The court affirmed that a redundancy situation must be proven by the employer with concrete evidence, emphasizing the employee's dismissal must be bona fide and justified by business needs.

Preface

[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 on 8 August 2014 arising out of the dismissal of Vithylingam a/l Letchumanan (the "Claimant") by Ice Room Food & Beverage Management Sdn Bhd (the "Respondent").

[2] The hearing of this case commenced and concluded on 17 June 2015. The Respondent's solicitors, Messrs Ganesalingam Vijayaratnam & Aisha Jothilingam filed their Written Submissions and Bundle of Authorities on 21 July 2015 and Submissions in Reply on 6 August 2015. The Claimant's solicitors, Messrs Lee Boon Peng & Co. filed the Written Submissions and Bundle of Authorities on 23 July 2015 and Claimant's Submissions in Reply on 6 August 2015.

Brief Facts

[3] The Claimant commenced employment with the Respondent as Training & Development Manager with Ice Room Sdn Bhd with effect from 16 September 2010 with a salary of RM 3,500.00 per month and transport/petrol/toll allowance of RM 300.00 per month as reflected in the Claimant's letter of appointment dated 14 August 2010 (CLB1, p 1) signed by the Respondent's General Manager, Cornelius Chong. By Cl 12 of the letter of appointment, the Claimant is required to spend at least 60% of his working days in the outlets and 40% at the Head Office per week. By letter dated 31 December 2010 (CLB1, p 5), the Claimant was confirmed in his appointment with effect from 1 January 2011 with a total gross salary of RM 4,000.00 per month.

[4] The Respondent (Ice Room Food & Beverage Management Sdn Bhd) issued the Claimant a Letter of Termination dated 1 October 2013 (CLB1, p 6) signed by Simon Hew, Ice Room Director whereby the Claimant's employment was terminated as follows:

" We regret to inform you that our Ice Room business decline in all outlets. The Management is unable to accommodate the out keeping of business have to justify to close some of the Outlets and reduce manpower as well.

We refer to your Letter of Employment dated 14 August 2010. Based on your letter of employment terms and conditions item 8 the Company will like to terminate your service by giving two (2) month's written notice to you with effect from 1 October 2013."

[5] The Claimant contended in para10 of the Statement of Case that the Respondent has terminated the Claimant's employment without just cause or reasonable grounds and the Respondent has failed to observe the "Last In Last Out" rule. The Respondent contended in para 9, Statement in Reply that the Claimant's dismissal was with just cause or excuse.

The Law

[6] The function of the Industrial Court is explicitly stated in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, 1981 MarsdenLR 319 at p 136 where the Federal Court decided inter alia as follows:

"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty to that Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper inquiry of the Court is the reason advanced by it and that Court or the High Court cannot go into another reason not relied on by the employer or find one for it."

[Emphasis added]

[7] The term "redundancy" has been