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.