INDUSTRIAL COURT OF MALAYSIA

CASE NO: 31(2)/4-1180/17

BETWEEN

FARIDA ARYANI BINTI JAMALUDIN

AND

NAMUDA ELASTOMERS TECHNOLOGY (M) SDN. BHD.

AWARD NO: 1380 OF 2018

Before : SYED NOH BIN SAID NAZIR @ SYED NADZIR

Chairman

Venue : Industrial Court Malaysia, Kuala Lumpur

Date of Reference : 31.07.2017

Dates of Mention : 26.09.2017, 16.10.2017, 01.11.2017, 44.12.2017,

30.01.2018, 13.03.2018, 12.04.2018

Date of Hearing : 08.06.2018

Representation : Mr. Munjit Singh

Malaysian Trade Unions Congress
Representative for the Claimant

Company - absent
Reference :

This is a reference made under section 20 (3) of the Industrial

Relations Act 1967 (the Act) arising out of the dismissal of Farida Aryani
binti Jamaludin (hereinafter referred to as “the Claimant”) by Namuda
Elastomers Technology (M) Sdn. Bhd. (hereinafter referred to as “the
Company”) on 21 March 2017.
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AWARD

[1] The Ministerial reference in this case requires the court to hear and
determine the Claimant's complaint of dismissal by the Company on 21
March 2017.

THE FACTS OF THE CASE

[2] The Claimant was employed by the Company as Director of

Finance & HR and was offered a monthly salary of RM10,000.00 per
month.

[3] It was stated at paragraph 6 of the Claimant’s Employment

Agreement dated 17 October 2016 hat “Effective 1st November 2016, your
basic salary will be adjusted to RM30,000 per month.” The Company will
make contribution to EPF and SOCSO accordingly (Please refer page 1-5
of “CLB-1”).

[4] The Company paid the Claimant her salary for the month of October
2016 in the sum RM10,000.00. However, the Company failed to pay what
was said to be the alleged adjusted monthly salary of RM30,000.00 per
month for the subsequent months to the Claimant.

[5] Instead, the Company only paid to the Claimant salary in the sum
RM5,000.00 for the month of November 2016 and RM2,000.00 for the
month of December 2016.

[6] On 6 January 2017, the Claimant had a meeting with the

Company’s officers namely:

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(a) The President/Chairmen;

(b) The Plantation Manager Cum Director; and

(c) Vice President cum Director.

In the above said meeting, the President/Chairman highlighted the current

situation and financial standing of the Company.

[7] It was alleged that in the said meeting, the President/Chairman of

the Company told the Claimant to resign from the Company due to the
Company’s condition.

[8] What transpired in the above meeting was summarized by the

Claimant in her letter to the President/Chairman of the Company dated 14
March 2017 which was said to have been sent via e-mail. This letter was
marked independently as “CLB-3”.

[9] In the letter, the Claimant had inquired about her status of
employment in the Company. She further stated that “if the Company does
not want to continue my service, I would like to request for the letter of
dismissal or termination letter issued to me”. No reply came from the
Company.

THE COURT’S FINDING

[10] These documents were filed by the Claimant and are available
before the court:
(a) The Statement of Case;

(b) The Claimant’s Bundle of Document – “CLB-1”;

(c) The Claimant’s Bundle of Document – “CLB-2”; and

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(d) The Claimant’s Witness Statement – “CLWS-1”.

[11] The Company did not file any cause papers nor any document
whatsoever and neither of the Company’s representatives were present in
court on the date fixed for hearing. That being the case, the hearing
proceeded ex-parte, in the absence of the Company.

[12] It can be seen from the Employment Agreement dated 17 October

2016 (CLB-1) that the Claimant was working with the Company on
probation for a period of three (3) months. The appointment was subject to
the satisfactory completion of the Probationary Period which “itself is
subject to termination at any stage, by either party, upon 1 week notice in
writing”. (Please refer page 3 of CLB-1 at para. 5).

[13] Further, paragraph 6 of the said Employment Agreement provides

that effective 1 November 2016, the Claimant’s salary will be adjusted to
RM30,000.00 per month.

[14] The court found that this does not mean an automatic adjustment of
the Claimant’s salary from RM10,000.00 to RM30,000.00 starting from
November 2016.

[15] No evidence was produced by the Claimant to support her claim

that her monthly salary was administratively adjusted to RM30,000.00
effective November 2016. Therefore, the court is of the considered view
that the Claimant’s monthly was RM10,000.00 per month at all material
times.

[16] The court is also mindful of the fact that the Claimant was still
working on a probationary basis for a period of three (3) months. It is to be
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noted that there was also no evidence that the Claimant’s employment
being confirmed by the Company.

[17] Based on the evidence available before the court, it is the court’s
finding that the Claimant’s employment was not terminated with just cause
or reason when the Company terminated her orally in the meeting dated 6
July 2014.

THE REMEDY

[18] As the Claimant was still under probation at the time of her
dismissal and due to the fact that her probationary period was for a
duration of three (3) months, the Company is hereby ordered to pay
backwages in the sum:

RM10,000 per month x 3 months = RM30,000.00 together with all

necessary and statutory contributions towards EPF and SOCSO to
be paid to the Claimant through the Claimant’s representation within
30 days from the date of this award.

[19] The Claimant’s plea for reinstatement to her former position is

dismissed.

HANDED DOWN AND DATED THIS 21 DAY OF JUNE 2018