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2023 MarsdenLR 1404
INDUSTRIAL COURT IPOH
VELAN @ RAKESHKUTTY VADIVAL – Appellant
Versus
OMYA MALAYSIA SDN BHD – Respondent
Award No: 2239 of 2023 [Case No: 10/4-1807/19]
Forced resignation equates to dismissal if proven that an employer coerced an employee; the burden of proof lies on the employee to establish claims of constructive dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Allegation of forced resignation - Claimant contended dismissal was without just cause, while Company asserted voluntary resignation - Claimant's performance under scrutiny led to Performance Improvement Plan (PIP) - Evidence showed Claimant's resignation was voluntary, negotiated for compensation, and executed Deed of Release & Settlement - No evidence of coercion or victimization found. (Paras 1, 46, 97, 102)
(B) Forced Resignation - Definition and principles - A forced resignation equates to a dismissal if proven that an employer coerced an employee to resign - Burden of proof lies on the employee to establish claims of constructive dismissal. (Paras 41, 42, 100)
Facts of the case:
The Claimant alleged he was forced to resign from his position as Quarry Manager due to pressure and harassment from the Company, while the Company maintained he voluntarily resigned to avoid a Domestic Inquiry related to performance issues. (Paras 2, 17, 28)
Findings of Court:
The Court found no evidence of coercion; the Claimant voluntarily resigned, having negotiated compensation, and executed the Deed of Release & Settlement. The Claimant failed to prove forced resignation. (Paras 96, 102)
Issues: Whether the Claimant was forced to resign or voluntarily resigned; if forced, whether the dismissal was with just cause. (Paras 45, 46)
Ratio Decidendi: The Court ruled that the Claimant's resignation was voluntary, driven by personal interest to avoid potential disciplinary action, and the burden of proof for claims of forced resignation rested with the Claimant, which he failed to meet. (Paras 100, 101)
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. background of the claimant's employment and dismissal. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 2. claimant's assertion of forced resignation. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 3. company's defense and argument regarding voluntary resignation. (Para 27 , 28 , 29 , 30 , 31 , 32) |
| 4. legal standards regarding forced resignation. (Para 36 , 37 , 39 , 41 , 42) |
| 5. burden of proof in dismissal cases. (Para 40 , 43) |
| 6. evaluation of evidence and findings. (Para 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51) |
| 7. events leading to the claimant's resignation. (Para 53 , 54 , 56 , 58 , 60 , 61 , 62 , 63 , 64 , 66 , 67 , 68 , 69 , 70) |
| 8. execution of deed of release and settlement. (Para 71 , 73 , 75 , 76) |
| 9. company's rights regarding employee performance evaluation. (Para 78 , 79 , 80 , 81) |
| 10. court's decision on voluntary resignation. (Para 82 , 83 , 84 , 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94 , 95 , 96 , 97 , 98 , 99 , 100 , 101) |
[1] This is a reference by The Honourable Minister of Human Resources of Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 dated 30 August 2019 which was received by the Industrial Court of Malaysia on 17 September 2019 arising out of the alleged dismissal by way of forced resignation of VELAN @ RAKESHKUTTY A/L VADIVAL (hereinafter referred to as "the Claimant") by OMYA MALAYSIA SDN BHD (hereinafter referred to as "the Company") on 30 November 2018.
Factual Background
[2] The dispute herein is over the unfair dismissal of the Claimant by the Company by way of forced resignation with effect on 30 November 2018. On the other hand, the Company contends that the Claimant had voluntarily resigned and never forced him to resign.
[3] The Claimant joined the Company as Quarry Manager on 3 November 2014 vide appointment letter dated 24 September 2014 (at pp 1-9 of COB-1) and his last drawn salary was RM11,977.00 per calendar month. However, the Company issued a letter dated 1 November 2014 and there exists a term agreed by both parties that the commencement date of the Claimant's employment was revised/changed from 1 December 2014 to 3 November 2014 (at p 10 of COB-1). The Claimant was confirmed in his employment by the Company on 1 May 2015 (at p 11 of COB). Before the middle year of 2018, the Claimant reported to his superior; Jim Burnett who was transferred out and replaced by Mark Sherwood who then become the Claimant's superior.
[4] From 2014 to 2018 when Jim Burnett was in the Company, the management had no issue with the Claimant's work performance and there was no complaint whatsoever against the Claimant upon which the Claimant was even given salary increment, incentive and performance bonuses.
[5] In 2017, the Claimant's performance appraisal was rated as "performed well" by his new superior Mark Sherwood and were acknowledged by the new Next Level Manager; Thomas Mangelberger and Human Resource Manager; Vijayabalan Velu (COW-1).
[6] Subsequently, in May 2018, the Claimant was placed under Performance Improvement Plan (PIP) dated 31 May 2018 for a period of six (6) months (at pp 12-14 of COB-1) as the Company alleged that the Claimant is lacking and/or has poor performance on time management, leadership, delegation of duties, works planning and people management which took the Claimant by surprise. His PIP was reviewed on weekly basis by Mark Sherwood and Vijayabalan Velu on his purported poor performance.
[7] On 5 September 2018, the Claimant received an email from Mark Sherwood (at pp 18-20 of COB-1) enclosing with the PIP review report and feedback (at p 16-17 of COB-1) alleging that the Claimant is still lacking on his performance by giving the negative comments towards the Claimant. In response, the Claimant had replied to Mark Sherwood's email on 12 September 2018 to deny the said allegations.
[8] Subsequently, on 16 October 2018, the Claimant received a warning letter dated 5 October 2018 (at pp 24-25 of COB-1) from the Company r
