Introduction

This reference pertains to a representation made by Andrew Jayadass James Ambrose ("the claimant") wherein he claimed constructive dismissal vide letter AE8 dated 27 January 1999 by and from Dorsett Regency Hotel ("the hotel") by reason of the hotel purportedly having grossly violated the terms of his employment and persisted in its unjustified treatment of him.

The handing down of this award was inadvertently delayed by the transfer of the chairman who heard the reference, John Louis O'Hara, to his new position as chairman of the advisory board in the prime minister's department with effect from 2 May 2002. As of that date, O'Hara ceased to have jurisdiction to hand down this award as he had been appointed as chairman, Industrial Court ("the Court") for the period 2 May 2000 to 1 May 2002. However steps were taken to reappoint him for the specific purpose of handing down awards and with this reappointment, he now is once again vested with jurisdiction to hand down this award.

The Issue At Hand

A fortiori therefore, the principal issues before the Court are whether the claimant has been able to prove on a balance of probabilities through evidence that there were sufficient grounds for him to regard himself as having been constructively dismissed by the hotel.

The Claimant's Case (Evidence and Submissions)

The claimant gave oral evidence and in addition called Norzaihan Ibrahim (CLW1) sales coordinator, Daisy Rani (CLW2) sales manager, Cheong Chee Yoong (CLW4) then financial controller, and Fanny Ng Sook Fun (CLW5) then director of sales.

The claimant contended that the company had unilaterally varied and changed his terms of employment and scope of work to include achieving sales targets (Formyarn Sdn Bhd v. Lim Siew Lay[1995] 2 MELR 32; [1996] 1 ILR 175). This act of the company amounted to a repudiation of the contract of employment.

The claimant also contended that he was never made aware of his inability to perform, and that COW1 was not a competent witness (Koperasi KOSWIP (M) Bhd v. Roslan Abd Rashid[2001] 1 MELR 564; [2001] 1 ILR 841).

The claimant further contended that the company's conduct of lumping the claimant together with his subordinates and imposing on him the same duties as those of his subordinates was in fact a demotion going to the root of the contract. Furthermore the company's actions in asking him to leave the general manager's room in front of all his subordinates, and in querying him on his claims had caused the claimant humiliation, frustration and loss of estimation among his subordinates and as such had driven him out of his employment.

The claimant argued that the case of Nada Pakar Sdn Bhd v. Radja Aritonang[2001] 3 MELR 37; [2001] 3 ILR 58 was not applicable to him as his remedy was backwages and reinstatement (or compensation in lieu of reinstatement). Alternatively, relying on Nada Pakar 's case the claimant contended that there were elements of victimisation and capriciousness and therefore he was entitled to be treated as a confirmed employee and be awarded with the same remedy as that of a confirmed employee.

The claimant's witnesses supported him. CLW1 stated that she did not know of any specific reason why COW1 asked the claimant to leave the room during the sales team meeting on 27 January 1999, adding that COW1 asking the claimant to leave the room was not normal. CLW2 supported CLW1 as regards what transpired during the meeting on 27 January