12(14)/4-307/14

INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 12(14)/4-307/14
BETWEEN
MOHD REDHA BIN TALIB
AND
PADIBERAS NASIONAL BERHAD

AWARD NO.: 1002 OF 2017

Before : Y.A. PUAN NOOR RUWENA BINTI DATO MOHD

NURDIN - CHAIRMAN

Venue : Industrial Court of Malaysia, Kuala Lumpur

Date of Reference : 14.04.2014

Dates of Mention : 04.06.2014; 23.07.2014; 04.09.2014;

18.03.2015; 27.03.2015; 29.06.2015;
17.08.2015; 02.09.2015.

Dates of Hearing : 14.04.2015

Representation : Mr. Mohd. Zaini Bin Marzuki

From Messrs Aznur, Mazwin & Associates
Counsel for the Claimant

: Mr. Shariffullah Majeed

From Messrs Lee Hishamuddin Allen & Gledhill
Counsel for the Company

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Reference:

This is a reference made under section 20(3) of the Industrial Relations Act
1967 (the Act) arising out of the dismissal of Mohd Redha Bin Talib (hereinafter
referred to as the Claimant) by Padiberas Nasional Berhad (hereinafter referred to
as the Company) on 14 May 2013. The Company is also known as BERNAS.

AWARD

1. The Ministerial reference in this case required the Court to hear and determine
the Claimants complaint of dismissal by the Company on 14 May 2013 and was
received by the Industrial Court on 5 May 2014.

2. This reference has been transferred, upon the instructions of the President of
the Industrial Court on 31 May 2017 and with the consent of the both parties, from
Court 14 to Court 12 for the writing of the Award as YA Tuan Kamaruzaman b. Ab.
Jalil, the former Chairman of Court 14 has gone on transfer. The last submission
was filed on 1 September 2015 and the matter has been pending since. Thus, in the
interest of justice the Chairman of Court 12 has been directed by the President to
hand down this Award. In this regard, the Court relies on the authority of Bax Global
(Malaysia) Sdn. Bhd. (now known as Schenker Logistic [Malaysia] Sdn. Bhd.) v.
Sukhdev Singh s/o Pritam Singh and Anor, (R3-25-162-09) where reference was
made, inter alia to subsection 23(6) of the Industrial Relations Act 1967 [Act 177] by
the learned Judicial Commissioner. It was held in the said case that in order to
obviate grave hardship being caused, the case need not be heard de novo. And the
Award written by another Chairman in similar circumstances was upheld by the
appellate Court. Hence, as Chairman of Court 12 that have been tasked with this
matter, I have written this Award based on my reading, perusal and evaluation of the
facts and evidence contained in the notes of proceedings and from the documents
made available to Court 14.

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Factual Matrix

3. The Claimants claim was that he had been dismissed from his employment by
the Company on 14 May 2013 after having worked there on a purported extended
contract of employment for a further period of 2 years after his compulsory retirement
from the Company. The Claimant was a former employee of the Company and had
attained his compulsory retirement age of 55 years on 1 March 2013 and according
to the Company, he was allowed to work until 31 March 2013 to complete all his
given tasks as per its Pekeliling Pentadbiran Bil. 7 Tahun 1996. This was conveyed to
the Claimant vide its letter dated 1 January 2013, which was not disputed.
Nevertheless, the Company contended that there was no post-retirement contract of
employment after 31 March 2013.

4. During the period after his retirement and up until 14 May 2013, the alleged
date of dismissal, the Claimant had continued to attend meetings with some of the
Holding Companys subsidiaries, consulting with them, involved in site inspection in
Pasir Gudang, Johor and had been given access to the Companys e-mail. He was
also involved in preparations for a site meeting with a prospective partner from
Taiwan in a new project referred to as Bukit Raya Project. Therefore, he contended
that based on representations made by the Company and the work that he had been
doing post-retirement, he was under the impression that a contract of employment
already existed then; but that only the terms and conditions of the employment that
were not yet finalised. The Claimant sought the Courts relief to be reinstated to his
original position.

5. The Company claimed that prior to the Claimants retirement, Tradewinds (M)
Berhad (referred to herewith as the Holding Company) was exploring the feasibility
of setting-up of the Group Engineering Support Services (GESS) division. The
Claimant would have been employed on contract basis to head that set-up only if it
was successfully established. The setting-up of GESS was subjected to the approval
of the Holding Companys EXCO, and the proposal on its establishment was
expected to be submitted to the EXCO sometime in April 2013. For ease of
reference, the Holding Company and its various subsidiaries will be referred to as

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the Group. Eventually, the approval sought was not granted and hence, the
Claimant was not offered post-retirement employment as planned. Was there then a
contract of employment between the Claimant and the Company or the Holding
Company (as claimed by the Claimant later in its submission) after his compulsory
retirement?

Issues and Law

6. The Claimant prays that this Court holds that his dismissal as being without
any justifiable reasons and is in breach of the principles of natural justice, equity and
good conscience. He claimed that he was unfairly treated by the Company. Apart
from reinstatement, he also seeks back dated wages, compensation in lieu of
reinstatement and any other reliefs that the Court deems fit and appropriate. The
Claimant has made his representation under section 20 of Act 177 and where such
representations have been made and are referred to the Industrial Court for inquiry, it
is the duty of the Court as stated by the Federal Court in the case of Wong Yuen
Hock v Syarikat Hong Leong Assurance Sdn. Bhd. and another appeal [1995] 2
MLJ 753 to determine whether the termination or dismissal is with or without just
cause or excuse. In Hotel Malaya Sdn. Bhd. & Anor v National Union of Hotel,
Bar & Restaurant Workers & Anor [1982] 2 MLJ 237 it was stated that in
exercising this quasi judicial function, the Courts functions comprise an investigation
of the facts, an analysis of the facts, findings of facts and lastly the application of the
law to those findings. Hence, the role of the Court is to determine whether the
Claimant was indeed dismissed on 14 May 2013 and if so, whether the dismissal was
without just cause or excuse. Although it is incumbent upon the Court to inquire into
the issue of justness or the excuse on its merits, the Court must first be satisfied that
the Claimant was dismissed.

7. In this claim, the factum of dismissal is disputed by the Company. Hence, it is

for the Claimant to establish the fact of dismissal as per the Statement of Case, on a
balance of probabilities. In the case of Weltex Knitwear Industries Sdn. Bhd. v
Law Kar Toy [1998] 7 MLJ 359, the learned judge decided:

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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 to, 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 with just cause or excuse would not arise..

Evaluation by the Court

The Claimants case

8. From the notes of proceedings of the former Chairman, it is observed that the
Claimant in this case had taken the stand first to establish the fact of dismissal
(CLW1). The Claimants Witness Statement was tendered in court as CLWS1.
There were no supplementary questions. The Company had prepared a list of
questions for cross-examination of the Claimant to save the Courts time and this was
then marked as COB1.

