Liew Zee Fei v Bjak Sdn Bhd (BA-16-76-12/2024)

This is an appeal against the decision of the Assistant Director of Manpower (ADM) dated 27.11.2024 dismissing the Appellant’s claim for his salary and computer allowance.

After careful consideration of the records of appeal and the submissions, this Court decided to allow this appeal. The following are the reasons for that decision. Proceedings before the ADM

The Appellant worked as a lead AI Specialist for the Respondent with a salary of RM22,500.00 and a computer allowance of RM100.00 per month. He was suspended vide a letter on 5.1.2024 without being told why and later he was informed that he had voluntarily resigned. The Appellant denied this and made a claim for his salary and allowance from February to August 2024 amounting to RM158,200.00.

The Respondent on the other hand denied the Appellant’s claim and maintained that the Appellant’s failure to attend work on 4 and 5.1.2024 was deemed to be a voluntary resignation of his position with the Respondent. He had been informed of this via the Respondent’s email dated 6.1.2024.

At any rate the Appellant was not entitled to claim salary and allowance as he was no longer the Respondent’s employee. The ADM’s decision

The ADM perused the exchange of emails and the show cause letters dated 4 and 5.1.2024. She decided in favour of the Respondent and held that the Respondent had a right to terminate the Appellant for insubordination.

In respect of his claim for his salary and allowance, the ADM referred to the Appellant confirmation that his last working day was 4.1.2024 and he was suspended the next day. She then concluded – “… Mahkamah ini memutuskan bahawa pihak syarikat telah berjaya membuktikan di atas imbangan kebarangkalian bahawa penamatan kerja pengadu telah dibuat atas sebab dan alasan.” Principles of law

Section 77 Employment Act 1955 (Act 265) provides that the procedure for an appeal to the High Court is the same procedure as an appeal from the Sessions Court.

The general principles of law in respect of the appellate jurisdiction of the High Court hearing appeals from the Subordinate Court is as pronounced in China Airlines Ltd v. Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd and another appeal [1996] 2 MLJ 517 at 527 and UMW Motor Sdn Bhd & Anor v. Allan Chong Teck Hin [2021] 3 MLJ 107 at 117. Analysis and findings

This Court was mindful that the jurisdiction of the Labour Court’s is as per section 69 Act 265 which reads – “The Director General may inquire into and decide any dispute between an employee and his employer in respect of wages or any other payments in cash due to such employee under— (a) any term of the contract of service between such employee and his employer; …”

As pointed out by the Respondent, this did not include the power to inquire into whether the termination or voluntary resignation was with just cause or excuse.

To determine the issue of whether the Appellant was entitled to his claim, the ADL asked herself the following questions –

whether the Appellant was still an employee in the

(ii) whether he was entitled to his claim?

From a perusal of the ADM’s grounds of decision, it would seem that she answered the first question in the negative. She concluded that the Appellant’s failure to comply with the Respondent’s directive to attend work was an act of insubordination and that justified the termination.

But from the facts of this appeal, the Appellant was not terminated. The Respondent deemed that he had abandoned his employment by not turning up to work on 4 and 5.1.2024 as directed. The ADM clearly erred in her conclusion and therefore her decision is flawed.

Under O.55 r. 2 Rules of Court 2012, this Court is tasked with the responsibility of rehearing the Appellant’s claim during the appeal.

The Respondent’s answer to the Appellant’s claim is that he was absent from work on 4 and 5.1.2024. From the exchange of emails, this Court found that the Appellant did not report for work on 4 and 5.1.2024 as directed. He was fully aware that his request to work from home was refused but nevertheless he chose to do so.

Despite the Respondent giving him opportunities to meet with them to “provide an understanding of the reasons for your inability to comply with the management directive” the Appellant failed to take them up on this.

The Respondent argued that the Appellant broke his contract of service and he is deemed to have abandoned his employment. This argument is mounted on section 15(2) Act

There was no need for them to issue a termination notice as he was no longer their employee.

Section 15(2) Act 265 reads – “ An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.” (emphasis added)

This Court finds that the Respondent was absent from work two consecutive days i.e. 4 and 5.1.2024. However, to rely on section 15(2) Act 265, the Appellant must be absent for more than 2 consecutive days before he can be considered to have abandoned his employment. That is not the case here and therefore the Appellant cannot be said to have broken his contract of employment.

The Respondent argued that the Appellant did not turn up for work at any point thereafter and therefore they have met the requirements of the provision.

From the show cause letter dated 4.1.2024, the Appellant was informed that if he did not comply with the directive to report for work on 4.1.2024 at 5:00 pm, his employment status is suspended.

When the Appellant asked when the suspension would be lifted, the Appellant was told that he had voluntarily resigned from his employment. And because of this, the Respondent cannot rely on the Appellant’s continued absence from work as abandonment of employment to rely on section 15(2) Act 265.

This quandary calls into question the status of the Appellant’s employment. He was not terminated. This Court found that he had not broken his contract of employment and therefore had not resigned voluntarily. Therefore, that must mean the Appellant was suspended and therefore remains the Respondent’s employee.

The Respondent’s human resources manager, Nurfarahin binti Abdul Rahim confirmed this when she testified – “Q: mengapa tiada keputusan pergantungan kerja? J: ada emel pada eksibit d6 bertarikh 25/2/24 bahawa companya consistently maintain the employment suspension. Tetap dan tidak berubah.”

For so long as he remains an employee of the Respondent, he is entitled to his salary and allowance.

This Court is satisfied that the ADM’s decision was based on an incorrect conclusion and therefore warrants appellant intervention.