AWARD

This ministerial reference concerns the alleged dismissal of Zulhafiz Bin Abdullah (the 1^st claimant) and Norasiha Mohd Taib (the 2^nd claimant) by Exel Global Logistics/DHL Logistics (the respondent) on 14 September 2006.

The 1^st and 2^nd claimants joined the respondent on 12 October 1984 and 1 January 1983 respectively when it was then known as McGregor Sea and Air Services (M) Sdn Bhd. They were promoted several times and at the material time the 1^st claimant held the position of Manager in the Sea Freight Department while the 2^nd claimant held the position of Admin, Purchasing and Quality Manager. The company is in the freight shipping, forwarding and transport business and is one of several entities in a group, for convenience referred to herein as the DPWN Group. A merger and incidental corporate reorganisation took place in early 2006 entailing considerable rationalisation and integration. New positions were offered to the employees and as far as the Court can ascertain, most employees accepted and settled into their new positions without any major unresolved issue, with a few exceptions. The claimants were two such exceptions. They sought various assurances from the respondent and after some protracted exchange of correspondence and e-mails they claimed constructive dismissal.

The Law

The onus is on the claimants to prove that they were constructively dismissed. Once the claimants have proved that they were constructively dismissed, the onus of proof shifts to the respondent/employer to prove that the dismissal was with just cause or excuse. The test for constructive dismissal is whether the employer has breached a fundamental term of the contract of employment going to the root of the contract or has evinced an intention not to be bound by the contract.

Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd , the Supreme Court held at pages 302 and 303 as follows: wherein Salleh Abas LP succinctly stated as follows:-

"Thus it would be a dismissal if an employer is guilty of a breach which goes to the root of the contract or if he has evinced an intention no longer to be bound by it. In such situation, the employee is entitled to regard the contract as terminated and himself as being dismissed. (See Bouzourou v. The Ottoman Bank [1930] AC 271 and Donovan v. Invicta Airways Ltd. [1970] Llyod's LR 486).

.........

The next question is this. Is the dismissal with a just cause or excuse? Since the appellant has succeeded in showing that he was dismissed, it is for the respondent company to show that the dismissal was with a just cause or excuse."

The test to be applied is the contract test, and not that of unreasonableness. This means that when dealing with a complaint of constructive dismissal the Court will have to keep in line with the common law doctrines that apply to alleged breaches of contract (see Pan Global Textiles Bhd, Pulau Pinang v. Ang Beng Teik, [2002] 2 MLJ 27 , a Federal Court decision).

The 1^st Claimant's Evidence

The 1^st claimant gave his testimony-in-chief vide a prepared witness statement marked CLWS1. The Court noticed that he had not, in this statement, stated that he wanted reinstatement, and asked him to clarify. He replied "I'm already working outside. I was jobless for 2 months. If re-offered again the same position which I held I don't mind going back? . (Italic added).

The respondent's letter dated 27 March 2006 to the 1^st claimant reads as follows:-

"ExcelExcel Logistics (Malaysia) Sdn Bhd (59384-A)Lot 1-8 Persiaran Jubli PerakSection 22, 40300 Shah AlamSelangor Darul Ehsan, MalaysiaTelephone + 603 5515 0000Facsimile + 603 5191 9803

Our Ref: DGF/HR/0024/06-nmz

Date : 27 March 2006

Strictly Private and Confidential - Addressee Only

Zulhafiz bin Abdullah

Present

Dear Zulhafiz

Confirmation of New Role

We are pleased to offer you a position of Senior Manager, Customs & Regulatory Affairs , DHL Global Forwarding reporting to the General Manager, Customs Brokerage & Transportation with effect from 1 April 2006 .

At this