Facts of the Case

Claimant commenced employment with the Respondent as a Sales Executive with effect from 8.2.2006 on a monthly basic salary of RM3,000.00 with a fixed allowance of RM 1,000.00 and a sales commission at 0.5%. Under clause 6 in the terms and conditions of her employment vide the letter of appointment dated 8.2.2006, Claimant had to serve a probationary period of 3 months. Claimant alleged that sometime in April 2006, she had informed the Respondent of her pregnancy and the Managing Director (M.D.) of the Respondent was unhappy to hear that and on 11.5.2006, the M.D. informed the Claimant that her salary would be deducted (reduced) without giving any reason. On 5.6.2006, according to Claimant, the M.D. asked her to stop work. However, on 7.6.2006, when she came to the office to collect her cheques, she was instructed to continue to work for the Respondent with an extension of her probation for another 3 months. However on 3.7.2006 after having received the unsatisfactory performance review dated 30.6.2006 from the Respondent, Claimant purportedly tendered her letter of resignation for which the Respondent had accepted but it was subsequently withdrawn by the Claimant. On 3.7.2006, Claimant alleged that she had also sent a letter of grievance to the M.D. who was angry and threatened not to pay her salary for June 2006. The Respondent denied such letter was sent and denied that it did not pay Claimant's salary for June 2006. Claimant lodged a complaint with the Jabatan Tenaga Kerja Selangor on 10.7.2006. She later withdrew that complaint. The Respondent averred that the Claimant's complaint was not for non-payment of her June 2006 salary but the commission for the sale that she alleged she had closed which sale was in fact not closed by her but by the M.D. of the Respondent; Claimant was advised by the Jabatan Tenaga Kerja to withdraw her complaint and she did accordingly. On 12.7.2006, after receiving her 2nd performance review, Claimant saw the M.D. and from a discussion between both of them, Claimant signed a mutually agreed letter of termination of employment with payments of pro-rated salary and allowance, one month salary in lieu of notice and commission. She however contended that she signed the said letter under coercion as she needed the payment of her salary because of her pregnancy. She further contended that her termination was without just cause or excuse.

The Respondent contended that the Claimant and the Respondent had mutually agreed that the Claimant service be terminated with effect from 12.7.2006 and denied that it had exerted any force or coercion on the Claimant to resign.

The Issues

The issues before this Court are whether there was a dismissal of the Claimant on 12.7.2006 in that she was forced to agree to the termination or that she had voluntarily ended her contract of employment and if there was a dismissal, whether her termination was with or without just cause or excuse.

The Law

In Wong Chee Hong v. Cathay Organization (M) Sdn. Bhd. [1988] 1 CLJ 298 (Rep); [1988] 1 CLJ 45; [1988] 1 MLJ 92 Salleh Abbas LP in delivering the judgment of the Supreme Court said at p. 95 of the role of the Industrial Court in dealing with a reference under section 20 of the Industrial Relations Act 1967 as follows:-

"When the Industrial Court is dealing with a reference under Section 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal and if so, whether it was with or without just cause or excuse."

In Harpers Trading (M) Sdn. Bhd., Butterworth v. Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan (Award No. 251 of 1988), the Industrial Court drew a distinction between forced resignation and voluntary resignation in the following words:-

"It is well-established principle of industrial law that if it is proved that an employer offered the employee alternatives of "resign or be sacked" and, without anything more, the employee resigned, that would constit