AWARD

Rajendran Nayagam:

[1] This matter was referred to the Industrial Court by way of a Ministerial reference under s. 20(3) of the Industrial Relations Act 1967 on 30 April 2004, arising out of the dismissal of Ms. Thilagavaty d/o S.R. Canagasingam ("the claimant") by AmBank (M) Bhd (formerly known as MBF Finance Bhd) ("the company").

Introduction

[2] This case was originally assigned to Court no. 22 which was then presided over by Y.A. Hariraman s/o Palaya. As such, the trial of the case commenced before the said Chairman. At the trial, the claimant started the case and it was concluded by the company giving evidence. But before the learned Chairman could hear the submissions, he had to make an early exit from the Industrial Court. As such, on 2nd November 2006 the case was re-assigned to Court no 26. Although I had not heard the case, I have had the benefit of the submissions of the parties. I now proceed to give the award.

Facts

[3] The claimant now aged 45 years, had joined the company as a clerk on 1 April 1983. She then rose through the ranks to become the Head of Operations of the Banting Branch. She held the number 2 position in the Branch.

[4] Unknown to the claimant, two incidents were to occur in her life, which would bring her career to a halt. The 1st incident took place on 24 December 2001. On that fateful day, when the claimant was going home after office, she was hit by a motorcar while crossing the road. She fractured her right arm and sustained other bodily injuries. She was traumatized. As a result, she was given 2 1/2 months leave. When she resumed work on 7 March 2002, the doctor certified that she could only perform light duties from 7 March 2002 until 20 March 2002. Even though the claimant had reported for work, she had not recovered completely. She was still suffering from a lingering trauma and weak condition.

[5] The 2nd incident took place when she reported for work on 7 March 2002. When she went back to her office, she was shocked to find that all the files and things in the office had been put in boxes ready for shifting to a new place. She was then informed that MBF Finance Bhd had merged with Arab-Malaysian Finance Bhd and that the staff were all preparing to move into a new office in the merged entity called Am Finance Bhd. In this situation, the claimant was given an application form to apply for early retirement under a scheme called Voluntary Separation Scheme (VSS). She was informed that the last day for the VSS application was 14 March 2002, which meant that she had about (7) days to think about the matter. The claimant decided to opt for early retirement. What prompted her to apply was her health condition at the material time. She feared that it may deteriorate in the future and she may not be able to function as a good employee.

[6] On 30 April 2002 the company responded to the claimant's VSS application and informed that her application had been accepted and her effective release date was 30 July 2002. However, on 21 May 2002 the claimant had a change of mind and wrote to the company withdrawing her application for VSS on the grounds that she was experiencing a speedy recovery and her injured arm was less painful. She was now convinced that she could overcome her disability and continue to work.

[7] On 5 June 2002 the company responded and informed the claimant that her appeal could not be considered. The claimant then approached her Branch Manager in Banting to support her 2nd appeal. The Branch Manager supported her appeal by stating that the company was facing staff shortage and the claimant was a good worker. On 15 July 2002, the claimant wrote yet another letter, stating that she was willing to go on a transfer to Seremban to fill a vacancy there. When the dateline of 30 July 2002 came for claimant to leave her employment, her Branch Manager allowed her to continue to work, until the outcome of her appeal. On 5 August 2002, the company responded rejecting her 2nd appeal and informed tha