Case Study HRM581 individual assignment PDF

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FACULTY OF BUSINESS & MANAGEMENT MARA UNIVERSITY OF TECHNOLOGY MALAYSIA FACULTY OF BUSINESS & MANAGEMENT MARA UNIVERSITY OF TECHNOLOGY MALAYSIA BACHELOR OF BUSINESS ADMINISTRATION (HONS.) HUMAN RESOURCE MANAGEMENT (BA243)

INDIVIDUAL ASSIGNMENT (CASE STUDY) HRM 581 MALAYSIAN EMPLOYMENT LAW

PREPARED FOR: Madam Afzan Nor Talib

STUDENT’S NAME:

Wan Farrah Hanim Binti Wahi (2020964307) BA243(3B) SUBMISSION DATE: 20 June 2021 CASE OF THARMABALAN A/L SUPPIAH VELLIAH AND MSL TRAVEL SDN. BHD. Award No: 3081 of 2019 Case No: 18/4-321/18 Chairman: Y.A. Mariani Binti Ghani Representation: - Mr. Meharaj Selvarajoo (Counsel for the Claimant) Messrs R. Nethaji Rayer & Co Advocates & Solicitors - Miss Shalani Devi (Counsel for the Respondent) Messrs Shalani Devi & Co Advocates & Solicitors Venue: Industrial Court of Malaysia, Penang branch. Date it was held: 31 March 2017 References: Section 20(3) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources Malaysia Facts of the case: 1. The employee which is Mr Tharmabalan A/L Suppiah Velliah was working with MSL Travel Sdn Bhd for almost 11 years and he was been served the notice of retrenchment in March 2017. 2. The reason of the retrenchment is because the company was in the process of downsizing and his last drawn salary was RM4,100.00. Besides that, Mr Tharmabalan also

said that the retrenchment notice period was only within 4 weeks where he said that it should be more than 8 weeks. 3. Moreover, he also claims that his employer was failed to follow the principles of LIFO (last in, first out). Mr Tharmabalan contended that the retrenchment was an unfair dismissal without a cause and excuse.

Argument on the claimant: 1. The claimant which is Mr Tharmabalan has called 3 witness and they were Mr Tharmabalan himself, Ms Coreen Ooi Bee Chien and Claimant’s ex co-worker. 2. The claimant said that he has received a letter on 20 February 2017 informing about his last day of working with the respondent was on the 31st March 2017. The reason of the letter is because the respondent experiencing a slowdown in business and laying off staff was one of the steps taken by the Respondent. 3. The claimant also testified that there were two others were also given the same letter which Ms Coreen and the claimant’s ex co-worker, Mr. Nadarajah. 4. The claimant also testified that he did not know about the company's slowdown but he never aspect that it was bad. He also stated that he would not know if any steps were taken to cut costs because his salary was paid end of every month like always and there was never a pay cut or expenses cut cost.

Argument on the respondent: 1. The respondent only calls 1 witness which is Mr. Murlidhar all Duhlanomal, the Director/Manager of the Respondent's company 2. The Respondent’s company was doing badly and that in order to save money, the Respondent had to transfer from the Red Rock Hotel's rented premises to Penang Plaza. Mr. Murlidhar testified that the Respondent is struggling to survive with their company. 3. Respondent does not replace employees who resigned. The Respondent has been seriously trying to cut cost since 2016. The Respondent in steps to reduce cost also take action to reduce overheads. The Respondent decided to retrench three of their

