ForLaw Me

In the case of B. Braun Medical Industries Sdn Bhd v Mugunthan a/l Vadiveloo , the Court of Appeal clarified several key points regarding mutual separation schemes (MSS) versus voluntary separation schemes (VSS): 1. Unfair dismissal can occur if an employee is coerced into signing an MSS under the threat of redundancy and retrenchment. 2. The burden of proof lies with the employee to demonstrate coercion or force in signing the MSS. The employer is not required to prove that the agreement was voluntary. 3. Courts assess the conduct and correspondence between the parties to determine if the employee was indeed coerced. Factors considered include negotiation dynamics, lack of objection, and any admissions by the employee regarding the voluntariness of their resignation. 4. Failure to substantiate coercion typically results in dismissal of the unfair dismissal claim solely on this ground.

In the recent case of Golden Star & Ors v Ling Peek Hoe & Anor and another appeal [2024] MLJU 909, the Federal Court held as follows:- (i) The court agrees with the appellants that respondents cannot claim legal charges, fees, or costs as special damages in the same proceedings between the same parties, based on principles, policy, and social policy. (ii) The court answers both questions in favor of the appellants, stating that costs, including legal costs, are distinct from damages and cannot be recovered as special damages in the same proceedings between the same parties. (iii) The appeals are allowed, and the decisions of the Court of Appeal and the High Court awarding legal fees as part of special damages are set aside. The specific amount of RM2,604,000.00 is set aside, while other orders of the High Court are maintained.