LABOUR LAW

Case Presentation: Affin Bank v Mohd Kasim Ibrahim

2013 1 CLJ 465

Presented By: 1) Siti Nurimani Zahari P67267

2) Ma Kalthum Ishak P67261

Supervised By: Prof Kamal Halili

Issue

FACTS

*HC allowed the declaration

*COA upheld

contention

Appellant

•Lacks of necessary locus standi – never a party to the Business Transfer Agreement. •No obligation in law to offer continuous employment on the same terms and conditions he enjoyed previously •Respondent has voluntarily accepted a new contract since he worked for eight months although it was done under protest.  

Respondent • Ought to have honored the age of retirement term - could opt to retire

at the age of 60 years by making reference to Order 5 of the Vesting Order.

• Order 5 of the Vesting Order - legally required the appellant to offer the

respondent a continuous employment on terms not less favourable.

• Unilaterally imposing a shorter retirement age on the respondent = breach of Order 5 of the said Vesting Order.

• .

Continue..

• The Business Transfer Agreement defines contracts as "any agreements, contracts, deeds, indentures, deed polls or instruments to which Affin-ACF is or has ever been a party."

• Forced retirement of the respondent before he attained 60 = breach of the respondent's employment contract with Affin-ACF.

Continue..• Also in breach of the terms stipulated in the staff handbook of

Affin-ACF which stated the retirement age of the respondent as 60 and not 55.

• Fundamental principle in our employment law - an employee cannot be transferred from one employer to another without the consent of the employee.

• At common law, "a contractual right to personal service was a personal right of the employer. It was incapable of being transferred by him to anyone else and that a duty to serve a specific master could not be also transferred to someone else".

JUDGMENT

COMMENT

Thank You