AWARD

Franklin Goonting:

[1] This ministerial reference pursuant to s. 20(3) of the Industrial Relations Act 1967 required the court to hear and determine the claimant's complaint of his dismissal by the respondent on 8 April 1997.

[2] The first thing the court will have to do is to ask itself whether there was a dismissal, and, secondly, if so, whether such dismissal was with or without just cause or excuse (see Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn Bhd .

[3] The respondent denied dismissing the claimant. However, the claimant alleged that he had been constructively dismissed.

The Law

[4] The concept of constructive dismissal has been expounded many times over in our courts but nevertheless merits repeating here.

[5] In the landmark English case of Western Excavating (ECC) Ltd v. Sharp [1978] IQB 761 2 WLR 244, Lord Denning MR explained the concept of constructive dismissal thus:

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates his contract by reason of the employer's conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover he must make up his mind soon after the conduct of which he complains for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.".

(Emphasis supplied).

[6] In this country the doctrine of constructive dismissal has been expounded by Salleh Abas LP in the case of Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn Bhd where his Lordship put it succinctly as follows:

The common law has always recognised the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligations if the employer is guilty of such breach as affects the foundation of the contract or if the employer has evinced or shown an intention not to be bound by it any longer. It was an attempt to enlarge the right of the employee of unilateral termination of his contract beyond the perimeter of the common law by an unreasonable conduct of his employer that the expression "constructive dismissal" was used.

He enunciated further:

When the Industrial court is dealing with a reference under s. 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.

We think that the word "dismissal" in this section should be interpreted with reference to the common law principle. Thus it would be dismissal if an employer is guilty of a breach which goes to the root of the contract or if he has evinced an intention no longer to be bound by it. In such situation, the employee is entitled to regard the contract as terminated and himself as being dismissed.

(Emphasis supplied).

[7] In Funai Electric (M) Sdn Bhd v. Saliah Ahmad, [2000] 2 CLJ 655 , at p. 659, K. C Vohrah J (as he then was) stated:

It was thought at one time that the court of Appeal case of Ang Beng Teik v. Pan Global Textile Bhd, Penang, [1996] 4 CLJ 313 ; [1996] 3 MLJ might have made inroads into the concept of constructive dismissal as was enunciated in the case of Wong Chee Hong but both counsel before me say they are not relying on Ang Beng Teik and in any event in a later court of Appeal case, Anwar Abdul Rahim v. Bayer; [1998] 2 CLJ 197 ; [1998] 2 MLJ 599, the court of Appeal firmly held that the proper approach in deciding whe