INDUSTRIAL COURT OF MALAYSIA

CASE NO. 12(22)(3)(22)/4-1232/05

BETWEEN
ENCIK MOHD. MAZLAN BIN MOHD. YUNUS
AND
MALAYSIAN AIRLINE SYSTEM BHD.

AWARD NO. 288

OF 2013

Before

Y.A. TUAN GULAM MUHIADDEEN

BIN ABDUL AZIZ

Venue

Industrial Court, Malaysia

Kuala Lumpur

Date of Reference

25.09.2005

Dates of Mention

11.11.2005;
20.03.2006;
28.07.2006;
07.02.2007;
08.06.2007;
18.01.2008;
12.06.2008;
30.10.2008;
13.01.2009;
05.02.2009;
23.07.2009;
18.11.2009;
04.06.2010;
02.08.2010;
08.11.2010;
26.05.2011;
28.07.2011;
20.03.2012;
22.05.2012;
26.07.2012;
11.09.2012;
03.01.2013

12.01.2006;
24.03.2006;
06.09.2006;
06.04.2007;
10.09.2007;
22.02.2008;
14.07.2008;
21.11.2008;
21.01.2009;
05.03.2009;
30.07.2009;
05.05.2010;
24.06.2010;
18.10.2010;
10.11.2010;
29.06.2011;
03.10.2011;
23.04.2012;
07.06.2012;
09.08.2012;
11.10.2012;

13.02.2006;
29.05.2006;
22.11.2006;
07.05.2007;
22.10.2007;
05.05.2008;
15.08.2008;
10.12.2008;
03.02.2009;
06.05.2009;
22.10.2009;
25.05.2010;
27.07.2010;
27.10.2010;
26.04.2011;
12.07.2011;
25.11.2011;
08.05.2012;
27.06.2012;
04.09.2012;
22.11.2012;

- CHAIRMAN

Dates of Hearing

: 14.12.2012

Dates of receipt
of written
Submissions

Representation

: Mr. Mohan from Messrs Ramakrishnan &

Associates, Counsel for the Claimant

23.04.2012 (from Company's Counsel)

12.09.2012 (from Claimants Counsel)
26.09.2012 (Reply Submissions)

: Ms. Cynthia from Messrs Zaid Ibrahim & Co.,

Counsel for the Company

Reference:
This

is

reference

Industrial Relations Act

made

1967

under

arising

out

section
of

20(3)

the

of

the

dismissal of

ENCIK MOHD. MAZLAN BIN MOHD. YUNUS (the Claimant) by

MALAYSIAN AIRLINE SYSTEM BHD. (the Company).

AWARD
Introduction
This case was referred by the Honourable Minister of Human
Resources to the Industrial Court regarding the dismissal of Mohd.
Mazlan Bin Mohd. Yunus (the Claimant) by Malaysia Airlines
Berhad (the Company) on 23 July 2004. The reference was made
under Section 20(3) of the Industrial Relations Act 1967 was dated 25
July 2005 and was received by the Court on 29 September 2005.

Brief Facts of the Case

The Claimant was employed by the Company vide a letter dated
2 February 1990 as the Cabin Worker at the Cabin Services
Department with a salary of RM328.00 per month.
terms

of

employment

Perkhidmatan
Kesatuan

1998

Pekerja

were

Sistem
Sistem

governed
Penerbangan

Penerbangan

by

The Claimant's

the

'Syarat-Syarat

Malaysia
Malaysia,

Berhad

dan

Semenanjung

Malaysia (hereinafter referred to as the Collective Agreement).

The Claimant was subsequently promoted to the position of
Operations Officer at the Company's Catering Services Department on
20 July 1995.
With effect from 23 September 1994, the Company's Catering
Services Department was incorporated as wholly owned subsidiary of
the Company, known as MAS CATERING SDN. BHD.

All catering

functions of the Company were then carried out by MAS Catering

Sdn. Bhd. henceforth.
MAS Catering Sdn. Bhd. then vide a letter dated 15 January
1996 offered the Claimant the position of Operations Officer, which
the Claimant duly accepted.
The said letter reiterated that the Claimant's employment with
the Company since 1 February 1990 is recognized and would continue
with MAS Catering Sdn. Bhd. The Claimant continued to receive all
benefits employees of the Company received. In fact, the Claimant's
benefits which he enjoyed when he was first employed by the
Company were continued when he was with MAS Catering Sdn. Bhd.
as it was wholly owned by the Company.

