SEK 20 AWARD 18257

INDUSTRIAL COURT OF MALAYSIA CASE NO. 12/4-1849/05 BETWEEN ENCIK ALBERT LIM TOW SUN AND LYSAGHT MARKETING SDN. BHD.

AWARD NO. 140 OF 2013 Before

: Y.A. TUAN GULAM MUHIADDEEN - CHAIRMAN BIN ABDUL AZIZ

Venue

: Industrial Court, Malaysia Kuala Lumpur

Date of Reference : 24.11.2005 Dates of Mention

: 21.02.2006; 21.06.2006; 07.08.2006; 07.02.2007; 06.08.2007; 08.10.2007; 25.10.2007; 07.04.2009; 28.05.2009; 17.08.2009; 25.08.2009; 07.09.2009; 25.01.2010; 25.02.2010; 16.03.2010; 20.04.2010; 25.05.2010; 14.06.2010; 29.06.2010; 29.07.2010; 11.08.2010; 08.102010; 01.11.2010; 15.11.2010; 29.11.2010; 10.01.2011; 17.02.2011; 22.07.2011; 13.02.2012; 13.03.2012; 17.04.2012; 24.04.2012; 23.05.2012; 06.06.2012

Date of Hearing

: 09.01.2012

Representation

: Ms. Kamini from Messrs Bodipalar Ponnudurai Nathan, Counsel for the Claimant : Ms. Kavitha from Messrs Ramadass & Associates, Counsel for the Company

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Reference: This is a reference made under section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of ENCIK ALBERT LIM TOW SUN (“the Claimant”) by LYSAGHT MARKETING SDN. BHD. (“the Company”).

AWARD Introduction This case was referred by the Honourable Minister of Human Resources to the Industrial Court regarding the dismissal of Albert Lim Tow Sun (“the Claimant”) by Lysaght Marketing Sdn. Bhd. (“the Company”) on 29 January 2003.

The reference was

made under Section 20(3) of the Industrial Relation Act 1967 (“IRA 1967”)was dated 24 November 2005 and was received by the Court on 23 December 2005. Brief Facts of the Case The

Claimant

commenced

employment

with

Lysaght

Galvanising Services Sdn. Bhd. as an Engineer with effect from 1 August 1988 vide a letter of appointment dated 28 July 1988. Prior to 1 August 1991 and before becoming a public listed Company,

Lysaght

Galvanising

Services

Sdn.

Bhd.

undertook

restructuring exercise and in that process the Claimant and some other staff within the group were transferred to Lysaght Marketing Sdn. Bhd., its Sales and Marketing arm.

2

The

Company,

a

wholly

owned

subsidiary

of

Lysaght

Galvanised Steel Bhd. issued the Claimant a letter of Employment on 1 August 1991 informing the Claimant that terms and conditions contained in the Letter of Employment will substitute the previous Letter of Employment dated 28 July 1988 and that his past services with the Group will be treated as continuous. Sometime in August 1995, the Claimant was transferred to Ipoh

as

the

Company

decided

to

functions of the Tower Division to Ipoh.

relocate

the

Engineering

In 1997, the Company's

Accountant, Mr. T.Y. Lee issued a Memorandum dated

15 January

1997, directing Mr. L.B. Tan, Accounts Manager based in Ipoh office, that the Claimant's salary be issued from Ipoh Office under Lysaght Galvanised Steel Bhd and to be credited into Claimant's account in Ipoh. In May 2002, the Company transferred the Claimant from Ipoh to Kuala Lumpur after having him posted at the factory in Ipoh, Perak for 7 years.

The Claimant was informed by the Managing

Director that the reason for the transfer was because the Company wanted the Claimant to set up and head a new Technical Division in Kuala Lumpur and also to provide Technical Support to the International Market Division which was then recently set up in Kuala Lumpur. On 28 January 2003, the Claimant issued a letter to the Managing Director of Lysaght Galvanised, Chew Kar Heng, who is also one of the Directors of the Company pleading Constructive Dismissal.

