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2024 MarsdenLR 76
HIGH COURT MALAYA IPOH
GEORGIANA CHAI SIAW VUN – Appellant
Versus
LEKAMAS SDN BHD – Respondent
[Civil Appeal No: AA-16A-2-02-2023]
Constructive dismissal claims require significant employer breaches affecting contract foundations; mere procedural flaws or disagreements do not suffice for appellate intervention.
Headnote:(A) Industrial Relations Act 1967 – Section 20(3) – Appeal – Constructive dismissal – The Appellant claimed constructive dismissal due to procedural flaws and salary deductions. The Industrial Court found no merit in the claims, emphasizing the Appellant's negligence in issuing IOUs and the validity of disciplinary actions taken by the Respondent. (Paras 1, 8, 36)
(B) The principle of constructive dismissal requires significant breaches by the employer affecting the contract's foundation, as established in Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd. (Paras 8, 9)
(C) The appellate court's role is limited to reviewing factual findings unless a fundamental misdirection is evident, as reiterated in Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad. (Paras 5, 6)
Facts of the case: The Appellant, employed as a Management Executive, faced disciplinary actions including salary deductions and demotion due to alleged misconduct related to IOUs issued to a customer. (Paras 2, 3)
Findings of Court: The Industrial Court's findings were based on credible evidence and a fair assessment of the Appellant's actions, concluding that the Respondent's actions were justified. (Paras 36)
Issues: The main issues included the validity of the salary deductions, the substantiation of demotion, and claims of victimization. (Paras 11, 24)
Ratio Decidendi: The court ruled that the Appellant's negligence and failure to adhere to company policies justified the Respondent's actions, and the Industrial Court's findings were not plainly wrong. (Paras 36)
Result: The Appellant's appeal is dismissed without costs.
JUDGMENT
[1] This case involves an appeal following an industrial dispute where Ms Georgiana Chai Siaw Vun, the Appellant, who was employed by the Respondent, Lekamas Sdn Bhd, claims constructive dismissal by the Company. The appeal addresses several issues, including procedural flaws, deductions from the Employee's salary, and alleged victimization. The Appellant contends that the Chairman of the Industrial Court made incorrect findings of fact and seeks intervention of this Court to allow the appeal.
Background Facts
[2] The Appellant, who was employed by the Respondent, Lekamas Sdn Bhd, part of the Palm Gold group of companies, as a Management Executive with a basic salary of RM5,770.00 and additional benefits. The company operated clubs with slot machines for gambling. In June 2020, the Appellant extended a credit line or "I Owe You" ("IOU") of RM10,000.00 to a customer known as Peter J. This practice of granting credit lines to customers, especially prominent players, was common in the company. However, Peter J who depleted his credit requested an additional RM10,000.00 presenting evidence of an Internet banking transfer to satisfy the Appellant. It was discovered later that the transfer had not gone through, leaving Peter J with a total IOU of RM24,000.00 due to a pre-existing RM4,000.00 debt. The company issued a show cause letter to the Appellant regarding the IOUs.
[3] The dispute arose from various incidents, including the issuance of warning letters to the Appellant for alleged lateness and absenteeism, as well as deductions from her salary related to an IOU agreement with a third party, Peter J. The Appellant claims that these actions by the Respondent, including a demotion, amounted to constructive dismissal. The case also involves allegations of procedural flaws, breaches of natural justice, and issues concerning the enforceability of the IOU agreement. The Appellant is appealing against the decision of the Industrial Court and seeks appropriate remedies.
Law Governing Appeal
[4] In deliberating this appeal, the Court is mindful of the laws governing appeals as provided in s 33C of the Industrial Relations Act 1967 (" IRA "). This appeal is treated as a rehearing. The procedure for appeals from the Industrial Court to the High Court follows O 55 r 2 of the Rules of 2012 ("ROC") with the necessary modifications. The guiding principle in such appeals is that appellate courts should be cautious and refrain from readily interfering with factual findings made by the Court of first instance unless there is a fundamental misdirection or error.
[5] The Federal Court's decision in Ming Holdings (M) Sdn Bhd v. Syed Azahari Noh Shahabudin & Anor, [2010] 4 MLJ 577, emphasizes that trial judges have the advantage of witnessing witness testimonies and demeanour, and unless their findings are plainly wrong, appellate courts should not reverse them. Mere differences of opinion do not suffice for appellate intervention, instead, a fundamental misdirection must be evident.
[6] Further, the Federal Court, in Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case, [2018] 2 MLJ 177, endorsed the plainly wrong' test. This test asserts that appellate courts should only interfere with factual findings if the trial judge's decision is plainly wrong, meaning it cannot be reasonably explained or justified, and no reasonable judge could have arrived at such a decision. Simple differences of opinion do not warrant appellate intervention. The pivotal consideration is whether the trial judge's decision falls within the category of being plainly wrong.'
[7] Furthermore, the Federal Court, in Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors, [2020] 12 MLJ 67, reiterated the principles established in the Tengku Dato' Ibrahim Petra case. It emphasized that appellate courts should not interfere with the factual findings of a trial judge unless those findings are "plainly wrong," indicating they cannot reaso
