During the mediation process, Y.A Dato Suraya Othman said this to me and my learned opponent “You can’t make people completely happy otherwise you will die young. Also, if we are completely happy, bad things happen. From my own experience, when I was too happy, next day I got transferred to another place (to Kuantan). When I was promoted to be Judicial Commissioner, I was then transferred to KL Court. Later, I was transferred again to Shah Alam. It applies to good people. Good people won’t last long. As long as we are happy although not completely happy, I think it is good enough. I don’t think that my husband is completely happy with me (she smiled at us).
Our case before her can be summarized as follows:-
(a) My client started her employment with the Defendant in 1979.
(b) In 1986, the Defendant sent a letter informing my client that she was now offered a new job with one of the Defendant subsidiaries (X) and her employment with the Defendant will automatically ceases.
(c) In 1992, the Defendant’s issued a letter promoting her to Senior Clerk and put her under probation. This letter was signed by Tengku Z.
(d) In 1993, Company X issued a letter to confirm the position. It was also signed by Tengku Z.
(e) Company X was voluntarily wound up in 2000. All the employees of Company X (including my client) lost their only jobs.
(f) According to the terms of the employment, our client was entitled for a retrenchment benefits for the sum of 90k.
(d) Upon our advice, my client filed this claim seeking the declaration that the Defendant was still the employer of my client and therefore liable to pay 90k to her.
During mediation (technically we were not supposed to argue during mediation), it was my learned opponent’s argument that my client’s claim was frivolous and should not be made in the first place. He argued that if my client thinks that she was still the employee of the Defendant and not with Company X, why she did not report back to the Defendant when Company X was wound up. In any event, he contended that my client’s employment was mutually terminated in 1986 and she joined Company on the basis of “new employment. 1992 was unintentionally issued.
I submitted that the Defendant was still the employer on the grounds:-
(a) 1986 letter was not a valid termination because my Client was never given an opportunity to decide whether to work with the Defendant or with Company X.
(b) Besides that, the Defendant’s action in 1986 letter was tantamount to force labor because My Client had no say at all.
(c) There was no necessity for my client to report back to the Defendant because it is clearly stated in 1986 letter that my client’s employment ceased automatically. It does not make any different even if my client gone to see them.
(d) The Defendant’s argument that 1992 letter was unintentionally issued was lame excuse.
(e) The Defendant has no business to issue 1992 if they think my client was not their employee.
(f) There are evidence to show that from 1986 up to 1995, my client’s salaries were paid by the Defendant and its marketing’s arm.
I humbly believe that the above argument was one of my best especially against experient practitioner (my opponent graduated from University of Malaya in 1979 when I was not even born). He has many cases reported in Malayan Law Journal and etc. He was not alone but assisted by another lawyer. It was like David versus Goliath!
Yesterday was my lucky day. I felt that I was in heaven when the Judge asked both parties whether we have watched the movie titled “THE RAINMAKER”. It was icing on the cake. I had watched the movie. It is about junior lawyer against senior lawyer. It is about bad insurance company who refused to allow the claim by its own client (insurer) without looking into the merits. It is about good versus evil. As expected, justice prevails.
Y.A Dato Suraya was on my side although not 100%. She believed that my client had a case against the Defendant. But she did say that there was no guarantee that she will decide in my favor should the matter tried. It could be the other way around.
In “Rain Maker” the insurance company through its lawyer arrogantly offered a small sum of money but rejected. Similar to my case, during the mediation, my client was only offered only 10% from the amount claimed. I did not think much. I told my client not to accept it because it was an insult and it was not genuine offer. She agreed.
So, I asked her how much she wants. I was not happy with her answer. She wanted 90% of the amount claim. I told her to forget about settling this matter outside the court because it was irrational. “You are greedy. Any Defendant’s lawyer will advise their client to try their luck by way of full trial upon hearing the demand.” I told her the most she can get is between 50%-60%. Finally she listened to me.
I then made my counter offer to the Defendant’s solicitors. “Mr. CSN, my client willing to settle at 70%”. “I don’t think my client will agree to that. My mandate is only up to 15%.” He replied back.
Both of us agreed that we had no alternative but to proceed with the trial. Till now, I strongly believe that it was his advice to his client not to settle this matter. From his demeanor and the way he speak, I think he was confident that he can nail me.
Later in the afternoon, the Judge called all the parties to her chamber. She wanted to know how much the offer and the counter offer. I told her that the amount offered was a peanut. It was our stand the amount offered should be between 50%-70%.
She started to talk about “happiness” as adumbrated in first paragraph of this article. She indirectly advised the Defendant’s Managing Director Tengku Zar (lady) to revise the offer after taking into account all the legal aspects raised by me and its merits. She reminded the Defendant of its moral obligation. Also, She reminded my client to more open to listen to any reasonable offer.
It was worthwhile waiting. The Defendant’s MD came up with final offer although his solicitors were not happy. The MD agreed to pay 50%.
I convinced my client that it was a good deal. “You either take it or lose it”. Finally, she accepted the offer.
To be honest, if this matter proceeded, although I was extremely confident that I can handle it well, there is a good chance for my client not to get a single cent. By the way, it is now academic.
I am a lucky guy because:-
(a) I managed to discharge my duties towards my client at the very best of my ability;
(b) I was at the right time (watching the right movie), place and before the right Judge;
(c) My client was happy (though not completely) for securing at least half of the amount claimed. She can now celebrate Christmas with style.
(d) The Defendant’s Managing Director did not listen to his solicitor’s advice causing him unhappy
What I can tell you is that I am really happy.
-The end-
P/s I am afraid to say that I am completely happy. Bad things happen
