2(12)/4-3121/18

INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 2(12)/4-3121/18

BETWEEN

KIRBA DAISY A/P JOHN DAS

AND

CITY-LINK EXPRESS (M) SDN. BHD.

AWARD NO.: 898 OF 2021

Before : Y.A. PUAN NOOR RUWENA BINTI DATO’

MOHD NURDIN – CHAIRMAN (Sitting Alone)

Venue : Industrial Court of Malaysia, Kuala Lumpur

Date of Reference : 22.11.2018

Dates of Mention : 22.01.2019; 25.02.2019; 25.03.2019; 16.05.2019;

02.08.2019; 27.11.2019; 14.07.2020; 29.09.2020; 18.12.2020

Dates of Hearing : 13.04.2021

Representation : Mr. Mohan Ramakrishnan

From Messrs Ramakrishnan & Associates
Counsel for the Claimant

: Mr. Vinu Kamalanathan with Ms. Sarah Tiong Wei Shin

From Messrs Vinu & Lopez
Counsels for the Company

Reference:

This is a reference made under subsection 20(3) of the Industrial Relations Act 1967
[Act 177] (“the 1967 Act”) arising out of the dismissal of Kirba Daisy A/P John Das
(hereinafter referred to as “the Claimant”) by City-Link Express (M) Sdn. Bhd
(hereinafter referred to as “the Company”) on 9 July 2008.

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AWARD

[1] The Ministerial reference in this case required the Court to hear and
determine the Claimant’s complaint of dismissal then by the Company on 9 July 2008
and was received by the Industrial Court on 17 June 2009. It was registered as Case
No. 11/4-254/09.

[2] As this was a constructive dismissal claim, the hearing at the first instance
commenced with the Claimant’s case on 6 May 2010 wherein two witnesses testified,
including the Claimant. The Company produced three witnesses in support of its
case. The hearing was completed on 15 December 2011. The last submissions was
in August 2012. The learned Chairman handed down Award No. 1406 of 2014 on 10
December 2014 (“the Award”), dismissing the Claimant’s claim.

[3] The Claimant applied for a judicial review to the High Court (Case No. WA-25-
54-03/2015) under Order 53 of the Rules of Court 2012 to quash the Award. The
learned High Court Judge agreed with the finding of guilt against the Claimant and
dismissed the application in the decision dated 4 October 2017.

[4] Aggrieved with the decision of the High Court, the Claimant then appealed to
the Court of Appeal (Appeal No. W-01(A)-13-01/2018). The appeal was heard on 22
November 2018 wherein the Court of Appeal unanimously allowed the appeal and
set aside the decision of the High Court. The case was ordered to be remitted to the
Industrial Court for assessment of damages for wrongful dismissal by the Company.
The appellate court viewed that reinstatement was unsuitable as there was already a
mutual loss of trust between the parties. The Company was also ordered to pay costs
of RM15,000 subject to allocator fee. The case was re-registered at the Industrial
Court on 12 December 2018 pursuant to the Court of Appeal order. Subsequently,
there was an application for leave to appeal to the Federal Court filed by the
Company but it was denied.

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[5] Therefore, the hearing of the present case for calculation of damages for
wrongful dismissal proceeded on 13 April 2021 and oral submissions were made by
both parties on the same day.

Facts of the case

[6] The facts of the case had been succinctly summarized by the Court of Appeal
in its judgment dated 11 July 2019. The brief facts are as per paragraphs 1 to 7 of the
Court of Appeal judgment which are reproduced below:

“Brief facts of the case

[1] Kirba Daisy A/P John Das (“the Applicant”) joined City-Link Express (M)
Sdn. Bhd (“the 1st Respondent”) on 5 February 1990 as a Credit Control
Executive. She was subsequently promoted to the position of General
Manager on 1 January 2001.

[2] During a restructuring exercise on 26 April 2007, the 1st Respondent re-
designated the Applicant to the position of General Manager of
Operations to support the Chief Executive Officer of the 1st
Respondent. A further restructuring exercise was undertaken by the 1st
Respondent on 21 January 2008 in relation to the Central Region and
the Logistics Department. The Applicant was asked to head these two
Departments, where one Mr. Steven Chong, the Senior Logistics
Manager at the 1st Respondent is to report to the Applicant.

