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2011 MarsdenLR 1330
HAPIPAH MONEL
HASHIM DAU – Appellant
Versus
AMBANK (M) BERHAD – Respondent
The burden of proof for constructive dismissal lies with the employee, who must demonstrate substantial breaches of the employment contract by the employer prior to any resignation.
Headnote:(A) Industrial Relations Act 1967 - Constructive Dismissal - Burden of proof rests on the Claimant to establish fundamental breach of contract - Court relies on case law defining constructive dismissal criteria as set forth in precedents including Wong Chee Hong v. Cathay Organisation. (Para 56)
(B) Employment Contract - Resignation accepted by employer does not permit claiming constructive dismissal post-factum, if no prior grievances raised. Claimant must adhere to contract stipulations and cannot seek relief after resignation (Para 77).
Facts of the case:
The Claimant was employed by the Bank from August 1994 and claimed constructive dismissal after resignation in July 2005 following a job merger. The Bank contended that the Claimant's resignation was voluntary and procedurally compliant.
Findings of Court:
The court found no evidence to substantiate the Claimant's assertions of constructive dismissal; the Claimant had failed to prove that the Bank committed any breach of contract.
Issues: Whether the Bank's actions amounted to a breach of contract justifying constructive dismissal, and whether the Claimant could claim this after accepting his resignation.
Ratio Decidendi: The court determined that constructive dismissal requires an employer's significant breach of contract; the Claimant offered no evidence of such breach prior to resignation, thus his claim was unfounded.
Result: Claim dismissed.
The Facts
The Claimant commenced employment with the former Arab Malaysian Bank Berhad, as Assistant General Manager vide letter dated 1st August 1994 (COB page 1-3). He was confirmed in his position on 9th May 1995 (COB page 4).
The Claimant was next appointed as Head, Islamic Banking Unit-Head Office vide letter dated 22nd December 1999 to assume the said position with effect from 10th January 2000 (COB page 23). Sometime in the year 2004 Ambank Group decided to merge its bank business together with Finance as one entity as per approval granted by Bank Negara Malaysia and known as Ambank Berhad.
The Bank appointed Pricewaterhouse Coopers/IBM Consulting to conduct several consulting assignments, including a job evaluation review. As a result of this exercise the Claimants position was rated as CB3, in line with the corporate Banking Grading Structure. However the Claimant retained his title as Assistant General Manager as well as the benefits. This was communicated to the Claimant vide a letted dated 1st August 2004 (COB page 25).
Vide a letter dated 15th February 2005, the Bank informed the Claimant of the merging of Ambank Berhad with AmFinance Berhad, and the Claimant would be transfered to AmFinance Berhad with effect the date of the vesting order. In the said letter the Claimant was also informed that the letter would serve as a notice that he would be transferred to AmFinance Berhad from AmBank Berhad on 1st April 2005. While the Claimant did not acknowledge receipt of this letter the evidence adduced in Court shown that the Claimant actually reported for continued employment with AmFinance Berhad.
The Bank also informed the Claimant that his past service with Ambank Berhad would be recognised in full and would be credited towards his service with AmFinance Berhad. The Claimant was also informed that the terms of his employment would be no less favourable then that which he was enjoying with AmBank Berhad (COB page 26).
Vide the letter dated 27th April 2005 the Bank highlighted to the Claimant that the Claimants transfer will take effect on 1st June 2005. On 20th June 2005 the Bank vide a letter informed the Claimant that he had been transfered to Branch Network Department as an Assistant General Manager (Grade CB3) effective on 15th June 2005.
The Claimant was further informed that the Claimants current terms and conditions of employment and salary grade would remain unchanged.
On the same date, the Claimant tendered his resignation, giving 6 months notice, stating that his last date of employment would be 31st December 2005 (COB page 30).
"20th June 2006
Human Resources Department
Level 29
Menara AmBank
Jalan Yap Kwan Seng
50450 Kuala Lumpur
Attention: R. Hanafi
LETTER OF RESIGNATION
I hereby tender my resignation letter with effect from 1st July 2005 and my last day will be 31st December 2005 as per terms and conditions in my letter of employment dated 1st August 1994.
Regards.
HASIM DAU
cc: DAH, MAM, MM, MZA, BNM"
The Bank on 11th July 2005 write to Claimant informing him that the Bank was accepting his resignation but reminded the Claimant that his last date of employment would be 19th September 2005 as he was required to give only 3 months notice (COB page 31).
"PRIVATE & CONFIDENTIAL
Ref: HRD/OPS/05/10002516
11 July 2005
En. Hasim Bin Dau
c/o Business Banking - Bumiputera Dev Unit
Dear En. Hasim,
RE: ACCEPTANCE OF RESIGNATION
We refer to your notice of resignation dated 20 June 2005 whereby you have given the Bank six (6) months notice from the date of your resignation.
Please be informed that the Management has accepted your resignation. However, we would like to bring to your notice that as per the current terms of employment applicable to the Executive level and above, you are only required to give 3 months notice. This has been clearly stipulated in the Employee Handbook, which has been circulated to all staff in the past. Additionally, the same information was made availa
