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2021 MarsdenLR 273
INDUSTRIAL COURT KUALA LUMPUR
CHRISTOPHER DASS MUNIANDY @ MATHEW – Appellant
Versus
CLASQUIN (MALAYSIA) SDN BHD – Respondent
Award No: 1393 of 2021 [Case No: 22/4-237/19]
Mutual termination requires consensus and free will; the burden of proof lies with the employee to establish dismissal. No dismissal occurred as the agreement was entered voluntarily.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal and mutual separation – The claimant alleged dismissal after signing a Deed of Settlement, while the company argued for mutual termination – The court held that there was no employment dismissal as the claimant willingly entered into the agreement. (Paras 24, 25, 48)
(B) Burden of Proof – The burden lies with the claimant to prove dismissal when disputes arise on whether it was with or without just cause – The claimant failed to meet this burden, thus leading to dismissal of the case. (Paras 24, 49)
Facts of the case: The claimant was employed as Country Manager and claimed to have been dismissed under duress after signing a Deed of Settlement post-negotiation. The company contested asserting mutual consent leading to cessation of employment. (Paras 5-22)
Findings of Court: The court found no dismissal occurred due to mutual agreement and that the claimant did not provide evidence of coercion or duress. (Paras 47-48)
Issues: Whether there was a dismissal and if so, whether it was with just cause. (Paras 25)
Ratio Decidendi: Mutual agreement supersedes claims of dismissal if entered willingly and without duress. The burden to prove dismissal rests on the employee in disputed cases. (Paras 24, 48)
Result: The claimant's case is dismissed.
[1] The Ministerial reference in this case required the court to hear and determine the claimant's complaint of dismissal by the company on 18 June 2018.
Procedural History
[2] The court received the letter pertaining to the Ministerial reference under s 20(3) of the Industrial Relations Act 1967 on 8 March 2019.
[3] The matter was fixed for mention on 17 April 2019, 17 May 2019, 23 August 2019, 20 January 2020, 24 February 2020, 1 October 2020 and 3 February 2021.
[4] The trial proceeded on 26 April 2021, 27 April 2021 (via e-hearing) and concluded on 3 August 2021.
The Parties' Position On The Merits
(a) The Claimant
[5] The claimant commenced his employment with the company as a Country Manager on 21 September 2012 with a gross annual salary of RM182,000.00 along with a monthly car allowance of RM1,167.00 per month and fuel allowance of RM900.00 per month.
[6] The claimant contends that sometime in April 2018, the claimant got into a disagreement with one Mr Fulvio Moletti regarding a decision made by the claimant involving a staff, one Ms Uma Devi.
[7] The claimant was thereafter invited to France by one Mr Quentin Lacoste (COW-1) on the pretext of having a discussion and then was served with a draft Deed of Settlement by the company. There were no other alternatives provided for the claimant.
[8] The claimant proceeded to negotiate a Deed of Settlement wherein he had also sought a written explanation on the reasons for his termination/dismissal as well as a reference letter from the company. However, the claimant's requests were never entertained nor responded to by the company.
[9] The claimant was then, via a Deed of Settlement executed on 18 June 2018, terminated by the company who had failed to produce any proper reason for the termination whatsoever.
(b) The Company
[10] The company contends that as the Country Manager, the claimant was holding the highest management position based in Malaysia. In such a capacity, the claimant was responsible for the financial growth of the business under his leadership and governance including but not limited to:
i. optimising growth and results;
ii. promoting Clasquin Services and developing business, in compliance with the Clasquin Group Strategy and General Policy;
iii. being fully responsible for the office and Operations Administrations; and
iv. following up and developing the key accounts of the geographical zone where the company is or may be operating.
[11] Between 8 November 2017 and 18 June 2018, the claimant reported to the Regional Managing Director based in Singapore, ie Mr Fulvio Moletti.
[12] During the time that the claimant was the Country Manager, and under his leadership, the company performed poorly financially and there were consecutive losses over successive years, where the net result Earnings Before Interest And Tax ("EBIT") was at a constant loss. As a Country Manager, the claimant ought to have been fully aware of the dismal performance of the company but yet he failed to take any action to rectify matters.
[13] Aside from contractually agreed bonus payments on 2012 and 2013, no bonuses were paid out thereafter to the claimant nor did he receive any salary increments during his tenure of employment in the company.
[14] Towards the last quarter of 2017 and the first quarter of 2018, the claimant failed to respond to the instructions and directions of the Regional Managing Director (ie Mr Fulvio), and inquiries and work requests were not attended to. Several discussions were held with the claimant in efforts to have the claimant take positive and affirmative action to address the critical situation in the company's dismal performance. The claimant however remained adamant and failed to respond positively or engage in the agreed actions.
[15] After a period of time, the claimant:
i. remained unwilling to adhere to instructions, resulting in a breakdown of trust and communications;
ii. acted against the instructions of his superior;
iii. failed to achieve
