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2021 MarsdenLR 1300
INDUSTRIAL COURT KUALA LUMPUR
ABDUL QADIR OSMAN MOHD AROS – Appellant
Versus
INSTITUT DARUL RIDZUAN BERHAD – Respondent
Award No: 450 Of 2021 [Case No: 6(15)(10)/4-1921/19]
A claim for constructive dismissal requires proof of fundamental breach by the employer, which was not established in this case.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Constructive dismissal claim – The claimant alleges constructive dismissal based on oral notification of suspension without official confirmation, claiming breach of contract. The claim is dismissed due to lack of evidence supporting essential breach of contract. (Paras 22-27, 96-100)
(B) Constructive Dismissal – Essential elements include proving fundamental breach by the employer and leaving in response to that breach. The burden of proof lies with the claimant. (Paras 25, 26)
(C) Communication – The court established that WhatsApp was an acceptable form of communication in this context, as both parties utilized it without dispute. (Paras 59-63)
Facts of the case: The claimant, a COO, alleged suspension on 15 April 2019 without receiving formal notice, leading to his resignation as a claim of constructive dismissal on 31 May 2019.
Findings of Court: The claimant failed to show any breach by the company, which had communicated properly regarding his employment status.
Issues: The court addressed whether the claimant was constructively dismissed due to lack of valid suspension or breach of contract.
Ratio Decidendi: Acknowledgment that communication methods were appropriate, and claimant’s assumptions did not establish a breach.
Result: The claim was dismissed as the claimant did not prove constructive dismissal. Parties involved: Claimant (Abdul Qadir Osman Bin Mohd Aros), Company (Institut Darul Ridzuan Berhad).
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 arising out of the alleged dismissal of ABDUL QADIR OSMAN BIN MOHD AROS ("the Claimant") by INSTITUT DARUL RIDZUAN BERHAD ("the Company").
[2] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of constructive dismissal on 31 May 2019.
Claimant's Pleaded Case
[3] The claimant testified for his own case and is the sole witness for his case.
[4] The claimant in his Statement of Case states that commenced employment with the company on 15 August 2009 as Head of Finance.
[5] The claimant avers that he left the company and joined back the company on 1 January 2015 as the Chief Operating Officer.
[6] The claimant avers that at the time of his constructive dismissal, he held the position of Chief Operating Officer with a monthly salary of RM20,350 per month.
[7] The claimant contended that on 15 April 2019 the CEO of the company informed him that the company pursuant to the minutes of a Board of Director's meeting dated 12 April 2019 had suspended him.
[8] The claimant avers that he never received any official written notification of the suspension either from the Perak Chief Minister or from the company.
[9] The claimant asserts that vide letter dated 26 April 2019 he wrote to the company objecting his suspension and demanded the reason for his suspension from the company.
[10] The claimant contended that when the company failed to respond to his letter dated 26 April 2019; he sends another letter dated 9 May 2019 again demanding the reason for his suspension by the company.
[11] The claimant avers that as the company still failed or refused to reply to both his letters, he then on 31 May 2019 sends a letter to the company termination his employment with the company on a claim of constructive dismissal.
[12] The claimant avers that on 31 May 2019, he received his suspension letter from the company from one Azlan Bin Aminuddin vide a WhatsApp message.
[13] The claimant avers that the failure of the company in providing the reasons for his suspension as demanded by him in his two letters, the company had breached fundamental terms of his employment contract, which entitle him to leave the employment with the company on a claim of constructive dismissal.
Company's Pleaded Case
[14] The company avers that on 12 April 2019, the company's office was sealed and the Board of Directors ordered the premise to be closed pending investigation by an audit team.
[15] The company avers that with the closure of the company's premise, all the staffs including the claimant were move to Pejabat Setiausaha Kerajaan Negeri Perak (SUK) building temporarily.
[16] The company avers that the claimant was neither suspended nor dismissed on 15 April 2019.
[17] The company asserts that the claimant left his employment with the company immediately after the issuance of the suspension letter from the company before the commencement of inquiry of alleged misconducts.
[18] The company avers that any suspension of employees of the company, the employee will be informed vide official letter of suspension issued by the company.
[19] Company avers that the act of the CEO orally informing the claimant that the company suspended him is not the official notification of suspension of the company to the claimant.
[20] The company avers that it is not necessary for company to reply to claimant's letter as the company never suspends him at the time he send in his two letters.
[21] The company avers that the claimant's claim of constructive dismissal is baseless and is an attempt of the claimant to avoid disciplinary action be taken against him by the company.
Law And Burden Of Proof
[22] The claimant has pleaded that the company constructively dismissed him, therefore it is only appropriate to refer to the law relating to constructive dismissal.
[23] The principle underlying the concept of "constructive dismissal", a doctrine that has b
