The court ruled that constructive dismissal requires proof of a breach of contract, which the Claimant failed to establish, leading to the dismissal of the claim.

AWARD

Salahudin Hidayat Shariff:

The Reference

[1] This is a reference dated 15 June 2021 made by the Honourable Minister of Human Resources pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Paramesvaran A/L T Maniam ("the Claimant") by Seng Hup Lightings And Decor Sdn Bhd ("the Company") on 1 December 2020.

Brief Facts

[2] The facts of this case is quite contentious because this is a constructive dismissal case and both parties have rather differing perspectives of the incidents related to the case. This also stems from the length of the Claimant's service with the Company. The Court will try to merge all the differing facts and in formulating the Award will discern it again.

[3] According to the Claimant, he was appointed as a Wireman II on 11 December 1995 via a letter entitled Appointment As Wiremen II dated 8 December 1995 at Seng Hup Electric Co Bhd. Subsequently on 9 March 1996, the Claimant received a letter entitled Confirmation of Appointment, where the Claimant was permanently appointed as a Wireman II effective 1 April 1996 at Seng Hup Corporation Bhd These are the documentary evidence that the Claimant was able to submit. There is no record of the Claimant ever being in the employment of the mentioned company, namely Seng Hup Holdings Sdn Bhd.

[4] The two versions combine at this juncture. On 8 June 2010, the Claimant was offered a position of Sales Supervisor at the Company effective 1 December 2010. In the appointment letter, there is no reference to the Claimant's previous employment in the so-called earlier versions of the Company.

[5] The Company, on its part was incorporated on 15 March 2010 as evidenced by the Suruhanjaya Syarikat Malaysia ("SSM") Corporate Information search. As pointed out by the Company's counsel, there was no other earlier names of the Company. The Company did attach a Deed of Assignment dated 2 April 2010 where all the rights and goodwill of Seng Hup Holdings Sdn Bhd were assigned to the Company. The Court also confirms that the Deed also gave different company registration numbers for both the companies in the Deed. The Court will delve into the legal issues later in this Award.

[6] The Claimant had argued that he was constructively dismissed ("CD") or forced to resign through the actions of the Company. According to the Claimant, the CD was because of an incident that began in May 2020, at the height of the pandemic and Movement Control Orders ("MCO"). The Claimant raised his voice against one of the management officers because the said officer was insensitive to the pandemic issues. The said officer happens to be the wife of the owner and the Company's only witness COW-1.

[7] The Company issued two warning letters due to that one incident in the months of May and August of 2020. The initial request for transfer was done in August 2020 but since it was verbal, it was more of a discussion. Although there was a letter in the COB-1 where a transfer was ordered on 24 August 2020 where the Claimant was asked to start his duties in Klang the next day, 25 August 2020. The Claimant did not go and the Company did not take further action. During the trial itself, it was alluded that the letter was not properly served on the Claimant and that was why the Company did not pursue the matter.

[8] On 20 November 2020, the Company issued a transfer order (not taking into consideration an earlier transfer order was issued but the service has been challenged) to the Claimant informing that the effective date of transfer was 23 November 2020. The Claimant replied on the same day saying that he was forced to sign the letter by COW-1 forcing him to move to Klang. In the trial, COW-1 claimed that he was only getting an acknowledged receipt of the letter, so as not to repeat the incident in August. The Company then sent another letter dated 30 November 2020, this time explaining the reasons for the transfer and including an additional travelling allowance. Th