Employment & Labour Law

Suseela Devi A/P Balakrishnan v INTI International College Kuala Lumpur Sdn Bhd

Citation: Award No. 343 of 2019; Date of Judgment: 22 January 2019; Name of Court: Industrial Court; Source: Industrial Court

INDUSTRIAL COURT OF MALAYSIA

CASE NO: 24(14)/4-1119/16

BETWEEN

SUSEELA DEVI A/P BALAKRISHNAN

AND

INTI INTERNATIONAL COLLEGE KUALA LUMPUR SDN. BHD.

AWARD NO. 343 OF 2019

BEFORE: YA TUAN P. IRUTHAYARAJ D. PAPPUSAMY - CHAIRMAN

VENUE: Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE: 15.08.2016.

DATES OF MENTION: 12.10.2016, 11.01.2017, 24.08.2017.

DATES OF HEARING: 04.06.2018, 05.06.2018, 30.07.2018, 15.08.2018, 01.10.2018.

REFERENCE:

This is a reference made under subsection 20(3) of the Industrial Relations Act 1967 dated 15.08.2016 arising out of the dismissal of Suseela Devi a/p Balakrishnan (hereinafter referred to as “the Claimant") by INTI International College Kuala Lumpur Sdn. Bhd. (hereinafter referred to as “the Company”) on 07 12.2015.

AWARD

Facts

[1] The Claimant initially commenced employment with INTI College Subang Jaya (Wholly owned by INTI Instruments (M) Sdn. Bhd.) as a Lecturer with effect from 15.12.2008 to 31.12.2009.

[2] By letter dated 21.12.2009 from INTI College Subang Jaya, the Claimant’s appointment as a Lecturer was renewed for another year from 01.01.2010 to 31.12.2010.

[3] By letter dated 31.12.2009 from INTI College Subang Jaya, the Claimant was appointed to the post of Head of Programme for Bachelor of Business Administration with the Centre for American Education with effect from 01.01.2010 to 31.12.2010. With this appointment, on top of her academic role as a Lecturer, she became involved in management studies in running the programme.

[4] By letter dated 28.12.2010 from INTI Instruments (M) Sdn. Bhd., the Claimant was informed inter alia that her employment status was changed from a contractual position to a permanent position from 01.01.2011. She was in the permanent position status from 01.01.2011 until 31.12.15 when she was holding the position as Acting Chief Executive of INTI International College Kuala Lumpur when she was undergoing her probation period from 01.04.2015 to 31.12.2015 (“the probation period”). Therefore, for avoidance of doubt, effectively she was in a permanent position status for a total period of 5 years inclusive of the probation period.

[5] By letter dated 07.06.2010 from INTI College Subang Jaya, the Claimant was appointed as Director of Pre-University Studies commencing 07.06.2010 until 31.12.2011. Later, vide letter dated 27.02.2010, the Claimant was appointed by INTI International College Subang as Director of Centre of Pre-University Studies from 01.01.2012 to 31.12.2012.

[6] By later dated 11.08.2011 from INTI International College Subang, the Claimant was promoted from Lecturer to Senior Lecturer under Job Grade SL2 with effect from 01.01.2011.

[7] By letter dated 28.12.2010 from the INTI Instruments (M) Sdn. Bhd., the Claimant was appointed as Director of Operation - Kuala Lumpur Campus with effect from 01.01.2013. With this appointment she became a full time management staff.

[8] Another Company called Metropolitan College Sdn. Bhd. appointed the Claimant to the same position with a change to the title of Director of Academic Operations - Kuala Lumpur Campus.

[9] By letter dated 10.03.2015 issued by INTI international College Kuala Lumpur (formerly known as Metropolitan College run by Metropolitan College Sdn. Bhd.), the Claimant was appointed as the Acting Chief Executive of INTI International College Kuala Lumpur from 01.04.2015 to 31.12.2015.

[10] The Claimant contends that the College had applied to Registrar General to the Private Higher Educational Institutions, of the Department of Education, to have the Claimant registered as the Chief Executive of the College, as per the prevailing statutory requirement.

[11] The Claimant contends that the statutory requirement as described above was in line with what was communicated to the Claimant; i.e., that she would be confirmed as the Chief Executive of the College by the year end 2015. This was informed to her by the then Senior Vice President of Group Operations, Mr. Chen Theng Aik (CLW-2).

[12] On 24.11.2015, the Claimant was handed with a voluntary separation scheme letter and was told that the Company would like to offer her the option of VSS. The Claimant claimed that she felt professionally undermined and unappreciated. Under the said circumstances she had to accept the VSS involuntarily.

[13] The Claimant’s last drawn basic salary was RM11,480.00 per month along with a travelling allowance of RM1,000.00 per month. Meanwhile, she was paid an acting allowance of RM2,500.00 as the Acting Chief Executive.

The Company’s Case

[14] The Company contended that the Claimant was not dismissed and accordingly stated as follows:-

a) Due to an operational review of the business structure of the Company to aim for efficiency and preparing for the increasingly competitive business environment, the Company had initiated a Voluntary Separation Scheme (“VSS”) and decided to extend the invitation to the Claimant by way of a VSS letter dated 24.11.2015 together with the Terms and Conditions of the VSS.

b) By way of an Application for VSS, the Claimant had voluntarily applied to participate in the VSS and submitted her application on 30.11.2015

c) On 02.12.2015, the Company accepted the Claimant’s application for VSS by way of a letter of acceptance for VSS dated 02.12.2015.

d) The total compensation paid to the Claimant (inclusive of severance package) for her past services was RM199,086.10.

[15] Based on the above, the issue of dismissal does not arise in the circumstances of this present case. The Company’s position is that the Claimant’s employment with the Company had ceased pursuant to the VSS which had been mutually agreed between the Claimant and the Company

The Claimant’s Case

[16] The Claimant on the other hand contended that she was dismissed without just cause or excuse on the following grounds:-

a) The Company’s excuse that there was no longer a need for the Claimant’s position arising from the purported revaluation of the existing business structure was untenable and baseless in the circumstances;

b) The Claimant was not redundant nor surplus to the requirement of the Company;

c) There was no necessity to effect the VSS exercise as the Claimant’s functions in the Company continued to exist in the Company, even after her dismissal and was in fact taken over by the Dean of Centre for Art & Design from Subang Campus;

d) The main tasks/projects that the Claimant was involved in as at 07.12.2015 was carried on by the Company and/or completed thereafter, namely:-

i. Roll out and implementation of new programmes/products for the college;

ii. Campus E-Learning initiatives;

iii. Implementation of the Working Adult Online Diploma;

iv. Scheduled Accreditation of existing Programmes;

v. Campus Renovations;

vi. Management of Campus Operations; and

vii. Management of Campus Academic Operations.

e) There was no cessation or diminution in the Claimant’s functions as the Acting Chief Executive of the Company; and

f) The Claimant’s dismissal was in violation of established principles of The Code of Conduct for Industrial Harmony including but not limited to the principle of LIFO

The Issue

[17] The issue in this case is whether there was (a) justification for the implementation of VSS by the Company, and if so (b) whether the VSS was carried out voluntarily or involuntarily. If the VSS was carried out voluntarily then the Claimant’s separation from the Company was proper and in order. If the VSS was applied involuntarily that is to say it was carried out by use of force subtle or otherwise or by coercion or duress in any form or by any unfair labour practice, then it may amount to dismissal without just or excuse.

COUNSEL

For the Claimant: Mr. V. K. Raj from Messrs P. Kuppusamy & Co

For the Company: Mr. Ravindra Kumar from Messrs Raja, Darryl & Loh

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