The court ruled that a proposed redesignation does not constitute constructive dismissal if the employee's terms and conditions remain unchanged and the employee fails to attempt the new role.

AWARD

Zalina Awang @ Mamat:

Reference

[1] The Ministerial reference in this case dated 17 March 2021 required this Court to hear and determine the Claimant's complaint of dismissal by the Company on 13 July 2020 for the case to be heard and a final award to be handed down.

Facts Of The Case

[2] The parties to this matter before this Honorable Court are Rina Malini A/P Theyuanboo (hereinafter referred to as "the Claimant") and IOI City Mall Sdn Bhd (hereinafter referred to as "the Company").

[3] The dispute before this Honorable Court is over the alleged constructive dismissal of the Claimant from the services of the Company on 13 July 2020.

[4] The documents tendered at trial are as follows:

4.1 Company's Bundle of Documents (Volume 1) (COB-1")

4.2 Company's Bundle of Documents (Volume 2) (COB-2")

4.3 Claimant's Bundle of Documents (Volume 1) ("CLB-2)

4.4 Claimant's Supplementary Bundle of Documents ("CLB-2")

[5] The hearing dates before this Honorable Court are as follows:

5.1 14 June 2023; and

5.2 7 March 2024

[6] During the proceedings at the Industrial Court , the following witnesses were called to testify:

By the Company

5.3 Tan Chuei Yee (COW-1) whose Witness Statement was marked as COWS-1;

By the Claimant

5.4 Rina Malini A/P Theyuanboo (CLW-1) whose Witness Statement was marked as CLWS-1.

Material Facts

[7] The Company is engaged in the operation and management of Le Meridien Putrajaya ("the Hotel"), a globally acclaimed 5-star Hotel located in Malaysia. The primary source of revenue for the Hotel is derived from its patrons.

[8] The Claimant commenced employment with the Company on 1 August 2016 as an Assistant PR Manager. Thereafter, by way of a letter dated 2 July 2018, the Claimant was confirmed in her position as Marketing Communication Manager ("MCM") in the Hotel. The Claimant held this role until her last date of employment on 13 July 2020 whereby her last drawn monthly salary was RM6,240.00.

[9] With effect from 18 March 2020, the Malaysian Government announced the implementation of the Movement Control Order ("MCO"), as a preventative measure by the Malaysian government to alleviate the outbreak of the Covid- 19 pandemic in the nation. Amongst the standard operating procedures under the MCO, the Malaysia government implemented:

9.1 a general prohibition of travelling in the country and closure of businesses save for businesses identified as "essential services";

9.2 a prohibition of physical gatherings of a high number of participants or individuals; and

9.3 restriction on entry and exit of all tourists and foreign visits.

[10] Due to the implementation of the MCO, the Company experienced a significant decline in business and revenue as it was unable to sustain its operations throughout the duration of the MCO. Consequently, the Company decided to undertake a restructuring exercise to ensure business continuity by restructuring its business structure.

[11] Considering the abovementioned circumstances, the Company identified that the Claimant should be redesignated: to the role of Assistant Front Office Manager ("AFOM"). In this capacity, the Claimant would oversee club lounge operations and spearhead initiatives related to Medallia & Marriott Bonvoy.

[12] The Claimant was chosen for this role due to her extensive experience and specialized skill set acquired as MCM, which would be applicable to her new position as AFOM.

[13] The AFOM position entailed broader responsibilities compared to the Claimant's previous role. Nevertheless, both her former position as MCM and the proposed AFOM role were classified under the same grade/band as per (pp 23 and 25 of COB-2).

[14] Additionally, both roles reported to the Room Division Manager, who held the highest reporting line within the rooms division of the Hotel and belonged to the Blue Band hierarchy.

[15] Moreover, there was no reduction in benefits and remuneration pursuant to the resignation from the Claimant's previous role as MCM to the proposed AFOM role.

[16] On or around 9 July 2020,