9. The Claimant in CLWS1 stated that he was a former employee of BERNAS

when he commenced employment on 26 June 2007. He was the Companys Senior
General Manager, Engineering and Facilities Division and was confirmed in his post
on 31 December 2007. The Letter of Appointment was exhibited at pages 1-6 of the
Claimants Bundle of Documents (CLB). As Senior General Manager, he was
responsible for administering, planning and implementing all BERNASs production
projects comprising 30 production factories throughout the country. He also managed
the sale and distribution division including 43 storage warehouses for rice stocks
throughout the country. He was also responsible for the technical support services of
those factories and warehouses. At the time of retirement, he was earning
RM21,255.00 as basic salary and received allowances amounting to RM6,000.00 per
month and a car maintenance allowance of RM8,000.00 per annum.

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10. According to the Claimant, no disciplinary action had ever been taken against
him and that he had served at a senior managerial post for a long period of time and
was also appointed on the Board of Directors of the Holding Companys subsidiaries,
namely, Jasmine Rice Product Sdn. Bhd. and Jasmine Ricemill (Tunjang) Sdn. Bhd.
and BERNAS International Trading Co. (based in Thailand). He reported to the
Companys Chief Executive Officer (CEO). Ahmad Tarmizi Bin Mohamed Hariri
(CLW2) was the person who had served as the Companys Acting CEO (referred to
as Companys ACEO) at the time of the Claimants retirement.

11. In January 2013, the Claimant received a Notis Persaraan Wajib dated 1
January 2013 which stated that he will attain the compulsory retirement age of 55
years on 1 March 2013. According to the Claimant, in that notice, he was allowed to
extend his service until 31 March 2013. On 4 February 2013, during a meeting with
his immediate supervisor, CLW2, he was told that the Company still needed his
service post-retirement as many of his projects have not been completed. He was
told that the decision to extend his service had been made at the Companys
management level.

12. He then met the Senior General Manager of the Companys Human Capital &
Administration Division, Mohamad Nazuir Bin Ahmad Toee (COW1) about the
decision to extend his service. COW1 had verified the information and informed the
Claimant that he was dealing with the formalities for that purpose. At a meeting
between the Claimant and Mohd. Nazri Sharif, Acting CEO of the Holding Company,
(referred to as Holding Companys ACEO) on 5 February 2013, the Claimant was
informed that he would be responsible to head the GESS after his retirement. This
was purportedly evidenced by a Memo dated 15 March 2013 from the Holding
Companys ACEO to the all senior management officials of its subsidiaries and
copied to the Chairman and all EXCO members whereby it was stated that the
Claimant was tasked to meet and discuss with all those officials on the engineering
capex (capital expenditure) implementation. The Memo was exhibited at page 7 of
CLB. Based on the Memo directive, he went to see those senior officials as tasked.

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13. Later, the Claimant had met with the Holding Companys Chairman, Tan Sri
Dato Wira Syed Abdul Jabbar Bin Syed Hassan at the latters office whereby he was
informed that after his retirement he would be tasked as the senior manager of
Mardec Polimer Sdn. Bhd., a subsidiary of the Holding Company.

14. According to the Claimant further, he was directed by CLW2 to take leave after
his retirement before the extension of service by way of contract. He was told he
need not apply for leave because effectively on 31 March 2013, he would have been
on compulsory retirement. The Claimant claimed that such extension of service
usually was for a period of 2 years as had been the case for COW1 himself. The
post-retirement employment would be a new formal arrangement with the Company.
He did not apply for leave, thinking that this was a normal procedure in such a case.
An e-mail dated 1 April 2013 from Ratna Sari Dewi Binti Abdul Aziz, the Companys
Human Capital & Administration Division, to certain staff members of the Company
and exhibited in CLB at page 8 showed that the Claimants driver was transferred to
the pool as he had retired on 31 March 2013. The e-mail also stated that the
Claimants employment will be extended by contract on 2 May 2013. Nevertheless,
the terms and conditions of the contract were still being discussed by the
management. Further, he was to return all the Companys properties issued to him
during the employment on his last day in office in BERNAS.

15. A copy of an e-mail dated 2 April 2013 from one Charles Fang of Suncue
Company Ltd. Taiwan to the Claimant and copied to Goo Chau Kin, Tan Choon Hai
and Mohamad Ridzuan Bin Idris was exhibited. It showed a chain of e-mail
communication between them on a meeting for the Bukit Raya project that was being
arranged for 9 April 2013 in Jitra, Kedah whereby Charles Fang was supposed to
take a flight to Alor Setar and arriving on 8 April 2013 for that meeting. This e-mail
was intended to show that the Claimant was actively involved in one of the
Companys projects and that he was still receiving e-mails through the Companys e-
mail system.

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16. Prior to May 2013, the Claimant stated that he had followed up on the contract
of employment which had not yet been executed. He was told that the document was
being completed. However, on 14 May 2013, the Claimant was contacted through
telephone by CLW2. The latter informed him that he (CLW2) was instructed by the
Company not to continue with the Claimants service and to end his contract of
employment.

17. The Claimant responded via letter dated 27 June 2013 to Dato Dr. Mohamad
Hashim Bin Ahmad Tajudin, the Companys new CEO, disputing his purported
termination. He claimed that after being convinced that he would be heading the new
GESS and also to take up a new position in Mardec Polimer Sdn. Bhd., the Company
unilaterally terminated his services without any just cause or excuse. Before he went
on leave on 31 March 2013, he stated the management had clearly announced via
Memo dated 15 March 2013 from the Holding Companys ACEO to all top
management in the Group of his newly designated position. He alleged that during
his meeting with CLW2 on 4 February 2013, he was told to take one month leave
prior to his extension of service. He also mentioned in the letter about his
engagement with the senior management of Mardec, Gula Padang Terap Sdn. Bhd.
and Tradewinds Plantation on the implementation of GESS on 15, 19, 20 and 22
March 2013 as initial steps before being fully tasked with the new department after
his leave ended. All these engagements were well within the Companys and senior
management knowledge. He also alleged that he had been called on 3 and 28 April
2013 to discuss matters relating to GESS that will be headed by him and also the
possibility of being entrusted to oversee Mardec Polimer Sdn. Bhd. even while he
was on leave. In the letter, he claimed that the Company had failed to issue any
official correspondence to confirm the termination except for the telephone call he
received on 14 May 2013.

18. On 2 July 2013, the Claimant had made a representation for reinstatement
under subsection 20(1) of the 1967 Act at the Jabatan Perhubungan Perusahaan
(JPP) in Kuala Lumpur. He claimed that the Company only replied to his letter on 2
August 2013, after the representation was filed.

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19. The Company, in that letter which was signed by COW1, alleged that the
Claimant had misunderstood on the setting up of the GESS as it was at an
exploratory stage and subject to the EXCOs approval. He was tasked, while he was
employed by the Company, to only consult with the relevant divisions to assist in
gathering information on the feasibility of GESS then. The Company did contemplate
offering him a position within GESS, if it materialised. However, after careful
consideration of the feasibility and need for GESS, the Company had decided then
not to proceed with the set-up. Hence, in those circumstances, the Company through
CLW2 had called to inform the Claimant that it will not be offering him a post-
retirement employment contract. The Company claimed that it did not terminate the
Claimants services as alleged on 14 May 2013 as there never existed a contract of
employment between it and the Claimant. The Company had also stated that it was
completely incorrect for the Claimant to assert that he was on leave from 31 March
2013 because he had already retired from service then. He had never applied for
leave after that date and there was no need for him to do so.

20. The Claimant did not respond further as the matter had been referred to the
JPP. He stated in CLWS1 that he had brought this action as the Company had
reneged on the purported post-retirement contract of employment which was
allegedly for a period of 2 years commencing 2 May 2013. He alleged that the
Company had promised that his employment would be extended by way of a
contract, beyond the then mandatory retirement age of 55 years. He had accepted
the offer and had served the Company after his retirement on 31 March 2013.
However, the Company had ended his employment and terminated the contract of
employment. Hence, he had lost a fixed income for the 2 years that was promised.

21. Under cross-examination, the Claimant agreed that he was employed by

BERNAS and retired from service on 31 March 2013. He said there was no official
offer letter from them on the offer of employment but there was proof in the form of
Ratna Saris e-mail. He agreed that in the e-mail, it was stated that the extension of
service masih dalam perbincangan pihak pengurusan. He also agreed that
Tradewinds (the Holding Company) had not yet made a final decision to offer him a

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contract of service. He disagreed that he was not given any contract of service by the
Company after his retirement. However, he was not able to show to the Court any
document of contract of employment between him and the Company. He was also
unable to show to the Court any confirmation from COW1 purporting to be the
approval by the management of the Holding Company or the Company on his
extension of service. He informed the Court that he will not be calling En Mohd. Nazri
Sharif, the Holding Companys then ACEO to verify/confirm his statement. He agreed
that Tradewinds and BERNAS were two separate entities.

22. The Claimant agreed that he was not yet retired on 15 March 2013 and the
last day of service was on 31 March 2013. He agreed that the Memo was from
Tradewinds and not BERNAS, and that he did not name Tradewinds in the dismissal
claim. He agreed that the framework of GESS establishment would be finalized by
the end of March 2013 for the approval of each EXCO of Tradewinds in April 2013.
He did not call Tan Sri Dato Wira Syed Abdul Jabbar Syed Hassan to verify his
statement on the issue of heading Mardec Polimer Sdn. Bhd. He agreed that he need
not take leave the as he had already retired from BERNAS. He confirmed receiving
the letter from the Company dated 2 August 2013 and agreed that in the letter the
Company had stated he need not take leave then as he had already retired from the
Company. He agreed that the establishment of GESS was at the exploratory stage
and subject to the decision of the Holding Companys EXCO. He did not reply to the
letter dated 2 August 2013 and did not take any initiative to reply. He did not agree
that there was no contract between himself and the Company subsequent to his
retirement. He agreed that there was no proof that he was paid salary or any EPF
contributions made by the Company or Holding Company after 31 March 2013.

23. In re-examination, the Claimant stated that he presumed that there was a
contract of service based on the e-mail dated 1 April 2013 because it was clearly
stated in the e-mail that his service will be extended by contract commencing 2 May
2013. Nevertheless, the terms and conditions were still being discussed. Apart from
that, the management through the ACEO verbally said that he will be asked to extend
his service on contract basis. As far as he was concerned, his e-mail account with
the Company was still active/accessible and he was still receiving communications

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from Charles Fang of Suncue Company, Taiwan on a proposed project. He was still
receiving e-mail from En Ismail Yusof dated 4 April 2013 and an e-mail from Tan
Choon Hai of Tradewinds for the technical committee to conduct a site visit to Pasir
Gudang on 26 April 2013.

24. The Claimant testified that BERNAS and Tradewinds were 2 separate entities.
Tradewinds is the Holding Company of BERNAS, CSR Sugar, Tradewinds Plantation
and Mardec Co. It was headed by Group CEO Mohd. Nazri Sharif and the Chairman
was Tan Sri Dato Wira Syed Abdul Jabbar Syed Hassan. His immediate superior
was BERNAS CEO and he also reported to the Group CEO and the Chairman. The
establishment of GESS was discussed in a few previous meetings before the official
Memo of 15 March 2013.

25. The Claimant clarified that at first, the offer was to work with BERNAS but later
he was not sure because the Holding Companys ACEO was also his superior.
According to him, he was offered to work with BERNAS post-retirement. On the issue
of the leave after his retirement, he stated that it was the norm in the Company for a
person to be asked to go on leave for a short while before his service could be
extended. He did not agree to the content of the letter dated 2 August 2013 because
the Company was the one who deemed it to be that. Therefore, he did not wish to
reply to the letter.

26. He informed the Court that the Bukit Raya Project was a BERNAS project.
Tan Choon Hai who was mentioned in the e-mail dated 2 April 2013 was from
Tradewinds. The e-mail dated 17 April 2013 from Tan Choon Hai was in relation to
BERNAS projects only. Tan Choon Hai was the technical adviser for the Tradewinds
Group which was why he was also roped into the meetings for the Bukit Raya
Project.

27. In CLWS1, the Claimant stated that he was not in any employment to-date
and wished to still continue working with the Company, given the chance. He claimed
that the Company had never tried to settle the matter by executing the terms of the
purported contract of employment before he referred the case to the Minister.

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28. The second witness for the Claimants case was Ahmad Tarmizi bin Mohamed
Hariri (CLW2) who at the time of the hearing was no longer working at the Company.
He was then its Chief Financial Officer (CFO) and also acted as CEO from December
2012 until March 2013 before his retirement from the Company. As the CFO and
ACEO, CLW2 was responsible for administering and managing the Companys
overall operational and financial affairs, including human resources. His Witness
Statement was tendered as CLWS2.

29. CLW2 stated that in January 2013, he was monitoring the production of local
rice produce and planning strategies to reduce losses from within the local rice
sector. This included a proposal to operate rice cluster mills and closing down some
processing factories while expanding some others. Apart from that, the Company had
also planned to open rice processing mills in Selangor. The Company was planning a
capital expenditure of RM150 million which had been agreed to in principal by the
EXCO. Therefore, there existed a need to strengthen the engineering division. At that
time, he had directed the Companys human resources division to extend the
Claimants service by way of contract although he was due to retire on 31 March
2013. CLW2 stated that he also oversaw that division whilst he was the Companys
ACEO.

30. According to CLW2, he had informed the Claimant of the decision to extend
his service on 4 February 2013. COW1 was the Companys Senior General Manager
of Human Capital & Administration Division who was directed to prepare all relevant
documentation pertaining to the extension of service.

31. The proposal to set-up GESS arose only after the abovementioned January
2013 strategies that was being planned by the Company. When the proposal to re-
hire the Claimant came about, the management at the Holding Company level had
wanted to broaden the scope of the Claimants work to include engineering support
services for its subsidiaries. This was actually additional scope to the earlier plan to
hire the Claimant on contract basis in the Company. The scope of his service was not
to be limited to GESS only but to head the Companys engineering affairs when at
that time the Company was in need of experienced personnel who have wide

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knowledge in engineering matters. Further according to CLW2, such appointment of

senior management personnel would generally be for a period of 2 years. He added
that the Company had indeed wanted to extend the Claimants service after his
retirement given that he was a long time employee and the Company was confident
that he would be able to continue with its projects.

