industrial court malaysia - Malaysian Legal and Tax Information Centre
industrial court malaysia - Malaysian Legal and Tax Information Centre industrial court malaysia - Malaysian Legal and Tax Information Centre
(a) That in order to safeguard a workman's security of tenure, a dismissal must be grounded on just cause or excuse (Dr. A. Dutt v Assunta Hospital [1981] 1 MLJ 304). (b) That there is no material difference between a termination and a dismissal. And further: The term employed in the act of bringing a workman's employment to an end is inconsequential; it is the Court's duty to determine whether that act, whatever the label attached to it, was for just cause or excuse.” “ (d) That the burden of proof of the facts which would constitute just cause or excuse is on the employer. The employer discharges his burden by adducing evidence either oral or documentary, to prove the facts which he alleges as constituting just cause or excuse. (e) That the Court's duty is to enquire whether the reason or excuse advanced by the employer has or has not been made out. If the Court 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.” Claimant's Arguments The Claimant submitted that the Company had terminated his employment simpliciter under the guise of poor performance and restructuring. The Claimant pointed out that after the fact of termination on 9.7.2009, the Company alleged other “grounds” for the Claimant's dismissal, such as, 8
'misbehaviour', 'inappropriate behaviour', 'detrimental to ...reputation' and/or 'abuse of trust and confidence' (paragraphs 15, 16, 17 and 23 of the SIR). It was submitted on behalf of the Claimant that at no time did these allegations feature as part of the Company's grounds for termination as stated in its Letter of Termination dated 9.7.2009 (page 18-19, Exhibit 2, SOC). Company Witness The CEO Johan Dennelind, who had issued the letter of termination did not come as a witness. Instead the Company relied solely on the evidence of the Claimant's subordinate Mr. Chan Nam Kiong (“COW-1”), the Company's sole witness who obviously had no personal knowledge pertaining to the Claimant's termination. As aptly pointed out by Claimant's Counsel, his evidence was purely based on his opinion and/or view. His evidence under cross examination was as follows: “Q : Prior to the Claimant's termination, you were not in the Digi A : Agree. Management Team? Q : In terms of the hierarchy, you have the following: CEO A : Yes. CTO (Chief Technology Officer) CFO (Chief Financial Officer) CMO/CCO (Chief Marketing Officer / Chief Commercial Officer) (Claimant)? 9
- Page 1 and 2: INDUSTRIAL COURT MALAYSIA CASE NO:
- Page 3 and 4: The Pleadings The Pleadings in this
- Page 5 and 6: Bjorn Magnus Kopperud to him (page
- Page 7: We wish you well in your further un
- Page 11 and 12: Decision on the First Issue The bur
- Page 13 and 14: It was argued on behalf of the Clai
- Page 15 and 16: The principle in Han Chiang appears
- Page 17 and 18: Third Issue: If the dismissal was w
- Page 19 and 20: the relevant factors into considera
- Page 21 and 22: Appeal had observed that in industr
- Page 23 and 24: gainsaid that this is a very senior
- Page 25 and 26: In Robert John Reeves v Southern Ba
- Page 27 and 28: was only reasonable that the first
(a) That in order to safeguard a workman's security of tenure, a dismissal<br />
must be grounded on just cause or excuse (Dr. A. Dutt v Assunta<br />
Hospital [1981] 1 MLJ 304).<br />
(b) That there is no material difference between a termination <strong>and</strong> a dismissal.<br />
And further:<br />
The term employed in the act of bringing a workman's employment to an<br />
end is inconsequential; it is the Court's duty to determine whether that act,<br />
whatever the label attached to it, was for just cause or excuse.”<br />
“ (d) That the burden of proof of the facts which would constitute just<br />
cause or excuse is on the employer. The employer discharges his<br />
burden by adducing evidence either oral or documentary, to prove<br />
the facts which he alleges as constituting just cause or excuse.<br />
(e) That the Court's duty is to enquire whether the reason or excuse<br />
advanced by the employer has or has not been made out. If the Court<br />
finds as a fact that it has not been proven, then the inevitable conclusion<br />
must be that the termination or dismissal was without just cause or<br />
excuse.”<br />
Claimant's Arguments<br />
The Claimant submitted that the Company had terminated his employment<br />
simpliciter under the guise of poor performance <strong>and</strong> restructuring.<br />
The Claimant pointed out that after the fact of termination on 9.7.2009, the<br />
Company alleged other “grounds” for the Claimant's dismissal, such as,<br />
8
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