INDUSTRIAL COURT OF MALAYSIA CASE NO: 9/4-1159/11 BETWEEN AZIZAH BINTI BIDIN DAN 5 ORANG PERAYU LAIN AND LANGKASUKA RESORT SDN .BHD. (LANGKASUKA BEACH RESORT) & LANGKAWI AIRPORT SDN. BHD. (HOTEL HELANG) BEFORE VENUE DATE OF REFERENCE DATES OF MENTION DATE OF HEARING DATES OF HEARING OF APPLICATION REPRESENTATION REFERENCES: AWARD NO: 1268 OF 2018 Y.A. TUAN DOMNIC SELVAM GNANAPRAGASAM - CHAIRMAN (Sitting Alone) Jabatan Tenaga Kerja, Langkawi, Kedah 3" of October 2011 17" of January 2012, 27" of February 2012 16" of April 2012, 23" of June 2015, 26" of October 2015, 25" of February 2016, 31” of May 2016, 17” of June 2016, 5" of October 2016, 44" of November 2016, 19" of December 2016, 13" of February 2017, 20" of April 2017 26" of May 2017, 16" of June 2017 & 12" of September 2017. 29" of January 2018 8" of August 2017 & 19" of December 2017 Mr Eric Cheah Woon Leong of Messrs. Hong, Cheah & Co, Counsel for the Claimants Mr Darshan Singh Aulakh & Ms Jaswant Kaur of Messrs. Darshan & Jaswant, Counsels for the Respondent This case is a reference under Section 20(3) of the Industrial Relations Act 1967, arising from the dismissal of Azizah binti Bidin & 5 Orang Perayu Lain (hereinafter referred to collectively as “the Claimants’) by Langkasuka Resort Sdn. Bhd. {Langkasuka Beach Resort) & Langkawi Airport Sdn. Bhd. (Hotel Helang) (hereinafter referred to as “the Respondents’) on the 20" of September 2010.AWARD This reference stems from the dismissal of Azizah Binti Bidin & 5 Orang Perayu Lain (‘the Claimants") by Langkasuka Resort Sdn. Bhd. (Langkasuka Beach Resort) & Langkawi Airport Sdn. Bhd (Hotel Helang) (‘the Respondents’) on the 20" of September 2010 The hearing of this matter was kept in abeyance with the agreement of both parties. This was so as there was an identical matter involving other employees against the Respondents in Abu Baker bin Salleh & 36 others vide Case No: 9/4-997/11 (the said "Abu Bakar's Case). The records of the Court shows that on the 23” of June 2015, the parties had then agreed to await the outcome of jucicial review and appeals related thereto. In the said Abu Bakar’s case, the Industrial Court found in favour of the Respondents. In a judgement dated the 30" of March 2017, the Court of Appeal eventually overturned the decision and ruled in favour of the Claimants. An application by the Respondents to the Federal Court for leave to appeal was later denied THE APPLICATION: The Learned solicitors for the Respondents informed Court that the parties had apparently agreed that the decision in the said Abu Bakar's case shall be binding on the present case. As such, the Learned Counsel urged the Court to hand down a similar award that was handed down in the Abu Bakar’s case by the Industrial Court which was in favour of the Respondents. Learned counsel for the Claimants said otherwise. In view of the conflicting positions taken by the parties, the Court advised the Respondents to file a formal application for the Court to determine the issue at hand. The application was heard and this Court handed down an award vide 1799 Of 2017 dismissing the Application of the Respondents and directing that the matter be heard in fullBACKGROUND OF CASE: The Claimant Azizah Binti Bidin and 5 other Claimants were employed by the Respondents at different times ranging from the year 2001 to 2009. On or about the 2 of April 2010, alll the workers of the Respondents including the Claimants were given letters informing them that Langkasuka Beach Resort had ceased operations with effect from the 1* of April 2010 (CLB1- Page 41). Their employment would be maintained by Langkasuka but they were to work at their associate hotel, Hotel Helang. The Union protested alleging that the relocation was mala fide. Incidentally, the Claimants were not members of the union. The original employees of Hotel Helang were paid full salaries but the Claimants were only paid their basic salary. Their service charges were not paid The Union then lodged a complaint with the Industrial Relations Department over the matter. Following the complaint, a Memorandum of Agreement was reached between the Union and the Respondents. Amongst the terms of the agreement was i. That the Langkasuka Beach Resort would be re-opened on the 31" of December 2010 and all employees would be relocated again; ii, The service charges would be paid according to the rates that were paid to the employees of Hotel Helang unti! their relocation again: and ii, The outstanding service charges owing to the employees would be paid within two weeks of the signing of the Memorandum of Agreement Contrary to the agreement, the Respondents only paid the service charge for the Claimants for the month of April in September 2010. On the 18" of September 2010, Hotel Langkasuka Beach Resort called all the employees for an emergency meeting and informed them that it wanted to offer all their employees employment with Hotel Helang with the same terms and conditions. The employees including the Claimants were unhappy with the offer and asked the hotel to comply with the agreement first Hotel Langkasuka informed them that the reinstatement of the employees were “legally rendered impossible” as it was alleged