Industrial Court chides firm for using race card in dismissal case

 

The Industrial Court awarded S Janarthen RM71,500 in compensation after holding that he had been victimised by his employer’s finance director, Yim Kai Keong. (Facebook pic)

PETALING JAYA: 

The Industrial Court has ruled that an employee was unfairly dismissed after his employer, Auto Abundance Sdn Bhd, resorted to using the racial card in a court filing when seeking to justify his dismissal.

In an award dated July 11, court chairman D Paramalingam said:

What we have here is an impasse between the two directors holding equal shares in the company. And in the midst of the on-going tug-of-war between these two Goliaths, the claimant became the proverbial sacrificial lamb.

The chairman said the situation 

came to a boil

 when finance director Yim Kai Keong, who represented the employer in the proceedings, set out to get rid of the claimant, S Janarthen.

His aversion is clearly seen even in his written submission filed before this court where he had made racially-charged statements against the claimant and (his immediate superior, V Muralidharan Nair, Yim’s co-director).

Yim, had in written submissions filed in court on behalf of the company said:

The claimant deliberately refused to take instructions from the company and disrespected his co-workers because he had a ‘godfather’ of the same race who would defend him.

In his 25-page award, Paramalingam called Yim’s reference to race when seeking to justify Janarthen’s dismissal 

unfortunate

.

The claimant had clearly been victimised by Yim, when in fact Yim’s actual grouse is against (Nair). Due to the disagreement between the two directors, the claimant had to pay the price,

 the award said.

Janarthen joined the company in 2012 and served in the administration department before being made a quality assistant, drawing a monthly salary of RM3,150.

He resigned six years later, but rejoined the company in 2019 in the same capacity and on the same salary.

He was dismissed by Yim in 2022 for allegedly consuming alcohol on the company’s premises and for challenging Yim to a physical fight when questioned on alleged violations of work ethics and instructions.

To justify the dismissal, the company sought to produce photo and video evidence taken by the company’s senior product development manager Lim Kai Zhi to support its allegations, but the court ruled the evidence inconclusive.

The photos show a few empty cans of beer placed on top of a chair. There is no one in the photos, and certainly not the claimant. These photos are not conclusive proof that it was the claimant who consumed the beer,

 said Paramalingam.

The court found that video excerpts showing the claimant sitting down at a certain area whilst smoking and drinking were taken on a Saturday, after working hours.

The company’s fourth witness M Gunasegaran admitted that the claimant drinks only after working hours. He also admitted that the place in the video was outside the company’s compound,

 the award read.

Paramalingam also found that the video clip tendered to prove Janarthen had challenged Yim to a fight had been edited.

When counsel for the claimant suggested to (Lim) that the claimant did not want any confrontation with Yim and had walked away, (Lim) agreed. However, this material portion of the recording was edited out, as admitted by (Lim),

 he said in the award.

Paramalingam said the only person other than the claimant who can shed light on the purported challenge to a physical fight was Yim himself.

Unfortunately, he (Yim) chose not to give evidence and this is fatal to the company’s case,

 he said.

The court drew an adverse inference against the company for Yim’s refusal to testify. 

Had he taken the witness stand, his evidence would have been detrimental to the company’s case,

 said Paramalingam.

Janarthen was awarded RM71,500, made up of 23 months’ backwages scaled back by 20% on account of post-dismissal earnings, and two months’ salary compensation in lieu of reinstatement.

R Thayalan and Ambbi Balakrishnan appeared for the Janarthen. - FMT