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High Court: Speedy acceptance of an MSA does not negate voluntariness

Fatimah Binti Noordin v. Carsem (M) Sdn Bhd

Ipoh High Court Judicial Review Application No. AA-25-9-05/2020

The Ipoh High Court today upheld the decision of the Industrial Court which had concluded that the employee, a Manager in the Human Resources Department, had voluntarily accepted a Mutual Separation Agreement (“MSA”) and had only brought her claim against the Company following the non-performance of the terms thereof due to the discovery of potential fraudulent practices.

Justice Dato' Abdul Wahab Bin Mohamed held in his oral judgment that the short time in which the Manager had considered the MSA before signing did not, without more, negate the voluntariness of her acceptance.

Although the onus was on the employee to establish that she was indeed dismissed on the date stated in the Ministerial reference, no evidence was led before the Industrial Court to prove that she had accepted the MSA under compulsion or duress or that her potential misconduct was known by the Company at that time.

Consequently, no dismissal could be said to have occurred on the date of the Ministerial reference; rather, as observed by the Industrial Court, the terms of the MSA as agreed between the parties had brought the employment relationship a mutually-agreed end.

The Award of the Industrial Court may be viewed here.

The Company was represented by Managing Partner Dato’ Thavalingam Thavarajah and Partner Sebastian Tay Hanxin of T. Thavalingam & Co.

Award 274 of 2020 - Fatimah Binti Noordin v Carsem (M) Sdn Bhd
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