AWARD

Leong Mun Kam (the claimant) joined the services of MCSB Software Development Sdn Bhd (the employer) on 2 May 1989 as an analyst programmer 1. As in August 2000, the claimant was a manager in the said employer's company. On 23 August 2000, the claimant was called to see the senior vice president of the human resources department, one Ong Tiong Seng (COW1). COW1 informed the claimant that he would be transferred to MCSB System (JB) Sdn. Bhd in Johor Bahru. When queried on the sudden decision to transfer the claimant, COW1 surprised the claimant with a statement "the bosses don't like you". However, when pestered for a clarification on such statement, COW1 ended the discussion by saying that he did not want to go into details. COW1 then requested the claimant to consider the transfer and to revert to COW1 with an answer by 30 August 2000. As requested, on 30 August 2000 the claimant notified COW1 that the claimant decided to stay put in Kuala Lumpur and explained that he had to look after his parents. The claimant also requested that the management consider other alternatives in lieu of the said transfer.

However on 5 September 2000 the claimant was given an ultimatum by COW1 to choose one of the following options:

(a) Accept the transfer; or

(b) Resign; or

(c) Pursue the matter about the purported transfer in court

On the same day the claimant received a letter dated 5 September 2000 purporting to transfer him to Johor Bahru wef 18 September 2000. The letter which was tendered in court stated:

Re: Inter-Company Transfer

This refer to our earlier conversation on 28th August 2000. We are pleased to inform that you have been transferred from our KL Office to Johor Bahru with effect from September 18, 2000.

This transfer is on a permanent basis and is not a promotion. Your designation and job grade remains unchanged. This transfer does not effect your basic salary nor the date of your next annual performance review. All other terms and conditions of employment as per your Contract of Employment dated March 19, 1989 will continue to be effective.

The claimant contended that the purported transfer was in breach of the terms of his contract of employment. The claimant further contended that the purported transfer was not a genuine transfer exercise by the employer but was coloured with bad faith with an intention to drive the claimant out of his employment with the employer. The claimant further contended that the cumulative effect of the conduct of the employer was such that the employer had breach the fundamental implied term of mutual trust and confidence between the parties thereby entitling the claimant to consider himself as dismissed by the employer. The claim of constructive dismissal was contrived in the claimant's letter dated 12 September 2000, where the claimant considered himself dismissed with immediate effect. The letter was annexed to the claimant's statement of case and marked C1.

In its statement in reply the employer stated that the claimant was informed of his transfer to Johor Bahru as his services were needed there to help the employer's clients to whom the employer had sold its software programmes, and the claimant was needed there to follow up to retrieve the effective implementation of the programmes. The employer also disputed all of the claimant's allegations as to what had transpired between the claimant and COW1 prior to the employer issuing the transfer order.

The employer also contended that one of the terms of the claimant's contract of service is that the claimant is transferable. Further the employer contended in evidence that the claimant did not protest against the transfer by adducing evidence that the claimant had taken leave from 8 September 2000 to 11 September 2000 to settle his personal matters before leaving for Johor.

Instead of replying to the claimant's claim of constructive dismissal the employer wrote letter on 14 September 2000 directing the claimant to return to office immediately and to expl