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2024 MarsdenLR 3191
INDUSTRIAL COURT KUALA LUMPUR
SITI ASMAHAN MOHD ALI – Appellant
Versus
PENDIDIKAN INDUSTRI YS SDN BHD – Respondent
Award No: 699 of 2024 [Case No: 21/4-2637/21]
The applicable test for constructive dismissal is the contract test, not the reasonableness test, focusing on whether the employer's conduct constitutes a fundamental breach of the employment contract.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Constructive dismissal – Claimant dismissed after making disparaging remarks in a WhatsApp group about the Company and its management – The Court found that the Claimant's statements constituted misconduct under the Company's employee handbook, violating Articles 7.1(iii)(d), (q), (s), and (u) – The Domestic Inquiry was deemed valid, and the punishment of demotion was upheld. (Paras 1, 5, 49, 106)
(B) Misconduct – The Court emphasized that employees must maintain loyalty and decorum in their conduct, especially in academia – The Claimant's remarks were found to undermine the authority and reputation of the Company, justifying disciplinary action. (Paras 58, 60, 106)
Facts of the case: The Claimant, a Senior Lecturer, was demoted after making critical comments about the Company in a WhatsApp group, which led to a Domestic Inquiry that found her guilty of misconduct. (Paras 1, 5, 106)
Findings of Court: The Court upheld the findings of the Domestic Inquiry, concluding that the Claimant's actions constituted a breach of her employment contract. (Paras 106, 110)
Issues: Whether the Claimant was constructively dismissed due to the Company's actions and whether the Domestic Inquiry was conducted fairly. (Paras 44, 106)
Ratio Decidendi: The Court ruled that the Claimant's conduct amounted to a fundamental breach of her employment contract, justifying the Company's disciplinary actions. (Paras 106, 110)
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the IRA 1967 ("the Act") arising out of the dismissal of Siti Asmahan Mohd Ali (hereinafter referred to as "the Claimant") by Pendidikan Industri YS Sdn Bhd (hereinafter referred to as "the Company") on 12 March 2021.
The Parties
[2] The Claimant commenced employment with the Company in 2001 as a lecturer in the Faculty of Industrial Management (Fakulti Pengurusan) at Universiti Industri Selangor (UNISEL) operated by the company.
[3] The Claimant was promoted to the post of Senior Lecturer (Pensyarah Kanan) with effect from 18 September 2007 with a monthly salary of RM5,500.00.
[4] The Claimant's last drawn salary was RM8,656.10.
The Dispute
[5] On 13 November 2020, the Claimant had issued a comment in the WhatsApp group "FOB Wing B" as follows:
"Unisel ini dah tak betul. Tadi akak doa untuk Unisel dah 20 tahun tapi basic HR Rule pun x boleh ikut mcm mana nak berkat? Mana ada University dalam dunia ni Dekan repot to TNCA malam tidur sesame. At faculty level mana ada ketua jabatan report psda TDA malam tidur sesame. Pastu ada juga husband and wife satu faculty. Cuba u all fikir. Semua decision will be swayed to their preferences and needslah. bukan the welfare of all staff. It does not need a genius to figure out".
[6] It is undisputed and in fact pleaded that the Claimant indeed issued the WhatsApp statement in issue.
[7] The impugned statement was widespread and came to the company's knowledge when a complainant lodged a complaint against the Claimant.
[8] Therefore, the Company had issued a show cause letter dated 16 November 2020 to which the Claimant has responded through her letter dated 18 November 2020.
[9] Not satisfied with the Claimant's explanations, the Company sent a letter dated 24 November 2020, levelling therein charges against the Claimant. The Company further appointed a disciplinary committee consists of a chairman and two other panel members to conduct the hearing of misconduct against the Claimant.
[10] The inquiry was held and concluded on 2 December 2020.
[11] The disciplinary committee, by letter dated 22 December 2020 found the Claimant guilty of the misconduct charges and recommended a demotion from the position of Senior Lecturer (Grade DS52) to Lecturer (DS45) and a Salary Deduction with effect from 16 January 2021 as punishment (the said punishment).
[12] The Claimant after receiving the decision of the disciplinary committee has lodged an appeal to the Chairman of the Executive Management Committee.
[13] The appeal was dismissed on 4 April 2021. The punishment of demotion was maintained whereby she was demoted from Senior Lecturer to Lecturer and her new salary was RM7,724.19.
[14] The Claimant had issued a letter dated 23 February 2021 demanding the Company to retract the punishment within 14 days, which the Company refused.
[15] The Claimant then sent a letter dated 14 March 2021 which she stated that she had been constructively dismissed from the company.
Cause Papers And Witnesses
[16] The trial was held on the following days:
i. 28 October 2022;
ii. 15 May 2023;
iii. 16 May 2023;
iv. 17 May 2023;
v. 18 May 2023;
vi. 26 October 2023; and
vii. 30 October 2023.
[17] The Parties have filed the following Cause Papers:
(i) Statement of Case dated 6 December 2021.
(ii) Statement in Reply dated 31 December 2021.
(iii) Rejoinder dated 22 August 2022.
Witness Statements and Witnesses Produced during Trial
(iv) Pernyataan Saksi Pertama Syarikat, Prof Madya Dr Dzulkarnain bin Ahmad marked as "COWS-1" dated 14 May 2023.
(v) Pernyataan Saksi Keempat Syarikat, Mohd Razaki bin Abdullah marked as "COWS-2" dated 26 October 2022.
(vi) Pernyataan Saksi Kelima Syarikat, Juliza binti Mohamed marked as "COWS-3" dated 23 October 2023.
(vii) Pernyataan Saksi Keenam Syarikat, Zainal Azhar bin Zainal Azim marked as "COWS-4" dated 23 October 2023.
(viii) Pernyataan Saksi Keempat Syarikat, Prof Dr Norhayah binti Zulkifli marked as "COWS-5" dated 23 October 2023.
(i
