The court emphasized that failure to substantiate claims with documentation undermines defenses against claims for salary and payments, allowing summary judgment when no genuine triable issue exists.

Mohd Nazlan Mohd Ghazali J:

Introduction

[1] This is an appeal against the decision of the Sessions Court which had dismissed the summary judgment application by the plaintiff. At the end of the hearing which was conducted via Zoom video technology, I allowed the appeal and highlighted the main grounds for my decision. This judgment contains the full reasons for the same. The parties are referred to herein as they were at the Sessions Court.

Key Background Facts

[2] The plaintiff, since her appointment on 18 October 2010, was an executive director of the first defendant company was also the second defendant company's head of Legal, HR/Admin & Corporate department. The defendants are related companies. The first defendant company is a listed entity with shares listed on Bursa Securities Malaysia Berhad. The second defendant is its subsidiary. The principal business of the group is operating in the construction, electrical and mechanical engineering, and plumbing segments.

[3] Beginning March 2018, the defendants started to fail to regularly pay the plaintiff's monthly salary and allowances. This was attributed to the defendants experiencing cash flow problems They thus decided to defer the payment of the plaintiff's full salary and allowances until the first tranche of monies due to the second defendant from some construction projects undertaken in Abu Dhabi was received. That first tranche was due to be received in November 2019. The plaintiff agreed to the deferment of her full salary and allowances until the first tranche was received. Although the plaintiff's salary was deferred, she did receive some salary but on an intermittent basis.

[4] The second defendant received the first tranche of payment for the Abu Dhabi projects, totalling approximately RM5.9 million in December 2019. This is confirmed in the annual reports of the defendants of 2019.

[5] Nevertheless, the plaintiff contended that despite receiving the said payments, the defendants refused to settle the plaintiff's outstanding salary and allowances, but instead RM3 million was paid to Kenneth Liew, the defendants' managing director.

[6] The plaintiff then repeatedly requested for payment due to her. She asked Kenneth Liew, Ivan Goh (representative of the new shareholder/investor known as CE Chuah) via text messages, met with CE Chuah all without success and sent three emails to Kenneth Liew, all unanswered. The plaintiff then issued a letter dated 9 March 2020 to Kenneth Liew notifying him that in the event her outstanding dues are not settled, she would consider herself constructively dismissed. However, there was no reply to this letter.

[7] As a result, the plaintiff issued her letter of constructive dismissal on 16 March 2020. There was still no response from the defendants. After she left however, Kenneth Liew wrote her a letter dated 18 March 2020 informing her that the plaintiff's salary was not deferred until the Abu Dhabi project proceeds were received but instead whenever cash flow and business of the defendants improved, that one Ivan Goh had not taken over the plaintiff's functions, but alleged that the plaintiff had apparently not been carrying out her duties and responsibilities and failed to protect the company's interest.

[8] The plaintiff replied to the letter on 8 May 2020 denying the same on the same date issued a notice of demand to the defendants. The notice of demand claimed among others, outstanding salary and allowance of RM 380,953.15 to be paid within 7 days, and the sums owed in income tax and EPF to be paid to the authorities also within 7 days. The defendants did not reply to this.

[9] The plaintiff accordingly commenced a writ action against the defendants seeking judgment for RM380,953.15 being the outstanding salary and allowances owed to her; and order compelling the defendants to pay statutory payments with regards her salary, specifically RM143,413.55 to LHDN and RM154,652.00 to KWSP. In conjunction thereto, the plaintiff sought t