Faiza Tamby Chik J:

This application (encl. 8) raises a very fundamental issue in Employment Law. It concerns basic principles to be applied in cases of constructive dismissal. The issue may be cast as follows:

Is an employee, who considers herself as having been constructively dismissed obliged to first inform her employer or put her employer on notice of her stand (that she has been so dismissed) before she can make a representation under section 20(1) of the Industrial Relations Act 1967 ("the IRA") read with section 20(1A) of the IRA?

It was contended before the Industrial Court (the 2nd respondent), on a preliminary objection, that a representation by an employee (under s. 20(1) read with s. 20(1A) of the IRA) that she was constructively dismissed before she informed her employer of her stand was a premature representation and, accordingly, the Industrial Court would not be seized with jurisdiction to adjudicate the claim of constructive dismissal based on the premature representation. The Industrial Court, however, answered the issue in the negative when it decided that an employee is not required to inform her employer that she considered herself as having been constructively dismissed before making the representation under s. 20(1) read with s. 20(1A) of the IRA. The Industrial Court therefore found that the claim was not premature and refused the applicant's preliminary objection. If the Industrial Court is correct in its view, then any employee can walk out of employment for whatever reasons (eg, for a better job) without first informing her employer or giving notice to her employer and then when things do not go the employee's way, the employee can say that he or she was in fact constructively dismissed by the employer. This would be an abuse of a claim of constructive dismissal. Equally, as the case before the court here, an employee faced with serious allegations of misconduct could give the impression that she is submitting to the disciplinary process of the employer. But at the same time, she could make a representation under the IRA that she has been constructively dismissed by reason of the disciplinary process, without first informing her employer of her stand. It is only when she finds that the disciplinary action is not going her way that she informs her employer that she considers herself as having been constructively dismissed and that she had already made her representation. This is also an abuse of a genuine claim of constructive dismissal.

The issue has wide ramifications. It strikes at the very heart of the statutory regime housed in ss. 20(1) and 20(1A) of the IRA which gives the Industrial Court jurisdiction to her dismissal cases. The decision of the Industrial Court on the issue is also, as may be seen later, incompatible with the contract test in constructive dismissal cases as postulated in the leading Supreme Court case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd.[1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298. The matter therefore resolves itself into a very important issue of jurisdiction of the Industrial Court in constructive dismissal cases under s. 20(1) and 20(1A) of the IRA. Hence, the instant application. The application (encl. 8) is supported by the statement (encl. 7) and the affidavit of Sunny Lim (encl. 6). The 1st respondent has filed and served one affidavit in reply affirmed on 4 July 2001 and in response to that, the applicant filed and served its affidavit affirmed on 20 July 2001.

The background facts of the case are as follows: The 1st respondent was employed as a Branch Manager of the applicant bank at all material times. The 1st respondent was informed on 19 August 1998 of the investigations that the bank was carrying out at her branch in Kuala Terengganu involving her (see p. 90, encl. 6). The 1st respondent agreed to go on leave from 20 August 1998 to 30 August 1998 to facilitate the investigations (see p. 90 and pp. 116 to 117, encl.). As a result of the inve