IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4(10)/4-566/20

BETWEEN

SRI KAVIN A/L SANANADAS

AND

RAHMAN HYDRAULIC TIN SDN. BHD.

AWARD NO: 1209 OF 2021

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

VENUE : Industrial Court, Ipoh.

DATE OF REFERENCE : 21.02.2020.

DATE OF RECEIPT OF
ORDER OF REFERENCE : 27.02.2020.

DATES OF MENTION : 08.04.2020, 08.09.2020, 11.03.2021,

DATE OF HEARING : 12.04.2021.

REPRESENTATION : Mr. Varathan Panneer Selvam & Miss

Mr. Tan Kee Tett of Malaysian

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THE REFERENCE

This is a reference dated 21.02.2020 by the Honourable Minister of

Human Resources pursuant to section 20 (3) of the Industrial Relations

Act 1967 (“The Act”) arising out of the alleged dismissal of Sri Kavin A/L

Sananadas (“Claimant”) by Rahman Hydraulic Tin Sdn. Bhd.

(“Company”) on the 01.07.2019.

AWARD

[1] The parties in this matter filed their respective written submissions

dated 21.04.2021 (Company’s Written Submissions), 02.05.2021

(Claimant’s Written Submissions), 14.05.2021 (Claimant’s Written

Submissions in Reply), and 19.05.2021 (Company’s Written

Submissions in Reply).

[2] This Court considered all the notes of proceedings in this matter,

documents and the cause papers in handing down this Award namely:-

(i) The Claimant’s Statement of Case dated 05.08.2020;

(ii) The Company’s Statement in Reply dated 26.10.2020;

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 (iii) The Claimant’s Rejoinder dated 15.03.2021;

(iv) The Company’s Bundle of Documents – COB;

(v) Claimant’s Witness Statement – CLW-1 (Sri Kavin A/L

Sananadas);

(vi) Company’s Witness Statement – COWS-1 (Tajul Ahmad

Idris Bin Nor Yusof);

(vii) Company’s Witness Statement – COWS-2 (Ramly Bin

Bakar); and

(viii) Company’s Witness Statement – COWS-3 (Shariman Bin

Nor Haji Din).

INTRODUCTION

[3] The dispute before this Court is the claim by Sri Kavin A/L

Sananadas (“Claimant”) that he had been dismissed from his

employment without just cause or excuse by Rahman Hydraulic Tin Sdn.

Bhd. (“Company”) on the 01.07.2019.

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[4] The Company is involved in the Mining Business. The Claimant

was employed as a Security Guard by the Company on 02.07.2018 by

way of a contract of employment dated 12.06.2018. The Company

alleged that it was mutually agreed that the Claimant was appointed

based on a fixed term contract for a period of one year commencing

from the 02.07.2018 to 01.07.2019 as the Claimant was needed to

monitor the CCTV in the Company’s work area for a period of one year.

By a letter dated 30.06.2019 the Claimant was notified that his contract

will expire on the 01.07.2019 and that the said contract will not be

renewed. As such the fixed term of employment had come to an end by

effluxion of time. The Claimant claims that he had been dismissed

without just cause or excuse on the 01.07.2019. It is the Claimant’s

claim that the alleged fixed term contract of employment is not a genuine

fixed term contract of employment as the Claimant was employed for a

job wherein the functions are not temporary or piecemeal in nature. The

job for which the Claimant was employed was permanent in nature

which involves the security of the tin mine and its operations. The

Claimant claims that he had been assured by the interviewers who

interviewed him that his contract will be renewed once it expires. The

Claimant had even enquired from the Company whether his contract will

be renewed and upon assurance that his contract will be renewed, the

Claimant had then even committed into the purchase of a motorcycle for
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the purposes of his job in the Company. Just 2 days before the expiry of

his contract of employment, the Claimant was even instructed to have

his body measurements taken for new uniforms for his continuation of

his job in the Company. Based on the foregoing the Claimant claims that

he had a legitimate expectation that his contract of employment will be

renewed and the Claimant will continue to work for the Company as a

permanent employee. The Claimant now claims that he was dismissed

without just cause or excuse and prays for reinstatement to his former

position in the Company without any loss of wages and other benefits.

The Company on the other hand contends that the Claimant’s contract

of employment expired on the 01.07.2019 and that it was not renewed

and as such the Claimant’s claim of a dismissal without just cause or

excuse is without merits and prays that the Claimant’s case be

dismissed.

[5] The Claimant gave evidence under oath and remained the sole

witness for his case. The Company’s evidence was led by COW1 (Tajul

Ahmad Idris Bin Nor Yusof who was at the material time the Human

Resource and Administration Manager whose responsibilities amongst

other involves all matters relating to the management of human resource

of the Company), COW2 (Ramly Bin Bakar who is the Manager of the

Security for the Mine and who is responsible for the safety of the Mine
5
and management of all staff of the security department) and COW3

(Shariman Bin Nor Haji Din who is a Security Officer of the Mine and in

charge of the safety and security of the Mine. This witness is also

involved in the supervision of the Mine security staff).

