Totarescue (Malaysia) SDN BHD v Ong Cheng Hoong (BA-16-8-02/2024)

the Respondent would serve as Operations Director for Totarescue Singapore.

(ii) the employment commenced on 1 April 2018.

(iii) the basic monthly salary was set at SGD 4,000; and

(iv) the agreement was governed by Singaporean law. [4] The Respondent testified that he agreed to work for Totarescue Singapore because the Appellant had not yet been established in Malaysia, and his appointment was aimed to help set up the Appellant in Malaysia. [5] Five years later, on 12 July 2023, the Respondent tendered his resignation, stating he was resigning from his position as Executive Director at Totarescue (Malaysia) Sdn Bhd, the Appellant. In his resignation letter, he indicated that his two-month notice period would end on 12 September 2023, but after deducting 12 days of annual leave, his last working day would be 25 August 2023. He also claimed that the Appellant owed him RM72,000 in unpaid salary. [6] On 13 July 2023, the Appellant responded, acknowledging the resignation but clarifying that the Respondent's position was Operations Director, as per the Employment Agreement. The Appellant stated that salary settlement would be processed upon proper handover of pending matters and detailed documentation. S/N trRBPPwcXkes2xdED5Lhg [7] On 25 July 2023, the Respondent submitted a letter to the Appellant, claiming he had completed the handover of his job responsibilities and all pending work ("Departure Letter"). However, according to the Appellant's records, the Respondent stopped reporting to work after that date, failing to serve the remaining one month of his notice period before his last scheduled working day on 25 August 2023. [8] Subsequently, on 20 October 2023, the Respondent filed a complaint with the Department of Labour in Bangi under Paragraph 69(1)(a) of the Employment Act 1955. This complaint led to the Labour Court’s decision on 23 January 2024. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on 5 February 2024. Grounds of Appeal [9] The grounds of appeal put forth by the Appellant are that the Labour Court had:

erred in not recognising that the Respondent has failed to prove, on a balance of probabilities, that he was an employee of the Appellant (and not Totarescue Singapore) in year 2020, and has worked for the Appellant (and not Totarescue Singapore) in year 2020, for him to claim for any purported “outstanding salary” in year 2020, in particular April 2020, May 2020, September 2020, October 2020, November 2020 and December 2020, amounting to RM72,000.00, from the Appellant (and not Totarescue Singapore); S/N trRBPPwcXkes2xdED5Lhg

(ii) erred in not recognising that the Respondent has also failed to prove, on a balance of probabilities, that he has incurred Expense Claims in the Year 2020 amounting to RM20,230.43 on behalf of the Appellant and as an employee of the Appellant, as well as being entitled to reimbursements of the same from the Appellant; and

(iii) erred in concluding that the Respondent has worked for the Appellant in the month of August 2023, for him to be entitled to his salary in August 2023 amounting to RM12,000.00, when in reality he stopped working since 25 July 2023 and did not serve his final month’s notice period. Law on Appellate Intervention [10] It is trite that an appellate court will be slow to disturb the findings of fact made by the trail court. The appellate court will only interfere when the decision of the trial court is plainly wrong. [see: Setapak Heights Development Sd Bhd v Tekno Kota Snd Bhd [2006] 3 MLJ 131]. [11] In Setapak Height (supra) the Court of Appeal had this to say in respect of appellate intervention: “The principles of appellate intervention with a finding of fact by the trial judge are well settled. We as an appellate court will not readily interfere with the findings of fact arrived at by the court of first distance to which the law entrusts the primary task of evaluating the evidence. It is only in S/N trRBPPwcXkes2xdED5Lhg cases where we as an appellate court exercising an appellate jurisdiction are convinced that there was no judicial appreciation of the evidence adduced at the trial by the trier of fact or that the audio-visual advantage reserved to a trial judge had been missed or that the findings made by the trial judge do not accord with the probabilities of the case, would we intervene and upset the findings made by the trial judge and substituting therewith with our own findings. In this case, we see no such fault in the conclusion made by the learned judge.” [12] In the Federal Court case of UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 the Court held as follows: “[26] Thus, the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. Itis well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah Pat [1978] CLJU 32; [1978] 1 MLRA 461; [1978] 2 MLJ 41; Watt or Thomas v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309)." [13] See also: Lee Ing Ching @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 where the court held appellate interference will take place when there has been no or insufficient judicial appreciation of evidence. [14] Founded on the position of law pertaining to appellate intervention, this court will now consider this appeal. S/N trRBPPwcXkes2xdED5Lhg Analysis and Findings [15] This court will consider all three grounds put forth by the appellant together as they relate to the factual findings of the Labour Court. [16] The Appellant contends that the Respondent has failed to prove he was employed by the Appellant in 2020, specifically for April, May, September, October, November and December. The Appellant's arguments are succinctly as follows:

there was no employment contract between the parties in 2020;

(ii) no secondment or transfer letter was issued to move the Respondent from Totarescue Singapore to the Appellant in 2020;

(iii) no agreement existed between Totarescue Singapore and the Appellant assigning employer responsibilities for the Respondent in 2020;

(iv) no payslips were issued for the disputed months;

the Respondent received no statutory contributions (EPF, SOCSO, EIS) from the Appellant in 2020;

(vi) there are no records of the Respondent attending work for the Appellant during the specified months; S/N trRBPPwcXkes2xdED5Lhg

(vii) no witnesses testified to support the claim that the Respondent worked for the Appellant during the disputed months;

