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2023 MarsdenLR 1862
INDUSTRIAL COURT PENANG
TAN SIEW YONG – Appellant
Versus
ASIAN POTTERY (PENANG) SDN BHD – Respondent
Award No: 2247 Of 2023 [Case No: 9/4-2283/21]
A claim for constructive dismissal arises when an employer's conduct constitutes a fundamental breach of the employment contract, allowing the employee to resign and claim compensation.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Claim for constructive dismissal - The Claimant, employed for 20 years, claimed constructive dismissal after being transferred to a separate entity without proper job description or consent, leading to a breach of contract - The court found that the Company's actions constituted a fundamental breach of the employment contract, justifying the Claimant's claim of constructive dismissal. (Paras 20, 32, 54)
(B) Burden of Proof - In cases of constructive dismissal, the burden lies on the Claimant to prove dismissal when disputed, while the employer must justify the dismissal if not in dispute. (Paras 18, 19)
(C) Constructive Dismissal - The court reiterated that for constructive dismissal, the employer's actions must constitute a significant breach of contract, allowing the employee to terminate the contract. (Paras 20, 30)
Facts of the case:
The Claimant commenced employment in 2000 and was later transferred to a separate entity without a proper job description, leading to her claim of constructive dismissal on 26 November 2020. The Company denied her long tenure and justified the transfer as a promotion. (Paras 3, 14, 15)
Findings of Court:
The Company’s actions constituted a fundamental breach of the employment contract, leading to the conclusion of constructive dismissal. The court awarded monetary compensation instead of reinstatement due to the breakdown of the working relationship. (Paras 54, 56)
Issues: The main issues were whether the Company’s conduct amounted to a fundamental breach of contract and whether the dismissal was with just cause or excuse. (Paras 23)
Ratio Decidendi: The court determined that the Company’s failure to provide a job description and the significant changes in the Claimant’s role constituted a fundamental breach, justifying her claim of constructive dismissal. (Paras 32, 54)
Result: The Claimant was awarded a total of RM212,080.00 in compensation. (Paras 66)
| Table of Content |
|---|
| 1. reference to industrial court under ira (Para 1 , 2) |
| 2. factual background of claimant's employment (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. claimant's assertions and company's response (Para 15 , 16) |
| 4. standard of proof and burden of proof outlined (Para 17 , 18) |
| 5. legal test for constructive dismissal established (Para 20 , 21) |
| 6. key issues for constructive dismissal claim (Para 22 , 23) |
| 7. court's evaluation of evidence and findings (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53) |
| 8. conclusion and final award determination (Para 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66) |
[1] This is a reference dated 23 July 2021 by the Honorable Minister of Human Resources to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Tan Siew Yong (hereinafter referred to as "the Claimant") by her employer, Asian Pottery (Penang) Sdn Bhd (hereinafter referred to as "the Company") effective 26 November 2020.
[2] This Court has considered the following cause papers and documents in handing down this Award, namely:
(a) the Claimant's Statement of Case dated 25 October 2021;
(b) the Company's Statement in Reply dated 8 December 2021;
(c) Rejoinder dated 19 January 2022;
(d) the Claimant's witness statement (Tan Siew Yong) is marked as "CLWS-1";
(e) the Company's witness statement (Chi Kiam Pheng) is marked as "COWS-1";
(f) the Claimant's Bundle of Documents marked as "CLB-1";
(h) the Claimant's Bundle of Documents marked as "CLB-2";
(i) the Company's Bundle of Documents marked as "COB-1"; and
(j) the Company's Bundle of Documents marked as "COB-2".
A. Factual Matrix
[3] The Claimant commenced her employment as an Accounts Officer with Asian Pottery Manufactures Sdn Bhd vide a Letter of Appointment dated 11 September 2000, with effective from 25 September 2000 and with a starting salary of RM1,600.00. The Claimant was further paid a fixed vehicle allowance of RM80.00 per month (CLB-1, p 2).
[4] The Claimant was on probation for 3 months with a further extension of 3 months.
[5] By a letter dated 3 January 2001, the Claimant was confimed in employment with Asian Pottery (Penang) Sdn Bhd effect from 1 January 2001, wherein she received a salary increment of RM120.00 per month (CLB-1, p 3).
[6] The Claimant, vide a letter dated 1 August 2009, was appointed as an Account & Administrative Executive by APP Industries Bhd. According to the said appointment, the Claimant's monthly fixed petrol allowance was revised from RM120.00 to RM220.00 per month, whereas her salary, other allowances, and terms of employment remained unchanged (CLB- 1, p 4).
[7] The Claimant's Job Description (JD) for her new role was expanded, wherein she was made in charge of the Group Administration, Office Administration, and also of Asian Pottery Home & Garden Sdn Bhd (CLB-1, p 5).
[8] The Claimant, once again, vide a letter dated 23 September 2011, was promoted by Asian Pottery Home & Garden Sdn Bhd to the position of Branch Manager with effect from 1 September 2011 (CLB-1, p 6). Vide the said letter, the Claimant was granted an additional fixed allowance of RM200.00 per month. The Claimant's basic salary was also revised to RM3,650.00 per month. Upon promotion to this post, Asian Pottery Home & Garden Sdn Bhd has provided the Claimant with a Portfolio and job responsibilities (Northern Region (Penang)) (CLB-1, p 7).
[9]Vide a Letter of Transfer dated 28 June 2019, the Claimant was transferred to the Company as the Branch Manager, effective 1 July 2019 (CLB- 1, p 8).
[10] Then, vide an Employment Letter dated 1 July 2019, the Claimant was offered employment with the Company as the Marketing & Operations Manager with effect from 1 July 2019 with a basic salary of RM4,820.00. (CLB-1, pp 9-11).
[11] With effect from 1 May 2020,