that the property had passed on to new ownersnamely Global Upline Sdn. Bhd. The Claimants and other employees staged 4 walkout rejecting the offer of the Respondents, The Respondents on the 21* of September 2010 called all the employees, the Claimants included; and gave them letters of dismissal dated the 20" of September 2010. Hence this claim. PRELIMINARY ISSUI There were a total of six Claimants. However, on the date of the hearing, only one of the Claimants could be traced and turned up for the hearing. The Court has dealt with the absent Claimants and has issued an award vide Award no: 1241 of 2018 in stricking out their claim. EVIDENCE OF PARTIES: As a preliminary to the evaluation of evidence, this Court is bound by the decision of the Court of Appeal in Abu Bakar bin Salleh & 36 Perayu Lain (Rayuan Sivil No: P - 02 (A) -1263-07/2016) which is substantially the same with that of this Claim. In the Abu Bakar’s case, it involved employees who were union members. EVIDENCE OF THE RESPONDENTS: The Respondents produced Johan Eusoffe Abdullah (COW1) to testify on its behalf. He testified that the Board of Directors of One Hotel Management Consultation Sdn, Bhd. which was managing both the hotels of the Respondents decided to close Langkasuka Resort due to safety and operational reasons. The employees were given letters of transfer to Hotel Helang. When the employees were informed on the 18” of ‘September 2010 that Langkasuka Resort ceased to exist and there was no possibility of them going back to work with the Resort, the employees including the Claimant staged a walkout. It was the pleaded case of the Respondents that the Claimant was issued a letter dated the 20" of September 2010 confirming the rejection of the offer (Amended ‘Statement In Reply Paragraph 8 ).EVIDENCE OF THE CLAIMANT: The Claimant Mohd Zairan bin Zulkafli (CLW1) testified that he joined the Respondents on the 19" of June 2009. He confirmed that he was relocated to Hotel Helang in April 2010. He further testified that upon the signing of the memorandum, the Respondents agreed to pay the outstanding service charges and the Claimant's portion which amounted to: A. APRIL 2010 RM 187.45 B. MAY 2010 RM 155.45 C. JUNE 2010 RM 206.90 CLW11 confirmed that these outstanding payments were settled only on the 21" of September 2010. From the month of May 2010 onwards, the Claimant was only paid his basic salary. EVALUATION OF EVIDENCE: The Court finds that there was no notice of termination by Langkasuka Resort as the letter was issued by Hotel Helang. This was also the finding in the decision in Abu Bakar (supra). Neither was there any notice of any termination due to the alleged change of ownership CONCLUSIO! Having considered carefully all evidence presented before this Court and after perusing the written submissions filed by both parties and bearing, the Court in consonance with Section 30(5), the Industrial Relations Act 1967 to act according to equity and good conscience and substantial merits of the case without regard the technicalities, this Court is of the considered view that the Claimant was indeed dismissed but without just cause or excuse. Having found the dismissal to be without just cause or excuse, the Court will now decide on the appropriate remedy.THE REMED’ The Claimant had worked for a period of 1 year and 3 months prior to his dismissal, It is admitted that the Respondents that the Claimant's monthly wages was RM983.34. (Statement In Reply Paragraph 1). In deciding whether the Claimant should be reinstated to his former position, this Court is of the considered view that the circumstances under which the Claimant was dismissed and due to the passage of time it would not be in the interest of industrial harmony to do so if the Claimant is reinstated. (Koperasi Serbaguna Sanya Bhd. (Sabah) v. Dr. James Alfred and Anor [2000] 3 CLJ 758 followed. Thus, the Court orders that the Claimant be paid back wages from the date of dismissal to the date of this award. The Court also orders that compensation in lieu of reinstatement be paid to the Claimant as the Court declines to reinstate him. SCALING DOWN: In considering the appropriate amount of compensation to be paid, the Court must consider factors that would be just and equitable to both parties. The Court does not propose to scale - down the backwages as the Claimant had only worked for slightly more than a year. The Court therefore orders that the backwages to be computed in the following manner: BACKWAGES: RM983,34 x 15 months = RM14,750.00 (19-6-2008 to 21-1-2018)COMPENSATION IN LIEU OF REINSTATEMENT: Compensation in lieu of reinstatement of one month's salary for each year of completed service. RM983.34 x 1 month RM 983.34 Total RM15,733.34 FINAL ORDER: The Respondents is ordered to pay the 3" Claimant Mohd Zairan bin Zulkaffli the sum of RM15,733.34 (RINGGIT MALAYSIA FIFTEEN THOUSAND SEVEN HUNDRED AND THIRTY THREE AND THIRTY FOUR ONLY) less any statutory deductions to the 3" Claimant via his Solicitors Messrs Hong Cheah & Co within 30 days from the date hereof HANDED DOWN AND DATED THIS 4" DAY OF JUNE 2018 {DOMNIC SELVAM AYL SNGNANAPRAGASAM) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA PENANG BRANCH