32. CLW2 had informed the Claimant prior to his retirement that the latter needed
to take leave while the documentation was being finalized. Nevertheless, he
admitted that the Claimant need not apply for leave as he would have been retired
on 31 March 2013. This was normal procedure for a situation such as that of the
Claimants. Although on leave, the Claimant would be required to serve the
Company during the leave period whilst the documentation was finalized. After 31
March 2013, CLW2 had seen the Claimant at the Companys premises a number of
time and the latter had attended meetings and discussions with its employees on the
projects that were being handled by the Company. The Claimant was given access to
the Companys e-mail system and he also knew that the Claimant had made a site
visit to Pasir Gudang on 26 April 2013 for one of its projects. CLW2 considered the
Claimant was already serving the Company due to the offer of post-retirement
employment.

33. The Claimant had made some follow-ups with CLW2 after his retirement on
the new contract and the latter had informed him that the matter was pending
finalization as there was a new CEO who had reported for duty on 1 April 2013.
Later, when CLW2 received instruction from the new CEO, he had informed the
Claimant on 14 May 2013 of the Companys decision not to offer him a contract of
employment.

34. Under cross-examination, CLW2 agreed that BERNAS and Tradewinds were
2 separate entities. According to the Memo dated 15 March 2013, the GESS position
offered to the Claimant was with Tradewinds. At that time CLW2 was the Companys
ACEO and he admitted having received that Memo. He was not a recipient of the e-
mail of 1 April 2013 though. He clarified the last statement in the answer to Question
9 of CLWS2, that is, the directive to the human resource division to extend the

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contract of the Claimant was made verbally in his office to COW1. The Company did
not prepare a contract of employment for the Claimant after that meeting. It was not
prepared because on 1 April 2013, there was a new CEO for the Company and that
responsibility was given to the new CEO. He said that he did a follow-up on the
proposed contract. But there was no written proof of that. He agreed that there was
no written extension of service contract between the Claimant and the Company
then. He agreed that, it was the responsibility of the Company to make EPF
contributions if a person works with the Company. From 1 April 2013, no EPF
contribution was made for the Claimant.

35. In re-examination, CLW2 informed that at that time, there were a number of
capital expenditures that was being planned. The Company then was planning to
close some of its factories and expand some others. It involved a lot of planning and
capital expenditures. He stated that follow-up on the contract to offer work to the
Claimant was made after 31 March 2013, but the Court noted that earlier he said
there was no proof as such.

The Companys Case

36. The Company is involved in the procurement and processing of paddy as well
as the importation, warehousing, distribution, and marketing of rice in Malaysia. The
Claimant commenced employment with the Company as Senior General Manager,
Engineering & Facilities on 26 June 2007. The Companys sole witness was
Mohamad Nazuir Bin Ahmad Toee (COW1) who had also retired from the Company
at the time of the hearing. His Witness Statement is as per COWS1. He was the
Companys Senior General Manager Human Capital & Administration Department at
the material time of the Claimants retirement. According to COW1, paragraphs 6 and
7 of the Statement of Case where the Claimant had averred that his service shall
be extended in light of impending projects embarked by the Company were not
true as such representation that his service with the Company will be extended never
existed. The prospective offer of employment was with the Holding Company and
subject to approval of the Holding Companys EXCO.

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37. In COWS1, the witness stated that the Claimant was never employed by the
Company beyond his retirement from service. At the material time, the Claimant was
merely consulted by the Holding Company to assist in gathering information on the
viability to set up the GESS. The prospective employment of the Claimant was
dependent on the materialization of the GESS by the Holding Company. He also
clarified that the Memo dated 15 March 2013 mentioned:

(a) the Claimant was merely to engage with several senior management
personnel to familiarize with the production/maintenance management;
and
(b) the proposed setting up of GESS will be submitted for the EXCOs
approval in April 2013.

38. COW1 claimed that the Claimants involvement in the meetings with senior
management personnel of the Group was merely to discuss the feasibility of setting
up the GESS on a voluntary basis by the Claimant. The Claimant was at all times
aware that any prospective offer of employment to head GESS was subject to the
said approval. The Company also claimed in its letter dated 2 August 2013 that the
Claimant had misunderstood the setting up of the GESS which was at all material
times at an exploratory stage and subject to the approval of the Holding Companys
EXCO. Since it was not feasible to set up the GESS, COW1 stated that the Claimant
will not be offered any post-retirement contract by the Holding Company. The letter
stated that after careful consideration on the feasibility and need for GESS, the
Company decided not to proceed with setting it up.. Hence the Claimants
employment was never terminated on 14 May 2013 as the Claimant had retired
accordingly upon attaining the age of 55, i.e. in March 2013.The Company also
stated that there was never even a contract between it and the Claimant at that time
to terminate.

39. Additionally, he told the Court that he was asked to prepare a contract of
service extension for the Claimant by CLW2 verbally. He did not prepare it however
because procedurally, he had to wait for the Boards approval. Eventually, he was not
given the approval by the Board to extend the service of the Claimant. He testified

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that he was one of the recipients of the e-mail. The e-mail stated that the contract
should commence on 2 May 2013 but terms and conditions of employment were still
being deliberated by the management. Eventually, the management did not confirm
that the contract should be issued to the Claimant.

40. Under cross-examination, in regard to Question 5 of COWS1, he stated that

there was no extension of service at BERNAS after the Claimant retired. The
prospective offer was with Tradewinds, which he did not have knowledge of, and it
was awaiting approval from the Holding Company.

41. To a question from the Court, COW1 stated that in his opinion, there was no
extension of service because the Claimant had retired. When the Companys ACEO
asked him to prepare a contract, he did not do it as he was waiting for the Holding
Companys decision on the formation of GESS. He could not give a contract to the
Claimant without the Holding Companys approval as well as the Companys
approval. The instruction of CLW2 to prepare a contract for the Claimant was given
to him after the Claimant had retired, during the exploratory period on the
establishment of GESS.

42. COW1 informed the Court that he was not one of the recipients of the Memo.
He agreed that he did not have personal knowledge of the contents of the said
Memo. He agreed that the Claimant then was still given access to the Companys e-
mail and premises even after his retirement. He agreed that there was
communication between the Company and the Claimant on 14 May 2013. To a
question that if there was no intention by the Company to extend the Claimants
employment after his retirement on 31 March 2013, then there was no necessity for it
to communicate with the Claimant regarding post-retirement employment contract,
COW1 agreed.

43. In the re-examination, he stated that the intention to offer post-retirement

employment contract was made during the exploratory period of the establishment of
GESS. There was no intention to extend his service in the Company/BERNAS itself.
There was then the intention of Tradewinds to offer him employment post-retirement.

