Ooi Soo Lee v Dassault Systemes Innovation Technologies Malaysia Sdn. Bhd. (PA-16A-4-06/2023)

This Court dismissed the appeal and the reasons are as deliberated.

For convenience, the parties are referred in their respective capacity at the Industrial Court. The Appellant is referred to as the Claimant and the Respondent is referred to as the Company. BRIEF FACTS [4] The Claimant’s last position in the Company was as an EMEAR (Europe, Middle East, Africa and Russia) Project Manager Specialist. On 19.1.2021, the Claimant was informed by her direct manager, Virginie Daigurande, and the Company’s Human Resource manager, Adeline Kua Ai Ling (COW1), that her position was made redundant. Subsequently, the Company offered the Claimant a Mutual Termination Agreement (MTA) dated 3.2.2021. The Claimant terminated her employment with the Company with a settlement sum of RM127,426.57 and her last day of employment was on 18.3.2021.

On 25.3.2021, the Claimant complained to the Industrial Relations Department (IRD), alleging that her termination was not voluntary but a forced dismissal, disguised as a mutual separation. The Industrial Court, after considering the evidence adduced, dismissed the claim, holding that the Claimant had voluntarily entered into the MTA with the Company. CONTENTION OF PARTIES Claimant’s Contention [6] The Claimant contended that the Industrial Court had erred in both fact and law by failing to appreciate that the MTA was executed under coercion, duress, and undue pressure. It was argued that the Company had threatened the Claimant with retrenchment if she refused to sign the MTA.

The Claimant further contended that the Chairperson erred in finding that redundancy need not be proven by the Company when redundancy was expressly cited as the basis for the MTA. Relying on the Federal Court case of Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 2 MLJ 129, the Claimant asserted that once an employer advances redundancy as the reason for termination, it bears the burden to prove the redundancy.

The Claimant also contended that since her consent to the MTA was not freely given, thus should be void under the Contracts Act 1950 as the threat of retrenchment, constitutes coercion. She further contended that the Industrial Court failed to consider the Company’s alleged misrepresentations, discriminatory conduct, and over-deduction of her income tax.

On the totality of these grounds, the Claimant sought for the Award from the Industrial Court to be set aside and that the Claimant be granted reinstatement or alternatively compensation in lieu for 6 completed years of service, back wages, and punitive damages. Company’s Contention [10] The Company opposed the appeal and supported the Industrial Court’s findings. It was submitted that the MTA was voluntarily and mutually entered into between the parties. The Claimant contended that the Claimant herself initiated discussions for an increased termination benefit and proposed amendments to the terms of the MTA before execution.

The Company in upholding the principle of law on dismissal, has relied to the High Court case of Weltex Knitwear Industries Sdn Bhd v Law Kar Toy & Anor [1998] 1 LNS 258 where it was clearly founded that the burden of proof lies on the Claimant when the dismissal is disputed by the Company. Thus, the burden will not shift to the Company, if the Claimant fails to establish her case.

The Company argues that there was no element of force, coercion, or duress. The Claimant was given adequate time of five (5) days to revert with her decision and was expressly advised that she had no compulsion to accept the MTA.

It was further contended that the Claimant executed the MTA in the presence of her partner who witnessed the agreement, and thereafter received the settlement payment without raising any issue or complaint to the Company. The Claimant had also proceeded to send relevant Page 5 of 10 documents pertaining to tax clearance in order to receive the settlement sum. However, the Claimant had later attempted to lodge a complaint to the IRD after enjoying its benefits, is an abuse of process.

The Company relied on Matrix Global Education Sdn Bhd v Felix Lee Eng Boon [2023] 2 CLJ 34 and Marsha Akhir v Hewlett-Packard Multimedia Sdn Bhd [2018] 3 ILR 499 to support the proposition that a duly executed separation agreement which was freely entered into, by both parties, as binding and enforceable. An employee cannot both accept its benefits and simultaneously claim to have been unfairly dismissed. Decision of The Industrial Court [15] The Industrial Court was satisfied that the Claimant had failed to demonstrate that the Company dismissed her. The evidence showed that the Claimant herself had ended her employment with the Company through separation by mutual agreement wherein she had negotiated the terms and had voluntarily and mutually agreed to end her services upon the payment of RM108,632.51 as a mutual severance package.

