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2014 MarsdenLR 1988
INDUSTRIAL COURT KUALA LUMPUR
SAHABUDIN U NOOR MUHAMMAD & ORS – Appellant
Versus
WESTPORTS MALAYSIA SDN BHD / KELANG MULTI TERMINAL SDN BHD – Respondent
Award No: 943 Of 2014 [Case No: 13(26)/4-63/2010]
Constructive dismissal occurs when an employer breaches a fundamental term of employment, leading the employee to resign; the burden of proof lies with the employee to demonstrate such dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3), Section 30(5) - Constructive dismissal - Claimants alleged forced resignation due to outsourcing by Respondent, but evidence indicated voluntary acceptance of employment by another entity - Court found no breach of contract and no dismissal occurred - Claims dismissed. (Paras 1, 17, 22, 39)
(B) Constructive Dismissal - Definition and tests - Employer's conduct must breach fundamental contract terms - Claimant must prove dismissal and, if shown, onus shifts to employer to justify dismissal. (Paras 18, 21)
Facts of the case:
Six claimants dismissed by the Respondent and alleged constructive dismissal after being forced to resign due to outsourcing. Respondent contended claimants voluntarily accepted new employment with another company, thereby ending their relationship with the Respondent. (Paras 1-10)
Findings of Court:
Claimants failed to prove that their resignations were forced or that they were constructively dismissed. The evidence demonstrated their acceptance of positions with the new employer without coercion. (Paras 27, 37)
Issues: Whether the Claimants were forced to resign and if such resignations constituted constructive dismissal, as well as the burden of proof regarding dismissal. (Paras 22-23)
Ratio Decidendi: Constructive dismissal requires proof of a fundamental breach by the employer. The burden shifts to the employer only after the claimant proves dismissals occurred, which the Claimants failed to do. No valid termination occurred as Claimants voluntarily accepted positions with another company. (Paras 24, 39)
Result: Claims dismissed.
| Table of Content |
|---|
| 1. reference made to minister under industrial relations act (Para 1 , 2) |
| 2. details of claimants' employments and dismissals (Para 3 , 4 , 5 , 6 , 7 , 8) |
| 3. claimants' meeting and demands regarding resignations (Para 9 , 10 , 11 , 12) |
| 4. arguments on forced resignation and constructive dismissal (Para 13 , 14 , 16) |
| 5. test and principles surrounding constructive dismissal (Para 15 , 17 , 18 , 19 , 20 , 21) |
| 6. evidence evaluation and burden of proof in dismissal claims (Para 22 , 23 , 24 , 25 , 26) |
| 7. court's findings on dismissal and employment transitions (Para 27) |
[1] This is a reference by the Honourable Minister of Human Resources under s 20(3) of the Industrial Relations Act 1967 on 18 November 2009 arising out of the dismissal of Sahabudin U Noor Muhammad ("Claimant 1"), Victor Joseph Michael ("Claimant 2"), Alvin Kumar Patrick Gabriel ("Claimant 3"), Kumaraendran Shanimugam ("Claimant 4"), Khairudin Mat Daud("Claimant 5") and Baskar Muniandy (Claimant 6) on 28 February 2007 by Westports Malaysia Sdn Bhd /Kelang Multi Terminal Sdn Bhd (the "Respondent").
[2] The Claimants case was initially heard before former Chairman Ahmad Terrirudin Mohd Salleh of another division (Court 26) on 15 December 2011 and 18 February 2013. The former Chairman was transferred to the State Legal Advisers Office, Negeri Sembilan, Seremban as the Head of Prosecution on 15 March 2013. Both counsels for the Claimants and the Respondent then agreed that the new Chairman Peh Suan Yong continue hearing this case with the Companys case on 2 May 2013. The new Chairman was transferred to the Ministry of Health as the Legal Adviser on 16 December 2013. When the case was called for mention on 31 March 2014 before Chairman Siti Salwa Musa, both parties consented to the Award to be handed down by another Chairman. The Honourable President of the Industrial Court directed that this case be transferred to this division (Court 13) on 19 May 2014 for the handing down of the Award. The Respondents Written Submissions was filed by Messrs Lee Hishammuddin Allen & Gledhill on 21 May 2013 and Submissions in Reply on 27 February 2014. The Claimants Written Submissions was filed by Messrs The Law Firm of M. Eswary on 18 February 2014.
Brief Facts
Claimant 1 (Sahabudin U Noor Muhammad)
[3] Claimant 1 (CLW-1) testified in Court on 15 December 2011 and filed the witness statement, CLWS-1 on 24 May 2011. CLW-1 commencedemployment with the Company at Westport, Pulau Indah as the System Support 1 with effect from 26 February 2001 with a monthly salary of RM 1,000.00 and transport allowance RM 150.00 per month (CLB, page 1). At the time of dismissal, CLW-1s last drawn basic salary was RM 1,743.00 per month and was paid transport allowance of RM 150.00 per month, hand phone allowance of RM 150.00 per month, shift allowance of RM 120.00 per month and laundry allowance of RM 30.00 per month (Question 36, CLWS-1).
Claimant 2 (Victor Joseph Michael)
[4] Claimant 2 (CLW-2) testified in Court on 18 February 2013 and filed the witness statement, CLWS-2 on 2 June 2011. CLW-2 commenced employment with the Company at Westport, Pulau Indah as the System Support 1 with effect from 11 August 2006 with a monthly salary adjustments to RM 1,000.00 and transport allowance of RM 150.00 (CLB, page 16). At the time of dismissal, the last drawn basic salary of CLW-2 was RM 1,000.00 per month and was paid transport allowance of RM 150.00 per month, hand phone allowance of RM 150.00 per month, shift allowance of RM 120.00 per month and laundry allowance of RM 30.00 per month. (Question 33, CLWS-2).
Claimant 3 (Alvin Kumar Patrick Gabriel)
[5] Claimant 3 (CLW-3) testified in Court on 18 February 2013 and filed the witness statement, CLWS-3. CLW-3 commenced employment with the Company at Westport, Pulau Indah as the IT Executive with effect from 23 August 2004 with a monthly salary of RM 1,800.00 and transport allowance RM 200.00 per month (CLB, page 11). At the time of dismissal, the last drawn ba
