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2023 MarsdenLR 2836
INDUSTRIAL COURT KUALA LUMPUR
CHAN CHOON WAI – Appellant
Versus
WORLD VISION INTERNATIONAL – Respondent
Award No: 2280 Of 2023 [Case No: 11(15)(6)/4-1468/21]
The burden of proof lies on the claimant to establish dismissal; failure to prove duress in signing a Separation Agreement results in dismissal of the case.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Claimant dismissed by Company - Claimant contends dismissal was without just cause, citing duress in signing Separation Agreement - Court finds no evidence of duress; claimant's case dismissed - Burden of proof lies on claimant to establish dismissal - Separation Agreement signed voluntarily. (Paras 1, 24, 34)
(B) Employment Law - Dismissal - The Industrial Court's role is to determine if dismissal was with or without just cause or excuse - Employer must provide convincing evidence for dismissal justification - Claimant failed to prove dismissal occurred. (Paras 21, 22, 34)
Facts of the case:
The Claimant, employed since 2010, was demoted and subsequently dismissed on 25 April 2020. He alleges dismissal was forced under duress, while the Company asserts he accepted a Separation Agreement voluntarily. (Paras 6, 14, 24)
Findings of Court:
The Claimant did not prove he was dismissed; thus, the claim of unjust dismissal cannot stand. (Paras 34, 35)
Issues: Whether the Claimant was dismissed and if so, whether the dismissal was with just cause or excuse. (Paras 26, 34)
Ratio Decidendi: The court ruled that the Claimant failed to establish he was dismissed and that the Separation Agreement was entered into voluntarily without duress. (Paras 34, 35)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. court's authority and procedural context. (Para 1 , 2 , 3 , 4 , 5) |
| 2. claimant's employment history and dismissal circumstances. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 3. company's defense and rationale for dismissal. (Para 17 , 18 , 19 , 20) |
| 4. burden of proof in dismissal cases. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 5. court's findings on the claim of duress. (Para 29 , 30 , 31 , 32 , 33) |
| 6. final ruling and dismissal of the claim. (Para 34) |
Reference
[1] This is a reference dated 8 April 2021 by The Honourable Minister of Human Resources, Malaysia to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 [Act 177] in respect of the dismissal of CHAN CHOON WAI ("the Claimant") by WORLD VISION INTERNATIONAL ("the Company") on 25 April 2020.
[2] This case was previously tried and concluded by the former Chairman of Court 15, Yang Arif Tuan Iznan Ishak who had since retired from the Industrial Court. This case has now been transferred to this Court and I have been requested to prepare and deliver the Award for this case.
[3] Subsection 23(6) of Act 177 provides that during the absence of or inability to act from illness or any other cause by the Chairman, the Yang di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman. This Court, relying on subsection 23(6) of Act 177 and the principles laid down in the High Court case of Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor ; [2011] 2 ILR 251, hands down the Award for this Case.
[4] In handing down this Award the following were considered by the Court:
(a) the record of proceedings;
(b) the notes of proceedings prepared by the former Chairman;
(c) Statement of Case dated 20 July 2021;
(d) Rejoinder dated 29 November 2021;
(e) Amended Statement in Reply dated 16 February 2022;
(f) the Claimant's Bundle of Documents marked as CLB1, CLB2 and CLB3;
(g) the Company's Bundle of Documents marked as COB1 and COB2;
(h) the Claimant's Written Submission dated 31 July 2022;
(i) the Company's Written Submission dated 3 September 2022;
(j) the Claimant's Written Submission in Reply dated 29 September 2022; and
(k) the Company's Written Submission in Reply dated 18 October 2022.
[5] The Company called two (2) witnesses ie Terence Yong Chao Yun ("COW-WS1") and Stephen Langdon Franz ("COW-WS2"). Whilst the Claimant testified as the sole witness in this Case.
The Claimant's Case
[6] The Claimant commenced employment with the Company as a Service Account Manager on 8 December 2010 with a starting monthly remuneration of RM15,000.00. The Claimant's terms and conditions of employment were stipulated in the letter of offer dated 19 November 2010.
[7] The Claimant was subsequently appointed as the Service Centers Operations Manager on 7 August 2012 with the same monthly remuneration. The Claimant's terms and conditions of employment were stipulated in the letter of offer dated 31 July 2012. As the Service Centers Operations Manager, the Claimant was managing the Company's Regional IT Infrastructure with ten (10) staff, located at the Company's Regional Offices in Malaysia and Philippines, reporting to the Claimant.
[8] With effect from 1 December 2016, the Claimant was then promoted as the IT Director Service Centers with a monthly remuneration of RM18,077.00. The Claimant was managing the Company's Global IT Infrastructure with 28 staff, located at the Company's Regional Offices in Malaysia, Philippines, United States of America, Australia and Costa Rica, reporting to the Claimant.
[9] On 1 June 2017 the Claimant received an increment in his monthly remuneration ie to RM19,342.00. A few days later, ie on 6 September 2017, the Claimant was admitted to the hospital for four (4) days for acute gastritis.
[10] Despite suffering from acute gastritis, the Claimant avers he was still able to perform his work satisfactorily and was rated "Commendable" for his performance in 201