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44. At this juncture, it is necessary for the Court to understand some facts about
GESS. The facts that are available before the Court from the supporting documents
filed by parties showed that the main functions of GESS were as follows:

(a) monitor and report on all engineering project progress and funding
requirements;

(b) provide technical advisory as and when requested;

(c) attend to all Tender Committee meetings involving capital expenditure

for engineering projects; and

(d) assist in the implementation of strategic engineering projects, as and

when required.

45. It was then envisaged that an Engineering Support Service would primarily be
supporting, monitoring and advisory in nature. All subsidiaries of the Holding
Company will maintain their current engineering set-up for operational maintenance,
project implementation and project management. The Company contended further
that as the setting-up of GESS was at an exploratory stage, the Holding Company
informed the Companys senior management personnel vide an internal memo dated
15 March 2013, inter alia, the following:

(i) the Claimant was merely to engage with them to familiarise with their
production/management; and

(ii) the proposed setting-up of GESS will be submitted for each EXCOs
approval in April 2013.

46. Nevertheless, the Court notes that the Memo also stated that the Holding
Company will proceed with the setting-up of GESS. To that end, the Claimant has
been tasked to engage with the senior management and their teams to familiarise
with their production/management requirements and engineering capital expenditure
implementation. The Holding Company hoped to have the framework finalised by the
end of March 2013 for the purpose of submission to each EXCO to obtain their
approval in April 2013. One of the recipients of the Memo was the Claimant.

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Application of the Law

47. Before the Court goes any further to deliberate on this issue, it may be worth
mentioning, for the sake of clarity that this case does not fall under the purview of the
Minimum Retirement Age Act 2012 [Act 753]. The Schedule in Act 753 which came
into force on 1 July 2013 provides that the Act does not apply to, among others, a
person who, before the date of coming into operation, has retired at the age of fifty
five years or above and subsequently is re-employed after he has retired. Therefore
the Act clearly does not apply to the Claimants case as he retired on 31 March 2013.
The issue of re-employment is the matter which the Court has to consider in order to
determine if there was a contract of employment between the disputing parties.

48. It was pleaded by the Company that the Claimants claim is misconceived in
law and is an abuse of the Courts process. It was submitted that the burden is on the
Claimant to prove that the Company had agreed to extend his services with the
Company and of his alleged dismissal from employment. The Company prays for
the claim to be dismissed. Was the Claimants service terminated then as claimed in
his letter dated 27 June 2013 to the Company? Based on the evidence and
documents presented in this case, the Court has to consider first whether the
Claimant had indeed been employed by the Company.

49. Subsection 20(1) of Act 177 provides the procedure for making a complaint to
the Director General of Industrial Relations as follows:
Where a workman, irrespective of whether he is a member of a trade union of
workman or otherwise, considers that he has been dismissed without just
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.

50. Was the Claimant a workman as defined in Act 177? The term is defined in
section 2 of the Act as follows:
workman means any person, including an apprentice, employed by an
employer under a contract of employment to work for hire or reward and for
the purposes of any proceedings in relation to a trade dispute includes any

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such person who has been dismissed, discharged or retrenched in connection

with or as a consequence of that dispute or whose dismissal, discharge or
retrenchment has led to that dispute.

51. Before deciding on the issue of workman, it is necessary to examine if there

existed a contract of employment between the parties. The Court has looked at
CLW2s statement on the intention of the Holding Company or Company at the time
when the offer to re-employ the Claimant was considered. It was confirmed by CLW2
that when the proposal to re-hire the Claimant came about, the management at the
Holding Company level had wanted to broaden the scope of the Claimants work to
include engineering support services for its subsidiaries. The earlier plan was to hire
the Claimant on contract basis in the Company. The Court emphasises again this part
of CLW2s statement in that the scope of his service was not to be limited to GESS
only but to head the Companys engineering affairs also.

52. As we all know now, GESS was to have been the Groups engineering support
services division. There was a meeting between the Claimant and Mohd. Nazri
Sharif, ACEO of the Holding Company on 5 February 2013. During that meeting the
Claimant was informed by the ACEO that he would be responsible to head the GESS
after his retirement. He agreed in cross-examination that the framework of GESS
establishment would be finalized by the end of March 2013 for the approval of each
EXCO of Tradewinds in April 2013. He also agreed that the Holding Company had
not yet made a final decision to offer him a contract of service. In the Courts view,
there is no doubt that the Holding Company had intended to offer post-retirement
employment to the Claimant, subject to certain conditions being met. That condition
was the approval of the Holding Companys EXCO on the setting-up of GESS.
Hence, the need to study the viability or feasibility of GESS, prior to submitting the
proposal to the EXCO for each members approval. This was the so-called
exploratory period which both parties referred to and remained an undisputed fact.

53. The Court gathered from the testimony of COW1 that when the Companys
ACEO asked him to prepare a contract, he did not do so as he was waiting for the
Holding Companys decision on the formation of GESS. He could not give a contract

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to the Claimant without the Holding Companys approval. The Court accepts this
witnesss evidence that the approval was not granted after it was sought. Although
the Claimant claimed that the offer was to work with the Company, later he said that
he was unsure as he also reported to the Groups ACEO.

54. There was no challenge on the testimony of COW1 that it was not feasible to
establish GESS, and therefore the Claimant was not offered any post-retirement
contract by the Holding Company. COW1s statement that the Claimants involvement
in the meetings with senior management personnel of the Group was merely to
discuss the feasibility of setting up the GESS on a voluntary basis by the Claimant
was also not challenged. Further, the Company claimed that the Claimant was at all
times aware that any prospective offer of employment to head GESS was subject to
the said approval of the Holding Companys EXCO. This too was not challenged. In
the face of these evidences of the fact of the establishment of GESS, the Court has
no other option but to hold that the Claimant must have been aware then that the
offer of post-retirement employment with the Holding Company to serve as the head
of the Groups Engineering and Support Services division was conditional upon the
final approval of the Holding Companys EXCO on its setting up which was to be
tabled sometime in April 2013.

55. As stated by Sarkar on the Law of Evidence, Volume 2, 14th Edition, at pp.
2206 and 2007:

Whenever the opponent has declined to avail himself of the opportunity to put
his essential and material case in cross-examination, it must follow that he
believed that the testimony given could not be disputed at all. It is wrong to
think that this is merely a technical rule of evidence. It is a rule of essential
justice
Whenever a statement of fact made by a witness is not challenged in cross-
examination, it has to be concluded that the fact in question is not disputed.

This is a trite rule of advocacy and therefore, failure to put ones case to the other
sides witness during cross-examination amounts to an acceptance of the testimony
of that witness. On this point, the Court has looked at the notes of proceedings of the

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former Chairman hearing the case and could not find any challenge by the Claimant
on the points stated in the preceding paragraph. Hence, the testimony of COW1 must
be accepted in total.

56. The Claimant contented that there was a contract of employment between the
Company and the Claimant hence there was a need for the Company to inform him
on 14 May 2013 of the decision not to extend his services. From the letter dated 27
June 2013, the Court gathered that he had engaged with the senior management of
a few of the Holding Companys subsidiaries on the implementation of GESS on 15,
19, 20 and 22 March 2013 as initial steps before being fully tasked with the new
division after his leave ended. Taking this statement at face value as this fact was
not challenged by the Company, the Court finds that the Claimant had done some
work on the task given to him in the period of the establishment of GESS, before his
retirement and while he was still a workman of the Company. He also claimed to
have been called on 3 and 28 April 2013 to discuss matters relating to GESS. In this
regard, the Court finds that the fact there was some work done by the Claimant for
the Company/Holding Company post-retirement does not automatically make him a
workman of the Company. There are some more facts and evidence that the Court
still needed to consider before deciding on this issue.

57. The Claimant alleged that there existed a verbal contract of employment for 2
years which was supposed to commence 2 May 2013. A contract can be in writing or
verbally made. No dispute about that. What are the basic elements of a contract
which makes it legally binding on parties? A contract must have an offer, an
acceptance and consideration. Looking at the facts, there was a conditional offer of
employment by the Company, subject to the approval of the Holding Company.
There was acceptance of the offer on the part of the Claimant. But where was the
consideration in the purported contract?

58. By his own testimony, the Claimant agreed that he was not paid any salary or
emolument for the short period between 1 April 2013 and 14 May 2013 when he
alleged that he had started work with the Company. Earlier he said that the contract
was to have commenced on 2 May 2013. The Claimant admitted that there was no

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proof that he was paid salary or any EPF contributions made by the Company or the
Holding Company after 31 March 2013. The testimony of CLW2 also confirmed that
from 1 April 2013, no EPF contribution was made for the Claimant. CLW2 agreed
that it was the responsibility of the Company to make EPF contributions if a person
works with the Company. Therefore, there was no evidence on the record to show
that the Claimant was paid accordingly for the 6 weeks period commencing 1 April
2013 as he claimed to have been in the Companys employment then. So where is
the fact of the consideration in the supposed employment relationship between the
Company and Claimant after his retirement?

59. Then it was the Claimants own testimony that it was the Holding Company
that had offered him to head the GESS and there was no final decision yet to offer
him a contract of service. Even though the Claimant did not agree that there was no
contract between himself and the Company subsequent to his retirement (because of
the services he had rendered during the exploratory period), he was unable to show
from the available facts that there was consideration for his service. The Court finds
that there was no evidence of consideration by the Company in return for the
services that he had rendered during the exploratory period. Therefore, the
Claimants contention that there was an offer of employment by the Company cannot
stand. Hence, the Court cannot find that there existed a contract of employment
between the Claimant and the Company in the face of all the evidence that had been
gathered above.

60. The Company submitted that the Claimant did not prove he was a workman of
the Company at the material time. It also submitted that to be legally enforceable, the
employment contract must contain rights and obligations of both the employer and
the employee. This may consist of a benefit upon one by the other as a result of
something done by that one for the other, i.e. wages for work. The Company
submitted also that the Claimant had failed to prove on the balance of probability that
has been dismissed without just cause or excuse or that he was even employed by
the Company to begin with, after his retirement. Hence, the Claimant has failed to
discharge the burden imposed upon him by law.

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61. On the issue of the need for the Claimant to take leave subsequent to his
retirement from the Companys service, he agreed that he need not take leave then
as he had already retired from BERNAS. The Court views this fact as evidence of
confirmation by the Claimant of the severance of an employment relationship
between the parties when he retired on 31 March 2013. The fact that other
employees of the Company had taken such leave prior to them being re-employed
by the Company after they had retired is not an important issue to the determination
of whether or not there existed a contract of employment between the Claimant and
the Company after his retirement. The fact remains that the Claimant had retired from
service and by his own admission, any contract of employment after that would have
been a new arrangement between the parties altogether. It was not disputed that the
terms and conditions for the post-retirement employment contract were still being
negotiated after 31 March 2013. The Court finds that based on all the evidence
before it, the Claimant does not satisfy the definition of workman as there was no
contract of employment between the two parties after 31 March 2013. How is the
Court to decide then that reinstatement is the proper remedy to be given to the
Claimant in this case?

62. Additionally the Claimant raised the issue that the Company that was the one
communicating with the Claimant and he had access to its e-mail system after his
retirement, to prove that he had rightly sought the remedy of reinstatement against
the Company rather than the Holding Company. On this point, the Court is of the view
that as the Claimant was formerly employed with the Company (BERNAS) and was
given an e-mail account with the Company for his use, it was only natural and for
purposes of convenience that he was still using the same e-mail account and
receiving official mails during the exploratory period of the setting-up of GESS. Again,
it must be remembered that the prospective offer of employment was with the
Holding Company. It was never guaranteed by the Holding Company or the Company
that he will be engaged on a contractual basis beyond his retirement, as the offer was
subject to the GESS being materialised in existence.

63. Referring to Dismissal from Employment and the Remedies, Dr. Ashgar Ali Ali
Mohamad, Lexis Nexis Publication 2007, it was stated at page 14:

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The right to work and right in the work are two different concepts. The
former deals with the individual right to be employed, which is in conformity
with Article 23 of the Universal Declaration of Human rights 1948, which
provides that the right to work is the natural right of every man to obtain
employment, while the latter implies proprietary right in employment. At
common law, there is no legally enforceable right to work. The House of
Lords in Allen v Flood [1898] AC 1 (HL) observed:

a man has no right to be employed by any particular employer, and

has no right to any particular employment if it depends on the will of
another.
[Emphasis added]

64. In Chan Soon Lee v YB Menteri Sumber Manusia Malaysia & Anor [1998]
5 CLJ 133, at page 145 it was stated that the policy of the 1967 Act is to strike a
balance between the right of a workman to livelihood as against the right of the
employer to dismiss his workman upon just cause or excuse (Ashgar, at page 11).
This is the case if there is fact established of a relationship of employer-employee
between the disputing parties. In Hong Leong Equipment Sdn. Bhd. v. Liew Fook
Chuan & Other Appeals [1997] 1 CLJ 665 and R Rama Chandran v. Industrial
Court of Malaysia & Anor. [1997] 1 CLJ 147 recognizes that an employee has a
right to work and earn a living and apart from this being a fundamental right, it is also
akin to property.

65. At the other end of the spectrum, a balance must be struck with the
employers prerogative of ensuring the smooth running of their businesses. They are
allowed to make commercial decisions in order to improve the viability or
effectiveness of their business, by introducing, for example, automation, or
abandonment of unprofitable activities, reorganisation or undertaking other cost
saving measures (Ashgar at page 16). Nevertheless, as with all general rules, there
must be limitations in that the employer must act bona fide and not capriciously or
with motives of victimisation or unfair labour practice.

66. In East Asiatic Company (M) Bhd v Valen Noel Yap [1987] ILR 363, the
Industrial Court noted that:

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it is the right and privilege of every employer to reorganise his business in any
manner he thinks for the purpose of economy or even convenience; and if by
implementing a reorganising scheme for genuine reasonsthe employer is
entitled to discharge such excess. But this right of the employer is limited by
the rule that he must act bona fide and not capriciously or with motives of
victimisation or unfair labour practice. Nor does this right for instance entitle an
employer under the cover of reorganisation, to rid himself of employees who
have offended him in some way or to promote the interest of some favoured
employees to the detriment of others..

