Joseph Lim Chien Shiuh v. Dancom TT&L Telecommunications (M) Sdn Bhd

Joseph Lim Chien Shiuh v. Dancom TT&L Telecommunications (M) Sdn Bhd
[Case No: 4/4-2602/20] (Unfair dismissal during pandemic)Industrial Court
Fact
  • Joseph (Claimant) is a general manager of Dancom  TT&L (Company).
  • The Claimant was informed that he will be terminated from his employment due to the initiatives  taken by the Company to ensure long term sustainability.
  • The Claimant claimed that he had been dismissed from employment without just cause.
  • The Company contended that the termination was due to redundancy arising out of the initiatives as the Company was badly affected by the Covid-19 pandemic.
Issue Whether the Claimant was dismissed with just cause or excuse by the retrenchment exercise undertaken by the Company.
Ratio
  • Retrenchment is an exercise of dismissal that does not include by way of punishment for misconduct.
  • Redundancy is where there exists a surplus of labour or where a business requires fewer employees of whatever kind.
  • In determining whether the Claimant was dismissed with just cause or excuse by the retrenchment exercise undertaken by the Company, the Court will ask these pertinent questions-
  1. Whether there was a genuine need for the reorganization exercise by the Company;
  2. Whether a genuine redundancy situation had arisen which led to the retrenchment of the Claimant; and
  3. Whether the Company had complied with the accepted standards and procedure when selecting and retrenching the Claimant
  • If the Company is able to answer all the above three questions in the affirmative, then this Court must come to a conclusion that the retrenchment exercise undertaken by the Company against the Claimant is a bona fide exercise of the managerial powers of the Company.
  • Must be supported by convincing evidence before this Court on a balance of probabilities.

 
Decision
  • None of the officers of the Company who participated in the selection process of the Claimant for retrenchment were called to give evidence in Court. The Company also failed to adduce proper and adequate evidence on the alleged financial difficulties leading to the austerity measures or the retrenchment exercise carried out by the Company.
  • Having considered the evidence adduced before this Court, this Court is of the view that the evidence of the Company’s witness on the alleged bona fide restructuring and re-organisation of the Company’s business that led to the retrenchment of the Claimant is not convincing.
  • The decision of the Company to seize the COVID19 pandemic as an opportunity to terminate the Claimant from his employment smacks rash and ill thought exercise by the Company.
Key take away
  • A person who was dismissed due to Covid-19 pandemic may seek redress from the Industrial Court.
  • A company must prove, on the balance of probabilities that retrenchment exercise was bona fide supported by evidence.
  • Failure to do so may reveal unfair labour practice and may be compensated.

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