Back
INDUSTRIAL COURT KOTA KINABALU
CHAN KET KHEN & ANOR – Appellant
Versus
QUREX SDN BHD – Respondent
Award No: 1671 Of 2023 [Case Nos: 17/4-268/21 & 17/4-269/21]
Grounds of Appeal:
The learned trial judge erred in law and/or fact by holding that the retrenchment was justified on the basis of genuine redundancy arising from bona fide business reorganization due to sustained financial losses and operational requirements, when the evidence did not establish a genuine commercial basis or operational necessity for rendering positions surplus. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
The learned trial judge erred in law and/or fact by finding that the employer discharged the burden of proof to demonstrate that the retrenchment was bona fide and not motivated by mala fides, caprice, victimization, or unfair labour practices, when the evidence showed improper motives or inadequate substantiation. (!) (!) (!) (!) (!) (!) (!)
The learned trial judge erred in law and/or fact by holding that there is no legal or contractual obligation to consult with or provide prior warning to employees before retrenchment, and that payment in lieu of notice suffices, thereby failing to recognize implied duties of fairness or good faith in termination processes. (!) (!) (!) (!) (!) (!) (!) (!) (!)
The learned trial judge erred in law and/or fact by ruling that employees exceeding the wage threshold under the relevant rules are not entitled to statutory retrenchment or termination benefits absent contractual provisions, when such entitlement arises under broader principles of equity or contract interpretation. (!) (!) (!) (!) (!)
The learned trial judge erred in law and/or fact by determining that the Code of Conduct for Industrial Harmony 1975 is merely non-binding guidelines and that non-compliance does not invalidate a retrenchment, overlooking its status as persuasive authority or implied term in employment relationships. (!) (!) (!) (!) (!)
| Table of Content |
|---|
| 1. dismissal reference under ira 1967 (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. claimants allege unlawful termination (Para 8 , 9 , 10) |
| 3. court's duty to assess dismissal reasons (Para 12 , 13 , 14 , 15) |
| 4. burden of proof lies with employer (Para 16 , 17 , 18 , 19 , 20) |
| 5. management prerogative in business organization (Para 21 , 22 , 23 , 24 , 25) |
| 6. details of retrenchment process (Para 26 , 27 , 28 , 29 , 30) |
| 7. claimants' employment history and service (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 8. issues for determination (Para 39 , 40) |
| 9. employer's right to reorganize business (Para 41 , 42 , 43 , 44 , 45) |
| 10. company's financial position and justification (Para 46 , 47 , 48 , 49 , 50) |
| 11. evidence of financial records (Para 51 , 52 , 53 , 54 , 55) |
| 12. justification for closure of branches (Para 56 , 57 , 58 , 59) |
| 13. valid reasons for termination of employment (Para 60 , 61) |
| 14. consultation and warning not mandatory (Para 62 , 63 , 64 , 65 , 66) |
| 15. failure to consult does not invalidate retrenchment (Para 67 , 68 , 69 , 70) |
| 16. court's view on notice and compensation (Para 71 , 72 , 73 , 74) |
| 17. claimants' entitlement to benefits (Para 76 , 77 , 78 , 79 , 80) |
| 18. contractual obligations regarding termination (Para 81 , 82) |
| 19. exemption from statutory obligations (Para 83 , 84 , 85) |
| 20. potential amendments to labor laws (Para 86 , 87 , 88) |
| 21. code of conduct for industrial harmony (Para 89 , 90 , 91 , 92 , 93 , 94) |
| 22. conclusion on retrenchment fairness (Para 95 , 96 , 97 , 98 , 99 , 100) |
A. Reference
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the dismissal of the 1st Claimant - Chan Ket Khen and the 2nd Claimant - Liew Lee Shen @ Molly (hereinafter referred to as "the Claimants") by Qurex Sdn Bhd (herein referred to as "the Company").
B. Preface
[2] This Ministerial reference required this Court to hear and determine the complaint of dismissal of the Claimants effective on 4 June 2020 by the Company.
[3] Pursuant to s 29(g) of the IRA 1967, these two cases of 17/4 - 268/21 and 17/4 - 269/21 were consolidated and tried jointly vide an Interim Award No 1271/2021 dated 1 September 2021.
[4] At all material times the Company carries on a licensed money services business under the Money Services Business Act 2011 specialized in, among others, retail foreign currency exchange and remittance services for travelers and corporate business in Malaysia with Currency Exchange Branches operating in Kuala Lumpur, Petaling Jaya and Kota Kinabalu
[5] Chan Ket Khen ("the 1st Claimant") - The 1st Claimant was employed by the Company since 3 April 1991. The 1st Claimant's last post in the Company before the termination of his service was as Assistant Manager Currency Exchange. The 1st Claimant's last drawn salary was RM4,140.00.
[6] Liew Lee Shen @ Molly ("the 2nd Claimant") - The 2nd Claimant was employed by the Company since 20 October 1993. The 2nd Claimant's last post in the Company before the termination of her service was as Executive Currency Exchange. The 2nd Claimant's last drawn salary was RM3,740.00.
[7] The dispute emanates over the retrenchment of the Claimants by the Company. Based on the Notice of Retrenchment and Termination dated 5 May 2020 the Company informed the Claimants that their service will be terminated effective on 4 June 2020 due to the Company ceasing its business at Sabah branch office.
[8] The Claimants avers that they were unlawfully terminated and that their retrenchment by the Company was without just cause or excuse.
[9] As the Company has been suffering losses for the past four years, the Company's is no longer able to sustain the operating costs and as a result the Company had to reorganize its business which also includes the closure of the Company's Sabah branch office and the termination of the Claimants' service by the Company. Apart from the Sabah Branch, the Company had also closed down its
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
