constructive dismissal, case

8/18/2019 Constructive Dismissal, case

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INDUSTRIAL COURT OF MALAYSIA

[CASE NO: 25(24)/4-997/12]

BETWEEN

RAJIMI MANSUR

AND

SYARIKAT PRASARANA NEGARA BERHAD

AWARD NO. 917 OF 2015

BEFORE : YA PUAN TAN GHEE PHAIK

VENUE : Industrial Court, Kuala Lumpur.

DATE OF REFERENCE : 19 July 2012.

DATES OF MENTION : 3 September 2012, 2 October 2012, 6 November

2012, 10 December 2012, 11 January 2013, 27

February 2013, 4 April 2013, 22 April 2013, 30

May 2013, 24 June 2013, 24 July 2013, 23

September 2013, 18 October 2013, 6 November

2013, 19 February 2014, 7 September 2014, 19

June 2014, 8 July 2014, 19 August 2014, 22

September 2014, 9 October 2014, 11 November

2014, 9 December 2014, 22 December 2014, 15January 2015, 4 Februari 2015, 17 February

2015, 19 Mac 2015, 25 May 2015, 25 June 2015

and 13 July 2015.

DATES OF HEARING : 18 November 2013, 19 November 2013, 21

January 2014, 22 January 2014, 22 April 2014

and 21 May 2014.

DATES OF RECEIPT OF: By the Claimant – 7 July 2014.

SUBMISSIONS

By the Respondent – 9 October 2014.

Rebuttal by the Claimant – No.

REPRESENTATION : For the claimant - Varathan Panneer Selvam;

Malaysian Trades Union Congress (MTUC)

For the respondent - Abdullah Abdul Karim;

Malaysia Employers Federation (MEF)


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AWARD

Background

1. This case was heard by the Chairman of Court 24 YA Puan Yamuna Menon who

has since retired on 18.4.2015. Both parties had given their consent for another Chairman

of the Industrial Court to hand down the Award. On 6.6.2015, the case was transferred to

Court 25 for the handing down of the Award. The case was fixed for oral submission and

clarification before the Chairman in Court 25 on 25.6.2015, but only the representative for

the Respondent was present. The case was not proceeded with but was fixed again for

clarification on 13.7.2015. Both the representatives for the Claimant and the Respondent

attended the clarification session on 13.7.2015 and the Award in this case has been made

in accordance with the clarifications as well as the evidence adduced during the hearing.

2. This is a dispute between Syarikat Prasarana Negara Bhd ('the Respondent') and

Rajimi bin Mansor ('the Claimant'). The proceedings are based on the reference made the

Minister of Human Resources under Section 20(3) of the Industrial Relations Act 1967

(IRA) in respect of the dismissal of the Claimant on 24.2.2011. In paragraph 3 of the

Claimant’s Statement of Case, the Claimant avers that “the dispute is over the 'forced

resignation' and/or dismissal of the Claimant by the Respondent effective 24.2.2011”. The

Respondent has disputed the averment of the Claimant and contends that the Claimant,

by a letter dated 24.2.2011, had voluntarily resigned on his own accord.

3. The Claimant ('CLW1') gave evidence on his own behalf and filed a witness

statement marked as 'CLWS' as his evidence for the examination in chief. He did not file

any bundle of documents. The Respondent called three (3) witnesses, namely 'COW-1',


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'COW-2' and 'COW-3' to testify on its behalf. The witness statements for COW-1 and

COW-2 are marked 'COWS-1', 'COWS-2' respectively. The witness statements are their

evidence for the examination in chief. No witness statement was tendered by COW-3.

The Respondent filed 2 bundles of documents marked as 'COB' and 'COB-1'.

4. Whether The Claimant Is Employed By The Respondent Since 1974

Before the Court goes into the substantive merits of the case, there is one issue about the

length of employment of the Claimant by the Respondent that needs to be settled. The

Claimant has worked with the Respondent since 1.11.2004 as a Purchasing Supervisor.

During the clarification session, the Representative of the Claimant admitted that there is

no dispute on this date. He further agreed that pages 8-11 COB are not disputed and that

the Claimant had been paid termination benefits by Intra Kota Consolidated Bhd and was

re-employed by RAPID KL on terms not less favourable to the earlier employment contract

which the Claimant had accepted. The same goes for the subsequent termination and re-

employment by RAPID KL to the current employer, that is the Respondent. The Claimant

has stated that his employment with the Respondent is a continuation of his employment

service with the previous companies that had employed him but that is being disputed by

the Respondent. In CLWS Answer 2, the Claimant stated as follows:

“My employment history with this Bus Transport Company, which has changed

ownership and/or names a number of times are as follows:

i) Messrs Sri Jaya Kenderaan Sdn Bhd as an Administrative Clerk in

1974;

ii) Messrs Intra Kota Consolidated Bhd.;

iii) Messrs Rangkaian Pengangkutan Intergrasi Deras Sdn Bhd;

iv) Finally, Messrs Syarikat Prasarana Negara Berhad.


