5/4-2550/20

IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 5/4-2550/20

BETWEEN

WAN NURFAIZAH BINTI WAN MD NOR

AND

CEKAP TECHNICAL SERVICES SDN. BHD.

AWARD NO: 1727 OF 2022

Before : Y.A. TUAN AHMAD ZAKHI BIN MOHD DAUD

Chairman

Venue : Industrial Court, Kuala Lumpur.

Date of Reference : 22.10.2020

Dates of Mention : 26.11.2020, 15.07.2021, 23.08.2021

Dates of Hearing : 14.02.2022, 15.02.2022

Representation : Daniel Husseini Mohd Ghazali Forsberg with

Wan Azwan Aiman bin Wan Fakhruddin
from Messrs Azwan Aiman Forsberg & Co.
Counsels for the Claimant

Marwan bin Abdullah with

Nur Atiqah binti Zainol Alam
from Messrs Mu’az Aiman Halem Auzan &
Associates
Counsels for the Company

Reference

This is a reference made under section 20 (3) of the Industrial Relations Act 1967

(“The Act”) arising out of the dismissal of Wan Nurfaizah binti Wan Md Nor (“Claimant”)

by Cekap Technical Services Sdn. Bhd. (“Company”) on the 14.06.2020.

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AWARD

[1] The Ministerial reference in this case required the court to hear and determine

the Claimant’s complaint of dismissal by the Company on 14.06.2020.

Background

[2] The dispute before this court is the claim by the Claimant that she had been

dismissed from her employment without just cause or excuse by the Company on the

14.06.2020.

[3] On 23.05.2019, the Company had been awarded a contract by the Petronas

Technical Services Sdn Bhd (PTSSB) for providing the supply of manpower services

to Petronas.

[4] On 03.06.2019, the Claimant had consented to contract with the Company in

order to provide her services pursuant to the contract awarded to the Company by

PTSSB.

[5] On 28.06.2019, PTSSB through purchase order had requested the Company

to supply manpower namely the Claimant for Pipeline Replacement Project. The

Claimant would be located at Menara Berkembar Kuala Lumpur starting from

01.07.2019 until 30.04.2021.

[6] On 29.06.2019, the Company and the Claimant entered into a contract of

service and she was employed as Head of Facilities.

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[7] On 29.05.2020, the Company had been instructed by PTSSB to terminate the

Claimant’s contract on immediate basis due to poor performance.

[8] On the 01.06.2020, the Company issued a termination/dismissal letter to the

Claimant on the ground that PTSSB has decided to end Claimant’s contract/service

on immediate basis. The Claimant’s last drawn salary was RM18,360.00.

The Duty of the Industrial Court

[9] The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation

(M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 held that:

“When the Industrial Court is dealing with a reference under s. 20, the first

thing that the court will have to do is to ask itself a question whether there

was a dismissal, and if so, whether it was with or without just cause or

excuse.”

[10] The Federal Court in the case of Goon Kwee Phoy v J & P Coats (M) Bhd

[1981] 2 MLJ 129 held that:

“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

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the inevitable conclusion must be that the termination or dismissal was

without just cause or excuse”

The Standard of Proof

[11] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni

Nair & Anor [2002] 3 CLJ 314, the court laid down the principle that the standard of

proof that is required is one that is on the balance of probabilities.

“Thus in hearing a claim of unjust dismissal, where the employee was

dismissed on the basis of an alleged criminal offence such as theft of

company property, the Industrial Court is not required to be satisfied

beyond a reasonable doubt that such an offence was committed. The

standard of proof applicable is the civil standard, ie, proof on a balance of

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

proportionate to the nature and gravity of the issue.”

Issues

[12] (a) Whether the termination or dismissal is with or without just cause or
excuse.

(b) Whether that excuse or reason has or has not been made out.

The Findings

[13] In this case, the fact of Claimant’s termination is not disputed. Thus the only

issue to be decided by this court is the claim by the Claimant that she had been

dismissed/terminated from heremployment without just cause or excuse by the

Company on the 14.06.2020.

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[14] The burden of proof lies on the Company that the Claimant had been dismissed

with just cause or excuse on the balance of probabilities.

