IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO : 21/4-2835/21

BETWEEN

RAJAINDRAN A/L MOORTHI

AND

BERJAYA TIMES SQUARE MANAGEMENT CORPORATION

AWARD NO : 2213 OF 2023

Before : SYED NOH BIN SAID NAZIR @ SYED NADZIR

CHAIRMAN

Venue : Industrial Court Malaysia, Kuala Lumpur

Date Of Reference : 06.09.2021.

Dates Of Mention : 09.12.2021 & 09.06.2023.

Dates Of Hearing : 12.01.2023 & 19.04.2023.

Representation : Nur Azimul Azami bin Mohamad Nor

Together with him Lim Yoi Ping

from Messrs The Chambers of Azimul Azami

Counsel for the Claimant

Anson Chee Weng Kian

Together with him Chang Jin Yee

from Messrs Cheang & Ariff

Counsel for the Company

1
REFERENCE

[1] This is a reference made by the Director General of Industrial Relations,

Malaysia under section 20(3) of the Industrial Relations Act 1967 (“ the Act”)
arising out of the dismissal of Rajaindran A/L Moorthi (hereinafter referred to
as “the Claimant”) by Berjaya Times Square Management Corporation
(hereinafter referred to as “the Company”) on 21.05.2021.

Introduction

[2] At the outset, this court is moved by the company to dismiss the Claimant’s

claim, on the ground that the Claimant had not commenced his employment

with the company; notwithstanding the fact that a letter of offer dated

14.04.2021 had been issued to the claimant and counter signed by him on

14.04.2021. It is undisputed that by virtue of the said letter of offer, the claimant

would have been required to report for duty on 08.06.2021. Nevertheless, since

the letter of offer had been revoked by the company on 07.05.2021, there had

been no employment just yet. It is argued therefore that the claimant could

never have been dismissed and/or terminated. Most importantly, it is further

argued by the company that the Claimant is not a workman as defined under

the Industrial Relations Act 1967 (IRA) that renders this case a nullity.

2
Procedural History

[3] The trial for this case took place on 12.01.2023 and 19.04.2023. Two (2)

witnesses were called and examined, namely Mr Rajaindran A/L Moorthi i.e the

Claimant himself (‘Claimant’) and Ms Lee Fu Chyun for the company ('Ms Lee’).

[4] The documents filed by the parties in the course of these proceedings and its

respective markings are as set out below:

Cause papers & Markings

Claimant’s Bundle of Documents - CLB1

Respondent’s Bundle of Documents - COB1

Claimant’s Witness Statement - CLWS1

Respondent’s Witness Statement - COWS1

FACTUAL MATRIX

[5] The company manages the Berjaya Times Square shopping mall complex

('BTS Mall’). The Claimant was previously employed as a security manager with

OSK Realty Sdn Bhd (‘OSK’) since 02.05.2018. Vide a letter dated 14.04.2021,

the company offered the Claimant a post as a senior security manager in the

company with a basic salary of RM8,500 per month (See: Letter of Offer of

14.4.2021 (‘LO’) at Tab A, COB1). On 14.04.2021, the Claimant had accepted

3
 the LO and agreed to commence his employment with the company on

08.06.2021 (‘Claimant’s Commencement Date’).

[6] The aforesaid events came about at the period of time when the nation was

struggling to recover from the repercussions due to Covid 19 Pandemic. It is

undisputed that sometime in January 2020, Covid-19 pandemic has plagued

nations around the world. In Malaysia, stringent lockdown measures to contain

the pandemic were implemented, amongst others, Movement Control Order

(‘MCO’) proclaimed on 08.03.2020. This has severely impacted businesses

across various sectors, BTS Mall is no exception. Ms Lee had explained the

effect of the Covid-19 pandemic and/or MCO to BTS Mall as follows:

Ms Lee’s witness statement

Q7 What happened after the Claimant had accepted the Letter

of Offer?
A At the material time, BTS Mall was trying to cope with the
lockdown measures arising from the Movement Control Order
('MCO’), which was implemented by the Government of
Malaysia, in order to combat the widespread Covid-19
pandemic.
Sometime in May 2021, and after the Claimant had signed the
Letter of Offer, the Government of Malaysia had
reimplemented the \MCO effective from 7.5.2021. The
reimplementation of the MCO had adversely impacted the
operation of shopping malls throughout Malaysia, including
the BTS Mall.

