AWARD

Amrik Singh:

Reference

[1] This is a reference by the Director General of Industrial Relations Malaysia under s 20(3) of the Industrial Relations Act 1967 pertaining to the dismissal of Anandraj A/L Vadivellu (hereinafter referred to as "the claimant") by ISkandar Investment Berhad (hereinafter referred to as "the company") on 30 April 2018.

Salient Facts

[2] Vide a letter of offer of employment dated 8 July 2008, the claimant was offered the position of Vice President, Marketing & Branding with the company and commenced his employment on 1 August 2008 with a monthly basic salary of RM14,000.00. The employment contract was of a permanent nature.

[3] On 25 July 2014, the claimant was offered a promotion to the position of Senior Vice President of Investor Relations (SVP), subject to a successful completion of a 3 months probation from 1 August 2014 till 31 October 2014. The claimant's position as SVP was confirmed after the probationary period. His monthly salary was increased to RM19,440.00 vide letter dated 4 December 2014 (the promotion confirmation letter)

[4] In the promotion confirmation letter the company stated that the claimant's employment contract will be converted into a fixed term contract for a three (3) year period commencing from 1 November 2014 to 31 October 2017.

[5] The claimant took no issue with the contents of the promotion confirmation letter and had duly served the full three (3) years period.

[6] When the company by letter dated 16 August 2017 offered an extension of a subsequent six (6) months of employment effective from 1 November 2017 to 30 April 2018, the claimant by his letter dated on 9 October 2017 contended that such extension of the fixed term contract amounted to "compelling premature retirement" prior to his attainment of the minimum retirement age prescribed by law and that he considered himself to have been prematurely retired as of 30 April 2018.

[7] The claimant contends that the company was in breach of the Minimum Retirement Age Act 2012 (MRA 2012) as the claimant's employment contract was unlawfully converted into a three (3) year fixed term contract.

[8] The claimant recorded in writing his acknowledgment of the extension of the fixed term letter on 31 October 2017 with the words:

"I hereby acknowledge receipt of this letter under protest and without prejudice to my legal rights for premature retirement"

[9] The company responded to the claimant's 9 October 2017 letter vide letter dated 24 October 2017, denying the alleged premature retirement and informed the claimant that it was reviewing the organizational structure of the company.

[10] On 30 April 2017, at 5.30pm, the claimant's company handphone was cut off. To the company, it was a normal exit process since the claimant had abruptly left the company on his own volition due to a stand he had already taken on 9 October 2017.

[11] The claimant by letter dated 7 November 2017 disputed the company's allegations and subsequently reiterated his position via email dated 30 April 2018 and through his solicitor's letter dated 25 May 2018.

[12] The claimant contends that the company's decision to prematurely retiring him was capricious, arbitrary and in violation of fair labour practice and the law. The claimant prays for an order of his reinstatement to his former employment and be paid arrears in wages calculated from the date the claimant was prematurely retired to the date of reinstatement or to pay the claimant compensation in lieu of reinstatement.

The Claimant's Case

[13] The claimant pleads that his contract of employment was a permanent contract. The claimant avers that his employment contract was unlawfully converted into a fixed term for a period of three (3) years which was in breach of MRA 2012 as his tenure of employment was statutorily protected. Thus, it is immaterial of whether the claimant had raised an objection to the conversion on 4 December 2014 when the company had confirmed his position as the SVP. The terms of the employment