THE COMPANY’S CASE

[6] The Company’s case can be summarised as follows :-

(i) The Claimant was employed as a Security Guard on

02.07.2018 by way of a contract of employment dated

12.06.2018.

(ii) Pursuant to the contract, it was mutually agreed that the

Claimant was appointed to serve the Company in his

employment for a period of one year from 02.07.2018 to

01.07.20019.

(iii) The contract of employment offered to the Claimant was a fixed

term contract for one year.

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(iv) The Claimant had applied for a job in the company on two

occasions. He was called for an interview on his second

application. At the material time, there was a vacancy.

(v) The Security Department proposed to install CCTV in the tin

mine. The existing CCTV was installed in the office. There was

a need for a security guard to monitor the CCTV for one year.

The Company needed to upgrade the CCTV for the monitoring

at strategic points in the mine.

(vi) The installation of CCTV in the tin mine did not materialise and

as such the Company had changed to the installation of GPS

Tracking System. The Security Department was not competent

to handle the GPS Tracking System. It was managed by the

separate department called Technical Department.

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(vii) Prior to ending the contract of the Claimant, COW3 had

conducted an appraisal on the Claimant. Based on the

performance of the Claimant, COW3 had recommended that

the Claimant's contract be renewed. However COW2 had

recommended not renewing the contract of the Claimant as the

CCTV was not installed in the tin mine. COW2 did not require

the employment of the Claimant.

(viii) By a letter dated 30.06.2019, the Claimant was informed that

his contract expires on 01.07.2019 and the Company did not

intend to renew his contract.

(ix) The Company had not signed any new contract of employment

with the Claimant for the Claimant to continue his employment

with the Company.

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 (x) The Company now contends that the contract of employment of

the Claimant with the Company is a genuine fixed term contract

of employment which had expired through effluxion of time on

the 01.07.2019.

(xi) As such the claim by the Claimant that he was dismissed

without just cause or excuse is without basis, has no merits and

that the Claimant’s case be dismissed.

THE CLAIMANT’S CASE

[7] The Claimant’s case can be summarised as follows:-

(i) By way of a letter dated 30.06.2019, the Claimant was

dismissed from his employment with the Company effective

01.07.2019.

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(ii) The Claimant was first interviewed for employment by two

officials of the Company namely COW1 and COW2 at the

Company's office at Klian, Gerik, Perak.

(iii) Subsequently the Claimant was employed by the Company as a

security guard effective 02.07.2018 for a period of one (1) year.

(iv) The Claimant's last drawn "real wage" per month was RM

2,693.19. He worked 12 hours a day with four (4) hours

compulsory overtime work each day without fail.

(v) All through his tenure of employment, the Claimant worked as a

security guard. The Claimant was first stationed at the

Company's office at Klian, Gerik, Perak and subsequently, after

about six (6) months the Claimant was stationed at the

Company's tin mine at Klian lntan, Gerik, Perak.

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(vi) The Claimant had enquired from the Company whether his

contract will be renewed and upon assurance that his contract

will be renewed, the Claimant had then even committed into the

purchase of a motorcycle for the purposes of his job in the

Company

(vii) On the 28.06.2019 at about 3.00pm, the Claimant together with

about ten (10) other security guards were instructed to have

their body measurements taken for the stitching and/or making

of new uniforms with two (2) tailors engaged by the Company

who were present at the Company's premises at the mine.

(viii) Thereafter on the same day and immediately thereafter a

performance appraisal was conducted on the Claimant's

employment by his immediate superior, COW3 who had made

recommendation that the Claimant's employment with the

Company be continued and or renewed.

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(ix) However, on 01.07.2019 at about 3.30 pm, the Claimant was

issued a letter of termination of contract dated 30.06.2019 and

was thus summarily dismissed from his employment with the

Company without any warning whatsoever.

(x) The Claimant argues that he was dismissed arbitrarily,

unilaterally and summarily by the Company without just cause

or excuse and states that the conduct of the Company was

motivated by ill feelings and thus it amounts to an

unconscionable decision.

(xi) The Claimant further states that the conduct of the Company in

dismissing the Claimant from his employment was capricious

and an unfair labour practice and amounts to a dismissal

without just cause or excuse.

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 (xii) The Claimant now prays that he be reinstated to his former

position without any loss of wages and or other benefits.

THE LAW

Role and function of the Industrial Court

[8] The role of the Industrial Court under section 20 of the Industrial

Relations Act 1967 is succinctly explained in the case Milan Auto Sdn.

