The reference of the Honourable Minister of Human Resources, Malaysia is regarding the alleged constructive dismissal of Mohd. Rosli bin Saidin ("the claimant") by Telekom Malaysia Berhad ("the company") on 10 October 1997.

Brief Facts

The claimant was employed as a technician by the company on 1 June 1979 [MRS-1 of statement of case ("SOC")].

On 1 February 1997 the claimant was confirmed in his position as a systems analyst after a probationary period of 6 months from 1 August 1996 to 31 January 1997.

As a systems analyst, the claimant was responsible for, inter alia , the administration of the Office Automation ("AO") server for the Corporate Information Superhighway Project ("COINS'' Project).

On 12 August 1997, an employee of the company, Syed Sofi Syed Mohamed (COW3), discovered that he was unable to access the company's Local Area Network ("LAN") system. On 13 August 1997, another employee of the company, Md. Hasim Sani (COW2) also discovered that he was unable to access the company's LAN system.

Since the claimant was not in the office, COW2 and COW3 referred their problem to Safian bin Mohd. Sahari (COW1) ("Safian").

Safian could not access the system with his password as Administrator. He then contacted, by telephone, one Jamaludin bin Abd. Jalil (COW6) ("Jamaludin"), the main administrator of the company based in Brickfields at the material time. With assistance from Jamaludin, Safian was able to go into the system. He confirmed that the two names of COW2 and COW3 had been deleted from the user list. Next, Safian called for YM Tengku Abdul Rahman Tengku Ngah (COW4) ("YM Tengku"), Fadli Sahid, Tohiran and Abd. Razak to witness this fact.

Following this, the company issued a letter to the claimant dated 16 August 1997 (COB p. 1) inter alia requiring the claimant to explain within seven days as to why this happened and relieved the claimant of his responsibility over the duties in respect of the administration and maintenance of the Coins Project server, including the OA server until further notice.

By a letter dated 23 August 1997 (COB pp. 2 and 3) the claimant replied to COB p. 1 and claimed inter alia that there was no disappearance of LAN user accounts at the Coins Project but a breach had occurred to the Coins OA server and that this was a minor problem.

By a letter dated 18 September 1997 (COB p. 4) the company suspended the claimant pending investigations into allegations of misconduct with half pay for 14 days and with full pay thereafter.

The company claims that the claimant was served with COB p. 4, which the claimant denies.

On 24 September 1997 between 8.30am to 9am the claimant was informed by 1 of the company's employees that on the instructions of YM Tengku, the claimant had to leave the office of the Coins project within 1 hour.

The claimant was dissatisfied. He then went to see Teh Ing Di (COW5) ("Teh"), the First Project Director of Coins. He was orally informed by Teh that he was suspended until 30 September 1997 (see CLW1-WS para 8).

On the same day ie, 24 September 1997, the claimant wrote a letter of complaint (MRS-4 of SOC) to the company's general manager. The claimant did not receive a reply to this letter.

On 1 October 1997 the claimant again wrote to the company for an explanation regarding his status in the company (MRS-5 of SOC) (see CLW1-WS para. 13). Again the claimant did not receive a reply to this letter.

On 10 October 1997 the claimant wrote to the company (MRS-6 of SOC) claiming constructive dismissal.

Issues

The main issues are:

1) whether there is a dismissal of the claimant by the company; and

2) whether such dismissal is with just cause or excuse.

In considering the above issues the court has to determine whether the claimant is able to discharge his burden of proving, on a balance of probabilities, that the company is guilty of conduct which is a significant breach going to the root of the contract of employment between the company and the claimant or which shows that the employer no longer int