Back
1987 MarsdenLR 357
INDUSTRIAL COURT, KUALA LUMPUR
BETWEEN SUPREME CORPORATION BHD. AND PUAN DOREEN DANIEL A/P VICTOR DANIEL & ONG KHENG LIAT
Award No. 349 Of 1987 [Cases No. 1:5/4-580/86 (22.10.86)]
1.At the outset of the hearing, Cik Rajaretnam, learned Counsel for the Claimants, told the Court that she wished to discharged herself in respect of the Second Claimant, Encik Ong Kheng Liat, who was absent.
2.It is common ground that on 3rd of June 1986, all the staff working in the Company, which is the holding Company of the Supreme group of companies, were called up to the penthouse office suite of the Company's Managing Director.
3.The Claimant was one of the 68. She jointed the Company on 23rd March 1977 as a junior secretary and at the time of her retrenchment she was drawing a monthly salary of $1,000.00 as Secretary to the Manager of the Internal Audit Department.
4.However, it was undisputed that the whole of the Internal Audit Department was closed down; her job had become redundant and her claim in this Court was that because of her longer service, she should have been retained in the Company's service and another secretary junior to her should have been retrenched in her stead.
5.Her Counsel likened her case to that of the Claimant in the case of East Asiatic v. Cik Sau Lee Ling @ Liliana Sau Lee Ling (Industrial Court Award No. 5 of 1987) in which the selection for retrenchment of Liliana Sau, also a secretary, was declared by this Court to be without just cause and she was given an award of monetary relief in lieu of reinstatement.
6.Although it is true that there are similarities, that case however may be distinguished from the instant case for the following reasons:
(1)Liliana Sau was the only employee in her defunct department to be dismissed whereas, in the present case, all the staff of Internal Audit Department were retrenched.
(2)Liliana Sau's single retrenchment was due to the closing down of a department of a successful on-going company whereas the Claimant was one of 68 retrenchees in a massive retrenchment exercise by an insolvent company. (The Supreme Group losses amounted to 38.41 million ringgit as at 30.6.1986.)
(3)Liliana Sau refused to accept the substantial termination benefits offered her and forthwith prostested against her retrenchment in no uncertain terms, but in this case the Claimant accepted her termination benefits and testified that she did not write to the Company in protest of her retrenchment at any time. 7. Nevertheless, it is still incumbent on this Court to examine the Claimant's case in the context of LIFO. It must be noted however, that LIFO is not an absolutely mandatory rule (it is not a statutory provision) which cannot be departed from by an employer when retrenching staff.
"(b) The employer should select employees to be retrenched in accordance with an objective criteria.
(i) need for the efficient operation of the establishment or undertaking;
(ii) ability, experience, skill and occupational qualifications of individual workers required by the establishment or undertaking under (i);
(iii) consideration for length of service and status (non-citizens, casual, temporary, permanent);
(iv) age;
(v) family situation;
(vi) such other criteria as may be formulated in the context of national policies."
8."Consideration for the length of service,"which is what LIFO is all about, is therefore only one of the objective criteria the Code exhorts the employer to include in the selection of employees for retrenchment.
9.'"Last in, first out,' which has a rough and ready fairness about it, is well recognised as a criterion amongst the unions and employees, and has the advantage of saving an employer from attempting to make invidious distinctions between the merits and personalities of individuals of a kind likely to stimulate jealousy and impair morale." (Cruickshak v. Hobbs (1977) ICR 725 E A T Emphasis by this Court).
10.If, however, in the light of other objective criteria and special circumstances, the employer has sound and valid reasons for the departure from the LIFO procedure, all authorities agree that he should be allowed to do so. This is the position in our own industrial
