Back
2024 MarsdenLR 536
INDUSTRIAL COURT KUALA LUMPUR
LAVIINIA DHANAGUNAN – Appellant
Versus
TAYLORS UNIVERSITY SDN BHD – Respondent
Award No: 917 Of 2024 [Case No: 5/4-934/20]
The employer must prove that termination was with just cause or excuse, particularly in redundancy cases, where the burden of proof lies on the employer to justify the dismissal.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Termination of employment – Claimant terminated without just cause or excuse – Company’s financial situation necessitated redundancy – Court held that the burden of proof lies on the Company to demonstrate just cause for termination – Claimant’s role deemed redundant due to lack of digital skills – Termination benefits paid. (Paras 4, 24, 33)
(B) Burden of Proof – The Company must prove that dismissal was with just cause or excuse – If dismissal is not disputed, the burden lies on the employer. (Paras 11, 23)
(C) Redundancy – Redundancy does not imply the job no longer exists; it may arise from the need for fewer employees – The employer has the right to reorganize business as deemed necessary. (Paras 26, 28)
Facts of the case: The Claimant was terminated from her position as Assistant Manager-Corporate Communications due to redundancy, following a notice issued by the Company citing financial difficulties and the need to reduce workforce. (Paras 4, 6)
Findings of Court: The Court found that the Company had established that the Claimant's termination was justified based on financial necessity and redundancy criteria. (Paras 24, 33)
Issues: Whether the termination was with or without just cause or excuse; whether the Company proved its reasons for termination. (Paras 21)
Ratio Decidendi: The Court ruled that the Company had met its burden of proof, demonstrating that the Claimant's position was genuinely redundant due to a shift towards digital operations. (Paras 24, 33)
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 ("Act") arising out of the termination of Laviinia Dhanagunan ("Claimant") by Taylor's University Sdn Bhd ("Company") on the 31 December 2019.
[2] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of termination by the Company on 31 December 2019.
[3] This Court considered the notes of proceedings, documents and cause papers in handing down this Award namely:
(a) Statement of Case dated 3 September 2020
(b) Statement in Reply dated 16 October 2020
(c) Rejoinder dated 26 October 2020
(d) Claimant's Bundle of Documents - CLB1-4
(e) Company's Bundle of Documents -COB1-4
(f) Claimant's Witness Statement - CLW1S (Laviinia Dhanagunan)
(g) Company's Witness Statement - COWS1 (Chee Lye Yee)
(h) Company's Witness Statement - COWS2 (Low Poh Yan)
(i) Company's Witness Statement - COWS3 (Justina Prisca Ngui)
(j) Company's Witness Statement - COWS4 (Foo Kian Beng)
(k) Claimant's Written Submission and Reply
(l) Company's Written Submission and Reply
Background
[4] The dispute before this Court is the claim by the Claimant that she had been terminated from his employment without just cause or excuse by the Company on the 31 December 2019.
[5] By a Letter of Appointment dated 15 January 2013, the Claimant was offered employment with the Company as Assistant Manager-Corporate Communications. The Claimant's last drawn salary was RM6,463.00 per month.
[6] On 27 September 2019, the Company issued Notice of Redundancy ("NOR") to the Claimant informing her that she is being terminated from her employment with effect from 31 December 2019 due to the Company's financial situation and the need to reduce its workforce. On 1 November 2019, the Company issued another NOR for the revised termination benefits.
[7] The Company had given the Claimant termination benefits which amounted to RM44,917.85.
[8] The Claimant contended that the Company's retrenchment exercise was done in bad faith and without just cause or excuse.
The Duty Of The Industrial Court
[9] The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd, [1988] 1 MLJ 92 held that:
"When the Industrial Court is dealing with a reference under s 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse.".
[10] The Federal Court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, [1981] 2 MLJ 129 held that:
"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse"
The Burden Of Proof
[11] The High Court in the case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor, [1998] 7 MLJ 359 held that:
"The law is clear that if the fact of dismissal is not in dispute, the burden is on the company to satisfy the Court that such dismissal was done with just cause or excuse. This is because, by the 1967 Act, all dismissal is prima facie done without just cause or excuse. Therefore, if an employer asserts otherwise the burden is on him to discharge"
The Standard Of Proof
[12] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, [2002] 3 MLJ 129, the Court laid down the principle that the standard of proof that is required is one that is on the balance of probabilities.
"Thus in hearing a claim of unjust dismissal, where the employee was dismissed on the basis of an alleged criminal offence such as theft o
