(Note: This award had been previously reported in [1998] 2 MELR 208; [1998] 2 ILR 965. Due to a printing error, we have decided to reproduce this case. Please use the current citation as the proper reference to the award. Any inconvenience caused is deeply regretted.)

AWARD NO. 368 OF 1998

The claimant commenced employment with the company on 23 April 1963 as a temporary general labourer upon being issued a letter of appointment (exh Y1). He was holding the position of senior shift manager on the day he was handed a letter dated 27 April 1995 stating that he had attained the retirement age of 55 on 23 March 1995. His service was extended for a further period of one year and three months to 30 June 1996 (exh Y4). Subsequently, the claimant was advised that pursuant to the earlier letter (exh Y4) he will "now proceed to retirement on 30 June 1996 (exh Y5)."

The claimant vide his statement of case alleges that notwithstanding the absence of any stipulation in the claimant's contract of employment as to retirement age, he was retired as set out hereinbefore. By reason of the said retirement he had been dismissed without just cause or excuse as the company had unilaterally varied the terms and conditions of his contract of service.

The company vide its statement in reply contends that it has always been the practice and/or policy of the company that its employees are (subject to the company's discretion to extend an employee's service) to retire upon attaining the retirement age of 55. The company also contends that it was always an express and/or implied term of the claimant's contract of service that he will retire at the age of 55 subject, however to the discretion of the company to extend his service beyond that age.

There is no dispute that the letter (exh Y1) appointing the claimant as a general labourer upon his commencement of employment with the company contains no retirement clause. However, the letter of appointment expressly states that he would be "subject to the provisions of the company's personnel policy currently in force and which may be changed from time to time at our discretion". No written personnel policy was in force at the date of the claimant's appointment. The company came up with its human resources department personnel procedures and guidelines (HRDPPG) on 1 January 1985. It is the company's case, however, that it had even prior to the said HRDPPG always had an unwritten policy and practice which required its employees to retire upon attaining the age of 55.

Subsequent to the claimant's appointment, the National Union of Petroleum and Chemical Workers (hereinafter referred to as "the union") representing the company's bargainable employees entered into its first collective agreement with the company for the years 1969-1972. Vide art. 26 of the said agreement, the age of retirement for the company's bargainable employees was set at 55 (exh COB31). There is no question, therefore, that upon the coming into force of the collective agreement contained in exh COB31, it was an implied term of the contract of employment between the claimant and the company that the rates of wages to be paid and the conditions of employment between them shall be in accordance with the collective agreement. This is so by virtue of s 17 of the Industrial Relations Act 1967 . The same section further provides that the conditions of employment shall be in accordance with the agreement unless varied by a subsequent agreement or decision of the court. The claimant's contractual retirement age was therefore 55 and remained so for as long as he remained in the unionised categories of the company's employees to which the collective agreement relates.

The claimant was offered and did accept a promotion to the position of production shift manager on 15 June 1981 (exh COB4). Besides stipulating that he will be drawing a salary of RM950 per month and advising him that the "offered position is non-unionised" the offer said nothing about the