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2022 MarsdenLR 1198
INDUSTRIAL COURT KUALA LUMPUR
UPPALAPATI SITA RAMA RAJU – Appellant
Versus
ENSOFT CONSULTING SDN BHD – Respondent
Award No: 453 Of 2022 [Case No: 22/4-1426/21]
The court emphasized that the employer must prove bona fide redundancy, and failure to provide evidence results in wrongful termination and entitlement to monetary compensation.
Headnote:(A) Industrial Relations Act 1967 – Sections 20(3) and 29(d) – Claim of wrongful dismissal – Claimant employed as Senior Business Manager and terminated for alleged redundancy – Court finds dismissal was without just cause or excuse due to Company’s failure to provide evidence – Compensation awarded includes backwages and accrued commissions. (Paras 30, 34, 42, 45)
(B) Burden of Proof – Employer bears the burden of proving bona fide redundancy – Inadequate evidence results in reinstatement or compensation in lieu not being awarded. (Paras 19, 22, 29, 34)
Facts of the case: Claimant terminated by email on 2 September 2020 due to alleged bad-mouthing and financial circumstances of Company. Court observed that the Claimant had great contributions to the Company.
Findings of Court: The Court found no evidence supporting the Company's claim for redundancy and ruled in favor of the Claimant. Dismissal deemed wrongful and without just cause.
Issues: Main issues included whether a case for retrenchment was substantiated and if the termination was bona fide.
Ratio Decidendi: The Court concluded the Company failed to justify its actions, resulting in the dismissal being deemed wrongful. The role of the Court is to ascertain if the dismissal was justified based on submitted evidence.
Result: Total monetary award of RM516,502.70 including backwages and commissions.
AWARD
[1] The Ministerial reference in this case required the Court to hear and determine the Claimants complaint of dismissal by the Company on 2 September 2020.
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 3 May 2021.
[3] The matter was fixed for e-mention on 31 May 2021, 8 June 2021, 16 July 2021, 3 March 2022 and 11 March 2022. On the e-mentions conducted on 31 May 2021, 3 March 2022 and 11 March 2022, one En Mohd Zuhaili had represented the Company and taken instructions on the filing of pleadings, witness statements, bundle of documents as well as the fixing of the hearing dates. However, right up to the hearing date of 16 March 2022, the Company failed to file its pleading, witness statements and/or bundle of documents. Despite taking instructions with regards to the filing of pleadings since 31 May 2021, on the last e-mention date of 11 March 2022, the said En Mohd Zuhaili made an about-turn and informed the Court (upon being queried by the Court with regards to the failure to file the Companys pleadings) that he does not know much about the case and that he had informed the Company Director, ie one Mr Vijay, to attend to the matter.
[4] The matter was fixed for hearing on 16 March 2022. However, the Companys representatives were not present in Court. Due to the absence of the Company, the Court accordingly exercised its powers under s 29(d) of the Industrial Relations Act 1967 and declared this proceeding to be heard ex parte. Section 29 (d) of the provides that the Court may, in any proceedings before it, hear and determine the matter before it notwithstanding the failure of any party to submit any written statement whether of case or reply to the Court within such time as may be prescribed by the President or in the absence of any party to the proceedings who has been served with a notice or summons to appear.
[5] The trial proceeded by way of ex parte hearing on 16 March 2022 with only the Claimant (CLW-1) being the sole witness.
II. Factual Background
[6] The Claimant commenced employment on 21 October 2016 as a Senior Business Manager with a basic salary of RM5,000.00 per month. He was confirmed in his employment on 14 February 2020 and his salary was increased to RM5,500.00 per month.
[7] As a Senior Business Manager, the Claimants responsibilities included:
i. selling the Companys services;
ii. to bring in new clients and manage the clients;
iii. to liaise in the operation and finance related activities for the clients;
iv. to manage the internal teams who were assigned to assist the Claimant in dealing with the clients.
[8] Besides the basic salary, the Company also agreed to pay commissions for any introduction of new clients to the Company. The commission payable was based on verbal commitment which were fulfilled partially and the balance amount payable for service rendered stood at RM401,002.70 at the time of the Claimants dismissal.
[9] The Claimant served with the Company for a period of 5 years, ie from 21 October 2016 to 2 September 2020.
[10] On 2 September 2020, the Companys Chief Executive Officer, Mr Vijay Kumar Muvva, had sent an email to the Claimant terminating the Claimants employment with the following reasons:
i. the Claimant was bad-mouthing the Company and its representatives without conducting any investigations;
ii. the Company was experiencing financial loss due to the Covid-19 pandemic and thus was unable to keep the Claimant in employment with the Company.
[11] The Claimant was given two options by the Company:
i. to cease employment immediately with 1 month salary paid in lieu of the notice period; or
ii. the Claimant is to serve the notice period of 1 month.
The Company however was keen on the first option.
[12] The Claimant replied on 3 September 2020 denying all the allegations levelled against him and requested for a domestic inquiry to be held. The Company however responded
