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2020 MarsdenLR 2555
INDUSTRIAL COURT KUALA LUMPUR
KEH SOE SIAN – Appellant
Versus
KTC HUMAN RESOURCE CONSULTANTS SDN BHD – Respondent
Award No: 113 Of 2020 [Case No: 7(16)/4-2836/18]
A constructive dismissal occurs when an employee resigns due to employer's conduct that fundamentally breaches the employment contract, warranting a legal claim for unjust dismissal.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Constructive dismissal – Claimant alleged constructive dismissal due to pressure and changes imposed by the Company on her employment – The Court determined whether the Claimant was dismissed and if so, whether it was with just cause or excuse – Finding that the Claimant established a breach by the Company warranting her resignation – The Court ruled that the dismissal was without just cause, allowing the claim. (Paras 19, 20, 25, 41, 42, 44)
Facts of the case: The Claimant alleged that her employer subjected her to pressure and demotion leading to her constructive dismissal after changes in management. The Company contended she resigned voluntarily. (Paras 3-12)
Findings of Court: The Claimant proved constructive dismissal due to substantial changes and negative treatment by the Company, which were not justified. The Company failed to provide evidence of misconduct. (Paras 35-42)
Issues: Whether the Claimant was constructively dismissed and if the dismissal was with just cause or excuse. (Paras 18, 41)
Ratio Decidendi: The Claimant successfully demonstrated that the Company's actions constituted a fundamental breach of the employment contract that justified her resignation. The burden of proof for misconduct lay with the Company, which it did not meet. (Paras 26, 42)
Result: Claim allowed; the Claimant awarded back wages. (Para 50)
The Reference
[1] This case is a reference under s 20(3) of the Industrial Relation Act 1967, made on 25 September 2018 by the Honorable Minister of Human Resource arising from the dismissal of Keh Soe Sian (hereinafter referred to as "the Claimant") by Ktc Human Resource Consultants Sdn Bhd. (hereinafter referred to as "the Company") on 30 June 2018.
[2] The parties filed their respective written submissions on 5 September 2019 and this Court considered all the notes of proceedings in this matter, documents and the cause papers in handing down this Award namely:-
(i) The Claimant's Statement of Case received on 29 November 2018;
(ii) The Company's Statement in Reply received on 27 December 2018;
(iii) The Claimant's Rejoinder received on 30 January 2019;
(iv) The Claimant's Bundle of Documents - CLB1, CLB2 and CLB3;
(v) The Company's Bundle of Documents - COB1, COB2, COB3, COB4 and COB5;
(vi) Claimant's Witness Statement - CLWS1, CLWS2, CLWS3, CLWS4 and CLWS5; and
(vii) Company's Witness Statements - COWS1.
Brief Facts
[3] The Claimant was appointed as a part-time lecturer with the Company since 2015 on a one (1) year contract which was renewed every year until 2017. On 27 October 2017, the Company issued a letter to the Claimant offering employment as a Contract Lecturer for a term of one (1) year commencing 1 January 2018 till 31 December 2018. The terms and conditions of the employment was as per the Memorandum of Agreement attached to the letter at Tab B of CLB1. The Claimant last drawn salary is RM7,236.00 excluding the allowances.
[4] Early in the year of 2018, the Claimant avers that there was a change of management in the Company where the then Managing Director was removed and the Chairman of the Company, Mr Chong Chai Pin (herein after referred to as Mr CP Chong) took over the management of the Company. In doing so, Mr CP Chong had decided to cease operation of the Nusa Jaya Branch in order to reduce cost and suggested the students to be transferred to the Johor Bahru Branch. However, not all students are willing to continue at Johor Bahru Branch as it would cause unnecessary hardship to them.
[5] The Claimant allege that Mr CP Chong was frustrated when he failed to get the cooperation from all the students and in turn, attempted to accused the Claimant of several wrong doings which the Claimant considers as malicious attempts to breach the contract terms and inadvertently to remove her from employment without just cause or excuse.
[6] In early April 2018, Mr CP Chong arranged two (2) meetings with the student of KTC-DIA at Nusa Jaya Branch whom were the student of the Claimant and revealed his intention to close down the Nusa Jaya Branch. He mentioned the followings to the students on their first meeting, inter alia:
1. "The fact that you all studying here has caused me to make a loss of RM200K that is why we want all of you students to transfer to JB Branch"
2. "Wendy only managed to get this job because using back door methods, she made used of her relationship with my son (ex-managing director)"
3. "If I knew earlier that she was going to join the lecturer team, I would have stopped her or kick her out as soon as possible."
[7] On the second meeting held, Mr CP Chong announced that the Claimant has agreed to be transferred to the Muar Branch and there will be no lecturer in Nusa Jaya. This announcement was made without the knowledge of the Claimant and the Claimant denies consented to the transfer.
[8] Subsequently, on the 27 April 2018, Mr CP Chong had a meeting with the Claimant requesting her to teach at Muar Branch. The Claimant avers that this transfer was without any petrol or accommodation allowances and was to another position of student recruiting and admin duties which are different from the existing post. The Claimant further alleged that Mr CP Chong had threatened to demote her if she does not accept the transfer.
[9] The Claimant vehemently states that the Company or Mr CP Chong personally had cont
