Malaysian Legal System

CASES OF

ERUTHIAM AROKIASAMY v. B M ENTERPRISE SDN BHD [2006] 2 ILR 852

INDUSTRIAL COURT, KUALA LUMPUR

AWARD NO. 622 OF 2006

MOHD AMIN FIRDAUS ABDULLAH

Summary

The industrial Court, constituted under the Industrial Relation Act 1967, deals primarily with trade disputes and therefore has jurisdiction own matters concerning employers, employees and trade unions. Industrial Court is an under superior court in Malaysia. My purpose to analysis this case is to know about the power of judgement and how strong the law in the Industrial Court.

Facts of the case:

The claimant, a lorry driver, had complained to his employer/company about having to work overtime but not being paid. According to the claimant, he was often asked to work beyond 5pm on weekdays and beyond 1pm on Saturdays. The company admitted to not according any overtime payment to the claimant, but contended that the claimant was forced to work overtime because of his own bad time management. Specifically, it was alleged that the claimant had chosen the wrong routes to deliver the goods, which could otherwise be delivered within his working hours.

The claimant was however persistent in the complaints, giving various reasons and justifications. The company, however, took the claimant's behavior in very negative light, and so, by letter dated 26 November 2001, terminated the claimant's services on the ground that the claimant had shown a "lackadaisical work attitude not acceptable to the company". At the hearing, the company sought to plead another reason for the dismissal, namely that the claimant was found to be redundant and had to be retrenched. The issue was whether the termination, on the facts, was with just cause or excuse.

Held:

On the question of retrenchment, all the three witnesses produced by the company, especially its Managing Director did not give a shred of evidence concerning the recession that was supposed to have affected the company. This reason was therefore not a bona fide one. The Court perused the definition in the Oxford Advanced Learner's Dictionary which defined "lackadaisical" as "not showing enough care or enthusiasm". It further observed that this was the sole ground given in the termination letter, namely "due to your work attitude or lackadaisical attitude". Accordingly, the Court was of the view that the Claimant had not committed any misconduct to justify a dismissal.

The Court held that a workman who does not show enough care or enthusiasm in his work but nonetheless plods on with the work does not necessarily commit misconduct. The Court further observed that the written submission of the company was sprinkled with words of falsehood, fabrication, lies and the like which were not pleaded. The company, in the result, had failed to prove poor performance which was the reason cited for the dismissal. Although the company claimed to have verbally warned the claimant for his "lackadaisical attitude' on numerous occasions, the company witnesses did not adduce an iota of evidence to support this. For the above reasons the Court held that upon the evidence and the arguments adduced, the company had failed to discharge the burden of proving on a balance of probabilities that the dismissal was with just cause or excuse. On the facts and in the circumstances, the Court held that company's basic argument that the claimant had shown poor time management and had taken the wrong routes in carrying out his deliveries could not hold water.

The Court proceeded to hold that where a workman has repeatedly complained to his employer about what appears to be legitimate grievances relating to having worked contrary to a fundamental term of his contract of service, but the latter had remained silent and did not respond and instead cut short the employee's employment by suddenly issuing a termination letter, the conclusion could only be that the complaint had merit or some merits. The Company was accordingly held to have dismissed the Claimant without just cause or excuse quashed.

Opinion

For my opinion the company of the claimant should be flexible based on managing employees shift because if the companies take serious about time the employees will not request work shift based on their opinion. Communication between the employees is very important to achieve want and need. Besides that give and benefit also prevent the employees to come to duties late. Terminated employees is the most hard to do because everyone has special protection in Law.