The Industrial Court can award compensation for constructive dismissal based on equity, considering back wages up to 24 months and post-dismissal earnings.

[1] This is a reference by the Honourable Minister of Human Resources Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 dated 25 July 2013 arising out of the alleged dismissal of Abdul Sidik Bin Abdul Hamid (hereinafter referred to as "the Claimant") by Perusahaan Otomobil Nasional Sdn Bhd (hereinafter referred to as "the Company") on 10 December 2012.

Factual Backgrounds

[2] This matter proceeded for trial before the Industrial Court wherein the learned Chairlady at the material time; YA Dato' Rasidah Hj Chik had dismissed the Claimant's claim vide Industrial Court Award No 2305 of 2019 [[2019] 3 MELR 178] dated 19 August 2019.

[3] Consequently, being dissatisfied with the said Award, the Claimant filed an application for Judicial Review to the High Court. Vide the High Court Order dated 17 December 2020, the High Court dismissed the Claimant's application for Judicial Review with costs of RM4,000.00 subject to allocator fee.

[4] The Claimant then filed an appeal to the Court of Appeal against the High Court's decision. Vide Court of Appeal Order dated 30 August 2022, the Court of Appeal allowed the Claimant's appeal and set aside the High Court Order dated 17 December 2020 with costs of RM5,000.00 subject to allocator fee.

[5] The Court of Appeal also among others ordered for this matter to be remitted back to the Industrial Court for assessment of compensation accordingly. As the Court of Appeal had decided that the Claimant was constructively dismissed by the Company, therefore, it is now a duty of this Court to hear, evaluate and decide appropriate assessment of compensation or remedy that is to be awarded to the Claimant.

[6] Pursuant to the takeover by the DRB-HICOM Berhad of PROTON Holdings Berhad as announced vide memorandum dated 17 January 2021, there were continuous restructuring of the PROTON Holdings Berhad Group of Companies. In line with business requirements of the Group of Companies, vide letter dated 12 September 2012, the Claimant was transferred to the Company from Proton Edar Sdn Bhd.

[7] The Claimant commenced employment with the Company (Proton Edar Sdn Bhd) on 9 May 2007 as the General Manager, Sales Division which he had been with the Company for more than five (5) years. Upon his transfer, his last held position with the Company was General Manager - Marketing attached to Group Branding & Motorsports Division. Vide letter dated 10 December 2012, the Claimant had considered himself constructively dismissed by the Company on 10 December 2012 with his last drawn salary was RM21,400.00. The Claimant had competed only five (5) years of service with the Company, from 9 May 207 to 10 December 2012.

[8] The Claimant had a heart attack a few days after his dismissal. There was no new employment after this period. His tax returns of EA Forms for 2013 and 2014 show he gained income for Director's fee based on the Claimant's position of Director in two (2) companies.

Laws Relating To Compensation/Remedy

[9] The Court of Appeal in the case of Sanya Bhd Multipurpose Cooperative (Sabah) v. Dr James Alfred (Sabah) & Anor 2000 MarsdenLR 1232 ; 2000 MarsdenLR 1532 ; ; @ p 766, has decided as follows:

"In Industrial law, the usual remedy for unjustified dismissal is an order of reinstatement. It is only in rare cases that reinstatement is refused. For example, as here, where the relationship between the parties had broken down so badly that it would not be conducive to industrial harmony to return the workman to his place of work. In such a case, the Industrial Court may award monetary compensation. Such an award is usually in two parts. First, there is the usual award for the arrears of wages, or backwages, as it is sometimes called. It is to