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2025 MarsdenLR 6215
INDUSTRIAL COURT KUALA LUMPUR
HOOMASHINI GUNASEGARAN – Appellant
Versus
SITI HEALTHCARE SDN BHD – Respondent
Award No: 574 Of 2025 [Case No: 14/4-1536/23]
The court established that constructive dismissal occurs when an employer's conduct fundamentally breaches the employment contract, allowing the employee to terminate the contract.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant dismissed by Company on grounds of breach of employment contract - Claimant's grievances included unilateral changes to employment terms, non-payment of salary, and failure to remit statutory contributions - Court found fundamental breaches by Company justifying Claimant's constructive dismissal. (Paras 19, 20, 66, 72)
(B) Constructive Dismissal - Definition and test - Employee entitled to terminate contract if employer's conduct breaches fundamental terms - Court clarified that the test is based on contractual breach rather than unreasonableness. (Paras 19, 20, 25, 27)
Facts of the case:
Claimant employed as Resident Doctor, faced unilateral changes to employment terms, delayed salary payments, and non-remittance of statutory contributions, leading to her constructive dismissal on 23 May 2023.
Findings of Court:
Claimant proved fundamental breaches by Company, justifying her claim of constructive dismissal.
Issues: Whether the Company's actions constituted a fundamental breach of the employment contract justifying constructive dismissal.
Ratio Decidendi: The Court held that the Company's failure to pay salary and remit statutory contributions constituted fundamental breaches, allowing the Claimant to treat herself as constructively dismissed.
Result: Company ordered to pay Claimant RM111,150.00 as compensation.
AWARD
Reference
[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 as amended by the Industrial Relations (Amendment) Act 2020 (the Act) by the Director General of Industrial Relations, emanates from the dismissal of Hoomashini a/p Gunasegaran ("the Claimant") by Siti Healthcare Sdn Bhd ("the Company") on 23 May 2023.
Preliminary Issues
[2] When this matter was first called up for e-mention on 31 October 2023, the Claimant's Counsel and the Company were present. During the said mention, this Court gave directions to the parties for filing of pleadings and the Bundle of Documents. The Claimant had duly filed the pleadings and documents as directed by the Court .
[3] The Company appointed Messrs Hadi & Hakim (the said Firm) to represent the Company. Forms A (Application For Permission To Be Represented By a Legal Practitioner) and Forms B (Warrant of Authority) for the appointment and representation was duly filed by the said Firm. For the reason best known to the said Firm, there was no pleadings and documents filed for the Company as directed by this Court .
[4] The said Firm had filed an undated Notice of Application (the Application) to consolidate this case with Case Nos 14/4-1420/23, 14/4-1421/23, 14/4-1422/23, 14/4-1537/23, 14/4-1538/23, 14/4-1539/23, 14/4-1540/23, 14/4-198/24, 14/4199/24, 14/4-200/24, 14/4-201/24 and 14/4-202/24 but there was no filed to support the said Application. The said Application was fixed for hearing on 13 May 2024. However, on the hearing date of the Application, the said Firm seek for an adjournment to file an Affidavit to support the Application. This Court allowed the said Firm's application for adjournment and directions were given for a proper Notice of Application supported by an Affidavit to be file on or before 20 May 2024 and that the said documents to be served on the Claimant's Solicitors accordingly. This Court also gave further directions for the Claimant's Solicitors to file Affidavit In Reply to the Affidavit In Support on or before 10 June 2024 and fixed the Application for hearing on 30 July 2024 @ 2.00pm. Despite this Court 's directions, the said Firm chose not to file a proper Notice of Application supported by an Affidavit and as such the hearing of the Application fixed on 30 July 2024 was vacated and this case was fixed for trial on 23 September 2024 and 24 September 2024.
[5] On the date of trial, namely 23 September 2024, this Court received an email from the said Firm seeking for adjournment of the trial dates on the ground that the Counsel in charge of this matter, one Encik Kamal Hadi bin Ahmad Zaki was taken ill and the medical certificate for the duration of 23 September 2024 to 25 September 2024 was also attached with the said email. This Court allowed the application for postponement and adjourned the matter to 11 October 2024 for trial.
[6] On 11 October 2024, the Claimant's Counsel, the Claimant and the Company's Counsel were present in Court . The Company had failed to file any pleadings and documents as at the date of trial despite being instructed to do so by this Court . No representative from the Company was present in Court . The Company, for reasons best known to itself opted not to attend Court and/or to defend the Claimant's case against the Company.
[7] The Company's Counsel, who was present in Court informed that he will not cross-examine the Claimant but requested to file Written Submissions on points of law upon conclusion of this case. This Court allowed the said Counsel's request to file the Written Submissions for the Company. However, again for the reason best known to the said Counsel, there was no Written Submissions filed for the Company in this case.
[8] This Court , in exercising its power under s 29(d) of the Act had proceeded with the trial of this matter on 11 October 2024. Section 29(d) of the Act reads as follows:
"29. Power of the Court .
The Court may, in any proceedings before it