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5. Apart from the bare statement above, there is no other information or evidence

available for the Court to make a finding in favour of the Claimant in that his 'employment

history with this Bus Transport Company' has commenced in 1974. All the companies

cited by the Claimant in his evidence are separate legal entities. Even the Claimant

himself cannot state categorically that it was merely a change of names without any

change of ownership as evident from his answer above. On page 8 COB, there is a letter

of offer to the Claimant dated 11.10.2004 to work with Rapid KL which offer had been

accepted by the Claimant on 15.10.2004. On 22.10.2004 the Claimant had also signed a

letter of resignation to Intrakota Consolidated Bhd. These documents show that the

Claimant had been terminated by his last employer and he was then reappointed by a new

employer on terms that are not less favourable to him than that of his last employment

contract and that everything that had been legally due to him as a result of that termination

exercise had been duly paid to him. There had been a change in ownership of the

business and the Claimant had been re-appointed to a new employment with a new

employer. This has further been confirmed in the clarification session by both parties.

6. In the case of Abdul Aziz Abdul Majid & 141 Lagi v. Kuantan Beach Hotel Sdn

Bhd, Alam Venture Sdn Bhd and Industrial Court [2012] 1 LNS 1294, the 142

Appellants were employees of Kuantan Beach Hotel Sdn Bhd ('1st respondent') who owned

and operated a hotel under the name and style of Hyatt Regency Kuantan ('the hotel'). On

25.4.2005, the 1st respondent entered into a Sale and Purchase Agreement with Alam

Venture (2nd respondent'), to sell the Property on an 'as is where is basis'. The Property

includes the land and buildings where the hotel is situated. Some 4 months after the Sale

and Purchase Agreement was entered into, on 22.8.2005, a Receiver and Manager was

appointed over the 1st respondent's properties which includes the hotel. In over ruling the


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decisions of both the Industrial Court and also the High Court, the Court of Appeal held

that in deciding whether there was a change of ownership, the Court should not have

accepted the literal meaning of the words found in Article 2.4 of the Collective Agreement.

At page 1294 in paragraph 22, the Court of Appeal held as follows:

[24] In our judgment the Industrial Court and the High Court erred when they

restricted the application of Article 2.4 to a change in ownership of the 1 st

Respondent only as a legal entity ie, its shareholding, and not to a change of

the ownership of its business as well”.

7. Although the above cited case involves workers in the hotel industry, the rationale

and reasoning of the Court of Appeal is applicable whereby the Court must not only look at

the change of name per se but must also apply the broad and pragmatic approach to

include the business of 1st respondent, that is, the employer of the employees concerned.

The Federal Court in Alam Venture Sdn Bhd & Anor v. Abdul Aziz Abdul Majid & Ors

[2015] 5 CLJ 1 affirmed the decision of the Court of Appeal. In paragraph 34 at page 14 of

its decision, the Federal Court held as follows:

“It is therefore obvious that the hotel business of the second appellant was

transferred and taken over by the first appellant as a going concern. In a

transfer as a going concern the business remains the same but in different

hands: see Melon v. Hector Power Ltd [1981] 1 All ER 313 which was

referred to in Abdul Aziz Atan & Ors v. Rengo Malay Estate Sdn Bhd [1986]

1 CLJ 373; [1986] CLJ (Rep) 41”.

8. As there has been a change of ownership and the respondents' employment were

terminated by the 1st respondent as a result of the change in ownership, they were thus

able to succeed in their claim for compensation and back wages in lieu of reinstatement. In

the instant case, without there being any evidence adduced by the Claimant to prove that

his period of employment with the Respondent is not terminated each time there is a

change of ownership or change of name, the Claimant must be taken to be employed by


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another employer on each of the 4 occasions he had stated in his Answer 2 in CLWS and

his service record will start anew with the new employer as he is no longer working with

the last employer. Therefore, the Court finds that the Claimant must be taken to have

been employed afresh each time he starts his employment with a new company and the

Respondent is right in submitting that the Claimant has been in its employment only from

1.11.2004 and has not been in its continuous employment from 1974.

9. Whether The Claimant Was Forced To Resign?

In this case, after the Claimant submitted his Notice of Termination, he did not show up for

work at the Respondent's office to serve out his period of notice. He no longer went to

work from 25.2.2011 after signing and submitting page 1 COB to COW-1 even though

COW-1 told him to report to the Human Resource Department (HR Department) on

25.2.2011 to make the necessary arrangement for his departure. Subsequently the

Respondent's HR Department issued page 2 COB to the Claimant which he received on

27.5.2011 at the Jabatan Perhubungan Perusahaan office. Page 2 COB is a letter of

termination which states that the Claimant had not been attending to his duties since

25.2.2011 and that he had been on leave of absence without the prior approval of the

Respondent and hence he is dismissed as from 25.2.2011. Since the Honourable

Minister's reference is in respect of the Claimant’s dismissal on 24.2.2011 which pertains

to the forced resignation as pleaded by the Claimant and is not about this post resignation

letter from the HR Department, both the Claimant and the Respondent have agreed at the

clarification session that the post resignation letter at COB p 2 is not an issue before the

Court and will not be dealt with here. The complaint made by the Claimant to the Jabatan

Perhubungan Perusahaan is about the forced dismissal and so when the reference is

made by the Minister to the Industrial Court, the Industrial Court is seized with the


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jurisdiction to hear and make a decision on the dispute that is in relation to the forced

resignation of the Claimant on 24.2.2011. During the hearing before YA Puan Yamuna

Menon, the Claimant has commenced the case being the one who bears the burden of

proving that he has been forced to resign on 24.2.2011 as pleaded in paragraph 3 of his

Statement of Case.

