Appeal against Labour Dept’s decision dismissed

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KOTA KINABALU: The High Court yesterday dismissed with costs Port View Seafood Village Sdn Bhd’s appeal against a Labour Court’s decision which ordered the company to pay a claim of RM4,232.70 to its former employee.

Justice Datuk David Wang Dak Wah ordered the company to pay the sum to 32-year old Filipina Rocelyn Tubal Ranases within seven days of the judgment with interest at the rate of eight per cent from the date of the Labour Court’s judgment.

Justice David made the decision after considering the written and oral submissions of the appellant represented by counsel Chin Tek Ming and counsel P.J.Perira for Rocelyn, the company’s former waitress.

On August 6 this year, the Director of Labour allowed Rocelyn’s claims against the company, namely RM1,320 for payment of deduction of passport, RM2,757.70 for payment of overtime and RM155 for payment of deduction of others.

Earlier, Chin told the court that the company agreed to pay RM1,320 to Rocelyn and would also reimburse RM155 to her.

As to Rocelyn’s claim of RM2,757.70 for payment of overtime, Chin contended that the main issue was whether the calculation of overtime should either be based on the basic salary of RM300 or based on the basic salary plus service charges, points and tips totalling RM800.

Chin argued that the appellant company was responsible to pay RM300 to Rocelyn as it was the wages or salary promised to Rocelyn by the company in her Letter of Employment.

Chin also argued that the company should not be responsible for the overtime to be calculated based on the additional RM500 for the simple reason that all service charges, points and tips were paid by the customers and thereafter distributed among the employees at the end of every month.

Chin also submitted that there was neither any assurance nor guarantee that the amount of service charges, points and tips would remain the same every month as sales fluctuated.

“Now the Labour Department granted an order that the overtime was to be calculated based on RM800. This will lead to a difficult and unfair situation to the appellant company since the appellant will now have to pay the overtime from their own account.

“By calculating the overtime based on RM800, the appellant now needed to identify and ask the customers who had already paid the bills earlier. This is impossible to be done. How are the appellant going to claim back the service charge from the customers?” Chin submitted.

He added that based on the correct calulation, the company would only need to pay RM1,032.48 for overtime to Rocelyn.

In rebutting Chin’s arguments, Perira cited four authorities which stated that service charges were part of wages.

“In Kesatuan Kebangsaan Pekerja-Pekerja Hotel Bar & Restoran, Semananjung Malaysia vs Hotel Equatorial (M) Sdn Bhd, the chairman of the Industrial Court Amelia Tee Hong Geok Abdullah held that it had been clear and undisputed that service charge was part of wages,” he quoted.

Perira told the court that the definitiion of ‘wages’ in the Labour Ordinance were in pari material with the provisions of the Employment Act 1955 and therefore the case laws on definition of ‘wages’ decided by the courts in West Malaysia would be applicable to the State of Sabah.