• Refer to Tab C of RBOD - The Star news article dated

4
 5.5.2021
• Refer to Tab D of RBOD - The Straits Times news
article dated 5.5.2021
• Refer to Tab E of RBOD - The Straits Times news
article dated 6.6.2021

Following the above, and in order for the BTS Mall to cope
with the adverse impacts caused by the MCO, the
Respondent had to undertake a major restructuring amongst
others, by suspending all recruitment activities
(‘Management’s Decision’).

It was the Respondent’s decision to reduce excessive

manpower and to suspend any recruitments activities until the
Respondent and/or the BTS Mall could recover from the
impact of MCO measures.

[7] Following the reintroduction of the MCO at the material time, it was decided that

the company to undertake a major restructuring to reduce excessive manpower

wherein all recruitment plans by the company and/or BTS Mall were

suspended. As a result, the company was unable to offer the position as stated

in the LO to the Claimant. In her explanation, Ms. Lee testifies that “Following

the Management’s Decision, the Respondent had revoked the offer of

employment made to the Claimant, vide the letter of revocation dated

21.5.2021 (‘Letter of Revocation’).” (‘Revocation Letter’) (see: Tab B p.21

of COB 1).

5
[8] Of pertinent to note is that the revocation of the LO was done before Claimant’s

intended commencement date with the company. This was conceded by the

Claimant during Cross examination as follows:

ACWK Agree that you have earlier testified that your

employment with the Respondent would commence on
08/06/2021?

RM Yes.

ACWK Ok. Do you agree that your offer of employment was

revoked before the 08/06/2021?

RM Yes.

NOP p. 32

[9] Further, and following the revocation of the LO, the Respondent has paid a one-

month compensation of RM8,500 to the Claimant on a goodwill basis

(‘Compensation’) (See: Tab F p.32 of COB1). Despite having received

Compensation from the company, the Claimant attempted to seek for more

compensation from the company by demanding for a 12-month compensation

(see: Tab G p.34 of COB1), which the company had refused as the Claimant

had been compensated.

[10] Along with the claimant’s revocation of the LO, the company had also revoked

2 other letters of offer due to the company’s restructuring policy:

6
 Ms Lee’s witness statement

Q15 Besides the Claimant, can you inform the Court if the
Respondent had revoked any other employment offers?

A Yes. Besides the Claimant, the Respondent had revoked two

other offers of employment.

[11] Following the withdrawal of the employment offer to the Claimant on 24.5.2021,

the Claimant informed his intention to withdraw his resignation, as the Claimant

wanted to continue his employment with OSK. This was refused by OSK

(‘Withdrawal of Resignation’). (see: p.28 of CLB1). Subsequent to OSK’s

refusal to accept the Claimant’s Withdrawal of Resignation, the Claimant has

filed a representation pursuant to s 20 of IRA whereby the Claimant alleged that

the company had dismissed the Claimant on 21.5.2021, when the Respondent

revoked the LO. The Claimant testified as follows:

ACWK Alright. Do you agree with me that your last day with
OSK would be 04/06/2021?

RM 4th June. 4th of June, yes.

ACWK Yes. And can you, sorry. So I will just retract that
question. So, after referring to Tab 7, document at Tab
7, do you agree that you have attempted to retract
your resignation with OSK?
RM Yes, I withdrew.

7
ACWK Sorry?

RM Withdraw.

ACWK Do you agree that you have attempted to withdraw

your resignation?

RM Yes, I agree.

ACWK You agree. Do you agree that you have filed this
proceeding against Berjaya Times Square because
OSK Realty declined your request to withdraw your
resignation?

RM I don’t get it.

ACWK Mr Rajaindran, do you agree that you have filed this

proceeding, the one that we are currently at?

RM Ok.

ACWK Because OSK Realty declined your request to

withdraw the resignation?

RM Yes.

ACWK You agree?

RM Yes.
ACWK And do you agree with me that you have never
been the employee of the Company at any point in
time?

8
 RM Never been the employee?

ACWK Yes.

RM Where, is it OSK or Berjaya?

ACWK Berjaya, by the fact that, because you have yet to

commence your employment with the Company?

RM Yes. (Emphasis added)

NOP p.46 and 47

Company’s Submission

[12] The company’s bone of submission is that this Court ought to dismiss the

Claimant’s claim, as the Claimant had not commenced its employment with the

Respondent. Thus, the company could not have dismissed and/or terminated

the Claimant on 21.5.2021 as represented by the Claimant. The Claimant has

never been a workman of the company as defined under the IRA. This

disentitles the Claimant from making a representation pursuant to s 20 of IRA.