Despite the said involvement of MAS Catering Sdn. Bhd., all

letters in relation to the Claimant's employment were issued by the
Company.
On or around 1 December 2003, 70% of the shares of MAS
Catering Sdn. Bhd. were sold to Brahim's-LSG Sky Chefs Holdings
Sdn. Bhd.

With the said sale, the name of MAS Catering Sdn. Bhd.

was changed to LSG Sky Chefs Brahim Sdn. Bhd. with effect from
1 December 2003.
LSG Sky Chefs Brahim Sdn. Bhd. (LSG) sent out a circular
dated 11 December 2003 to all the employees of MAS Catering Sdn.
Bhd., informing of the change of name and that the Company would
remain an important anchor client.
The said Circular also stated that his contractual employment
relationship with LSG has not changed. The said Circular also states
that:-

In line with the corporate exercise, the name of the Company has
been changed to LSG Sky Chefs Brahim Sdn. Bhd. with due approval
by the Registrar of Companies with effect from 01 December 2003.

LSG sent the Claimant another letter dated 15 March 2004,

which states inter alia:-

I wish to reiterate that whilst this corporate exercise evolved a

partnership of shareholders in the Company, namely MAS, Brahim's
and Sky Chefs; it has not changed the ownership of the catering
business, which belongs to the Company (LSG).

The

Claimant

received

another

letter

from

LSG

dated

23 July 2004, where for the first time, LSG stated the following:-

Di sini saya ingin mengingatkan bahawa di masa akan datang

sebarang pengumuman yang dibuat oleh Penerbangan Malaysia tidak
lagi merangkumi kakitangan LSG Chefs Brahim Sdn. Bhd. begitu juga
sebaliknya.

According to the Claimant, this letter, for the first time, implied
that the Claimant's employment with the Company was terminated.
The Claimant's Case
As the issue of dismissal of the Claimant by the Company is
disputed, the Claimant begins the case by giving his evidence.
The Claimant testified that he was at all materials times entitled
to perks and benefits which are provided for in the Collective
Agreement when he was an employee of the Company and even with
MAS Catering Sdn. Bhd.
The Claimant states that on or around 23 September 1994, the
Catering Services Department was registered as a subsidiary to the
Company and was known as MAS Catering Sdn. Bhd.

Despite this

change, he continued enjoying all benefits and perks under the

Collective Agreement.
He further testified that he continued to enjoy all benefits under
the Collective Agreement after his promotion to the position of
Operations Executive in MAS Catering Sdn. Bhd.

The Claimant then testified that on or around 23 July 2004, he

received a letter from LSG implying that he was no longer an
employee of the Company but instead was an employee of LSG. He
further averred that the said termination and/or transfer were done
without his consent and knowledge.
The Claimant states that the Company had unilaterally decided
to terminate his services by unlawfully transferring him to LSG and
thereby causing him to lose all his perks and benefits.
The Claimant during cross-examination stated that in fact, quite
a number of employees from his Department were transferred back
to the Company but the Claimant was not given such a transfer.
The Claimant further states that he did not object to his
promotions at MAS Catering Sdn. Bhd. as the said was a subsidiary of
the Company and he did not lose out in his benefits and perks, as
opposed to when his employment was taken over by LSG which
entailed the letter from LSG dated 23 July 2004 stating that all
announcements from the Company would not bind him any longer.
The Claimant states that his prayer to this Court is for
reinstatement to the Company to enable him to enjoy all perks and
benefits he enjoyed previously.
The Claimant further states that his position in the Company
still remain as the Catering Services Department which was part of
the Cabin Department was also in charge of Cabin Cleaning and that
he was handling that too during his course of employment.

The Company's Case

The Company submits that the Claimant ceased to be its
employee commencing 1 February 1996 when the Claimant accepted
employment from MAS Catering Sdn. Bhd. (MAS Catering) vide MAS
Catering's letter dated 15 January 1996.
The Company further reiterates that it had never issued the
Claimant any letter of dismissal. Conversely, the Claimant contends
that the Company had dismissed him by virtue of a letter from LSG
dated 23 July 2004. The Claimant's view is that paragraph 5 of the
said letter implies a termination of the Company.
Paragraph 5 of LSG's letter is reproduced herein below;

Di sini saya ingin mengingatkan bahawa di masa akan datang

sebarang pengumuman yang dibuat oleh Penerbangan Malaysia tidak
lagi merangkumi kakitangan LSG Sky Chefs Brahim Sdn. Bhd., begitu
juga sebaliknya.

