Escolar Documentos
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Cultura Documentos
Venue
Date of Reference
: 10.10.2013
Dates of Mention
: 3.12.2013, 7.2.2014,
10.3.2014, 10.4.2014,
4.6.2014, 25.6.2014,
22.9.2014, 13.2.2014,
18.11.2015
Dates of Hearing
: 17.3.2015, 28.1.2016
Written Submission
of Claimant
: 29.2.2016
Written Submission
of Company
: 25.4.2016
Submission in Reply
by Claimant
12.5.2016
28.2.2014, 6.3.2014,
29.4.2014, 8.5.2014,
7.8.2014, 2.9.2014,
2.3.2015, 24.6.2015,
3(25)(3)/4-1388/13
Representation
Reference
This is a reference made under section 20 (3) of the Industrial
Relations Act 1967 (the Act) arising out of the dismissal of Mr. Jaswant
Singh a/l Sapuran Singh (hereinafter referred to as the Claimant) by
Global Process Systems Sdn. Bhd. (hereinafter referred to as the
Company) on 1 March 2013.
AWARD
[1]
3(25)(3)/4-1388/13
meeting with Mr. Scott Ewen (COW2 - the Company's Group Chief
Financial Officer) in the presence of Ms Sharifah Anizah Syed Ahmad
(the Company's Human Resource Manager) on 30 November 2012.
During the said meeting, the Claimant was informed that due to the
Company's restructuring exercise necessitated by the revised business
plans and shared resources, the Claimant's position was redundant and
therefore it was necessary for the Company to terminate his employment
on the grounds of structural changes across the Group. The Claimant
was told to leave the office immediately after that.
[4]
3(25)(3)/4-1388/13
The duty of the Industrial Court was stated by his Lordship Salleh
section 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..
claim that his dismissal on the ground of retrenchment was without just
cause or excuse. They were Mr. Ian F. Prescott (COW1) the Group
Chief Executive Officer during the 2012/3 period and Mr. Scott Ewen
(COW2).
3(25)(3)/4-1388/13
(a)
(b)
[7]
The
Company took the stand that the Claimant was not the right fit for the
new role for Asia Pacific as the Claimant did not have the necessary
outlook for the role.
[8]
COW1
also
stated
that
the
retrenchment
exercise
was
The Company had not disputed that the new role was
3(25)(3)/4-1388/13
recruitment was barely two months after the Claimant's dismissal. She
was made the Regional Financial Controller for Asia Pacific. Thus, the
Company had created a new role which effectively absorbed the two (2)
financial controllers' roles (financial controller for Malaysia and financial
controller for Singapore) to create the role of Regional Financial
Controller for Asia Pacific. Therefore, both the Claimant and Jean Luc
(Singapore's financial controller) were considered redundant by the
Company. It was the Company's contention that it was necessary for an
external candidate to be brought into the Company as the Claimant was
not a strong candidate for the enlarged role. COW2 testified that Ms
Yeoh was eventually hired based on her higher academic qualifications
and vast work experience.
[10]
examination about the above fact. He had earlier on claimed that both
candidates in Singapore and Kuala Lumpur had been considered for the
new enlarged role. The Claimant was based in Kuala Lumpur and Jean
Luc, a French expatriate was based in Singapore. COW2 alleged that
Jean Luc had far more relevant experience and would have been the
candidate most likely to get the role. Notwithstanding, it was decided
that there were skills available in the Malaysia work place to find a
suitable candidate who did not require an expatriate package so Jean
Luc was not offered the position.
[11]
the Claimant's last held position with very differing job description and
very different responsibilities. Apart from saying that the Claimant had
not possessed the international insight required, COW2 testified that
there were many errors in the Kuala Lumpur accounts due to the
6
3(25)(3)/4-1388/13
the person who was most suitable to take the position as the Regional
Financial Controller for Asia Pacific. He said the position required a
candidate with a more international outlook who was able to manage
multi-site and multi-currency types of operation.
It also required a
At the said
3(25)(3)/4-1388/13
redundant. COW2 also told the Claimant that the Company's Financial
Manager at the material time would be taking over all of his duties and
responsibilities. The Claimant testified that it was at this meeting that he
was notified for the first time of the restructuring of the Company and of
the termination of his employment. Both COW1 and COW2 confirmed
this fact about notifying the Claimant the same, during their crossexamination. The Claimant was never ever furnished with the S2012
GPS
Corporate
Restructure
&
Change
Initiatives
and
GPS
Finance Controller for Asia Pacific was not any different from his last role
except for the fact that it covered a wider geography, adding on an
additional country which was Singapore. The Claimant stressed that his
position and functions had still been in existence at all material time. He
claimed that the job functions which the Regional Finance Controller
performed were alike his position and duties which commensurate with
his background, seniority, qualifications and vast working experience in
the Company. In fact, after looking at the job description for Ms Yeoh
which was provided by the Company (pages 46 and 47 of COB), the
Claimant noted that he was more experienced in the finance sector
compared to Ms Yeoh who only had 16 years experience in comparison
to the Claimant's 30 years of work experience in the same field.
[15]
aware that he could have easily taken on the expanded role and that
had been demonstrated during his tenure with the Company, particularly
8
3(25)(3)/4-1388/13
in managing INE and AMS in Dubai which were companies in the GPS
Group. Other than the Claimant's experience with GPS and its affiliated
companies, the Claimant said he also had previous experience working
in New Zealand, Japan and Indonesia.
