INDUSTRIAL COURT OF MALAYSIA

CASE NO: 9/4-517/13

BETWEEN

TAN CHONG HOCK

AND

PHILIPS LUMILEDS LIGHTING COMPANY SDN. BHD.

AWARD NO: 798 OF 2017

Before : Y.A. DATO' HAJI SULAIMAN BIN ISMAIL

CHAIRMAN

Award Handed Down by : Y.A. TUAN DOMNIC SELVAM GNANAPRAGASAM

CHAIRMAN

Award Issued at : INDUSTRIAL COURT OF MALAYSIA,

PENANG BRANCH

Date of Reference : 7th OF MARCH 2013

Dates of Mention : 10th OF MAY 2013, 10th OF JUN 2013, 12th OF JULY 2013,
12th OF AUGUST 2013, 18th OF SEPTEMBER 2013 &
20th OF NOVEMBER 2013.

Dates of Hearing : 26th OF AUGUST 2015 & 4th OFJANUARY 2016

Representation : Dr. Mohamed Aswandi Hashim learned Counsel

from Messrs Aswandi Hashim & Company
for the Claimant.

Miss Suganthi Singam learned Counsel from

Messrs Shearn Delamore & Co.
for the Respondent

Reference :

The reference under Section 20(3) of the Industrial Relations Act 1967 by the
Honourable Minister of Human Resources Malaysia, is regarding the dismissal of Tan Chong
Hock (“the Claimant”) by Philips Lumileds Lighting Company Sdn. Bhd. (“Respondent”)
on 27th of July 2012.

1
 AWARD

This is a reference by the Honourable Minister of Human Resources

under Section 20(3) of the Industrial Relations Act 1967 on 7 th March 2013 arising out
of the dismissal of Tan Chong Hock (“the Claimant “) by Philips Lumileds Lighting
Company Sdn. Bhd. (“ the Respondent “) on 27th July 2012.

The hearing of this case commenced before the then Chairman;

Dato' Hj. Sulaiman bin Ismail on the 26 th of August 2015 and was duly
completed on the 4th of January 2016 with the Respondent calling 2 witnesses
and the Claimant testifying on his own behalf. The Claimant's Solicitors Messrs
Aswandi Hashim & Co filed their Written Submissions on the 8 th of March 2016 and the
Respondent's Solicitors Messrs Shearn Delamore & Co filed their Written Submissions
on 28th January 2016 and Submission In Reply on 23rd of March 2016 respectively.
This matter has been pending since then as the tenure of Dato’ Hj. Sulaiman Bin
Ismail had ended on the 31 st of August 2016. The current Chairman has been
directed by the President to hand down this Award in the interest of justice. Both
parties had by letters dated the 4 th and the 16th of January 2017 respectively
consented for the Award to be handed down by the current Chairman. This
award is therefore written in total reliance on the evidence, documents and facts
contained in the notes and records of proceedings as well as the written
submissions made available to the original court and before me. The Court shall
now hand down this award.

BACKGROUND OF CASE

The Claimant was employed by the Respondent on the16 th January 2007

as Process Engineer and was confirmed to his post on the 16 th of May 2007. The
Claimant worked until the 27th of July 2012. His last drawn salary was RM9,572.00
per month.
2
 On the 31st of March 2012, the Production Manager of the Respondent
voiced his concerns over production faults which were within the Claimant’s area of
responsibility that needed to be addressed. The Claimant, according to the
Respondent has been having performance issues and this was listed out in an email
dated the 4th of April 2012 to the Claimant by one Alan Teong Hai Loon, the Process
Engineering Manager (COW2). It was pointed out to the Claimant that there were
major gaps in the Claimant’s behavior / performance towards what was expected from
him in his current position.

A discussion was then held between the Claimant and COW2 wherein the
Claimant had later prepared the minutes of the discussion on the same day. The major
short comings in the Claimant's poor performance were reflected in the following
areas.

i) Documentations not updated;

ii) Poor engineering analysis on troubleshooting to find out the root

causes thus leading to poor yield performance on Overmold
process;
iii) Delay in taking action on issues;

iv) Delayed work on costs saving project.

Despite the highlighting of the Claimant’s weaknesses, the Claimant could

not perform in his capacity as the Overmold Process Engineer. The Claimant was then
assigned as a Final Visual Engineer sometime in June 2012 in order to assist him on
his performance so to bring it to a level of satisfaction of the Respondent. A discussion
was held between COW2 and the Claimant on the 5th of July 2012 where it was clearly
pointed out to the Claimant that he was not meeting the Respondents’ expectations in
his current position. The Claimant was formally notified of this reassignment vide an
email dated the 9th of July 2012.