Claimant’s Submission

[13] This court is urged to consider the pertinent fact in the present case that there

was an offer of employment made by the Company to the Claimant which is not

9
 disputed by the company. The document signed by both parties on 14.4.2021

legally and equitably creates a binding relationship between an employer and

employee notwithstanding the fact that the Claimant was only due to start his

employment on the 7.6.2021.

[14] It is submitted that the Company had in its conduct, recognized that the

Claimant was an employee of the Company. The conduct of the company are

highlighted as follows:

i. The company issued an offer of employment to the Claimant on

the 14th April 2021.
ii. The company signed the letter of offer of employment on the 14th
April 2021.
iii. The company requested that the Claimant to start employment
earlier although knowing that the Claimant will not be able to
serve his 3 months notice to OSK Realty Sdn Bhd.
iv. On 14.4.2021 the company then issued a compensation cheque
of one month salary pay off to OSK Realty Sdn Bhd and asked
the Claimant to collect the cheque.
v. The company admitted that the cheque was signed by the Head
of Finance and was dated 11.5.2021 although the MCO had
already started on the 7.5.2021.
vi. The company re-offered to employ the Claimant somewhere in
December 2022 only after the Claimant made a claim against the
Company in the Industrial Court.

[15] Based on the above conduct by the company, the claimant submits that the

company had treated him as its workman and that the company acted unfairly

10
 and in breach of natural justice when they revoked his employment with the

company. The claimant pleads an award in his favour.

ISSUES

[16] The issues for determination in this case is whether there is dismissal of the

claimant by the company; and if so, whether the dismissal was with just cause

or excuse.

Findings of this court

[17] The Claimant’s claim was filed pursuant to s 20 of the IRA which reads as

follows:

Representations on dismissals

20. (1) Where a workman, irrespective of whether he is a member of

a trade union of workmen or otherwise, considers that he has been
dismissed without just cause or excuse by his employer, he may
make representations in writing to the Director General to be
reinstated in his former employment; the representations may be
filed at the office of the Director General nearest to the place of
employment from which the workman was dismissed.

11
[18] Section 2 of IRA defined “workman” as follows:

“workman” means any person, including an apprentice, employed

by an employer under a contract of employment to work for hire or
reward and for the purposes of any proceedings in relation to a
trade dispute includes any such person who has been dismissed,
discharged or retrenched in connection with or as a consequence
of that dispute or whose dismissal, discharge or retrenchment has
led to that dispute.

[19] In Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 MLJ 92,

Tun Salleh Abas LP held at p. 95 that when dealing with a reference under

s 20 of IRA, the first thing that the Court will have to consider is whether

there was a dismissal, if yes, whether the dismissal was done with just

cause or excuse.

[20] Further, in Weltex Knitware Industries Sdn Bhd v. Law Kar Toy [1988] 7

MLJ 359 His Lordship Abdul Kadir Sulaiman J held at p. 363 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

12
 with just cause or excuse would not at all arise.”
(Emphasis added)

[21] Wong Chee Hong and Weltex Knitware were adopted and followed in the

case of Borneo Pulp & Paper Sdn Bhd v Rajan Chellaiah [2002] 2 MELR

637 wherein learned Chairman Amelia Tee Hong Geok Abdullah [as she then

was] held at p. 637 as follows:

“Preliminary Issues

At the outset of the case, the question arose as to who should begin the
case. The claimant's case is that he was dismissed by the company. The
company, on the other hand, contends that there was no dismissal, and
as such the claimant should start the case. The court relied on the case
of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd [1987] 1 MELR
32; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 as cited by learned counsel
for the company where YAA Salleh Abas, LP had this to say at p. 49 (at
p. 302):

When the Industrial Court is dealing with a reference under

section 20, the first thing that the court will have to do is to ask
itself a question whether there was a dismissal, and if so, whether
it was with or without just cause or excuse.

And at pp. 50, 51 (p. 303):

The next question is this. Is the dismissal with just cause or

excuse? Since the appellant has succeeded in showing that he
was dismissed, it is for the respondent company to show that the
dismissal was with just cause and excuse.

