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2010 MarsdenLR 3038
INDUSTRIAL COURT KUALA LUMPUR
MOHD ISA SAUDE – Appellant
Versus
AFFIN - ACF FINANCE BERHAD – Respondent
Award No 548 Of 2010 [Case No 12/4-1215/05]
In cases of constructive dismissal, an employee must establish a fundamental breach of contract, the necessity of timely resignation, and evidence of procedural fairness not being followed by the employer.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal of employee - Claimant considered to have been constructively dismissed due to unlawful deductions from salary without proper disciplinary procedure and without informing the Claimant adequately of the charges against him - The Company's actions breached a fundamental term of the employment contract. (Paras 1, 81, 86, 91, 103)
(B) Constructive Dismissal - Conditions for constructive dismissal restated, including breach of contract and timely resignation in response to such breach - The burden of proof lies with the Claimant. (Paras 46, 83)
Facts of the case:
The Claimant was employed as an Executive and had salary deductions made due to alleged absenteeism without lawful basis. He contested the deductions as they did not follow established disciplinary processes. The Claimant left his job believing he was dismissed after the deductions were made. (Paras 4, 48)
Findings of Court:
The Court held the deductions constituted a breach of a fundamental term of the employment contract, as well as a failure to follow procedural fairness in the disciplinary process, resulting in constructive dismissal. (Paras 84, 94)
Issues: The main issues were whether there was a dismissal, and if so, whether it was with just cause or excuse. (Paras 46, 89)
Ratio Decidendi: The court ruled that the Company's unilateral salary deductions without a proper prior explanation represented a breach of the employment contract, establishing constructive dismissal as the Claimant left in response to this breach. (Paras 77, 95)
Result: The total amount payable by the Company to the Claimant is RM53,219.00.
| Table of Content |
|---|
| 1. overview of the case and parties involved. (Para 1 , 2 , 3) |
| 2. details of the claimant's employment and salary deductions. (Para 4 , 5) |
The Hearing of this case commenced on 29 January 2007 and concluded on 24 November 2008 before the previous Chairman of Court 12. The Company submitted their written submission on 8 December 2009 and the Claimant's Submission in reply was only filed on 23 February 2010 and Company's further submission in reply was filed on 8 March 2010. The previous Chairman was subsequently elevated as Judicial Commissioner and the parties have agreed to my handing down the award in her stead. Both parties had also highlighted the issues in this case on 9 April 2010 before this Court. In doing so I have perused all relevant documents, the pleadings, the notes of evidence recorded by the previous Chairman and the written submissions filed by the Counsels. I face no problem at all in understanding the notes of evidence taken verbatim as the notes were vivid and clear and has been typewritten by her Personal Assistant. In the circumstances, I believe that I am able to decide over this case with fairness to all parties and hence this award.
Facts Gathered During the Trial
The Claimant was initially appointed by BSN Finance Berhad on 23 January 1997 vide a letter of appointment dated 21 January 1997 as the Executive. In January 2001, BSN Finance Berhad went through a merging exercise with Asia Commercial Finance (M) Berhad and the company was formed as a result of the merger exercise.
In 2003 the Claimant was an Executive in the Company's Corporate Services Department. His last drawn salary was RM2,801.00 per month. He was also entitled to housing loan, car loan, medical benefits for him and his family.
In January 2004 the Claimant found out that the Company had deducted his salary in the sum of RM361.42 and RM271.06 for the months of January and February respectively without any legal or contractual basis.
On 30 January 2004, the Claimant wrote to the Company to state his objections to the said deductions of salary. He wrote as follows:-
PER: PEMOTONGAN GAJI TANPA PERSETUJUAN
Merujuk kepada perkara di atas, saya ingin memohon penjelasan dari pihak Pengurusan berkenaan dengan pemotongan gaji saya seperti berikut:-
1. Sebanyak RM361.42 dipotong dari gaji bulan Januari 2004 tanpa persetujuan dari saya.
2. Sebahagian lagi sebanyak RM271.06 akan dipotong dari gaji bulan Februari 2004.
3. Tindakan pemotongan gaji, iaitu satu tindakan disiplin, dibuat tanpa mengikut peraturan di dalam 'Staff Handbook' dimana saya tidak diberi peluang untuk membela diri.
4. Saya tidak diberi peluang untuk merayu kepada pihak pengurusan sebelum tindakan pemotongan gaji dibuat.
Sekian, terima kasih.
Yang Benar,
On 26 February 2004, the Claimant received the Company's reply to his letter vide the Company' letter dated 20 February 2004 alleging that the deductions were due to the Claimant not being present at work.
PENJELASAN TENTANG PEMOTONGAN GAJI TANPA PERSETUJUAN
Merujuk kepada surat anda bertarikh 30hb. Januari 2004, kami berpendapat bahawa rungutan anda adalah tidak berasas sama sekali. Berikut adalah penjelasan kami berhubung perkara tersebut:-
1. Mengikut rekod kedatangan harian Jabatan, anda telah tidak hadir kerja tanpa kelulusan Ketua Jabatan anda seperti berikut:-
2. Oleh kerana anda telah gagal untuk memberi sebarang sebab, maka tarikh-tarikh tersebut dianggap "Cuti Tanpa Gaji". Oleh itu pihak majikan boleh mengambil tindakan sewajarnya terhadap anda setelah mendapati anda tiada lagi baki cuti tahun 2003 pada ketika itu, Sebelum tindakan potongan gaji dibuat, anda te