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In the letter, the Claimant states as follows; Albert Lim Tow Sunday 45 Jalan Telok Pulai Taman Seputeh 58000 Kuala Lumpur Tuesday, 28 January 2003 The Managing Director Lysaght Galvanised Steel Berhad 11 Jalan Majustret U1/26 Sesyen U1, Hicom-Glenmarie Industrial Park 40150 Shah Alam Selangor Darul Ehsan Mr. Chew Kar Heing, Re: Termination of employment due to loss of trust and confidence in the company I

refer

to

our

meeting

in

your

office

on

Saturday

afternoon

25 January 2003, in which you had very forcibly required me to sign a letter, which you had prepared. The contents of the letter was in the light that should I have contact with parties not under your instruction to do so, I allow myself to be liable and that Lysaght can take a suit against me on that basis. As you had explained, it also includes the event should my name card be given to any party of which I had not been instructed to give. I had explained that I needed to look at the letter thoroughly and that my main concern was that I had already given out many name cards in the past year of which I would open myself to be easily accused of giving out after signing this letter. Despite the above explanation, you had forcibly required me to sign the letter. With my insistence that I should look at the letter first, you called your General Manager, Mr. Chua Tia Bon on your handphone to tell him that, “Albert refused to sign the letter” and that you have instructed him while I was in full hearing that I should be stripped of my name cards and not allowed to leave the office nor have contact with anyone without Mr. Chua or your permission, and that I'll be put to become a “backroom boy” and intentionally loaded with work to check on my performance.

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I have always been working extremely hard for the company. A look at my past records will show that I have helped the company in many new developments to improve the company income status and making the company become more efficient. With the above, you have shown by your behavior, that I will be systematically forced out of my employment, even though my past records shows that my performance has always been good. I have now totally lost all confidence and trust in Lysaght, especially in you, Mr. Chew Kar Heing, in providing me the security of a long term tenure in your company, even though I have been hard-working and have been a major contributor to the good of the company, and I have found that I am systematically being manoeuvred out of my employment. I therefore have been left with no choice but to treat myself as having been constructively dismissed by you, as a result of your unreasonable attitude, behaviour and threats towards me during the meeting of 25 Jan 03, and I reserve all my right to commence legal proceeding against the company to ensure that justice is done. Yours truly. Signed

…...................................... ALBERT LIM TOW SUN Regional Sales and Marketing Manager Lysaght Galvanised Steel Berhad Lysaght Marketing Sdn. Bhd. Stramit R & D Systems Sdn. Bhd.

The Company then wrote to the Claimant on 7 February 2003 denying the Claimant's contention of constructive dismissal. In the said letter the Company pointed out to the Claimant that the Company's

intention

in

issuing

the

instruction

to

him

was

misconstrued by the Claimant. Besides explaining the need for the said letter to be issued, the Company also explained to the Claimant that the instruction was issued to the Claimant to ensure that the Company's and the Claimant's interest were protected. 5

The

Company also placed the Claimant on notice that his refusal to sign the Internal Memorandum showed his disregard for the interests of the Company.

Besides denying the allegations made by the

Claimant, the Company assured the Claimant that it had no intention to drive the Claimant out of his employment by directing him to report for duty on Monday 10th February 2003 so that a meeting could be arranged between himself and the Management to resolve whatever grievances the Claimant had with the Management. Despite the Claimant's refusal to report for work as directed, the Company issued the Claimant another letter on 10 th February 2003 and directed him to report for work on 13 th February 2003 at 9.00 a.m. The Company on 14th February 2003 received a letter dated 10th February 2003 from the Claimant informing the Company that since he had considered himself as constructively dismissed by the Company on the 29th January 2003, the Company's requirement for the Claimant to report for duty was not applicable.

The Claimant

further informed the Company in this letter that he would not be responding to any further letters from the Company. On 5 March 2003 the Company received a letter from the Industrial Relations Department stating that the Claimant had made a representation under section 20 of the Industrial Relations Act claiming that the Company had dismissed him without just cause or excuse and that a conciliation meeting was to be held at the said Department on 11 April 2003.

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At the conciliation meeting which was brought forward to 10th April 2003, the Company offered to reinstate the Claimant to his former position as Regional Sales and Marketing Manager without any loss of salary and benefits whatsoever and at the request of the Claimant, the Company agreed that the Claimant would report for work on 24th April 2003 and that the period between 15 April 2003 and 23 April 2003 should be treated as annual leave taken by the Claimant.

