The court ruled that the Company's conduct constituted constructive dismissal due to a fundamental breach of the employment contract, failing to accommodate the Claimant's pregnancy during the COVID-19 pandemic.

AWARD

Augustine Anthony:

Reference

[1] This is a reference dated 21 July 2022 by the Director General of Department of Industrial Relations, Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of CHOONG SIEW FONG (Claimant) by BRU-HAAS SDN BHD (Company) on the 1 October 2021.

[2] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions dated 23 October 2023 (Claimant's written submissions), 23 October 2023 (Company's written submissions), 1 December 2023 (Claimant's written submissions in reply) and 4 December 2023 (Company's written submissions in reply)

[3] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:

(i) The Claimant's Statement of Case dated 24 August 2022;

(ii) The Company's Statement in Reply dated 26 September 2022;

(iii) The Claimant's Rejoinder dated 4 October 2022;

(iv) The Claimant's Bundle of Documents - CLB 1, CLB 2 & CLB 3;

(v) The Company's Bundles of Documents - COB1 & COB 2;

(vi) The Claimant's Witness Statement - CLW-WS(1) & CLW- WS (2) (Miss Choong Siew Fong);

(vii) Company's Witness Statement - COW1-WS (Muhaini Binti Mohmad Omar);

(viii) Company's Witness Statement - COW2-WS(1) & COW2-WS (2) (Mr Song Dai).

Introduction

[4] The dispute before this Court relates to the claim by Choong Siew Fong ("Claimant") that she was constructively dismissed from her employment without just cause or excuse by Bru-Haas Sdn Bhd ("the Company") on 1 October 2021.

[5] The Company is involved in the business of sales of electrical, electronic and telecommunications products. The Claimant commenced employment with the Company as an Assistant Office Administrator of the Admin Division on 1 July 2019. There is no dispute that the Claimant was a confirmed employee of the Company. The Claimant's last drawn salary a month was RM6,000.00 prior to the Claimant claiming constructive dismissal.

[6] The Claimant began her pregnancy around the period of March 2021 during which period the COVID-19 pandemic surged and the number of positive cases increased, resulting in the Company's employees including the Claimant working from home. Around the period of May to June 2021, the employees of the Company including the Claimant had to work in the office on rotation basis which the Claimant complied. Due to the Claimant's pregnancy, around the period of July 2021 the Claimant's doctor has advised her to work from home for the remaining period of her pregnancy to minimise the exposure and risk of contracting COVID-19 as the Claimant was unable to get her vaccination due to her pregnancy. Around this time, there were employees in the Company who were exposed to COVID-19 infection. The Claimant alleged that despite the Company initially agreeing for the Claimant to work from home during the duration of her pregnancy, the Company had then changed its mind as it needed someone to work in the office and thereafter requested the Claimant to tender her resignation and handover all her list of work. Immediately thereafter the Company blocked the Claimant's access to her work email and office Internet. The Company then further pressured the Claimant to resign from her employment which the Claimant refused.

[7] The Claimant, dissatisfied with the Company's conduct, wrote to the Company through her solicitors on 24 September 2021 enquiring the status of her employment as to whether the Company has terminated her. The Company's solicitors responded to the Claimant's solicitors on 28 September 2021 confirming that the Claimant remained the employee of the Company but the response came with many directives to the Claimant which the Claimant considered oppressive and in breach of the essential terms of the contract of employment of the Claimant. On 1 October 2021, the Claimant claimed constructive dismissal in view of the Company's conduct in failing to address the Cla