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2025 MarsdenLR 2676
INDUSTRIAL COURT KUALA LUMPUR
JOANNE TAN CHOI MEI – Appellant
Versus
UNITED PUBLISHING HOUSE (M) SDN BHD – Respondent
Award No: 80 of 2025 [Case No: 20/4-1114/23]
Constructive dismissal requires proof of a fundamental breach of contract by the employer; mere dissatisfaction with a transfer does not suffice.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant alleged constructive dismissal following transfer to another company within the same corporate group - Court examined the legitimacy of the transfer and the employer's conduct - Claimant's resignation deemed voluntary as no fundamental breach of contract established. (Paras 1, 24, 41, 81)
(B) Constructive dismissal - Definition and burden of proof - Employee must prove employer's conduct constituted a fundamental breach of contract - Mere dissatisfaction with transfer does not equate to constructive dismissal. (Paras 28, 34, 81)
(C) Transfer of employment - Employer's prerogative to transfer employees within the organization - Transfer must not entail detrimental changes to terms of employment. (Paras 68, 70, 81)
Facts of the case:
Claimant employed as Illustration Artist, transferred to The Malaya Press Sdn Bhd, claimed constructive dismissal due to lack of professionalism and perceived ulterior motives behind the transfer.
Findings of Court:
Claimant failed to prove fundamental breach of contract; transfer was legitimate and within employer's rights.
Issues: Whether there was constructive dismissal in fact and law; whether dismissal was with just cause or excuse.
Ratio Decidendi: Court found no evidence of fundamental breach; dissatisfaction with transfer does not constitute constructive dismissal.
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of Joanne Tan Choi Mei ("Claimant") by United Publishing House (M) Sdn Bhd ("Company") on 20 January 2023.
[2] The Director General of Industrial Relations' reference in this case requires the Court to hear and determine the Claimant's complaint of dismissal by the Company on 20 January 2023.
[3] In reaching this decision, the Court has carefully examined and analysed the notes of proceedings, all relevant documents, and the cause papers submitted in this case, including the:
(i) Statement of Case dated 1 September 2023;
(ii) Statement in Reply dated 8 November 2023;
(iii) Rejoinder dated 20 December 2023;
(iv) Claimant's Bundle of Documents - CLB1, CLB2 and CLB3;
(v) Company's Bundle of Documents - COB1 and COB2;
(vi) Claimant's Witness Statement - CLWS-1;
(vii) Company's Witness Statement - COWS-1(a) and COWS-(b);
(viii) Claimant's Written Submission and Reply; and
(ix) Company's Written Submission and Reply.
Background
[4] The matter in dispute before this Court concerns the Claimant's assertion of having been constructively dismissed by the Company on 20 January 2023.
[5] Pursuant to para 2 of the Claimant's Statement Of Case, the Claimant pleads that she commenced employment with the Company on 2 April 2001 as an Illustration Artist with a starting basic monthly salary of RM1,200.00.
[6] The Claimant was confirmed in service as an Illustration Artist by a Letter of Confirmation dated 1 July 2001 (CLB1 p 1), issued on the letterhead of G Apple Studio and signed on behalf of the Company.
[7] The Claimant's letter of confirmation contains, inter alia, a transfer clause which reads as follows: "Meantime the Company reserves the right to transfer you to any department when necessary....".
[8] The Company pleaded at para 3 of the Statement In Reply and led evidence during the trial that:
(i) G Apple Studio Sdn Bhd is a wholly owned subsidiary of the Company, as evidenced in COB2 p 24.
(ii) The Company is wholly owned by Sasbadi Holdings Berhad, as evidenced in COB2 p 17.
(iii) The Malaya Press Sdn Bhd is wholly owned by Sanjung Unggul Sdn Bhd, as evidenced in COB2 p 41.
(iv) Sanjung Unggul Sdn Bhd is, in turn, wholly owned by Sasbadi Holdings Berhad, as evidenced in COB2 p 34.
(v) Accordingly, the ultimate owner of both the Company and The Malaya Press Sdn Bhd is Sasbadi Holdings Berhad.
[9] The Corporate Structure of Sasbadi Holdings Berhad, which was found in COB2 p 1, is reproduced below:
[10] The Company's office is located in Endah Parade in Sri Petaling, whereas The Malaya Press Sdn Bhd is located at Sungai Buloh.
[11] By way of a letter dated 1 December 2022 (CLB1 p 2), the Company transferred the Claimant to The Malaya Press Sdn Bhd as an Artist with effect from 1 January 2023. The Letter of Transfer is reproduced below:
[12] On 12 December 2023 at 10.44pm (CLB1 pp 3-4), the Claimant sent an email (which is reproduced in verbatim) to the Company seeking clarification on eight (8) issues, namely:
(i) "What was the reason for the transfer?
(ii) Is the decision final and irreversible?
(iii) Will my 21 years and 9 months seniority at United Publishing House (M) Sdn Bhd be carried over to The Malaya Press Sdn Bhd?
(iv) Will all my current remuneration and entitlement be carried over The Malaya Press Sdn Bhd?
(v) My job title with United Publishing House (M) Sdn Bhd is Illustration Artist, however, in the Letter of Transfer my job title was changed to Artist. What was the job scope for Artist?
(vi) Upon starting with The Malaya Press Sdn Bhd, do I need to undergo a probation? If yes, how long?
(vii) Will I be compensated for this transfer? If yes, what is the compensation amount?
(viii) As at today I have not received any employment offer letter from The Malaya Press Sdn Bhd".
[13] The Company had, via an e-mail dated 13 December 2022 at 12:15pm (COB1 p 3) (which is reproduced in verbatim belo
