GD: COURT DISMISSES UNION COMPLAINT

The Industrial Court of  Malaysia recently dismissed the complaint of non-compliance of a Collective Agreement clause brought about by The Union of Beverage Industry Workers against the Carlsberg company in The Union of Beverage Industry Workers v Carlsberg Brewery Malaysia Berhad & Carlsberg Marketing Sdn Bhd [Award No: 1073 of 2009] which was just decided on 4 September 2009.
The complainant lodged a complaint under S.56(1) of the Industrial Relations Act 1967 that the respondent failed to comply with, inter alia, Article 12 of the Collective Agreement Cog. No. 015/2008 for the period commencing 1 January 2004 to 31 December 2006 by refusing to pay overtime to its Marketing and Supply Chain employees based on the 40-hour work week stipulated by the said Article 12 thereof.

The impasse faced by both parties regarding Article 12 was as a result of the complainant wanting a reduction in the number of working hours from 45 to 40 while the respondent was agreeable upon condition that the complainant accept a provision for multitasking, of which the complainant was against, claiming that they will then be compelled to perform jobs outside their own job scope.

Pending the outcome of the reference of this dispute at the Industrial Court, the respondent paid overtime based on the 45-hour week. On 25 September 2007 the Industrial Court approved of the respondent's proposed new clause providing for multitasking. The respondent implemented the new 40-hour work work from 16 October 2007 and with effect from this date the employees were paid overtime based on this 40-hour work week.

The complainants argued that since the award had ordered the effective date for payment of arrears to be from 1 November 2004, the respondent should pay overtime based on the new 40-hour work week with effect from even date.

The respondents countered that pending the decision of the Industrial Court, the old work week and overtime system continued to subsist. The respondents further contend that should the Court be of the view that any term in the Collective Agreement lacks clarity then the Court is vested with the power under S.56(2) of the Industrial Relations Act to vary such term.

The Court was of the view that the 40 hour work week cannot have retrospective effect, just like the multitasking provision. The employees were contractually bound up to the time of the award to perform their duties based on the old Collective Agreement which provides for the 45-hour work week and thus to be paid overtime based on the same.

The Court opined that the question of variation in this case was irrelevant.

The Court accordingly dismissed the complaint.

GD: HR EXECUTIVE LOSES INDUSTRIAL COURT CLAIM

Puan Afizah bt Yaakob v. Cosmopoint Sdn Bhd (Industrial Court of Malaysia Award No: 1050 of 2009) sees the triumph of an employer’s transfer order and the lawful termination of a probationary employee without conducting a DI.

This case was decided only last Friday, 28 August 2009.

The Claimant commenced service with the company as a HR Executive on 1 December 2003. On 2 February 2005, she received a letter charging her with nine counts of misconduct. The list included:-

1. Refusal to accept responsibilities/instructions given by the President of the company on 26 October 2004 with regard to HR tasks
2. Leaving a meeting before it is over on 2 December 2004, thereby disregarding company ethics
3. MIA for three days from 29 – 31 December 2004
4. Showing disrespect to other managers in the company
5. Refusal to take instructions from the Head of Department
6. Missing from the workplace
7. Refusal to accept company secrecy policies
8. Refusal to comply with a transfer order to report for duty at the company’s Kuching branch on 1 February 2005
9. Failure to turn up to the office including on 29 January 2009.

The claimant replied to the letter but the company replied that the claimant failed to answer properly to the allegations. Through the same letter, she was dismissed by the company and was given one month’s notice effective from the date of the letter. She was never confirmed in employment.

 The issues before the Court were

1. Whether the company had proved its case against the Claimant on the charges for which it charged the Claimant; and
2. Whether the dismissal of the claimant was with just cause and excuse.

The company informed the Court, through their first witness the President cum Director of the company, that the Claimant’s performance was unsatisfactory. The company’s witness explained that there was an urgent need for the HR officer from the HQ in KL to be assigned to handle HR work in the newly-set up Kuching branch, and because the Claimant had been with the company’s HR department for one year so she would be the best person to do the job.

The witness told the Court that he had discussed the transfer with the Centre Manager of the KL branch of the company, and together they had told the Claimant that she can have another week to settle her work in KL as well as her personal matters. But the witness said that the Claimant refused to accept the offer.

The Claimant then told the Court the Company only gave her three days’ notice to transfer to Kuching which was unreasonable and caused her and her family much hardship. She said that she had written a letter of appeal but alleged that the company did not respond to her letter. The Claimant submitted that there was mala fide on the part of the company because she was terminated right after her refusal to be transferred to the Kuching Branch.

