Kajul Bin Samin @ Azman v Sabah Forestry Development Authority, 23-07-2007

• Judge: Datuk Ian H.C. Chin
• Judgment Date: 23 July 2007
• Court: High Court (Malaysia)
• Record Number: K21-06-2005

2

NOTES OF PROCEEDINGS - PRELIMINARIES

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MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK

AT KOTA KINABALU

CIVIL SUIT NO. K21-06-2005

BETWEEN

KAJUL BIN SAMIN @ AZMAN - 1ST PLAINTIFF

KOOK BIN ELIP @ JOHN ELIP - 2ND PLAINTIFF

MOKSIN BIN RIASIN - 3RD PLAINTIFF

GANSAP BIN SIAMBUNUS

@ MASH SCIROW - 4TH PLAINTIFF

BAYANG BIN HJ ABD RAHMAN

@ MOHD SHAH - 5TH PLAINTIFF

JAMADI BIN JAD - 6TH PLAINTIFF

GEORGE NOROSON BIN MADEE - 7TH PLAINTIFF

MONURING BIN GARUDAH - 8TH PLAINTIFF

ANGKI BIN ADDEK - 9TH PLAINTFF

MAJUNGGI BIN MANUNSUI - 10TH PLAINTIFF

POSISING BIN KIMSUN - 11TH PLAINTIFF

DAVID BIN YURAI - 12TH PLAINTIFF

SIALI BIN ABDULLAH - 13TH PLAINTIFF

RIJOH BIN ARAMAN - 14TH PLAINTIFF

LATIF BIN NANIS - 15TH PLAINTIFF

JOHN BIN ANSIRON @ JASRI - 16TH PLAINTIFF

TIONGI BIN HOIPAU - 17TH PLAINTIFF

ISIDORE BIN DALUS @ MASDOR - 18TH PLAINTIFF

ABDUL MAJIN @ APEH BIN PESSAN - 19TH PLAINTIFF

AND

SABAH FORESTRY DEVELOPMENT

AUTHORITY - DEFENDANT

NOTES OF PROCEEDINGS

23 JULY 2007

IN OPEN COURT

9.00 A.M.

Coram: Justice Datuk Ian H.C. Chin

For PlaintiffS: Alexander Decena & Liew Chin Jin

For Defendant: Datuk Stephen Foo

Decena: Parties not calling any witness. Will submit on the documents, three bundles, two agreed agreed as to authenticity and contents with one disputed, dispiuted only as to the interpretation of the contents

Foo: Confirm that

Court: that leaves the closing speeches on;y

Both counsel: Correct

Court: Defendants’ counsel is to fie his closing speech by 3.00 p.m. 24 July 2007 with a soft copy emailed to me and then the Plaintiffs’ counsel shall file his reply on 25 July 2007 by 3.00 p.m. also with a soft emailed to me. Then the court will sit on 27 July 2007 at 10.00 a.m. to see if the judge has any queries and if he has none, he will deliver his judgment.

Justice Datuk Ian H.C Chin

24 July 2007

8.30 a.m.

[The following soft copy of the closing speech of counsel for the Defendant has been received (reproduced after cropping).]

DEFENDANTS’ WRITTEN SUBMISSION

The Facts

The undisputed facts of this case are as contained in the Statement of Agreed Facts, the Bundle of Agreed Documents and the Further Bundle of Agreed Documents. The Plaintiffs were appointed as “Field Assistants” or equivalent positions in the Defendants’ organisation. The Plaintiffs (except the 15^th Plaintiff) were employed by the Defendants on a temporary month-to-month basis, whereas the 15^th Plaintiff was employed on a temporary basis. Except for the 2^nd Plaintiff, it was an express term in the Plaintiffs’ letters of appointment that their employment could be terminated by one month’s notice or payment of one month’s salary in lieu of notice if their services were unsatisfactory. In the case of the 2^nd Plaintiff, it was an express term of his letter of employment that his employment could be terminated by one month’s notice or payment of one month’s salary if his services were no longer required. The Defendants terminated the Plaintiffs’ employment by giving one month’s notice of termination on the ground that their services were no longer required due to restructuring exercise and downsizing of the Defendants’ organisation. Each of the Plaintiffs was also paid three months’ salaries as ex gratia payment for the loss of their employment. Moreover, the 4^th, 5^th, 15^th, 17^th and 19^th Plaintiffs also signed a “discharge/disclaimer letter” as contained in pages 4, 5, 15, 17 of Bundle of Disputed Documents (Agreed as to authenticity but not to contents).

The Issues

The Agreed Issues as contained in “the Statement of Issues to Be Tried” for the Court’s determination are as follows:

1. Whether the Defendants were in breach of the Plaintiffs’ contract of employment to terminate the Plaintiffs’ employment by giving one month’s notice on the ground that their services were no longer required?

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2. If the answer to Issue 1 is in the affirmative, what would be the reasonable notice of termination?

3. If the Defendants had wrongly terminated the Plaintiffs’ contracts of employment, whether by accepting the ex-gratia payments, the Plaintiffs have waived their rights to claim and or estopped themselves from claiming against the Defendants for the wrongful termination of the Plaintiffs’ contracts of employment?

4. If the Defendants had wrongly terminated the Plaintiffs’ contracts of employment, whether by signing a “discharge/disclaimer letter”, the 4^th, 5^th, 15^th, 17^th and 19^th Plaintiffs have waived their rights to claim and or estopped themselves from claiming against the Defendants for wrongful termination and or thereby discharged the Defendants’ liability for any loss or damage in respect of the termination of their respective employment with the Defendants?

5. If the answer(s) to Issues 3 and 4 is/are in negative, what is the quantum of damages to be paid by the Defendants to each of the Plaintiffs?’

First Issue

“Whether the Defendants were in breach of the Plaintiffs’ contract of employment to terminate the Plaintiffs’ employment by giving one month’s notice on the ground that their services were no longer required?”

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1.1 It can be seen that in the present case, the appointments of the Plaintiffs were on temporary month-to-month basis (or on temporary basis in the case of the 15^th Plaintiff). Except for the 2^nd Plaintiff where there was an express term in his contract of employment that his employment could be terminated by one month’s notice or by payment of one month’s salary in lieu of notice if his services were longer required, the letters of appointment of the other Plaintiffs contained a provision that their appointments could be terminated if their services were not satisfactory. However, all the Plaintiffs’ services were terminated by the Defendants by notices of termination dated 9^th June 2003 giving them one month’s notice with effect from 16^th June 2003 on the ground that their services were no longer required due to restructuring exercise and downsizing of the Defendants (see letters of termination at pages 53 to 89 of the Bundle of Agreed Documents). That means the Plaintiffs’ services with the Defendants effectively ended on 15^th July 2003. Apart from giving one month’s notice of termination, each of the Plaintiffs was also paid an ex gratia payment of 3 months’ salaries, which they accepted without any protest.

1.2 As regards the termination of the services of an employee under a contract of employment, in Malaysian Industrial Relations-Law & Practice written by V. Anantaraman (1997 Edition) [No.4 at pp.15-17 of Defendants’ Bundle of Authorities (hereinafter referred as “DBOA”], it is stated as follows (at p. 243):

“Under the common law, the relationship between the employer and the employee is strictly governed by the contract of employment and the concept of unfair dismissal or dismissal for a just cause after the due process is unknown. A wrongful dismissal under common law means a contract of employment unlawfully terminated, not unfairly terminated. A lawful termination of contract implies its termination after giving notice of a length which has been expressly agreed between the employer and the...