workers due to redundancy which is Mr. Nadarajah, Ms. Coreen Ooi and the Claimant. 4. The Labour Office then advised the Respondent to reinstate all three of them. The Respondent followed the recommendation, but only restored Mr. Nadarajah and Ms. Ooi because their retirement was only a matter of months apart, and both of them are no longer with the Respondent. The Claimant was not reinstated as advised because he had reached the necessary retirement age. 5. The Respondent do follow the principle of LIFO. The Claimant was the last of three employees who were first laid off. As a result, the Claimant was the last to be hired among individuals in the same department. In accordance with LIFO principles, he was the best choice. Issue: The issue in this case is whether the claimant (Mr Tharmabalan A/L Suppiah Velliah) was constructively discharged or whether the employer (MSL Travel Sdn Bhd) had just cause or explanation for the dismissal. Comparison of the issue: - The claimant was not constructively discharged but he has been dismissed with just cause and excuse because the employer had a slowdown in business. - The Court ruled that the employer had taken all necessary precautions to remain in business, and that the company had legitimately exercised its power while retrenching the employee. - The Court affirmed the employer's ability to restructure its operations and dismissed the employee's claim. Decision: -

The decision of the court is no, the court found out that the claimant was not constructively discharged and with the totality of the evidence, it is clear that the respondent has proved on the balance of probabilities that the dismissal of the claimant as employee was with just cause or excuse. Automatically, the claimant's claim is hereby dismissed.

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As stated in Section 30(5) of the Act, the Court proceeded with justice and good conscience and on the main merits of the case without regard to technicalities and legal form.

CASE OF SHAFRUL DIN BIN SAHUL HAMEED AND BANGI RESORT HOTEL SDN BHD Award No: 1061 of 2021 Case No: 4/4-1459/20 Chairman: Y.A. Tuan Augustine Anthony Representation: -Mr. Muhendaran Suppiah & Ms. Tung Eugene (Counsel for the Claimant) Messrs Muhendaran Sri - Mr. David Tan Seng Keat (Counsel for the Company) Messrs T.Thavalingam & Co.

Venue: Industrial Court, Kuala Lumpur. Date it was held: 9 January 2020 References: Section 20(3) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources Malaysia

Facts of the case:

1. Mr Shafrul Din bin Sahul Hameed which is an employee at the Bangi Resort Hotel Sdn Bhd, has claim that he had been dismissed from his employment without just cause or excuse by the company. 2. The Claimant began working for the Company as a Demi Chef. Following that, the Claimant was transferred to numerous positions throughout his employment with the Company, with his most recent post being as a Sous Chef. The Claimant's most recent wage was RM3,941.00. During his employment, the Claimant had also been appointed the Company's Halal Deputy Chairman, as well as a Halal Committee Member and a Safety & Health Committee Member. 3. The Claimant was reported for a violation of the Company's policies, which the Claimant freely confessed at the time. Despite the Claimant's forthright admission of the violation of the Company's rules, he was subjected to a rigorous investigation process that lasted more than a month before he was finally given a final and stern warning. 4. About 2 years later, the Claimant was reported for an incident involving the preparation of a food item in which the Claimant allegedly failed to follow the standard operating procedure (SOP) in the preparation of the food. 5. The Claimant admits to not following the SOP and following this admission, a meeting was called between the Claimant and the Company's officers wherein after this meeting the Claimant tendered his resignation letter on the same day. The Company accepted the Claimant’s resignation letter and waived his contractual notice period. 6. The following day, the Claimant wrote a letter retracting his resignation letter and alleged that he was threatened and forced to resign during the meeting. 7.

The Company thereafter denying the Claimant’s allegations contained in his letter and stated that the Claimant’s letter with all its contents were a mere afterthought.

8.

The Claimant now maintains that he was forced to resign and that this amounts to a dismissal and that this dismissal was without just cause or excuse.

