B. Braun Medical Industries Sdn Bhd v Mugunthan a/l Vadiveloo

a-01a-590-08-2022 Court of Appeal (Mahkamah Rayuan) 23 November 2023 • A-01(A)-590-08/2022

Catchwords

(1) if - (a) an employee (X) had been forced to sign a MSS contract with X’s employer (Y) under Y’s threat that - (i) X’s employment had become redundant; and (ii) Y would retrench X if X did not agree to the MSS contract; and (b) Y had not threatened to dismiss X from employment - whether the court can decide that X’s execution of the MSS contract constituted a dismissal of X by Y without just cause or excuse in the form of a “forced resignation”. This is a novel issue as we are unable to find any previous Malaysian case which has decided on this point; (2) in the factual circumstances as stated in the above sub-paragraph (1) - (a) whether Y bears the legal burden under s 101(1) and (2) of the Evidence Act 1950 (EA) to prove on a balance of probabilities that X had signed the MSS contract voluntarily and consequently, X had not been unlawfully dismissed by Y by way of a forced resignation; or (b) does X have to discharge the legal burden to prove on a balance of probabilities that X had been “forced” to resign as Y’s employee by executing the MSS contract involuntarily and as such, X had been unlawfully dismissed by Y? The above issue also concerns a discussion of ss 91, 92 and proviso (a) to s 92 EA; (3) whether the IC and High Court had committed the following error(s) of law - (a) failure to take into account the following relevant facts - (i) negotiations between the Claimant and Respondent regarding the Draft (MSS Agreement) which led to the execution of the MSS Agreement [Negotiations (Draft MSS Agreement)]; (ii) the Claimant’s Request (Time to Consider MSS) which had been accepted by the Respondent; (iii) the Claimant’s Resignation Letter; (iv) the Claimant’s WhatsApp Message (15.1.2019) which amounted to an “admission” by the Claimant under ss 17(1), 18(1) and 21 EA that he had signed the MSS Agreement voluntarily; (v) the Claimant’s Early Release Request which led to the Bilateral Variation (MSS Agreement); and (vi) the Claimant’s conduct [relevant under s 8(2) EA] which did not send any demand, letter, email or WhatsApp message to the Respondent and/or COW1 regarding his forced resignation by way of the MSS Agreement; (b) consideration of irrelevant matters, namely - (i) there was an “offer” or promise by the Respondent to promote the Claimant; and (ii) Ms. Lim should have been called by the Respondent to testify at the IC Hearing regarding the contents of the Respondent’s Document (2 Tables); and (c) when the learned IC Chairman and Judicial Commissioner had decided that the Respondent’s Restructuring was not bona fide; (4) was the Award so irrational or unreasonable that no reasonable IC Chairperson would have made the Award?; and (5) whether the learned Judicial Commissioner had committed an error of law in applying the “plainly wrong” test (applicable in appeals against lower courts’ decisions after trial) in a Judicial Review application.

Practice Areas

Evidence Administrative Law

Judges (3)

Noorin binti Badaruddin Coram Supang Lian Delivered Wong Kian Kheong Coram

Parties (2)

B. Braun Medical Industries Sdn Bhd Appellant Mugunthan a/l Vadiveloo Respondent

Judgment

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Source: eJudgment (a-01a-590-08-2022)