The terms of this offer of reinstatement and the

Claimant's acceptance of the same was conveyed to the Claimant vide the Company's letter dated 11th April 2003 copied to the Industrial Relations Department. The

Claimant

then

wrote

to

the

Industrial

Relations

Department on 17th April 2003 claiming that Lysaght Marketing Sdn. Bhd. was not his employer based on his EA Forms and insisted that Lysaght Galvanized Steel Berhad was his employer and further contended that he cannot be reinstated to a Company which was not his employer and alleged that the Company's offer to reinstate him to his former position was not sincere. The

Company

then

wrote

to

the

Industrial

Relations

Department on 25th April 2003, copied to the Claimant, referring to the conciliation meeting held on 10 th April 2003 reconfirming the terms of the settlement and that besides stating the Claimant's reluctance to be reinstated to his former employment, informed the said officer of the Department that the Company was ready, willing and able to reinstate the Claimant to his former employment and requested the said officer to direct the Claimant to return to work immediately.

7

The

Claimant

then

wrote

to

the

Industrial

Relations

Department on 30th April 2003, copied to Mr. Chew Kar Heing, Director, Lysaght Galvanized Steel Berhad, raising questions of law and requesting that the representation be referred to the Court to decide on the representation. The

Claimant's

representation

under

Section

20

of

the

Industrial Relations Act was then referred to this Honourable Court for a decision. Before the commencement of the Hearing, the Claimant's Counsel made an application on the 25 th February 2010 to join Lysaght Galvanized Steel Bhd. to the Industrial Court proceedings and the Company objected to the said Joinder Application due to the fact that the Claimant was intentionally delaying and abusing the court process. Following submissions made by respective Counsels, this Court

vide Award 167 of 2011 dated 8 th February 2011

dismissed the Claimant's application to join Lysaght Galvanized as a party to the proceedings.

The matter then proceeded in the Court

by way of hearing. The Issue In the course of the hearing on 9 th and 10th of January 2012 during the cross-examination of the Claimant, the Claimant was questioned to which Company he was seeking to reinstatement. The questions and answers are as follows; Q3

: Refer to paragraph 10 [of the Statement of Case], which Company are you asking to be reinstated to?

A

: To the Company which pays my salary, Lysaght Galvanized Steel.

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Q4

: Refer to paragraph 1 of Statement of Case, please read to the Court.

A

: Read by the Claimant.

Q5

: Which is the Company stated here?

A

: Lysaght Marketing Sdn. Bhd.

Q6

: Refer to page 1 of COB-1; who is the employer who dismissed you as per this heading?

A

: Lysaght Marketing Sdn. Bhd.

Q7

: You agree with me that you are applying for reinstatement to a Company which is different from the Company stated in the Minister's reference.

A

: Yes.

Q8

: P; There is no basis for you to apply for reinstatement to Lysaght Galvanized Steel as it is not your employer.

A

: I disagree.

Q9

: You

are

still

maintaining

reinstatement

to

Lysaght

Galvanized Steel Sdn. Bhd.? A

: Yes.

The Learned Counsel for the Company, Mr. Ramadass was of the view that as the position taken by the Claimant during the crossexamination that he was seeking reinstatement to a position he was not holding at Lysaght Galvanized Steel Bhd., it was found no longer relevant to continue with the cross-examination since the Claimant was seeking a remedy which this Court would not have the power to grant.

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Evaluation and Findings It is obvious that the Claimant in his cross-examination testified that he is asking to be reinstated to Lysaght Galvanized Steel which is not the Company stated in the Minister's reference. The Claimant further testifed that Lysaght Galvanized Steel is his employer and not the Company in the reference i.e. Lysaght Marketing Sdn. Bhd. The fact that the Claimant is seeking reinstatement to a Company which is not a party to this dispute would mean by inference

that

the

Company

is

abandoning

his

claim

for

reinstatement against the Company in this case; i.e. Lysaght Marketing Sdn. Bhd. Threshold Jurisdiction of the Industrial Court The Industrial Court is an arbitration tribunal constituted by the IRA, 1967.

The powers of the Industrial Court in relation

to dismissal case are set out in Section 20(1) and (3) of the IRA, 1967.

This statutory machinery is set in motion initially by the

workman making representations to the Director General under Section 20(1) which states as follows;

Section 20(1) IRA “Where a workman irrespective of whether he is a member of a trade union or otherwise considers that he has been dismissed without just cause or excuse by his employer, he may take representations in writing to the Director General to be reinstated in his former employment: the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed. [Emphasis Added]

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Section 20(3) of IRA Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representation to the Court for an award.”

