The Industrial Court retains jurisdiction to hear claims even without a reinstatement request, and constructive dismissal claims require proving a fundamental breach of the employment contract.

Ravinthran Paramaguru JCA:

Introduction

Background Facts

[2] The respondent worked as a sales representative with the appellant since 1977. His duties included sales, distribution, promotion, debt collection and merchandising in relation to the product of his employer which is liquor and spirits. He was also assigned a sales coverage area. He was paid a monthly salary. He was also paid a commission as is the norm with regard to sales representatives. The sales commission rate was based on a formula that took into account the revenue collected from sales and the time period within which it was collected. It was known as the Sales Commission Scheme. The respondent was given an annual increment of RM50 until 2007. Thereafter, his basic salary of RM2000 per month was not increased.

[3] The initial bone of contention between the employer and the employee was in respect of the Sales Commission Scheme only. In October of 2009, it was revised by the appellant. The respondent said that it was "unilaterally" revised. But nothing turned on it. The respondent accepted the revision of the Sales Commission Scheme and carried on as before until 2016.

[4] Things came to a head when the Sales Commission Scheme was again revised on 1 May 2016. In addition, due to reorganisation of its sales outlets, the appellant also removed Negeri Sembilan from the sales coverage area of the respondent. At the same time, the monthly sales target of the respondent was also increased from RM1,500,000.00 to RM1,690,000.00. The respondent wrote a letter to express his dissatisfaction. He objected to the revised Sales Commission Scheme that lowered the sales commission rate. He said that it was not in accordance with his employment agreement as it would reduce his monthly sales commission by 42 per cent. Furthermore, the removal of Negeri Sembilan from his coverage area would reduce his monthly sales commission by 30 per cent. The defence of the appellant at the Industrial Court hearing was that the said changes were made in order to streamline the business operation and to remain competitive.

[5] The respondent did not resign upon receipt of the letter that notified him of the revision of the sales commission rate and the reorganisation of the sales coverage area. He told the Industrial Court that he remained in employment to collect evidence of reduction in monthly income due to the appellant's practice of releasing the sales commission a few months subsequent to collection of monies from sales. He only resigned nine months later on 10 March 2017 and regarded himself constructively dismissed. On 29 March 2017, he filed a representation under s 20 of the Industrial Relations Act 1967 (revised 1976). The Minister referred the representation to the Industrial Court.

[6] The Industrial Court dealt with two issues and decided both against the respondent. The Court firstly held that since reinstatement was not pleaded as a relief in the Statement of Case, it ceased to have jurisdiction to make an award. Secondly, it held that the respondent failed to prove that he was constructively dismissed. Consequently, the claim of the respondent was dismissed.

[7] At the judicial review application before the High Court, the same two issues were argued. The learned High Court Judge found that the Industrial Court erred in law in ruling that it ceased to have jurisdiction. Secondly, the learned High Court Judge found that the Industrial Court erred in finding that the respondent was not constructively dismissed.

Contention Of Parties

[8] Before us, counsel for the appellant argued that the I