 The learned Chairman of the Court opined, inter alia, that

“..it is mundane to observe that it is an industrial jurisprudence that the law on the issue of transfer is very clear that “it is an acceptable principle that the right to transfer an employee from one department to another and from one post of an establishment to another or from one branch to another or from one company to another within the organisation is the prerogative of the management.” In Chong Lee Fah v The New Straits Times Press (M) Bhd & Anor [2005]…the High Court held, inter alia, as follows:

“ Is it an acceptable principle that the right to transfer an employee from one department to another or from one company to another within the organisation is the prerogative of the management. In fact this right of transfer is embodied in the Industrial Relations Act 1967, where S.13 provides that a company has the right to transfer its employees within the organisation so long as such transfer does not entail a change to the detriment of an employee in regard to the terms of employment.”

 
The Court had carefully considered the Claimant’s allegation that the transfer was an attempt to force her to resign, but the Court did not find any mala fide on the part of the company. While the transfer may have at the most been inconvenient, it was still legal. The Court found that at the material time the company critically needed somebody from the HR Department to go to Kuching to handle matters related to HR, therefore in the Court’s view the company was doing this in the interest of business.

Regarding her reasons pertaining to her marital status, the Court quoted the case of Razali Abu Bakar v Stanson Marketing Sdn Bhd & Anor [2009] where it was held that, inter alia:-

“Un fortunately, it is a sad fact of life that one cannot always have what one desires….claimants cannot run away from the fact that the right of the company to transfer them is clearly spelt out in their contracts of employment.”

Finally the Court cited Menon v Brooklands Rubber Co Ltd [1967] in which it was held that

“It is well established law that willful disobedience of a lawful and reasonable order of the employer will justify summary dismissal.”

The Court found that the Claimant had failed to establish on the balance of probabilities that she had been dismissed without just cause and excuse, and dismissed the Claimant’s case.

NEVER BETTER THAN LATE

At a recent HR group meeting in JB, we discussed the recent case of Automotive Manufacturers Sdn Bhd v Ahmad Mohd Som (Award No 361 of 2009).


The employee in this case was employed as an operator in the maintenance department of Automotive Manufacturers Sdn Bhd. The Company found that he had been habitually late and frequently failed to swipe in and out his attendance card at the barcode system on numerous occasions between January 2001 and August 2002.

In August 2002, the company issued him a show cause letter alleging 35 occasions of lateness between January 2001 and August 2002 and failing to swipe his card 31 times during the same period.

The claimant replied , inter alia, requesting for a DI to be convened because he felt that the show cause letter was unfair to him seeing as the offences alleged in it spanned over a period of more than a year.

A DI was eventually held and the claimant was found guilty and was dismissed. He appealed to the company but was turned down.

The claimant subsequently took the case to the Industrial Court and 7 years later the Court decided in his favour, awarding him more than RM20k in damages.

There are a few lessons to be learnt from this case.

Always take immediate action each time a breach of disciplinary policy occurs. In this case the Company accumulated 20 months’ worth of alleged offences and used that to slap the termination notice on the employee without a single warning, written or otherwise, being issued to him throughout the entire period the alleged offences were supposed to have occurred. The Court opined as such: ”The Court is of the view that by not taking immediate disciplinary action against the claimant for the aforesaid serious misconducts…the company is deemed to have condoned the claimant’s past acts of serious misconducts…” The Court only took in consideration one occasion of misconduct, which was the most recent one alleged by the Company, and threw out the rest. Based on this one single misconduct alone, the Court could not find the employee guilty of serious misconduct constituting just cause and excuse for dismissal.

All general terms and conditions of employment, including disciplinary offences and their corresponding punishment, must be made known to all employees. In this case the employee was not given a copy of the Company’s Code of Conduct, and the Company failed to prove on the balance of probabilities that the employee knew the consequences of his misconduct.

Never terminate an employee because of personal vendetta or ulterior motives. In this case, the claimant contended that the Company purposely used the excuse of habitual lateness to kick him out because he was involved in the formation of an employees’ union. The Company had issued him a letter asking him to withdraw his membership of the union, which was wrong in law in the first place, and when the employee refused to sign the letter the Company began to find fault with him. In the end, they had to pay for it. Now imagine the damages if the claimant is a senior-ranking employee. I personally know someone who was awarded RM1.3 million in damages after he was unfairly dismissed by his employers because of political and racial motives. He was my law lecturer, and one of the reasons why I am specialising in employment laws.

If you really want to give someone the boot for reasons nothing whatsoever to do with work, make sure you get your own ass covered. In this case, the Company produced the MIS Manager as one of their witnesses during the Court hearing. The witness was asked why the barcode system printout showed that the employee did not swipe his card on certain particular dates. The witness’s reply? “Kemungkinan barcode rosak.” The Court threw the case out of the window.