INDUSTRIAL COURT OF MALAYSIA CASE NO. 10/4 - 174/08 BETWEEN ENCIK HARUN BIN HASSAN AND OCEANPAC SDN. BHD.
AWARD NO. 185 OF 2010 Before Venue Date of Reference Dates of Mention Dates of Hearing : : : : : Y.A. TUAN FREDRICK INDRAN X.A. NICHOLAS CHAIRMAN (Sitting Alone) Industrial Court of Malaysia, Perak Branch 19 December 2007 13.3.2008, 15.4.2008, 20.5.2008, 5.8.2008 and 7.10.2008 29.4.2009 and 30.4.2009 : : : 15 June 2009 20 July 2009 5 November 2009
Claimants' Written Submission Company's' Written Submission Claimants' Written Submission-In-Reply Representation :
Mr. Mohamad Fakhzan bin Md. Noor Messrs Fakhzan Azlina & Associates Advocates & Solicitors Learned Counsel for the Claimant Mr. Tan Kee Tett Senior Consultant – Industrial Relations Malaysian Employers Federation (MEF) Representative for the Company 1
Harun Bin Hassan (‘the Claimant’) ceased from employment with OceanPac Sdn. Bhd. (‘the Company’) with effect from 30.9.2007. The Claimant considering himself to have been dismissed by the Company without just cause or excuse, made representations under s. 20 of the Industrial Relations Act 1967. The Claimant’s representations became a reference before this Court by order of the Honourable Minister of Human Resources, Malaysia. This ministerial dictate was dated 19.12.2007, which was received by the Court’s Registry at Kuala Lumpur on 30.1.2008 and by this Division of the Court at Ipoh, Perak on 18.2.2008.
The Claimant commenced employment with the Company as the ‘Human Resources Manager’ with a basic salary of RM1,700.00 per month with effect from 1.7.1997. The said appointment was purely on an oral basis. It is to be remembered that section 2 of the Industrial Relations Act 1967 provides that a contract of employment may be oral or in writing.
In or about the year 2003 the Claimant was provided with an allowance of RM200.00 per month over and above his monthly basic salary. Sometime in October 2006 the Claimant was re-designated as the ‘Public Relations Manager’ with an
increment in basic salary to RM1,800.00 per month. His monthly allowance remained the same.
By way of a letter issued by the Company dated 3.9.2007 (see page 1 of Bundle marked ‘IDP’) the Company stated that the Claimant’s employment would cease on 30.9.2007. This letter without its formalities reads:
With reference to the above matter, we wish to inform you that you have reached the retirement age of 55 years old. We regret to inform you that our company has no intention to continue with your contract of service.
Your contract of services [sic] will be terminated on 30th September 2007.
Thank you for your services with our company for the passed [sic] 10 years.”
This ended the nexus between the Claimant and the Company.
The issue thus before the Court is what caused the cessation of the Claimant’s employment on 30.9.2007. If it was as a result of his having reached his contractual age of retirement then it cannot be a dismissal sans just cause or excuse. On the
other hand, if the termination was brought about for any other reason, other than his having reached retirement age then the Court will have to examine those reasons to determine whether they constituted a termination with just cause or excuse.
It is for the Company to make out the reason for the dismissal and to show that it was for just cause or excuse. [See the cases of WONG CHEE HONG v. CATHAY ORGANISATION (M) Sdn. Bhd.  1 MLJ 92 per Salleh Abas LP; and WONG YUEN HOCK v. SYARIKAT HONG LEONG ASSURANCE SDN. BHD. & ANOR  3 CLJ 344 & MILAN AUTO SDN. BHD. v. WONG SEH YEN  4 CLJ 449 per Mohd. Azmi FCJ].
Further, In COLGATE PALMOLIVE (M) Sdn. Bhd. v. YAP KOK FOONG  2 ILR 965 (Award 368 of 1998); @ 976 the Learned Chairman Mr. Lim Heng Seng held:
“In a section 20 reference, a workman’s complaint consists of two elements:...
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