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2024 MarsdenLR 2195
INDUSTRIAL COURT KUALA LUMPUR
ARUMUGAM KALIAPPAN – Appellant
Versus
SB GEOTECHNIC (M) SDN BHD – Respondent
Award No: 908 Of 2024 [Case No: 4/4-1265/22]
In constructive dismissal cases, the burden lies on the Claimant to prove dismissal, and delay in asserting rights may indicate condonation of breach.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Constructive dismissal – Claimant alleged constructive dismissal due to salary reduction and absence – Court found Claimant failed to prove dismissal, as he condoned salary reduction and delayed asserting rights – Claimant's claims dismissed. (Paras 1, 4, 45)
(B) Burden of proof – In constructive dismissal cases, the burden lies on the Claimant to prove dismissal – Claimant's delay in asserting rights viewed as condoning breach. (Paras 16, 42)
(C) Corporate veil – Court considered whether to pierce corporate veil due to intertwined operations of related companies – Found Claimant's employment continued across companies. (Paras 30, 32)
Facts of the case: Claimant alleged constructive dismissal after salary reduction and suspension for absenteeism – Claimant continued working despite grievances, raising issues only after suspension. (Paras 5, 8, 41)
Findings of Court: Claimant failed to prove constructive dismissal; his claims were dismissed. (Paras 45)
Issues: Whether Claimant was constructively dismissed and if the Company had just cause for actions taken. (Paras 4, 45)
Ratio Decidendi: Court ruled Claimant's delay in asserting rights indicated condonation of breach; thus, he could not claim constructive dismissal. (Paras 16, 42)
Result: Claims dismissed.
AWARD
The Reference
[1] This is a reference dated 8 August 2022 by the Director General of the Department of Industrial Relations, Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of ARUMUGAM A/L KALIAPPAN (Claimant) by SB GEOTECHNIC SDN BHD (Company) on the 23 December 2021.
[2] Pursuant to the directions of this Court, the parties in this matter filed their respective submissions dated 22 February 2024 (Company's written submissions), 17 March 2024 (Claimant's written submissions), 12 April 2024 (Company's written submissions in reply) and 12 April 2024 (Claimant's written submissions in reply).
[3] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:
(i) The Claimant's Statement of Case dated 26 September 2022;
(ii) The Company's Statement in Reply dated 28 October 2022;
(iii) The Claimant's Rejoinder dated 16 January 2023;
(iv) The Claimant's Bundles of Documents - CLB 1 & CLB 2;
(v) The Company's Bundle of Documents - COB;
(vi) The Claimant's Witness Statement - CLW - WS (1) & WS(2) (Mr Arumugam a/l Kaliappan);
(vii) Company's Witness Statement - COW1-WS (Mr Crispin a/l A Silva);
(viii) Company's Witness Statement - COW2-WS (Mr Pathmanathan Naidu a/l Venugopal);
(ix) Company's Witness Statement - COW3-WS(1) & WS(2) (Mr Hariharan a/l Sivabalan);
Introduction
[4] The dispute before this Court relates to the claim by Arumugam A/L Kaliappan ("Claimant") that he was constructively dismissed from his employment without just cause or excuse by SB Geotechnic (M) Sdn Bhd ("the Company") on the 23 December 2021.
[5] The Company is involved in the business of amongst other the construction work. The Claimant first joined a related company known as Geo Asas (M) Sdn Bhd on the 1 March 2009 as a chief mechanic. On or about 1 September 2020 the Claimant was moved to the Company. On or about February 2020, due to financial constraints the related company/Company reduced the Claimant's salary by 30% from his original salary of RM6,500.00 per month to RM4,550.00 per month and this arrangement was to last for 6 months.
[6] Though unhappy with the salary reduction the Claimant continued working for the Company and on or about October 2020, the Claimant informed the Company that the salary reduction was to only last for 6 months from February 2020 and requested the Company to pay his full salary but the Company did not revert back to the Claimant's original salary. The Claimant nevertheless continued working for the Company. It is the Company's version that on or about 24 November 2021, the Claimant took leave without approval and remained absent from work until 30 November 2021.
[7] On the 1 December 2021, the Claimant was given a show cause letter due to his absenteeism, which the Claimant responded with his explanation on the 7 December 2021. Despite the Claimant responding to the show cause letter, the Company states that the Claimant continued to be absent until 7 December 2021 resulting in the Company suspending the Claimant from work for 2 weeks from the 7 December 2021. The Claimant being unhappy with the suspension wrote to the Company several times thereafter demanding that the Company revert back to his original salary which was reduced in February 2020. When the Company did not revert back to the Claimant's original salary as demanded by the Claimant, the Claimant claimed constructive dismissal on the 23 December 2021.
[8] The Claimant now states that the Company's action in reducing his salary and refusing to restore back his original salary is a breach of the fundamental terms of his contract of employment wherein the Company has evinced an intention no longer to be bound by the essential terms of the Claimant's contract of employment. The Claimant states that as a result of the Company's action he was constructively dismissed and that the dismissal amounts to a dismissal
