AWARD

Amrik Singh:

Reference

[1] This is a reference by the Director General of Industrial Relations made under s 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of Lye Sek Fan (hereinafter referred to as "the claimant") by Line Clear Express @ Logistic Sdn Bhd (hereinafter referred to as "the company") effective 3 December 2022.

[2] By an employment letter dated 7 December 2020, the claimant was employed as Regional Manager (Eastern) with the company with effect from 1 February 2021. The claimant was confirmed in the position of Regional Manager on 1 February 2022. Since her engagement with the Company, the claimant has been receiving a monthly salary of RM15,000.00 plus 1.5 % of personal sales commission.

The Dismissal

[3] The events leading to the claimant's dismissal from her employment with the company arose towards the end of 2022 when the company claimed to undergo a "big restructuring exercise". As the company's existing structure was no longer relevant to meet its customers' demands in the states of Kelantan, Terengganu and Pahang which demonstrated different characteristics and buying/purchasing behaviour, the company sought to flatten its organization by appointing individual persons to manage the hubs in the three (3) states while the Regional Manager position held by the claimant be eliminated.

[4] The company issued a letter of termination of employment dated 4 November 2022 to the claimant outlining the foregoing reasons and informed the claimant that her employment is terminated effective 3 December 2022. The Claimant's written appeal against the company's decision terminating her services was declined.

[5] The claimant contends that her dismissal from service was in breach of the rules of natural justice, amounts to an unfair labour practice, was tainted with mala fide and an act of victimization.

The Claimant's Case

[6] The claimant received a half month salary bonus which was termed as "angpow" together with her January 2022 salary.

[7] The claimant contends that sometime in year 2022, the company moved to a huge auto hub located at Bukit Beruntong in Selangor during which time, the company also shifted its Mentakab and Bentong outlets to spacious hubs.

[8] It is contended by the claimant that the company had closed down its Sabah operations and sold the business to a partner in Kota Kinabalu even before the Claimant joined the company. As for the hub in Kuching, Sarawak, the claimant believes that after her dismissal from the company, the Kuching hub was still in operations and was reporting directly to the headquarters.

[9] The claimant asserts that the company did not issue any circular regarding the reorganization and restructuring being carried out in stages.

[10] Prior to terminating her employment, the company did not adhere to the Code of Conduct for Industrial Harmony and failed to carry out the following actions, namely:

i. Limiting recruitment

ii. Restriction of overtime work;

iii. Restriction of work on weekly day of rest;

iv. Reduction in number of shifts or days worked a week;

v. Reduction in the number of hours of work;

vi. Retraining and/or transfer to other department/work

[11] The company recruited one (1) new employee in August 2022 to be in charge of its Bentong hub and Mentakab depot, and appointed two (2) new recruits to be in charge of the Terengganu and Pengkalan Chepa Hub.

[12] The claimant prays that she be reinstated to her former position and be awarded full back wages from the date of dismissal to date of reinstatement including other benefits that she enjoyed whilst in her employment.

The Company's Case

[13] The company denied that the claimant's half month salary received with the January 2022 salary was a bonus, instead it was payment of "angpow" for the Chinese New Year festival.

[14] The company asserts that the payment of personal sales commission of 1.5 % is not a fixed commission but is subject to monthly sales revenue of the states under the Claimant's purview.

[15] The co