Reference

Before me is a reference by the Honourable Minister of Human Resources made on 5 June 2001 pursuant to his powers under s. 20(3) of the Industrial Relations Act, 1967 . It refers to the dismissal of Lee Choon Keong (the claimant') by his employer, Tecomas (M) Sdn. Bhd. ('the Company') on 14 July 1999. The reference was received by the Industrial Court ('the Court') on 28 June 2001.

Facts In Agreement

Effort and words may be economised by repeating here the Court's records on that which transpired during case management on 9 May 2005. This is what it reads:

In discussing with both parties the following are recorded as agreed facts in respect of which no further evidence need be led:

1. The first party, Tecomas (M) Sdn. Bhd. (the Company') is the employer of the Claimant.

2. The Claimant commenced employment in July 1984 as a Salesman.

3. The Claimant was promoted as a Sales Manager on October 1992.

4. The Claimant's last drawn basic salary was RM6050.00 per month. Claimant also received a Telephone Allowance of RM200.00 per month. Confirmed that the Telephone Allowance is a fixed allowance and not a reimbursement.

5. The Claimant gave the Company a resignation letter dated 14.7.1999 as found at CL1 received by the Company on 14.7.1999. CL1 was given by the Claimant by hand to the Company.

6. The Company served a letter as per CL2 upon the Claimant in response. The Claimant received the letter dated 14.7.1999 on even date by hand.

7. The Claimant was paid RM50,000.00 by the Companyafter he tendered his resignation letter.

8. There was a meeting on 14.7.1999 between the Claimant, the MD Mok Swee Sang and the GM Bernard Lim Beng Chye. The resignation letter i.e. CL1, followed the said meeting.

Issues To Be Tried

On that same day of case management the parties agreed and had it recorded that the issues in dispute were:

1. Claimant maintains that he was forced to resign i.e. CL1 was obtained under duress. Company's stand is that CL1 was not obtained under duress. It was a negotiated settlement.

2. Claimant maintains that the last date of employment was 14.7.1999. Company maintains the last date of employment as 13.7.1999.

During trial as well as in submission neither proceeded on that issue relating to the claimant's last date of employment. The flow of evidence before the Court, consistent by both parties, was that the claimant did work on 14 July 1999 and that he ceased employment on that same day sometime after lunch. Put in issue were two dates appearing in the claimant's resignation letter. The claimant signed the letter on 14 July 1999. But the letter states that he resigns with effect from 13 July 1999. Evidence was led and submission was devoted to this fact but I find no reason to dwell upon this for no attempt was made in submission by either to link this confusion on dates to the issue at hand. And that is, was the resignation letter prompted per vi, per clam, or per precario.

At the risk of repeating but finding it necessary to do so, the issue before me is to determine whether the letter of resignation was a voluntary act of the claimant or whether it was involuntary, that is it was forced upon him. And in arriving at a finding of fact on this issue I evaluate the evidence before me in relation to the circumstances preceding, during and after the authorship of the resignation letter. The fact that the resignation letter was authored, typed and signed by the claimant is not in dispute.

The Law

The factual matrix and primary issue for determination in the instant case enables me to dispose of the Court's mandatum by simply repeating Salleh Abas LP in Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. where his Lordship spoke thus:

When the Industrial Court is dealing with a reference under section 20, the first thing that the Court will have to do is to ask itself a question whether there was a dismissal and if so whether it was with or without just cause or excuse . (emphasis added)

First, does a resignation letter per se neg