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2024 MarsdenLR 491
INDUSTRIAL COURT KUALA LUMPUR
SHEIKH NOR AMAR SHAHRIL SHEIKH ABD RAHMAN – Appellant
Versus
AMPANG HOTEL SDN BHD – Respondent
Award No: 1259 Of 2024 [Case No: 22/4-2913/21]
The court ruled that mutual separation agreements do not constitute dismissal if entered into voluntarily, and the burden of proof lies with claimants to demonstrate coercion or duress.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employees - Claimants dismissed under Mutual Separation Scheme (MSS) after Covid-19 pandemic - Claimants argued dismissal was forced - Court found Claimants voluntarily entered into MSS - The Company demonstrated significant financial losses due to pandemic, leading to MSS offering - Court ruled that no dismissal occurred as Claimants agreed to terms of MSS. (Paras 46-80)
(B) Burden of Proof - Claimants failed to prove dismissal occurred - It is the Claimants' responsibility to establish coercion or duress in signing MSS - Court affirmed that mutual termination of contract does not equate to dismissal. (Paras 43-79)
Facts of the case:
The Claimants were employees of the Company and were dismissed under MSS due to financial difficulties caused by the Covid-19 pandemic, with all Claimants asserting they did not apply for the scheme voluntarily.
Findings of Court:
The Claimants voluntarily entered into the MSS, and there was no evidence of coercion or duress.
Issues: Whether a dismissal occurred and if so, whether it was with or without just cause or excuse.
Ratio Decidendi: The Court emphasized that mutual separation agreements are not dismissals and the burden lies on the Claimants to prove otherwise.
Result: Claims dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Sheikh Nor Amar Shahril Bin Sheikh Abd Rahman (hereinafter referred to as "the 1st Claimant" vide Case No 22/4-2913/21) on 18 March 2021, Yee Lai Yin (hereinafter referred to as the "2nd Claimant" vide Case No 22/4-2914/21) on 18 March 2021, Siti Salmah Binti Shamsuddin (hereinafter referred to as the "3rd Claimant" vide Case No 22/4-2915/21) on 18 March 2021, Noorhajar binti Kamarudin (hereinafter referred to as "the 4th Claimant" vide Case No 22/4-2916/21) on 18 March 2021, Abdul Karim bin Abdul Munir (hereinafter referred to as "the 5th Claimant' vide Case No 22/4-2917/21) on 18 March 2021, Dzulkarnain @ Jol bin Salleh (hereinafter referred to as "the 6th Claimant" vide Case No 22/4-2918/21) on 18 March 2021, Charmaine Yeoh Sar Beng (hereinafter referred to as "the 7th Claimant" vide Case No 22/4-2919/21) on 18 March 2021, Mohammad Noor bin Abdu Suood (hereinafter referred to as "the 8th Claimant" vide Case No 22/4-2920/21) on 18 March 2021, Salbiah binti Malek (hereinafter referred to as "the 9th Claimant" vide Case No 22/4-2921/21) on 18 March 2021, Hasrul Hermi bin Kamarudin (hereinafter referred to as "the 10th Claimant" vide Case No. 22/42923/21) on 18 March 2021, and Abdul Jamil Bin Mohd Amin (hereinafter referred to as "the 11th Claimant" vide Case No 22/4-28/22) on 18 March 2021 (and collectively referred to as "the Claimants", unless specific reference is made to any of the particular Claimant), by Ampang Hotel Sdn Bhd (hereinafter referred to as "the Company").
[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required the Court to hear and determine the Claimants' complaint of dismissal by the Company on 18 March 2021.
I. Procedural History
[3] The Court received the letter pertaining to the DGIR's reference under s 20(3) of the Industrial Relations Act 1967 on 1 November 2021.
[4] Upon hearing a Notice of Application by the Claimants on 27 June 2022, all the 11 cases were consolidated vide Award No 1289 of 2022 dated 27 June 2022.
[5] The matter was fixed for mention on 17 December 2021,28 January 2022, 27 June 2022, 1 August 2022, 1 March 2023, 28 February 2023, 12 June 2023, 21 July 2023 and 6 October 2023.
[6] The trial proceeded on 27 May 2024, 28 May 2024 and concluded on 29 May 2024. It was agreed between the parties at the outset of the hearing that the Claimants would be tendering only 3 witnesses, ie Charmaine Yeoh Sar Beng (CLW-1; the 7th Claimant), Mohammad Noor Bin Abu Suood (CLW-2; the 8th Claimant) and Dzulkarnain @ Jol Bin Salleh (CLW-3; the 6th Claimant), and that their evidence will adopted for all the 11 Claimants' respective cases. Similarly, the testimonies of the Company's 4 witnesses, ie Adrian Alaska @ Kalasa (COW-1), Badrul Hisham @ Sham bin Othman (COW-2), Pang Goang Fa (COW-3) and Carolyn Tan May Lyn (COW-4), will be adopted for all the 11 cases.
II. The Parties' Position On The Merits
(a) The Claimants
[7] The 11 Claimants were employed by the Company, who runs a hotel by the name and style of Concorde Hotel ("the Hotel"), at various departments. All the Claimants were in the employment of Concorde Hotel from 1995 until they were dismissed on 18 March 2019 based on a Mutual Separation Scheme ("MSS") scheme offered by the Company to them after the Covid-19 pandemic.
[8] The Claimants contend that they never applied for the MSS scheme. However, they were handpicked by the General Manager of the Company to be dismissed from the Company's employment due to their long years of service with the Company.
• The 1st Claimant - Sheikh Nor Amar Shahril Bin Sheikh Abd Rahman
[9] The 1st Claimant commenced his employment with the Company on 28 July 1997 as a Technician IV vide Letter of Appointment dated 24 July 1997 (at pp 1-4 of CLB-1) and had been in service with the Company for 24 years. His last posit
