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2023 MarsdenLR 12
INDUSTRIAL COURT IPOH
POON BENG LAM – Appellant
Versus
SYW INDUSTRY SDN BHD – Respondent
Award No: 1532 Of 2023 [Case No: 10/4-1111/22]
An employee claiming constructive dismissal must prove a fundamental breach of contract by the employer; failure to do so results in dismissal of the claim.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant alleged dismissal due to inability to register attendance via thumbprint scanner - Court found no fundamental breach of employment contract by Company - Claimant's claim dismissed as he left employment voluntarily. (Paras 1, 30, 72, 76)
(B) Constructive dismissal - Employee must prove employer's conduct constituted fundamental breach - Burden of proof lies with the employee when dismissal is disputed. (Paras 21, 26, 72)
(C) Standard of proof - Claimant must establish constructive dismissal on the balance of probabilities. (Paras 25, 72)
(D) Forced resignation - Claimant must show resignation was procured by coercion or threat. (Paras 62, 68, 72) (E) Court's role - To determine if dismissal was with just cause or excuse, based on employer's actions. (Paras 17, 72)
| Table of Content |
|---|
| 1. reference made for alleged dismissal (Para 1 , 2) |
| 2. claimant's employment history and dismissal claim (Para 3 , 4 , 5 , 6) |
| 3. claimant's arguments on constructive dismissal (Para 7 , 8 , 9 , 10 , 11) |
| 4. company's defense against the dismissal claim (Para 12 , 13 , 14) |
| 5. role of the industrial court in dismissal cases (Para 17 , 18 , 19) |
| 6. understanding constructive dismissal (Para 20 , 21 , 22 , 23 , 24) |
| 7. burden of proof in dismissal cases (Para 25 , 26 , 27 , 28) |
| 8. issues to decide in the case (Para 30 , 31 , 32) |
| 9. claimant's inability to register attendance (Para 34 , 39 , 40) |
| 10. company's response to attendance issues (Para 41 , 42 , 43 , 44) |
| 11. claimant's resignation and subsequent actions (Para 45 , 46 , 47) |
| 12. claimant's failure to report and communicate (Para 49 , 50 , 51 , 52) |
| 13. court's findings on attendance issues (Para 53 , 54 , 55) |
| 14. court's assessment of the claimant's actions (Para 56 , 57 , 58) |
| 15. claimant's forced resignation claim (Para 59 , 60 , 61 , 62) |
| 16. court's task in assessing resignation claims (Para 63 , 64 , 65 , 66 , 67) |
| 17. court's findings on evidence and claims (Para 68 , 69 , 70 , 71) |
| 18. final findings on constructive dismissal (Para 72 , 73) |
Reference
[1] This is a reference made by the Director General of Industrial Relations Malaysia dated 13 July 2022 pursuant to s 20(3) of the Industrial Relations Act 1967 which was received by the Industrial Court of Malaysia on 15 July 2022 arising out of the alleged dismissal of Poon Beng Lam (hereinafter referred to as "the Claimant") by SYW Industry Sdn Bhd (hereinafter referred to as "the Company") on 1 December 2021.
Factual Backgrounds
[2] The dispute referred by the Director General of Industrial Relations Malaysia to this division of the Industrial Court under s 20(3) of the Industrial Relations Act 1967 arising out from the alleged constructive dismissal of the Claimant by the Company on 1 December 2021.
[3] On 23 February 2018 vide a Latter of Appointment (at pp 1-4 of COB-1), the Company had offered the Claimant the position in the Company as Mould Engineer cum Mould Designer and the Claimant accepted the offer on 26 February 2018 as the same date the Claimant had commenced work with the Company. Thereafter, the Claimant was confirmed employment with the Company vide a Letter of Confirmation dated 26 May 2018 even though the probation period was for six (6) months.
[4] On or about 8 July 2020, the Claimant was invited by Siew Kam Hau, the Manager of the Company and also the son of the Director of the Company; Siew Yuen Wai, to establish a company known as Stepro Mix Sdn Bhd Thereafter the Claimant had embarked onto the business with Siew Kam Hau until a dispute had culminated into a show down on 29 November 2021 whereby Siew Kam Hau had asked the Claimant to tender in his resignation as the Director of Stepro Mix Sdn Bhd and also to sell his shares back to Siew Kam Hau at a paltry sum due to the alleged of non-disclosure of accounts by Siew Kam Hau in respect of the transaction of the Stepro Mix Sdn Bhd.
[5] The Claimant's last salary before his dismissal is RM4,250.00 per month and his attendance allowance is RM400.00 per month for a total sum of RM4,650.00 per month.
[6] The Claimant's claim of constructive dismissal was mounted on his averment that he was unable to record his thumbprint to register his attendance on 1 December 2021, 2 December 2021, 3 December 2021 and subsequently on 9 December 2021. As such, the Claimant alleged that he had been denied entry to the Company's premise to perform his work. In his attempt to justify his claim, the Claimant alleged that the fingerprint incident was orchestrated by the Company to victimized him and dismissed him for non-attendance since he refused to sign and tender his resignation from his position at Stepro Mix Sdn Bhd upon which he also alleged that he was forced to resign from the Company.
[7] The Claimant now files an unfair dismissal by way of constructive dismis