In Holiday Inn Kuching v Elizabeth Lee Chai Siok [1992] 2 CLJ (Rep) 521, Y.A. Haidar J summarised the requirements of S.20(1) and 20(3) of IRA 1967 to be; “The elements of representations would appear to be as follows; (i)

: the respondent must be a workman (see Dr. A.Dutt v Assunta Hospital [1980] 1 MLJ 304).

(ii)

: whether there was a dismissal and if so, it must be without just cause or excuse by his employer (see Wong Cee Hong v Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298).

(iii)

: the workman has made “representations in writing” to be “reinstated in his former employment.”

The representations by the Minister to the Industrial Court under s.20(3) of IRA 1967

must necessarily confine to

representations for reinstatement by virtue of s.20(1) of IRA 1967. The power to make an award by the Industrial Court is provided by s. 30(1) of IRA 1967 and reads: “The Court shall have power in relation to a trade dispute referred to it or in relation to a reference to it under s.20(3), to make an award (including an interim award) relating to all or any of the issues.” [Emphasis Added]

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It would clearly appear therefore that if a workman does not require reinstatement, there would not be reference to the Industrial Court under s.20(3) of IRA.

In the case of Hodge v Ultra Electric Ltd (1943) 1 KB 462, 466, Tucker J at page 466 defined reinstatement as; “Putting the specified person back in law and in fact, in the same position as he occupied in the undertaking before the employer terminate his employment.”

From the readings of Section 20(1) and (3) of IRA and also the case of Holiday Inn Kuching (supra) it is clear and obvious that in his representations to the Director General, an employee must indicate that he wants to be reinstated to his former employment. And it is because

he has indicated thus that the Minister refers such

representations to

the Court.

It would appear therefore that if a

workman does not require reinstatement, there would not be reference to the Industrial Court under Section 20(3) of IRA. In the present case, based on his pleadings the Claimant is seeking for reinstatement to his former position in the Company without any loss of benefits whatsoever.

However, based on the

evidence given in Court, the Claimant is seeking for reinstatement to a Company, i.e. Galvanized Steel Bhd. which is not a party to the proceedings and to a position that he was not holding at the date he claimed constructive dismissal. This Court is obviously not vested with the powers to consider and make any award in respect of the claim for reinstatement to a Company which is not a party to the dispute before this Court. As such it would be an exercise in futility to proceed to hear the merits of the claim of constructive dismissal since the remedy sought is not 12

available to the Claimant in this Court. The fact that the Claimant is seeking reinstatement to a Company which is not a party to this dispute would mean that the Claimant had abandoned his claim for reinstatement

against the Company in this case; i.e. Lysaght

Marketing Sdn. Bhd. and therefore this Court had ceased to have jurisdiction over this matter. In support of this proposition of law where the workman abandons the claim for reinstatement at the hearing and the Court dismissing the claim on this ground can be seen in the case of Jagvinder

Kaur

H.

Pritam

Singh

v

Royal

Selangor

International Sdn. Bhd. [2008] 3 ILR 293 whereby the Learned Chairman Y.A. Franklin Goonting states as follows; “The Claimant pleaded constructive dismissal but during the course of the hearing she had stated that she did not want reinstatement.

Counsel for the respondent then submitted

that in view of the Claimant's stand of not wanting reinstatement, the Court was not seised with jurisdiction to hear the matter any further and applied for the case to be struck off. The Claimant then sought to retract her answer which was not allowed and the matter was adjourned to another day to enable the respective counsel's to research the matter.

The sole issue that arose for determination

before this Court was whether or not the Court was seised with jurisdiction to hear this matter.”

The Learned Chairman held that the Industrial Court has no jurisdiction to hear the matter. He further states;

“Margaret Wong's case was clearly distinguishable since the issue there had concerned pleadings which had been a procedural matter whereas in the present case the claimant had

confirmed

reinstatement.

under

oath

that

she

had

not

wanted

As such, the court would be committing an

13

error of law if it were to involve itself in conjecturing what else might have been in the claimant's mind.

It had not

been necessary to delve into the other authorities cited by counsel. The Holiday Inn case had been the only High Court case on point and was binding authority.

