Constructive dismissal occurs when an employer's breach of contract fundamentally undermines the employment relationship, allowing the employee to resign and claim for remedies.

AWARD

Vanithamany Sivalingam:

Reference

[1] This is a reference by the Director General of Industrial Relations to this Industrial Court unders 20(3) of the Industrial Relations Act 1967 ("The Act") for an award in respect of the dispute arising out of the alleged constructive dismissal of KALAIVANI A/P NADESON ("the Claimant") by her employer, SITI HEALTHCARE SDN BHD ("Company").

This Court takes cognizance of the following bundles, statements, submission and cause papers filed.

Documents In Court Files

I. Statement of case dated 5 January 2024.

II. Rejoinder dated 22 January 2024.

III. Claimant's Bundle of Document (CLB 1).

IV. Claimant's Supplementary Bundle dated 31 May 2024.

V. Witness Statement of the Claimant (CLWS1).

VI. Claimant Written Submission dated 4 July 2024.

VII. Claimant's Bundle of Authorities.

The Claimant alleged that her employment was brought to end by way of constructive dismissal by the Company on 2 June 2023.

The Claimant's Case

[2] The Claimant entered into a contract of service with the Company commencing from 1 July 2022 ("original contract") as the Resident Doctor for a salary of RM8,500.00. The Claimant's working location was initially at Klinik Siti, Cheras branch and on 1 January 2023 the Claimant was transferred to Klinik Siti, Bandar Tun Hussien Onn. The Claimant rendered her service to the Company for 11 months commencing from 1 July 2022 until she was constructively dismissed on 2 June 2023.

[3] The Claimant averred that the Company had breached the terms of the contract of employment which goes to the root of the contract. The Claimant then served the Company with a 'notice of breach of contract of employment and constructive dismissal' dated 25 May 2023 and the terms that were allegedly to have been breached by the Company were:

a) The Company had unilaterally varied the terms of the original contract without obtaining the Claimant's prior consent and the terms were:

i) Total annual leave has decreased from 24 shifts, which was equivalent to 24 days to 12 days. The Claimant alleged that this was against s 7A of the Employment Act 1955 (" EA 1955");

ii) The Company had made it compulsory to work on Public Holiday which was against s 60(3) EA 1955, Para 1A of the 1955 read together with First Schedule, where the Company had failed to obtain the Claimant consent;

iii) The Company was in breach of s 60A(1) EA 1955 as the Company should provide 30 minutes break every 5 hours consecutive working hours;

iv) The Company acted in breach of s 60A(1) EA 1955 when it required the Claimant to be on standby based on monthly Standby Schedule;

v) The notice period based on the original contract of employment required the Claimant and the Company to serve 2 month notice of termination however due to the unilateral variation of the terms, the Claimant was required to serve 2 months' notice while the Company's notice period still remains 1 month. The Claimant averred that this was in breach of s 12(2) of the EA 1955;

b) The Company has not paid the Claimant's April 2023 salary amounting to RM374.96;

c) The Company neglected to pay the Claimant's Employee Provident Fund ("EPF") contributions since December 2022;

d) The Company failed to contribute to the Claimant's Social Security Organization ("SOCSO") since March 2023;

e) The Company neglected to pay the Claimant's Employment Insurance Scheme (EIS) continuations since the day the Claimant joined the Company;

f) The Company failed to pay the Claimant's Income Tax Deductions ("PCB") since January 2023;

g) The Company instructed the Claimant to find replacement if the Claimant goes on medical leave and the Claimant's medical certificate has to be verified by the Chief Resident. The Claimant averred that it is unfair for the Claimant to find a replacement when it was the Company duty to find a replacement when the Claimant goes on medical leave.

[4] The Company replied to the Claimant's notice on 29 May 2023 explaining the original and the varied terms The Claimant,