Chai Ching Nang v London Weight Management Sdn. Bhd.

Case Significance

Illustrates recovery of advance commission on an employee's breach of an employment agreement, and appellate restraint: findings of fact will not be disturbed unless unsupported by the evidence, against its weight, or perverse.

This High Court decision at Shah Alam concerns an employer's claim to recover advance commission paid to an employee, and the limits of appellate interference with a Sessions Court's findings of fact. The respondent employer, London Weight Management Sdn Bhd, had sued the appellant, its former employee, in the Sessions Court on the employment agreement and related letters of undertaking, and after a full trial the Sessions Court ordered the employee to repay RM188,770.22 with interest at 5% per annum from the date of filing until full settlement, dismissed the employee's counterclaim for unpaid monthly salary and commissions, and awarded the employer costs of RM9,075. The employee appealed. The issues were whether the employer was entitled to reclaim the advance commission it had paid, whether the condition imposed by the employer on the employee reflected bad faith or a discretion exercised unreasonably, arbitrarily and capriciously, and whether the Sessions Court judge had erred in fact and law in allowing the claim and dismissing the counterclaim. The court examined the Sessions Court's findings and held that they were accurate and supported by the evidence: the employee had breached the agreement and the conditions the employer had set, so that the employer had proved its claim on the balance of probabilities while the counterclaim was rightly dismissed. Emphasising the settled principle, reflected in authorities including the Federal Court's observations in Dato' Seri Anwar bin Ibrahim v Public Prosecutor, that an appellate court should be slow to disturb the findings of fact of the court below unless they are unsupported by the evidence, against the weight of the evidence or perverse, the court found no such error. It accordingly dismissed the appeal and affirmed the Sessions Court's decision. The judgment is a useful illustration of the recovery of advance commission on breach of an employment agreement and of appellate restraint towards trial findings of fact.