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

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

The Industrial Court erred in law by reducing backwages by 70% without evidence or reasons; once the Applicant testified under oath that she was unemployed post-dismissal the evidential burden shifted to the employer to rebut and the employer failed to do so, therefore the 70% deduction is quashed; MSS payments are deductible to avoid double recovery and the MSS quantum is a factual finding not disturbed.

Citation
AA-25-18-09/2020 (Mahkamah Tinggi)
Parties
Applicant: SAVITHRI A/P VELLO; Respondent: EVERSENDAI CONSTRUCTIONS (M) SDN. BHD.; 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 of Industrial Court Award / High Court Judgment on Substantive Review and Leave Granted
Outcome
Quashed that part of the Industrial Court Award ordering a 70% deduction of backwages; otherwise award stands.
Legal Topics
Constructive Dismissal, Backwages, Post Dismissal Earnings, Burden of Proof, Judicial Review, Compensation in Lieu of Reinstatement, Mutual Separation Scheme, Costs
Source Language
Malay/English
Industrial Relations Employment Law Administrative Law Evidence Constructive Dismissal Backwages Post Dismissal Earnings Burden of Proof +4 more

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Parties

SAVITHRI A/P VELLO

Applicant

EVERSENDAI CONSTRUCTIONS (M) SDN. BHD.

Respondent

MAHKAMAH PERUSAHAAN MALAYSIA

Respondent

Procedural Posture

Judicial Review of Industrial Court Award / High Court Judgment on Substantive Review and Leave Granted

Legal Issues

  1. 1 Whether the evidential and legal burden to prove post-dismissal gainful employment lies on the workman or shifts to the employer after the workman's testimony
  2. 2 Whether the Industrial Court lawfully deducted 70% of backwages without reasons or evidence
  3. 3 Whether payment under the Mutual Separation Scheme should be deducted from award

Ratio Decidendi

The Industrial Court erred in law by reducing backwages by 70% without evidence or reasons; once the Applicant testified under oath that she was unemployed post-dismissal the evidential burden shifted to the employer to rebut and the employer failed to do so, therefore the 70% deduction is quashed; MSS payments are deductible to avoid double recovery and the MSS quantum is a factual finding not disturbed.

Court Disposition

Quashed that part of the Industrial Court Award ordering a 70% deduction of backwages; otherwise award stands.

Orders

  • Quash the portion of IC Award ordering a 70% deduction of backwages
  • First Respondent to pay costs of RM15,000.00 to the Applicant subject to allocatur