THIS MATTER was referred to court by way of a ministerial reference under section 20(3) of the Industrial Relations Act, 1967, for an award arising out of Encik Liew Kam Boon's action (hereinafter referred to as the "Claimant" in considering himself as having been constructively dismissed by his employer, Edaran Otomobil National Bhd (hereinafter referred to as the "Company" on 7th September 2000.

The reference papers were received by the court on 11th March 2005.

The Claimant commenced employment at the Company's Sungei Besi Branch as a sales representative. Pursuant to a series of complaints from a customer, COW-1, who purchased a car from him, the Claimant was issued with a show-cause letter as shown at page 16 of the Claimant's bundle of documents, marked CLB-3. Finding the Claimant's reply/explanation (at page 17 of CLB-3) to be unsatisfactory, he was hauled before a domestic inquiry to answer the following charges, as shown at page 25 of CLB-3.

"1. On 7th January 2000, customer Ms Cheong Kam Heong, I.C. No. 620502-08-6092 paid to you RM 1000.00 as deposit for Proton Wira 1.5 GL but you only remitted to the Company RM500.00 as per Official Receipt No. 1982895 dated 12.01.2000.

2. On 26th January 2000 customer Ms Cheong Kam Heong, I.C. No. 7620502-08-6092 gave you RHB cheque no. 100533 made payable to you for the installation of a car protection alarm which is not marketed by EON Bhd.

3. You misled customer, Ms Cheong Kam Heong, I.C. No. 620502-08-6092 that EON will warranty the car protection alarm that you arranged to be fitted to her car."

On the 9th August 2000 the Claimant was informed by the Company that the DI Panel had found him guilty of all the 3 charges preferred against him. Upon such findings which was concurred by the Company, the Company in meting out its punishment transferred the Claimant to EON Sales Department Bahau branch effective 1st September 2000.

However, the Claimant refused to accept the transfer. After an exchange of a series of letters between the Claimant and the Company whereby both parties stood their ground, the Claimant finally treated himself as being constructively dismissed by the Company vide letter dated 7th September 2000, shown at page 32 of the Claimant's bundle of documents marked CLB-3.

The Claimant contended, inter-alia, that he was dismissed without just cause or excuse as there was no justification for the Company to mete out the punishment of transfer to a much smaller branch which will result in a substantial drop in his monthly income. Additionally the Claimant's employment contract did not contain a mobility clause to enable the Company to execute such transfer and that the findings of guilt on all the 3 charges were perversed vis-a-vis the evidence adduced. The further details of the Claimant's complaints were as shown in paragraph 15 of his Statement of Case (SOC). On account of the issues enumerated above the Claimant contends that the Company's decision amounted to a repudiatory breach of the Claimant's contract of employment entitling him in law to leave the Company's employment at once.

Having regard to Western Excavating (ECC) Ltd. v. Sharp [1978] WLR 344 and Wong Chee Hong v. Cathay Organisation [1988] 1 CLJ 298 (Rep); [1988] 1 CLJ 45; [1988] 1 MLJ 91, in a claim for constructive dismissal, the burden is upon the Claimant to prove:-

(i) that the Company has by its conduct breached the contract of employment in respect of one or more of the essential terms of the contract;

(ii) that the breach is a fundermental one going to the root or foundation of the contract;

(iii) that the Claimant has terminated the contract by reason of the Company's conduct and the conduct is sufficiently serious to entitle the Claimant to leave at once; and

(iv) that the Claimant in order to assert his right to treat himself as discharged, left soon after the breach.

It is also the law that the repudiatory conduct of the Company may consists of a series of acts or incidents - see Levi