INDUSTRIAL COURT OF MALAYSIA BETWEEN KEVIN HO KIN KEE AND HENGYUAN INTERNATIONAL SDN. BHD.

AWARD NO. : 2382 OF 2023 BEFORE : YA PUAN NOOR AZZAH BINTI ABDUL AZIZ CHAIRMAN VENUE : Industrial Court Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 05.07.2020.

DATE OF RECEIPT OF ORDER OF REFERENCE : 14.07.2020.

DATES OF MENTION : 27.08.2020, 10.09.2020, 22.03.2022, 05.04.2022, 07.02.2023.

DATE OF HEARING : 07.03.2023.

REPRESENTATION : Mr. Pathma Raj Ramasamy Mr. R. M. Murali Messrs Pathma Raj Ramasamy & Co Counsel for the Claimant.

Mr. Terrence Lee Rohui Ms. Audrey Hoh Foong Yee Messrs Terrence Lee & Co Counsel for the Company.

REFERENCE:

This is a reference dated 5 July 2020 made by the Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Kevin Ho Kin Kee (“the Claimant”) by Hengyuan International Sdn. Bhd. (“the Company”) on 25 September 2019.

AWARD BRIEF FACTS [1] The Claimant was appointed as a Finance Manager by the Malaysia Hengyuan International Limited on 2 April 2018 via a letter dated 14 March 2018. The Claimant was confirmed in service via letter dated 1 July 2018. Subsequently, the Claimant was transferred to the Company on 1 June 2019. The Claimant was terminated via a letter dated 18 September 2019 with effect on 25 September 2019 with compensation in lieu of notice as per the Letter of Offer. Initially no grounds were given in the termination letter.

[2] The Claimant filed a representation to the Minister of Human Resources and the Minister duly issued the referral on 5 July 2020 claiming that he was terminated without just cause or excuse.

[3] The Company initially claimed that the Claimant was terminated contractually without providing any reason. However, after a query from the Claimant, the Company stated that the Claimant was under performing and that was why the Claimant was terminated.

[4] The Court has gone through the evidence as given through testimony in Court and the documents and submission that have been filed. Those documents and submissions are listed for ease of reference as follows:

(i) Statement of Case dated 24 August 2020;

(ii) Statement in Reply dated 15 June 2022;

(iii) Rejoinder dated 21 July 2022;

(iv) Claimant’s Bundle of Documents filed on 25 August 2020 marked as exhibit CLB-1;

(v) Claimant’s Bundle of Documents (2) filed on 21 July 2022 marked as exhibit CLB-2;

(vi) Claimant’s Bundle of Documents (3) filed on 1 March 2023 marked as exhibit CLB-3;

(vii) Claimant’s Bundle of Documents (4) filed on 7 March 2023 marked as exhibit CLB-4;

(viii) Company’s Bundle of Documents filed on 15 June 2022 marked as exhibit COB-1;

(ix) Company’s Additional Bundle of Documents filed on 16 February

2023 marked as exhibit COB-2;

(x) Witness Statement signed on 7 March 2023 marked as exhibit CLWS-1A;

(xi) Supplementary Witness Statement signed on 7 March 2023 marked as exhibit CLWS-1A;

(xii) Company’s Witness Statement signed on 7 March 2023 marked as exhibit COWS-1;

(xiii) Company’s Written Submission dated 24 May 2023;

(xiv) Company’s Bundle of Authorities filed on 25 May 2023;

(xv) The Claimant’s Written Submissions dated 24 May 2023;

(xvi) Claimant’s Bundle of Authorities filed 25 May 2023;

(xvii) Company’s Written Submission in Reply dated 7 June 2023; and (xviii) The Claimant’s Written Submissions in Reply dated 7 June 2023.

THE DECISION The Chair and the Role of the Court [5] Before proceeding with the full award, it should be expressly stated that the original Chairperson of the Court has been transferred and this award is being given by the new Chairman. Nonetheless, this Court has already decided in earlier cases its position regarding the issue of taking over from another Chair, some of those cases are the cases of Badariah Abdullah lwn. Malaysia Airports (Sepang) Sdn Bhd [2023] 2 LNS 1546, Nor Azlina Abd Rahim lwn. Jurukur Perunding Services Sdn Bhd [2023] MELRU 1728 and Chong Jee Fatt v. Tee E & C (Malaysia) Sdn. Bhd. [2023] 3 ILR 204. In those awar