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2023 MarsdenLR 23
INDUSTRIAL COURT KUALA LUMPUR
MOHD NORLI MD SALEH – Appellant
Versus
ROADCARE (M) SDN BHD & ORS – Respondent
Award No: 1873 Of 2023 [Case No: 4/4-702/22]
The court ruled that multiple companies in a corporate group can be treated as a single employer for employment rights, emphasizing the necessity of proper documentation and the burden of proof on employers to show just cause for dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal without just cause - Claimant employed under multiple companies in the Protasco group - Claimant's employment status and redundancy questioned - Court found that Claimant remained employee of all companies despite transfer to KPS-HCM - Dismissal was without just cause or excuse, and companies held jointly liable. (Paras 51, 60, 61)
(B) Burden of proof - Employers must prove dismissal was with just cause - Claimant's evidence unchallenged; employers failed to establish redundancy - Court emphasized the importance of proper employment documentation and corporate responsibility. (Paras 19, 50)
Facts of the case:
The Claimant was employed by Roadcare and transferred to HCME and KPS-HCM without proper documentation, leading to a claim of wrongful dismissal after being informed of redundancy. The Claimant alleged unfair labor practices by the companies involved. (Paras 5-10, 13-15)
Findings of Court:
The Claimant was found to be an employee of Roadcare, Protasco, and HCME, and his dismissal was deemed without just cause. The companies failed to prove any legitimate redundancy. (Paras 51, 60)
Issues: The main issues included the determination of the Claimant's employment status across the companies, the legitimacy of the redundancy claim, and the responsibility for dismissal. (Paras 10, 11, 50)
Ratio Decidendi: The court held that the intertwined nature of the companies justified treating them as a single employer for the purposes of the Claimant's employment rights, emphasizing the need for clear employment documentation. (Paras 30, 45)
Result: The Claimant's claims against Roadcare, Protasco, and HCME succeeded; they were ordered to pay RM645,392.00 as compensation. (Paras 61)
| Table of Content |
|---|
| 1. reference by director general regarding dismissal. (Para 1 , 2 , 3 , 4) |
| 2. claimant's employment history and dismissal context. (Para 5 , 6 , 7 , 8 , 9 , 10) |
| 3. companies' argument regarding employment status. (Para 11 , 12) |
| 4. summary of claimant's case. (Para 13 , 14 , 15) |
| 5. role of the industrial court in dismissal cases. (Para 16 , 17 , 18 , 19 , 20 , 21) |
| 6. definition and conditions of redundancy. (Para 22 , 23 , 24) |
| 7. court's evaluation of evidence and findings. (Para 26 , 29 , 30 , 31 , 32) |
| 8. corporate structure and employee status. (Para 33 , 34 , 35 , 36 , 37 , 38) |
| 9. claimant's employment continuity and corporate veil lifting. (Para 39 , 40 , 41 , 42 , 43 , 44 , 45) |
| 10. conclusion on redundancy and dismissal. (Para 46 , 47 , 48 , 49 , 50) |
| 11. court's order regarding dismissal without just cause. (Para 51 , 52 , 53) |
| 12. final remedy and compensation awarded. (Para 54 , 55 , 56 , 57 , 58 , 59 , 60) |
The Reference
[1] This is a reference dated 21 March 2022 by the Director General of Department of Industrial Relations, Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of MOHD NORLI BIN MD SALEH (Claimant) by ROADCARE (M) SDN BHD and 3 OTHERS (Companies) on the 1 September 2021.
[2] Upon the application by the Claimant and pursuant to an Interim Award No: 1942/2022 dated 29 August 2022, the instant case No: 4/4-702/22 (Mohd Norli Bin Md Saleh v. Roadcare (M) Sdn Bhd) was consolidated with cases No: 4/4-703/22 (Mohd Norli Bin Md Saleh v. Protasco Berhad), No: 4/4-704/22 (Mohd Norli Bin Md Saleh v. KPS-HCM Sdn Bhd) and No: 4/4-705/22 (Mohd Norli Bin Md Saleh v. HCM Engineering Sdn Bhd) and these cases were heard together thereupon. For convenience the Companies in the above cases may also be referred to in the following manner whenever the need arises:
(i) Roadcare (M) Sdn Bhd as "Roadcare" or "1st Company";
(ii) Protasco Berhad as "Protasco" or "2nd Company";
(iii) KPS-HCM Sdn Bhd as "KPS-HCM" or "3rd Company";
(iv) HCM Engineering Sdn Bhd as "HCME" or "4th Company".
[3] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions namely the Claimant's Written Submissions dated 19 June 2023, the Companies' Written Submissions in respect of Cases No: 702/22, 703/22 & 705/22 dated 23 June 2023, the Company's Written Submissions in respect of Case No: 704/22 dated 23 June 2023, the Company's (KPS-HCM) Written Submissions in Reply in respect of Case No: 704/22 dated 5 July 2023 (against the Claimant and Companies in Cases No: 702/22, 703/22 & 705/22), the Companies'/Roadcare's Written Submissions in Reply in respect of Cases No: 702/22, 703/22 & 705/22 dated 7 July 2023 (against the Claimant and KPS-HCM) and the Claimant's Written Submissions in Reply dated 12 July 2023.
[4] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:
(i) The Claimant's Statements of Case dated 31 May 2022;
(ii) The Companies' Statements in Reply dated 22 July 2022 (For Cases No: 702/22, 703/22 & 705/22);
(iii) The Company's Statement in Reply dated 19 July 2022 (For Case No: 704/22);
(iv) The Claimant's Amended Rejoinders dated 22 March 2023;
(v) The Claimant's Bundle of Documents - CLB1, CLB 2, CLB3, CLB4& CLB5;
(vi) The Company's Bundles of Documents (for Case No: 704/22) - COB1 & COB2;
(vii) The Claimant's Witness Statement - CLW - WS (Encik Mohd Norli Bin Md Salleh;
(viii) Companies' Witness Statement for Cases No: 702/22, 703/22, & 705/22 - COW1- WS (Puan Norhadina Binti Saadon);
(ix) Company's Witness Statement for Case No: 704/22 - COW2- WS (Encik Ahmad Syukri Bin Abdullah);
Introduction
[5] The dispute before this Court is the claim by Mohd Norli Bin Md Saleh (The Claimant) that he was dismissed from his employment without just cause or excuse by Roadcare, Protasco, KPS-HCM and HCME (the 1st Company, the 2nd Company, the 3rd Compan