13
[22] It is clear that under s 20 of IRA, a representation on dismissal could only be

sought by a workman as defined in s 2 of IRA and/or former employee of a

company. This court is guided by the following authorities:

a) In Borneo Pulp, the Court was called upon to determine whether the
claimant was a workman, as the claimant had never commenced his
employment with the company. The Court therein found that the
claimant was not a workman as the letter of offer for employment was
terminated before the claimant commences his employment with the
company:

In the instant case the court is satisfied from the evidence

adduced that when the claimant accepted the company's offer of
employment, there was in existence a contract of employment
between the parties. However the contract clearly stated that the
"starting date" is 1 March 1997. The starting date can only refer
to the date for claimant's commencement of employment with the
company.

As such on 18 February 1997 when claimant was informed via

telephone that the company was no longer offering him a position
with the company, followed with a faximile as well as a letter
confirming the said decision, the court notes that the claimant
had, at that point in time, yet to commence employment with the
company.

Can a person in such circumstances be considered an

employee? More specifically, can the claimant who has confirmed
that he had never worked as a forestry area manager for the
company even for one minute be said to be a workman employed
by the company?

After full consideration, the court finds that although these exists
a contract of employment between the parties, the claimant in this

14
 case cannot be considered to be a workman within the context of
s. 20(1) of the Industrial Relations Act 1967. Had he commenced
work on 1 March 1997 as per the letter of offer he would have
been a workman. Since the contract was terminated on 19
February 1997 before he could commence employment, the
company was at best only a prospective employer of the
claimant. My finding on this is reinforced by the fact that if
claimant had been held to be a workman even before he
commenced employment, it would lead to a ludicrous and
unacceptable situation where claimant would have been
entitled to reinstatement if the dismissal was held to be
without just cause or excuse. Reinstatement means to
restore or replace in a lost position. According to The
Concise Oxford Dictionary (6th Edition), the claimant cannot
conceivably be reinstated to a position that he has not held
for even a day.

In conclusion, the court is satisfied and finds that whilst a

contract of employment had existed between the parties, the
company had expressed an intention not to honour that
contract. Since the termination of the contract on 19
February 1997 was before the stated date of commencement
of employment, i.e. 1 March 1997, the claimant is not a
workman within the contract of s. 20(1) of the Industrial
Relations Act, 1967. (Emphasis added)

b) In Elizabeth Voo Sook Ling v. Kuala Lumpur City Securities Sdn

Bhd [2003] 2 ILR 570, learned Chairman Susila Sithaparam held at
p. 576-577 as follows:

The court held that the contract of employment was made on 13

April 2000 when the claimant accepted the terms of CL5 and

15
returned it to the company. The claimant may have a remedy for
breach of contract in a Civil Court. In the Industrial Court, in order
for the claimant to succeed, the claimant must have been
employed by the company. The claimant had not commenced
employment with the company.

The terms “workman” and “contract of employment” are defined

in s. 2, Industrial Relations Act 1967 as follows:

workman’ means any person, including an

apprentice, employed by an employer under a
contract of employment to work for hire or reward
and for the purposes of any proceedings in relation
to a trade dispute includes any such person who
has been dismissed, discharged or retrenched in
connection with or as a consequence of that dispute
or whose dismissal, discharge or retrenchment has
led to that dispute.

contract of employment’ means any agreement,

whether oral or in writing and whether express or
implied, whereby one person agrees to employ
another as a workman and that other agrees to
serve his employer as a workman.

Section 20(1), Industrial Relations Act 1967 provides the

procedure for making a complaint to the Director General of
Industrial Relations. It refers to the claimant’s “former
employment”. It reads:

(1) Where a workman, irrespective of whether he is a

member of a trade union of workmen or otherwise,
considers that he has been dismissed without just

16
 cause or excuse by his employer, he may make
representations in writing to the Director General to
be reinstated in his former employment; the
representations may be filed at the office of the
Director General nearest to the place of
employment from which the workman was
dismissed.

The court held that the burden of proof was on the claimant
to prove that she was employed by the company. The
claimant did not prove that she was a workman of the
company. The court relied on Weltex Knitware Industries
Sdn Bhd v Law Kar Toy & Anor [2] [1998] 7 MLJ 359 where
the High Court held that the burden of proof was on the
claimant to prove that she was dismissed by the company.
In the circumstances, the claim was dismissed. (Emphasis
added)

[23] The narrative in the instant case before this court is similar. The Claimant had

not commenced his employment with the Respondent. This is because the LO

had been withdrawn before the Claimant’s Commencement Date. For ease of

reference, the salient dates are set out below:

i. Commencement date 08.06.2021

ii. Revocation date 21.05.2021

[24] Hence, the Claimant was never a workman of the Respondent under the IRA

and/or an employee of the Respondent at all material time. The claimant’s

contention that he had been dismissed and/or terminated by the company

17
 on 21.05.2021 is a misdirection and erroneous.