Bhd. v. Wong Seh Yen [1995] 4 CLJ 449. His Lordship Justice Mohd

Azmi bin Kamaruddin FCJ delivering the judgment of the Federal Court

had the occasion to state the following:-

“As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ

344; [1995] 2 MLJ 753, the function of the Industrial Court in dismissal

cases on a reference under s. 20 is two-fold firstly, to determine whether

the misconduct complained of by the employer has been established,

and secondly whether the proven misconduct constitutes just cause or

excuse for the dismissal. Failure to determine these issues on the merits

would be a jurisdictional error ...”

[9] The above principle was further reiterated by the Court of Appeal

in the case of K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ

13
347 where his lordship Justice Mohd Ghazali Yusoff, JCA outlined the

function of the Industrial Court:-

“[21] The learned judge of the High Court held that the Industrial Court had

adopted and applied a wrong standard of proof in holding that the respondent

has failed to prove dishonest intention and further stating that the respondent

has not been able to discharge their evidential burden in failing to prove every

element of the charge. He went on to say that the function of the Industrial

Court is best described by the Federal Court in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn Bhdand Another Appeal [1995] 3 CLJ 344 where

in delivering the judgment of the court Mohd Azmi FCJ said (at p. 352):

On the authorities, we were of the view that the main and only function

of the Industrial Court in dealing with a reference under s. 20 of the

Act (unless otherwise lawfully provided by the terms of the reference),

is to determine whether the misconduct or irregularities complained of

by the management as the grounds of dismissal were in fact committed

by the workman, and if so, whether such grounds constitute just cause

or excuse for the dismissal”

[10] It will not be complete this if this Court fails to make reference to

the decision of the Federal Court in the case of Goon Kwee Phoy v. J &

P Coats (M) Bhd [1981] 1 LNS 30 where His Lordship Raja Azlan Shah,

CJ (Malaya) (as HRH then was) opined:

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 “Where representations are made and are referred to the Industrial Court for

enquiry, it is the duty of that Court to determine whether the termination or

dismissal is with or without just cause or excuse. If the employer chooses to

give a reason for the action taken by him the duty of the Industrial Court

will be to enquire whether that excuse or reason has or has not been

made out. If it finds as a fact that it has not been proved, 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 it and that

Court or the High Court cannot go into another reason not relied on by the

employer or find one for it.”

Burden Of Proof

[11] Whenever a Company had caused the dismissal of the workman, it

is then incumbent on part of the Company to discharge the burden of

proof that the dismissal was with just cause or excuse. This Court will

now refer to the case of Ireka Construction Berhad v. Chantiravathan

a/l Subramaniam James [1995] 2 ILR 11 in which case it was stated

that:-

“It is a basic principle of industrial jurisprudence that in a dismissal case

the employer must produce convincing evidence that the workman

committed the offence or offences the workman is alleged to have

committed for which he has been dismissed. The burden of proof lies on

15
 the employer to prove that he has just cause and excuse for taking the

decision to impose the disciplinary measure of dismissal upon the

employee. The just cause must be, either a misconduct, negligence or

poor performance based on the facts of the case.

The Burden of Proof in cases where the dismissal is disputed.

[12] The case of Weltex Knitwear Industries Sdn. Bhd. v Law Kar

Toy & Anor (1998) 1 LNS 258/ 91998) 7 MLJ 359 is relevant on the

role of this Court when the dismissal itself is disputed by the Company.

In this case his lordship Dato' Haji Abdul Kadir Bin Sulaiman J opined :-

Next is the burden of proof on the issue of forced resignation raised by the

first Respondent. The law is clear that if the fact of dismissal is not in dispute,

the burden is on the company to satisfy the court that such dismissal was

done with just cause or excuse. This is because, by the 1967 Act, all

dismissal is prima facie done without just cause or excuse. Therefore, if an

employer asserts otherwise the burden is on him to discharge. However,

where the fact of dismissal is in dispute, it is for the workman to

establish that he was dismissed by his employer. If he fails, there is no

onus whatsoever on the employer to establish anything for in such a

situation no dismissal has taken place and the question of it being with

just cause or excuse would not at all arise: (emphasis is this Court’s).

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[13] In the event where the termination or dismissal is disputed it will

then be incumbent upon the Claimant to prove his case that he had

been dismissed. The burden of proof thus will then shift to the Claimant

to prove his dismissal from employment with the Company before this

Court can determine whether the dismissal (if proven) amounts to a

dismissal without just cause or excuse.

Standard Of Proof

[14] In the case of Telekom Malaysia Kawasan Utara v. Krishnan

Kutty Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal had

laid down the principle that the standard of proof that is required to prove

a case in the Industrial Court is one that is on the balance of probabilities

wherein his lordship Justice Abdul Hamid Mohamad, JCA opined:-

“Thus, we can see that the preponderant view is that the Industrial Court,

when hearing a claim of unjust dismissal, even where the ground is one of

dishonest act, including "theft", is not required to be satisfied beyond

reasonable doubt that the employee has "committed the offence", as in a

criminal prosecution. On the other hand, we see that the courts and learned

authors have used such terms as "solid and sensible grounds", "sufficient to

measure up to a preponderance of the evidence," "whether a case... has been

made out", "on the balance of probabilities" and "evidence of probative value".

