AWARD

This matter was referred to court by way of a ministerial reference under s 20(3) of the Industrial Relations Act, 1967 on 29 April 2002 and was received by the court on 30 May 2002, arising out of the dismissal of Lim Chee Keong (hereinafter referred to as the "claimant ") by Bolton Finance Bhd (hereinafter referred to as the "company ").

The claimant commenced employment with the company as a hire purchase manager on 1 April 1995, drawing a basic salary of RM3,266 per month as shown at p 2 to 4 of claimant's Bundle of Documents marked "CLB1 ". At the time he treated himself as constructively dismissed on 28 September 1999 as evinced by his letter indicated at p 31 of CLB1, he was holding the position of manager, organisation and methods - special projects, with a monthly remuneration of RM4,350.

It was the claimant's contention that the company was guilty of a series of conducts which individually and cumulatively amount to a repudiatory breach of the claimant's contract of employment in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between the parties

The claimant further contends that these series of conducts, enumerated below, also indicated that the company no longer wanted to be bound by the claimant's contract of employment and was bent on driving him out of his employment:-

(i) The claimants redeployment to special projects and reporting to the CEO, Lim Ching Choy, on 9 June 1998 which the claimant also claimed as a demotion without justification;

(ii) The claimant's last minute exclusion from the company's annual review conference scheduled on 24 January 1999;

(iii) The claimant's redesignation to the position of manager, organization and methods - special projects on 4 March 1999 where the claimant now claimed that he has to report to an officer who is of a lower rank than himself, effectively demoting him for the second time;

(iv) The holding of a DI in which the claimant was found not guilty of all the charges proferred against him and the unwarranted and unexplained delay of slightly more than two months in the company coming to a finding of the DI, thereby keeping him in suspense and also making him feel professionally embarrassed in the eyes of his colleagues; and

(v) The company's repeated refusal to restore the claimant back to his previous position as manager, hire purchase, despite there being vacancies for a similar post.

The company did not deny the occurance of the said events but contends that the said redeployment and redesignation was purely a management prerogative in response to the economic slow down effecting the country back then. The exclusion of the claimant from the annual conference review was due to the fact the head of department where the claimant was attached also attended the conference and that the presence of the claimant in the circumstances is not necessary. The DI instituted against the claimant was based on information and evidence received. However the delay in coming to a finding was unexplained and finally the claimant did not indicate and never applied for the vacant positions of hire purchase manager though the same was circulated internally.

The issues before the court are two folds ie, whether the said conducts of the company amounted to repudiatory breaches of the claimant's contract of employment and if so proven, whether the said repudiatory breaches of the claimant's contract of employment with the company, entitled the claimant to treat himself as being constructively dismissed.

The burden of proving constructive dismissal is on the claimant. In Western Excavating (ECC) Ltd v. Sharp [1978] WLR 344, Lord Denning MR states that:-

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharg