AWARD

INTRODUCTION

This was a reference by the Honourable Minister of Human Resources pursuant to s. 20(3) of the Industrial Relation Act ("the Act") arising out of the alleged dismissal of Tan Mon Nee ("the claimant") by Phileo Allied Bank (Malaysia) Bhd ("the bank") on 20 December 1999. This reference was received on 26 May 2000.

BACKGROUND

The matter was heard by Y.Bhg Dato' Tan Yeak Hui who was then the Chairman of the Industrial Court. The case was completed on 24 February 2005 and parties were requested to file written submissions. However, parties only completed filing their written submissions on 30 December 2008. It is pertinent to note that Y.Bhg Dato' Tan Yeak Hui's tenure of service ended on 16 December 2007 and an award for the dispute as envisaged under sub-s. 20(3) of the Act was pending. On 12 January 2008, the learned Acting President of the Industrial Court transferred the matter to this division. The Court fixed 18 February 2009 for mention. On 18 February 2009, the counsel for the bank requested the Court to hear oral submissions from the parties so that all pertinent questions which might arise from the evidence in Court during the hearing and supported by the respective submission may be clarified by both parties. However, counsel for the claimant requested the case to be postponed for mention to another date because he needed to get further instructions. As such, the Court adjourned to 23 February 2009 for mention. On 23 February 2009, counsel for the claimant informed the Court that the claimant opposed the bank's counsel application. However, after considering both parties arguments and in the interest of the case, the fixed 4 March 2009 for further oral submissions.

It is important to note that after perusing through the notes of evidence and the submissions by the parties, the Court does not find any problem in handing down the award, as the issue is straightforward, plain and clear. Although the Court is unable to observe the demeanor of witnesses in the case, the Court is however confident of understanding the evidence of the witnesses on the issue here. There is also no technical, scientific or accounting involved in this case. As such, it is not difficult at all for me to understand and follow the case. The Court shall now make the award.

BRIEF FACTS OF THE CASE

The claimant was employed by the bank as Investment Sales Executive in the month of August 1995.

In paragraph 6 of the Statement of Case ("the SOC"), the claimant contends and avers that her Manager one Mr. Yeo Sek Kiat, accused him that she intended to leave the bank and to bring along colleagues to join the claimant in another organization.

The claimant denied the bank's allegation and in paragraph 9 of the SOC the claimant further avers that the company was not satisfied with the claimant's answer and persistently tried to get her to resign or sack her. Therefore, the claimant avers that she had no choice but to resign and claimed constructive dismissal, A copy of the resignation letter is reproduced below:-

"20^th December 1999"

The Manager

Phileo Allied Bank (M) Bhd

34 Jln Tun Abdul Razak

Susur Satu, Johor Bahru

Dear Sir,

RE: RESIGNATION

I, Stephanie Tan Mon Nee A 2182010 would like to resign within 24 hours with Phileo Allied Bank, Johor Bahru branch.

I would like to seek the bank's approval to waive the penalty in lieu of my three month's notice.

Thank you for your attention and co-operations.

Yours faithfully

Signed

cc: ALYN LIM, MANAGER, SIC.

cc: GRACE BOEY, FIRST VICE PRESIDENT."

In paragraph 11 of the Statement-In-Reply ("the SIR"), the bank avers that the claimant voluntarily resigned.

The claimant's last drawn salary at the material time was RM2,500.00 per month.

THE LAW

The term "constructive dismissal" has been clearly defined in the case of Western Excavating (EGG) Ltd v. Sharp [1978] 1 All ER 713 where Lord Denning M.R. held that the correct test to apply is the contract test. At p. 717, he enunciated the contract test to be as follows:-

"... If th