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2021 MarsdenLR 3291
INDUSTRIAL COURT KUALA LUMPUR
PHILOMINA FF SILVARI – Appellant
Versus
DAITO ASIA DEVELOPMENT (M) SDN BHD – Respondent
Award No: 455 Of 2021 [Case No: 22(6)/4-557/20]
The court ruled that reaching retirement age of 60 ends employment, and failure to object to policies limits wrongful dismissal claims.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Minimum Retirement Age Act 2012 – Claimant's employment terminated upon reaching retirement age of 60 on 14 July 2019; no mention of retirement age in initial employment letter held not to invalidate Company's policy – Claimant failed to prove wrongful dismissal. (Paras 24-30, 50-52)
(B) Terminology and procedure for retirement – Court reaffirmed that employee agreements must be adhered to, and failure to object to known policies invalidates claims of wrongful termination. (Paras 6-9, 24-30)
(C) Evidential burden – Claimant did not provide sufficient evidence supporting claims of discrimination regarding retirement past the age of 60 or entitlement to post-retirement benefits. (Paras 46-49)
Facts of the case: The Claimant, employed for over 16 years as a Personal Assistant, contended wrongful dismissal for not being allowed to continue post-60, while the Company asserted the retirement was in accordance with its policy established prior to her reaching retirement age.
Findings of Court: The Court found that the Claimant voluntarily left her position upon reaching retirement age and thus her case was dismissed.
Issues: The key issues revolved around whether there was a dismissal or retirement and whether the termination was justifiable.
Ratio Decidendi: The Court held that employment naturally ceases once the retirement age is reached, particularly when the employee acknowledged receipt of correspondence regarding the retirement policy.
Result: Claimant's case dismissed.
AWARD
[1] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 15 July 2019.
I. Procedural History
[2] The Court received the letter pertaining to the Ministerial reference under s 20(3) of the Industrial Relations Act 1967 on 27 February 2020.
[3] The matter was thereafter fixed for mention on 24 July 2020 and 8 September 2020 before the learned Chairman of Court 6, Tuan Gulam Muhiaddeen Bin Abdul Aziz.
[4] Upon the transfer of Tuan Gulam Muhiaddeen Bin Abdul Aziz to the Advisory Board, Prime Minister's Department on 15 August 2020, the matter was fixed for mention before the learned Chairman Tuan Syed Noh Bin Said Nazir @ Nadzir on 6 October 2020.
[5] Pursuant to the directions of the Honourable President of the Industrial Court, the case was transferred from Court No. 6 to this Court, ie Court No. 22, on 20 October 2020 for the purposes of hearing the matter and handing down an Award.
[6] Thereafter, a further mention date was fixed for 3 February 2021 before me wherein the Claimant had raised an objection pertaining to the filing of the Forms A and B by the Company on the grounds that the Company had not authorised the solicitors, Messrs. Shearn Delamore & Co. to act for them in the matter and that it was in fact Hotel Le Meridien who had done so. This Court had disallowed the Claimant's objection as the Forms A and B clearly showed that the Company had authorised Messrs. Shearn Delamore & Co. to represent them. The Claimant was also unable to produce any evidence to substantiate her allegation. The only evidence proffered was via her oral representations before the Court, which at best amounts to hearsay. Upon the advice of the Court for the Claimant to seek legal representation, the Claimant instead remained steadfast and maintained that she is unable to engage lawyers and that she is ready to conduct the case herself.
[7] The trial proceeded and concluded on 17 February 2021 itself with the Claimant being her own witness and Mr. Michael Hamilton Delargy being the Company's witness. Parties were thereafter directed to file their Written Submissions on or before 3 March 2021 and Reply Submissions on or before 10 March 2021.
[8] On 18 February 2021, ie after the conclusion of the trial, the Claimant wrote a letter to the Court seeking a discovery application against the Company for the names of employees who were still in service with the Company/Hotel Le Meridien before and after 15 July 2019 despite attaining the age of over 60 years old. The Court had replied to the Claimant's letter advising her that the application could not be allowed as the trial had already concluded. Any such application ought to have been made before the commencement of the trial. The Claimant however persisted with her discovery application by sending more letters to the Court seeking the same on 24 February 2021 (ie Claimant's letter dated 21 February 2021) and 25 February 2021 (ie Claimant's letter dated 24 February 2021). This issue of the Claimant's belated discovery application will be dealt with further in the decision of the Court below.
[9] The parties filed their written submissions as follows:-
i. Claimant filed her Written Submission on 2 March 2021 ("Claimant's Written Submission");
ii. Company filed their Written Submissions on 2 March 2021 ("Company's Written Submission");
iii. Claimant filed her Written Submission In Reply on 10 March 2021 ("Claimant's Written Submission In Reply");
iv. Company filed their Submission In Reply on 9 March 2021 ("Company's Written Submission In Reply").
[10] On the mention date of 11 March 2021, Counsel for the Company objected to 2 documents that were belatedly produced by the Claimant as Exhibit 1 and Exhibit 2 in the Claimant's Written Submission In Reply. Counsel for the Company submitted that the said 2 documents were never produced before or even during the trial, but rather at the submissions stage. Co
