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2016 MarsdenLR 1797
The employer must prove redundancy to justify dismissal, and termination must follow correct procedures as per the contract.
Headnote:In regard to employment disputes, the court analyzed the termination of the claimant's contract under the Employment Contract. The court found that the claimant's position was made redundant due to company restructuring, and he was offered alternative employment which he declined based on personal commitments. The court determined that the termination was valid under clause 15 of the contract. The key issues included whether the termination was justified and if redundancy was established. The court highlighted the principle that the employer bears the burden to prove the reason for dismissal, and here it found the reason to be bona fide and in accordance with the law. The final result was the dismissal of the claimant's case.
AWARD
Rosenani Abd Rahman:
Brief Facts
[1] The claimant commenced employment with the company as a Senior Editor in Operation Department for a fixed term period of two years with effect from 6 March 2006. Upon expiry of the said contract on 5 March 2008, it was renewed for another fixed term of two years from 6 March 2008 to 5 March 2010 (second renewal). The contract was further renewed for two years from 5 March 2010 and expires on 4 March 2012 with monthly salary of RM12,705.00 and RM9,000.00 housing allowance. Refer to the said contract at pp 30-40 CLB.
[2] The company is owned by Al Jazeera English (AJE) an International 24 hours English language news and current affair TV Channel based in Doha, Qatar. It report all matters and take instruction from Headquarters of AJE in Doha. The claimant is a Singaporean national residing in Kuala Lumpur for the past five years. Initially, the claimant's employment contract was signed between the claimant and Aljazeera International Doha. Refer to the Contract of Employment at p 1 of CLB.
[3] Sometime in March 2010, the company's representative from Headquarters announced that the New Frontier Project which involved the company's restructuring exercise to all staff and employees. Following that on or about 18 May 2010 the company informed its staff via e-mail that the company's representative would be meeting them individually between 19 May 2010 and 21 May 2010 in relation to the restructuring exercise under the New Frontier Project.
[4] On 20 May 2010, the claimant was verbally informed that under the New Frontier Project the Headquarters would be the Hub (24 hours a day and 7 days a week) for AJE's channel output. As such, the claimant's position (job function) with the company would be transferred to the Headquarters in Doha, Qatar to support the operation there. In view of the above, the claimant's position in Kuala Lumpur office has become redundant. The claimant was also informed that his service in Kuala Lumpur office was no longer required as at 31 December 2010 pursuant to the company's restructuring exercise. The claimant was also duly informed by the company that the term of the new employment contract for his transfer to Headquarters would be provided to him.
[5] The claimant was later offered an alternative employment in Doha office which was actually the same position as Senior Picture Editor (refer to e-mail dated 22 September 2010 at pp 52-53 of CLB). The claimant rejected the offer by an e-mail dated 25 October 2010 on the ground that he has commitments and he wants to be with his family (p 54 of CLB). In view of the claimant's decision not accepting the offer of alternative employment, the company issued a notice of termination pursuant to cl 15 of the Employment Contract which states that:
"15. TERMINATION 15.1 You are required to give the company and the company is required to give you not less than 1 month's written notice of termination."
[6] The company gave the claimant one month's notice of termination of the contract of employment effective 31 December 2010. Refer to the letter dated 15 November 2010 at pp 55-56, CLB. The staff office clearance and Final settlement (check list) form was attached to the said letter. On 20 December 2010, the company offered the claimant an Employee Final Settlement (EFS) for a lump sum amount of RM98,138.39 as contained in p 58, CLB in accordance with the claimant employment contract.
[7] By an e-mail dated 29 December 2010 (at p 57, CLB), the claimant has expressed his dissatisfaction on his unlawful and premature termination of his contract of employment. He appealed to the company to compensate him for the remaining unexpired 14 months and four days of service pursuant to the contract which rightly should expire on 4 March 2012.
[8] The company contend that the said EFS was issued pursuant to the one month notice given in terminating the Employment Contract. As such, the company denied that there was obligation to make
