SAVITHRI A/P VELLO 1. ) i) EVERSENDAI CONSTRUCTIONS (M) SDN. BHD. 2. ) ii) MAHKAMAH PERUSAHAAN MALAYSIA

SAVITHRI A/P VELLO 1. ) i) EVERSENDAI CONSTRUCTIONS (M) SDN. BHD. 2. ) ii) MAHKAMAH PERUSAHAAN MALAYSIA

Applicant's sworn testimony of post-dismissal unemployment, unchallenged and unrebutted by the First Respondent, shifted the evidential burden to the employer; the Industrial Court erred in stating no evidence was proffered and in deducting 70% of backwages without reasons; that part of the Industrial Court award is...

Source-derived case information.

Citation
AA-25-18-09/2020 (Mahkamah Tinggi)
Parties
Applicant: Savithri A/P Vello; First Respondent: Eversendai Constructions (M) Sdn. Bhd.; Second Respondent: Mahkamah Perusahaan Malaysia
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 October 2021
Case Number
AA-25-18-09/2020 (Mahkamah Tinggi)
Procedural Posture
Judicial Review (industrial Court Award) / High Court Judgment on Judicial Review (leave Granted)
Outcome
Quash part of Industrial Court Award ordering 70% deduction of backwages; otherwise award upheld; costs awarded to Applicant
Legal Topics
Constructive Dismissal, Backwages, Burden of Proof on Post Dismissal Earnings, Mutual Separation Scheme Deduction, Judicial Review of Tribunal Decisions, Quantum of Deduction
Industrial Relations Administrative Law Evidence Constructive Dismissal Backwages Burden of Proof on Post Dismissal Earnings Mutual Separation Scheme Deduction Judicial Review of Tribunal Decisions +1 more

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Parties

Savithri A/P Vello

Applicant

Eversendai Constructions (M) Sdn. Bhd.

First Respondent

Mahkamah Perusahaan Malaysia

Second Respondent

Procedural Posture

Judicial Review (industrial Court Award) / High Court Judgment on Judicial Review (leave Granted)

Legal Issues

  1. 1 Whether the evidential burden to prove post-dismissal gainful employment lies on the workman or shifts to the employer after the workman testifies he/she was unemployed
  2. 2 Whether oral testimony of unemployment under oath suffices in absence of rebuttal
  3. 3 Whether the Industrial Court lawfully deducted 70% of backwages without reasons

Ratio Decidendi

Applicant's sworn testimony of post-dismissal unemployment, unchallenged and unrebutted by the First Respondent, shifted the evidential burden to the employer; the Industrial Court erred in stating no evidence was proffered and in deducting 70% of backwages without reasons; that part of the Industrial Court award is quashed; the MSS payment deduction and factual quantification by the Industrial Court are upheld; no remittal required as recalculation is arithmetical.

Court Disposition

Quash part of Industrial Court Award ordering 70% deduction of backwages; otherwise award upheld; costs awarded to Applicant

Orders

  • Quash part of IC Award ordering a 70% deduction of compensation for backwages
  • First Respondent to pay Applicant the recalculated amount pursuant to the Industrial Court Award after removal of the 70% deduction (arithmetical adjustment)