INDUSTRIAL COURT OF MALAYSIA
CASE NO: 26/4-730/06
MARIANA BINTI HASSAN
V.
BRITISH AMERICAN TOBACCO (MALAYSIA) BERHAD
AWARD NO: 781 OF 2008
Before : Y.A. RAJENDRAN NAYAGAM
CHAIRMAN (Sitting Alone)
Venue : Industrial Court Malaysia, Kuala Lumpur
Date of Reference : 22
nd
February 2006
Dates of Mention : 11
th
May 2006, 25
th
May 2006
22
nd
June 2006, 27
th
July 2006
17
th
August 2006, 20
th
September 2007
Dates of Hearing : 25
th
June 2007, 26
th
June 2007
22
nd
February 2008
Representation : Mr David Peter of Messrs Jerald Gomez
& Associates for the Claimant
Ms S Suganthi of Messrs Shearn Delamore
& Co for the Company
1
AWARD
This is a Ministerial reference to the Industrial Court under section 20(3) of the
Industrial Relations Act 1967 made on 22
nd
February 2006 for an award in
respect of the dismissal of Mariana binti Hassan (“the Claimant”) by British
American Tobacco (Malaysia) Berhad (“the Company”).
2. Introduction
The Claimant commenced employment with the Company on 1
st
April 1990 as a
Data Entry Operator. The Claimant was attached to the Helpdesk services. In
2001, the Company decided to outsource its Helpdesk services and as such
offered a Voluntary Separation Scheme (VSS) to her. On 22
nd
February 2001,
the Employee Relations Manager, Amran Che Ros (COW1) called the Claimant
to the IT meeting room. In the room, she was given three documents namely
the Voluntary Separation Scheme, Employment Separation Scheme and a 3
months job contract. She was informed that her job at the Helpdesk was made
redundant. She was advised to resign her job by accepting the VSS offer and
that if she refused to do so, she would be terminated with no compensation and
would not be given an offer to work for another (3) months. She said that due to
the pressure applied by the Company, she opted for the VSS.
The Company, on the other hand, contended that in early 2001, pursuant to a
restructuring exercise, it had decided to outsource the Helpdesk services.
Accordingly, all the employees employed in the Helpdesk functions including the
2
Claimant became surplus to the Company’s operational requirement. As such,
the Company offered a Voluntary Separation Scheme to all the employees in the
Helpdesk, including the Claimant, who was holding the position of Helpdesk
operator. The Company contended that the Claimant accepted the VSS on 22
nd
February 2001 and as such her employment was mutually brought to an end.
Hence, where as in the instant case, the Company denies that the workman had
been dismissed and alleges that it was the workman who had voluntarily
resigned by accepting of the VSS, then the Industrial Court has the duty to
decide first of all as a preliminary issue whether there was a dismissal. Once it
has been established that there was a dismissal, then the Court has to decide
whether or not the Company had just cause or excuse for dismissing the
workman.
3. Whether there was a dismissal?
In the instant case, the issue is whether there was a mutual termination of
employment by the parties. The collateral issue that arises for decision is
whether the Claimant had voluntarily agreed to the said mutual termination. If
the Court finds that the termination of employment had been mutually and freely
agreed upon between the parties, then this will be the end of the matter. But if
the Court finds otherwise, then it cannot in equity and good conscience give
effect to a purported mutual agreement which was not genuinely consensual.
Further, where the Court finds that the employee’s volitional capacity had been
3
impaired at the time of executing the agreement, there can be no genuine
consensus. The onus is on the Claimant to establish by cogent evidence that
she accepted the VSS under duress. Mere allegations and insinuations are not
enough.
As regards the issue of termination, on 22
nd
February 2001 the Claimant was
directed to the IT meeting room, where she signed the VSS (CLE5), which
brought her employment to an end on 28
th
February 2001. By a letter dated 22
nd
February 2001, (CLE5), the Company informed the Claimant that due to the
restructuring of the Company’s IT Department, the Claimant had become surplus
to the Company’s operational requirement. As such, the Claimant was given an
opportunity to opt for the VSS scheme. She was also informed that if she
