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2013 MarsdenLR 1190
INDUSTRIAL COURT KUALA LUMPUR
ROSLINA ABDUL RAHMAN – Appellant
Versus
TRANSOCEAN DRILLING SDN BHD – Respondent
Award No: 757 Of 2013 [Case No: 13/4-826/2010]
Forced resignation is legally recognized as dismissal only if the employee can demonstrate they were compelled to resign under threat, which the Claimant failed to establish.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Claim regarding forced resignation - The question of whether resignation was voluntary or forced was central to the case. The Claimant contended she was compelled to resign due to threats, while the Respondent stated it was voluntary. Court evaluated evidence surrounding resignation claims and defined forced resignation as dismissal in fact. (Paras 1, 21-33)
(B) Legal principles on resignation and dismissal - The court reiterated that forced resignation represents a dismissal, where an employee resigns under compulsion due to employer threat. The onus lies on the employee to demonstrate such a scenario. (Paras 18-20)
Facts of the case:
The Claimant resigned on 1 April 2009, and alleged she did so under duress after being confronted by her HR Manager, leading to her forced exit. Conversely, the Respondent argued the resignation was voluntary, citing written submissions and testimony.
Findings of Court:
The court found no credible evidence of compulsion by the Respondent and upheld that the Claimant resigned voluntarily. No dismissal occurred.
Issues: The main issues were whether the Claimant was forced to resign and the implications of such a resignation regarding dismissal claims.
Ratio Decidendi: The court maintained that the Claimant failed to meet the burden of proof to substantiate her claim of forced resignation, concluding she resigned voluntarily.
Result: Claim dismissed.
| Table of Content |
|---|
| 1. overview of reference and procedural history. (Para 1 , 2) |
| 2. background facts of employment and resignation. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 3. claimant's allegations regarding forced resignation. (Para 10 , 11 , 12) |
| 4. respondent's arguments against allegations of forced resignation. (Para 13 , 14 , 15 , 16) |
| 5. legal principles regarding forced resignation. (Para 18 , 19 , 20 , 21) |
| 6. evaluation of claimant's resignation. (Para 22 , 23 , 24 , 25 , 26 , 27) |
| 7. compensation context related to resignation. (Para 28 , 29 , 30) |
| 8. conclusion denying claimant's forced resignation. (Para 31 , 32) |
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 on 6 July 2010 arising out of the dismissal of Roslina Binti Abdul Rahman (the "Claimant") on 1 April 2009 by Transocean Drilling Sdn. Bhd. (the "Respondent").
[2] The Respondent's "Application to dismiss case at the end of Claimant's case" in Encl 32 under s 29(g) of the Industrial Relations Act 1967 was dismissed in Award No. 715 of 2012 on 1 June 2012. The hearing of this case commenced on 8 June 2011 was duly completed on 1 August 2012. The Respondent's solicitors, Messrs Trevor George Partnership filed the Respondent's Written Submissions on 20 September 2012 and Submissions In Reply on 8 February 2013. The Claimant's solicitors, Messrs Surend Mokhzani & Partners filed the Claimant's Written Submissions on 14 November 2012.
Brief Facts
[3] The Claimant commenced employment with the Respondent's Company as the Human Resources Manager with effect from 1 March 2006 as reflected in the letter of employment exhibited in C-1, Statement of Case signed by the SEA Division Manager, Simon Rushton. The base salary of the Claimant is RM 11,500.00 per month. By letter dated 19 November 2006 (C-2), the Respondent confirmed the position of the Claimant in Company. By letter dated 23 April 2007 (C-3) on "2007 Salary Increase Exercise" informing the Claimant of the new monthly salary of RM12,250.00 effective April 2007. The Claimant's last drawn salary was RM13,879.00 per month.
[4] According to the Statement of Case, on 25 March 2009, Norzaidi Mohd Zahidin, Division HR Manager North East Asia (NEA) called the Claimant up to his room. He informed the Claimant that he needed the appraisal form completed for filing purposes. The Claimant expressed again her dissatisfaction about how the appraisal process was conducted. On 31 March 2009, the Claimant went to work as usual and met up with Norzaidi. He requested the Claimant's assistance to prepare her "Letter of Resignation" as reflected in C-4 and the "Letter of Acceptance" by the Company (C-5).
[5] The contents of the letter dated 30 March 2009 (C-4) by the Claimant to the Division HR Manager North East Asia (NEA), Norzaidi Mohd Zahidin are as follows:
" As spoken on 25 and 27 March 2009 on my irreconcilable treatment and circumstances made towards and against me, I hereby tender my resignation with immediate effect. In reference to our discussion on the same date of the letter in the afternoon, it was agreed that my last working day is 31 March 2009 and that any notice period is waived by the Company. In view of my service with the Company, the Company has agreed to provide compensation equivalent to six (6) months last drawn salary. Any vacation days unutilized and expense claim due will be paid as part of my final settlement."
[6] The contents of the unsigned letter dated 31 March 2009 (C-5 & CLB, p 15) by Jean Hahusseau, Division Manager North East Asia to the Claimant are as follows:
" Your resignation letter dated 30 March 2009 is referred.
With regret the Company accepts your resignation and has agreed to waive the notice period. Your last working day is 31 March 2009.
The Company has decided to provide you with a token of appreciation equivalent to six (6) months last drawn salary amounting to RM 83,274.00 as gratuity and golden handshake for your contribution towards the Co