[15] The Company had given the reasons for terminating the Claimant’s

employment with the Company (as stated in the dismissal/termination letter dated

01.06.2020 at page 71 of COB-1)

[16] The evidence before this court shows that:

(a) the Company’s client that is PTSSB had decided that the Claimant’s

services are no longer required due to poor performance. (page 68 of

the COB1);

(b) PTSSB had instructed the Company to end the service of the Claimant

with PTSSB on immediate basis. (as stated in the answer to question

no.14 COWS1);

(c) the Company cannot ignore PTSSB’s instruction which will be against

the terms and conditions in the contract between the Company and the

PTSSB. (as stated in the answer to question no.25 and 26 COWS1)

(page 67, Exhibit 4 at para 12 of the COB1);

(d) based on the Client’s decision that the Claimant’s services are no longer

required, the Company issued a Release and Termination of

Employment letter to the Claimant pursuant to sub-clause 7.1 of the

Contract of Service. (as stated in the answer to question no.15 COWS1)

and (page 71 of the COB1);

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(e) demobilisation at sub-clause 7.1 means the release of the personnel

from work location back to point of hire after end of service. (as stated in

the answer to question no.27 COWS1);

(f) the Claimant’s contract of service period was provided under sub-clause

2.2 that is either from 01.07.2019 to 30.04.2021 or subject to PTSSB’s

requirement. (as stated in the answer to question no.17 COWS1) and

(page 9 of the COB1); and

(g) the Claimant cannot be relocated to any other position within the

Company or its client because the Claimant was employed exclusively

to provide services for PTSSB and it will be against the Contract of

Service. The contract shall end when the PTSSB no longer requires the

service of the Claimant. (as stated in the answer to question no.19

COWS1).

[17] In this case, the Company and the Claimant had entered into an agreement,

that the Claimant will provide her services to the Company’s client namely PTSSB, in

carrying out the Pipeline Replacement Project starting from 01.07.2019 until

30.04.2021. After the Claimant had served the PTSSB for almost 1 year, the

Company’s client was not satisfied with the work performance of the Claimant. The

PTSSB then instructed the Company to end the service of the Claimant on immediate

basis. The Company, pursuant to clauses 2.2, 7 and 7.1 of the Contract of Service

dated 29.06.2019, issued a Release and Termination of Employment letter to the

Claimant.

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[18] In the case of Antara Vista Sdn Bhd v Rumaya Properties Sdn Bhd [2017] 1

LNS 1876, it was held by the Court of Appeal [vide the judgment of Abang Iskandar

Abang Hashim JCA (as His Lordship then was):-

“ One of the cardinal rules of interpretation of a contractual document has

been that the court ought not to look beyond what was contained within

the four walls of the contract document. The contract document must

contain within its four walls what the parties have agreed to be bound for,

in the performance of the contract. What is not contained within its four

walls would necessarily mean that such omission was intentionally so

omitted by the contracting parties. It is not the role of the Court to read into

the contract documents what was not expressly spelt out in the contract ”

[19] This court is guided by the decision of the Antara Vista Sdn Bhd case and finds

that the Claimant’s employment under the said Contract of Service is subject to the

requirement of the PTSSB. Under sub-clause 2.2 of the contract, although the period

of the contract has been set out, nevertheless it is also subject to the requirement of

the Company’s client which is the PTSSB. In the case where the Company’s client

decided that the services of the Claimant are no longer required, the Company must

terminate the Claimant’s employment under the said contract of service. This is

provided under clause 7 of the contract whereby the Claimant’s employment shall

terminate upon the first occurrence of any of the event listed, namely in this case on

the demobilisation date as directed by the Client that is under sub-clause 7.1. The

Company shall not obliged to assign any reason whatsoever. Under sub-clause 7.2,

termination without cause by the Company shall be two (2) weeks in writing.

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[20] Based on the whole evidence adduced and having regard to the written

submissions and bearing in mind sub-s. 30(5) of the Act to act according to equity,

good conscience and the substantial merits of the case without regard to technicalities

and legal form, the Court finds, the Company had discharged its burden of proving

that the Claimant was dismissed/terminated with just cause or excuse on a balance of

probabilities. Thus, the Claimant’s case is hereby dismissed.

HANDED DOWN AND DATED THIS 4 AUGUST 2022

-signed-

(AHMAD ZAKHI BIN MOHD DAUD)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR