The court ruled that the claimant was an employee under a contract of service, and his termination was without just cause or excuse, entitling him to compensation.

AWARD

Zulhelmy Hasan:

Reference

[1] This is a reference by the Director General of Industrial Relations Department of Malaysia dated 27 January 2023 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 31 January 2023 arising out of the alleged dismissal of JAMES PAUL A/L N ASIRVATHAM (hereinafter referred to as "the Claimant") by TDI APJ MALAYSIA SDN BHD (hereinafter referred to as "the Company") on 22 December 2021.

Factual Background

[2] The Company is in the business of providing warehouse management solution. The nature of the Company's business is to provide consultant services wherein the Company employs people to render the required service by its clients. The Letter of Employment dated 12 April 2021 (at pp 6-10 of CLB) refers to the previous name of the Company (Synnove Systems Sdn Bhd) and was changed to TDI APJ Malaysia Sdn Bhd The Claimant made an application dated 13 June 2023 (Encl 19) to substitute the Company's name of business to TDI APJ Malaysia Sdn Bhd and was allowed by the Court without any objection from the Company vide an Award No 1401 of 2023 dated 21 June 2023.

[3]Vide a Letter of Employment dated 12 April 2021 (pp 6-10 of CLB), the Claimant was employed on a permanent basis with the position of Senior MM/EWM Consultant as stated in the Letter of Employment (p 6 of CLB); we are pleased to offer you the permanent position as Senior MM/EWM Consultant with SYNNOVE Systems Sdn Bhd (hereafter referred to as the 'Company'). This offer is subject to satisfactorily references which we will be taking.".

[4] The Claimant's designation refers to Material Management (MM) and Extended Warehouse Management (EWM) based on his particular skillset. Basically, his job on a daily basis was the EWM portion. His job scope included the implementation and operation of the information technology (IT) in respect of what is commonly known in the industry as SAP Extended Warehouse Management. Accordingly, the Claimant was assigned to provide his consultancy services to the Company's client "Survey Groceries" to implement the SAP, ERP solution (German software) for the warehouse management, financial and retail systems.

[5] By mutual agreement between the Claimant and the Company, the Claimant's employment commenced on 17 May 2021 based in Ipoh, Perak, and not on 15 April 2021 as stated in the Letter of Employment. The Claimant successfully completed his three (3) months' probation period and was confirmed in his employment effective 17 August 2021 as stated in the Company's letter of confirmation dated 1 August 2021 (p 11 of CLB).

[6] The Company's client decided to suspend the project at the material time with no indication of any firm date for the resumption of the project, and further the Company had no other projects on hand, which resulted the Company terminated the Claimant's employment as stated in the termination email dated 22 December 2021.

[7] The dispute is over the termination of employment of the Claimant by way of dismissal with effect from 22 December 2021 by way of an email dated 22 December 2021 (p 3 of CLB) issued by the Company due to project suspension as stated in the said letter is reproduced as below:

"Regretfully informed you that due to the surprising project suspension with the current project you are involved we are decided to leave some of the resources involved in the project, you are one of them. Since we don't have a firm restart of the project and our business-critical on the current situation we can't afford to continue your services onboard with us. We are terminating your services with immediate effect and you may return the company properties, hand over the existing responsibilities in the project to the designation team member our project manager instruct you.

At this moment we don't have any other project on hand to accommodate your services hence the last date of your employment with SYNNOVE is on 22 December 2021.

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