10. The Claimant did not call any other witness, other than himself, to testify at the

hearing in the Court. The Claimant's testimony of the events leading to his resignation or

his alleged forced resignation is in Question and Answer 4 of the Claimant's witness

statement (“CLWS”). It is as follows:

“Q : (Please see p 1, CLW “Notis Perletakan Jawatan” ). Please explain

the circumstances leading to this letter dated 24 February 2011 to the

Court?

A On 24 February 2011, I was called to the office of one Ms Mas Nizam,

General Manager Purchasing. At her office, there were three (3) other

Managers present. They were:

i) Mr Pang Swei Lang;

ii) Ms Rosinah, and

iii) Mr Khairul Azwan

In the room, I was bombarded with the allegation “Ambil duit dari

Supplier”. I denied the allegation as it was altogether baseless.

At the end of that meeting, Ms Mas Nizam printed out this typed letter

and ordered me to sign it. She claimed that 'signing' this letter is the

only way out and asked me to leave her office.


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11. During the hearing, Puan Masnizam bt Hisham, the R espondent’s Group Director,

Infrastructure Service Division (“COW-1”), Encik Khairul Azuan bin Mohamed, Vice

President Group Procurement Department (“COW-2”) and Encik Mohar Khairudin, Senior

Manager, Human Resources Department (“COW-3”) gave evidence on behalf of the

Respondent. Their witness statements are marked respectively as “COWS -1”, “COWS-2”,

and “COWS-3”. The person referred to as “Ms Mas Nizam, General Manager Purchasing”

in the Claimant’s testimony above is COW-1. The relevant part of the evidence by COW-1

regarding the meeting on 24.2.2011 and the events leading up to her preparing the letter of

resignation for him to sign is contained in Question 9 to Question18 COWS-1 and is as

follows:

Q9 : Please explain what is the document?

A : This is a written admission made by Rajimi on 24/02/2011 that he had

Been involved in corrupt practices.

Q10 : How did he make the admission?

A : We received a complaint from one of our vendors, Ms. Natasha

Phang, that Rajimi and some other staff had been receiving kickback

from certain vendors and contractors for services rendered to them.

So, I decided to call Rajimi and two other staff on separate occasions

for a meeting to discuss the allegation of corrupt practices. The

meeting with Rajimi was held on 24/02/2011 at about 2.30 pm at my

office located at the Procurement Office, 3 rd Floor LRT Deport

Subang. During the meeting, Rajimi admitted having received

gratif ication f rom our contractor, I ntegrated Coach Sdn Bhd on

two occasions. H e also spil led the beans by naming other staff

who had been i nvo lved in corr upt pr act ices. I r ecorded h i s


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admission in to wri tin g and got him to sign hi s statement. H is

admission was made in the presence of Khair ul Azuan, Roshi na

Othman, Pang Swee Lei and myself . He felt gui l ty about hi s

wrongdoing and decided to resign .

Q11 : Refer to COB1. Do you have personal knowledge of the

document?

A : Yes, I do.

Q12 : Please explain the document.

A : This is Rajimi's resignation letter dated 24 Feb. 2011.

Q13 : Who prepared the letter?

A : I prepared the letter.

Q14 : Why did you prepare the letter?

A : Since Rajimi had indicated his intention to resign, I offered to prepare

the letter for him to sign.

Q15 : Did you or Khairul make any promise that if he resigned the Company

would not lodge police report?

A : No, we did not promise him anything.

Q16 : Did you or Khairul coerce him into resigning that if he did not resign,

the Company would dismiss him anyway?

A : We did not. He resigned voluntarily without any coercion, threat or

promises.

Q17 : Di d you tell him to l eave immediately or to ser ve the requi r ed

notice?

A : I told h im to repor t to the HR Dept on 25/02/11 to make the

necessary ar r angement f or h i s depart ur e.


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Q18 : Di d he r eport to work on 25/02/2011?

A : No, he did not. H e remain ed absent fr om 25/02/11 onwards.

12. In the instant case, COW-2 was also present at the meeting on 24 February 2011.

The relevant part of his evidence regarding the conduct of the meeting and the events

leading to the Claimant signing the letter of resignation in page 1 COB is from Questions 7

to Question 19 COWS-2 and is as follows:

Q7 : Refer to COB1. Do you have personal knowledge of the

document?

A : Yes, I do.

Q8 : Explain what is the document.

A : This is Claimant's resignation letter dated 24 February 2011.

Q19 : Who prepared the letter?

A : Puan Masnizam Hisham.

Q10 : Who is Puan Masnizam?

A : She was the Executive Vice President, Group Procurement Dept.

Q11 : Why did she prepare the letter of resignation?

A : On 24/2/2011 at abour 2.20 pm, Puan Masnizam called Rajimi to her

office at the Procurement Office, 3rd Floor LRT Depot Subang. We

wanted to question him regarding a complaint which we received from

one of our vendors, Ms Natasha Phang, who alleged that Rajimi had

been asking for monetary favours from vendors.

Q12 : Who else were at the meeting with Rajimi on 24/2/2011?

A : Together with Puan Masnizam and I, there were two other people

namely Swee Lei and Roshina Othman.


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Q13 : What was the subject matter discussed at the meeting?

A : It was about an allegation of corruption against Rajimi. During the

meeting, Rajimi admitted to receiving money from Intergrated Coach

Sdn Bhd twice. He received RM200.00 prior to Chinese New Year

and RM300.00 during Chinese New Year. He admitted to his corrupt

practice of receiving money from the aforementioned contractor for his

services in expediting the processing or purchase orders. He made

the admission voluntariy and without any coercion.

