Melissa Joan Fernandez, a kindergarten director, worked for five years at Tadika Celik Comel Sdn Bhd (formerly known as Redboot Education Group) under her spouse’s visa.
She was unable to apply for a work permit because her employer did not have a business licence.
The Kuala Lumpur Industrial Court ruled her dismissal to be without just cause or excuse, saying that the fault lay with the company for not having a business licence, a prerequisite for a work permit application under immigration rules.
In his award, court chairman Zulbahrin Zainuddin said Fernandez had attempted to apply for a work permit soon after she joined the company on Jan 1, 2019, but was told by the immigration department that she needed to submit her employer’s business licence to support her application.
He noted that the company allowed her to work under her spouse visa as it had failed to obtain a business licence from the local authority.
Zulbahrin said the claimant continued to work under her spouse visa without complaint by the company until she was suddenly issued a “show cause” notice on Jan 1, 2023, asking that she furnish her work permit.
“After she responded stating that she was unable to proceed with the application as she did not have the complete documents, the company proceeded to issue her with a notice of suspension and (convened) a domestic inquiry (DI) with the reason that her reply was unsatisfactory.
“The DI held on Jan 30, 2023 unanimously concluded that the claimant’s (Fernandez) failure to adduce proof of her work permit rendered her employment contract void ab initio (from the outset),” he said in the award handed down last week.
Fernandez was dismissed on Feb 2, 2023, based on the recommendation of the DI, the court found.
Zulbahrin said it was clear to the court that Fernandez had attempted to get her work permit but was refused due to the unavailability of the company’s business licence.
“The duty in providing its business licence as a supporting document for the claimant to apply for a work permit is always the duty of the company.
“The fact that the company successfully obtained the business licence after the dismissal of the claimant in 2023 is the ultimate evidence that it was the ongoing responsibility of the company to ensure that the business licence had been properly obtained,” he said.
For that reason, Zulbahrin said the company’s conclusion that Fernandez’s failure to secure a work visa amounted to a serious misconduct was without basis.
The court awarded Fernandez 24 months’ back wages based on her last drawn monthly salary of RM10,100 — subject to a 20% deduction for post-dismissal earnings — amounting to RM193,920.
It also awarded her four months’ compensation in lieu of reinstatement, totalling RM40,400.
Julian Lee appeared for the claimant, while Desmond Ho represented the company.