An employer's discretion to retire an employee past the statutory minimum retirement age is valid even if no contractual retirement age is specified.

(A) Reference

[1] This is a Ministerial reference to the Industrial Court under s 20(3) of the Industrial Relations Act 1967 ( IRA ) made on 30 April 2021 for an Award in respect of the dismissal of Manokaran A/L S Mahalingam against Hiap Hoe Cranes & Engineering (M) Sdn Bhd.

(B) Introduction

[2] The parties in this matter filed their respective written submissions and submissions in reply on 3 October 2022, 1 November 2022, 3 November 2022 and 10 November 2022.

[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:

i. The Claimant's Statement of Case dated 27 July 2021.

ii. The Respondent's Statement in Reply dated 17 August 2021.

iii. The Claimant's Rejoinder dated 7 November 2021.

iv. The Claimant's Bundle of Documents marked as CLB.

v. The Claimant's Bundle of Documents marked as COB.

vi. The Claimant's Bundle of Authorities.

vii. The Respondent's Bundle of Authorities.

viii. The Claimant's Written Submissions

ix. The Respondent's Written Submissions

x. The Claimant's Submissions in Reply

xi. The Company's Submission in Reply.

(C) The Claimant's Pleaded Case

[4] CLW1 narrated the events leading to his dismissal. He first stated that he commenced employment with the Company as a crane driver on 15 February 1986 until his dismissal on 31 October 2020. His total years of service with the Company was 34 years and eight months.

[5] The Claimant's last drawn salary before his dismissal was RM3,500.00 per month.

[6] On 31 July 2020, the Company issued a letter of retirement on him under s 5 of the Minimum Retirement Age Act 2012 (First Letter). The company had informed the Claimant that the letter would serve as an official notice on him to retire from the Company and that his last day of service is on 31 October 2020.

[7] The Claimant averred that at the time the First Letter was issued, the Claimant had reached the age of 62 years and 9 months old.

[8] Through a subsequent letter dated 23 October 2020 (Second Letter), the Company had requested the Claimant to clear his annual leave of 7 days from 25 October 2020 to 31 October 2020.

[9] The Claimant being dissatisfied with the said dismissal contended that despite reaching the retirement age of 60 years on 25 October 2017, the Company did not retire him but instead opted to employ him until his last day of service on 31 October 2020 as per letter dated 31 July 2020.

[10] The Claimant further argued that his dismissal was made without just cause and excuse as his employment contract did not provide for any clause pertaining to the age of retirement.

[11] Consequently on 19 November 2020, the Claimant filed a complaint to the Industrial Relations Department challenging his dismissal and the dispute being unresolved, was referred to the Industrial Court for adjudication. (Refer to p 5, CLB).

[12] The Claimant prays that the Court finds his dismissal wrongful and that an order for reinstatement without loss of wages, seniority and other benefits deemed fit and proper be awarded to him by the Court. (Refer to pp 3-4, CLB).

(D) The Respondent's Pleaded Case

[13] The Company did not dispute that the Claimant commenced employment with the Company as a crane operator on 15 February 1986 and that his last drawn salary was RM3,500.00 including petrol allowance of RM500.00.

[14] The Claimant who had attained the age of 63 years was then dismissed from his services by way of retirement pursuant to s 4(1) of the Minimum Retirement Age Act 2012 ( MRAA 2012) with effect from 1 November 2020.

[15] The Respondent did not dispute that the contract of employm