(There is no Qeustion 14 and Answer 14).

Q15 : Refer to COB4 and explain the document.

A : This is the written admission made by Rajimi in the presence of Puan

Masnizam, Pang Swee Lei, Roshina Othman and myself.

Q16 : What took place subsequently?

A : Rajimi said that he would prefer to resign as he felt ashamed of

his wrongdoing.

Q17 : What happened then?

A : Since he wanted to resign, Puan Masnizam had arranged to prepare

the letter of resignation for him to sign.

Q18 : Did you or Puan Masnizam force Rajimi to resign?

A : No, we did not. He resigned of his own free will.

Q19 : Did you or Puan Masnizam make any promise that if he admitted to

the allegation, the Company would not lodge any police report against

him?

A : No, we did not promise anything.


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13. Clearly, the evidence of the Claimant contradicts that of COW-1 who said she did

not ask him to leave immediately but to report to the HR Department to make the

necessary arrangements whereas the Claimant has testified that COW-1 asked him to

leave her office. Page 1 COB is prepared by COW-1 so she will know that the Claimant

needs to give notice of his resignation to the Respondent and it is not an immediate

resignation on the spot. Asking him to leave her office does not mean asking him to leave

the employment of the Respondent with immediate effect because page 1 COB is a notice

of resignation and the Claimant needs to serve out his period of notice. COW-1 has

testified that she asked the Claimant to go to the HR Department to make the necessary

arrangement for his departure presumably to return the Respondent's assets that are in the

possession of the Claimant, to settle the balance of the Claimant's leave entitlement, to

hand over all the pending tasks of the Claimant, the office keys if any, the removal of the

Claimant's personal belongings from the Respondent's premises, etc. At that time, the HR

Department was in Bangsar whereas the office of COW-1 and the Claimant was in

Subang. The Court was also informed that at the material time there was a problem with

the email system between the two offices which accounted for the lack of communication

between the 2 offices.

14. COW-1 further testified that no threat, inducement or promise was made to the

Claimant and he was never forced to resign at any time during the meeting. The

atmosphere during the meeting was cordial and the Claimant could have left the meeting if

he had wanted to as he was sitting near the door that was closed but not locked. The

Claimant could also have left the room when COW-2 went out of the room to collect the

documents from the printer but he did not do so. In cross examination, the Claimant has

admitted to the above. From the testimonies above, it is undisputed that there was a


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meeting on 24.2.2011. It is also undisputed that the Claimant attended the meeting with

COW-1 together with 3 other managers. In that meeting, the Claimant was asked to clarify

the allegation that he was asking money from one or more of the Company’s suppliers.

The Claimant has testified that COW-1 has claimed that signing the resignation letter is the

only way out. It is obvious to the Court that if the Claimant 'denied the allegation of taking

money from the suppliers as it was altogether baseless', then there is no way he would

have signed page 1 COB. The Court has perused the evidence and is of the view that the

testimonies of COW-1 and COW-2 are to be believed and reflect a more accurate version

of what had transpired at the meeting. In the circumstances, the Court is of the view that

the Claimant has resigned voluntarily and had not been dismissed by the Respondent.

15. This is unlike the situation in the case of General Containers Sdn Bhd v. Yip Siew

Ling [1994] 2 ILR 912 whereby the managing director had uttered the words 'get out, get

lost' which the claimant interpreted to mean that he should get out of the office or leave the

company. He was also ordered by the police, who were summoned by the managing

director to the office, to leave the premises. The claimant had also told the managing

director that 'if you do not like me, pay my wages, pay my compensation, then I'll go. In

such circumstances, the Court held that the managing director clearly intended to bring the

Claimant's employment to an end. This was reinforced by the wife of the managing

director requesting the claimant to collect his wages and compensation.

16. Whether The Claimant Has Admitted To Receiving Money From A Supplier

In page 4 COB, the Claimant has admitted in writing that he had received money from

Integrated Coach Sdn Bhd on two occasions. The written admission that the Claimant had

been receiving money from the Respondent's contractor, Integrated Coach Sdn Bhd, was


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made at the same meeting on 24.2.2011 when he tendered his notice of resignation and it

was witnessed by all the other 4 persons present at the meeting, including COW-1 and

COW-2. The admission in page 4 COB is signed by the Claimant on the same day that he

signed and tendered his notice of resignation at page 1 COB.

17. In answer to Q6 CLWS, the Claimant has denied seeing page 4 COB before and

said that he saw it for the first time in the Company's Bundle of Documents when it was

served on his counsel. COB was served on 6.11.2013 and the matter came up for hearing

on 18.11.2013. If the Claimant did not have sufficient time to study and rebut the contents

in page 4 COB, he could have asked for an adjournment but he did not. He had known

from the beginning that the case the Respondent has against him is about the taking of

money from suppliers and that led him to tender his notice of resignation on 24.2.2011. By

merely denying knowledge of the letter does not help the Claimant. If the Claimant is

saying that page 4 COB is a concoction of the Respondent, then there must be some

cogent evidence to support his contention. It is to be noted that the handwriting of the

Claimant on both pages 1 and 4 COB is the same. Without giving any particulars or

explanation even though page 4 COB bears his initial and his hand written IC number and

has been witnessed by the 4 persons who have attended the meeting together with him, it

is difficult for the Court to accept the mere denial from the Claimant that he has never seen

the document before. It begs the question of why he decided to tender his notice of

resignation on the same day as page 4 COB if it were not for the admission that he had

been 'receiving gratification from our contractor, Integrated Coach Sdn Bhd on two

occasions' as stated by COW-1 and COW-2.


