PUTRAJAYA: The Court of Appeal has reinstated a RM403,000 Industrial Court award made to a company executive who was retrenched following a restructuring exercise in an oil and gas (O&G) related company.
Judge Lee Swee Seng said, in allowing an appeal by Ng Chang Seng, that his employer, Technip Geoproduction (M) Sdn Bhd, had not discharged the burden of proof the termination was valid because of redundancy.
“The Industrial Court had found that the company had not shown it was justified not to follow the “Last-In First-Out” (Lifo) (industrial law principle) or that there were special skills in the foreign and contract workers in preference to the claimant (Ng),” Lee said in a written judgment.
Judge Hanipah Farikullah and Che Mohd Ruzima Ghazali were the other two who heard the appeal and delivered an oral judgment in May.
Lee said the truth that emerged from the evidence of the company that the axe had fallen on Ng on account of his poor performance and insubordination in complaining that he had to report to his subordinate in a refinery and petrochemical integrated development project.
“The retrenchment exercise was thus colourable and for a collateral purpose,” he said in the 40-page judgment .
The industrial tribunal had in 2018 awarded Ng RM403,520 in back wages after deducting 30% for post dismissal earnings and money paid to him as retrenchment benefits.
The Court of Appeal also awarded Ng, represented by Anthony Gomez, another RM10,000 in costs.
Lawyers Poh Kuang Horng and Siva Subramaniam appeared for the company.
Lee said this was a case where Ng, after having served the company for 13 years, was chosen for retrenchment as part of the company’s worldwide restructuring and downsizing policy after investments from clients slowed down in tandem with the falling oil price in 2015.
He said the Industrial Court could not be faulted in finding that in the retrenchment exercise, the company had targeted Malaysians while the foreign workers got to keep their jobs.
Ng complained that the Lifo principle had not been followed and that the retrenchment exercise was done in bad faith.
He also argued that the retrenchment was a cloak to conceal the company’s perception that his performance was poor or that he had objected to a proposed transfer to another project where he would be reporting to a person who was previously his subordinate.
The High Court quashed the award last year after the company filed a judicial review application on the ground the retrenchment exercise was genuine.