Constructive dismissal is established when an employer's conduct breaches fundamental terms of the contract, allowing the employee to resign.

Vanithamany Sivalinga:

Reference

[1] This is a reference by the Honourable Minister of Human Resource, Malaysia to this Industrial Court under s 20(3) of the Industrial Relations Act 1967 ("The Act") for an award in respect of the dispute arising out of the alleged constructive dismissal of Mohd Azmi Bin Mohd Yaacob ("the Claimant") by his employer, Mutiara Smart Sdn Bhd ("Company").

Documents In Court Files

I. Statement of case

II. Statement of reply

III. Rejoinder

IV. Claimant's Bundle of Document (CLB 1)

V. Claimant's Additional Bundle of Document (CLB 2)

VI. Company's Bundle of Document (COB 1)

VII. Company's Additional Bundle of Document (COB 2)

VIII. Witness Statement of the Claimant (CLWS1)

IX. Witness Statement of the Wan Nadia Binti Wan Abbas

The Claimant's claim is for constructive dismissal of the employment by the Company.

The hearing of this case was fixed on 1 November 2022 but no representative of the Company was present in Court although the Company was informed of the date earlier. The Claimant's representative MrMunjit Singh from The Malaysian Trades Union Congress (MTUC) applied to proceed with the hearing of the case, ex-parte. The Claimant had waited for the matter to be heard in this Industrial Court since 2019. Therefore the Court proceeded to hear the matter on ex-parte pursuant to s 29(d) & (g) of the Industrial Relations Act 1967 and the Court is mindful of the role in ex-parte hearing.

In the case of Wong Brothers' Building Construction v. Choo Chee Siam ; [2005] 2 ILR 356 , where the Learned Chairman quoted from the book 'Law of Industrial Disputes by OP Malhotra Volume 3rd Edition at p 716, where it was stated that 'A rule empowering the tribunal to proceed ex-parte if the party is absent and sufficient cause is not shown for his absence, would not enable it either to do away with the inquiry or straight away pass on an award without giving finding on the merit of the dispute. In other words the absence of a party does not entail the consequence that an award will straight away be made against him.'

Brief Facts

[2] The Claimant commenced the employment with the Company effective from 15 March 2018 with the gross salary of RM22,250.00 as Chief Business Officer via a letter of offer dated 27 February 2018. The Claimant's basic salary was RM17,000.00 and further allowances would be for travelling amounting to RM2,000.00, entertainment amounting to RM3,000.00 and hand phone RM250.00.

[3] It is a fixed term contract for a period of 36 months commencing from 1 March 2018 to 1 March 2021 which were agreed by the Claimant and the Company in their pleadings except for the fact that the Company claimed that the last date of employment was on 28 February 2021 however the Claimant claims his last date of employment was on 1 March 2021. The last date of employment is not an issue here.

[4] There are two set of Employment Agreement signed by the Claimant, which was neither agreed or rebutted by the Claimant (p 1 of CLB 1 and p 1 COB1). The Claimant's Counsel gave the liberty to the Courts on the day of hearing, to choose any one of the Agreement to be used as evidence. This is because the Claimant was not sure which Agreement is valid as he has signed both agreements. The only difference in the terms of the contract, is the last date of employment which the Claimant claimed to be 1 March 2021 where else the Company claimed the last date to be 28 February 2021. The last date of employment is not an issue here. Applying O 3 r 2(2) Rules of High 1980 to our present case, it is concluded that the employment agreement should end one day before the commencement date that is on the 28