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 In our view the passage quoted from Administrative Law by H.W.R.

Wade & C.F. Forsyth offers the clearest statement on the standard of

proof required, that is the civil standard based on the balance of

probabilities, which is flexible, so that the degree of probability required is

proportionate to the nature of gravity of the issue. But, again, if we may add,

these are not "passwords" that the failure to use them or if some other words

are used, the decision is automatically rendered bad in law.”

EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[15] The main contention between the parties here in dispute is

whether the Claimant’s contract of employment was one of permanent

contract of employment or a genuine fixed term contract of employment.

In the event this Court is of the view that the Claimant’s contract of

employment is a genuine fixed term contract then it will follow that the

Claimant’s contract of employment expired on the 01.07.2019 by

effluxion of time. However if the Claimant’s contract of employment and

the ensuing job is deemed permanent in nature, then the Claimant

assertion that he was dismissed without just cause or excuse must be

considered and accepted if there is merit in the Claimant’s assertion.

[16] It is the Company’s version that the Claimant was offered the job

as a security guard in the Security Department since the Security

18
Department had proposed the installation of CCTV in the tin mine. The

existing CCTV was installed in the office and there was a need for a

security guard to monitor the CCTV for one year. The fact that the

Company had stated that the security guard was needed to monitor the

CCTV for one year if proven will naturally make the Claimant’s job one

which is temporary and required for a specific period of time i.e. for a

one year period only and this fact must be proven by the Company.

[17] This Court had perused the “Employee Requisition Form” tendered

in Court as evidence by the Company. In requesting for a security

guard’s position to be filled, the requisition form had given the reasons

for such a need. The “Employee Requisition Form” had this to say :-

“Basically to base at the security CCTV control room to monitor movement of

employees at strategic points.........

A vacancy position for control room operations. Security Surveillance......”

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[18] This Court cannot see in any part of the “Employee Requisition

Form” that the vacancy of the security guard at the time of the requisition

is only for a period of one year to monitor the CCTV as alleged by the

Company. Further the “Employment Interview Report” merely states that

the Claimant is a “Good candidate for the Security CCTV Control room”.

There is nothing in this “Employment Interview Report” making reference

to the job that is offered to the Claimant being temporary or for a specific

duration of time.

[19] Now this Court will analyse the Offer Letter dated 12.06.2018 (the

Offer Letter) for the position of security guard captioned as “Tawaran

Jawatan Sebagai Pengawal Keselamatan (Kontrak)”. Clause 2 of the

Offer Letter states that the contract of employment is for a period of one

year from the 02.07.2019 to 01.07.2019. Yet again this Offer Letter

made no mention of the fact that the contract is temporary in nature

wherein the Claimant was needed to monitor the CCTV for only one

year. If the Company’s contention that the offer for the position of the

20
security guard to the Claimant was only for a period of one year to

monitor the CCTV, then such a fact ought to have been clearly stated in

the Offer Letter making it clear that the Claimant will only be needed to

work for the Company for one year without more and for a specific

purpose only as alleged by the Company.

[20] Further the Offer Letter makes it abundantly clear that the

Claimant was hired for job as a security guard not just for one year only

so as to fulfil the need of the Company for that specific duration. The

Company was fully aware that the job scope of the Claimant is

permanent in nature and does not cease to exist after the duration of the

one year contract term. Clause 5 of the Offer Letter states that the

Claimant is entitled to enjoy annual leave after the completion of one

year service and that his entitlement is based on the number of years in

service wherein a table of the Claimant’s entitlement based on the

number of years of service is listed and it extends to a period of more

than 21 years. If it is true that the contract of employment is one for one

21
year duration only, the Company would not have troubled itself in listing

and elaborating the Claimant’s leave entitlement. By Clause 3 and 9 of

the Offer Letter, again the Company makes it clear that the Claimant is

subjected to transfers from his place of work to any other place or

department of the Company. The Company is also empowered to

redesignate the Claimant to any other job scope it deems fit. The terms

contained in the Offer Letter clearly contradicts the Company’s version

that the Claimant was employed for a period of one year solely for the

purpose to monitor the CCTV for a specific duration of time as the

Claimant had been assigned the job of the security guard at various

places of the Company’s business and operation area pursuant to

Clause 3 and 9 of the Offer Letter. Further terms of employment

contained in the Offer Letter namely “Termination from Employment”

under Clause 10 and “Age of Retirement” under Clause 11 makes it

abundantly clear that the Claimant was hired for a job that was

permanent in nature and not for specific period of one year as alleged by

the Company as Clauses 10 and 11 in addition to Clause 5 and 6 will be

22
totally unnecessary terms of the contract of employment if the intended

purpose was for the Claimant to only to serve the Company for a

duration of one year. In determining the case before this Court it is

important to enquire whose version reflects the genuine and correct

account based on the facts of the case and the evidence adduced. This

Court is mindful that if the Company was in a genuine need for a security

guard on a fixed term contract of employment and that genuine need if

proven, then the Company must be protected against the claim by the

Claimant that he was employed for a job that was permanent in nature.

