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2022 MarsdenLR 87
INDUSTRIAL COURT PENANG
SARANYAH HANDROU – Appellant
Versus
NATIONGATE SOLUTION (M) SDN BHD – Respondent
Award No: 1680 Of 2022 [Case No: 18/4-617/20]
A company's discontinuation of a transport service does not constitute an unlawful dismissal unless expressly included in the employment contract.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Claim for unlawful dismissal following cessation of employment transport service – Claimant alleged wrongful termination of employment by the Company – Court found no evidence to support termination; the Company’s decision to terminate transport was not a dismissal and did not breach any term of employment contract – Claimant failed to prove that she was dismissed – Claimant's claims dismissed. (Paras 30, 32, 83, 108)
(B) Burden of Proof – In cases of disputed dismissal, the burden lies with the claimant to establish dismissal, not with the employer to show just cause. (Paras 32, 38)
(C) Contractual Obligations – Provision of transport service not a contractual obligation, but a goodwill gesture; absence of written agreement constitutes no violation of employment terms. (Paras 81, 83)
(D) Evidence Credibility – Testimonies of the Company’s representatives were found credible as they were supported by evidence; claimant's inconsistent statements undermined her credibility. (Paras 75, 106)
AWARD
Reference
[1] This is a Ministerial reference made on 21 February 2020 under s 20(3) of the Industrial Relation Act 1967 ("the Act") arising out of the dismissal of Saranyah a/p Handrou (the "Claimant") by Nationgate Solution (M) Sdn Bhd ("the Company") on 1 November 2019.
[2] This is a reference made on 21 February 2020 by the Honourable Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 (Act 177)("the Act") arising out of the dismissal of SARANYAH A/P HANDROU ("the Claimant") by NATIONGATE SOLUTION (M) SDN BHD ("the Company") on 1 November 2019.
Introduction
[3] This case commenced on 24 March 2021 and was jointly heard together with four other unconsolidated cases upon the agreement of the Learned Counsel for the Company and the representative for the Claimant as the alleged dismissal of the four individuals / Claimants arose from identical facts and sequence of events. The other four Claimants whose cases were heard together are as follows:
1. Jeyaipreyaa a/p Yellumalai in Case No 18/4-614/20
2. Yogeswari a/p Erajalingam in Case No 18/4-616/20
3. Nalenie a/p Erajalingam in Case No 18/4-618/20
4. Usha Nandini a/p Tangamuthu in Case No 18/4-619/20
[4] I was directed to hear the continuance of this case until completion upon my transfer to Court 18 at the Penang Industrial Court effective 2 May 2022. It is amply clear from the notes of evidence of the previous Learned Chairman, that the Company's first two witnesses, Ang Kim Hock (COW1) and Ooi Boon Heng (COW2) had already given their evidence that is to say, that the proceeding began with the Company's witness instead of the Claimants' in view of the fact that dismissal is disputed. Parties however informed the Court that they have no issues and are in agreement with the Company's case being heard first and requested to proceed with the other two Company's witnesses to complete the Company's case. In the circumstances, there should not be any unfavourable issues raised later on against any party.
[5] In addition, parties agreed that the testimony of Usha Nandini a/p Tangamuthu (CLW 1) in this instant case, as well as that of Jeyaipreyaa a/p Yellumalai (CLW2) be adopted as evidence in all the other cases heard together.
Claimant's Pleaded Case
[6] The Claimant commenced employment with the Company effective 8 February 2019 as Operator (Grade 1) with a basic salary of RM1,100.00 a month.
[7] The Claimant avers that her duties involved operating machines to complete production in accordance with the required quality according to schedule or as instructed by her supervisor.
[8] By letter dated 4 September 2019, the Claimant was confirmed in her position effective 8 May 2019.
[9] From the commencement date of her employment with the Company, the Claimant was provided with free transport from her home to work and back home and pleaded that providing the transportation was one of the term of her employment contract with the Company.
[10] The Claimant contended that on 4 October 2019 at or about 4.00pm, the Claimant was called up by the Company's Human Resources Assistant Manager, one Mr Ang Kim Hock known as Mr Alex, (COW1) to his office and was told that her services was no longer needed by the Company and that she would be terminated effective 31 October 2019 without providing any reason. On 9 October 2019, COW1 demanded that the Claimant tender her resignation immediately without giving any reason for his demand.
[11] Dissatisfied with COW1's demands for her resignation, the Claimant wrote to the Company's Human Resources Manager, Ms Yong Soo Fuen (COW4) a letter dated 9 October 2019 (reproduced below) setting out the unlawful demand for her resignation. The Claimant claimed that she did not receive any reply to her letter dated 9 October 2019.
[12] The Claimant averred that she had continued her employment with the Company until 31 October 2019 but on 1 November 2019, being her working day, as she waited for the Company's transport to go to work
