AWARD

The claimant commenced employment with the company on 15 May 1996 as a plant operation and maintenance manager vide a letter of appointment dated 29 March 1996.

At the time of the dismissal as alleged by the claimant, he was designated as the electrical manager with a monthly salary package as below:

(a) Basic Salary - RM3,800

(b) Accommodation allowance - RM1,000

(c) Transportation allowance - RM500

Total : RM5,300

Vide a letter dated 1 April 1998 (Exh. CL1 p. 7) the company informed the claimant that it will stop paying him his accommodation allowance and transportation allowance. The claimant protested to those deductions.

By a letter dated 1 June 1998 (Exh. CL13 p. 1) the claimant put the company on notice that he will treat himself as constructively dismissed by the company if such allowances that had been withheld from him were not paid to him within three days.

Up to that date, the company refused to pay the various allowances as demanded by the claimant. As such the claimant was compelled to treat himself as constructively dismissed by the company.

The company's argument in not paying the said accommodation and transportation allowances to the claimant was because the company wanted the claimant to be available at short notice as he was the plant operation and maintenance manager. As the Claimant was staying far from the factory he was often late to work when there was an emergency or breakdown of the machine at the factory. Other than that, the company was trying to cut down expenses due to the economic downtown in 1996 and 1997. The company also believed that it had not breach the contract of employment with the Claimant because the company had provided an alternative accommodation to the claimant in the form of a terrace house built within the factory premise. Based on the above reason, it is the company's belief that the non-payment of transportation and accommodation allowances is therefore justified. That being so, according to the company, there was no breach of contract committed by the company as the claimant did not suffer any losses because accommodation is provided for by the company.

The issues to be decided here is whether the conduct of the company in refusing to pay the claimant his contractual allowances amounting to RM1,500 a month constituted a breach of an essential term of the contract of employment entitling the claimant to treat himself as constructively dismissed.

The court was shown photographs of the terrace house which were taken by the claimant in 2003 (Exh. CL7B, CL7C, CL7D, CL7E and CL7F). It is to be noted here the houses were completed in 1997/1998 and according to the company's only witness (COW1) the situation of the house in 1997 and 1998 is different when the photographs were taken in 2003. To me a terrace house is a terrace house whether the photograph of it was taken in 1997/1998 or 2003. The same house could not be a bungalow in 1997/1998 and a terrace house in 2003.

I agree with the reason given by the claimant that it is not conducive for a person of managerial level with a family to reside within the factory's premises more so in a terrace house together with general workers which included foreign workers. It is also undisputed that the factory is situated about two kilometers from the road. The road leading to the main road is sandy and too dusty for his family to travel. It is muddy when there is rain. Also the noise from the factory is noisy. Drinking water is also a problem. The water supply came from a well.

The claimant has two school going children who may not be able to adapt to the environment at the factory site. There is also a monsoon drain which floods if there is rain. The claimant's wife is a school clerk at Sekolah Menengah Rawang. The Claimant and family stayed at a rented double storey house of RM850 a month in country home in Rawang.

Looking at the photographs tendered, the staff quarters were meant for Bangladeshi and Indonesian workers. It is a row of