Non-payment of salaries constitutes a fundamental breach of contract, justifying a claim of constructive dismissal under the Industrial Relations Act.

AWARD

Augustine Anthony:

The Reference

[1] This is a reference dated 21 February 2023 by the Director General of the Department of Industrial Relations, Ministry of Human Resources pursuant to s 20(3) of the Industrial Relations Act 1967 ("The Act") arising out of the alleged dismissal of LIEW KONG WENG (Claimant) by VETTONS SDN BHD (Company) on the 20 May 2022.

[2] Pursuant to the directions of this Court, the Claimant in this matter filed his submissions dated 7 February 2024 (Claimant's written submissions). The Company failed to attend the hearing of this matter and no submissions filed by the Company in this matter too.

[3] This Court considered all the notes of proceedings in this matter, documents and cause papers in handing down this Award namely:

(i) The Claimant's Statement of Case dated 26 April 2023;

(ii) The Claimant's Bundle of Documents - CLB

(iii) The Claimant's Witness Statement - CLW - WS (Mr Liew Kong Weng);

Introduction & Facts Of The Case

[4] The dispute before this Court relates to the claim by Liew Kong Weng ("Claimant") that he was constructively dismissed from his employment without just cause or excuse by Vettons Sdn Bhd ("the Company") on the 20 May 2022.

[5] Pursuant to a letter of employment dated 26 March 2020, the Claimant commenced employment with the Company on the 20 April 2020. Although the letter of employment states that the Claimant will commence employment tentatively on the 4 May 2020, there is no challenge that the Claimant's employment commenced on the 20 April 2020 based on the Claimant's testimony. The Claimant was promoted three times in the Company and the Claimant's last held position was Acting Head, Product Unit of the Company with a last drawn salary of RM10,080.00 per month. The Company failed to pay the Claimant his monthly salary for the period of January 2022 onwards which resulted in the Claimant making enquiries on the unpaid salaries.

[6] The Company's Chief Executive Officer (CEO) agreed to meet the Claimant and other employees on the 20 April 2022 regarding the unpaid salaries but despite such meeting the Company failed to pay the Claimant the unpaid salaries due to him. The Company's CEO on the 26 April 2022 attempted to provide explanation for the unpaid salaries which were similar to the answers given on the 20 April 2022 but which were unsatisfactory to the Claimant. The Claimant also discovered that the Company has failed to make payment for the statutory deduction on behalf of the Claimant as mandated by statutory provisions. Despite the Claimant's expectation for the Company to resolve the Claimant's unpaid salaries the Company thereafter failed to communicate with the Claimant on his unpaid salaries and statutory deduction which resulted in the Claimant issuing a letter dated 20 May 2022 stating that he is left with no other option but to resign from the Company due to the Company's failure to resolve the Claimant's unpaid salaries and statutory contributions and henceforth treated himself as constructively dismissed. The Claimant now states that he was dismissed without just cause or excuse and prays that he be reinstated to his former position in the Company with no loss of wages and other benefits.

[7] The Claimant gave evidence under oath and remained the sole witness for his case. The Company's representative was absent during the hearing of this matter and the Claimant's evidence remained unchallenged at all times.

The Law

Role And Function Of The Industrial Court

[8] The role of the Industrial Court under s 20 of the Industrial Relations Act 1967 is succinctly explained in the case Milan Auto Sdn Bhd v. Wong Seh Yen, [1995] 3 MLJ 537. His lordship Justice Mohd Azmi bin Kamaruddin FCJ delivering the judgment of the Federal Court had the occasion to state the following:

"As pointed out by this Court recently in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal, [1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on a refere