However the Company is bound to lose that protection if it is proven that

the fixed term contract of employment is only a disguised contract of

employment of an ordinary or permanent contract of employment

intended to deprive the Claimant his rights of employment as such

disguised fixed term contract of employment will invariably lead to unfair

labour practices that must be struck down by this Court.

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[21] Further to the reading of the Offer Letter, this Court had also heard

the evidence of the witnesses which incontrovertibly proves that the

Claimant’s contract of employment is one which is permanent in nature

though disguised as a fixed term contract of employment. COW1 had

given evidence during cross examination that the Claimant was informed

by him that in the event the Claimant performed his duties well and there

were no complaints against the Claimant for any serious misconduct or

breach of terms of employment, the Claimant’s contract will be renewed.

On the 28.06.2019, just two days before the Claimant’s was notified that

his contract that will purportedly expire on the 01.07.2019 will not be

renewed, an appraisal was conducted on the Claimant by COW3 and

COW1 had admitted that this appraisal was conducted for the purposes

of the renewal of the contract of the Claimant. In the Appraisal Form

under option ‘Renewal of Contract”, “Confirmation” and “Promotion”, the

option selected by the Company was for the “Confirmation” of the

Claimant and not “Renewal of Contract”. The word confirmation in the

Appraisal Form is consistent with the Claimant’s claim that his

24
employment was an employment which is permanent in nature and he

had the legitimate expectation to continue with his employment with the

Company pursuant to Clause 11 of the Offer Letter. Even page 3 of the

Appraisal Form if taken as supporting the Company’s case only proves

that the Claimant’s contract will be renewed suggesting that the

Claimant’s contract is not for a one year duration only. This evidence of

COW1 proves that the Company had every intention at the time of

employing the Claimant, to keep him in his employment in a permanent

way as opposed to a period of only one year.

[22] The Claimant had also given evidence which to this Court is

cogent and credible that on the 28.06.2019, the Claimant together with 9

other security guards were directed to attend office for the purposes of

body measurement for their new office uniforms. COW3 in his evidence

during cross examination had admitted that the Claimant’s body

measurement was taken for his new uniform consistent with the

Claimant’s version. COW3 had further admitted that the body

25
measurement and the new uniform that will be made thereafter were for

all security guards whose contract of employment that will be renewed or

extended making it clear to this Court that the Claimant job as a security

guard for the Company is permanent in nature and not for a duration of

one year only as alleged by the Company.

[23] The predicament of the Claimant is nothing new. Ordinary

contracts of employment where the job assigned which were permanent

in nature but disguised or dressed up as fixed term contract of

employment had been dealt by the Industrial Court in the past.

[24] The Industrial Court had the occasion to observe what amounts

to genuine fixed term contract of employment as opposed to an ordinary

contracts of employment in the case of Han Chiang High School

Penang Han Chiang Associated Chinese Schools Association and

National Union Of Teachers In Independent Schools, W. M'sia

[1988] 2 ILR 611 wherein the Industrial had this to state:-

10. The Court, however, is aware that on the other hand there are genuine

fixed term contracts, where both parties recognise there is no understanding

that the contract will be renewed on expiry. The Court realises that

26
such genuine fixed-term contracts for temporary, one-off jobs are an important

part of the range of employment relationships. Some such jobs are found in

seasonal work, work to fill gaps caused by temporary absence of permanent

staff, training, and the performance of specific tasks such as research projects

funded from outside the employer's undertaking. These are the types of work

envisaged in Section 11 of the Employment Act, 1955, which may be

embodied in contracts of service for a specified period of time. This type

of fixed-term contracts are therefore to be differentiated from the so-called

fixed-term contracts which are in fact ongoing, permanent contracts of

employment.

11. In deciding whether a contract is genuinely fixed- term or not, English

tribunals were told:

The great thing is to make sure that the case is a genuine one. On the one

hand, employers who have a genuine need for a fixed-term employment

which can be seen from the outset not to be ongoing, need to be protected.

On the other hand, employees have to be protected against being deprived of

their rights through ordinary employments being dressed up in the form of

temporary fixed-term contracts. What we are saying in this judgment is that

there is no magic about fixed-term contracts; that they are not excluded from

"The Act". (Terry v. East Sussex County Council, 1976, I.C.R. 536, per

Phillips J.)