67. It is noted that that case was on the issue of retrenchment, hence the facts are
different from the current case before this Court. Nevertheless, the point is that
companies have the right to conduct reorganisation or restructuring exercises for its
better performance. The Holding Company and the Company no doubt had
considered the setting up of the GESS to improve its business. There was evidence
from CLW2 who stated that he was monitoring the production of local rice produce
and planning strategies to reduce losses from within the local rice sector. This
included a proposal to operate rice cluster mills and closing down some processing
factories while expanding some others. The Company was planning a capital
expenditure of RM150 million which had been agreed to in principal by the EXCO.
Therefore, there existed a need to strengthen the engineering division at that time.
However, the GESS did not materialise when the approval from the Holding
Companys EXCO was not granted. This was established from the evidence from
COW1. The Companys letter to the Claimant stated that after careful consideration
on the feasibility and need for GESS, the Company decided not to proceed with
setting it up.. The fact remains on the record, unchallenged, that in the end it was
decided not to proceed with GESS. Hence the prospective offer of employment by
the Holding Company to the Claimant had been overtaken by events and was no
longer on the table, so to speak.

68. The Claimant in his submission relied on the case of INNOPRISE

Corporation Sdn Bhd v Sukumaran Vanugopal, Sabah [1993] 1 ILR 3734 in that
oral and verbal assurance amounted to collateral contract. After considering that

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case, the Court agrees with the Companys submission that the case is irrelevant as
it discussed the practice by the company of retaining the employee on three year
contracts, which was found to be a case of permanent employment being dressed up
as fixed term contract. The facts are distinguishable from the present case. Further,
the principle is also different whereby the Claimant in the present case was already
retired and there was no issue of a permanent contract being dressed up as a fixed
term contract. The Claimants proposed employment by the Holding Company after
his retirement was at all material times conditional upon the approval of the Holding
Companys EXCO on the establishment of GESS. In the same breath, the Court is of
the view that the cases cited by the Claimant in support of his submission, such as
United Seino Transportation (M) Sdn Bhd v Bahari Bin Bab [1994] 2 ILR 159,
Malayan Racing Association v Ong Huat Leng [1995] 2 ILR 72 and Han Chiang
High School / Penang Han Chiang Associated Chinese Schools Association v
National Union Of Teachers In Independent Schools, W. Msia [1988] 2 ILR 611
were cases on fixed term contracts and did not discuss on the issue of re-
employment beyond a workmans retirement.

69. The Claimant had also raised the issue of the presumption of adverse
inference under section 114(g) of the Evidence Act 1950 against the Company for not
producing Tan Sri Dato Wira Syed Abdul Jabbar Syed Hassan and the Holding
Companys then ACEO as its witnesses. An adverse inference under section 114(g)
of the Evidence Act 1950 may be drawn where there was withholding or suppression
of important and material witness or document. It was the Claimants averment that
he was informed by the ACEO of the Holding Company that he will be tasked to head
the Group engineering services, and that he was informed by the Chairman of the
Holding Company that he will entrusted with a senior management position in Mardec
Polimer Sdn Bhd. The Claimant stated that he would not be calling these two persons
as his witnesses and also did not afford any explanation why they were not called.
Ratna Sari was not called by the Claimant to prove the content of the e-mail dated 1
April 2013 on the purported commencement date for the new contract of
employment. However, it is not necessary to go into this because looking at her
designation in the Company, Ratna Sari could not have been the person who makes
the decision in the Holding Company.

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70. The Company submitted that the adverse presumption under section 114(g) in
fact should be invoked against the Claimant on what would likely had happened. The
Company relied on the case Of Nation-Tech Sdn Bhd v Noor Hazman Kamal
[2005] 1 ILR 13 where the Industrial Court held that:

the claimant did not produce the driver, Kamal, to corroborate his evidence
that he told the driver of his dismissal by COW-1. The Claimant himself
testified that Kamal is now still with the company and is contactable. The court
invokes Evidence Act 1950, s 114 (g) and presumes that the evidence of
Kamal which could be and is not produced would, if produced, be
unfavourable to the claimant who withholds it.

71. The Claimant submitted that the case of Elizabeth Voo Sook Ling v Kuala
Lumpur City Securities Sdn Bhd [2003] 2 ILR 570 that was relied on by the
Company in submission on another point should be used against the Company for
the fact that the calling of a material witness by the company to rebut the Claimants
testimony without any evidence to prove reasonable efforts to locate and call that
witness would lead to an adverse inference against the Company. The Court in its
humble opinion is of the view that that case cannot be relied on in relation to this
case. In the present case, the fact of dismissal was in dispute as the Company
claimed dismissal did not take place as the Claimant had already retired. The post-
retirement employment offer was conditional upon the materialisation of the GESS by
the Holding Company. Hence, it is for the Claimant to prove that there was dismissal
from employment before the Court can go any further in determining that if dismissal
had taken place, then it was done without just cause or excuse. The basic principle of
the burden of proof is that he who asserts must prove; in this regard, the Claimant
must prove his assertion on a balance of probabilities that he was offered a contract
of employment after his retirement. The Court has not invoked the adverse inference
against any of the parties because in its view, the evidence of COW1 and CLW2 on
the prospective offer of employment from the Holding Company stands on the face of
record. Nevertheless, the legal burden is on the Claimant to prove that
dismissal had taken place.

72. The Claimant submitted that based on the actions of the Company and
Holding Company, it was wholly reasonable for the Claimant to take the stand that

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the Company had already impliedly given him the extension of employment and
dismissed him thereafter. The Court does not think on the evidence and facts, that it
is proper to imply as such because the evidence points that the conditional offer of
employment was made by the Holding Company. The Claimant submitted further that
the Company must prove that GESS was not feasible and produce witness(s) to
explain why it was not established. The Court does not wish to repeat what it has
stated in the preceding paragraphs save that it has accepted the evidence of COW1
and noted that there was no challenge on the point of the reason why GESS was not
established when COW1 gave evidence. The Court had considered all the
circumstances of the case and concluded that there was no employment relationship
between the Company and the Claimant. Therefore, there was no dismissal from
employment.

73. The Company submitted that the claim was brought against the wrong party
as the Holding Company was the entity that made the offer to the Claimant. The
Claimant on the other hand submitted that the right party was brought cited and
explained why he did not name Tradewinds in this claim. The Court has dealt with the
issue of workman and contract of employment in the preceding paragraphs, which
are the most crucial points to be established in this claim for reinstatement.
Nevertheless, the Court did note in passing the parties submission on this point.

