GROUNDS OF JUDGMENT

The Applicant began his employment with the Respondent company as a Dealer Executive on 2nd August 1993 and ever since he was posted at the Respondent's Kuala

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Lumpur office. By a letter dated 1st October 1996 the Applicant was instructed to be transferred to the Johor Bahru office on a promotion with the post of Assistant Sales Manager effective from 16th October 1996 Being unhappy with the transfer the Applicant protested against the transfer; but his protest was rejected by the Respondent This resulted in the Applicant writing a letter to the Respondent dated 11th October 1996 stating that in the light of the instruction to transfer him to Johor Bahru he no longer wished to continue working with the Respondent as he considered himself to have been dismissed. The Applicant was of the view that he could not be forced to accept the promotion as the salary he would receive as Assistant Sales Manager would be less than his present earning as Sales Executive.

Subsequently the Applicant made representations to the Industrial Relations Department under S20 (1) of the Industrial Relations Act 1980 alleging that he had been constructively dismissed by the Respondent The matter was

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then referred to the Industrial Court for an award and it was eventually heard by the Industrial Court. At the conclusion of the hearing the Industrial Court arrived at the conclusion that the Respondent had not dismissed the Applicant. It was against this Award of the Industrial Court that the Application was made by the Applicant to this Court.

The Applicant's application was for an Order of Certiorari to quash the Award of the Industrial Court vide Award No 689 of 1998 dated 31st December 1998. In addition he also applied for an Order of Mandamus to instruct another division of the Industrial Court to rehear the Applicant's complaint

In the Applicant's Terms and Condition of Employment it was clearly stated that one of the terms of the Applicant's employment with the Respondent company, to which the Applicant had unconditionally accepted, was that he was liable to be transferred to serve at any of the branches of

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the Respondent's Group of Companies at the discretion of the Respondent. The relevant paragraph reads as follows :-

"STATION

You may be required to serve in any of the departments/branches within Tele Dynamics Group of companies and other subsidiary companies at the discretion of the management. The management also reserves the right to assign you to serve in any area/zone of service at their absolute discretion at any time during your employment with the Company."

From the above paragraph it is clear that the Respondent had the absolute discretion to transfer the Applicant to any branches of the Respondent. The Applicant would not have any right to refuse to be transferred once an order of transfer had been

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issued. However if it can be proved that such order of transfer was mala fide then and then only could the Applicant have good reason not to go on transfer.

In this matter the Applicant stated that he did not want to be transferred out of the Kuala Lumpur office to Johor Bahru because even though he would be promoted to an Assistant Sales Manager, his overall income would be less than what he was earning as a sales executive As a sales executive he was earning commission, while as an Assistant Sales Manager, he would no longer be entitled to earn commission With his commission he received more earning than his salary he would receive as an Assistant Sales Manager

It is now trite law that in a reference before the Industrial Court by an employee complaining that he had been constructively dismissed by his employer the burden is on the employee to prove that he had been dismissed unlawfully

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In his letter dated 11th October 1996 the Applicant said :-

"It is with regret that I consider myself dismissed by the company in view of the contents of your letter (Company's letter dated 8th October 1996). As I see