This disputes emanates over the alleged constructive dismissal of the Claimant with effect from 1 August 2000.

The claimant was employed by the company as a resident engineer with effect from 25 October 1999. Pursuant to the contract of employment, the claimant was located at a site office in Tanjung Malim, Perak. The claimant's appointment to the said position was due to the company been accorded with a consultancy contract by a body known as Lembaga Air Perak. This consultancy contract was for the task/project of constructing/fixing the water treatment plant/reservoirs and main pipes in Tanjung Malim.

During the course of the claimant's tenure of employment with the company, the claimant was issued with a transfer directive to the Rompin site office. This transfer of his was to take effect on 1 August 2000. However on 1 August 2000 the claimant had sent a letter to the company claiming constructive dismissal . In this letter of his (pp. 17 and 18 of the company's Bundle of Documents) he stated his displeasure of his immediate transfer to Rompin, Pahang where hardly a week's notice was given, his appeal about the transfer was not given any consideration at all, his disappointment with the company's reluctance to investigate the complaints made by the clients, and the company's action was to victimise him and was done in bad faith.

Since the claimant has considered himself to have been constructively dismissed, the burden of proof is on him to prove to the satisfaction of the court that the company has been guilty of a breach which goes to the root of the contract or if the company has evinced an intention no longer to be bound by it. The burden of proof is on the employee has been stated by Low Hop Bing JC, in the case of Anwar Abdul Rahim v. Bayer (M) Sdn. Bhd. , [1998] 2 MLJ 599 . It has been similarly held in the case of Moo Ng v. Kiwi Productions Sdn Bhd, Johor & Anor; [1998] 3 CLJ 475

The law on constructive dismissal has been expounded by the Supreme court in the case of Wong Chee Hing v. Cathay Organisation (M) Sdn. Bhd. where Salleh Abas LP has stated as follows:

The common law has always recognised the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligations if the employer is guilty of such breach as affect the foundation of the contract or if the employer has evinced or shown an intention not to be bound by it any longer.

He enunciated further:

When the Industrial court is dealing with a reference under section 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal and if so whether it was with or without just cause or excuse.

We think that the word "dismissal" in this section should be interpreted with reference to the common law principle. Thus it would be a dismissal if an employer is guilty of a breach which goes to the root of the contract or if he has evinced an intention no longer to be bound by it. In such situation, the employee is entitled to regard the contract as terminated and himself as being dismissed.

In Anwar Abdul Rahim v. Bayer (M) Sdn. Bhd. , [1998] 2 MLJ 599 , the court of Appeal through Mahadev Shanker JCA has enunciated:

It has been repeatedly held by our courts that the proper approach in deciding whether constructive dismissal has taken place is not to ask oneself whether the employer's conduct was unfair or unreasonable (the unreasonabless test) but Whether "the conduct of the employer was such that the employer was guilty of a breach going to the root of the contract or whether he has evinced an intention no longer to be bound by the contract. (See Holiday Inn, Kuching v. Elizabeth Lee Chai Siok [1991] 2 MELR 246, [1992] 1 MLJ 230 and Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd.[1987] 1 MELR 32; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ 45).

It is the claimant's case that the company's order of transfer from Tanjung Malim