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2024 MarsdenLR 518
HIGH COURT MALAYA PENANG
ASIAN POTTERY (PENANG) SDN BHD – Appellant
Versus
TAN SIEW YONG – Respondent
[Suit No: PA-16A-9-11-2023]
Constructive dismissal occurs when an employer's conduct constitutes a fundamental breach of the employment contract, justifying the employee's resignation.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Appeal against the decision of the Industrial Court regarding constructive dismissal – The Court affirmed the Industrial Court's finding that the transfer of the Claimant constituted a fundamental breach of contract, leading to constructive dismissal. (Paras 30, 31, 36, 55)
(B) Constructive Dismissal – The Court reiterated that a constructive dismissal claim requires proof of a fundamental breach of the employment contract by the employer, justifying the employee's resignation. (Paras 31, 47)
Facts of the case: The Claimant was transferred from her position in Penang to Kamunting, Perak, without her consent, leading to her claim of constructive dismissal. (Paras 5, 11, 53)
Findings of Court: The Court found that the transfer was a fundamental breach of the employment contract, allowing the Claimant to treat herself as constructively dismissed. (Paras 36, 55)
Issues: Whether the Company's conduct amounted to a breach of the contract of employment and whether the Claimant was constructively dismissed. (Paras 31, 32)
Ratio Decidendi: The Court held that the transfer constituted a fundamental breach of the employment contract, justifying the Claimant's claim of constructive dismissal. (Paras 36, 55)
Result: The appeal was dismissed, and the award of RM212,080.00 was affirmed. (Paras 30, 63)
JUDGMENT
Introduction
[1] This is an appeal against the decision of this Court on 30 April 2024 which affirmed and upheld the decision of the learned Chairman of the Industrial Court ("IC") who allowed the Respondent's claim and ordered the Appellant, which is a Company, to pay a sum of RM212,080.00 to the Claimant less any statutory deductions, if any.
[2] For convenience and accuracy of the facts as presented by the parties in the High Court, in this Judgment, the parties are referred to as they were in the High Court.
Cause Papers
[3] The cause papers that have been referred to by both parties during the appeal before this Court are as follows:
(a) the Claimant's Statement of Case dated 25 October 2021;
(b) the Company's Statement in Reply dated 8 December 2021;
(c) Rejoinder dated 19 January 2022;
(d) the Claimant's witness statement (Tan Siew Yong) is marked as "CLWS-1";
(e) the Company's witness statement (Chi Kiam Pheng) is marked as "COWS-1";
(f) the Claimant's Bundle of Documents marked as "CLB-1";
(h) the Claimant's Bundle of Documents marked as "CLB-2";
(i) the Company's Bundle of Documents marked as "COB-1"; and
(j) the Company's Bundle of Documents marked as "COB-2".
(k) Awards dated 15 November 2023.
Background Facts
[4] For convenience of parties, this Court refers to the facts of the case presented by the parties at the Industrial Court which are summarized in the award.
[5] This is a reference dated 23 July 2021 by the Honourable Minister of Human Resources to the Industrial Court of Malaysia under s 20(3) of the Industrial Relations Act 1967 (hereinafter referred to as "the IRA ") in respect of the dismissal of Respondent (Tan Siew Yong) by her employer, Asian Pottery (Penang) Sdn Bhd effective 26 November 2020.
[6] The Claimant commenced her employment as an Accounts Officer with Asian Pottery Manufactures Sdn Bhd vide a Letter of Appointment dated 11 September 2000, effective from 25 September 2000 and with a starting salary of RM1,600.00. The Claimant was further paid a fixed vehicle allowance of RM80.00 per month.
[7] The Claimant was on probation for 3 months with a further extension of 3 months. By a letter dated 3 January 2001, the Claimant was confirmed in employment with Asian Pottery (Penang) Sdn Bhd with effect from 1 January 2001 wherein she received a salary increment of RM120.00 per month. The Claimant vide a letter dated 1 August 2009, was appointed as an Account & Administrative Executive by APP Industries Bhd. According to the said appointment, the Claimant's monthly fixed petrol allowance was revised from RM120.00 to RM220.00 per month, whereas, her salary, other allowances, and terms of employment remained unchanged.
[8] The Claimant's Job Description (JD) for her new role was expanded wherein she was made in charge of the Group Administration, Office Administration, and also of Asian Pottery Home & Garden Sdn Bhd.
[9] The Claimant once again vide a letter dated 23 September 2011, was promoted by Asian Pottery Home & Garden Sdn Bhd to the position of Branch Manager with effect from 1 September 2011 (CLB-1 p 6). Vide the said letter, the Claimant was granted an additional fixed allowance of RM200.00 per month. The Claimant's basic salary was also revised to RM3,650.00 per month. Upon promotion to this post, Asian Pottery Home & Garden Sdn Bhd has provided the Claimant with a Portfolio and job responsibilities (Northern Region (Penang)).
[10]Vide a Letter of Transfer dated 28 June 2019, the Claimant was transferred to the Company as Branch Manager effective 1 July 2019. Then vide an Employment Letter dated 1 July 2019, the Claimant was offered employment with the Company as Marketing & Operations Manager with effect from 1 July 2019 with a basic salary of RM4,820.00
[11] With effect from 1 May 2020, there was a change of management of the Company and by a letter of appointment dated 6 October 2020, the Company informed the Claimant of her transfer to Oriwina Sdn Bhd in Kamunting, Perak as Mark