The Industrial Court found that the Claimant had failed to prove on the balance of probabilities that there was dismissal by the Company and thus dismissed the Claimant’s case.

The Industrial Court in its Award held inter alia- “(a) In the case of HLMG Management Co Sdn. Bhd. v. Murali Tharan Nair G Narayana Nair and another [2022] 1 LNS 1003 [Encl. 25, Pdf Page No: 8], Justice Noorin Badaruddin, J opined – “[19] At the outset it must be emphasized that there is no necessity to prove that redundancy was the basis of the offer of mutual separation to the 1st Respondent. In Suresh a/l K Velauthan v. Page 6 of 10 Petronas ICT Sdn. Bhd. [2019] 1 ILR 345, the Industrial Court held (and was subsequently affirmed by the High Court) that there is no requirement that the position of redundancy must be proven to exist before an MSP is offered to an employee...”

Thus, following HLMG Management Co. Sdn. Bhd. (supra), this Court is satisfied and finds that there is no necessity for the Company to prove that redundancy was the basis of the offer of mutual separation to the Claimant.

At all material times, the Claimant had the full capacity and had rightfully exercised her rights in negotiating the terms of the MTA prior to her agreeing to the said terms. As such, this Court agrees with the submission of the learned counsel for the Company that it would be absurd for the Claimant to argue that she was coerced into signing the MTA back in February 2021.

In her evidence during cross-examination, the Claimant admitted that she had voluntarily executed the MTA in the presence of her witness, one Ong Thien Siang. The Claimant in fact disclosed that the MTA was witnessed by her partner, the said Ong Thien Siang, before she sent the executed MTA to COW1.

Based on the evidence of the witnesses for both the Claimant and the Company, it can be concluded that the Claimant had initiated and had actively negotiated the settlement sum with the Company on 21 January 2021, and finalised it on 5 February 2021.

The Claimant, in fact, admitted in her evidence during cross-examination that the MTA was a consequence of her request for an increased termination benefit. The Claimant also admitted that she had bargained and requested COW1 to amend the MTA by including the terms that she had intended in order to finalise the MTA.

From the evidence of the witnesses, it could be seen that the Claimant had been given adequate time to decide whether to opt for the MTA or if she was dissatisfied with the retrenchment decision. At the end, the Claimant made an informed decision and opted for the MTA.

Upon sending the executed MTA on 5 February 2021, the Claimant did not raise any issue or complaint to the Company throughout the exit clearance process from 8 February 2021 until the day she lodged the complaint with the IRD on 25 March 2021. Hence, there was a delay of approximately 49 days from the date of the execution of the MTA by the Page 7 of 10 Claimant on 5 February 2021 until the complaint was made to the IRD on 25 March 2021.

In such circumstances, this Court finds that the Claimant had in fact signed the MTA voluntarily and had thus agreed and accepted the terms of the MTA package and compensation for the sum of RM108,632.51 (after tax deduction). This Court further finds that the Company had acted bona fide in honouring its duties under the MTA.

In the case of Matrix Global Education Sdn. Bhd. v. Felix Lee Eng Boon [2023] CLJ 34 [Encl. 25, Pdf Page No: 143], the Court of Appeal decided that– “[72] The conduct of the respondent/claimant in entertaining and entering into negotiations for settlement on the terms does not fit snugly and indeed cannot support what he later asserted in the statement of case and at the Industrial Court that he had been constructively dismissed. [73] The respondent/ claimant cannot have the best of both words; negotiating and accepting the terms of a separation and then at the same time claiming that he had been constructively dismissed. He cannot have the cake and eat it; entering into a negotiated settlement without reservation of rights and then launching a claim for more on account of being constructively dismissed.”

Similarly, in this case, the conduct of the Claimant in entertaining into negotiations with the Company for settlement on the terms of the MTA does not fit and cannot support what she later asserted in the Statement of Case and to this Court that she was dismissed without just cause or excuse. The Claimant cannot have the best of both words, that was to negotiate and accept the terms of the separation through the MTA and then at the same time claiming that she had been dismissed.