The

claimant had abandoned her claim for reinstatement and

therefore

the

court

had

ceased

to

have

jurisdiction over this matter.” [Emphasis Added]

The Learned Chairman in this case held that the Court had no jurisdiction to hear this matter wherein the Claimant has confirmed on oath that she had not wanted reinstatement and that the Court would be committing an error of law if it were to involve itself in conjecturing what else might have been in the Claimant's mind. This Court wholly agreed with the proposition of law as stated by Y.A. Franklin Goonting in the above stated case. As such, on the facts of this case, the Claimant had clearly stated during cross-examination that he is seeking reinstatement to Lysaght Galvanized Steel which is not a party to the proceedings and the Industrial Court has no jurisdiction to grant the Claimant the remedy that he is claiming as the Company that the Claimant is seeking

for reinstatement

is

not the

relevant

party to

this

proceedings. The Learned Counsel for the Claimant submit that this Court has been seised with the necessary jurisdiction to adjudicate on the matter herein. This Court unlike the civil courts is a court of equity and

good

conscience.

Therefore,

in

accordance

with

these

principles, it should be able to look into the merits of this case simply because the Claimant should not be prejudiced for the Company's conduct in that they had represented themselves to be 14

the employer of the Court. The Claimant had always from the date of his dismissal been consistent, be it at the conciliation proceedings at the Industrial Relation Department, the High Court as well as in the Industrial Court that it was Lysaght Galvanized Steel was his employer during his employment. The Learned Counsel further submit that this Court has the authority to decide that it has the jurisdiction to decide on the merits of the matter herein of which good conscience and equity would require. He urge this Court to look beyond the mere technicality of which the Claimant had diligently pointed out at every stage of this reference

and

make

a

finding

based

on

all

the

facts

and

circumstances surrounding the matter herein and not confine itself to the more technical fact that Lysaght Galvanized Steel was not named as a party to the reference herein. On this issue, the Court is of the view that it is without any merit and should be rejected. As I have said earlier, the Claimant is seeking reinstatement to a Company which is not a party to the proceedings. As such the Claimant's contention that he had always from the date of dismissal been consistent will not carry any weight in view of his evidence that he was seeking for reinstatement to Lysaght Galvanized Steel Bhd. which is not a party to this dispute. Further, the issue of reinstatement to the named Company is not an issue of “mere technicality”.

In the case of Hong Leong

Equipment Sdn. Bhd. v Liew Fook Chuan

& Other Appeals

[1997] 1 CLJ 665 it was held by the Court of Appeal that reinstatement is the primary remedy in Industrial Law. Gopal Sri Ram JCA at page 708 states;

15

“Reinstatement is the primary remedy in industrial law and an acceptance of it or an unreasonable rejection of it by the workman must be treated as having put an end to the dispute.”

On the issue that the Industrial Court has to apply equity and good conscience, this Court is bound by the rules of pleading as stated by the Federal Court in Ranjit Kaur S. Gopal Singh v Hotel Excelsior (M) Sdn. Bhd. [2001] 8 CLJ 629 where it was held as follows;

“....... However, as rightly pointed out by Learned Counsel for the respondent

s.30(5) of the Act cannot be used to

override or circumvent the basic rules of pleading.

The

Industrial Court, like the civil courts must confine itself to the four corners of the pleading. This had been held to be so by this court in Rama Chandran which are as follows:

It is trite law that a party is bound by its pleadings. The Industrial Court must scrutinise the pleadings and identify the issue, take evidence, hear the parties' arguments and finally pronounce its judgment having strict regards to the issues.”

Based on the above authority, it is clear that the phrase “equity and good conscience” relates only to application of rules and procedures and does not give powers to act outside the four corners of the IRA.

As such, the fact that the Claimant is claiming for

reinstatement against a company not named in the proceeding will be giving the Court the jurisdiction to act outside the four corners of the Act which jurisdiction the Court does not have.

16

Conclusion From the facts of this case, the Claimant has clearly stated that he is seeking for reinstatement to a Company which is not a party to this proceedings and therefore the Industrial Court has no jurisdiction to grant the Claimant the remedy that he is claiming. As such the Claimant has abandoned his claim for reinstatement and therefore the Court has ceased to have jurisdiction over the matter. For these reasons, there is no necessity for this Court to inquire and decide on the Claimant's claim of constructive dismissal. The claim is hereby dismissed.

HANDED DOWN AND DATED 16 JANUARY 2013.

( GULAM MUHIADDEEN BIN ABDUL AZIZ ) CHAIRMAN INDUSTRIAL COURT KUALA LUMPUR

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