The court established that a genuine redundancy can occur due to economic downturns, necessitating retrenchments without constituting wrongful dismissal.

Reference

[1] This is a reference made on 17 March 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 ('the Act') arising out of the dismissal of Lai Swee Kein ('the claimant') by PST Travel Services Sdn Bhd ('the company') on 23 August 2020.

[2] The Ministerial reference in this case before the Court requires the Court to hear and determine the claimant's complaint of dismissal by the company on the 23 August 2020. Together with the claimant there are four (4) other claimants namely Lee Guat Yong (Case No 18/4-890/21), Tan Siew Siew (Case No 18/4-891/21), Lau Shao Ping (Case No 18/4-892/21) and Tan Jiun Ying (Case No 18/4-894/21) who had their employment terminated on grounds of redundancy. Hence at the request of both parties all five (5) ministerial references were heard together by this Court. This Court will hand down separate awards for each claimant as each claimant had given evidence separately as the facts differed from each other.

Brief Background Facts Of The Case

[3] The company's principle business is providing a whole range of travel services which includes air-ticketing, hotel reservations and tour bookings for inbound and out bound travels.

[4] The claimant's pleaded case as contained in her Statement of Case dated 28 July 2021, is that she joined the company as a Reservation/ Ticketing Executive on the 1 January 2003 and was paid a salary of RM1,500.00 per month. Subsequently she was confirmed as Reservation/Ticketing Executive and was based at the company's branch office in Penang. The claimant's position was re-designated from Reservation/Ticketing Executive position to Travel Counsellor sometime in 2008. She continued to be in the same position until her termination from employment on the 23 August 2020 which took effect on 23 July 2020 (as the claimant was not required to work out her notice period). Her last drawn basic salary as pleaded was RM4,300.00 per month.

[5] The claimant was terminated from employment on the grounds of redundancy due to the Covid-19 pandemic. In her Statement of Case the claimant pleaded that due to the two Movement Control Orders (MCO's) announced by the government she was instructed to work from home by the company and for those staffs who were not working from home, the company had instructed them to take unpaid leave or annual leave (memos dated 17 March 2020 and 27 March 2020 COB-2 p 4-7). Further the claimant pleaded that the company through a memo dated 28 April 2020 (COB-2 p 8-12) had deducted her salary by 50% for the months of April and May 2020 without her consent.

[6] She claimed that the company by way of a memo dated 2 May 2020 (COB-2 p 14-16), instructed her to report for work at the company's branch office with effect from 4 May 2020 on rotation basis and by way of memo dated 25 June 2020 (COB-2 p 17-19) the company instructed her to come to work as normal, at a reduced salary of 50%.

[7] By way of memo dated 26 June 2020 (COB-2 p 20-23) the claimant pleaded that the company had announced a 35% salary cut for the month of June until December 2020 and requested her consent for the deduction. She claimed that one Ms Lilian Chung (COW-1) informed her that the company would only pay her June salary only on the condition that she accepts the said deduction. The claimant pleaded that she refused to accede to the request.

[8] There after the claimant pleaded that since almost all the staff at the Penang Branch had refused to consent to the 35% salary deduction, the company via email dated 10 July 2020 (COB-2 p 26) informed all the staff at the Penang Branch to report directly to the General Manager, Ms Cathy Lui. An email dated