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18. During cross examination, the Claimant has also failed to rebut the testimonies of

COW-1 and COW-2 that his statement in page 4 COB was given voluntarily without any

threat, inducement or promise from any of the other persons present in the room who had

mainly remained silent and they were merely listening to the conversation between the

Claimant and COW-1. As stated earlier, the meeting between the Claimant and COW-1,

COW-2 and the other 2 persons had been cordial. In para 9.3 of the Claimant’s written

submission, it was submitted that 'In the room, the Claimant was bombarded with the

allegation “Ambil duit dari supplier!” which was denied by him. The Claimant sa id that he

denied the allegation as it was baseless but this denial does not make sense to the Court

as he did sign the notice of resignation. If the allegation is baseless, then obviously the

Claimant would not have signed page 1 COB, much less page 4 COB, as he is a senior

employee and a person who has some standing in the Respondent company as a

Purchasing Supervisor. The Claimant has been working since 1974. He is not a new

employee who is easily frightened or bullied into signing a letter of resignation unless there

had been a good reason for him to do so. If the Claimant did not sign page 4 COB, and

there was no admission made by him as testified by COW-1, there is no reason for him to

tender his resignation as in page 1 COB.

19. COW-1 stated in Court that the Claimant was always the person who recite the 'doa'

during the Respondent company's functions or events and also never missed his prayers.

The Claimant had felt embarrassed or ashamed and as a result of that, he offered to

resign. COW-1 then asked him if she can prepare the resignation letter for him. The

Claimant agreed and subsequently signed the letter on page 1 COB intituled “Notis

Perletakan Jawatan”. COW-2 also testified that the Claimant had made the admission

voluntarily and without coercion. He had informed the meeting that he had received


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RM200.00 prior to Chinese New and RM300.00 during Chinese New Year from Integrated

coaches Sdn Bhd for his services in expediting the processing of purchase orders. After

COW-1 and COW-2 had met with Natasha Phang who is one of the Respondent's vendors

to hear her complaint that the Claimant has been asking for monetary favours from the

Respondent's vendors, he was called for the meeting by COW-1 to give him an opportunity

to explain the allegation that had been made against him. During the meeting, the

Claimant has admitted to having received gratification from one of the Respondent's

contractor, that is, Integrated Coach Sdn Bhd on two occasions and he also named other

staff who had been involved in corrupt practices. COW-1 recorded his admission, put it in

writing and got him to sign the admission which is exhibited in page 4 COB. The Court

finds that after the Claimant has made the admission in page 4 COB, the Claimant then

tendered his resignation as in p 1 COB on the same day as both page 1 and page 4 COB

were prepared by COW-1 on the same day and signed by the Claimant on the same day

during the meeting. On a balance of probability, the Court is more inclined to accept the

testimonies of COW-1 and COW-2 as to why the Claimant had signed page 1 COB.

20. At paragraph 11.2 of its written submission, the Claimant’s submission is that there

was no complaint from Ms Natasha Pang as claimed by both COW-1 and COW-2 and that

page 3 COB is purportedly from one Terence Ng Mo Joo of JB Auto Electric Sdn Bhd. The

Court has perused page 3 COB and find that the complaint is from Terence Ng Mo Joo

dated 16.3.2011 which is made after the date of the Claimant's notice of resignation and

the Court had also perused page 1 COB-1 which is an email dated 27.1.2011 sent to

COW-2. It is stated in the email that Cik “Natasha from El Win” also has a similar

complaint as the complainant in the email in that the Claimant had asked for a 10%

commission of the total purchase order or else the Claimant will not process his purchase


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meeting on 25.2.2011 that is unfair or that has put undue pressure on him to admit to

something that is false or about the mannerisms of the people present at the meeting or

that the Respondent had been in breach of any of the terms in the employment contract

between him and the Respondent.

22. This is unlike the situation in the case of Kuala Lumpur Glass Manufacturers Co

Sdn Bhd v. Lee Poh Kheng [1995] 2 ILR 917, where the the financial controller of the

company (“FC”) had threatened to make the claimant's life miserable if the claimant did not

resign, and that by the time the whole matter was through, the claimant will be a nervous

wreck if he did not resign. The FC then boasted that if people did not co-operate with him,

he will get rid of them and cited a few cases of persons in the company that he had got rid

of and he then said that he was now 'coming for the claimant'. The FC's evidence was a

flat denial of most of the evidence of the claimant. On a balance of probability, the

Industrial Court found that the proven conduct of the FC coupled with his arrogant and

overbearing attitude towards the claimant, who was a long serving employee of the

company, crossed the fine line separating legitimate dictation to the claimant of the scope

and manner of doing his work and the use of bullying tactics in an effort to humiliate the

claimant into abandoning his job. The Court then held that the claimant had succeeded in

establishing that he had been constructively dismissed.

23. In the instant case, the Court cannot find any 'bombardment' as alleged as no

evidence was adduced on this score. The Court is unable to accept the fact that all the 4

persons who attended the meeting on 24.2.2014 together with the Claimant and placed

their signatures above their names on page 4 COB as witnesses to the admissions made

by the Claimant were all lying without there being any evidence to support this contention.


