AWARD

Introduction

This reference pertains to a representation made by Abdul Hamid Ahmad Maulana ("claimant") wherein by letter (CLE8) dated 3 February 2000, he claimed constructive dismissal with effect from 10 February 2000 from and by Marubi Development Sdn. Bhd. ("the company") by reason of the company failing to fulfil its obligations by bringing the payment of his salary, EPF contributions, income tax deductions and SOCSO deductions up to date.

On 5 November 2001 when the matter was called up for hearing at 9.30am., the claimant was present and represented by Jacinta Johnson of M/s Murugavell Arumugam and Co. The company was absent and unrepresented. A perusal of the court's file disclosed that the company had on the previous occasion that the case had been called up for mention, ie, on 9 April 2001, been represented by Hajar Mohd Tahir from M/s Yazli and Zain. To be fair to the company, the court then stood the matter down in case the company and/or its counsel were on their way to court.

When the case was called up again in open court at 10.15a.m. neither the company nor its counsel was present. This court therefore concludes that for reasons only known to itself, the company has demonstrated a clear and definite lack of interest to be present in court and to rebut the claimant's allegation of dismissal without just cause or excuse.

In this matter the court has also to be fair to the claimant who had faithfully attended court on the previous occasions the matter had been set down, and who was eager to press forward his claim of dismissal without just cause or excuse. It also has to take into consideration the interests of the non-appearing and seemingly not interested company, in that, if the court delayed the resolution of this matter, the award, if any, made against the company, would in monetary terms, increase with the passage of time.

As such the court invoking its powers under s. 29(d) of the Industrial Relations Act 1967, proceeded to hear and determine the matter before it notwithstanding the failure of the company to appear.

The Claimant's Evidence

The claimant evidence was that he was employed by the company as resident manager for the Mariana Beach Resort, Kuantan with effect from 1 January 1997 (CLE1) with a salary of RM7,500 per month. The claimant had to undergo a probation period of six calendar months. However the company took no steps ever to confirm the claimant. Vide a letter dated 22 December 1999, the claimant informed the company that his full salary for November 1999 had yet to be paid and that he had only received RM1,500 as part payment of his November 1999's salary on 19 November 1999. Vide another letter dated 18 January 2000 (CLE3) the claimant reminded the company that his part salary for November and full salary for December had still not been paid to him. Vide another letter dated 31 January 2000 (CLE4), the claimant again reminded the company of his unpaid salary. Vide a final letter dated 3 February 2000 (CLE5) the claimant gave the company until 10 February 2000 to fulfil its obligations by bringing his salary, EPF contributions, income tax deductions and SOCSO deductions up to date, failing which he would consider himself to be constructively dismissed. By 10 February 2000 there was still no response from the company, and so the claimant considered himself as having been constructively dismissed from the company. The claimant's unrebutted evidence was that he had never agreed to any variation of his salary or other terms of his contract of employment.

The Law

The law relating to constructive dismissal, which has long been recognised in Malaysian industrial relations jurisprudence was clearly and authoritatively stated by the Supreme court in Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd[1987] 1 MELR 32, [1988] 1 MLJ 92 where Salleh Abas LP at pp. 47-48 referred to the case of Western Excavating [ECC] Ltd v. Sharp [1978] 2 WLR 344 and enunciated constructive dismissal to be as follows:

Acco