Sebagai sebuah syarikat yang mempunyai entiti

berasingan, berkemungkinan akan memperolehi kemudahan dan

faedah

yang

berbeza

dari

sebelum

ini

dan

sebaliknya

juga.

Keperihatinan anda di dalam perkara ini amatlah dihargai.

The Company rejects the Claimant's contention of being

impliedly dismissed by the Company on the following reasons;

(i)

The Claimant ceased being an employee of the Company

effective 1 February 1996 i.e. when he accepted employment
with MAS Catering.

(ii)

The letter dated 23 July 2004 was issued to the Claimant by

LSG Sky Chefs Brahim Sdn. Bhd. which was formerly known
as MAS Catering.

(iii)

The Company and LSG Sky Chefs Brahim Sdn. Bhd. are
separate legal entities and circulars and letters issued by the
later does not affect the Company (and vice versa).

(iv)

Nothing (including paragraph 5) in LSG Sky Chefs Brahim

Sdn. Bhd's letter dated 23 July 2004 suggests that the
Company had dismissed the Claimant.

The Company further contends that the Claimant had the choice
of accepting or rejecting the offer made by MAS Catering vide its
Letter Of Offer dated 15 January 1996.
accept

this

offer

and

subsequently

The Claimant chooses to

enjoyed

promotions

and

increments given by MAS Catering. The fact remains that 15 years

down the road, the Claimant is still gainfully employed by the same
entity (MAS Catering) although its shareholding and name have
changed.
The Company submits that the Claimant was never dismissed
from its service and further submits that the claim brought by the
Claimant is misconceived in law and ought to be dismissed.
The Law
The function of the Industrial Court in a reference under s.20(3)
of the Act has been explicitly stated by the Supreme Court in the case
of Milan Auto Sdn. Bhd. v Wong Seh Yen [1995] 4 CLJ 449 as
follows;
As pointed out by this Court recently in Wong Yuen Hock v Hong
Leong Assurance [1995] 3 CLJ 344, the function of the Industrial
Court in dismissal cases on a reference under s.20 is twofold;
firstly, to determine whether the misconduct complained of by the
employer has been established and secondly whether the proven
misconduct constitutes just cause or excuse for the dismissal.

The case of Goon Kwee Phoy v. J & P Coats (M) Bhd. [1981]
2 MLJ 129, is binding authority for the proposition that the court is
restricted in its inquiry into the veracity of the reason chosen by an
employer for the dismissal.

Raja Azlan Shah CJ (Malaya) (as His

Royal Highness then was) speaking for the Federal Court ruled that:Where representations are made and are referred to the Industrial
Court for inquiry, 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 inquire 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 cause or excuse.
The proper inquiry 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.

Evaluation And Findings

In this case, the Company contends that it has never dismissed
the Claimant and also had never issued any letter of termination to
the Claimant. Therefore, where the fact of dismissal is in dispute, the
burden will be on the Claimant to establish that he was dismissed by
his employer.
The above principle was laid down in the hallmark case of
Weltex Knitwear Industries Sdn. Bhd. v Law Kar Toy & Anor
[1981] 1 LNS 258 where Abdul Kader J states in relations to the
question as to who bears the burden of proof in a case where the fact
of dismissal is disputed 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 such a situation no dismissal has taken place
and the question of it being with just cause or excuse would not at all
arise.
[Emphasis Added]

Therefore, in the present case, it is the Claimant who asserts

that he was dismissed and the Company denies it. So, it is for the
Claimant to establish so by evidence adduced in this Court.
It is not disputed that with effect from 23 September 1994, the
Company's Catering Services Department where the Claimant was
employed was incorporated as a wholly owned subsidiary of the
Company, known as MAS Catering.

All catering functions of the

Company were then carried out by MAS Catering.

MAS Catering then vide a letter dated 15 January 1996 offered
the Claimant the position of Operations Officer which the Claimant
duly accepted.

The said letter reiterated that the Claimant's

employment with the Company since 1 February 1990 is recognized

and would continue with MAS Catering.

The Claimant continued to

receive all benefits employees of the Company received.

The

Claimant continued enjoying all benefits and perks under the

Collective Agreement as MAS Catering was wholly owned by the
Company.

Despite the setting up of MAS Catering, all letters in

relation to the Claimant's employment were issued by the Company.

