Facts of the Case

The Claimant joined the Respondent on 3.9.2005 as Page Layout (Editorial Department) drawing a basic salary of RM2,000.00 with an additional allowance of RM1,000.00 per month. There was no letter of appointment.

On 25.8.2006, Claimant alleged that when she returned to work after her annual leave, she found her punch card missing from the card holder at the clock in machine; she asked the Manager Mr. Vadamalai who informed her to see the Director of the Respondent, Mr. Batcha. Claimant saw Mr. Batcha in the latter's office. Mr. Batcha complained that Claimant had been on long leave, the Respondent was running at a loss and could not afford to pay the Claimant's salary. Mr. Batcha then asked Claimant whether she would agree for a pay cut which Claimant disagreed. Upon hearing this Mr. Batcha got angry and shouted at the Claimant saying "get out from my office, do not speak to any other staff and leave the Company immediately." Claimant requested for her dismissal letter which Mr. Batcha refused to issue. Claimant left the Respondent immediately as instructed by Mr. Batcha.

Claimant attended that her summary dismissal amounted to a termination simpliciter and that it was a dismissal without just cause or excuse. The Respondent, on the other hand, denied that there was a dismissal.

The Issues

The issues before this Court are whether there was a dismissal of the Claimant by the Respondent and secondly, if there was such a dismissal, whether Claimant's dismissal was with or without just cause or excuse.

The Law

In Goon Kwee Phoy v. J & P Coats (M) Bhd.; [1981] 2 MLJ 129, His Lordship Raja Azlan Shah CJ (Malaya) (as His Majesty then was), said:-

"We do not see any material difference between a termination of the contract of employment by due notice and a unilateral dismissal of a summary nature. The effect is the same and the result must be the same. ..."

In Dr. A. Dutt v. Assunta Hospital; [1981] 1 MLJ 304, the Federal Court had cited the judgment of Gajendraqadhar J. in R.B. Diwan Badri Das & Ors. v. Industrial Tribunal, Punjab, Patiala & Ors which further quoted with approval a passage from the judgment of Mukherjea J in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi at page 209, inter alia, as follows:-

"... the provision of 'dismissal without just cause or excuse' in section 20(1) as a ground for a reference under section 20(3) implies in the case of a non-union workman that the right to 'fire' implied in a 'hire', in the social legislation of the Act, is limited to termination with just cause or excuse. Any other interpretation would fail to recognize that in entering into a contract of employment, the employer holds the sword by the hilt and requires the employee to grasp it by the blade and would make nonsense of the whole purpose and intent of section 20. Were it otherwise, all that the employer has to do would be to be prudent and provide in express terms for termination of the employment at will, and he would then escape the operation of the Act. But that would stultify the Act and offend well-known principles of interpretation of statutes."

In U.N. Dutt & Company Private Limited v. Its Workmen A.I.R. [1963] (S.C.) 411, the Indian Supreme Court held that:-

"An employer cannot any longer base his right to discharge an employee purely on contract and he cannot be allowed to say that under the contract he has an unfettered right to hire and fire his employees. That right is now subject to industrial adjudication and even a power given under the provision of a standing order to terminate the service of an employee without assigning any reason and merely by giving a notice or on paying wages in lieu of such notice, is now subject to the scrutiny of the Industrial Court in the manner indicated above. The employer can no longer rest his case merely on the contract of service or standing order and he cannot be allowed to say that having taken action under the powers so confirmed upon hi