Professional Documents
Culture Documents
Award 39479
Award 39479
CASE NO : 21/4-2835/21
BETWEEN
AND
CHAIRMAN
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REFERENCE
Introduction
[2] At the outset, this court is moved by the company to dismiss the Claimant’s
claim, on the ground that the Claimant had not commenced his employment
with the company; notwithstanding the fact that a letter of offer dated
14.04.2021 had been issued to the claimant and counter signed by him on
14.04.2021. It is undisputed that by virtue of the said letter of offer, the claimant
would have been required to report for duty on 08.06.2021. Nevertheless, since
the letter of offer had been revoked by the company on 07.05.2021, there had
been no employment just yet. It is argued therefore that the claimant could
argued by the company that the Claimant is not a workman as defined under
the Industrial Relations Act 1967 (IRA) that renders this case a nullity.
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Procedural History
[3] The trial for this case took place on 12.01.2023 and 19.04.2023. Two (2)
witnesses were called and examined, namely Mr Rajaindran A/L Moorthi i.e the
Claimant himself (‘Claimant’) and Ms Lee Fu Chyun for the company ('Ms Lee’).
[4] The documents filed by the parties in the course of these proceedings and its
FACTUAL MATRIX
[5] The company manages the Berjaya Times Square shopping mall complex
('BTS Mall’). The Claimant was previously employed as a security manager with
OSK Realty Sdn Bhd (‘OSK’) since 02.05.2018. Vide a letter dated 14.04.2021,
the company offered the Claimant a post as a senior security manager in the
company with a basic salary of RM8,500 per month (See: Letter of Offer of
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the LO and agreed to commence his employment with the company on
[6] The aforesaid events came about at the period of time when the nation was
across various sectors, BTS Mall is no exception. Ms Lee had explained the
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5.5.2021
• Refer to Tab D of RBOD - The Straits Times news
article dated 5.5.2021
• Refer to Tab E of RBOD - The Straits Times news
article dated 6.6.2021
Following the above, and in order for the BTS Mall to cope
with the adverse impacts caused by the MCO, the
Respondent had to undertake a major restructuring amongst
others, by suspending all recruitment activities
(‘Management’s Decision’).
[7] Following the reintroduction of the MCO at the material time, it was decided that
wherein all recruitment plans by the company and/or BTS Mall were
suspended. As a result, the company was unable to offer the position as stated
in the LO to the Claimant. In her explanation, Ms. Lee testifies that “Following
of COB 1).
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[8] Of pertinent to note is that the revocation of the LO was done before Claimant’s
intended commencement date with the company. This was conceded by the
RM Yes.
RM Yes.
NOP p. 32
[9] Further, and following the revocation of the LO, the Respondent has paid a one-
Compensation from the company, the Claimant attempted to seek for more
(see: Tab G p.34 of COB1), which the company had refused as the Claimant
[10] Along with the claimant’s revocation of the LO, the company had also revoked
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Ms Lee’s witness statement
Q15 Besides the Claimant, can you inform the Court if the
Respondent had revoked any other employment offers?
[11] Following the withdrawal of the employment offer to the Claimant on 24.5.2021,
the Claimant informed his intention to withdraw his resignation, as the Claimant
wanted to continue his employment with OSK. This was refused by OSK
the company had dismissed the Claimant on 21.5.2021, when the Respondent
ACWK Alright. Do you agree with me that your last day with
OSK would be 04/06/2021?
ACWK Yes. And can you, sorry. So I will just retract that
question. So, after referring to Tab 7, document at Tab
7, do you agree that you have attempted to retract
your resignation with OSK?
RM Yes, I withdrew.
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ACWK Sorry?
RM Withdraw.
RM Yes, I agree.
ACWK You agree. Do you agree that you have filed this
proceeding against Berjaya Times Square because
OSK Realty declined your request to withdraw your
resignation?
RM Ok.
RM Yes.
RM Yes.
ACWK And do you agree with me that you have never
been the employee of the Company at any point in
time?
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RM Never been the employee?
ACWK Yes.