3
 The Claimant accepted the reassignment of the role and raised no
complaints. The Claimant avers that the weaknesses highlighted were charges
against him for not meeting the Respondent’s expectations. The Respondent denied
that they were charges against the Claimant. It is the Respondent’s position that those
were the main areas of non- performance by the Claimant where performance was
severely lacking on the part of the Claimant. The Respondent had further discussions
with the Claimant on the 18th of July 2012 to counsel and inform the latter that he had
not performed according to the required performance level. The Claimant was told to
improve and to attend the next counselling session on the 24th of July 2012.

On the 24th of July 2012 the Claimant was called by the Respondent and
was given a “Final Written Warning Letter” outlining the efforts taken by the
Respondent to improving his performance but the Claimant had failed to do so. The
Claimant was given 14 days to improve his performance failing which disciplinary
action would be instituted. The Claimant accepted the letter but denied the contents
thereof.

On the 24th of July 2012 the Claimant tendered his letter of resignation
stating that he wished to further his career in other fields and requested the
Respondent to consider granting him a compensation of 1 month's salary. The
Company accepted the resignation and on the 25 th of July 2012, a meeting was held
between the Senior Human Resources Manager; Vigneshwaran Pillai (COW1), COW2
and the Claimant. The meeting was formalized by way of a memo dated the 25 th of
July 2012 where the Claimant had signed the minutes of the meeting. The Respondent
had agreed to pay the Claimant 2 months’ salary in lieu of notice with an additional 1
months’ salary as ex-gratia.

By a letter dated 26th July 2012, the Respondent informed the Claimant of
the acceptance of his resignation and the payments that he would receive. The
4
Claimant accepted the letter but refused to acknowledge service. The Claimant then
claimed that he was forced to resign from the Respondent.

The Respondent’s position is that the Claimant had voluntarily tendered

his resignation.

The Law:

It is trite law that where an employer gives reasons for terminating the
employment of his employee, it is incumbent upon the employer to justify the reasons.
If these reasons are not proved, then the inevitable conclusion must be that the
termination was without just cause or excuse. This principle of Industrial Law is laid
down by his Lordship. Mr. Justice Raja Azlan Shah, CJ (Malaya) in the case of
Goon Kwee Phoy v. J&P Coats (M) Bhd. (1981) 2 MLJ 129 at page 136 which reads
as follows:

“Where representations are made and are referred to the Industrial Court of enquiry, it is
the duty of that Court to determine whether the termination or dismissal is with or without just
cause or excuse. If the employer chooses to give a reason for the action taken by him. The duty
of the Industrial Court will be to enquiry whether that excuse or reason has or has not been
made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be
that the termination or dismissal was without just case or excuse. The proper enquiry of the
court is the reason advanced by it and that Court or the High Court cannot go into another
reason not relied on by the employer or find one for it.”

The onus of proving that the dismissal is with just cause or excuse lies on the employer.
It is the employer who must prove that the employee is guilty and it is not the employee who
must prove himself innocent. To discharge the onus of proof the employer must adduce cogent
and concrete evidence, whether oral or documentary, to prove the facts and circumstances
which he contends constitute just cause or excuse for terminating employment of the employee.
The standard of proof is on a balance of probabilities (See Union Construction 4 Allied
Trades Technicians v. Brain [1981] 1 IRLR 224, Stamford Executive Center v. Puan
Dharsini Ganesan [1986] 1 ILR 101 and Telekom Malaysia Kawasan Utara v. Krishnan
Kutty Sanguni Nair & Anor [2002] 3 CLJ 314).

5
 Further, the Federal Court in decision of Wong Yuen Hock v. Syarikat
Hong Leong Assurance Sdn. Bhd & Anor (1995) 2 MLJ 753 had this to say with
regards to the function of the Industrial Court:

“On the authorities, we were of the view that the main and only function of the Industrial
Court in dealing with a reference under Section 20 of the Act (unless otherwise lawfully
provided by the terms of the reference), is to determine whether the misconduct or irregularities
complained of by the Management as the grounds of dismissal were in fact committed by the
workman, and if so, whether such grounds constitute just cause or excuse for the dismissal.”

As a Court of arbitration I am reminded that Section 30(5) of the Industrial

Relations Act 1967 (Act 1977) requires the Court to decide a case in accordance with
equity and good conscience. In doing so I am guided by Gopal Sri Ram JCA's
decision in Harris Solid States (M) Sdn Bhd & Ors v Bruno Gentil Pereira & Ors
(1996) 4 CLJ 747 CA that it is incumbent upon the court to have regard to substantial
merits of the case rather than to technicalities.

The General Principles Of Industrial Law:

When dealing with a reference under Section 20 of the Act, the first thing
that the Industrial Court has to consider is the question of whether there was, in fact, a
dismissal. If this question is answered in the affirmative, it must only then go to
consider if the said dismissal case with or without just cause or excuse. Reference is
drawn to the case of WONG CHEE HONG VS CATHAY ORGANISATION (M) SDN
BHD [1988] 1 MLJ 92; [1998] 1 CLJ (REP) 298 (of the then Supreme Court) per
Salleh Abas L P.

In COLGATE PALMOLIVE SDN. BHD. VS YAP KOK FOONG (Award

368 of 1998). It was as follows:-

6
 “In a Section 20 reference, a workman's complaint of two elements: firstly, that he has
been dismissed, and secondly, that such dismissal was without just cause or excuse. It is upon
these two elements being established that the workman can claim his relief, to wit, an order of
reinstatement, which may be granted or not at the discretion of the Industrial Court. As to the
first element; Industrial Jurisprudence as developed in the course of Industrial adjudication
readily recognizes that any act which has the effect of bringing the employment contract to an
end is a 'dismissal' within the meaning of Section 20.

The terminology used and the means retorted to by an employer are of little
significance, thus, contractual terminations, constructive dismissals, non-renewals of contract,
forced resignations, retrenchments and retirements are all species of the same genus, which is
'dismissal'”.

In the case where the employer denies dismissing the workman, the Court has a
duty to decide as a preliminary issue whether there was dismissal. Once established
that there is a dismissal, the issue then is left for the Court to decide whether or not
the employer had just cause or excuse for dismissing the workman (General
Containers Sdn. Bhd. v Yip Siew Ling [1994] 2 ILR 913 referred).

Where the fact of dismissal is in dispute and this case, the Claimant alleging that
he was forced to tender his resignation, the onus is on the Claimant to prove that he
was forced to tender his resignation by the Company. Support for this proposition is
found in the case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor
[1998] 1 LNS 258; [1998] 7 MLJ 359 at p. 363 where Abdul Kadir Sulaiman J
decided as follows:

"The law is clear that if 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. This is
because, by the 1967 Act, all dismissal is prima facie done without just cause or excuse.
Therefore, if an employer asserts otherwise the burden is on him to discharge. However, where
the fact of dismissal is in dispute, it is for the workman to establish that he was dismissed by his
employer. If he fails, there is no onus whatsoever on the employer to establish anything for in

7
 such a situation no dismissal has taken place and the question of it being with just cause or
excuse would not at all arise.".

Evaluation and Finding:

In this instance case, evidence shows that the Claimant is aware of the
fact that the Respondent had issues of poor performance with him. This has been
going on for some months prior to his reassignment in July 2012 as the Senior
Process Engineer for Final Visual Inspection process. The evidence to this effect has
been adequately advanced by COW1 and COW2.

The Claimant too cannot feign ignorance as he had participated in the

numerous counselling sessions and performance discussions which culminated in the
Respondent issuing a Final Warning Letter. The Claimant’s decision to resign is more
probable than not that it was on his own accord rather than the Respondent coercing
him to do the same. He just could not measure up to the expectations of the
Respondent despite the Respondent reassigning and counseling him.

In this case the Claimant is contending that he was forced to tender his
resignation. It is the Courts’ finding that the bulk of the evidence weighs against his
contention. In fact, the Claimant did not deem it necessary to include in his Bundle of
Documents a copy of his resignation letter dated the 24 th of July 2012. The Claimant
had alleged that COW1 and COW2 had suggested to him to tender his resignation.
No evidence was led to prove this. Further, the meeting on the 25 th of July 2012
where the Claimant had met with COW1 and COW2 to work out his dues upon
resignation was never challenged. The absence of cross examination on this matters
and in respect of COW2 s' testimony on what had transpired during the discussions
clearly manifests that the Claimant was unable to establish the first pre requisite of
being forced to tender his resignation and thereby dismissed from service.

8
 In the case City Link Express (M) Sdn. Bhd. v Greeson Daule [2002] 3
ILR 1212 where the Claimant tendered his resignation and subsequently contended it
was a forced resignation, this Court held that “ there was significantly no evidence
before the court that the Claimant was put in a position that if he did not resign he
would dismissed ”.

Conclusion:

Based on the analysis of the evidence adduced and reasonable inference

formed from the surrounding circumstances, this Court does not find any evidence of
forced resignation. The Court on the contrary finds that the Claimant had resigned
voluntarily and was not dismissed. There being no dismissal, the issue of being
dismissed without just cause and excuse does not arise.

The claim is hereby dismissed.

HANDED DOWN AND DATED THIS 2nd DAY OF JUNE 2017.

~ Signed ~

(DOMNIC SELVAM GNANAPRAGASAM)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG BRANCH