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2010 MarsdenLR 2448
INDUSTRIAL COURT, KUALA LUMPUR
SELVAMANI MUNIANDY – Appellant
Versus
PHEONIX FAR EAST SDN BHD – Respondent
Award No. 567 Of 2010 [Case No: 15/4-781/07]
An employee must prove a constructive dismissal through a fundamental breach of contract by the employer which necessitates the employee's resignation.
Headnote:(A) Employment Law - Constructive Dismissal - Claimant's resignation from Company following alleged inability to perform contracted duties - Claimant asserted mental stress as basis for resignation - Court evaluated conduct of Company in relation to claims made by Claimant. (Paras 6-7)
(B) Breach of Contract - Court addressed whether Company breached terms of employment warranting constructive dismissal - Established principles from Western Excavating (E.C.C.) Ltd. v. Sharp, requiring proof of fundamental breach. (Paras 41-44)
Facts of the case:
Claimant was employed as a technician with duties including repairs to tachographs. Claimant claimed stress due to lack of assigned work, resulting in resignation with 24-hour notice.
Findings of Court:
Claimant failed to establish constructive dismissal as he did not fulfill job requirements and requested specific work not available.
Issues: Whether the Claimant proved constructive dismissal; whether dismissal was justified.
Ratio Decidendi: Court concluded that Claimant had not established the required breach of contract by the Company and maintained performance issues were substantial enough to negate a claim of constructive dismissal.
Result: Claimant's case struck off.
AWARD
The parties to the dispute are Selvamani a/l Muniandy ("the Claimant") and Pheonix Far East Sdn. Bhd. ("the Company").
By the Company's letter of appointment dated 1.10.1999 (pages 1 and 2 of the Claimant's Bundle of Documents or "CLB") the Claimant was appointed to the post of a technician. He was subsequently confirmed in his position vide the Company's letter dated 1.1.2000.
On 26.7.2004 the Claimant handed in to the Company his resignation letter (page 11 of CLB). The said letter is reproduced herein below:
"26th July 2004
Selvamani A/L Muniandy
No. 10-C Jalan 38/31B
Jinjang Selatan Tambahan
52000 Kuala Lumpur.
Mr. Lee Yoon Voon
PHOENIX FAR EAST SDN. BHD
Lot - 37625 Jalan 2/37A
Taman Bukit Maluri Kepong
52100 Kuala Lumpur.
Dear Mr. Lee
RE: RESIGNATION LETTER
With reference to the above matter, I would like to submit 24 hour notice of resignation with effective from 26th July 2004.
Since the company unable to allocate job for me for one (01) month and also instructed to just sit and not to perform anything in the company and this cause me mental stress.
According to the appointment letter I suppose to give one (01) month notice since I was getting mentally ill cause me to put 24 hours notice of my resignation.
Thank you.
Yours truly,
SELVAMANI A/L MUNIANDY
I hereby accept & confirm the above:-
..............................................
Name:
Date : "
It was the Claimant's case that his job as a technician was to provide technical support to repair tachograph and road speed limiters. He testified in his evidence in chief that since early 2004 he was assigned normal work usually done by non-technical workers such as cleaning compressors, arranging and rearranging tools vide his letter dated 7.7.2004 (page 9 of CLB) he complained to the Company and requested the management to allow him "to do technical work as usual."
He said that the Company replied by its letter dated 13.7.2004 (page 9 of CLB) stating that it had no job of the kind he was employed for and therefore not able to fulfil his request to allocate technical work and/or other duties at that moment. The Claimant went on to testify that for one month he was not given any work to do. He was instructed to just sit and not do any work and also not help anyone until further instructions. That was causing him mental stress, frustration and depression.
Under cross-examination by the Company's Counsel, the Claimant admitted that it was not stated anywhere in his letter of appointment that he was specifically employed to repair tachograph and road speed limiters. He agreed that apart from doing repairs to tachograph and speed limiters, he was also doing other jobs like servicing compressors. Counsel for the Company then drew the Claimant's attention to pages 2, 3, 6, 7, 8, 11 and 12 of the Company's Bundle of Documents (B) or COB-2 as marked. He admitted that all those reports pertaining to compressors were written by him. When it was put to him that he was involved in the service of those compressors, he replied he only dismantled and cleaned the compressors. The Claimant later agreed that from all those reports written by him from as early as 4.10.2002 to 22.9.2003, it was correct to say that apart from repairing tachographs and speed limiters, he also did other jobs like servicing compressors and coming up with reports.
The Claimant was also examined as to the show cause letter issued to him by the Company dated 31.5.2005 (page 4 of CLB) where he was asked to provide the Company with the original bill for his hand phone as evidence and record of his presence at home on 10.5.2004 to 12.5.2004. He admitted that despite the reminders and/or show cause letters sent on 17.6.2004 and 21.6.2004 (pages 13 and 14 of COB-1), he did not produce the hand phone bill. As a result thereof, there was a discussion with him on 26.6.2004 in the office as indicated by the minutes found on page 20 of COB-1. The Court noted from the minutes of the meeting that not only was he queried for not replying the 3 letter