[25] It is pertinent to note that as at 21.5.2021, the Claimant was still under the

employment of OSK. In fact, the Claimant pleads in the Statement of Case that

he was employed by OSK up to 4.6.2021 [refer:. Paragraph 3 of the SOC as

follows: “The Claimant was previously employed with a company called OSK

Realty Sdn Bhd from 2nd May 2018 until 14th to 4th June 2021 (Last Working

Day) in the position of a security manager with a last drawn monthly salary of

RM 8120.00.”]

[26] The claimant’s confirmation as to his employment under OSK had been

unequivocal. This can be seen in his evidence during cross examination as

follows:

ACWK: Can I draw your attention to Tab G of the Respondent’s

bundle of documents? Can you explain to the Court what
is this document?

RM : Ok. This letter I sent to OSK for request for compensation.

ACWK: Sorry, you sent to who?

RM : OSK. Sorry, Berjaya Times Square.

ACWK: Ok. Request for compensation.

RM : Yes.

ACWK: Can I draw your attention to paragraph A of your letter, and

can you please read it out to the Court?

18
 RM : “I have tendered my resignation on the 14/04/2021. My

last day working will be 04/06/2021.”

ACWK: Do you agree with me, Mr Rajaindran, that by virtue of

your letter, you have stated that your last day of work
with OSK is on 04/06/2021.

RM : Yes, agree.

ACWK: Do you agree that as at 21/05/2021, you were still an

employee of OSK?

RM : Yes. I already tendered my resignation. So I still under

employee.

ACWK: Do you agree with me that as at 21/05/2021, you were

an employee of OSK Realty Sdn Bhd. Do you agree
with me?

RM : Yes, agree.

ACWK: Thank you. Do you also agree with me, Mr Rajaindran,

that on 21/05/2021, you had not commenced your
employment with the Respondent?

RM : Yes, agree. (Emphasis added) NOP p.32&33, 26 The

letter from OSK to the Claimant dated 28.4.2021 at p.22

of CLB1.

[27] Based on the claimant’s pleading and evidence as above, it is clear that the

Claimant was still employed by OSK and cannot be said to have commenced

his employment with the company on the day he claims to have been

terminated by the company on 21.05.2021. The issue of termination had never

arise at all since the Claimant was never a workman of the company on

19
 21.05.2021 or on any date for that matter. [Weltex Knitware Industries Sdn

Bhd v. Law Kar Toy, supra]

[28] Since the Claimant was never the company’s employee, the issue of whether

there is dismissal by the company must be answered in the negative. As such,

there is no duty whatsoever on the company to establish dismissal with just

cause or excuse. [Wong Chee Hong v Cathay Organisation (M) Sdn Bhd

[1988] 1 MLJ 92, supra]. It necessarily follows that the entailing issues of

reinstatement or compensation in lieu thereof; and backwages, in any

eventuality of dismissal without just cause or excuse, are purely stillbirth.

Whether the revocation of the Letter of Offer justified

[29] The revocation of the LO was done bona fide due to the restructuring exercise

by the company resulting from the reimplementation of MCO. It is on evidence

as testified by the company’s witness Ms. Lee that the company had decided

to undertake a major restructuring to reduce excessive manpower wherein all

recruitment plans by the company and/or BTS Mall were suspended. As a

result, the company was unable to offer the position as stated in the LO to the

Claimant. In her explanation, Ms. Lee testifies that “Following the

Management’s Decision, the Respondent had revoked the offer of

employment made to the Claimant, vide the letter of revocation dated

21.5.2021 (‘Letter of Revocation’).” (see: Tab B p.21 of COB1). It is to be

20
observed that the company’s explanation on the restructuring exercise was not

challenged by the claimant. On the contrary, the claimant had agreed to the

necessity of such exercise undertaken by the company. The claimant confirmed

during cross examination as follows:

ACWK Do you agree with me, Mr Rajaindran, that Malaysia was

in a lockdown from March to May 2020?

RM Yes, agree.

ACWK Do you also agree with me, Mr Rajaindran, that Malaysia

was in lockdown from mid-January to mid-February 2021
based on that paragraph?

RM Yes, agree.

ACWK And based on the articles that you have read at Tab C and
Tab D earlier. Do you agree that KL was placed again
under MCO in May 2021?

RM Yes, sir.

ACWK You agree?

RM Agree.

