Akar Graphic Centre Sdn Bhd v 1. ) Dirman Bin Daud (BA-16-3-01/2022)

1.

2.

3.

4.

MUHAMAD HAKIMI BIN YUSUF …RESPONDEN-RESPONDEN [DALAM KES SAMAN KETUA PENGARAH TENAGA KERJA NO: KBR /11002/2021/0026

1.

2.

3.

4.

MUHAMAD HAKIMI BIN YUSUF …PENGADU-PENGADU DAN AKAR GRAPHIC CENTRE SDN. BHD. (No. Syarikat: 479716-H) …DEFENDAN] GROUNDS OF JUDGEMENT [1] This is the appellant Akar Graphic Centre Sdn Bhd’s appeal against the decision made by Assistant Director of the Labour Department, Tuan Saleem bin Zakir on 07/12/2021 allowing the Respondents’ claim for a sum of RM 94,809.90. 17/03/2023 15:12:26 Kand. 19 Salient Facts [2] The first respondent, Dirman bin Daud was employed as a Mobile Crane Operator on a contract basis from 01/07/2020 until 31.10.2020 with a monthly salary of RM 5,500.00. His contract was further extended from 01/11/2020 to 31/01/2020. [3] The second respondent, Mohd Faizol bin Mohamad was employed as a Crawler Crane Operator on a contract basis from 07/07/2020 until 31/10/2020 with a monthly salary of RM 5,000.00. His contract was further extended from 01/11/2020 to 31/01/2020. [4] The third respondent, Nasrul Hanif bin Yusuf was employed as a Boring Operator on a contract basis from 07/07/2020 until 31/10/2020 with a monthly salary of RM 6,000.00. His contract was further extended from 01/11/2020 to 31/01/2020. [5] The fourth respondent, Mohd Firdaus bin Ibrahim was employed as a Mobile Crane Operator on a contract basis from 07/07/2020 until 31/10/2020 with a monthly salary of RM 5,000.00. His contract was further extended from 01/11/2020 to 31/01/2020. [6] The fifth respondent, Muhamad Hakimi bin Yusuf was employed as Mobile Crane Operator on a contract basis from 07/07/2020 until 31/10/2020 with a monthly salary of RM 5,000.00. His contract was further extended from 01/11/2020 to 31/01/2020. [7] The first to fifth respondent were employed with the appellant. However, the first and fifth respondent were transferred to a third party i.e. Warisan Dengkil Infra Sdn Bhd commencing December 2020, in which the respondents started receiving salary for the month of December 2020 from the said third party. [8] Dissatisfied with the termination by the appellant, the respondents complained to Pejabat Tenaga Kerja Pelabuhan Klang. On 07/12/2021 the Pejabat Tenaga Kerja Pelabuhan Klang allowed the respondents’ claim for a sum of RM 94,809.90. Issues Raised [9] Succinctly, learned counsel for the appellant raised two main issues. The two issues are:

No overtime payment should be paid to the respondents as there are no instruction given by the appellant for task be executed out of working hours set by the appellant; and

(ii) The respondents are aware that their employment was not terminated by the appellant but transferred to another third party i.e. Wawasan Dengkil Infra Sdn. Bhd and the respondent have received salary from the third party since December 2020. Deliberation Of Issues

No overtime payment should be paid to the respondents as there are no instruction given by the appellant for task be executed out of working hours set by the appellant [10] The respondents among others, claimed for overtime payment for the month of September, October, November and December 2020. It was contended by learned counsel for the appellant that the respondents had failed to show that any instruction was given to the respondents for the tasks to be conducted out of the working hours. The respondents failed to call the Project Manager who allegedly gave instruction for respondents to work overtime during the hearing at the Pejabat Tenaga Kerja Pelabuhan Klang. [11] At the Pejabat Tenaga Kerja, the respondents exhibited the form for overtime claim but did not call the project manager. [12] A perusal of the Record of Appeal indicates there is no document to show the overtime claim made by the respondents. Nonetheless, the facts indicate the appellant had previously made overtime payments to the respondents. [see page 66 to 69 Rekod Rayuan Tambahan]. There appears no procedure or process for the overtime claims. Despite this, the appellant had previously paid the respondents for overtime. [13] Moreover, the appellant’s representative at the hearing at the Pejabat Tenaga Kerja Pelabuhan Klang had admitted that he had no documents to prove that the appellant was having financial difficulties at that time. [14] It is the considered view of this court that the appellant had previously paid the respondents overtime. The respondents claimed for overtime for September, October, November and December

However, the appellants did not make the overtime payments. [15] It is this court’s considered view that the appellant had previously paid the respondents for overtime work. The respondents claimed for overtime in the same manner as before. By the conduct of the appellant which had previously paid the overtime to the respondents, this court is satisfied that the respondents are entitled to the overtime payments for the months of September, October, November and December 2020.

(ii) The respondents are aware that their employment was not terminated by the appellant but transferred to another third party i.e. Wawasan Dengkil Infra Sdn. Bhd and the respondent have received salary from the third party since December 2020. [16] Learned counsel for the appellant submitted that there was no termination of the respondents employment. This is because the respondents were transferred to a third party, namely Wawasan Dengkil Infra Sdn Bhd. [17] Hence, it was contended by learned counsel for the appellant that payment in lieu of notice would only be made if there is inadequate notice of termination. In this case however, there was no termination when the respondents employment were transferred to Warisan Dengkil Infra Sdn Bhd. [18] The issue therefore is whether the appellant can transfer personnel to another organisation. The appellant argued that this is allowed. To support this contention, the appellant relied on the case of Ladang Holyrood v Ayasamy a/l Manikam & 16 Ors [2004] 3 MLJ 339 as follows: “13. We now turn to the next issue, that is, whether the appellant has any right under the contract of service to transfer the respondents to the Main Division. In Soon Seng Cement Products Sdn. Bhd & Anor v Non-Metallic Mineral Products Manufacturing Employees's Union [1996] 1 ILR 414 award no. 107 of 1997 the same issue came to be considered by the Industrial Court. There the court made the following observation which we think is highly pertinent to the issue before us: It is well established in Industrial Law that the right to transfer an employee from one department to another or from one post of an establishment to another or from one branch to another or from one company to another within the organisation is the prerogative of the management and the Industrial Court will ordinarily not interfere. But if the transfer is actuated with improper motive, it will attract the jurisdiction of the Court. The power to transfer is, therefore, subject to, according to Ghaiye's Misconduct in Employment (at pages 254 and 255), the following well recognised restrictions:

there is nothing to the contrary in the terms of employment;

the management has acted bona fide and in the interests of its business;

the management is not actuated by any indirect motive or any kind of mala fide;

the transfer is not made for the purpose of harassing and victimising the workmen; and

the transfer does not involve a change in the conditions of service. And this right of transfer is also embodied in the Industrial Relations Act 1967, where it states that the company has the right to transfer its employees within the organisation so long as such transfer 'does not entail a change to the detriment of an employee in regard to the terms of employment' — s 13 of the Industrial Relations Act 1967.

Similarly BR Ghaiye in his book Misconduct in Employment p 238 stated as follows: It is generally held that the right to transfer an employee is an implied right of the employer and, therefore, no express term in the contract is necessary. The right exists even in the absence of contract unless there is a contract to the contrary. The implied right of an employer to transfer is available even when an employee is a probationer. In the absence of anything in the contract of service, general right of the management to transfer will remain. …

