RULING

On the day of the hearing there were 44 Claimants present in court. The others were not present because their whereabouts was not known and notice on Form G was not served on them. The 44 Claimants present were as per appendix. The parties present had agreed that the hearing of the case was to proceed with the 44 Claimants.

At the commencement of the hearing, the company raised a preliminary objection (issue) that the 44 Claimants had not been dismissed because no letter of dismissal was issued by the company to any of the Claimants. They left their work on their own volition and thereafter absented themselves.

The Claimants contended that they had been summarily dismissed from work on 11 December 1991. There was no show cause letter, no charge, and no domestic inquiry held.

The issue before the court is dismissal. As the Claimants alleges, the onus of proof is on them to prove that they have been dismissed.

On 9 February 1991 at about 8.00 a.m. some 250 workers put down their tools and gathered at the factory canteen. Later the management met the representatives of the workers, and the workers were told to go back to work. At 3.00 p.m. the police was called and this time the police asked the workers to go back to work. About 60 workers returned to their work, the rest including the Claimants did not. Those who abstained were ordered to leave the factory. They left. On 11 February 1991, the following Monday, some of the workers who were ordered out of the factory (on 9 February 1991) reported for duty as usual. But they were not allowed into the factory. They then went to the Industrial Relations Office where they lodged a report that they had been dismissed by their employer. At a subsequent meeting held by the Industrial Relations Office, some of the workers were taken back and the rest were not.

Dismissal is defined for the purpose of unfair dismissal, where the employer terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reasons of the employer's conduct. This is popularly known as the 'constructive dismissal'. Constructive dismissal occurs where, although it is the employee who appears to terminate the employment by walking out, it can be said that the real reason for termination of the employment was in some way the prior conduct of the employer; it is necessary to avoid the employer being able to force or goad the employee to leave his employment and then say that the employee in fact resigned and so was not dismissed.

The key element of the definition of constructive dismissal is that the employee must have been entitled to leave without notice because of the employer's conduct. The word 'entitled' means that the employee could leave when the employer's behaviour towards him was so unreasonable that he could not be expected to stay. (Industrial Law, I.T. Smith and Sir John C. Wood, 4th Edition).

In this case, the crucial day was Monday, 11 February 1991. When the workers who were ordered out of the factory (on Saturday), came to work they were not allowed to enter the factory. Two workers managed to enter the factory and resumed work as usual. Half an hour later they were summoned by the Personnel Officer (COW) and ordered to leave the factory.

CLWI stated in court that,

Pada 11 Februari 1991 saya pergi kerja seperti biasa. Ada ramai lagi datang kerja, mereka yang terlibat.

Saya dengan rakan-rakan saya tak dibenarkan masuk. Guard tahan kami sekalian.

This was corroborated by CLW3 who stated in the cross-examination that,

Guard tidak beri masuk. Saya masuk terus - ada 2 - 3 pintu.

The more enterprising ones such as CLW3 & CLW4 entered the factory by another exit which was obiously not guarded. In his evidence-inchief CLW3 stated that,

Pada 11 Februari 1991 saya pergi kerja. Saya kerja hari itu selama 1/2 jam. Mr. Lam (COW) panggil saya ke pejabat. Jam 8.30 pagi saya pergi jumpa Mr. Lam bersama Sabudin dan Sabapathiraju (CLW4).

Mr. Lam suruh saya berhenti. B