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2023 MarsdenLR 152
INDUSTRIAL COURT KUALA LUMPUR
FRANCIS LIM CHUNN LOONG – Appellant
Versus
FLEXIBLE TOP SERVICES SDN BHD – Respondent
Award No: 2089 of 2023 [Case No: 21/4-1380/20]
The law on constructive dismissal requires the employee to prove a significant breach of contract; failure to do so results in dismissal of the claim.
Headnote:(A) Industrial Relations Act 1967 - Section 20 - Constructive dismissal - The Claimant alleged constructive dismissal due to re-designation from Site Supervisor to Lorry Driver with a purported salary reduction - The Court found that the Claimant failed to prove a significant breach of contract - Misconduct by the Claimant included use of vulgar language towards colleagues, justifying dismissal - The Claimant's case was dismissed. (Paras 25, 30, 38)
(B) Law on Constructive Dismissal - To succeed in a claim, the employee must prove a breach going to the root of the contract - Failure to meet the contract test results in no constructive dismissal. (Paras 18, 20)
Facts of the case:
The Claimant was employed as a Site Supervisor and claimed constructive dismissal after being re-designated to Lorry Driver. He alleged threats regarding salary reduction and submitted a letter of resignation on 2 March 2020. (Paras 3, 4, 6)
Findings of Court:
The Court concluded that the Claimant's allegations did not substantiate a claim for constructive dismissal, and his misconduct warranted dismissal with just cause. (Paras 30, 38)
Issues: Whether the re-designation constituted a breach of contract and whether the Claimant proved constructive dismissal. (Paras 25)
Ratio Decidendi: The Court ruled that the Claimant did not demonstrate a significant breach of contract justifying constructive dismissal, and his misconduct was grounds for dismissal. (Paras 30, 38)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. constructive dismissal claim details. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. company's justification for actions. (Para 7 , 8 , 9) |
| 3. legal standards for misconduct and dismissal. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. evaluation of evidence regarding dismissal. (Para 25 , 26 , 27 , 28 , 29 , 30) |
| 5. assessment of claimant's misconduct. (Para 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 6. final judgment on the claimant's case. (Para 38) |
[1] The Ministerial reference in this case dated 5 July 2020 required this Court to hear and determine the Claimant's complaint of dismissal by the Company on 2 March 2020 for the case to be heard and a final award to be handed down.
Facts
[2] The company provides rubbish collection services for various local town councils in order to protect the environment and health of the population from rotting garbage and waste that can cause air and water pollution and foul smells causing nausea among the populace. The claimant was employed as a site supervisor for the company.
[3] The dispute is over the allegation of constructive dismissal of the Claimant with effect from 2 March 2020. The Claimant was employed by the Company on 1 August 2018 as a Site Supervisor with a monthly basic salary ofRM2,500.00 and he enjoyed Fixed Allowances of RM600.00 per month. A copy of the Claimant's Offer of Employment and Confirmation Letter as Site Supervisor, is at pp 1-4 of the Claimant's Bundle of Documents ("CLB").
Claimant's Pleaded Case
[4] The Claimant avers that in February 2020 his boss Mr Jimmy (COW1) had informed him that he was to be transferred and re-designated from the position of Site Supervisor to that of Lorry Driver to another company. The Claimant alleged that the re-designation entails his salary reduction. The Claimant further avers that he was also threatened that he would not be paid his salary unless he signed acceptance of the re-designated position. [refer: WhatsApp messages at pp 5-11 of CLB].
[5] The Claimant further avers that he signed the said letter of re-designation under protest. [refer: letter of re-designation at pp 12-15 of CLB]. Dissatisfied with the Company's action, the Claimant made a police report on 24 February 2020 complaining against the Company on the aforesaid unlawful redesignation. [refer: Police Report at p 16 of CLB]. The Claimant went on to state that vide a letter dated 25 February 2020, he informed the Company that he did not agree to the re-designation to lorry driver with a reduced salary as he considered it to be a breach of his contract of employment and he urged the Company to reconsider its decision.
[6] The Claimant avers that he then personally delivered the letter dated 25 February 2020 on the manager's table and requested for a decision by the next day as it was nearing month end [refer: letter dated 25 February 2020 and WhatsApp messages pp 17-20 of CLB]. Vide a letter dated 2 March 2020, he informed the Company that he considered himself constructively dismissed for the reason stated therein.
Company's Case
[7] As a site supervisor, the Claimant is put in charge of the up-keeping of the Company's vehicle and the house-keeping of the site parking yard to facilitate the smoothness of the Company work process. However, during the Claimant's term of employment, the Company observed that the Claimant had been incapable of meeting the core requirements of his position. The Company had also received complaints from other employees relating to the Claimant's misconduct and poor performance. The Company had given a warning letter and countless reminders to the Claimant but the Company did not see any steps taken by the Claimant to improve his performance in work.
[8] The Company averred that the Claimant had misbehaved himself by using abusive and vulgar words in his communication with other staff for which the Claimant had been warned [refer: COB1, p 2]
[9] The Company did not penalize the Claimant and instead, offered the Claimant to be transferred fr
