Constructive dismissal occurs when an employer's breach of contract fundamentally undermines the employment relationship, leading the employee to resign. The burden of proof lies with the employee to establish this claim.

AWARD

Vanithamany Sivalingam:

Reference

[1] This is a reference by the Director General of Industrial Relations to this Industrial Court under s 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 Eric Koh Kim Lai ("the Claimant") by his employer, Airasia Bhd ("Company").

[2] This Court takes cognizance of the following bundles, statements, submission and cause papers filed:

Documents In Court Files

I. Statement of case dated 10 April 2023;

II. Statement of reply dated 16 May 2023;

III. Rejoinder dated 1 June 2023;

IV. Claimant's Bundle of Document (CLB1, CLB 2 & CLB3);

V. Company's Bundle of Document (COB1, COB2, COB3, COB4, COB5, COB6 & COB 7);

VI. Witness Statement of the Claimant (CLWS1);

VII. Witness Statement of the Company - Sachithananthan Stritharan (COWS1);

VIII. Witness Statement of the Company - Sia Lay Teng (COWS2);

IX. Claimant's Written Submission dated 6 May 2024;

X. Company's Written Submission dated 6 May 2024;

XI. Company's Bundle of Authorities;

XII. Claimant's Bundle of Authorities;

XIII. Claimant's Submission in Reply dated 20 May 2024;

XIV. Company's Submission in Reply dated 13 May 2024.

[3] The Claimant alleged that his employment was brought to end by way of constructive dismissal by the Company on 4 May 2022.

The Claimant's Case

[4] The Claimant entered into a contract for service ("1st contract") with the Company commencing from 2 July 2018 as the Captain for the salary of RM13,000.00 for a probation period of 6 months. The Company then entered a 2nd Contract of Employment ("2nd contract") with the Claimant on 25 November 2021 with the basic salary of RM12,100.00. The 2nd contract expressly recognizes the Claimant's year of service within AirAsia Group of Companies and deemed the Claimant's service to have commenced from 2 July 2018.

[5] On 1 July 2020, the Company issued a letter to the Claimant to unilaterally confirm the imposition of 8 days unpaid leave from June 2020 onwards until further notice. The Claimant's salary has been reduced from RM13,000.00 to RM9,000.00 (31% decrease).

[6] On 6 October 2020, the Company issued another letter to the Claimant to unilaterally confirm the imposition of 15 days unpaid leave until further notice. The salary of the Claimant was further reduced from RM9,000.00 to RM5,500.00 (57% decrease).

[7] On 15 December 2020, the Company held a townhall meeting and informed the Claimant and other pilots that they will be unilaterally placed on 'furlough' from 1 February 2021 until 31 March 2021("1st Furlough"). The Claimant will only be paid 25% of his basic salary meaning the Claimant was given 75% reduction from his basic salary of RM13,000.00.

[8] On 15 February 2021, the Company held another town hall meeting and informed the Claimant and other pilots that they will be placed on 2nd furlough from 1 March 2021 until 31 December 2021 ("2nd furlough"). During this time, the Claimant will not be entitled to any monthly salary and al the annual leave for year 2020 was deemed to be exhausted.

[9] On 25 November 2021, a town hall meeting held, and the Claimant was informed that his salary will be reinstated, and no further unpaid leave will be imposed once the Claimant is reactivated for service in year 2022.

[10] On 20 November 2021, the Claimant was informed by the Company that his furlough period will be extended from 1 January 2022 until 31 December 2022 ("3rd furlough") with the terms and condition of 2nd furlough imposed which means the Claimant will not be receiving any monthly salary until 31 December 2022.

[11] On 1 January 2022, the Claimants' basic salary was revised to 12,100 pursuant to the 2nd contract. During a town hall meeting held on 8 April 2022, the Director of Flight Operations Captain Saravanan Subramaniam, informed the Claimant and the other pilots that the Company's reactivation plan via pool system was for pilots who were placed on furlough.

[12] Pool A was for the pilots who