIVER A/P ARIAKOSAMY ("the Claimant") by PROMETRIC TECHNOLOGY SDN BHD ("the Company") on 19 August 2020.
B. Background
[2] The case was previously tried and concluded by the learned Chairman, Yang Arif Tuan Iznan Bin Ishak who had since retired from the Malaysian Public Services on 9 May 2023 and ceased to be the Chairman of the Industrial Court of Malaysia.
[3] I have been appointed as the new Chairman of Court 15, effective 1 June 2023 and since taken over the conduct of this matter as the new Chairman of this Court.
[4] I have been requested to deliver and prepare the Award for this matter. Parties have on 26 June 2023 given their consent for me to deliver and hand down the Award without the need for the case to be heard de novo.
[5] I further rely on the authority of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor, ; [2011] 2 ILR 251 where the Court held that s 23(6) of Industrial Relations Act 1967 (" IRA ") allows another chairman to continue hearing a part-heard case and the new Chairman can hand down the Award in such cases.
[6] Therefore, this Award is written based on my reading, perusal and evaluation of the facts and evidence contained in the notes of proceedings prepared by the former Chairman, Yang Arif Tuan Iznan and gleaned from the documents made available to me.
C. Facts
[7] The Company is in the business of providing technology-enabled testing and assessment solutions to licensing and certification organizations, academic institutions and government agencies.
[8] Pursuant to a contract of engagement dated 23 April 2020, the Claimant was appointed as Temporary Remote Proctor on a fixed term contract basis for a period of six (6) months, commencing from 4 May 2020 until 3 November 2020.
[9] The Claimant's employment with the Company was short lived and she was terminated prematurely, before the expiry of her fixed term contract. The Company via letter dated 19 August 2020 informed the Claimant of its' decision to terminate the Claimant's employment, purportedly on the ground of redundancy. The relevant excerpts of the aforesaid letter are reproduced herein below as follows:
"Dear Lily,
As recently discussed during our meeting on 19 August 2020; unfortunately, your role as exam proctor is no longer required by Prometric. As a result, your fixed-term contract of employment will be terminated with effect from today 19 August 2020. You will receive payment in lieu of your notice of period of 10 working days' in compliance with the minimum notice period required by your contract.
The company has to this difficult decision due to a less than expected demand for the use of ProProctor by clients. Whilst we had initially envisaged the requirement to have you employed for a period of 6 months, unfortunately, due to this reduced demand, we no longer require the number of exam proctors globally as first expected and therefore view the positions as redundant.
You will receive your final salary subject to statutory deductions following our regular pay cycle at the end of Augu
