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2024 MarsdenLR 1391
INDUSTRIAL COURT KUALA LUMPUR
LEONG YUEN WAH – Appellant
Versus
NENAS FURNITURE SYSTEMS SDN BHD – Respondent
Award No: 117 Of 2024 [Case No: 21/4-883/22]
The court ruled that an unsigned notice of termination lacks legal effect, and the claimant failed to prove dismissal, having abandoned her employment instead.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Dismissal dispute – Claimant alleged dismissal based on unsigned notice of mutual termination – Court found no dismissal proven as unsigned document lacked legal effect and was a draft for unemployment benefits – Claimant abandoned employment by failing to report to new premises after multiple reminders. (Paras 11, 12, 45)
(B) Burden of proof – In disputed dismissal cases, the burden lies on the claimant to establish dismissal – If not proven, the employer bears no burden to justify dismissal. (Paras 14, 15)
(C) Legal effect of unsigned documents – An unsigned document is a draft and lacks binding legal effect. (Paras 18, 19)
Facts of the case: The Claimant was employed as Sales Admin Executive and faced a pay cut during MCO. An unsigned notice of mutual termination was presented as evidence of dismissal, which the Claimant claimed was indicative of her termination. (Paras 2-4)
Findings of Court: The unsigned notice was not legally binding, and the Claimant had abandoned her employment by not reporting to work as directed. (Paras 45)
Issues: Whether the Claimant was dismissed, and if so, whether it was with just cause or excuse. (Para 10)
Ratio Decidendi: The court ruled that the unsigned notice did not constitute a dismissal, and the Claimant's failure to report to work indicated abandonment of employment. (Paras 45)
Result: Claim dismissed.
AWARD
Reference
[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 , over a dispute of dismissal of LEONG YUEN WAH ("the Claimant") by NENAS FURNITURE SYSTEMS SDN BHD ("the Company") to this Court for adjudication and handing down of an award.
Brief Background
[2] The Claimant was appointed as Sales Admin Executive by the Company commencing 15 th. June 2012 with basic salary of RM3,200.00. [see: Page 12 of CLB-1]. The Claimant's salary eventually increased by the Company to RM4,300.00 [see: page 5-6 of CLB-1]. Due to the Movement Control Order (MCO), the Claimant was requested by the Company to voluntarily agree to pay cut of 30% from her last drawn salary of RM4,300.00 from April 2020 to September 2020 wherein her salary was reduced to RM3,010.00 [see: page 3 of CLB-1]. After September 2020, the Company has continued paying the Claimant's salary at the rate of RM3,010.00 together with a further deduction of RM231.54 from the Claimant's salary [see: pages 6 to 14 of CLB-1 ].
[3] Throughout MCO, the Claimant was required to work from home and the Company only resume business operation at the business premise on 16 August 2021. During the Company management meeting on 16 August 2021, the employees were being informed by Datuk Lim Eng Kok ("LEK" / "COW-1"), the director of the Company that the Company has no cash flows and the directors have decided to downsize the business. The 2 arrangement starts with Lim Kwai Hin ("LKH" / "Tony") shall only work until 31 st August 2021 and the Claimant will be eventually laid off but meanwhile the Claimant was requested by the Company to clear old stocks and ensure the account documentation of the Company is in order.
[4] The crux of the contention is; on 30 September 2021, LEK gave the Claimant an unsigned copy of notice of mutual termination wherein the notice was backdated to 1 August 2021 ("unsigned notice of mutual termination") and the Claimant's salary will only be drawn until 30 September 2021 [see: page 4 of the CLB-1]. LEK requested the Claimant to sign on the said notice of mutual termination. The Claimant amended the date to the actual date of receipt and remarked in the unsigned notice of mutual termination that she disagree to the content of the notice. On the same day, the Claimant has also returned the office mobile bearing the phone number of 0189881118 together with door access card and company door keys to the director, Lim Yik Shun ("YS Lim") as per the unsigned notice of mutual termination.
Claimant's Case - The Dismissal
[5] The Claimant's claim is premised on the unsigned notice of termination. The claimant has no dispute that the unsigned document may not be the conclusive evidence of dismissal. However, she avers that collaborated with other circumstantial evidence, the dismissal is established on the balance of probabilities.
[6] It is averred that during the management meeting of the Company on 16 August 2021, LEK has mentioned about the downsizing of business and the Claimant has been made known that she will eventually be dismissed but not knowing when exactly. Even though the notice of mutual termination is not signed, the chain of events leads the Claimant to believe that she has been dismissed. Upon signing the notice of mutual termination, the Company's items or belongings in the Claimant's possession ie mobile phone, door acess card and company door key were all handed to YS Lim and it was never rejected by YS Lim nor any clarification from YS Lim if there was no necessity of doing so. (Refer: line 5-19, page 32 of NOP on 13 June 2023)
[7] On the same day, ie 30 September 2021, an unsigned notice of mutual termination dated 1 July 2021 addressed to Tony [see: CLB-2"] was also handed to Tony despite the fact that Tony has been terminated since 31 August 2021. It is the claimant's position that it the Company's practice is it does not issue any formal letter
