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2014 MarsdenLR 2732
INDUSTRIAL COURT KUALA LUMPUR
ZAKARIA AHMAD – Appellant
Versus
AIRASIA BERHAD – Respondent
Award No: 757 of 2014 [Case No: 4/4-1026/11]
The court confirmed that a lengthy and unjustified suspension combined with non-payment of salary constitutes constructive dismissal, placing the burden on the employer to justify the dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20 - Constructive dismissal - Claimant alleged constructive dismissal on 8 May 2003 after continuous suspension for seven months and non-payment of salary - Employer failed to demonstrate just cause for dismissal and did not provide valid reason for prolonged suspension - Issue of breach of contract analyzed under the principles established by the Supreme Court in Wong Chee Hong v. Cathy Organisation Malaysia Sdn Bhd and D Rayanold Pereira v. Menteri Sumber Manusia & Anor regarding the nature of constructive dismissal. (Paras 33, 36, 69)
(B) Burden of proof - Once constructive dismissal is established, the onus lies on the employer to justify the dismissal with just cause, which was not satisfied in this case. (Paras 34, 72)
Facts of the case:
Claimant, employed from 1997, faced a misconduct notice in October 2002 and was suspended without resolution until May 2003. The claimant considered himself constructively dismissed due to prolonged suspension and unpaid salary for April 2003, ultimately leading him to file a representation with the Ministry. (Paras 4, 12, 66)
Findings of Court:
The court ruled in favor of the claimant, finding he was constructively dismissed without just cause, awarding compensation including backwages and punitive damages. (Pars 93, 104)
Issues: 1) Whether the claimant was constructively dismissed; 2) If so, whether it was with just cause or excuse. (Paras 32)
Ratio Decidendi: The employer's conduct, including failure to respond to letters and the unreasonable length of suspension, constituted a fundamental breach going to the root of the contract, justifying the claimant’s self-dismissal. (Paras 56, 69, 93)
Result: Claimant’s dismissal deemed constructive; awarded RM181,440.00. (Para 104)
| Table of Content |
|---|
| 1. constructive dismissal arising from employer's actions. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 12 , 13 , 14 , 15 , 16) |
| 2. claimant's employment history and suspension details. (Para 8 , 9 , 10 , 11) |
[1] The parties to the dispute are Zakaria Bin Ahmad ("the claimant") and AIRASIA BERHAD ("the respondent") (the company). The dispute between the claimant and the company arose out of the alleged constructive dismissal of the claimant by the company on 8 May 2003.
Introduction
[2] The hearing of this case before this court arose from the quashing of an earlier Industrial Award No: 211 of 2011 (Industrial Case No: 13/4-79/2005) by the High court pursuant to the claimants Application for Judicial Review at the High court.
[3] Hence, vide Order dated 21 July 2011, the High court ordered that the case be remitted back to the Industrial court to be determined by another division of the Industrial court. Accordingly, the case was sent back to the Industrial court and registered as Industrial court case No: 4/4/1026 for this courts determination.
Background Facts
[4] This is a case involving a claim by the claimant who considered himself constructively dismissed with effect from 8 May 2003. The claimants background facts are as follows:
(1) The claimant commenced employment with the company on 6 March 1997 as an Executive Customer Service. He was promoted to the position of Institutional Sales and Operations Manager in 2011, a position that he held until he considered himself constructively dismissed on 8 May 2003. The claimant reported to one En Nasser Abu Kassim ("En Nasser"), the Corporate Communications Director.
(2) Vide letter dated 18 October 2002, the claimant was issued with a Notice of Show Cause and Suspension from work ("the said Notice to Show Cause") containing the following allegation:
"It has been reported that from June 2002 till to date, you are alleged to have committed a misconduct of taking bribery from Ultimate Dynamics Sdn Bhd for the amount of RM0.50 on every meal supplied to passengers for the Malaysia Armed Forces contract and RM1.00 on every meal supplied to passengers for the Subic Bay Charter Flights."
[5] Vide the said Notice to Show Cause, the services of the claimant was suspended from work for two weeks with half pay effective from 18 October 2002 until 31 October 2002 and thereafter his suspension from work will be on full pay.
[6] The claimant responded to the said notice to show cause vide letter dated 22 October 2002 wherein he denied the companys said allegations that had been leveled against him. In his said reply letter the claimant also referred to the discussion between En Nasser Abu Kassim and himself on 17 October 2002 at the office premise whereby he was asked to resign forthwith failing which his services in the company shall be terminated. The claimant refused as he claimed that there is no basis for him to tender his resignation.
[7] The company thereafter remained silent about this matter whilst the claimant continued to remain on suspension. However, vide letter dated 18 January 2003 in reference to Inordinately Long Period Of Suspension From Employment the claimant not only expressed his disappointment as to why the company is keeping quiet until todate but he also requested the company to institute a domestic inquiry ("DI") in respect of the said allegations against him so that he could have an opportunity to defend himself against them.
[8] Subsequently, on 13 February 2003, the claimant received a Notice of Inquiry ("the Notice of Inquiry") dated 5 February 2003. Based on the notice of inquiry the claimant was required to attend the DI the following day on 14 February 2003 itself to respond to the two charges stated therein (the details of the charges would be stated later on in this Award).
[9] The claimant duly attended the DI on 14 February 2003 and requested that the DI be adjourned as he had only received the said Notice of Inquiry on 13 February 2003 a
