The court found no constructive dismissal as the Claimant voluntarily accepted unpaid leave, failing to prove any breach of the employment contract.

AWARD

Eswary Maree:

Reference

[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (1967 Act) by the Honourable Minister for Human Resources emanates from the dismissal of Azhar bin Harun ("the Claimant") by Felda D' Saji Sdn Bhd ("the Company") on 1 July 2020.

Preamble

[2] This case was partly heard before the Learned Chairman Tuan Teoh Chin Chong and upon the exist of the said Learned Chairman from the Industrial Court in February 2022, the hearing was continued before me. With this regard, s 23(6) of the Act reads as follow:

"During the absence or inability to act from illness or any other cause by the Chairman, the Yang Di-Pertuan Agong may appoint another person to exercise the powers or perform the functions of the Chairman and, notwithstanding that the Chairman may have resumed the duties of his office, the person so appointed may continue to exercise the powers or perform the functions for the purpose of completing the hearing and determining any trade dispute or matter commenced before him."

[3] Thus, it is clear that s 23(6) of the Act allows another Chairman to continue hearing and determine a part heard case. Reference is also made to the High Court decision in Bax Global (Malaysia) Sdn Bhd v. Sukhder Singh Pritam Singh & Anor, [2011] 2 CLJ 534 wherein it was held that a Learned Chairman has the jurisdiction to hand down an Award in a matter heard by another Chairman.

[4] The instant case was heard together with Case No 14/4-835/21 (between Rasiyuddin bin Hariri v. Felda D' Saji Sdn Bhd). Both these cases had not been consolidated but only heard together, this Court will hand down separate and distinct Award for each individual case which highlights the distinct facts of each of the case.

[5] During trial the Claimant was the sole witness for his case. While the Company called two (2) witnesses which are Puan Rasidah binti Othman (COW-1) and Encik Rosman Fauzi Ngah@Abdul Aziz (COW-2). COW-1 gave evidence in respect of her role in human resource and the implementation of the Unpaid Leave. While COW-2 gave evidence in respect of the financial status of the Company during the material time.

[6] This Court considered all the notes of proceedings, pleadings, the relevant oral and documentary evidences and the cause papers in handing down this Award. The following documents were filed before this Court:

(i) Statement of Case (Rasiyuddin bin Hariri) dated 1 June 2021;

(ii) Statement of Case (Azhar bin Harun) dated 1 June 2021;

(iii) Statement In Reply (Rasiyuddin bin Hariri) dated 16 August 2021;

(iv) Statement In Reply (Azhar bin Harun) dated 17 August 2021;

(v) Rejoinder (Rasiyuddin bin Hariri) dated 23 August 2021;

(vi) Rejoinder (Azhar bin Harun) dated 24 August 2021;

(vii) Company's Bundle of Documents (Rasiyuddin bin Hariri): COB-1

(viii) Company's Additional Bundle of Documents (Rasiyuddin bin Hariri): COB-2

(ix) Company's Bundle of Documents (Azhar bin Harun): COB-1

(x) Company's Additional Bundle of Documents (Azhar bin Harun): COB-2;

(xi) Claimant's Bundle of Documents (Rasiyuddin bin Hariri): CLB-1;

(xii) Claimant's Supplementary Bundle of Documents (Rasiyuddin bin Hariri): CLB-2;

(xiii) Claimant's Bundle of Documents (Azhar bin Harun): CLB-1;

(xiv) Witness Statement of the Claimant, Rasiyuddin bin Hariri: CLWS-1;

(xv) Witness Statement of the Claimant, Azhar bin Harun: CLWS-1;

(xvi) Witness Statement of Rasidah binti Othman: COWS-1A & COWS-1B; (xvii) Witness Statement of Rosman Fauzi Ngah@Abdul Aziz: COWS-2A & COWS-2B;

(xviii) Company's Written Submission for all the Claimants dated 22 February 2024;

(xix) Claimant's Written Submission (Rasiyuddin bin Hariri) dated 15 December 2023; and

(xx) Claimant's Written Submission (Azhar bin Harun) dated 18 January 2024

[7] The dispute before this Court is the claim by the Claimant that he had been constructively dismissed from his employment without just cause or excuse by the Company on 1 July 2020. In this case the Claimant tendered letter of objection and disagreement ov