Company’s Submission
[12] The company’s bone of submission is that this Court ought to dismiss the
Claimant’s claim, as the Claimant had not commenced its employment with the
Respondent. Thus, the company could not have dismissed and/or terminated
never been a workman of the company as defined under the IRA. This
Claimant’s Submission
[13] This court is urged to consider the pertinent fact in the present case that there
was an offer of employment made by the Company to the Claimant which is not
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disputed by the company. The document signed by both parties on 14.4.2021
employee notwithstanding the fact that the Claimant was only due to start his
[14] It is submitted that the Company had in its conduct, recognized that the
Claimant was an employee of the Company. The conduct of the company are
highlighted as follows:
[15] Based on the above conduct by the company, the claimant submits that the
company had treated him as its workman and that the company acted unfairly
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and in breach of natural justice when they revoked his employment with the
ISSUES
[16] The issues for determination in this case is whether there is dismissal of the
claimant by the company; and if so, whether the dismissal was with just cause
or excuse.
[17] The Claimant’s claim was filed pursuant to s 20 of the IRA which reads as
follows:
Representations on dismissals
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[18] Section 2 of IRA defined “workman” as follows:
[19] In Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 MLJ 92,
Tun Salleh Abas LP held at p. 95 that when dealing with a reference under
s 20 of IRA, the first thing that the Court will have to consider is whether
there was a dismissal, if yes, whether the dismissal was done with just
cause or excuse.
[20] Further, in Weltex Knitware Industries Sdn Bhd v. Law Kar Toy [1988] 7
MLJ 359 His Lordship Abdul Kadir Sulaiman J held at p. 363 as follows:
“…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
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with just cause or excuse would not at all arise.”
(Emphasis added)
[21] Wong Chee Hong and Weltex Knitware were adopted and followed in the
case of Borneo Pulp & Paper Sdn Bhd v Rajan Chellaiah [2002] 2 MELR
637 wherein learned Chairman Amelia Tee Hong Geok Abdullah [as she then
“Preliminary Issues
At the outset of the case, the question arose as to who should begin the
case. The claimant's case is that he was dismissed by the company. The
company, on the other hand, contends that there was no dismissal, and
as such the claimant should start the case. The court relied on the case
of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd [1987] 1 MELR
32; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 as cited by learned counsel
for the company where YAA Salleh Abas, LP had this to say at p. 49 (at
p. 302):
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[22] It is clear that under s 20 of IRA, a representation on dismissal could only be
a) In Borneo Pulp, the Court was called upon to determine whether the
claimant was a workman, as the claimant had never commenced his
employment with the company. The Court therein found that the
claimant was not a workman as the letter of offer for employment was
terminated before the claimant commences his employment with the
company:
After full consideration, the court finds that although these exists
a contract of employment between the parties, the claimant in this
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case cannot be considered to be a workman within the context of
s. 20(1) of the Industrial Relations Act 1967. Had he commenced
work on 1 March 1997 as per the letter of offer he would have
been a workman. Since the contract was terminated on 19
February 1997 before he could commence employment, the
company was at best only a prospective employer of the
claimant. My finding on this is reinforced by the fact that if
claimant had been held to be a workman even before he
commenced employment, it would lead to a ludicrous and
unacceptable situation where claimant would have been
entitled to reinstatement if the dismissal was held to be
without just cause or excuse. Reinstatement means to
restore or replace in a lost position. According to The
Concise Oxford Dictionary (6th Edition), the claimant cannot
conceivably be reinstated to a position that he has not held
for even a day.
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returned it to the company. The claimant may have a remedy for
breach of contract in a Civil Court. In the Industrial Court, in order
for the claimant to succeed, the claimant must have been
employed by the company. The claimant had not commenced
employment with the company.
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cause or excuse by his employer, he may make
representations in writing to the Director General to
be reinstated in his former employment; the
representations may be filed at the office of the
Director General nearest to the place of
employment from which the workman was
dismissed.
The court held that the burden of proof was on the claimant
to prove that she was employed by the company. The
claimant did not prove that she was a workman of the
company. The court relied on Weltex Knitware Industries
Sdn Bhd v Law Kar Toy & Anor [2] [1998] 7 MLJ 359 where
the High Court held that the burden of proof was on the
claimant to prove that she was dismissed by the company.
