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Dutch firm must pay sacked Canadian ex-regional manager RM1mil

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The Industrial Court says Hunter Douglas Asia Holding BV terminated the services of Andrew Jackson Lee without just cause or excuse.

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The Industrial Court has awarded Andrew Jackson Lee RM1,054,398 in back wages and compensation in lieu of reinstatement after ruling that he was terminated without just cause or excuse. (Facebook pic)

KUALA LUMPUR:
A Dutch-based global blinds and shades supplier was ordered by the Industrial Court here to pay RM1.05 million to its ex-regional manager, a Canadian national, after ruling that his services were terminated without just cause or excuse.

Industrial Court chairman M Eswary said it was “abundantly clear” that Hunter Douglas Asia Holding BV had summarily dismissed expatriate Andrew Jackson Lee.

She said that as a matter of law, a termination simpliciter – one given without assigning reasons – was an unjust dismissal.

Hunter Douglas had on June 3, 2020 given Lee six months’ written notice of the termination of his employment. No reasons were cited in the letter.

Eswary said the law did not permit her to consider reasons not set out in the termination letter. She also said the company’s explanation – that the reasons were omitted to spare Lee embarrassment – was unacceptable.

At trial, Hunter Douglas had claimed that Lee’s services were terminated due to his poor performance.

However, Eswary said no performance issues were shown to have arisen during Lee’s service with the company in Malaysia.

“This court makes a finding that the issue of poor performance (was) an afterthought and the company was not able to clearly prove the claimant’s poor performance which allegedly resulted in his termination,” she said in an award handed down last week.

In any case, Eswary said an employer ought to give a non-performing employee the opportunity to improve his performance.

“It is for the company (Hunter Douglas) to find out from the claimant (Lee) why he is performing unsatisfactorily and to warn him that if he persists in doing so he may have to go.”

Eswary also dismissed Hunter Douglas’s explanation that Lee’s termination was part of a cost-cutting exercise necessitated by the Covid-19 pandemic.

“The termination letter made no mention of a purported redundancy exercise or the claimant’s (Lee) performance. The termination letter was clearly a predetermined unilateral termination made by the company,” the award read.

Eswary ruled that Hunter Douglas had gone about the entire termination process hastily and in bad faith.

She also noted that Lee had been wrongly informed that, as an expatriate, he had no rights under Malaysia’s employment laws.

Eswary noted that the employment contract specifically stated that it was governed by Malaysian law. It also provided that “any dispute arising hereunder that cannot be settled amicably by the parties shall be resolved by the courts in Malaysia.”

She also said that Lee’s refusal to return to work after the termination letter was issued to him was a post-dismissal event which was of no consequence.

The court awarded Lee RM717,888, being 24 months’ back wages based on his monthly salary of RM37,390, subject to a 20% deduction having regard to his post-dismissal earnings.

In addition, Lee was given one month’s salary for each of his years of service in Malaysia as compensation in lieu of reinstatement, totalling RM336,510.00.

The court ordered that the aggregate sum of RM1,054,398 be paid within 40 days from the date of the award.

Lee joined Hunter Douglas Ltd in the UK in 1984 as a building products clerk and was promoted to various other positions.

In 2011, he was transferred to Kuala Lumpur as the company’s regional general manager, a post he held until his dismissal in June 2020.

Ernest Balasingam appeared for the claimant, while R Ravindra Kumar and Teoh Kai Xiong were the counsel for the company.

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