An employer is not mandated to provide alternative employment when redundancy is justified and must act in good faith.

[1] The hearing of this case commenced on 21 September 2015 with the Company's case. The Company produced 4 witnesses (COW1, COW2, COW3 and COW4); and the only witness for the Claimant's case was the Claimant himself (CLW1). The hearing was completed on 01 September 2016. The Claimant's Written Submission and Bundle of Authorities were filed on 13 October 2016; and the Company's Written Submission and Bundle of Authorities were filed on 03 November 2016. The Oral Submissions were heard on 15 December 2016.

Facts

[2] The Company was engaged in the business of providing personnel services including the employment of staff required to carry out the necessary services at the premises of clients who had engaged Jones Lang Wootton ("JLW") as property managers of the said premises.

[3] Vide a Memorandum of Agreement dated 28 January 1994 ("the Property Management Agreement"), JLW was contracted by Menara Bangsar Management Corporation ("MBMC") to act as Property Manager for its property at Menara Bangsar (COB pp 8-31).

[4] Pursuant to the above Property Management Agreement, the Claimant was employed by the Company as a handyman at Menara Bangsar on 01 March 1994 (CLB pp 1-6) with a monthly salary of RM800.00; and he was subsequently confirmed in his position as handyman vide a memorandum dated 11 May 1995 (COB p 40). The Claimant's last drawn salary was RM2,600.00 per month.

[5] In 2000, JLW, as the Property Manager, required the services of Restricted Chargeman for Menara Bangsar. The Claimant attended and completed the Restricted Chargeman examination and was subsequently approved by Jabatan Bekalan Elektrik ("JBE") to hold the position of Restricted Chargeman at Menara Bangsar only. Pursuant to the approval by JBE, the Claimant was given certification specifically restricted to Menara Bangsar only.

[6] Vide a Memorandum dated 17 May 2000, the Company confirmed the appointment of the Claimant as the Restricted Chargeman for Menara Bangsar, which was an additional duty and for this, the Claimant was paid an allowance of RM200.00 per month (COB p 44).

[7] Vide a letter dated 12 December 2012, the MBMC informed JLW that the Property Management Agreement between MBMC and JLW which would accordingly expire on 31 January 2013 would not be renewed (COB pp 77-78), whereupon the JLW's appointment as the Property Manager of Menara Bangsar would effectively cease on 31 January 2013.

[8] Pursuant to the non-renewal of the Property Management Agreement, vide a letter dated 17 December 2012, the Company informed the Claimant that his employment would be terminated with effect from 31 January 2013 (COB p 79).

Law

[9] The role of the Industrial Court was lucidly explained by His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in Goon Kwee Phoy v. J & P Coats (M) Bhd, [1981] 1 MLJ 129 at p 136 (Federal Court) as follows:

"Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of the Court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason or excuse for the action taken by him, the duty of the Industrial Court will be to enquire whether that reason or excuse has or has not been made out. If it finds as a fact that it has not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the Court is the reason advanced by the employer, and that Court or the High Court cannot go into another reason not relied on by the employer, or find one for him".

[10] The standard of proof applicable to dismissal cases is the civil standard of proof on a balance of probabilities as decided by the Court of Appeal in Telekom Malaysia Kawasan Utara v