2010 MarsdenLR 3632 ; 2010 MarsdenLR 1

MOHD ZAWAWI SALLEH
ELYA DESIGNS SDN BHD – Appellant
Versus
MAHKAMAH PERUSAHAAN MALAYSIA & ANOR – Respondent

The essence of constructive dismissal requires the employee to prove a fundamental breach by the employer and act without delay. Any undue delay may negate the claim.

Headnote:(A) Industrial Relations Act 1967 - Judicial Review - Constructive Dismissal - The court quashed the Industrial Court's award on grounds of legal error, misdirection, and irrationality in finding constructive dismissal without just cause. Clearly, the applicant's unilateral changes were not sufficiently serious to constitute a breach justifying dismissal. (Paras 12, 14, 20, 30)

(B) Burden of Proof - The employee must prove constructive dismissal on balance of probabilities, showing a fundamental breach of contract. (Paras 14, 15)

Facts of the case:
The applicant employed a second respondent as Chief Interior Designer with an incentive scheme. Following disputes over payments and changes to his employment conditions, the second respondent declared constructive dismissal after five months.

Findings of Court:
The court found the first respondent failed to correctly apply the law regarding constructive dismissal and the necessary burden of proof, leading to an erroneous award.

Issues: Whether the applicant breached fundamental terms of the second respondent's employment contract warranting a claim of constructive dismissal.

Ratio Decidendi: The court stated the employee must act promptly on employer breaches; the delay of five months constituted affirmation of the contract rather than repudiation.

Result: Application for certiorari allowed.