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2025 MarsdenLR 2595
INDUSTRIAL COURT KUALA LUMPUR
MUSHANAFAH MUHAMMAD – Appellant
Versus
BMG GLOBAL SDN BHD – Respondent
Award No: 166 of 2025 [Case No: 19/4-68/22]
The employer's right to transfer employees is upheld, provided it aligns with the employment contract, and does not constitute constructive dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant alleged constructive dismissal due to transfer to outstation site - Court found no breach of employment contract and upheld the employer's right to transfer employees as per contract terms. (Paras 1, 4, 41)
(B) Employment Contract - The right to transfer employees is a management prerogative, provided it is within the terms of the employment contract. (Paras 41)
Facts of the case:
The Claimant was employed by the Company and was transferred to a project site during the Movement Control Order. She claimed constructive dismissal due to the transfer, which she argued involved a change in job scope. (Paras 4, 18)
Findings of Court:
The Court found that the Claimant did not prove constructive dismissal as the transfer was in accordance with her employment contract and did not constitute a breach. (Paras 40, 42)
Issues: The main issues were whether the Claimant proved constructive dismissal and whether the transfer constituted a breach of contract. (Paras 38)
Ratio Decidendi: The Court ruled that the employer's conduct did not amount to a breach going to the root of the contract, affirming the principle that management has the prerogative to transfer employees as per contract terms. (Paras 28, 41)
Result: Claimant's case for constructive dismissal is dismissed.
AWARD
Reference
[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Director General of Industrial Relation of Malaysia arising out of the dismissal of Mushanafah Binti Muhammad ("the Claimant") by BMG Global Sdn Bhd ("the Company") on 4 February 2021.
Introduction
[2] On 21 April 2017, the Claimant was offered employment with the Company for the position of Sales Administration and Credit Control Executive with the monthly basic salary of RM3,500.00 and upon confirmation with additional parking and meal allowance of RM200.00 ("Contract of Employment") (see pp 1 to 4 of the CLB1). It is undisputed that the Claimant was confirmed on 4 December 2017. ("Letter of Confirmation") (as at p 5 of the CLB1).
Documents Filed And Tendered In This Case
[3] The trial was conducted over three (3) days ie, on 23 August 2023, 24 April 2024 and 26 June 2024. The following documents were referred to:
[4] The issue arose when, during the Movement Control Order by the Government of Malaysia, the Company verbally instructed the Claimant on 12 January 2021 not to attend the office starting from 13 January 2021. However, when the Claimant returned to the office on 25 January 2021, the Company instructed her to apply for annual leave or unpaid leave for the days she worked from home, which the Claimant refused.
[5] The Claimant has been working at the Company since 21 April 2017 until she alleged to have been constructively dismissed by the Company on 4 February 2021.
The Company's Business
[6] At the outset, it is pertinent to note that the Company is a property and real estate development company. Since its incorporation, the Company involved in various properties development ranging from commercial and residential developments across the country. A large portion of the Company's works are based on projects awarded by employers wherein the Company would act as the main contractor at the project sites at various states.
[7] Due to the nature of the Company's business, it is part and parcel in the employment of the Company's employees that they are constantly subject to transfer to other project sites of the Company.
[8] It is on that basis cl 13 on transfer was incorporated into the Claimant's offer letter which reads:
"13. Transfer
The Company may at its discretion transfer you to another location, section, department, division, branch, subsidiary, or associates Company where your services are required. The Company shall reimburse you for the expenses incurred in transferring to outstation locations."
[9] The fact that the Company constantly transfers its employees to outstation site was also in evidence.
[10] At all material times, the Claimant was aware of the nature of the Company's business which involves outstation project. The notes of proceeding regarding this matter as per below:
"So, my question is, semasa Cik Musha menghadiri interviu tersebut:
Adakah or I cadangkan kepada Cik Musha bahawa Cik Musha bahawa Cik Musha mempunyai pengetahuan, knowledge, bahawa Company ini adalah dalam sector pembinaan. Setuju tak?
MUSHA: Setuju
...
MUSHA: Kalau based on property development, yang saya tahu, projek saya handle masa itu adalah Taman Beluran Jaya, dekat Sabah.
JUDGE: Taman Beluran Jaya?
MUSHA: Ya, itu property.
JUDGE: Di mana?
MUSHA: Property di Sabah.
JUDGE: Sabah? Ok.
MUSHA: Selain itu, kalau yang saya handle lah, selain itu, di Johor Bharu, service apartment, Taman Uda."
[11] The Claimant was more than willing to accept the employment with the Company with the transfer clause in place. Notes of proceeding during trial as per below:
"RC: And Cik Musha, for the purpose of the Court , I will read the clause to you. "Transfer. The company may at its discretion, transfer you to another location, section, department, division branch, subsidiary or associates' company where your services are required. Company shall reimburse you for the expenses incurred in transferring to outstation location." Now, sekarang, dalam
