Back
2024 MarsdenLR 1633
INDUSTRIAL COURT KUALA LUMPUR
GARY JOSEPH NEEDHAM MILLWARD – Appellant
Versus
TARPON ENERGY SERVICES ASIA PACIFIC SDN BHD – Respondent
Award No: 146 Of 2024 [Case No: 13(2)(12)13/4-3036/20]
The employer must prove genuine redundancy for dismissal; failure to do so results in wrongful termination and entitlement to compensation.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Claimant's dismissal claimed to be due to redundancy - Burden of proof on employer to establish redundancy - Court found no genuine redundancy and ruled dismissal was without just cause. (Paras 20, 28, 31, 57)
(B) Employment Law - Retrenchment - Court emphasized the need for genuine reasons and compliance with accepted standards in retrenchment exercises. (Paras 30, 54)
Facts of the case:
The Claimant was employed by the Company since July 2014 and was retrenched on 7 April 2020, allegedly due to redundancy after a management buy-out. The Claimant contended that the Company was profitable and had no genuine reason for termination.
Findings of Court:
The Court concluded that the Claimant's dismissal was not justified, and the Company failed to prove the redundancy. The Claimant's claim was allowed.
Issues: The main issues included whether there was a genuine need for reorganization, if redundancy existed, and whether the Company complied with retrenchment procedures.
Ratio Decidendi: The Court held that the Company did not provide sufficient evidence to establish redundancy, and the dismissal was deemed without just cause or excuse.
Result: The Claimant awarded RM785,078.00 for wrongful dismissal.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Gary Joseph Needham Millward (hereinafter referred to as "the Claimant") by Tarpon Energy Services Asia Pacific Sdn Bhd (hereinafter referred to as the Company") on 8 December 2020.
[2] The Reference, in this case, required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 7 April 2020.
I) Procedural History
[3] The matter was fixed for mention on 11 January 2021, 16 March 2021, 19 July 2021, 30 August 2021, 11 February 2022, 17 October 2022, and 14 November 2022.
[4] The case was first heard before the then-learned judge Chairman of Court 2 Dato Muhammad Bukhari Bin Abd Hamid on 13 September 2021, 14 September 2021, 4 October 2021, 1 November 2021, 2 November 2021, and 9 June 2022.
[5] The Trial proceeded to be heard before the then-learned judge Chairman of Court no 13, Dato Muhammad Bukhari Bin Abd Hamid on 21 July 2022. The written submission was filed thereafter.
[6] Due to the retirement of the learned Chairman Dato Muhammad Buhkari Bin Abd Hamid, effective from 25 November 2022, the then-learned President of the Industrial Court instructed me (ie, the current Chairman of Court 13, Kuala Lumpur) to hand down an award for this case.
[7] The matter was called for clarification and oral submission on 10 February 2023 7 July 2023. Both parties have no objection to me handing down this award.
II) Cause Papers, Bundle Of Documents, Witness Statements, And Submission
[8] This Court takes cognizance of the notes of proceedings and the following pleadings, evidence, documents, and submission while handing down this Award:
a. Statement of Case dated 2 February 2020
b. Statement in Reply dated 15 March 2020
c. Rejoinder dated 14 April 2021
d. Claimant's Bundle of Documents ("CLB")
e. Company's Bundle of Documents ("COB-1")
f. Company's Additional Bundle of Documents ("COB-2")
g. Witness Statement of Gary Joseph Needham Millward ('CLWS-1")
h. Witness Statement of Claimant (Matthew Lucien Seale) ("COWS-1")
i. Supplementary Witness Statement of Tan Ching Wee ('CLWS-2(b)")
j. Notes of Proceedings
III) The Facts Of The Case As Presented By The Parties
A) The Claimant's Case
The Claimant in their Statement of Case and Rejoinder pleaded the following:
[9] The Claimant commenced his employment with the Company on the 7th of July 2014.
[10] The Claimant evidenced the Claimant's Contract of Employment dated 15 January 2019. (see CLB, p 1)
[11] The Claimant's last drawn salary amounted to RM45, 482.00 (basic salary RM38,150.00) plus housing allowance (RM4500.00) and traveling allowance (RM2,832.00).
[12] On 31 December 2019, the Company underwent a management buy-out a management team consisting of Shane Donnachie, John O' Keeffe and Matt Seale.
[13] At the time of take-over, the Management team gave assurance to all employees of the Company as follows:
i) Tarpon, even whilst a part of the PTW Group, was very much a standalone organisation so the ongoing changes will be minimal and seamless
ii) the management buy-out would safeguard "more than 300 jobs";
iii) that it will be business as usual for everyone
iv) that "there will be no redundancies; and
v) that there are plans "to add some new additions to the team very shortly to service our growing backlog and facilitate the continued growth of the Company in both our primary regions"
[14] After the management takeover, the Claimant was given the new role of Business Development Manager of APAC from May 2019 until January 2020.
[15] The Claimant was also reassigned to another role of Interim Country Manager of Indonesia; it is said to be the Company's sister Company.
[16] The letter of retrenchment was received by the Claimant on 7 April 2020, the Claimant was not given any indication that his position was redundant.
[17] The Claimant contends that the Company is in the most profitable stage and has no genuine reason for the terminati