27
[25] This Court will further add that in determining whether a contract is

a genuine fixed term contract of employment, this Court is duty bound to

enquire the circumstances and the facts of this case as to whether the

Company was honest in wanting to employ the Claimant on a genuine

fixed term contract basis or whether the contract of employment by the

distinct facts of this case was permanent in nature. This of course will

depend much on the facts of this case. The Industrial Court case

of Malaysia Airlines Bhd v. Michael Ng Liang Kok [2000] 3 ILR

179 serves as a useful guide to this Court in embarking on an inquiry on

the determining features of genuine fixed term contract of employment

wherein the Industrial Court in the above case had the occasion to state

the following:-

The question before the court is whether the claimant's employment was

under a genuine fixed term contract or not. The mere description of a contract

as one for a fixed term or a similar label attached to it is not determinative of

the matter. The court must undertake an inquiry into the question whether an

employer genuinely had a need for the services of an employee for a fixed

duration and thereby employed the employee for the said term stipulated in

the contract.

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[26] Based on the foregoing this Court must now make a finding and

conclude that the Claimant’s contract of employment as security guard

with the Company that is contended by the Company as a genuine fixed

term contract of employment must fail and the Claimant’s legitimate

expectation to enjoy security of tenure and continue in his employment

cannot be defeated by the alleged genuine fixed term contract. This

Court now concludes based on the evidence before this Court that the

Claimant’s job as a security guard in the Company is one which is

permanent in nature which had been disguised or dressed up in the form

of temporary fixed-term contracts. The contract of employment of the

Claimant with the Company is certainly one which is permanent in

nature giving rise to the Claimant enjoying the minimum retirement age

of 60 years pursuant to Clause 11 of the Offer Letter. (See also Wong

Mei Yoke v. Tien Wah Press (Malaya) Sdn. Bhd. [2018] 1 ILR 20).

[27] The Company’s submission that there was neither a termination

nor dismissal as the fixed term contract of employment had expired or

29
had come to an end through effluxion of time thereby it was suggested

that the dismissal itself is disputed by the Company. This submission of

the Company must fail. Even for a moment if the said alleged dismissal

is disputed by the Company, the evidence before this Court clearly

shows that the Claimant had discharged the burden of proof on the

balance of probabilities that there was indeed a dismissal of the

Claimant and what remains is for this Court to determine whether the

said dismissal of the Claimant was without just cause or excuse.

[28] In addition to the Company’s position that the contract of

employment had come to an end through effluxion of time due to the

contract being one which is a genuine fixed term contract which this

Court had now ruled otherwise, the Company had also submitted before

this Court that the Claimant’s position is now redundant. In support of its

case the Company cited the case of William Jacks & Co. (M) Sdn. Bhd

v. S Balasingam [1997] 3 CLJ 235. It is the Company’s submission that

it had originally wanted to upgrade the CCTV in the Company for the

30
monitoring of activities at strategic points in the mine, however that plan

did not materialise and the Company had now changed the CCTV

system to a Global Positioning System (GPS Tracking System). The

Security Department was not competent to handle the GPS Tracking

System and this GPS Tracking System is managed by the Technical

Department.

[29] This Court had perused the Statement in Reply of the Company

and must state here that this Court is unable to find “Redundancy” or

“Retrenchment” as the Company’s pleaded case against the Claimant

neither did the Company provide any particulars of the changing of the

CCTV monitoring system to one of GPS Tracking System in its

pleadings. However the way in which the evidence was led in this Court

and the manner in which the submissions of the Company was couched

, it is obscure yet obvious to an enquiring mind that the Company is also

attempting to suggest that the Claimant’s position in the Company is no

longer needed as the installation of the GPS Tracking System had made

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the Claimant’s role as the security guard redundant. On account of this

submissions by the Company this Court must now find it necessary to

embark on the laws relating to redundancy.

The Law On Redundancy And Retrenchment

[30] In the case of William Jacks & Co. (M) Sdn. Bhd v. S

Balasingam [1997] 3 CLJ 235 his lordship Justice Gopal Sri Ram JCA

delivering the judgment of the Court of Appeal had the occasion to

define the term "retrenchment" as an exercise by the Company when

dealing with excess labour supply that does not include dismissal by way

of punishment for misconduct. His lordship had this to state:-

“The issue before that Court was whether there was a genuine retrenchment

exercise vis-a-vis the respondent. Retrenchment means: "the discharge of

surplus labour or staff by the employer for any reason whatsoever otherwise

than as a punishment inflicted by way of disciplinary action" (per S.K. Das J

in Hariprasad v. Divelkar AIR [1957] SC 121 at p. 132).

Whether the retrenchment exercise in a particular case is bona fide or

otherwise, is a question of fact and of degree depending for its resolution

upon the peculiar facts and circumstances of each case. It is well-settled that

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 an employer is entitled to organise his business in the manner he considers

best. So long as that managerial power is exercised bona fide, the decision is

immune from examination even by the Industrial Court. However, the

Industrial Court is empowered, and indeed duty-bound, to investigate the facts

and circumstances of a particular case to determine whether that exercise of

power was in fact bona fide”.