10

On or around 1 December 2003, 70% of the shares of MAS

Catering were sold to Brahim's LSG Sky Chefs Holdings Sdn. Bhd.
With the said sale, the name of MAS Catering was changed to LSG
Sky Chefs Brahim Sdn. Bhd. with effect from 1 December 2003.
The Company contends that the Claimant was never dismissed
by the Company. He ceased to be the Company's employee when he
accepted the offer of employment by MAS Catering on 1 February
1996.

On the other hand, the Claimant submitted that he was

unilaterally dismissed by the Company when he was unlawfully

transferred to LSG on 23 July 2004 when the Claimant received a
letter from LSG implying that he was no longer an employee of the
Company.
The Crucial Issue
It is this Court's opinion that the crucial issue to be decided by
this Court which was not addressed by both sides is the right of an
employee when there is a change in the ownership of the business.
In the present case, when the Company's Catering Services
Department was incorporated as a wholly owned subsidiary and
known as MAS Catering, it was still fully owned by the Company.
There was no change in the ownership of MAS Catering.

All perks

and benefits in the Company under the Collective Agreement were

still enjoyed by the employees of MAS Catering.
On 1 December 2003, when the Company decided to dispose
off its 70% shares to Brahim's LSG Sky Chefs Holdings, the
ownership of MAS Catering has changed hand from the Company to a
new entity. MAS Catering were subsequently renamed to LSG Sky
Chefs Brahim Sdn. Bhd. taking the name of its new owner.
11

All the employees were informed of this change of name on

11 December 2003.

On 15 March 2004, LSG Sky Chefs issued

another letter to the Claimant informing the Claimant of the corporate

exercise evolved a partnership of shareholders in the Company. On
23 July 2004, for the first time LSG Sky Chef informed the Claimant
that any announcement by the Company is no more applicable to the
Claimant. The Claimant contends that by this letter the Claimant was
no more an employee of the Company but instead an employee of
LSG Sky Chef.
Implication if there is a change in the ownership
of the business
It is not disputed that from 1 December 2003, there was
change in the ownership of MAS Catering when LSG Sky Chefs bought
over 70% of the Company's share in MAS Catering.

Therefore, the

issue is the rights of employees when there is a change in the

ownership of the business.
In the case of Barat Estates Sdn. Bhd. & Anor v Parawakan
Subramaniam & Ors [2000] 3 CLJ 625, the Court of Appeal held
that when a change in the ownership of the business occurs, the
selling employer must give the employees appropriate notice. The
object of the notice is to enable the employees concerned to exercise
their right to make a choice that they are entitled in law to make.
Failure to give an employee the required notice will deprive the
employee of their right to make a choice.
The Court of Appeal went on to state that when an employer
sells off his business to another, he must give his employee the right
to make a choice as to the course, which they wish to adopt.
Compelling an employee to work for a particular employer without

12

giving him a choice in the matter is merely one form of forced labour
which is prohibited by Article 6(2) of the Federal Constitution.
Gopal Sri Ram JCA states in Barat Estates case at pages 635
and 636 as follows;

When viewed in its proper context, the result intended by the Act in
the provisions now under consideration is entirely in keeping with the
constitutional rights of an employee. One begins with the premise
that every employee has a right to choose his employer. And
no person may dictate to another that he shall be the
employee of the former. When an employer sells off his
business to another, he must give his employees the right to
make a choice as to the course he or she wishes to adopt. The
employee may, because of an existing relationship, wish to be
employed by the former employer in some other business that such
employer may have. Or he may wish to seek employment elsewhere
altogether. Or he may wish to remain in the same business under a
fresh contract with the acquirer of

the business. The giving of

notice by the former employer upon the sale of a business thus

enables the employee to exercise his right to the choice that he is
entitled to make. A failure to give notice deprives the employee of
this right to make a choice.
[Emphasis Added]

At page 636, Gopal Sri Ram JCA further states as follows;

Of course -, art. 6(2) prohibits forced labour. That much is clear on a

reading of its plain words. However, upon closer examination it does
more than that.

When the principles of construction established by

our courts are applied to the article, it reveals a further meaning. By

its spirit and intendment it vest in an employee the right to be
employed by an employer of his choice. That is bec compelling
an employee to work for a particular employer, without
affording him a choice in the matter, is merely one form of
forced labour.
[Emphasis Added]

13

Barat Estates case stated above was followed by the Industrial

Court in the case of Kelab Gymkhana Miri v Lim Ngiang Wei &
Ors [2000] 3 ILR 409. In this case, the Company contended that the
Claimants were never dismissed by the Company but instead
provided with employment with the contractor. The Company were of
the view that the Claimants were rolled over into the employment
of the contractor when the housekeeping services of the Company
were contracted out to the contractor.

