Employment & Labour Law

Ager Chiew Chong Yew v Bayer Co (Malaysia) Sdn Bhd

Citation: Award No. 263 of 2019; Date of Judgment: 16 January 2019; Name of Court: Industrial Court; Source: Industrial Court

INDUSTRIAL COURT OF MALAYSIA

CASE NO: 22(11)/4-1140/15

BETWEEN

AGER CHIEW CHONG YEW

AND

BAYER CO. (MALAYSIA) SDN. BHD.

AWARD NO. 263 OF 2019

BEFORE: YA DATO' FREDRICK INDRAN X.A. NICHOLAS - CHAIRMAN

VENUE: Industrial Court Malaysia, Kuala Lumpur.

DATE OF REFERENCE: 08.10.2015

DATES OF MENTION: 15.12.2015, 21.01.2016, 01.03.2016, 18.03.2016, 19.09.2016, 06.10.2016 & 16.11.2016.

DATE OF HEARING: 13.10.2016, 14.10.2016, 18.09.2017, 11.10.2017, 15.10.2018 & 16.10.2018.

AWARD

The Reference:

[1] Ager Chiew Chong Yew (‘the Claimant’), ceased from his erstwhile service at Bayer Co. (Malaysia) Sdn. Bhd. (‘the Company’) with effect from 31.12.2014.

[2] The Claimant, being aggrieved by the circumstances surrounding the cessation of his employment, made written representations on 27.11.2014 to the Director General for Industrial Relations, Malaysia; under s. 20(1) of the Industrial Relations Act 1967 (‘the Act’). The said representations were duly entertained by the said Director General as it was properly; and regularly filed, notwithstanding that it was lodged prior to the date of the cessation of his service at the Company.

[3] The conciliatory efforts undertaken thereafter by the said Director General’s office in pursuance of that representation turned out to be unproductive; wherefore that office, being convinced that the matter could not be amicably resolved thereat, duly notified the Honourable Minister of Humans Resources, Malaysia; of that failed reconciliation process. This notification was made pursuant to s. 20(2) of the Act.

[4] Upon the perusal of the said notification and its ancillary papers; and by virtue of s.20 (3) of the Act, the Honourable Minister found it fit to exercise those powers under that section to refer this matter to the Industrial Court of Malaysia for due determination and final disposal.

[5] As a result, the Claimant’s initial representations were transformed into a Ministerial Reference for an Award before this Court. The said Ministerial Order was dated 8.10.2015; which was received by this Court’s Registry at Kuala Lumpur on 5.11.2015.

The Track to Trial & Thereafter:

[6] This case was first mentioned at Court No: 11 of the Industrial Court of Malaysia at Kuala Lumpur on 15.12.2015. After several subsequent mention dates set down for administrative and case management purposes, this matter was set down to commence trial on 13.10.2016, on which date the hearing began; and continued on various dates until 16.10.2018; on which date the trial was completed.

[7] It is to be noted that the case was initially heard by Chairman, Y. A. Dato’ Ahmad Rosli bin Mohd Sham; but mid-way during the course of the trial (i.e. on 18.9.2017), was taken over by Chairman, Y.A. Dato’ Mohd Dusuki bin Mokhtar as a result of the exigencies of service, whereat Dato’ Ahmad Rosli had been transferred to the Honourable Attorney General’s Chambers.

[8] On 9.10.2018, on the instructions of the Honourable President of the Industrial Court of Malaysia, this case was reassigned to Court No. 22 for continued hearing, as Dato’ Mohd Dusuki, in his turn, was also transferred to the Honourable Attorney General’s Chambers with effect from 18.9.2018. The matter was then taken over by the instant Chairman for continued hearing between the 15 and 16 October 2018, on which date, as stated above, the trial was concluded.

[9] At the conclusion of the hearing, each party was allowed to file written submissions. In the event, the Claimant’s written submission was filed on 16.11.2018; whilst that of the Company’s was filed on 17.12.2018. The Claimant’s reply was then filed on 8.1.2019.

[10] All that remains for the Court to do now is to hand down its Award ~ which it does by this:

The Brief Facts:

[11] The Claimant was employed by the Company as a Senior Product Manager and commenced employment on 25.2.2013. He was confirmed in service by the Company on 25.8.2013.

[12] On 1.10.2014, the Claimant was said to have tendered his resignation to the Company, thus (exact copy):

Image

[13] This resignation was accepted by the Company, thus (exact copy):

Image

[14] As an explanation for the reasons for his resignation the Claimant also issued the following email dated 1.10.2013 to the Company (exact copy):

Image

[15] The above said email was said to be in response to the following warning letters issued to the Claimant by the Company.

[16] Warning letter dated 14.7.2014 (exact copy):

Image

[17] Warning letter dated 15.8.2014 (exact copy):

Image

[18] Warning letter dated 22.9.2014 (exact copy):

Image

[19] The Claimant is now before this Court with the assertion that under the circumstances surrounding him at the material time, he was forced to resign by the Company.

[20] The Company conversely refutes the allegation; and insists that the Claimant had resigned voluntarily to avoid being subjected to any employment corrective action (e.g. Performance Improvement Plan; but up to and including dismissal) due to the particular circumstances that had arisen at the time.

The Issue:

[21] The issue here is whether the Claimant’s resignation was voluntary or forced; and if the latter, whether it constituted unfair dismissal?

The General Principles:

[22] When dealing with a reference under section 20 of the Industrial Relations Act 1967, the first thing that the Industrial Court has to consider is the question of whether there was, in fact, a dismissal. If this question is answered in the affirmative, it must only then go on to consider if the said dismissal was with or without just cause or excuse. Reference is drawn to the case of WONG CHEE HONG v CATHAY ORGANISATION (M) Sdn. Bhd. [1988] 1 MLJ 92, [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298 (Supreme Court) per Salleh Abas LP.

COUNSEL

For the Claimant: Mr. Lee Teong Hooi from Messrs Lee Tan & Associates

For the Company: Ms. M. Mehala together with Ms. Nursabrina Jamaluddin from Messrs Shook Lin & Bok

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