THE Industrial Court in Kuala Lumpur has ordered fast-food operator Gimme4fingers Malaysia Sdn Bhd to pay RM309,000 in back wages and compensation in lieu of reinstatement to its former business development manager for dismissal without just cause or excuse during the early stages of the COVID-19 movement control order (MCO) four years ago.
The chain which operates under the brand name “4Fingers Crispy Chicken” has contended that it has suffered severe financial losses during the relevant MCO periods due to restaurant outlets closure.
As such, it had had made the business development job redundant by having restructured the function to be overseen by its general manager (GM) of Malaysia and its commercial GM along with the peer group support.
The court takes the view that this clearly reinforces the fact that the job of the claimant Hoh Seng Kong, 59, as the company’s business development manager was not redundant at all material times.
Hoh was retrenched on April 16, 2020 before the company even knew the extent of its losses for that month. Therefore, the Industrial Court could not agree that the claimant was retrenched due to the substantial losses incurred by the company and its difficulties to sustain its business.
Moreover, the company’s contention that it was compelled to take urgent cost-cutting measures to preserve the jobs of its employees is misleading and inconsistent with its action of retrenching the claimant, according to the court’s written award.
Even assuming that the claimant was likely to be redundant due to the MCO and COVID-19 pandemic, Industrial Court chairman Andersen Ong Wai Leong contended that the Code of Conduct for Industrial Harmony (CCIH) provides that “where redundancy is likely, an employer should take positive steps to avert or minimise reductions of workforce by the adoption of appropriate measures”.
“Retrenchment at the outset of the COVID-19 pandemic and MCO is akin to ‘a ship captain casting crew members into the stormy seas to lighten the load, hoping to steer the ship to safety while leaving them adrift in the turbulent waters of uncertainty;” Ong cited an analogy in his 43-page long written award.
“Having considered the totality of the evidence and going by equity, good conscience and the substantial merits of the case, the court holds that the company has failed to prove on a balance of probabilities that the claimant’s job as business development manager has become redundant when he was retrenched by the company.”
Hoh was represented by Leonard Yeoh and Pua Jun Wen of Messrs Tay & Partners while Gimme4fingers Malaysia was represented by Chan Suay Hwa and Phan Mei Yin. – July 25, 2024
Main image credit: Ezad Hfizy (@mhdhafizee)/X