Based on the totality of the evidence adduced by both parties, this Court is satisfied that the Claimant had failed to demonstrate that she was ever dismissed by the Company. All evidence showed that the Claimant was not dismissed but had ended her employment with the Company through separation by mutual agreement wherein she had herself negotiated the terms of the MTA and thereafter, voluntarily and mutually agreed to end her services upon the payment of RM108,632.51 (after tax deduction) as a mutual severance package.”. Page 8 of 10 ANALYSIS AND FINDINGS [18] Accordingly, this Court finds that the Learned Chairperson has not erred in her decision when she dismissed the Claimant’s case. This Court agrees with the finding of facts and determination of law of the Learned Chairperson. In other words, the Learned Chairperson has not made any appealable error requiring appellate intervention. [19] In this regard, Justice Amarjeet in Wullersdorf Resources Sdn Bhd V. Kalai Vani Govindasamy Naidu [2025] MLRHU 2112, held- “[29] Since the amendments to the IRA with the introduction of s 33C, this court is conferred appellate jurisdiction as if the appeal was from the Sessions Court. Therefore, the appeal is by way of a rehearing. The High Court is to carry out this function based on the principles stated below. [30] It is trite that an appellate court will not intervene with the findings of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A decision is plainly wrong when there is no or insufficient judicial appreciation of the evidence by the trial court, or that the findings were the result of misdirection by the trial court on the applicable law, or there was a wrong application of the law to the facts. A decision is also plainly wrong where the trial court took into account irrelevant considerations and falled to take into account relevant considerations or where no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion or the findings were of a kind which a reasonable court similarly circumstanced, which had properly directed itself and asked the right questions, would not have arrived at (see Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors [2020] 6 MLRA 193; [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 8 AMR 227; Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1; [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781; Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors [2021] 4 MLRA 211; [2021] 3 MLJ 622; [2021] 4 CLJ 821). [31] On finding of facts, appellate interference is not justified simply because this court would disagree with the findings of the trial court. It has been held that a court sitting in appeal can only overturn a finding of fact if it forms the view that the finding of fact was one that no Page 9 of 10 reasonable court, similarly circumstanced, could have arrived at (see MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 3 MLRA 144; [2016] 2 MLJ 428; [2016] 4 CLJ 665). [32] As to when an appellate court is permitted to interfere with a finding of an inference drawn from proved facts is stated in China Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal [1996] 1 MLRA 260; [1996] 2 MLJ 517; [1996] 3 CLJ 163; [1996] 1 AMR 2233 as follows: ... a distinction can be drawn between a finding of a specific fact which depends upon the credibility of witnesses and a finding of fact which depends upon inferences drawn from other facts. In the latter case, an appellate court will more readily interfere with the trial judge's findings of fact and form an independent opinion than in the case of the former.”. [20] Thus, this Court is of the view that it is not necessary to interfere with the findings of the Learned Chairperson. [21] Furthermore, this Court is persuaded with the case cited by the Company in Weltex Knitwear Industries Sdn Bhd V. Law Kar Toy & Anor [1998] 1 LNS 258 that the burden of proof lies on the Claimant when the dismissal is disputed by the Company. If the Claimant fails to establish her case, the burden of proof will not shift to the Company and the issue of dismissal without just cause or excuse would not at all arise. [22] Additionally, this Court is satisfied that the Company has successfully proven the principles applicable for a cessation of employment via a mutual separation scheme as provided in Murali Tharan Nair G Narayana Nair v HLMG Management Co. Sdn Bhd [2020] 2 LNS 0276 that held-i There must be a genuine consensus or consensus ad idem (a meeting of the minds) between the parties when entering into the mutual separation agreement; and ii There must be no harassment, compulsion, undue advantage, oppression, unfair labour practice, misrepresentation, duress, coercion Page 10 of 10 or any other matter, which the Court may consider to be vitiating factors in the process of reaching the said agreement. [23] It is incumbent on the Claimant to prove that there was no consent when the MTA was entered and that it was signed out of her free will and volition. However, in this case, the Court found that the Claimant had first requested an increased termination benefit, which resulted in the MTA being offered. Thus, indicates that the Claimant had freely negotiated the settlement sum with the Company. No elements of coercion, undue influence, fraud, misrepresentation, or mistake proven. CONCLUSION [24] Based on the above deliberations, the appeal is dismissed with costs. Dated: 28 0CTOBER 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court Georgetown, Pulau Pinang For the Appellant/ Claimant: Ooi Soo Lee Acting in person