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2024 MarsdenLR 3249
INDUSTRIAL COURT IPOH
TEH CHANG KHOON – Appellant
Versus
TASEK CORPORATION BERHAD – Respondent
Award No: 1348 Of 2024 [Case No: 10/4-600/23]
The court ruled that resignation to avoid disciplinary action does not constitute unfair dismissal, and the burden of proof lies with the claimant to establish claims of forced resignation.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Unfair dismissal - Claimant alleged forced resignation due to health condition - Court found no evidence of dismissal or coercion, affirming that resignation was voluntary - Claimant failed to prove forced resignation on balance of probabilities. (Paras 37, 70)
(B) Burden of proof - The burden lies on the Claimant to establish that he was dismissed or forced to resign - No dismissal letter issued, and the Claimant's own actions indicated a voluntary resignation. (Paras 30, 39)
Facts of the case:
The Claimant, a Security/Employee Welfare Manager, alleged unfair dismissal after being instructed to resign due to health issues. The Company contended that the Claimant was not dismissed and had voluntarily resigned. (Paras 1-12)
Findings of Court:
The Claimant was not forced to resign; his position remained available until full recovery. The Claimant's claim of unfair dismissal was dismissed due to lack of evidence. (Paras 70)
Issues: Whether the Claimant was forced to resign and if there was a dismissal with just cause. (Paras 37)
Ratio Decidendi: The Claimant failed to provide sufficient evidence to support claims of forced resignation, and the court affirmed the principle that resignation to avoid disciplinary action does not constitute a dismissal. (Paras 70)
Result: Claimant's claim dismissed.
AWARD
Reference
[1] This is a reference by the Director General of Industrial Relations Department Malaysia dated 27 March 2023 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 3 April 2023 arising out of the alleged unfair dismissal of TEH CHANG KHOON (hereinafter referred to as "the Claimant") by TASEK CORPORATION BERHAD (hereinafter referred to as "the Company") on 1 April 2022.
Factual Backgrounds
[2] The Claimant commenced employment with the Company on 16 March 2009 as the Security/Employee Welfare Manager with the basic salary of RM6,000.00 vide Letter of Offer dated 13 March 2009 (pp 1-4 of CLB-1). Subsequently, the Claimant was confirmed his position with effect from 16 September 2009 vide Letter of Confirmation dated 1 October 2009 (p 5 of CLB-1).
[3] Claimant was diagnosed Non-Hodgkin's Lymphoma since 29 February 2021 and thereafter received treatment between 17 February 2021 until 22 July 2021 (pages 29-30 of CLB-1, CLB-6 & CLB-7). As a result, the Claimant then went on long medical leave (pp 14-31 of COB). On 15 November 2021, the Claimant resumed his work as his medical leave was only until 14 November 2021. However, on 28 December 2021 he was informed by the Company's Group Human Resource Manager namely Yuza Aslinna Yeop Ariff that he needed to prolong his illness leaves as he had to produce a letter from his doctor stating that he was fit to return to work.
[4] The Claimant alleged that on 27 December 2021 he had submitted a letter from Hospital Raja Permaisuri Bainun (HRPB), Ipoh to the Company stating that he was fit to work but was restricted to light duties although he is not fully recovered (p 29 of CLB-1). However, the Claimant alleged that he was instructed by the Company to stay at home until he received instructions from the management of the Company.
[5] Since Yuza Aslinna Yeop Ariff had left her services with the Company, the matter of the Claimant's health and services was proceeded to the Group Chief Financial Officer (CFO) namely Benny Lee Lye Hock. Thereafter, on 16 March 2022, the Claimant had a meeting with Benny Lee and he was told to resign due to his health condition and also for other reasons not known to the Claimant upon which the Claimant did not agree and refused to resign instead followed up with an email to Benny Lee to confirm the said conversation.
[6] On 28 December 2021, the HR Manager replied to the Claimant vide WhatsApp messages where she refused to allow the Claimant to resume his work due to:
(i) The Claimant had not fully recovered which the HR Manager needed to discuss with the doctor;
(ii) The HR Manager needed to explore the recommendation of doctor which suggested the Claimant can do the light work;
(iii) The Claimant was still on prolonged illness; and
(iv) The Claimant needed to wait for further notice from the Company.
[7] Due to his prolonged illness, the Claimant was informed by the HR Manager that his salary scale for April 2021 to September 2021 will be fully paid but for October 2021 until March 2022 will be half paid. In due course, on 25 February 2022, the Claimant approached the Company's CFO after he was informed that the HR Manager (Yuza Aslinna Yeop Ariff) had left the Company. However, the CFO failed to respond to the Claimant's calls and WhatsApp messages.
[8] On 10 March 2022, the Claimant produced another letter fit to work dated 10 March 2022 issued by Hospital Raja Permaisuri Bainun (HRPB) Ipoh (p 30 of CLB-1) stating that the Claimant is now medically fit for employment to CFO vide WhatsApp message and requested to resume his work on 11 March 2022 (p 53 of CLB-1). However, he was informed by the CFO that he would get further instructions from the top management of the Company as there were no instructions from the Company allowing the Claimant to return to work at the material time.
[9] Thereafter, the Claimant had numerous correspondence with the management of the Company via emails
