Award No. 40 of 1991 [5 MARCH 1991]

The hearing proper commenced on 14 March 1990 and ended on 9 July 1990. The learned counsel for the workman completed his oral submission on 3 August 1990.

At the end of the day the learned counsel for the company was not able to complete his oral submission and it was agreed that further submission would be by way of written submission with the learned counsel for the workman to similarly reply to the submission by the learned counsel for the company. On 27 November 1990 the court received the requisite documents from the parties.

At the commencement of the hearing I allowed the application by the learned counsel for the workman to have Perangsang Recreation Bhd. (PRB) joined as a party for the company and to amend the pleading in the statement of case. The hearing involved the evidence of two witnesses, one each for the workman and the company. Workman is his own witness and the company's witness is Azman Shah bin Harun (CW1) who is the Director of Hotels and Recreation for the company.

The company is a holding company and the PRB is one of its subsidiaries. PRB operates a club called Kelab Darul Ehsan (the club). Apart from the club, the company owns three hotels namely Holiday Inn on the Park (the park), Holiday Inn City Centre (City Centre) and Holiday Inn Shah Alam (Shah Alam). All the restaurants in the hotels and in the club are run and managed by the company. There was no Food & Beverage Director for the hotels. However, the club employed a Food & Beverage Director in the person of the workman until 30 November 1987.

The workman's association with the company dates back to 24 August 1985 when he became the Resident Manager of City Centre.

The terms and conditions of his service is in Exhibit B. Inter alia, his monthly basic salary was $3,200 per month. Probationary period is 6 months subject to extension of a further period not exceeding 3 months. Upon confirmation, the notice period for termination of service by either side is 3 months or salary in lieu.

Similarly, annual leave is 14 days after completion of one year of service but less than 3 years service. By Exhibit C the workman was confirmed in his position with effect from 24 May 1986.

His annual leave eligibility was increased to 21 days leave per year for the first to the third year of service. Other terms and conditions of service remained the same. On 1 October 1986 he was appointed as Penolong Pengurus Besar of the club (Assistant General Manager). The appointment (perlantikan) there was under scheme "Management 1" with a monthly salary of $4,075 on the scale of $3,000 x 150 - $3,750/$3,900 x 175 - $5,650.

His annual leave eligibility was 30 days per year. The letter of appointment (Exhibit A) states that his services at the club is a continuation of his service at the City Centre. The club then was managed by Club Co-operation of Asia (CCA) an American company having a base in Hong Kong.

The club followed the policy laid down by the CCA. There was then a Food & Beverage Director in the club who was an expatriate. There was also a Food & Beverage Manager there. By Exhibit D he was subsequently appointed (dilantik) to the post of Pemangku Pengurus Besar of the Club (Acting General Manager) with effect from 1 January 1987.

He continued to receive his monthly salary which was at $4,075 per month but with an additional allowance of $500 per month as acting allowance. He was to be directly responsible to the PRB Board and also to the Managing Director of the company. While he was holding this position the expatriate Food & Beverage Director left the service. Attempts were made to get a replacement but without success. In the end the workman made a suggestion that he himself should take over the job provided his salary and benefits were not to be affected and provided there would be someone to be the Club Manager.

When he did he should have realised that the position of Food & Beverage Director is of a lower position than the Acting Gener