[31] The process of retrenchment can arise in a Company due

to redundancy where there exist a surplus of labour or where a business

requires fewer employees of whatever kind as explained in the following

cases below.

[32] In the case of Vithylingam Letchumanan v. Ice Room Food &

Beverage Management Sdn. Bhd. [2015] 4 ILR 655, the learned

chairman Eddie Yeo Soon Chye (as he then was) had opined that:-

"The term “redundancy” has been defined by Dunston Ayudurai in "Industrial

Relations in Malaysia, Law & Practice", 3rd edn at pp. 255 and 256 as follows:

Redundancy refers to a surplus of labour and is normally the result of

a reorganisation of the business of an employer, and its usual

consequence is retrenchment, ie, the termination by the employer of those

33
 employees found to be surplus to his requirements after the reorganisation.

Thus, there must first be redundancy or surplus of labour before there can be

retrenchment or termination of the surplus."

[33] In the case of Stephen Bong v. FCB (M) Sdn. Bhd. & Anor

[1999] 1 LNS 131 his lordship Nik Hashim J had this to say:-

"With respect, I agree with Mr N Sivabalah's submission that it is not the law

that redundancy means the job or work no longer exists. Redundancy

situations arise where the business requires fewer employees of whatever

kind '(Harvey on Industrial Disputes)'. In the case before me, it is the

Company's case that there was reduced work and reduced business, which

made the applicant's position as an executive director in charge of one group

redundant. The Industrial Court is right when it held that the applicant was

redundant."

[34] In determining whether the Claimant was dismissed with just

cause or excuse by the retrenchment exercise undertaken by the

Company this Court will ask these pertinent questions:-

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 (i) Whether there was a genuine need for the reorganization

exercise by the Company;

(ii) Whether a genuine redundancy situation had arisen which led

to the retrenchment of the Claimant; and

(iii) Whether the Company had complied with the accepted

standards and procedure when selecting and retrenching the

Claimant.

[35] To this effect this Court is guided by the reasoning contained in the

case of Mohd Nor Hassan & Ors v. Continental Sime Tyre Pj Sdn.

Bhd. [2014] 3 ILR 144. If the Company is able to answer all the above

three questions in the affirmative, then this Court must come to a

conclusion that the retrenchment exercise undertaken by the Company

against the Claimant is a bona fide exercise of the managerial powers of

the Company.

[36] Further in the case of Bayer (M) Sdn. Bhd. v. Ng Hong Pau

[1999] 4 CLJ 155 the his lordship Justice Shaik Daud Ismail JCA,

delivering the judgment of the Court of Appeal had the occasion to opine

as follows:-

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 "The burden is on the appellant to prove actual redundancy on which the

dismissal was grounded. (See Chapman & Others v. Goonvean &

Rostawvack China Clay Co. Ltd. [1983] 2 All ER). It is our view that merely to

show evidence of a re-organisation in the appellant is certainly not sufficient.

There was evidence before the court that although sales were reduced, the

workload of the respondent remained the same. After his dismissal his

workload was taken over by two of his former colleagues. Faced with these

evidence, is it any wonder that the court made a finding of fact that there was

no convincing evidence produced by the appellant that the respondent's

functions were reduced to such an extent that he was considered redundant."

[37] Based on the above cases on redundancy referred by this Court, it

is clear that there is nothing before this Court that the Company is able

to show that there was a genuine need for the reorganization exercise

by the Company or there was a reorganisation of the Company’s

business for that matter, There is also no evidence that a

genuine redundancy situation had arisen which led to the retrenchment

or dismissal of the Claimant and that the Company had complied with

the accepted standards and procedure when selecting and purportedly

retrenching the Claimant be it by way of non renewal of the Claimant’s

contract of employment or by dismissal. In essence and it was at all

times the Company’s case that was anchored on the premise that the
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Claimant had been employed on a genuine fixed term contract of

employment which had expired or come to an end through effluxion of

time and it had nothing to do with any alleged redundancy of the

Claimant. Apart from the Company’s reliance on the purported genuine

fixed term contract which had expired, the Company had offered no

evidence on any other genuine reasons for the dismissal of the

Claimant. The Company’s conduct of dismissing the Claimant shows

unfair labour practices.

[38] Pursuant to Section 30(5) of the Industrial Relations Act 1967 and

guided by the principles of equity, good conscience and substantial

merits of the case without regard to technicalities and legal forms and

after having considered the totality of the facts of the case, the evidence

adduced and by reasons of the established principles of industrial

relations and disputes as stated above, this Court finds that the

Company had failed to prove on the balance of probabilities that the

dismissal of the Claimant from his employment with the Company was

with just cause or excuse.

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REMEDY

[39] This Court having ruled that the Claimant was dismissed without

just cause or excuse, will now consider the appropriate remedy for the

Claimant.