The Company position

appears to be that there was no termination of the Claimants' service

as they continued to be employed by the contractor.
The Learned Chairman, Lim Heng Seng in rejecting the
Company's contention states as follows;

The above understanding that employees can be rolled over from

the employment of one employer into that of another employer is
premised on the same ground as the contention that a transfer of
the business or a part thereof of a business entity by a vendor
involves also the transfer of employees engaged in the said business
to the purchaser. Such contentions have never found favour with
industrial tribunals and even courts administering the common law.
Employees are not chattels to be sold, transferred or rolled
over. They have the right to choose their employers.
[Emphasis Added]

Further, he states as follows;

It is clear from the foregoing that in the absence of the

agreement of an employee, any attempt by his employer to
transfer him into the employment of a third party by
effecting a change in the ownership of the business is
ineffective in law.

Such a transaction acts as a unilateral

termination of the employment of the employees with the old

owners of the business.

The matter is stated succinctly in the

14

case of Premier Motors v Total Oil [1984] 1 ELR 377, wherein

referring to the position prior to the Transfer of Undertakings
(Protection of Employment) Regulations 1981 Browne-Wilkinson J
held:

Under the old law, if an employer, A, transferred his

business to another, B, the employees' contract of
employment with A undoubtedly came to an end.

It must also follow that where statutory law or

contractual provisions provide for the giving of
notice of termination of employment, the said
obligation must be complied with.
[Emphasis Added]

Although both of these cases quoted above are in relation to

the provisions of the Employment Act 1955 which is only applicable to
an employee whose wages do not exceed one thousand five hundred
ringgit a month (now RM2000.00 vide PU(A) 88/2012), this Court is
of the view that the principle of law propounded by Barat Estates are
equally applicable to all employees.

Barat Estates propounded the

law that an employee has the Constitutional right to choose the

employer and the employee cannot be transferred at the whim of his
employer by a stroke of a pen in an agreement to which the
employee is not a party.

It is a fundamental principle that an

employee cannot be compelled by his employer to continue his

employment with another employer. He must be given notice so that
the employee can make a choice.
The above proposition of law was further elaborated by the
recent Federal Court division in the case of Affin Bank Berhad v
Mohd. Kassim @ Kamal Bin Ibrahim [Rayuan Sivil No. 02(i)-362011(w)]. Abdul Hamid Embong FCJ states as follows at page 26 of
the Judgment;

15

Now, since the Respondent is a non-EA employee, and

since there are no statutory provisions governing the
position of a non EA employee, it is thus possible for the
parties to regulate their relationship by entering into a new
contract.

With the former employment contract with Affin-ACF

now at an end, the Appellant was at liberty to offer him a

employment

contract, albeit on less favourable terms.

fresh
The

Appellant in our opinion, is not obliged to offer the Respondent

continuous employment on the same terms and conditions he
previously enjoyed with Affin-ACF, the transferor company.
There is no statute law in Malaysia governing employment
contracts

in

merger.

We

agree

that

the

Respondent's

employment cannot be transferred to the Appellant; his former

contract of employment with the transferor company comes to an
end. And the court or anyone else has no power to transfer
any person against his will from the service of one person
to another, because one has the right to choose for himself
whom one should serve.
[Emphasis Added]

In the case of Radha Raju v Dunlop Estates Bhd. [1996] 1

CLJ 755, it was held that when there is a change of ownership of a
particular business or part of that business, it is a duty of the
employer to issue a notice to the employee to enable them to make a
choice. Failure to do so would meant that a fact of termination had
occurred.
Shaik Daud JCA states at page 772 as follows;

It is my view that the object of this subsection is to protect the

employee in case of change of ownership of a particular business or
part of that business. It is to provide security in his employment.
If no notice is required to be given then I feel that his position as
employee will be neither here nor there.

There ought to be a

termination under one employer and if necessary the beginning of

one under the new employer. Otherwise as in the present case if

16

anything were to happen to an employee say on September, 3

1990

it

is

debatable

under

whose

employment

would

be

considered.
Secondly I would think that such a notice would be
necessary in order to give the employee an alternative as he
may not wish to be employed by the new employer.
Therefore it is my view that the subsection is to safeguard
the employee's position.
The crucial issue to be determined in the circumstances of
the present case is whether there is a termination of service
of the appellants when Dunlop sold the estate to IOIDynamic.

