The burden of proof in a claim for constructive dismissal lies with the employee to establish dismissal without just cause or excuse.

Ahmad Zakhi Mohd Daud:

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of Lee Kuan Hoe ("Claimant") by Glenmark Pharmaceuticals (Malaysia) Sdn Bhd ("Company") on the 10 November 2020.

[2] The Director General reference in this case required the court to hear and determine the Claimant's complaint of dismissal by the Company on 10 November 2020.

[3] This court considered the notes of proceedings, documents and cause papers in handing down this Award namely:

(i) Statement of Case dated 14 January 2022

(ii) Statement in Reply dated 17 February 2022

(iii) Rejoinder dated 24 February 2022

(iv) Claimant's Bundle of Documents - CLB1

(iv) Company's Bundle of Documents -COB1

(v) Claimant's Witness Statement - CLW1S

(vi) Company's Witness Statement - COW1S (Rajiv Garodia)

(vii) Company's Witness Statement - COW2S (Nurliyana Amalina bt Ahmad)

(viii) Company's Witness Statement - COW3S (Jayesh Vispute)

(ix) Claimant's Written Submission and Reply

(x) Company's Written Submission and Reply

Background

[4] The dispute before this court is the claim by the Claimant that he had been constructively dismissed from his employment without just cause or excuse by the Company on 10 November 2020.

[5] By a letter of appointment dated 7 March 2011, the Claimant was offered employment with the Company as "Country Head-Branded Business- Malaysia".

[6] On the 4 November 2020, the Company's representatives called him via a zoom conference call, informing that the Company is restructuring and wanted to implement a Mutual Separation Scheme (MSS).

[7] After a few discussions, the Claimant and the Company had agreed to the proposal of compensation from both parties and the MSS Agreement (MSSA) was signed on 10 November 2020.

[8] On 16 November 2020, the Company appointed a new person in Claimant's position and thus the Claimant claims that he had been constructively dismissed.

The Duty Of The Industrial court

[9] The Supreme court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988] 1 MLJ 92 held that:

"When the Industrial court is dealing with a reference under s 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."

[10] The Federal court in the case of Goon Kwee Phoy v. J & P Coats (M) Bhd, 1981 MarsdenLR 117 held that:

"Where representations are made and are referred to the Industrial court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse"

The Burden Of Proof

[11] The High court in the case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor, 1998 MarsdenLR 2286 held that:

"However, where the fact of dismissal is in dispute, it is for the workman to establish that he was dismissed by his employer."

The Standard Of Proof

[12] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor, [2002] 3 MLJ 129, the court laid down the principle that the standard of proof that is required is one that is on the balance of probabilities.

"Thus in hearing a claim of unjust dismissal, where the employee was dismissed on the basis of an alleged criminal offence such as theft of company property, the Industrial court is not required to be satisfied beyond a reasonable dou