Back
2025 MarsdenLR 3802
INDUSTRIAL COURT KUALA LUMPUR
KRISHNAVENI VILAYAN – Appellant
Versus
SITI HEALTHCARE SDN BHD – Respondent
Award No: 563 Of 2025 [Case No: 14/4-201/24]
Constructive dismissal occurs when an employer's conduct fundamentally breaches the employment contract, allowing the employee to terminate the contract without just cause.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant dismissed by Company after alleged breaches of employment contract - Claimant's employment terms unilaterally varied without consent, leading to claims of fundamental breaches - Court finds Company failed to defend case and did not file necessary documents - Court rules Claimant was constructively dismissed without just cause. (Paras 1, 10, 20, 66)
(B) Constructive Dismissal - Definition and requirements - Employee entitled to terminate contract if employer's conduct breaches fundamental terms of employment - Court emphasizes the need for sufficient notice to allow employer to remedy breaches. (Paras 22, 26)
(C) Burden of Proof - Claimant must prove constructive dismissal on balance of probabilities, demonstrating employer's conduct breached essential terms of contract. (Paras 27, 30)
Facts of the case:
The Claimant commenced employment as a Resident Doctor on 14 March 2022 and was constructively dismissed on 7 July 2023 due to the Company's unilateral changes to her employment terms, including salary delays and failure to remit statutory contributions. (Paras 10, 18)
Findings of Court:
The Court found that the Company's actions constituted fundamental breaches of the employment contract, justifying the Claimant's claim of constructive dismissal. (Paras 66)
Issues: Whether the Claimant was constructively dismissed due to the Company's breaches of contract and whether the Company had just cause for dismissal. (Paras 20, 30)
Ratio Decidendi: The Court ruled that the Claimant's treatment as constructively dismissed was justified due to the Company's failure to adhere to fundamental terms of the employment contract, including timely salary payments and statutory contributions. (Paras 66)
Result: The Company is ordered to pay the Claimant RM96,750.00 as compensation. (Paras 74)
AWARD
Reference
[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 as amended by the Industrial Relations (Amendment) Act 2020 (the Act) by the Director General of Industrial Relations, emanates from the dismissal of Krishnaveni Vilayan ("the Claimant") by Siti Healthcare Sdn Bhd ("the Company") on 27 June 2023.
Preliminary Issues
[2] When this matter was first called up for e-mention on 12 March 2024, the Claimant's Counsel was present and the Company was absent. During the said mention, this Court gave directions to the parties for filing of pleadings and the Bundle of Documents. The Claimant had duly filed the pleadings and documents as directed by the Court .
[3] The Company appointed Messrs Hadi & Hakim (the said Firm) to represent the Company. Forms A (Application For Permission To Be Represented By a Legal Practitioner) and Forms B (Warrant of Authority) for the appointment and representation was duly filed by the said Firm. For the reason best known to the said Firm, there was no pleadings and documents filed for the Company as directed by this Court .
[4] The said Firm had filed an undated Notice of Application (the Application) to consolidate this case with Case Nos 14/4-1420/23, 14/4-1421/23, 14/4-1422/23, 14/4-1536/23, 14/4-1537/23, 14/4-1538/23, 14/4-1539/23, 14/4-1540/23, 14/4198/24, 14/4-199/24, 14/4-200/24, and 14/4-202/24 but there was no Affidavit filed to support the said Application. The said Application was fixed for hearing on 13 May 2024. However, on the hearing date of the Application, the said Firm seek for an adjournment to file an Affidavit to support the Application. This Court allowed the said Firm's application for adjournment and directions were given for a proper Notice of Application supported by an Affidavit to be file on or before 20 May 2024 and that the said documents to be served on the Claimant's Solicitors accordingly. This Court also gave further directions for the Claimant's Solicitors to file Affidavit In Reply to the Affidavit In Support on or before 10 June 2024 and fixed the Application for hearing on 30 July 2024 @ 2.00pm. Despite this Court 's directions, the said Firm chose not to file a proper Notice of Application supported by an Affidavit and as such the hearing date of the Application fixed on 30 July 2024 was vacated and this case was fixed for trial on 23 September 2024 and 24 September 2024.
[5] On the date of trial, namely 23 September 2024, this Court received an email from the said Firm seeking for adjournment of the trial dates on the ground that the Counsel in charge of this matter, one Encik Kamal Hadi Ahmad Zaki was taken ill and the medical certificate for the duration of 23 September 2024 to 25 September 2024 was also attached with the said email. This Court allowed the application for postponement and adjourned the matter to 11 October 2024 for trial.
[6] On 11 October 2024, the Claimant's Counsel, the Claimant and the Company's Counsel were present in Court . The Company had failed to file any pleadings and documents as at the date of trial despite being instructed to do so by this Court . No representative from the Company was present in Court . The Company, for reasons best known to itself, opted not to attend Court and/or to defend the Claimant's case against the Company.
[7] The Company's Counsel, who was present in Court informed that he will not cross-examine the Claimant but requested to file Written Submissions on points of law upon conclusion of this case. This Court allowed the said Counsel's request to file the Written Submissions for the Company. However, again for the reason best known to the said Counsel, there was no Written Submissions filed for the Company in this case.
[8] The Court , in exercising its power under s 29(d) of the Act had proceeded with the trial of this matter on 11 October 2024. Section 29(d) of the Act reads as follows:
"29. Power of the Court .
The Court may, in any procee
