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2025 MarsdenLR 2048
INDUSTRIAL COURT KUALA LUMPUR
ASMA ARIPIN – Appellant
Versus
M3 TECHNOLOGIES (ASIA) BERHAD – Respondent
Award No: 160 of 2025 [Case No: 12(20)/4-591/22]
The court established that for a claim of constructive dismissal, the employee must prove a significant breach of contract by the employer, which the Claimant failed to do.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant alleged constructive dismissal after resignation letter dated 18 March 2021, claiming employer's conduct breached contract - Court emphasized the contract test for constructive dismissal, requiring significant breach by employer - Claimant failed to prove breach or that resignation was due to employer's conduct - Court found resignation was voluntary. (Paras 6, 14, 84)
(B) Burden of proof - Claimant must establish constructive dismissal on balance of probabilities - If established, burden shifts to employer to prove dismissal was with just cause - Claimant failed to meet burden of proof. (Paras 14, 84)
Facts of the case:
The Claimant, a General Manager, resigned citing constructive dismissal due to alleged breaches by the Company. The Company contended the resignation was voluntary and not due to any breach. (Paras 4, 5, 24)
Findings of Court:
The Claimant's resignation was voluntary, and no significant breach by the Company was established. (Paras 84)
Issues: Whether the Claimant was constructively dismissed and whether the resignation was voluntary. (Paras 84)
Ratio Decidendi: The court ruled that the Claimant did not prove any significant breach by the employer that would justify a claim of constructive dismissal, thus her resignation was voluntary. (Paras 84)
Result: Claim dismissed.
AWARD
A. Reference
[1] This is a reference from the Director General of Industrial Relations Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 ("the IRA ") in respect of the dismissal of Asma Aripin ("the Claimant") by M3 Technologies (Asia) Berhad ("the Company") on 26 April 2021.
[2] This Court had considered all the notes of proceedings, documents, cause papers, submissions and bundles of authorities in handing down this Award namely:
(i) The Claimant's Statement of Case dated 13 April 2022 ("SOC");
(ii) The Company's Statement in Reply dated 16 May 2022 ("SIR");
(iii) The Claimant's Rejoinder dated 27 May 2022 ("Rejoinder");
(iv) The Claimant's Bundle of Documents No 1 ("CLB-1");
(v) Company's Bundle of Documents No 1 ("COB-1");
(vi) Claimant's Witness Statement (Asma Aripin) dated 17 July 2024 ("CLWS-1A");
(vii) Claimant's Supplementary Witness Statement (Asma Aripin) dated 17 July 2024 ("CLWS-1B");
(viii) Company's Witness Statement (Ahmad Nasir Abdul Rahim) dated 17 July 2024 ("COWS-1");
(ix) Company's Witness Statement (Chew Shin Yong, Mark) dated 17 July 2024 ("COWS-2");
(x) Company's Witness Statement (Hui Kiat Bin) dated 30 September 2024 ("COWS-3");
(xi) The Claimant's Written Submission dated 21 October 2024 ("Claimant's Submission") and Bundle of Authorities ("CL BOA");
(xii) The Claimant's Written Submission in Reply dated 4 November 2024 ("Claimant's Reply");
(xiii) The Company's Written Submissions dated 21 October 2024 ("Company's Submission") and Bundle of Authorities ("CO BOA"); and
(xiv) The Company's Submissions in Reply dated 4 November 2024 ("Company's Reply").
B. Brief Facts
[3] The Company is a publicly listed company incorporated under the laws of Malaysia and is now known as XOX Technology Berhad. The Company is predominantly involved in the business of providing mobile solutions in the information technology ("IT") industry.
[4] The Claimant first began her employment with the Company on 14 February 2000. Her last held position was General Manager with a last drawn gross salary of RM16,750.00 per month.
[5] In the Claimant's SOC, the Claimant pleaded constructive dismissal whereby she had tendered a letter of resignation dated 18 March 2021. The Resignation Letter was addressed to one Puan Maisarah Sahran ("Maisarah"), who was her reporting superior at the material time.
C. The Law On Constructive Dismissal
[6] It has been repeatedly held by our courts that the proper approach in deciding whether constructive dismissal has taken place is not to ask oneself whether the employer's conduct was unfair or unreasonable (the unreasonableness test) but whether "the conduct of the employer was such that the employer was guilty of a breach going to the root of the contract or whether it has evinced an intention no longer to be bound by the contract". The contract test as enunciated in the case of Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 was cited with approval by the then Supreme Court in Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 and the recent decision of the Federal Court in Tan Lay Peng v. RHB Bank Berhad & Anor; [2024] 5 MLRA 171; [2024] 3 MLJ 506; [2024] 2 ILR 535; [2024] 6 CLJ 315; c.
[7] The case of Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 stated the contract test as follows:
"The contract test
If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leavi