[3] The working relations between the Applicant and Mr. Steven Chong
deteriorated and led to an alleged scuffle between them on 15 April
2008 in the corridor outside the Applicant’s office. As a result of the
scuffle, both of them were suspended on 3 June 2008. A domestic
inquiry was held jointly against both of them on 5 June 2008 and 6 June
2008 on three charges.

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[4] Both were found guilty of conducting themselves improperly, unruly and
disrespectfully in the discharge of their duties thus showing a bad
example of managerial leadership in their subordinates. That was the
subject-matter of the First Charge. Both were demoted. The Applicant
was demoted to Senior Manager of the Investigation and Security
Department while Mr. Steven Chong to Manager of Sea Freight Division
of City Link Sea and Air Services Sdn. Bhd. In addition, the Applicant
was also found guilty of the Third Charge.

[5] The Applicant appealed against her demotion vide her letter dated
1st July 2008. The Management considered the appeal but decided to
maintain its decision.

[6] The Applicant then put the 1st Respondent on Notice of its breach of the
Applicant’s contract of employment vide letter dated 7th July 2008,
giving the 1st Respondent seven days to rectify its breach by reinstating
her to her previous position, failing which, she would deem that she had
been constructively dismissed.

[7] The Applicant did not report to the position of Senior Manager,
considered herself to have been constructively dismissed by the 1st
respondent and she had subsequently filed a representation under
Section 20 of the Industrial Relations Act 1967 to the Industrial
Relations Department…”.

[7] The Court of Appeal set aside the Award of the learned Chairman which had
dismissed the Claimant’s claim of constructively dismissal. It also set aside the High
Court judgment The Court of Appeal’s judgment is made available to this Court by
the Claimant’s Counsel. This Court is now tasked to calculate the amount of
backwages and compensation in lieu of reinstatement to be paid by the Company to
the Claimant. As stated by the appellate court, there was a mutual loss of trust

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between the parties and the remedy of reinstatement was unsuitable; hence the
appropriate remedy is monetary compensation.

Evaluation of evidence

[8] The Court will only consider the relevant facts for the purpose of calculation of
compensation. The Court will also consider the evidence adduced during the hearing
on 13 April 2021. It must be borne in mind that her dismissal was in 2009 and
circumstances have changed since then. During the hearing, the Claimant was the
sole witness for employer case and her witness statement was marked as CLWS1.
The Company did not call any witness to testify on its behalf.

[9] It was submitted by the parties that the merits of the Claimant’s case had been
ventilated up until the superior courts and the Court of Appeal had decided in favour
of the Claimant. Hence, it would not be appropriate for the Court to go back into the
merits of the case in order to determine the amount of her compensation to be paid
by the Company. By virtue of the Second Schedule to the 1967 Act, there are certain
deductions to be made and any relief given shall not include any compensation for
loss of future earnings and the Court shall take into account contributory misconduct
of the workman. Therefore, the Court opines that it needs to look into the facts of the
case and surrounding circumstances as well as evidence on post-dismissal income in
order to arrive at a fair amount of compensation to be paid to the Claimant, in line
with the order of the Court of Appeal for this Court to ascertain the damages for the
Claimant’s wrongful dismissal by the Company.

Remedy

I. Compensation in lieu of Reinstatement

[10] From the facts of the case, the Claimant had been in the continuous
employment of the Company since 5 February 1990 until the date of 9 July 2008
when she walked out of her employment, a period of about 17.5 years. It goes
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without saying that the Claimant was a confirmed employee. The Claimant’s last
drawn salary was RM11,800.00. At present the Claimant is 59 years old. Fortunately
for the Claimant, she could still be reinstated as she has not reached the age of 60
years. Otherwise, the Claimant would not be entitled to compensation in lieu of
reinstatement. However, the Court of Appeal decided that reinstatement would not be
an appropriate remedy as there has been mutual loss of trust between the litigating
parties. Therefore, based on the Claimant’s number of 17.5 years in service, the
Court will order compensation in lieu of reinstatement at a multiplier of 17
months, that is, one month for each completed year of service.

