The court emphasized that only actual post-dismissal earnings should be deducted from backwages, applying a 40% deduction to ensure equitable compensation following an unjust dismissal.

AWARD

Augustine Anthony:

The Reference

[1] This is a reference dated 8 September 2020 by the honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the dismissal of JUNAIDY BIN SULAIMAN ("Claimant") by PPG COATINGS (MALAYSIA) SDN BHD ("Company") on the 18 February 2020.

[2] Pursuant to the directions of this Court , the parties in this matter filed their respective submissions dated 23 July 2024 (Claimant's written submissions), 1 August 2024 (Company's written submissions), 5 August 2024 (Errata on Claimant's Written Submission dated 23 July 2024), 16 August 2024 (Claimant's written submissions in reply) and 19 August 2024 (Company's written submissions in reply).

[3] This Court considered all the notes of proceedings in this matter, documents, the written submissions of the parties and oral clarifications by the counsel in handing down this Award.

Introduction And Background

[4] By an Award No: 2534 of 2022 [[2022] MELRU 2534] dated 29 November 2022 (the "said Award"), the then learned Industrial Court chairman handed down an Award in favour of the Claimant in the case No: 11/4-2084/20. The facts of the case and the evidence led in the Court are all well documented in the "said Award" and the same is not disputed thus it will not be necessary for this Court to repeat the same herein.

[5] As part of the "said Award" and amongst other in the computation of the backwages awarded to the Claimant, the then learned chairman made a 65% deduction on the backwages awarded to the Claimant from the maximum of 24 months that the Claimant was entitled pursuant to s 30(6), s 30(6A) and the Second Schedule of the "The Act" therein.

[6] The Claimant dissatisfied with the 65% deduction made on the 24 months backwages awarded, filed a judicial review of the "said Award" of the then learned chairman. The High Court heard the submissions of the learned counsel for the Claimant and the Company on the 29 January 2024 and the decision of the High Court was delivered on the 18 March 2024.

[7] Amongst other, the High Court allowed the Claimant's judicial review in part on the "said Award" and ruled that the then learned chairman's computation of bakwages awarded to the Claimant wherein a deduction of 65% made on the maximum backwages of 24 months as permitted under "The Act" was manifestly excessive under the law.

[8] In view of the above, the High Court remitted the case No: 11/4-2084/20 to the Industrial Court to determine the appropriate backwages to be awarded to the Claimant as provided for under the law. Hence, this case is now before this Court for the determination of appropriate backwages to be awarded to the Claimant in accordance with the law and pursuant to the Order of the High Court .

Issue Before This Court

[9] The sole issue before this Court is:

(i) What is the appropriate backwages to be awarded to the Claimant.

Undisputed Facts

[10] These are the undisputed facts:

(i) The Claimant's last drawn salary was RM28,781.00;

(ii) The Claimant was dismissed on the 18 February 2020;

(iii) The hearing of the matter was completed by the then learned chairman on the 6 May 2022 (2 years after the Claimant's dismissal);

(iv) The Award was handed down by the then learned Chairman on the 29 November 2022;

(v) The Claimant, after dismissal found employments elsewhere but were irregular in nature;

(vi) After his dismissal the Claimant had post dismissal income of about RM230,000.00.

Fact That Cannot Be Disputed

[11] That the deduction of 65% totaling RM448,983.60 from the total backwages awarded (amount calculated based on the Claimant's last drawn salary of RM28,781.00 for 24 months which amounts to RM690,744.00) was excessive based on the High Court Order dated 18 March 2024.

Evaluation Of Evidence And The Findings Of This Court

[12] This Court having read the submissions of the parties, had called both the learned counsel for the Claimant and the Company for further clari