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Thus the Claimant's testimony that he had never seen page 4 COB before it was filed by

the Respondent cannot be accepted by the Court. The Court is of the view that the

Claimant has resigned voluntarily as a result of his admission in page 4 COB which is a

valid admission from the Claimant himself.

24. Whether Claimant Is Constructively Dismissed

In the instant case, if the finding of the Court that the Claimant has resigned because of his

own shame or embarrassment due to his own wrong doing is found to be wrong, then the

Court will proceed to assess if the Claimant has been constructively dismissed. In the book

Industrial Relations In Malaysia Law And Practice 3rd Edition by Dunston Ayadurai, at

page 297, the learned author had stated as follows:

“To prove that he has been constructively dismissed, it will be necessary for

the workman to establish the following:

(a) the employer by his conduct breached the contract in respect of

one or more of the obligations owed to the workman; the

obligations breached may be in respect of either express terms

or implied terms, or both;

(b) the terms which had been breached go to the foundation of the

contract; or, as stated in other words, the employer had

breached one or more of the essential terms of the contract;

(c) that the workman, pursuant to and by reason of the aforesaid

breach, had left the employment of the employer; that is. that the

workman had elected to treat the contract as terminated; and

(d) that the workman left at an appropriate time soon after the

breach complained of, that is, that he did not stay on in such

circumstances as to amount to an affirmation of the contract,

notwithstanding the breach of the same by the employer”.

25. In Wong Chee Hong v. Cathay Organisation Sdn Bhd [1988] 1 MLJ 92, the

Federal Court had referred to the decision of Lord Denning in the case of Western

Excavating Ltd v. Sharp [1978] 1 QB 761 (Court of Appeal) to come to the conclusion of


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what 'constructive dismissal' is. The doctrine of 'constructive dismissal' is explained in

Western Excavating Ltd at page 717 as follows:

“If the employer is guilty of conduct which is a significant breach going to theroot of the contract of employment, or which shows that the employer no

longer intends to be bound by one or more of the essential terms of the

contract, then the employee is entitled to treat himself as discharged from any

further performance. If he does so, then he terminates the contract by reason

of the employer's conduct. He is constructively dismissed. The employee is

entitled in those circumstances to leave at the instant without giving any notice

at all or, alternatively, he may give notice and say he is leaving at the end of

the notice. But the conduct must in either case be sufficiently serious to entitle

him to leave at once. Moreover, he must make up his mind soon after the

conduct of which he complains; for, if he continues for any length of timewithout leaving, he will lose his right to treat himself as discharged. He will be

regarded as having elected to affirm the contract”.

26. The Federal Court in Wong Chee Hong found that the transfer of the appellant

employee was in fact a demotion in rank, whereby the appellant was stripped of all the

powers he once enjoyed amongst his fellow employees and was a punishment meted out

to the appellant without any disciplinary action being taken. The Federal Court, at page 96

rhs, held as follows:

“Thus in our judgment the transfer, which relegated the applicant to a position

of lesser responsibilities, albeit on the same terms and conditions of service,

which transfer the appellant refused to accept, is a dismissal. It clearly shows

that not only the respondent company was displeased with the appellant but it

also exhibited the respondent company's intention not to be bound by the

contract any longer. Such relegation of responsibility with its consequent

humiliation and frustration and loss of estimation amongst his fellow

employees made it impossible for the appellant to carry on being employed

under the respondent company's organisation. In other words, he had beendriven out of his employment. This is therefore a dismissal”.

27. In the instant case, the Claimant has not been able to establish any of the

requirements needed for the doctrine of 'constructive dismissal' to kick in. The evidence

does not show that there is an intention by the Respondent to be no longer bound by the

terms of the employment contract between the Claimant and the Res pondent. No


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fundamental breaches of the employment contract has been cited by the Claimant whether

in his pleadings or in his evidence. In fact, in the light of the Claimant's admission of

receiving a 10% cut from the Respondent's suppliers, the Claimant has committed a gross

misconduct that goes to the root of his employment contract. Thus, the Court finds that the

claimant's contention that there is constructive dismissal by the Respondent cannot be

upheld.

28. Whether the Claimant had voluntarily resigned on 24.2.2011

At the same meeting on 24.2.2011, the Claimant has admitted to receiving money from the

Respondent's contractor, Integrated Coach Sdn Bhd on two occasions, once in the sum of

RM300 during Chinese New Year and before that in the sum of RM200, in a signed

document witnessed by all the 4 other persons present at the meeting. He gave his written

admission in paragraph 1 of page 4 COB where he stated as follows:

“Saya ada menerima duit daripada Integrated Coach Sdn Bhd sebanyak dua

(2) kali sebanyak RM 300 semasa Hari Raya Cina dan RM200 sebelum itu;”.

29. In paragraphs 2 and 3 of page 4 COB, the Claimant named his other colleagues

who were also receiving money or gratification from the suppliers of the Respondent. At

the bottom of page 4 COB, the Claimant admitted his wrong doing as follows:

“Saya mengaku saya bersalah kerana menerima duit rasuah dari kontraktor di

atas sebagai balasan mempercepatkan pemperosesan Purchase Order bagi

Service. Saya membuat kenyataan di atas dengan rela hati dan tanpa

sebarang paksaan”.

