Back
2020 MarsdenLR 1527
INDUSTRIAL COURT KUALA LUMPUR
PHANDIAN ARUMUGAM – Appellant
Versus
KUDRAT MARITIME MALAYSIA SDN BHD – Respondent
Award No: 587 Of 2020 [Case No: 12/4-3070/18]
Constructive dismissal requires showing a fundamental breach of contract; mere embarrassment does not justify termination. Claimant failed to meet the burden of proof.
Headnote:(A) Industrial Relations Act 1967 – Section 20 – Constructive dismissal – The Claimant claimed constructive dismissal due to actions of the Senior Manager which he alleged were harassing and embarrassed him – The Court determined whether the dismissal was with or without just cause or excuse, as per the Federal Court's ruling in Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd – Terms of constructive dismissal established by precedent were assessed against the Claimant's allegations – The Court found the Claimant failed to satisfy the necessary burden of proof for constructive dismissal as his claims were deemed trivial and unsupported by evidence. (Paras 6, 7, 8, 12, 30, 32)
(B) Burden of Proof – The Court reiterated that in constructive dismissal claims, the burden rests upon the employee to prove there was a breach of contract that justified termination of employment – Failure to meet this burden results in dismissal of the claim, as seen in Anwar Bin Abdul Rahim v. Bayer (M) Sdn Bhd. (Paras 17, 21)
Facts of the case: The Claimant commenced employment as Branch Manager and alleged constructive dismissal following reprimands from his Senior Manager, claiming harassment. The Company contended that the Claimant resigned voluntarily and presented evidence of his negligence that affected the Company's reputation.
Findings of Court: The Court found that the Claimant did not demonstrate that the Company's actions amounted to a fundamental breach of the employment contract or justified resignation, ruling that he had constructively dismissed himself. (Para 33)
Issues: The main issue examined was whether the Claimant's resignation was due to a lawful constructive dismissal or his own fault for not addressing grievances properly. (Para 6)
Ratio Decidendi: The Court held that mere embarrassment does not equate to constructive dismissal; the onus was on the Claimant to prove a significant breach of contract which he failed to do, thus the claim was dismissed. (Para 30)
Result: Claimant's case dismissed.
AWARD
Reference
[1] This is a reference made under subsection 20(3) of the Industrial Relations Act 1967 [Act 177] ("the 1967 Act") arising out of the dismissal of Phandian A/L Arumugam (hereinafter referred to as "the Claimant") by Kudrat Maritime Malaysia Sdn Bhd (hereinafter referred to as "the Company") on 30 July 2018.
[2] The Ministerial reference in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 30 July 2018 and was received by the Industrial Court on 28 November 2018.
Factual Matrix
[3] The Company is a shipping agent providing husbandry and other shipping services in Malaysia. The Claimant commenced employment with the Company as a Branch Manager at the Botanic Office, Klang on 19 April 2018 on a fixed-term contract of one-year ending on 18 April 2018. The contract provided that it may be extended for a further period at the sole option and discretion of the Company. His basic salary was RM4,000. He reported to the Senior Manager Agency Operation & Coordinator. He had 7 staff working under him. The Claimant is now claiming for constructive dismissal against the Company.
[4] Towards the end of July 2018, a vessel by the name of MV Wisby Pacific V 1805 ("the vessel") was anchored Out of Port Limit (OPL) and as far as the vessel was concerned, the Company was only appointed as a Husbandry Agent to deliver spare parts to the vessel. The pre-arrival documents were only required for port formalities which would be handled by the vessel's Charter Agents, Orient Ace Maritime (M) Sdn Bhd ("Orient Ace"). The Claimant claimed that due to a mistake which he had inadvertently made in respect to the request for some documents pertaining to the vessel, the Company's Chairman's son by the name of Mohammed Hafetz Bin Ashruff Hassan who was the Senior Manager Agency Operation & Coordinator became angry at him. The latter had admonished and embarrassed him in front of the Company's staff. Therefore, he claimed that the Senior Manager's actions had embarrassed him and was a harassment to the Claimant. Vide an e-mail dated 30 July 2018, the Claimant informed the Company that he considered himself to be constructively dismissed due to the Senior Manager's actions and that the Company had breached his contract of employment.
[5] The Company denied the Claimant's claim of constructive dismissal and contended that he had resigned from his position as Branch Manager and prayed for his claim to be dismissed.
Issues And Law
[6] The Claimant prayed that this Court holds his dismissal as being without any just cause or excuse and for an order that he be reinstated without any loss of wages, seniority and such other benefits earned or other reliefs which the Court deemed fit and proper to grant.
[7] The Claimant made his representation under s 20 of Act 177 and where such representations have been referred to the Industrial Court for inquiry, it is the duty of the Court as stated by the Federal Court in the case of Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn Bhd and another appeal, to determine whether the termination or dismissal was with or without just cause or excuse. In Hotel Malaya Sdn Bhd & Anor v. National Union of Hotel, Bar & Restaurant Workers & Anor; [1982] 2 MLJ 237; [1982] 2 ILR 42a; [1982] CLJ (Rep) 124 it was stated that in exercising this quasijudicial function, the Court's functions comprise an investigation of the facts, an analysis of the facts, findings of facts and lastly the application of the law to those findings. Hence, the role of the Court is to determine whether the Claimant was indeed dismissed on 30 July 2018 and if so, whether the dismissal was without just cause or excuse. Although it is incumbent upon the Court to inquire into the issue of justness or the excuse on its merits, the Court must first be satisfied that the Claimant was dismissed.
[8] The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd, [1988
