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2020 MarsdenLR 1882
COURT OF APPEAL PUTRAJAYA
NG KIM FONG – Appellant
Versus
MENANG CORPORATION (M) BERHAD – Respondent
[Civil Appeal No: W-02(W)-727-04-2019]
An employee may claim constructive dismissal if coerced into retirement by management pressures; lawful instructions must not compromise contractual obligations.
Headnote:(A) Companies Act 2016 – Capital Market and Services Act 2007 – Industrial Relations Act 1967 – Appellant claimed she was forced into early retirement due to workplace pressure and disputes between management. Court found no evidence of coercion; appellant's voluntary resignation led to loss of retirement benefits. (Paras 30, 31, 119, 177)
(B) Employment Law – Employee Duties – Employee may be compelled to follow lawful instructions of superior, protected under contract law. Court determined that appellant complied with Toh's instructions and acted within her responsibilities despite claims of misconduct. (Paras 124, 130)
(C) Breach of Contract – Findings of misconduct fail to establish breach of terms by appellant; court concluded she acted in the best interests of transparency and corporate governance regarding land transactions. (Paras 121, 128, 164)
(D) Findings of Court: The court found that the learned Judge at trial erred in his conclusions by incorrectly evaluating evidence of coercion against the circumstances presented. (Paras 118, 177)
(E) Issues: Fundamental issues included the validity of resignation under pressure and entitlement to retirement benefits upon reaching retirement age. The court explored the implications of forced retirement on contractual benefits. (Paras 25, 29, 176)
(F) Ratio Decidendi: The appellate court stressed the obligation to evaluate witness credibility and circumstances of resignation. The distinction between voluntary resignation and constructive dismissal was emphasized, along with the necessity of protecting employees against undue workplace pressure. (Paras 151, 159)
(G) Result: The court allowed the appeal, awarded damages for retirement benefits, finding no lawful basis for a forced resignation, thus overturning the lower court's decision. (Paras 118, 177)
Introduction
[1] The background facts and events which precipitated the litigation between the parties to this appeal are such that it is appropriate to preface this judgment by quoting an African (Swahili) proverb which reads: "when elephants fight, it is the grass that suffers". The Malay equivalent is, "gajah sama gajah berjuang, pelanduk mati di tengah-tengah". Both of these proverbs mean that when giants engage in battle, it is the small person in between who gets crushed. These proverbs quite aptly describe the situation in which Ms Ng Kim Fong ("the appellant") found herself during the brief period from 9 May 2016 up to 19 July 2016. The latter date being the appellant's "career ending" date.
[2] To put it in context, the appellant contended that her career got crushed as she was caught in the whirlpool of an interpersonal dispute between the Deputy Managing Director ("Dy MD")/Deputy Chief Executive Officer ("Dy CEO") of the respondent, Mr Toh May Fook ("Toh") and the Managing Director ("MD"/Chief Executive Officer ("CEO") of the respondent, Dato' Shun Leong Kwong ("Dato' Shun").
[3] The appellant commenced employment with the respondent as financial accountant on 13 February 1989. The appellant was re-designated (promoted) as the Senior Group Accountant on 1 January 2001.
[4] She held that position until 19 July 2016 when she "ceased" to be an employee of the respondent.
[5] The respondent was listed on the Main Board of Bursa Malaysia Securities Berhad ("Bursa") and was subject to the Main Market Listing Requirements of Bursa, the Companies Act 2016 and the Capital Market and Services Act 2007 ("CMSA"). Being a public listed company, the respondent is compelled to make disclosure of all relevant information and events pertaining inter alia, to its business and of its acquisition and disposal of assets.
[6] The appellant's cessation of employment was evidenced by her purported letter of "early retirement" dated 19 July 2016 ("the letter of retirement"). The circumstances which impelled the appellant to issue the letter of retirement are controversial.
[7] The appellant had worked with the respondent for 27 years and 5 months when she gave the letter of retirement. The appellant claims that she was forced out of employment as Dato' Shun had called her into his room and questioned her about a memorandum which she had issued to the respondent's Board of Directors ("BOD") and her "alignment" with Toh and had wanted her to leave the respondent.
[8] The respondent did not dispute that there was a meeting in Dato' Shun's room but maintains that the appellant "voluntarily" opted for early retirement.
[9] The letter of retirement reads as:
Dear Dato' Shun,
FORMAL EARLY RETIREMENT NOTICE
I hereby would like to notify you my formal early notice of retirement as a Senior Group Accountant effective 19 July 2016. I thank you for the opportunity to work with you.
Yours faithfully.
Ng Kim Fong.
[10] The appellant testified that she used her own words when drafting the letter of retirement. The respondent contends that the appellant's voluntariness in wanting to retire early can be gleaned from the language employed in the letter of retirement.
[11] The appellant would have reached her 55th birthday on 7 September 2016. Under her contract of employment with the respondent she would have been entitled to substantial retirement benefits if she retired upon reaching her 55th birthday.
[12] Further, based on the Minimum Retirement Age Act 2012 , she could have (if she wanted to) worked until her 60th birthday. Obviously, if she retired at the age of 60, her retirement benefits would have been much higher than if she had retired at the age of 55 years.
[13] The appellant contended that at all material times she followed the instructions of Toh who was brought in as Dy MD/Dy CEO of the respondent on 22 April 2016. He was removed as Dy MD and Dy CEO of the respondent on 18 July 2016. According to the appellant, she was caught in the