[40] The Claimant commenced employment with the Company on the

02.07.2018. The Claimant was dismissed from his employment with the

Company effective 01.07.2019. The Claimant had thus served the

Company for a period of 1 full year of service. The fact that the Claimant

had served the Company for a period of one year beyond the period of 3

to 6 months probationary period in any usual contract of employment

and with no evidence that the Claimant ranks as a probationer, this

Court must conclude that the Claimant enjoys the status of a confirmed

employee of the Company.

[41] The Claimant, in stating that his dismissal from employment with

the Company was without just cause or excuse, prays to this Court for

reinstatement to his former position without any loss of wages and other

benefits. Considering the factual matrix of this case amongst other that

the Claimant had found employment after his dismissal from

employment with the Company though the current employment is not

permanent in nature, it is this Court’s view that reinstatement of the

in the circumstances of this case.

[42] As such the appropriate remedy in the circumstances of this case

must be compensation in lieu of reinstatement. The Claimant is also

entitled for back wages in line with Section 30(6A) Industrial Relations

Act 1967 and the factors specified in the Second Schedule therein which

states:-

“1. In the event that backwages are to be given, such backwages shall

not exceed twenty-four months' backwages from the date of dismissal

based on the last-drawn salary of the person who has been dismissed

without just cause or excuse;”

[43] The contract of employment states that the Claimant’s salary was

RM1,000.00. However the Claimant had given evidence that his regular

working hours are on a 12 hourly shift. This evidence of the Claimant is

consistent with the Claimant’s attendance card (“Time Card”) produced

as evidence in Court. The salary slip of the Claimant also shows that the

Claimant was paid more than RM1,000.00 as reflected in the Offer Letter

wherein his monthly salary was between 2,131.00 to RM2,223.50 before

various deduction. The Claimant’s last drawn net pay was RM2,230.50.

39
The Claimant’s last drawn wages before Employees Provident Fund

(EPF), Social Security Organisation (SOCSO) and Employee Insurance

System (EIS) deduction would amount to RM2,484.70. As such this

Court will compute the Claimant’s last drawn salary/wages to be

RM2,484.70 which sum is marginally lower than the Claimant’s

computation which amounts to RM2,693.19.

[44] Equity, good conscience and substantial merits of the case without

regard to technicalities and legal forms remains the central feature and

focal point of this Court in arriving at its decision and these principles will

be adhered by this Court at all times leading to the final order of this

Court.

[45] This Court is further bound by the principle laid down in the case of

Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah)

& Anor [2001] 3 CLJ 541 where his lordship Justice Steve Shim CJ

(Sabah & Sarawak) in delivering the judgment of the Federal Court

opined:-

“In our view, it is in line with equity and good conscience that the

Industrial Court, in assessing quantum of backwages, should take into

account the fact, if established by evidence or admitted, that the

40
 workman has been gainfully employed elsewhere after his dismissal.

Failure to do so constitutes a jurisdictional error of law. Certiorari will

therefore lie to rectify it. Of course, taking into account of such

employment after dismissal does not necessarily mean that the

Industrial Court has to conduct a mathematical exercise in

deduction. What is important is that the Industrial Court, in the exercise

of its discretion in assessing the quantum of backwages, should take into

account all relevant matters including the fact, where it exists, that the

workman has been gainfully employed elsewhere after his dismissal.

This discretion is in the nature of a decision-making process”.

(emphasis is this Court’s)

[46] This Court must take into account the post dismissal earnings of

the Claimant in order to make an appropriate deduction from the back

wages to be awarded. The Claimant had given evidence that after he

was dismissed from his employment with the Company, he had been

jobless with no post dismissal earnings or income for about 6 to 7

months. Thereafter the Claimant had found a job with a monthly income

of RM 1,400.00 to RM1,600.00. This reduced post dismissal earnings

and the Claimant’s unemployment status with no income for about 6 to 7

months are factors that this Court will consider when ordering the

backwages.

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[47] Having considered all the facts of case on the appropriate sum to

be awarded and after taking into account the post dismissal earnings or

income of the Claimant, this Court hereby orders that the Claimant be

paid 1 month salary/wages of the last drawn salary/wages of

RM2,484.70 for one year of service completed and back wages of the

last drawn salary/wages of RM RM2,484.70 for 14 months. This will

amount to:-

(i) Backwages ordered:

RM2,484.70 x 14 months = RM 34,785.80

(ii) Compensation in lieu of Reinstatement:

RM2,484.70 x 1 month = RM 2,484.70

Total amount ordered by this Court: RM 37,270.50

FINAL ORDER OF THIS COURT

[48] It is this Court’s order that the Company pays the Claimant a sum

of Ringgit Malaysia Thirty Seven Thousand Two Hundred Seventy

and Cents Fifty (RM 37,270.50) only less statutory deduction (if any)

through the Claimant’s Representative, Malaysian Trades Union

42
Congress (MTUC) as pleaded in the Statement of Case within 30 days

from the date of this Award.

HANDED DOWN AND DATED THIS 11th DAY OF AUGUST 2021

-signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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