Constructive dismissal occurs when an employer's conduct constitutes a fundamental breach of the employment contract, allowing the employee to terminate the contract and claim compensation.

AWARD

Eswary Maree:

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 Kaamani a/p Suframanyam ("the Claimant") by Siti Healthcare Sdn Bhd ("the Company") on 16 August 2023.

Preliminary Issues

[2] When this matter was first called up for e-mention on 12 March 2024, the Claimant's Counsel was present and the Company was absent. 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, 14/4-1536/23, 14/4-1537/23, 14/4-1538/23, 14/4-1539/23, 14/4-1540/23, 14/4198/24, 14/4-199/24, 14/4-201/24 and 14/4-202/24 but there was no Affidavit 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 date 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 a