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