II. Backwages

[11] The Claimant claimed that she had not been gainfully employed in the few
years after her dismissal from the Company until the year 2012 when she was able to
secure a job with a logistics company. Those were the difficult years when the
Claimant became a single mother to two daughters (who were then pursuing tertiary
education) after she and her husband were separated in 2006. In 2012 they were
back together again. During that time before she was able to obtain another job, the
Claimant survived on her savings and money loaned by her relatives and friends. The
Claimant adduced evidence in the form of her EPF statements and job applications
via e-mail, amongst others. The Claimant also exhibited one of her daughter’s letter
of acceptance at a university in Romania for a medical degree program, which the
latter had completed the first two years of study. Due to the Claimant losing her
employment with the Company, the Claimant claimed that her daughters had to forgo
their chance at tertiary education.

[12] The Court has looked at the provisions of the law and particularly Second
Schedule of the 1967 Act in order to determine whether there would be any
deductions made. The Court noted the documents exhibited, and agrees with the
Company’s Counsel submissions that some were not relevant to the Claimant’s
employment with the Company. Be that as it may, the Court is guided by the
judgment of the Court of Appeal. It found that the Claimant was actually the victim in
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that incident with her subordinate, Steven Chong, whereby he was insubordinate to
the Claimant and by that alone, he could have been summarily dismissed. The
Company instead had disciplined both of them and which led to the Claimant’s
demotion; hence the constructive dismissal claim. It stated that the remaining two
charges against the Claimant were not proved and the Company should not have
demoted her. Therefore, the Claimant was entitled to consider herself to be
constructively dismissed from the Company. The appellate court was satisfied that
the Claimant had left her employment soon after the breach of the terms and
conditions of her employment. From the evidence adduced before this Court, it is
safe to say that the Claimant was only gainfully employed in 2012. It appears that,
within the period of 24 months from her dismissal the Claimant was unable to secure
alternative employment and did not have a fixed income at that time.

[13] It was put to the Claimant that she and her husband had established at least
two companies. The Claimant agreed that the companies, Chestershire Management
Services Sdn. Bhd. and Privy Solutions Sdn. Bhd. existed, but they were not
profitable. The first company provided training services and she was only a partner
whereas her husband ran the company. The other one had been inactive since the
day it was started in 2012. As the Company is unable to challenge the Claimant’s
evidence in that regard, the Court is left with nothing to show that the Claimant was
earning some income within the first 24 months after her dismissal. Therefore, there
will be no deductions made against the backwages awarded.

Rescaling Compensation

[14] It was submitted by the Claimant’s Counsel that the Court may award her
aggravated and/or exemplary damages although it was not specifically pleaded, as
the Claimant and her daughters had suffered hardship due to her dismissal from the
Company. Further, the Claimant fell into depression for some time and she was
burdened with the financial hardship which came about after she lost her job and she
was unable to secure employment until only in 2012. However, after considering the
circumstances and facts of the case the Court does not view that such compensation
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is warranted. Moreover, the Court has decided that there will be no deductions made
from the backwages ordered.

[15] Therefore, the total amount of backwages and compensation in lieu of

reinstatement payable to the Claimant is:

Backwages
RM11,800.00 x 24 months = RM283,200.00
Add
Compensation in lieu of reinstatement
RM11,800.00 x 17 months = RM200,600.00
____________

TOTAL = RM483,800.00

Final Award

[16] The Court now orders that the Company pays the Claimant the total sum of
Ringgit Malaysia Four Hundred Eighty-Three Thousand Eight Hundred less any
statutory deductions through the Claimant’s solicitors within 30 days from the date of
this Award.

HANDED DOWN AND DATED 28 APRIL 2021

-signed-

(NOOR RUWENA BINTI DATO' MOHD NURDIN)

CHAIRMAN
INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR