[2017] 3 MELR 709

Industrial Court, Kuala Lumpur
Gulam Muhiaddeen Abdul Aziz
Award No: 1575 Of 2018 [Case No: 18(12)/4-135/16]
31 October 2017

Interpretation : Statute - Minimum Retirement Age Act 2012 ('MRA 2012') - Claimant retired at 50 years and not 55 years - Section 2, Schedule 1(i), MRA 2012 - Whether claimant covered under MRA 2012 - Contract of employment exceeding 24 months - Whether would bring employee within MRA 2012 - Fixed term contract of 24 months or more - Whether given security of tenure until 60 years of age - Whether deemed a permanent employee - Whether such contract can come to end by way of effluxion of time - Whether MRA 2012 removed such cause for termination of fixed term contracts

Dismissal : Redundancy - Retrenchment - Whether there was legal basis - Claimant's position as Head of Human Resources - Whether surplus and redundant - Whether claimant's duties and responsibilities ceased to exist or diminished - Whether valid retrenchment - Whether dismissal with just cause or excuse

The claimant first commenced employment with the company as a Secretary and later rose up in the ranks and was finally appointed the Head of Human Resources. In April 2011, the claimant retired from the company's services upon attaining the retirement age of 50 years old, pursuant to her contract of employment at that time. Subsequently, the claimant was offered a fixed term contract for a period of two years, specifically between 11 April 2011 to 30 June 2013. When the first contract of employment expired, the company offered the claimant a new one-year fixed term contract from 2 July 2013 until 30 June 2014. When this contract expired, the company further offered the claimant a new contract between 2 July 2014 to 30 June 2015. Throughout this period, the claimant continued to hold the position of Head of Human Resources. Vide a letter dated 13 May 2015, the company informed the claimant that her services were no longer required due to a restructuring exercise undertaken by the company and therefore, her contract was terminated effective on 14 May 2015. The company contended that the claimant's engagement was on a fixed term contract after her retirement and was never intended to be permanent and she had no legitimate expectation to continue in the employment of the company. The claimant, on the other hand, contended that under the Minimum Retirement Age Act 2012 ('MRA 2012'), an employee who came within its purview will now be entitled to enjoy a minimum retirement age of 60 years. There were two issues for this court to decide upon, ie; (i) Whether the claimant was in fact dismissed as opposed to having her contract coming to a natural end; (ii) Whether the claimant's services were surplus and redundant.

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