9. The Company however maintains that the Claimant was never dismissed from his employment with the Company but had voluntarily resigned to avoid facing disciplinary action. Arguments on the claimant:

1. The Claimant was told that Hotel Equatorial Bangi had been renamed Hotel BangiPutrajaya, and that he would continue to work for the Company with no modifications to the terms and circumstances of his employment contract. 2. The Claimant was issued an Employee Warning Notice for violating House Rules in relation to an alleged incident in which the Claimant was subjected to a rigorous disciplinary process that lasted a month, resulting in the Company issuing a final stern warning and 6 stars demerit were deducted from the Bangi Stars Scheme. 3. The Claimant was relocated from Funtasia Kitchen to Banquet Kitchen, where his status as Sous Chef was retained. Furthermore, the Claimant was required to work 11 hours a day, which was longer than his usual working hours, for which he was paid RM30.00. If the Claimant wanted to work for less than 11 hours, he needed to get permission from his supervisor. 4. The Claimant received an Employee Warning Notice saying that the Claimant's "Combi Fried Bee Hoon Production did not follow SOP and attempted to cheat" for the occurrence. The Claimant signed the notice and stated that he "would follow to SOP standards." 5. On the 09 January 2020 at around 2.30 pm, the Claimant attended a meeting in the Human Resources Office. In the said meeting the Claimant was forced to resign with the threat that if he did not do so, he would be blacklisted and his salary and balance annual leaves would be forfeited. The Claimant was instructed to use the computer outside the meeting room to prepare his resignation letter and he submitted a 24 hours Resignation Letter. The company accepted the Claimant's resignation letter on the same day. 6. However, the next day, the Claimant had written to the Company asking to withdraw his resignation and the Company rejected the Claimant’s withdrawal of the resignation as they claimed that the Claimant's resignation was already accepted by the Company. Furthermore, the Company in the same letter failed to rebut the Claimant's narration of what had transpired. 7.

The Claimant now states that he had no intention or reason to resign from his employment but was forced to do so by the Company.

Argument on the respondent:

1. The Company owns and operates a five-star hotel business, which extends to and includes the operation of attached restaurants and food services and the claimant was employed and transferred throughout the tenure of his employment and his ultimate position was as a Sous Chef with a fixed monthly salary of RM3,941.00. 2. The Company had thereafter responded to the Claimant’s resignation letter whereby the Company accepted his resignation and waived his contractual notice period. 3. The Company responded to the Claimant’s letter by its letter denying the Claimant’s allegations and rejecting his resignation.

4. Now the Company maintains that the Claimant was never dismissed from his employment with the Company but had voluntarily resigned to avoid facing disciplinary action in light of his past disciplinary record. 5. The Company further reiterates that at no time the Claimant was compelled, directed, forced, coerced or otherwise put under duress to resign by the Company or its officer. Issue: - The issue in this case is whether the Claimant (Mr Shafrul Din bin Sahul Hameed) has been constructively discharged or whether the Company (Bangi Resort Hotel Sdn Bhd) create the termination without just cause and excuse. Comparison of the issue: - The claimant was being force resignation by the company and his dismissal was being made without reasonable cause and excuse. - In general, if the Court determines that the dismissal was without reasonable cause or explanation, the only remedy is reinstatement and back wages. - If the Court determines that the reinstatement is not appropriate, like the position no longer exists, the Court shall order the employee to be provided compensation in place of reinstatement by the employer as ordered by the Court. Decision: The decision of the court is yes. The court found out that the Claimant was constructively discharges because the Claimant had given unchallenged evidence that he was a confirmed and permanent employee of the Company. As a result, the appropriate remedy in this case

must be compensation in place of reinstatement. The Claimant is also entitled to back wages under Section 30(6A) of the Industrial Relations Act of 1967, as well as the elements listed in the Second Schedule.

References Industrial Court of Malaysia - Search Full Awards. (2020). Website of Industrial Court of Malaysia. http://www.mp.gov.my/fullawards/searchFullAwards.php The Industrial Court of Malaysia - Case of Shafrul Din bin Sahul Hameed vs Bangi Resort Hotel Sdn Bhd. (July,2020). http://www.mp.gov.my The Industrial Court of Malaysia- Case of Tharmabalan A/L Suppiah Velliah vs MSL Travel Sdn Bhd. (December,2017). http://www.mp.gov.my...