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2024 MarsdenLR 2453
INDUSTRIAL COURT KUALA LUMPUR
NG JUN WEY – Appellant
Versus
WAH SENG SIN KEE CO SDN BHD – Respondent
Award No: 1825 Of 2024 [Case No: 19/4-1060/2022]
The court upheld that the employer must prove just cause for dismissal, and the employee must establish constructive dismissal, which was not proven in this case.
Headnote:(A) Industrial Relations Act 1967 - Section 20 - Constructive dismissal - Claimant employed as Assistant Manager, dismissed on grounds of poor performance - Court found dismissal justified, burden of proof on employer to establish just cause - Claimant failed to prove constructive dismissal - Claim dismissed. (Paras 69, 70)
(B) Burden of Proof - The employer must demonstrate that the dismissal was with just cause or excuse, particularly regarding claims of constructive dismissal. (Paras 41, 44)
(C) Constructive Dismissal - An employee may claim constructive dismissal if the employer's conduct constitutes a significant breach of the employment contract. (Paras 55, 56)
Facts of the case:
The Claimant was employed by the Company since 1 November 2016, with a series of salary increments and responsibilities. He was dismissed on 1 November 2021, claiming constructive dismissal due to a demotion. (Paras 2-11)
Findings of Court:
The court found that the Claimant failed to establish that his dismissal was without just cause or excuse, and even if constructive dismissal was proven, the Company had grounds for dismissal. (Paras 68-70)
Issues: Whether the Claimant was dismissed without just cause; whether the Claimant proved constructive dismissal. (Paras 50, 65)
Ratio Decidendi: The court ruled that the Claimant did not prove constructive dismissal, and the Company established that the dismissal was justified based on the Claimant's performance. (Paras 69, 70)
Result: Claim dismissed.
AWARD
Reference
[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Director General of Industrial Relation of Malaysia arising out of the dismissal of Ng Jun Wey ("the Claimant") by Wah Seng Sin Kee Co Sdn Bhd ("the Company") on 1 November 2021.
A. Facts of The Case
The Company's Case
[2] The Claimant was employed by the Company on 1 November 2016 by way of a Letter of Appointment as Assistant Manager dated 26 October 2016 with the monthly salary of RM2,700.00. The Claimant was confirmed after a probation period of 3 months by way of a letter of Confirmation as Assist Manager dated 1 February 2017 and his salary was increased to RM2,800.00.
[3] The Claimant commenced his employment at the Sg Besi branch. Around around the month of March/April 2018 he took on some responsibility for the Kuantan Branch. Contemporaneously with the Claimant being given additional responsibility for the Kuantan Branch, he received a salary increment of RM1,000.00 and his salary was RM3,800.00.
[4] In April 2019 all employees of the company received salary adjustment in salary and the Claimant received a RM70.00. All employees of the company received the adjustment and increment to his salary, which resulted in his monthly emolument being RM3,870.00.
[5] In March 2021 the Claimant was transferred to another branch of the Company known as Taman Wahyu, Kuala Lumpur.
[6] It is the pleaded case of the Company that the Claimant's overall performance in the years 2017-2020 was inadequate [as at para 8 (7) Company's Statement in Reply]. However, from the time he was transferred to the Taman Wahyu branch his performance drastically worsened and he had very weak contribution to the sales of the Company.
[7] Further to a meeting between the Claimant and his superior on 27 October 2021, the possibility of a redesignation which was more aligned with the work that was being done by the Claimant from the time he came to Taman Wahyu in March 2021, was discussed between the Claimant and the representative of the Company.
[8] Claimant was shown a letter dated 1 December 2021, which offered him the position of a supervisor. The letter merely stated that the company car he was driving would be changed to another and his petrol and toll allowances were fixed.
[9] The Claimant has agreed that he did not want the other company car that was offered to him and therefore another letter dated 27 October 2021 was issued to him which stated that the Claimant wanted to use his own vehicle and the Claimant signed and received this letter.
[10] The Claimant was on Medical Certificate on 28th and 29 October 2021. The Claimant came in to work on Saturday 30 October 2021 and worked half day. On Monday 1 November 2021, the Claimant came in to work, stayed for a couple of hours and left a letter dated 1 November 2021 titled Protest over Constructive Dismissal.
[11] The Claimant never returned to work and did not meet with the management of the Company. This industrial court action was instituted by the Claimant for Constructive Dismissal by the Claimant.
Issues Which Were Raised Throughout The Proceedings
I. Whether the Claimant was dismissed by the Company without just cause and excuse:
a) Whether adverse inference should be drawn against the Claimant.
II. Whether the Claimant or Company's witnesses had exhibited evasive demeanour and/or provided inconsistent evidence throughout the proceedings.
The Claimant's Case
Whether The Claimant Was Dismissed By The Company Without Just Cause And Excuse
[12] The Claimant was employed by the Company vide a 'Letter of Appointment As Assistant Manager' dated 26 October 2016 [as at pp 1 - 4 of CLB-1, hereinafter referred to as the "Employment Contract"].
[13] As proven in p 1 of the Employment Contract, the Company commenced his employment on 1 November 2016 as a probationary Assistant Manager with a monthly salary of RM2,700.00 and was terminated 1 November 2021.
[14] The Company's headquarter is located i
