Rasamewa Ice-Cream Manufacturer Sdn Bhd v Madhavan A/L Muniandy (BA-16-6-01/2023)

In this circumstance the legas burden to prove termination lies with the respondent. In Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor [1998] 7 MLJ 359 it was decided by the High Court that: “the fact of dismissal is not in dispute, the burden is on the company to satisfy the court that such dismissal was done with just cause or excuse. However, where the fact of dismissal is in dispute, it is for the workman to establish that he was dismissed by his employer. On the facts, it is the first respondent who asserts that she was dismissed and the applicant denies it. So, it is for the first respondent to establish so by evidence, in which she had failed.”

The facts in dispute is whether there was termination of the respondent by the appellant. According to the appellant, the respondent did not identify who informed him to find another job. The Labour Court had therefore erred when accepting the respondent’s statement that he was asked to find another job when this person was not identified. [21] It was further submitted by the appellant that the respondent had mentioned Mohan had informed him to look for another job when this person Mohan does not exist in the appellant’s employment. [22] In regard to this issue, the notes of proceedings indicate that the respondent had mentioned Mohan as the person who had told him to look for other job. This was then changed to Ah Leng. The appellant argued that the respondent’s testimony contradicted itself. [23] Upon this court’s careful scrutiny of the Notes of Proceedings, it is evident to this court that on the said day 27.9.2022, there was no Tamil interpreter present to assist the respondent in giving his evidence. In such a circumstance, it appears to this court that the respondent may not understand the question put forth to him or may be confused by the question, when he answered Mohan. [24] The fact that there is no production and the appellant company has no work for respondent was confirmed through the statement of Ms. Chin See Hui, who works as an Executive Accountant for the appellant. In Ms. Chin’s statement, it was mentioned that due to no orders, there were no deliveries, and consequently, no drivers were hired for deliveries. Ms. Chin also stated, the number of employees had decreased from 30 to 40 individuals to 5 to 6 individuals. The workers who still come to work are only involved in machine maintenance. She also stated that some workers were instructed no to come to work. Furthermore, Ms. Chin mentioned that the company is facing financial problems due to high material costs and no profits. This statement clearly indicates that the company is not producing, the workforce has been reduced, and the respondent is one of those who were asked to find new employment. [25] Subsequently, after the respondent filed the case with the Labour Court, the appellant changed their story by stating that the respondent was absent from work, and the appellant did not terminate the respondent. Furthermore, the director of the appellant company stated that when the respondent was absent, he himself would drive the truck and handle the deliveries. This clearly indicates inconsistencies in the appellant’s version. This is because it is unusual for a director to drive a truck for deliveries simply because the respondent is absent. Moreover, no warning letters were issued to the respondent for his absence until the trial. Moreover, the appellant’s company was unsure whether the respondent was present or not. This also indicates that the appellant had instructed the respondent not to come to work because the appellant company did not keep track of the respondent presence during working hours. [26] In the view of this court, the respondent worked with the appellant for 25 years and 5 months. At his advance age, why would the respondent quit his employment. It would have been difficult for him to get a new job. [27] In the case of Said Dharmalingam Abdullah v. Malayan Breweries (Malaya) Sdn Bhd [1996] 2 MLRA 200 the court held: “In examining whether an employee has been dismissed without just cause or excuse, it was correct to examine the decision not just for substance but for process as well.”

In this case, the appellant’s actions on 2.8.2022, instructing the respondent not to come to work until summoned, asking the respondent to come to the office on 23.8.2022, to collect the salary slip and the balance of July 2022 salary, and not taking any action when the respondent did not come to work thereafter, as well as paying the basic salary for August 2022 even though the respondent did not attend work after 23.8.2022, support the respondent’s claim that he was terminated is reasonable. Furthermore, the fact that the respondent, who had been working for 24 years and 5 months, suddenly stopped coming to work raises questions. Additionally, the appellant’s own staff has stated that the respondent is a good employee and has not engaged in any wrongdoing. Conclusion [29] In the upshot, this court is of the view there is no merit to this appeal. This appeal is therefore dismissed with costs of RM3,000.00 subject to allocator fees. The decision of the Labour Court is hereby upheld and affirmed. Date: 18 April 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The appellant Selva Balan a/l Sinnan Tetuan Azman Joseph & Associates Advocates & Solicitors No. 23, Mezzanine Floor, Jalan Bukit 11/2, 46200 Petaling Jaya, Selangor. azmnjsph@gmail.com +6 03 7493 2300 For the Respondent: Kohila Tetuan Kohi & Associates Advocates & Solicitors No. 97, Jalan Cenderai, Lucky Garden, Bangsar 59100 Kuala Lumpur. kohiassociate@gmail.com +6 03 2202 0481