30. From the testimonies of COW-1, and COW-2, and that of the Claimant himself, the

Court finds that the Claimant has voluntarily admitted to the taking or asking of money

from Integrated Coach Sdn Bhd. Looking at the totality of the evidence, the Court accepts


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the Respondent's submission that the Claimant had chosen to resign as he wanted to

repent over his guilty conscience for taking money from the supplier. The fact that the

Claimant did not show up for work after that meeting on 24.2.2011 even though he was

supposed to serve out his notice period is also a factor to show that the Claimant was

ashamed of his actions and that he wanted to leave the Respondent company

immediately.

31. Whether Failure To Plead Fatal

The Claimant has submitted that there is no pleading on Integrated Coach Sdn Bhd. And

hence the Respondent cannot accept the Claimant's resignation that is based on the

Claimant receiving gratification from Integrated Coach Sdn Bhd. The Court notes that

there is no doubt in anybody's mind that the meeting on 24.2.2015 discussed the

Claimant's admission of taking money unlawfully from Integrated Coach Sdn Bhd. The

meeting and the Claimant in particular were aware that the Claimant has resigned because

of his admission regarding the taking of money from Integrated Coach Sdn Bhd. The

Industrial Court is empowered under the IRA to proceed with the hearing and disposal of a

case even if the parties have not filed any pleadings. For this, the Court need only to refer

to subsection 29(d) of the IRA which states as follows:

“29. The Court may, in any proceedings before it -

(d) hear and determine the matter before it notwithstanding the

failure of any party to submit any written statement whether

of case or reply to the Court within such time as may be

prescribed by the President or in the absence of any party to the

proceedings who has been served with a notice or summons

to appear”.

Then at subsection 30(5) of the IRA, it is provided as follows:

“The Court shall act according to equity, good conscience and the substantial

merits of the case without regard to technicalities and legal form”.


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32. Time and again, the superior courts have stated that the Industrial Court is not

bound by technicalities and strict rules of evidence and procedure. In Telekom Malaysia

Kawasan Utara v. Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 MLJ 129, the Court

of Appeal at page 137 dealt with all the previous decisions which has held that the

Industrial Court must not allow technical rules to be adopted to defeat claims which are

just and proper. The same applies to cases where the employees have been dismissed by

the employers for some misconduct. At page 137, the Court of Appeal held as follows:

“From all these, it is quite clear to us that the Industrial Court should not be

burdened with the technicalities regarding the standard of proof, the rules ofevidence and procedure that are applied in the court of law. The Industrial

Court should be allowed to conduct its proceedings as a 'court of arbitration',

and be more flexible in arriving at its decision, so long as it gives special

regard to substantial merits and decide a case in accordance with equity and

good conscience”.

33. In view of the above, the Claimant's contention, that the receipt of the gratification

from Integrated Coach Sdn Bhd, which though it has been admitted by the Claimant during

the meeting and accepted by the Respondent but cannot be heard or adjudicated upon by the

Court due to a failure to plead it cannot be upheld. The Court has looked at the

substantial merits of the case which it is empowered to do under section 30(5) of the IRA

and has found that the Claimant has made the admission at the meeting on his own free

will and has resigned voluntarily. The Court is also of the view that a less technical

approach need to be taken because the parties are represented not by lawyers but by

representatives from the trades union and employer's union who are not legally qualified.

Therefore, the failure of the Respondent to plead Integrated Coach Sdn Bhd in its

Statement of Case does not automatically result in the dismissal of its case against the

Claimant as the Court has ensured that the claimant has been given all opportunity to

ventilade his case.


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34. Whether The Claimant Was Dismissed With Just Cause And Excuse

According to the Respondent, the Claimant had remained absent from work from

24.2.2011 until 27.5.2011 whereby on that date, a notice regarding his absence from work

on page 2 COB was handed over to him at the Industrial Relations Department, Selangor

following his complaint to the said Department. Paragraph 8 of the Claimant's statement

of case contended that the Respondent was motivated by ill feelings and the decision to

dismiss him was arbitrarily arrived at has not been proven. The Claimant has been absent

from work since 25.2.2011 without informing the Respondent or getting the required prior

approval for leave. Hence it is not unreasonable for the Respondent to come to the

conclusion that he had resigned voluntarily in the light of the circumstances leading to his

resignation. In the instant case, there had been no domestic inquiry conducted against the

Claimant but that does not automatically negate the validity of the dismissal. In fact, as

submitted by the Respondent, the Claimant has committed an act of gross misconduct that

allows the Respondent to immediately dismiss the Claimant with just cause and excuse.

35. In the book “OP Malhotra's The Law of Industrial Disputes Volume II Sixth

Edition Lexis Nexis Butterworths at page 1118, the learned author has written as follows:

“Generally speaking, misconduct is a transgression of some established and

definite rule of action where no discretion is left except what necessity may

demand; it is violation of definite law, a forbidden act.

It means intentional wrong doing, it would include unlawful behaviour. A

conduct which is blameworthy would be misconduct, if by the commission or

omission of the acts of the employee, the employer suffers loss or it generatesan atmosphere destructive of discipline, the same is misconduct”.