74. The Claimant admitted that he did not cite the Holding Company as a party in
the case. The Company reiterated that as confirmed by the Claimant himself, his
demand for extension of employment was in fact towards the Company and not the
Holding Company. But there was no evidence that he was paid salary and paid EPF
contribution either by the Company or the Holding Company after his retirement date
to prove a credible link between the Claimant and either one of those companies. On
this point, according to the Claimant, he also was unsure from which company, the
offer of employment on contractual basis would be. It was submitted by the Claimant
that nevertheless, the Company can be bound by the actions of its Holding
Company. Taking the above matters into consideration, the Company submitted
that there was no evidence at all in respect of an employment link between the
Company and the Claimant, post 31 March 2013.

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75. The Court finds as fact that the offer of employment was made by the Holding
Company. It was established that the prospective offer of employment on a contract
basis to head the GESS was from the Holding Company and not the Company. This
is clear when the setting-up of the GESS would be deliberated upon by the Holding
Companys EXCO member vide a framework which will be submitted for their
approval in April 2013. The Company submitted that as such, it is evident that the
Claimant erroneously brought his claim or grievance under section 20 against the
wrong party. His complaint of being dismissed by the Company on 14 May 2013
appears to be misplaced. Justice Nallini Pathmanathan in case of Aluminium
Company Of Malaysia Berhad v Chan Sai Meng & Industrial Court, Malaysia
[2014] 1 LNS 938 rightfully pointed out as follows:

I have given anxious consideration to the issue of whether this matter

ought to be remitted to the Industrial Court for re-hearing. However, the
grievance referred by the Minister is the dispute between Alcom and the
workman. The Minister has not referred any dispute for determination
under section 20 in relation to AESB and the workman. The Industrial
Court is only clothed with jurisdiction to hear and determine the
reference made to it by the Minister. As Alcom is not and was not the
employer of the workman at the material time, i.e., between December
2003 and January 2004, there would be no useful purpose served in
remitting such a reference back to the Industrial Court. The workman in
the instant case simply made a complaint of dismissal without just cause
and excuse against the wrong party. He can therefore expect no
recourse from that party.

[Emphasis added]

76. The High Court in the case of Lucy Su Pik Kwong V Minister Of Human
Resources & Anor [2013] 3 ILR 13 held that:

The remedy sought under s. 20 is primarily for reinstatement to

former employment. In fact, unless reinstatement is sought, the Minister
would have no jurisdiction to refer the case to the Industrial Court. In the
instant case, as Syarikat Sesco Bhd is unarguably the employer of the
applicant, it is not clear what role the second respondent could possibly
play if reinstatement is ultimately ordered by the Industrial Court. In the
premises, an order of certiorari or mandamus as prayed in this judicial

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review application will be of no utility to assist the applicant to seek

reinstatement or compensation against the second respondent.

In conclusion, although I am of the view that the Ministers decision

cannot be supported as he omitted to take into account several relevant
considerations and at the same time took into account irrelevant
considerations, the judicial review application is dismissed as the
applicant has not sought representation under s. 20 against her
employer, , or joined them as a party in this judicial review application
....
[Emphasis added]

77. The Court is in agreement with the Companys submission that the authority
relied upon by the Claimant must be distinguished with this case because in Hotel
Jaya Puri Bhd v National Union Of Hotel, Bar & Retaurant Workers & Anor
[1980] 1 MLJ 109 discussed the Industrial Courts discretion to add a party as an
additional claimant or an additional respondent and if the party is added as a
respondent, it can be made subject to the award. In this regard, the Claimant did not
make any application before the Court to add the Holding Company as a party in this
proceeding. The claim of dismissal without just cause or excuse against the wrong
employer effectively tantamount to a third party having to make compensation in lieu
of reinstatement, rather than the workmans real employer. In Elizabeth Voo Sook
Ling the Industrial Court, inter alia, held:

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....

78. The Claimant submitted that Elizabeth Voo Sook Ling does not apply to this
case as the claimant in that case did not commence work with that company.
Nevertheless, the Court takes the view that although the Claimant in the present
case had done some work for the Company and/or Holding Company after his
retirement, the offer of employment was subject to the materialisation of the GESS by
the Holding Company. Any work that the Claimant had carried out in the period
between 1 April 2013 and 13 May 2013 for the Holding Company was done in the

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exploratory period prior to the approval for the establishment of GESS. It was not
disputed that GESS was supposed to be an engineering support service for the
Group, comprising the Holding Company and its various subsidiaries. GESS was not
envisaged to service BERNAS only, had it obtained the final approval from the
Holding Companys EXCO. Even the Claimant under cross-examination agreed that
at first he thought the offer of employment was with BERNAS. He later clarified that
he was not sure as he also reported to the then ACEO of the Holding Company.

79. The Claimant's retirement on 31 March 2013 could be said as a termination of

his contract of employment with the Company, but it did not tantamount to a
dismissal without just cause or excuse. There no longer existed a contract of
employment between the Company and the Claimant after 31 March 2013. As it has
been said, retirement always justifies the termination of service of a workman.

Conclusion

80. There is a two stage inquiry into a dismissal claim that the Court must
observe. The Court must first decide whether there has been a dismissal. In the
present case, if the employee discharges this burden of proof, then the employer is
required to call the relevant evidence to rebut that the dismissal was for just cause or
excuse. In this case, it is a finding of fact by the Court on the facts and evidence
made available to it that the Claimant has failed to show that there existed a post-
retirement contract of employment with the Company. The Court also finds that the
Holding Company had intended at that time to offer the Claimant post-retirement
employment had the GESS materialized in its setting-up. Nevertheless, as there was
a decision not to approve the GESS establishment, there was no longer a necessity
by the Holding Company, to offer a contract of employment to the Claimant. It was
not the Companys call to employ the Claimant as it is bound by its status as a
subsidiary company of the Holding Company. Hence, there is no necessity for the
Court to consider the second stage of inquiry as there was no dismissal in the
context of subsection 20(1) of Act 177 in the first place. The Claimant cannot seek
reinstatement under subsection 20(1) of the said Act.

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 12(14)/4-307/14

81. Applying the case of Elizabeth Voo Sook Ling, the proper forum to seek a
remedy in the Claimants situation is probably at the civil courts as against the
Holding Company or the Company for the contract of employment that he was
promised. This Court does not have jurisdiction to consider such matter as the
remedy sought is for reinstatement to his former employment. Therein lay the key
words, former employment, which was rightly so as the Claimant had ceased
employment upon attaining the mandatory age of retirement of 55 years in 2013,
before the Minimum Retirement Age Act 2012 came into force. Under these
circumstances, reinstatement is not the right recourse for the Claimant.

82. In conclusion, the Court finds, having considered all evidence available before
it and bearing in mind subsection 30(5) of Act 177 to act according to equity, good
conscience and the substantial merits of the case without regard to technicalities and
legal form, the Claimant has been unable to prove on a balance of probability that he
had been employed by the Company after his retirement on 31 March 2013.
Therefore, he is not a workman in the context of Act 177. He was not dismissed on
14 May 2013 because he had retired from the Company by that time. Accordingly
the Court dismisses the Claimants claim.

HANDED DOWN AND DATED 17 JULY 2017

signed

(NOOR RUWENA BINTI DATO' MOHD NURDIN)

INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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