3(25)(3)/4-1388/13
It is well-settled that an
[17]
10
3(25)(3)/4-1388/13
[18]
In
In Harris Solid State (M) Sdn. Bhd. & Ors. v. Bruno Gentil s/o
Pereira & Others [1996] 4 CLJ 747 at page 767, the Court of Appeal
held as follows:
Whether the particular exercise managerial powers was
exercised bona fide or for collateral reasons is a question of
fact that necessarily falls to be decided upon the peculiar
circumstances of each case. When the facts of the case are
such that they would lead a reasonable tribunal to conclude
that the exercise of managerial powers such as the closure of
a business was for a collateral purpose, aimed at depriving a
workman of his fundamental right to earn a livelihood, then,
any termination of employment in consequence of such
exercise may be struck down as constituting unfair labour
practice..
11
3(25)(3)/4-1388/13
findings of fact are made, that the job functions and duties remain after
the retrenchment exercise, then it cannot be said there is a state of
redundancy. In this respect, the Claimant's argument on this point can
be looked at with reference to pages 44 and 45 of COB which were the
organisation charts for the Finance Department of the Company
exhibited before the Claimant's termination (page 45 of COB) and after
his termination (page 44 of COB).
[21]
The Claimant had established in court during the hearing that the
3(25)(3)/4-1388/13
also held the same functions as the Claimant did when he was the
Financial Controller of the Company. The Claimant has alleged that if a
comparison is made for both the organisation charts, it is apparent that
Ms Yeoh's position had lesser functions and responsibilities compared to
his when he was the financial controller. The example the Claimant
gave was that Ms Yeoh did not have to be in charge of the Treasury as
the Claimant had done when he worked with the Company.
[22]
The court finds that the Company had failed to adduce sufficient
evidence
to
prove
that
the
Claimant's
functions,
duties
and
3(25)(3)/4-1388/13
Regarding the Company's claim that the Claimant was not the
right fit for the new and enlarged role which Ms Yeoh was recruited for,
the Company had failed to show what exactly he had lacked for the
expanded role. The Claimant had testified that the job functions of the
Regional Finance Controller were similar to his position and the duties of
the expanded position also commensurate with his background,
seniority, qualification as well as his vast working experience within and
prior to his employment with the Company. From the job description for
Ms Yeoh which was provided by the Company found at pages 46 and 47
of COB, it would appear that the Claimant was more experienced in the
finance sector as compared to Ms Yeoh who only had 16 years in
comparison to the Claimant's 30 years of work experience in the finance
field. The Company should have taken into account that the Claimant
could have taken on the expanded role as it had been demonstrated
during the Claimant's tenure with the Company, particularly in managing
INE Sdn. Bhd and MMPL Ltd. which were some of the subsidiary
companies in the GPS Group.
[25]
for the new role to be based in Kuala Lumpur and the court finds that the
Company was unable to provide a proper justification for the same.
14
3(25)(3)/4-1388/13
COW1 was ignorant of the fact that the Claimant was a certified public
accountant. COW2 was the Group Chief Financial Officer from April
2012 and admitted that he had no knowledge of the Claimant's previous
experience and the accounts the Claimant had dealt with. Hence, he
would not have been able to judge on the Claimant's suitability
especially when he admitted he had not met and discussed with the
Claimant on the expanded position. COW2's evidence that the Claimant
had reported to him for a mere four to five months before COW2 decided
that the Claimant was not the right fit clearly showed that the Company
had not given any consideration for the Claimant to fill the new role. It is
apparent that they worked together only for a short duration and the
Claimant was working in Kuala Lumpur whereas COW2 was based in
Dubai. It was also admitted they had only met once or twice before the
Claimant was terminated from employment though COW2 claimed to
have communicated with the Claimant using other means. Hence, the
Company had not taken into account the Claimant's contribution to the
Company nor his qualification but pushed him aside that he was not the
right fit.
[26]
ground that the Claimant was not suitable for the expanded role when
COW2 himself testified that he had no knowledge of the Claimant's
previous experience and qualifications of the Claimant clearly amounts
to an unfair labour practice and was clearly a mala fide act of the
Company.
undisputed facts:
(a)
3(25)(3)/4-1388/13
Decision
[27]
16
3(25)(3)/4-1388/13
[28]
On the totality of the evidence before this court, it is clear that the
Bhd. (Sabah) v. Dr. James Alfred and Anor [2000] 3 CLJ 758 is in point.
The Court of Appeal at page 766 stated the following:
In industrial law, the usual remedy for unjustified dismissal is
an order of reinstatement.
3(25)(3)/4-1388/13
[31]
The Claimant told the court that he had not been employed after
his dismissal from the Company. The Company was also not able to
adduce any evidence that the Claimant was gainfully employed after his
dismissal. The Claimant's last drawn monthly salary was RM18,000.00
and he was paid fixed monthly medical allowance of RM350.00. This is
evident from the payslips on pages 37, 42 and 43 of COB. Having
considered all the above and item 1 of the Second Schedule of the Act,
the court hereby orders that the Claimant be allowed the relief of
payment of backwages equivalent to the maximum of 24 months of his
last drawn monthly salary and the fixed monthly medical allowance of
RM350.00. He is also to be paid compensation in lieu of reinstatement
equivalent to one month's salary for each year of completed service.
Since the Claimant had been paid RM56,700.48 as termination benefit
by the Company, the amount shall be deducted from the award. Thus,
the award shall be:
Backwages of 24 months:
RM18,000.00 + RM350.00 x 24 months
18
RM 440,400.00
3(25)(3)/4-1388/13
[32]
RM 73,400.00
Total
RM 513,800.00
Deduction
RM 56,700.48
Total
RM 457,099.52
In arriving at this decision, the court has acted with equity and
good conscience and the substantial merits of the case without regard to
technicalities and legal form as stated under section 30 (5) of the Act.
- Signed -
19