(viii) there were no contemporaneous documents indicating that the Respondent demanded salary or statutory contributions from the Appellant in 2020;

(ix) payments received by the Respondent in 2020 were irregular and labeled as "consultation fees" or "professional fees," unlike regular salary payments in 2021 onward;

the Respondent did not protest at the time regarding these payments, suggesting he accepted them as consultation or professional fees;

(xi) during the inquiry, the Respondent acknowledged being an employee of Totarescue Singapore since 2018, tasked with setting up the Appellant in Malaysia, with no evidence of a change in status until 2021; and

(xii) the Respondent admitted to communicating with Totarescue Singapore via WhatsApp and email regarding claims and alleged "outstanding salary." [17] The facts of this appeal demonstrate that the Respondent was employed by Totarescue Singapore on 1 April 2018. This employment was made with the understanding that once the Malaysian outfit was set up, the Respondent would be transferred S/N trRBPPwcXkes2xdED5Lhg to the Malaysian operations. The Appellant was set up on 27 December 2018 and operations started in 2019. This is reflected from the notes of proceedings at the Labour Court. [18] The facts further indicate that the Respondent’s salary was at all time paid by the Appellant. The Respondent observed Malaysian gazetted public holidays. It is further demonstrated at the Labour Court that the Respondent was working at the Appellant’s premises and was never a consultant. [19] Moreover, the facts reveal that the resignation letter of the Respondent was made to the Appellant who had accepted the said resignation letter. There was a letter of acceptance of resignation which confirmed the employment of the Respondent with the Appellant commenced from 1 April 2018. All these facts, in the view of this court, indicates and supports the contention that the Appellant had considered the Respondent as an employee. [20] Therefore, this court finds that the Labour Court did not err when it found the respondent to be an employee of the Appellant. It follows therefore that the Labour Court did not err when it allowed the Respondent’s claim for the unpaid salary for the months of April, May, September, October, November and December 2020. [21] The Appellant further argued that the Labour Court erred by failing to acknowledge that the Respondent did not prove, on a balance of probabilities, that they incurred RM20,230.43 in expense claims in 2020 on behalf of the Appellant as its employee, or that they were entitled to reimbursement. The Appellant reiterated that the S/N trRBPPwcXkes2xdED5Lhg Respondent has not demonstrated that he was working for the Appellant, rather than Totarescue Singapore, during that period. Therefore, it was argued any claims for reimbursement should be directed to Totarescue Singapore, not the Appellant. [22] In this regard, clause 2.7 of the Employment Agreement allows the respondent to make entertainment claims. Its reads: "Reasonable entertainment claims will be approved if the said entertainment is discussed and agreed with the Director prior to the same being incurred." [23] According to the clause, any entertainment claims must receive prior approval, which will only be granted if they were discussed and agreed upon with the Director before being incurred. It was submitted by the Appellant that the entertainment claims were not substantiated with receipts and did was not discuss and agreed with the Director. [24] The facts from the Labour Court indicate that the Respondent had provided a table listing out the expenses incurred. This table of expenses is supported by the General Ledger Report at 31 August

This General Ledger Report is the Appellant’s own document. It states the unpaid sum as RM 20,230.43. If the said claim for expenses is reflected in the Appellant’s own General Ledger Report, how can the Appellant now contend that the Respondent is not entitled to the said claim? This ground, in the view of this court does not have merit and must therefore fail. S/N trRBPPwcXkes2xdED5Lhg [25] The Appellant contended that the Labour Court had erred in concluding that the Respondent worked for the Appellant in August 2023 and was entitled to a salary of RM12,000 for that month. The Appellant argued that the Respondent stopped working on 25 July 2023 and did not serve the final month of his notice period. The Respondent's Resignation Letter dated 12 July 2023 stated he would serve a two-month notice period ending on 12 September 2023, but, after deducting 12 days of annual leave, his last working day was set as 25 August 2023. [26] The facts before this court is that after the Respondent had submitted his resignation, the Appellant (Mr Ling) had agreed that the Respondent would work from home after 25 July 2023 but would attend meetings on behalf of the Appellant until his last day which is 25 August 2023. [27] As the Respondent had worked until the end of his notice period, this court finds no reason for the Appellant to withhold the Respondent’s salary. In this regard, this court finds the Labour Court had not erred in its decision. Conclusion [28] For the aforesaid reasons, this court is satisfied the Labour Court had not erred in its decision. This appeal is dismissed. The decision of the Labour Court is upheld and affirmed. Costs of RM2000.00 to be paid to the respondent, subject to allocator. S/N trRBPPwcXkes2xdED5Lhg Date: 13 February 2025 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya Shah Alam S/N trRBPPwcXkes2xdED5Lhg Counsels: For the Appellant: Louis Liaw Tetuan Chai & Company Advocates & Solicitors 1-13A-1, Plaza Bukit Jalil, (Aurora Sovo) No. 1 Jalan Persiaran Jalil 1, Bandar Bukit Jalil, 57000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur legal@chaico.cc 03 4817 9473 For the Respondent: Roseveen Kaur Tyndall Tetuan Raja, Darryl & Loh Advocates & Solicitors Level 26, Menara Hong Leong, No, 6, Jalan Damanlela, Bukit Damansara, 50490 Kuala Lumpur rdl@rdl.com.my 03-26949999 S/N trRBPPwcXkes2xdED5Lhg