In the circumstances, the claim was dismissed. (Emphasis
added)
[23] The narrative in the instant case before this court is similar. The Claimant had
not commenced his employment with the Respondent. This is because the LO
had been withdrawn before the Claimant’s Commencement Date. For ease of
[24] Hence, the Claimant was never a workman of the Respondent under the IRA
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on 21.05.2021 is a misdirection and erroneous.
[25] It is pertinent to note that as at 21.5.2021, the Claimant was still under the
employment of OSK. In fact, the Claimant pleads in the Statement of Case that
follows: “The Claimant was previously employed with a company called OSK
Realty Sdn Bhd from 2nd May 2018 until 14th to 4th June 2021 (Last Working
Day) in the position of a security manager with a last drawn monthly salary of
RM 8120.00.”]
[26] The claimant’s confirmation as to his employment under OSK had been
follows:
RM : Yes.
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RM : “I have tendered my resignation on the 14/04/2021. My
RM : Yes, agree.
employee.
RM : Yes, agree.
[27] Based on the claimant’s pleading and evidence as above, it is clear that the
Claimant was still employed by OSK and cannot be said to have commenced
his employment with the company on the day he claims to have been
arise at all since the Claimant was never a workman of the company on
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21.05.2021 or on any date for that matter. [Weltex Knitware Industries Sdn
[28] Since the Claimant was never the company’s employee, the issue of whether
cause or excuse. [Wong Chee Hong v Cathay Organisation (M) Sdn Bhd
[1988] 1 MLJ 92, supra]. It necessarily follows that the entailing issues of
[29] The revocation of the LO was done bona fide due to the restructuring exercise
as testified by the company’s witness Ms. Lee that the company had decided
result, the company was unable to offer the position as stated in the LO to the
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observed that the company’s explanation on the restructuring exercise was not
challenged by the claimant. On the contrary, the claimant had agreed to the
RM Yes, agree.
RM Yes, agree.
ACWK And based on the articles that you have read at Tab C and
Tab D earlier. Do you agree that KL was placed again
under MCO in May 2021?
RM Yes, sir.
RM Agree.
RM Agree.
RM Agree.
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ACWK Do you agree with me that the Respondent runs one of the
shopping malls in Kuala Lumpur?
RM Agree.
ACWK Can you inform the Court what is the shopping mall in
question?
RM Yes, agree.
[30] The Claimant had further acknowledged that the company undertook a major
RM Yes.
RM Yes.
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RM Agree.
NOP. P.31
[31] Based on the evidence by the claimant above, this court is satisfied that the
bone of contention. The claimant; by his own testimony as can be seen above,
readily accepts and has no qualm about the restructuring exercise by the
[32] On the authorities, the law of retrenchment and the role of Industrial Court is
fide. In William Jacks and Co (M) Bhd. v S. Balasingham [1997] 3 CLJ 235,
Gopal Sri Ram JCA (then FCJ) explained the term of “retrenchment” further
held the view that the Court does not interfere with the domestic affairs of the
company:
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circumstances of the case. It is well settled that the employer is
[33] Upon careful consideration of the material facts in the instant case, this court
found that the restructuring exercise by the company [leading to the revocation
of the letter of offer issued to the claimant] was done bona fide, on the balance
of probabilities. Two other letters of offer were withdrawn by the company in the
government of Malaysia had implemented MCO since 18.3.2020, and had also
implemented various lockdown measures throughout 2020 and 2021. This has
severely affected the Respondent and/or BTS Mall. To combat the hardships
sustainability. These were clearly spelt out to the Claimant in the Revocation
Letter. Such a restructuring was justified, done in good faith and not for any
ulterior motive.
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DECISION
[34] In the upshot, having considered the pleadings, facts of the case, evidences;
oral and documentary as well as the written submissions filed by both parties,
this court is of the views that as the claimant was never a workman for the
cannot be burdened to answer whether any such dismissal was with just cause
CONCLUSION
[35] This court had arrived at the above considered decision, having considered the
provision in Section 30(5) of the Industrial Relation Act 1967 by which virtue
this Court shall act according to equity, good conscience and the substantial
merit of the case without regard to technicalities and legal form, and has no
~signed~
(SYED NOH BIN SAID NAZIR @ SYED NADZIR)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR
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