ACWK Mr Rajaindran, I put it to you that many businesses and

sectors were affected by the implementation of MCO at
the material time. Do you agree?

RM Agree.

ACWK Do you also agree with me that many businesses,

particularly shopping malls in Malaysia, were affected as
a result of various restrictions and MCO implemented by
the government of Malaysia?

RM Agree.

21
 ACWK Do you agree with me that the Respondent runs one of the
shopping malls in Kuala Lumpur?

RM Agree.

ACWK Can you inform the Court what is the shopping mall in
question?

RM Berjaya Times Square.

ACWK Do you agree with me, Mr Rajaindran, that Berjaya Times

Square was also affected by the implementation of MCO?

RM Yes, agree.

NOP. p.28 & 29

[30] The Claimant had further acknowledged that the company undertook a major

restructuring as a result of the reimplementation of MCO:

ACWK Do you agree with me that, Mr Rajaindran, that pursuant

to this letter at page 21, the offer of employment which I’ve
just referred to you at Tab A has been revoked. Do you
agree with me, Mr Rajaindran?

RM Yes.

ACWK Are you still at Tab B, Mr Rajaindran?

RM Yes.

ACWK Do you agree with me that due to the reimplementation of

the MCO, the Respondent had undertook a major
restructuring of its organisation?

22
 RM Agree.

NOP. P.31

[31] Based on the evidence by the claimant above, this court is satisfied that the

restructuring exercise undertaken by the company was never the claimant’s

bone of contention. The claimant; by his own testimony as can be seen above,

readily accepts and has no qualm about the restructuring exercise by the

company. It is this court’s considered views therefore that a bona fide

restructure of business by the company is prima facie established.

[32] On the authorities, the law of retrenchment and the role of Industrial Court is

trite that this court is not at liberty to interfere in the restructuring or

reorganization exercise by company provided such actions were done bona

fide. In William Jacks and Co (M) Bhd. v S. Balasingham [1997] 3 CLJ 235,

Gopal Sri Ram JCA (then FCJ) explained the term of “retrenchment” further

held the view that the Court does not interfere with the domestic affairs of the

company:

“… Retrenchment means: “the discharge of surplus labour or staff

by an employer for any reasons whatsoever otherwise than as a

punishment inflicted by way of disciplinary action.” (per S.K. Das J

in Hariprasad v Divelkar AIR [1957] SC 121 at p. 132). Whether the

retrenchment exercise in a particular case is bona fide or otherwise

is a question of fact and degree depending on the peculiar

23
 circumstances of the case. It is well settled that the employer is

entitled to organize his business in the manner he considers best.

So long as the managerial power is exercised bona fide, the

decision is immune from examination even by the Industrial Court.

However, the Industrial Court is empowered and indeed duty bound

to investigate the facts and circumstances of the case to determine

whether the exercise of power is in fact bona fide.”

[33] Upon careful consideration of the material facts in the instant case, this court

found that the restructuring exercise by the company [leading to the revocation

of the letter of offer issued to the claimant] was done bona fide, on the balance

of probabilities. Two other letters of offer were withdrawn by the company in the

same process. It is undisputed that due to the Covid-19 pandemic, the

government of Malaysia had implemented MCO since 18.3.2020, and had also

implemented various lockdown measures throughout 2020 and 2021. This has

severely affected the Respondent and/or BTS Mall. To combat the hardships

during difficult situation as such, the company undertook a major restructuring,

which includes suspension of all recruitments in good faith to ensure its

sustainability. These were clearly spelt out to the Claimant in the Revocation

Letter. Such a restructuring was justified, done in good faith and not for any

ulterior motive.

24
DECISION

[34] In the upshot, having considered the pleadings, facts of the case, evidences;

oral and documentary as well as the written submissions filed by both parties,

this court is of the views that as the claimant was never a workman for the

company, there is no dismissal of employment in this case. The company

cannot be burdened to answer whether any such dismissal was with just cause

or excuse. As such, the claimant’s case herein must be dismissed.

CONCLUSION

[35] This court had arrived at the above considered decision, having considered the

evidence as produced by both parties in totality, and bearing in mind the

provision in Section 30(5) of the Industrial Relation Act 1967 by which virtue

this Court shall act according to equity, good conscience and the substantial

merit of the case without regard to technicalities and legal form, and has no

hesitation to dismiss this action.

HANDED DOWN AND DATED 06TH NOVEMBER 2023

~signed~
(SYED NOH BIN SAID NAZIR @ SYED NADZIR)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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