Constructive dismissal occurs when an employer's serious breach of contract, such as failure to pay wages, leads an employee to resign; the court affirmed the contract test to determine constructive dismissal.

[1] This is a case involving a claim by the Claimant based on constructive dismissal. The hearing of this matter commenced on 26 June 2019. At the hearing, the Claimants Counsel was present but the Companys representative was absent. Counsel for the Claimant informed the Court at the outset that on 25 June 2019 at about 4:00 p.m. the Companys HR Executive Puan Safinaz Binti Md Noh ("Puan Safinaz") informed Court 24 Interpreter Puan Fatin Amamah that the Companys representative in charge of this case will not be present to conduct the hearing.

[2] Counsel for the Claimant requested the Court to exercise its powers under s 29(d) of the Industrial Relations Act 1967 ("the Act") to proceed with this matter ex-parte. Accordingly, the Court ordered for this matter to be proceeded forthwith pursuant to s 29(d) of the Act since the Companys representative was absent. The hearing then commenced.

Brief Facts

[3] The Claimant joined BC Petrochemical Sdn Bhd on 7 November 2005 as a Proposal Engineer with a starting salary of RM1,200.00 per month. The Claimants tenure of employment with BC Petrochemical Sdn Bhd continued until BC Petrochemical Sdn Bhd changed its name to Nusapetro Sdn Bhd on 23 December 2014.

[4] The Claimant was confirmed in her position as Proposal Engineer on 15 May 2006 with an increment in salary to RM2,600.00 per month.

[5] The Claimant was subsequently given salary increment with effect from 1 March 2014 to RM5,950.00 per month.

[6] Thereafter, the Company vide letter dated 11 March 2015, gave the Claimant another salary increment with effect from 1 March 2015 wherein her new monthly salary was increased to RM6,247.50 per month. This remained as her last drawn salary.

[7] The Claimant carried out her duties and responsibilities in the Company in a diligent manner.

[8] It is the Companys policy to pay the salaries of employees by 28th of each month.

[9] However, from April 2017 till January 2018, the Company began paying the Claimants salaries late, in any event after the 7th of the subsequent month. The Company had also made the necessary statutory deductions for KWSP, Zakat, LHDN and SOCSO from the Claimants salaries. However, despite the said deductions, the Company had failed, neglected and/or refused to pay the said deductions to the respective authorities ("the said statutory deductions" ).

[10] The situation became progressively worse when the Company had failed, refused and/or neglected to pay the Claimant her salaries from the month of February 2018 till 15 May 2018 ("the said non-payment of salaries for the said period").

[11] The Claimant had on numerous occasions approached one Puan Safinaz, who was the Senior Executive of Human Resources in the Company to request for her salaries. However, the explanations given and promises made were never fulfilled.

[12] The Claimant had also on numerous occasions requested the Human Resources Department to set an appointment with the Management of the Company in order to resolve the salary issue but her requests were denied as the Human Resources Department had refused to cooperate with the Claimant to resolve the issue.

[13] Hence, the Claimant was left with no option bu