BRIEF FACTS:

• Fatimah Noordin was employed as a Section Manager in the Human Resources Department of Carsem (M) Sdn Bhd [Carsem].
  
  
• On 20th April 2017, immediately after returning from two weeks of annual leave, Fatimah was handed a Mutual Separation Agreement (“MSA”).
  
  
• She was asked to sign it on the spot, with her last working day stated on the agreement as 21st April 2017.
  
  
• After signing it, she was told to leave the premises the same day.
  
  
• The MSA included a compensation payment of RM 50,000.00 which was never paid.
  
  
• Subsequently Carsem alleged that Fatimah had committed fraud in relation to the recruitment of foreign workers. The information pertaining to the alleged fraud only surfaced after the execution of the MSA.
  
  
• Fatimah then lodged a complaint with the Industrial Relations Department who then referred the complaint to the Industrial Courts (“IC”). Fatimah claims she had been dismissed without just cause or excuse.
  
  
• Carsem argued that the IC had no jurisdiction to hear the case as the MSA was voluntarily signed.
  
  
• Carsem had also filed a civil suit against Fatima alleging fraud as well as breach of contract in relation to the allegation of fraud with regards the recruitment of foreign workers.
  
  
• Fatimah counterclaimed asserting that the MSA was obtained under duress.
  
  
• At the Sessions Court Carsem’s claim for damages for fraud were allowed. And Fatimah’s counter claim was dismissed.
  
  
• Fatimah has appealed the decision of the Sessions Court to the High Court which was still pending when this case was heard.
  
  
• At the Sessions Court, a Senior HR Personnel of Carsem had admitted that the reason why the MSA was offered to Fatimah was due to her poor performance.
  
  
• And she also confirmed that Carsem was very unhappy with Fatimah and wanted her to leave immediately.

DECISION BY THE INDUSTRIAL COURT (IC)

• The IC dismissed Fatimah’s claim for wrongful dismissal and held that she had voluntarily signed the MSA.
  
  
• The IC found no evidence of coercion, duress, or protest from her.
  
  
• Fatimah being dissatisfied challenged the decision at the High Court (HC).

DECISION BY THE HIGH COURT (HC)

• The HC upheld the Industrial Court’s conclusion that Fatimah had signed the MSA voluntarily.
  
  
• The Court relied on her senior position and experience in HR, and noted the absence of any immediate objection or protest after the agreement was signed.
  
  
• The HC also found no evidence of coercion or duress and dismissed her judicial review application.
  
  
• Fatimah being dissatisfied appealed to the Court of Appeal.
  
  
• But at the Court of Appeal Fatimah wanted to bring in the evidence of the Senior HR Personnel of Carsem which was given at the Sessions Court.
  
  
• Fatimah wanted to adduce the evidence to show that she signed the MSA under duress.

DECISION BY THE COURT OF APPEAL (COA)

• The COA allowed Fatimah’s appeal and set aside the IC’s award.
  
  
• The Court also allowed the admission of the evidence of the Senior HR Personnel.
  
  
• Puan Nur’s testimony was important in that it showed that the MSA was not a product of a genuine negotiation, instead was a part of a premeditated plan to remove Fatimah from her position due to alleged performance issues.
  
  
• The COA also found that the MSA was presented to Fatimah without prior notice, negotiation opportunity, or even the time for legal consultation.
  
  
• The COA held that this amounted to an unlawful dismissal disguised as a mutual separation.
  
  
• While the COA would not be able to reinstate Fatimah due to her age, as she has already reached retirement age, the Court did award her RM 177,600.00 in back wages which reflected two years’ worth of salary.