36. On page 1125, the learned author referred to the case of Sharda Prasad

Onkarprasad Tiwari v. Central Railway (196) 1 LLJ 167, 170 (Bom) (DB.) where the

Bombay High Court per Raju J has enumerated broadly the following specific illustrative


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cases of acts of misconduct, the commission of which would justify dismissal of the

delinquent employee:

“(i) an act or conduct prejudicial or likely to be prejudicial to the interest orreputation of the master;

(ii) an act or conduct inconsistent or incompatible with the due or faithful

discharge of his duty to his master;

(iii) an act or conduct making it unsafe for the employer to retain him in

service;

(iv) an act or conduct of the employee so grossly immoral that all

reasonable men may say that he cannot be trusted;

(v) an act or conduct of the employee which may make it difficult for themaster to rely on the faithfulness of the employee;

(vi) an act or conduct of the employee opening before him temptations for

not discharging his duties properly;

(vii) an abusive act or an act disturbing the peace at the place of his

employment;

(viii) insulting or insubordinate behaviour to such a degree as to be

incompatible with the continuance of the relation of master and servant;

(ix) habitual negligence in respect of the duties for which the employee is

engaged; and

(x) an act of neglect, even though isolated, which tends to cause serious

consequences”.

37. The learned author then went on to refer to the case of Pearce v. Foster [1886] 17

QB D 536, on the effect of such misconduct in relation to the employee's employment by

citing Lopes LJ at 442 as follows:

“If a servant conducts himself in a way inconsistent with the faithful discharge

of his duty in service, it is misconduct which justifies immediate dismissal. That

misconduct, according to my view, need not be misconduct in the carrying on

of the service of the business. It is sufficient if it is conduct which is prejudicial

or is likely to be prejudicial to the interests or to the reputation of the master

and the master will be justified, not only if he discovered it at the time, but also

if he discovers it afterwards, in dismissing that servant”.


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38. In the case of Milan Auto Sdn Bhd v. Wong Seh Yen [1995] 4 CLJ 449 at 454,

455. Mohd. Azmi Kamaruddin FCJ in delivering the decision of the Federal Court has held

as follows:-

"As pointed out this Court recently in Wong Yuen Hock v. Syarikat Hong

Leong Assurance Sdn Bhd [1995] 2 MLJ 753 the function of the Industrial

Court in dismissal cases on a reference under s. 20 is twofold, f i rst ly , to

determine whether the misconduct complained of by the employer has been

established and secondly whether the proven misconduct constitutes just

cause or excuse for the dismissal. Failure to determine these issues on the

merits would be a jurisdictional error which would merit interference by

certiorari by the High Court." [Emphasis added].

39. Following the Federal Court decision, the task before this Court is to determine if

the misconduct complained of by the Respondent has been established. The test to be

applied is as stated by the Court of Appeal in Telekom Malaysia Kawasan Utara v.

Krishan Kutty Sangunai Nair & Anor [2002] 3 MLJ 129. The Court of Appeal held that

the standard of proof on the employer is on the balance of probabilities, which is flexible,

so that the degree of probability required is proportionate to the nature and gravity of the

issue. At page 137, the Court of Appeal has held as follows:

“... the Industrial Court should not be burdened with the technicalities

regarding the standard of proof, the rules of evidence and procedure that are

applied in the court of law. The Industrial Court should be allowed to conduct

its proceedings as a 'court of arbitration', and be more flexible in arriving at its

decision, so long as it gives special regard to substantial merits and decide a

case in accordance with equity and good conscience.

We do not think that representations by the minister to the Industrial Court

should be classified as 'civil' or 'criminal' and apply different burden of proof inrespect of each classification as is done in the court of law when finally the

awards that follow are the same: dismissal or whatever. Such an exercise

would also mean that it is more difficult to dismiss an employee who commits

a more serious wrong than a less serious one. That does not appear to be

right to us. It also means that no disciplinary action can be taken against an

employer (sic) (employee) who had been charged for a criminal offence in

court but was acquitted.”


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40. The Respondent has also relied on the case of Abdul Liel Hawa Hj Abdul Hamid v.

Philip Morris [2006] 4 ILR 2813 to support its submission that there had been no threat or

force applied on the Claimant and that the mere typing out of the Claimant's letter of

resignation by COW-1 does not, per se mean that, the Respondent used force to make the

Claimant resign. In that case, the claimant is an Agronomist employed by the company.

The claimant failed to pay a farmer for the tobacco leaves that the claimant had bought on

behalf of the company. Upon a complaint lodged by the farmer with the company against

the Agronomist, a long discussion was held between the claimant and his Regional

Manager resulting in the claimant tendering his resignation. The claimant averred that he

was faced with the threat of dismissal, threatened, coerced and / or compelled to sign the

company's prepared letter of resignation. Alternatively, the claimant contended that the

resignation was obtained under undue influence and hence the resignation is void and

unenforceable in law. The Industrial Court at para [18] page 2821 held that:

“the mere fact that the COW3 [the Regional Manager] had typed the letter of

resignation does not per se mean that force was applied since COW3 had

stated in evidence that it was the claimant who has asked COW3 to use his

laptop to type out the resignation letter.”

40. Conclusion

There has been no evidence of any compulsion in getting the Claimant to sign the

admission in page 4 COB or for him to name his other colleagues who had also been

receiving gratification from the Respondent's other suppliers. Two of his other colleagues

named by the Claimant in the list have resigned after being called by COW-1. By looking

at the totality of the evidence, on a balance of probability, the Court is satisfied that the

Claimant has on his own accord resigned from the Respondent company. Even if the

Court is found to be wrong in reaching this conclusion, the Court is of the view that the


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Respondent has dismissed him with just cause and excuse. In the circumstances, the

Claimant's claim is dismissed.

HANDED DOWN ON THE 28TH JULY 2015

(PUAN TAN GHEE PHAIK)

CHAIRMANINDUSTRIAL COURT, MALAYSIA

KUALA LUMPUR