The transfer of an employee or where consent is withheld shall not adversely affect the employee’s promotion prospect.” [12] The Union takes the position that under article 15(1), the Bank has the sole discretion to transfer the employees within the same city or town. With regards to article 15(2), the Union submits that: “23.1 Put in another way, where it is necessary from the First Respondent to transfer an employee from one city or town to another, the First Respondent cannot do so without the consent of the employee. Where the employee gives the consent, the First Respondent as the employer must give sympathetic considerations if there is undue hardship arising, and the First Respondent is obliged to defer such transfer order for a maximum period of three months. This is clear from the reading of Article 15(2).” [13] Then in paragraph 26 of the Written Submission, the Union makes the following conclusion: “26. Yang Arif, it is our humble submission that when Article 15(1), (2) and (3) are read in their proper context, in the manner we have highlighted above, the crucial 9 point is that a transfer order within a given city or town can be done at the sole discretion of the employer, without the need to obtain the consent of the employee. On the other hand, once the transfer order involves the moving of the employee from one city or town to another, the Article 15(2) makes it clear that the first Respondent as the employer cannot make that order of transfer without the consent of the employee concerned. This context become clearer, when Article 15(3) is considered, because Article 15(3) makes it clear that where the employee withholds his consent from being transferred (from one city or town to another), then it will not affect his promotional prospects.” [14] However, I cannot agree with the Union’s interpretation of Article 15, specifically Article 15(2). Article 15(1) provides that the transfer of employees within the same city or town is at the sole discretion of the Bank. [15] Under Article 15(2), where the transfer involves moving to another city, as in the present case, with the consent of the employee, there is no problem. But where the employee did not give his consent, such transfer will not be carried out without the Bank giving sympathetic consideration to cases where undue hardship will be caused. And that where the Bank is satisfied that undue hardship will be caused, then the transfer of the employee concerned shall not be carried out without the employee being given not more than 10 three (3) months to organize his affairs. Therefore, the Bank will first ascertain if hardship will be caused by the transfer, and if there will be hardship, the employee must be given not more than three (3) months to organize his affairs. [16] I therefore find that it is not correct for the Union to say that under Article 15(2), the Bank cannot transfer an employee from one city or town to another, without the consent of the employee concerned. Without the consent of the employee, the Bank can still transfer the employee from one city to another, provided that the Bank must first ascertain if hardship will be caused by the transfer, and if there will be hardship, the employee must be given not more than three (3) months to organize his affairs. [17] Therefore, in the present case, the Industrial Court was correct in its interpretation of Article 15(2) in the Award, where it held that: “Article 15(2) of the Collective Agreement recognizes the Bank’s right to expressly transfer the employees to another city. It provides that where it is necessary to transfer any employee to another city or town other than with the consent of the employee, such transfer will not be carried out without the Bank giving sympathetic consideration to cases where undue hardship will be caused. It simply means that where an employee does not consent to being transferred to another town or city, then the Bank can only proceed with the transfer 11 nevertheless, after it has given sympathetic consideration to cases where undue hardship will be caused.” [18] The above interpretation is consistent with the findings of other cases. In National Union of Bank Employees, State of Malaya v. Malayan Commercial Bank’s Association & Anor [2017] 1 ILR 346, the Industrial Court rejected the same contention raised by the Union. In this case, the issue is an interpretation of the Collective Agreement, that is whether Article 15(2) read with Article 13 confers the right to the employee to withhold his consent when instructed to transfer. The Industrial Court held as follows: “[30] Just as art. 15(1) is clear and unambiguous when it comes to the transfer of employees within the same city or town, art. 15(2) of the CA recognizes the bank’s prerogative to transfer its employee to another city or town. It further provides that where the transfer is without the consent of the employee, such transfer would not be carried out without giving sympathetic consideration to cases where undue hardship will be caused. The proviso to art. 15(2) goes on to expressly provide that if the Bank is satisfied that undue hardship will be caused, the employee will be given a reasonable period of not more than three (3) months to organize his affairs before the transfer is carried out. Article 15(3) goes on to stipulate that the transfer, or where consent was withheld, will not affect the employees’ promotion. 12 [31] What is lucid from the provision of art. 15(2) and 15(3) of the CA is that the Bank has the right to transfer the employee, and no consent of the employee is required before the employee proceeds on transfer, save for the employee being given a time of up the three (3) months before he is to comply with the transfer order. The court is unable to appreciate how a transfer emanating from the bank would require the written consent of the employee concerned, the crux of the matter which the union has asked of this court to interpret into art. 15(2) read with art 15(3).” (emphasis added) [19] With regards to the issue of whether the Bank had given sympathetic consideration to cases where undue hardship will be caused, I am of the considered opinion that the Industrial Court has made a finding of fact when it has accepted the evidence of the witnesses for the Bank and held as follows: “The evidence show that the Bank had considered the hardship and complied with Article 15(2) having given the workers five (5) months’ notice to report to their new centres and provided outstation employees with a financial package.” 13 [20] The employees’ refusal to proceed on the transfer was grounded on the fact that the transfer would cause hardship to them. Since I find that Article 15(2) of the Collective Agreement provides that where hardship is caused as a result of the transfer instruction, the Bank’s legal obligation is to provide three (3) months’ notice to enable the affected employee to organized his affairs. In the factual matrix of this case, the Bank has complied with such legal requirement. [21] Premised on the reasons enumerated above, I am of the considered opinion that the Industrial Court had acted within its jurisdiction and it cannot be said that it has committed an error in its interpretation of Article 15 of the Collective Agreement. The application is hereby dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated 27 September 2018 For the Applicant : V.K. Raj Messrs P. Kuppusamy & Co Petaling Jaya, Selangor. For the 1st Respondent: N.Sivabalah Messrs Shearn Delamore & Co Kuala Lumpur. 14 Cases referred: