The ruling reinforces the burden of proof in constructive dismissal cases, stressing the employee's responsibility to promptly assert contractual breaches.

The Reference

[1] This is a reference dated 7 October 2020 by Honourable Minister of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of NG CHENG WEI ("Claimant") by SYNCHRO RKK SDN. BHD. ("Company") on the 10 February 2020.

Award

[2] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions dated 9 December 2022 (Company's written submissions), 21 December 2022 (Claimant's written submissions), 5 January 2023 (Company's submissions in reply) and 17 January 2023 (Claimant's written submission in reply).

[3] This Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:

(i) The Claimant's Statement of Case dated 7 December 2020;

(ii) The Company's Statement in Reply dated 12 January 2021;

(iii) The Claimant's Rejoinder dated 16 February 2021;

(iv) The Claimant's Bundle of Documents - CLB1, CLB 2, CLB 3, CL 4 & CLB 5;

(v) The Company's Bundle of Documents - COB 1 & COB 2;

(vi) The Claimant's Witness Statement - CLW 1- WS (Ng Cheng Wei);

(vii) The Claimant's Witness' Statement - CLW 2- WS (Ling Su Wynn;

(viii) Company's Witness Statement - COW 1- WS (Cheong Choh Mun);

Introduction

[4] The dispute before this Court is the claim of constructive dismissal by Ng Cheng Wei (the Claimant) wherein the Claimant claims that he has been dismissed from his employment without just cause or excuse by Synchro RKK Sdn Bhd (Company) on the 10 February 2020.

[5] The Company is an entity which is primarily involved in the business to market and resell software license of a programme titled "abas ERP" and also provides services to the customers who purchased the license of the Abas ERP software. The Claimant commenced employment with the Company on 1 October 2017 as a Senior Account Manager with a monthly basic salary of RM6500.00 and a fixed transport allowance of RM500.00 and the Claimant was also entitled for sales commission.

[6] Due to the Claimant's unhappiness arising from the conduct of the Company, the Claimant by way of his letter dated 5 February 2020 alleged that the Company had committed several breaches of his contract of employment namely issues involving non payment of the Company's EPF contribution, denying the Claimant's legitimate entitlement of sales commission, giving ultimatum to the Claimant that his sales commission will only be paid if he tenders his resignation letter and also making an announcement of the Claimant's dismissal from employment with the Company which did not take place and requested the Company to remedy the same.

[7] The Company thereafter responded to the Claimant's letter by way of an email dated 7 February 2020, explaining its position and had further invited the Claimant to reconcile with the Company on any dissatisfaction arising out of the issues that he has raised against the Company. As the Claimant was of the view that the Company was not prepared to remedy the alleged breaches, the Claimant immediately responded by way of his letter dated 10 February 2020 and claimed constructive dismissal. Despite the Company yet again inviting the Claimant by its letter dated 17 February 2020 to return to work, the Claimant maintained his stance of the constructive dismissal. The Claimant contends that the Company by its conduct had evinced an intention no longer to be bound by the essential or fundamental terms of the contract of employment with the Claimant. The Claimant now claims that he has been dismissed without just cause or excuse and prays that he be reinstated to his former position without any loss of wages or other benefits. The Company denies the Claiman