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2025 MarsdenLR 4331
INDUSTRIAL COURT KUALA LUMPUR
LOW LAI YENG – Appellant
Versus
CS GROCER SDN BHD – Respondent
Award No: 178 Of 2025 [Case No: 19/4-1140/22]
Constructive dismissal requires proof of a fundamental breach of contract by the employer; if the employee resigns voluntarily, no dismissal is established.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal - Claimant alleged constructive dismissal by the Company - Court required to determine if dismissal was with just cause or excuse - Claimant voluntarily resigned without duress - Burden of proof lies on the Claimant to establish constructive dismissal. (Paras 16, 22, 34, 42)
(B) Constructive Dismissal - Definition and principles - Constructive dismissal occurs when an employer's conduct constitutes a fundamental breach of contract - The employee must act promptly after the breach to claim constructive dismissal. (Paras 22, 25, 28)
(C) Burden of Proof - In cases of constructive dismissal, the burden lies on the employee to prove dismissal occurred - If the resignation is voluntary, no dismissal is established. (Paras 28, 34)
Facts of the case:
The Claimant, a Finance and Administrative Manager, resigned after a meeting regarding restructuring and alleged demotion. The Company contended that the Claimant voluntarily resigned without any coercion.
Findings of Court:
The Court found that the Claimant did not prove constructive dismissal and that her resignation was voluntary.
Issues: The main issues were whether the Claimant was dismissed without just cause and whether her resignation was voluntary.
Ratio Decidendi: The Court ruled that the Claimant's resignation was voluntary and that she failed to prove constructive dismissal on the balance of probabilities.
Result: Claimant's case for constructive dismissal is dismissed.
AWARD
Reference
[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 [Act 177] pertaining to the dismissal of LOW LAI YENG (hereinafter referred to as "the Claimant") by CS GROCER SDN BHD (hereinafter referred to as "the Company") on 14 December 2021.
[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required this Court to hear and determine the Claimant's complaint of dismissal on 14 December 2021 by the Company.
Referred Cause Papers
[3] Parties had filed the following pleadings before this Honorable Court :
(i) Company's Bundle of Documents;
(ii) Company's Bundle of Documents (2);
(iii) Claimant's Bundle of Documents;
(iv) Claimant's Additional Bundle of Documents;
(v) Claimant's Additional Bundle of Documents (2);
(vi) Claimant's Additional Bundle of Documents (3);
(vii) Claimant's Additional Bundle of Documents (4);
(viii) Claimant's Additional Bundle of Documents (5); and
(ix) Claimant's Additional Bundle of Documents (6).
[4] The documents and witness statements used which were before this Honorable Court during the trial are as follows:
[5] The following witnesses testified:
Chronology Of Events
[6] The Claimant was the Finance and Administrative cum Human Resource Manager of the Company since December 2017. As the Finance and Administrative cum Human Resource Manager of the Company, the Claimant's job scope was as follows:
(i) to oversee the daily operations of the entire account and finance department;
(ii) to handle all head office administrative matters and update outlets on changes in Covid-19 related SOPs; and
(iii) to prepare the monthly payroll for the Company's local and foreign workers and manage and handle the human resource and administrative matters of the Company.
[7] The Company had as early as March 2021 duly notified the Claimant of the huge inventory adjustment losses faced by the Company and its restructuring decision and plan to assign the Claimant to conduct an internal audit and/or inventory valuation for all the hypermarkets and supermarket outlets and to set up a standard operating procedure (SOP) for internal audit and/or inventory valuation for the Company (as at p 14 of CLB-7).
[8] As the Claimant claimed that she was overloaded with her HR, accounting and administrative work at that material time, the Company has appointed a part-time staff, namely Candy Lee, to assist the Claimant to perform part of the payroll and internal audit control work. It is undisputed that at all material time, Candy Lee was working under the Claimant's purview and control and Candy has as early as March 2021 started to set up a few new internal audit control SOPs to assist the smooth audit process of the Company (as at pp 14, 19, 26 to 27 of CLB-7).
[9] The Company then looked for a human resource manager and hired Mr Kenny Ngau Tan Tong ["Mr Kenny Ngau"] as the Company's Human Resources Manager in July 2021. Hence as of August 2021, the Claimant wish to be less burdened by the work rightly assigned to her was met and she relinquished her role as the Human Resource Manager to Mr Kenny Ngau. She was retained as the Finance and Administrative Manager, consistent with her wishes.
[10] On or about 30 November 2021, the Company's director, Eddie Oon Hock Meng ["Eddie"], instructed a meeting to be held between the Claimant, Mr Kenny Ngau ["Kenny"], the Human Resource Manager, Mr Hah and the other accounts staff in order for Mr Kenny Ngau to brief them on the Company's restructuring decision and the closure of the Selayang office. In view of the Claimant's accounting and auditing experience and to reduce the serious inventory loss and/or inventory adjustment issue faced by the Company, the Company proposed for the Claimant to head the internal audit control team to set up the internal audit procedures to test and strengthen the Company's internal controls (see pp 1 to 4 of CLB-7).
[11] The Claimant issued her letter of resignation dated 3 December 2021 shor