In the light of the clear admission that the

appellants ceased to be employed by Dunlop after August

31, 1990, I for my part would agree with the submission by
learned counsel for the appellants that a fact of termination
had occurred and once this happens, the provisions of s
12(3)(f) must be operative and Dunlop is duty bound by law
to issue notice of termination with effect from September 1,
1990.
[Emphasis Added]

The Court of Appeal in the case of Barat Estates was of

complete agreement with the above statement of Shaik Daud and
further states that it is not only the common law result of statutory
interpretation: it is common sense as well'.
For the reasons set out above, the Court finds that in the
circumstances of the present case, there was a termination of service
of the Claimant when the Company sold their shares to LSG.

The

Company has failed to issue a notice to the Claimant when it sold

70% of its shares to LSG. The Court therefore held that the Company
had dismissed the Claimant without just cause or excuse from the
date he became aware of the change of the ownership of MAS
Catering i.e. 23 July 2004.

17

Remedy
As this Court now holds that the dismissal of the Claimant was
without just cause or excuse, the next issue to be considered is what
the remedies available are.
The Claimant has prayed for his reinstatement to his former
position in the Company. COW-1, Muhammad Fauzi Mahayuddin, the
Senior Manager, Employee Relations of the Company testified that
currently the Company does not have a catering department. Since
23 September 1994, the Company's catering department was
incorporated and all catering functions of the Company were carried
out by MAS Catering Sdn. Bhd.
The Claimant was dismissed by the Company on 23 July 2004
whereby 8 years has lapsed since then.
Having considered the evidence adduced by the parties and
since 8 years has passed since the Claimant's termination and the
Claimant's former department in the Company is no more in
existence, the relief of reinstatement will not be beneficial to both
parties.

This Court finds that a monetary award will be more

appropriate in the circumstances of this case.

In the case of Koperasi Serbaguna Sanya Bhd. (Sabah) v
Dr. James Alfred & Anor [2000] 3 CLJ 758, the Court of Appeal
held at page 766 as follows;

18

In industrial law, the usual remedy for unjustified dismissal is an

order of reinstatement. It is only in rare cases that reinstatement is
refused. For example, as here, where the relationship between
the parties had broken down so badly that it would not be
conducive to industrial harmony to return the workman to his
place of work. In such a case, the Industrial Court may award
monetary compensation. Such and award is usually in two parts.
First, there is usual award for the arrears of wages, or back wages,
as it is sometimes called. It is to compensate the workman for the
period that he has been unemployed because of the unjustified act of
dismissal.

Second, there is an award of compensation in lieu of

reinstatement.

However in the instant case, the court is of the view that such
order of reinstatement is not conducive to industrial harmony
and in any event the Claimant is currently gainfully employed
elsewhere.
[Emphasis added]

The Claimant commenced employment with the Company as a

Cabin worker on 2 February 1990 and was terminated from
employment on 23 July 2004. He had worked with the Company for
a period of 14 years and 5 months. His last drawn salary with the
Company was RM2,872.85 per month.
For the post dismissal earning, it is not disputed that the
Claimant

is

gainfully employed with

LSG

since

his

dismissal.

Therefore, the Claimant is not entitled to backwages because

to

allow him to do so would result in double advantage and excessive

gains. The Federal Court in Dr. James Alfred case (supra) ruled
that, in assessing and awarding backwages, the Industrial Court
ought to take into account the fact that the workman had been
gainfully employed elsewhere after his dismissal.

The Court was of

the view that, in equity and good conscience, it makes perfect sense
to take into account the sum of money earned by the workman
during the period for which he is held to be entitled to receive his
19

backwages from his employer.

The workman ought not to be

enriched by retaining the wages he earned when he stood dismissed.

Taking into consideration all factors in this case as stated
above, the Court hereby makes the following orders.
Compensation In Lieu of Reinstatement, i.e. one month's salary
for every completed year of service;
RM2,872.85 x 14 years
=

RM40,219.90.

The sum of RM40,219.90 less statutory deductions (if any)

are to be paid by the Company to the Claimant through the
Claimant's solicitor's Messrs Ramakrishnan & Associates within
30 days from the date of service of this Award.

HANDED DOWN AND DATED 07 FEBRUARY 2013.

( GULAM MUHIADDEEN BIN ABDUL AZIZ )

CHAIRMAN
INDUSTRIAL COURT
KUALA LUMPUR

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