This right to transfer is not without restriction. In Assembly Services Sdn Bhd, Shah Alam/UMW Engineering Sdn Bhd, Shah Alam & UMW (M) Holdings Sdn Bhd, Shah Alam (joined as a party) and Motor Assemblers Supervisory Staff Union, Peninsular Malaysia [1985] 1 ILR 489 (Award 136 of 1985) the court observed: … the company has the right to transfer its employees within its organisation, provided that such transfer does not entail a change to the detriment of an employee in regard to his terms of employment. It is wellestablished in industrial law that the right to transfer an employee from one department to another or from one post of an establishment to another or from one branch to another or from one company to another within the organisation is the prerogative of the management and the Industrial Court will ordinarily not interfere. But if the transfer is actuated with improper motive, it will attract the jurisdiction of the court. The power to transfer is, therefore, subject to (according to Ghaiye's Misconduct in Employment (at pp 254-255) the following wellrecognised restrictions:

there is nothing to the contrary in the terms of employment;

the management has acted bona fide and in the interest of its business;

the management is not actuated by any indirect motive or any kind of mala fide;

the transfer is not made for the purpose of harassing and victimizing the workman; and

the transfer does not involve a change in the conditions of service. But whether a transfer entails a change to the detriment of an employee in regard to the terms of employment, or whether the transfer was bona fide is a question of fact for the court to determine. [Emphasis added] [19] The appellant further relied on the terms of the clause 2 of the Employment Contract. The clause is reproduced below for ease of reference: “2. Base Location and Project You shall be based at Project LRT, Klang for the following project during the duration of your contract of service. Construction And Completion Of Guideway, Stations, Park And Rides, Ancillary Buildings And Other Associated Works For Package GS09 For Construction And Completion Of Light Rail Transit Line 3 (LRT3) For Bandar Utama To Johan Setia. However, the management reserved the right to transfer or relocate you to other location or projects as it deemed fit. [Emphasis added] [20] Clause 2 of the Employment Contract enables the appellant to transfer or relocate the respondents to another location or another project. The facts of this case disclose that the respondents were transferred to another company, namely Wawasan Dengkil Infra Sdn Bhd. The transfer of the respondents to Wawasan Dengkil Infra Sdn Bhd, in the considered view of this court, is not a transfer or relocation to another location or project. What this entails is that the respondents are now employees of Wawasan Dengkil Infra Sdn Bhd. [21] Pertaining to Ladang Holyrood v Ayasamy a/l Manikam & 16 Ors (supra), this court observes that the Court of Appeal had stated the right to transfer an employee from one department to another or from one post of an establishment to another or from one branch to another or from one company to another within the organisation is the prerogative of the management and the Industrial Court will ordinarily not interfere. But if the transfer is actuated with improper motive, it will attract the jurisdiction of the Court. [22] In this appeal before this court, the respondents were not transferred to another department or from one post of an establishment to another or from one branch to another branch. The respondents were transferred to another company. Transfer from one company to another within the organisation is the prerogative of the management and is allowed. Before this court, nonetheless, there is nothing to demonstrate that Wawasan Dengkil Infra Sdn Bhd was within the organisation of the appellant. [23] In this regard, respectfully, the argument put forth by the appellant cannot be substantiated. Therefore, this court is of the considered view this argument cannot be sustained. Conclusion [24] In the upshot, this court is of the view there is no merit to this appeal. This appeal is therefore dismissed with costs of RM500 (for each respondent, to a total of RM 2,500) subject to allocator fees. The decision of the Labour Court is hereby upheld and affirmed. Date: 16 March 2023 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Appellant: Christopher Paul A/L Aisu Tetuan Yuvanes Marian Partnership Advocates & Solicitors TB-7-1A, Suite 4, The Landmark, Jalan Batu Nilam 16, Bukit Tinggi 2, 41200 Klang, Selangor. paulaisu.associates@gmail.com +6 03 7887 5668 For the 1st – 5th Respondents: Yuvanes A/P Taruman, Norizan Binti Samad Tetuan Law Office of Paul, Advocates & Solicitors No. 29-4, Blok E1, Jalan PJU 1/42, Dataran Prima, 47301 Petaling Jaya, Selangor. ynpartnership@gmail.com +6 03 3385 2055