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2023 MarsdenLR 2717
INDUSTRIAL COURT KUALA LUMPUR
AYSHA FAHEEM ABDULLAH – Appellant
Versus
CIGNA INTERNATIONAL HEALTH SERVICES SDN BHD – Respondent
Award No: 1544 Of 2023 [Case No: 21/4-64/22]
The court ruled that a claimant must prove dismissal in cases of resignation; failure to do so results in the dismissal of the claim.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Dismissal and resignation - Claimant voluntarily resigned from her position after being placed on a performance improvement plan - Court found no evidence of dismissal or constructive dismissal by the Company - Claimant failed to prove her allegations of undue pressure and mental stress - Court emphasized the importance of the claimant's burden of proof in dismissal cases. (Paras 16, 34)
(B) Burden of Proof - In cases of disputed dismissal, the burden lies with the claimant to prove that dismissal occurred - If the claimant fails to prove dismissal, the employer has no obligation to justify dismissal. (Paras 18, 20)
Facts of the case:
The claimant resigned from her position after 14 years of service, citing personal reasons and mental stress due to work pressures. The company contended that the claimant voluntarily resigned and was not dismissed. (Paras 9, 10)
Findings of Court:
The court concluded that the claimant was not dismissed and her resignation was voluntary, rejecting claims of constructive dismissal or undue pressure. (Paras 34, 35)
Issues: Whether there was a termination of employment given the claimant's resignation and, if so, whether it was with just cause. (Paras 16, 34)
Ratio Decidendi: The court ruled that the claimant failed to establish that she was dismissed, emphasizing that the claimant's resignation was voluntary and that the burden of proof rested on her. (Paras 18, 34)
Result: Claim dismissed.
| Table of Content |
|---|
| 1. reference and procedural background of the case. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. claimant's employment history and resignation details. (Para 9 , 10 , 11) |
| 3. submissions from both parties regarding dismissal. (Para 12 , 13 , 14 , 15) |
| 4. court's evaluation of dismissal claims. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 5. analysis of evidence regarding resignation and dismissal. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. conclusion and dismissal of the claimant's case. (Para 34) |
[1] This is a reference made under s 20(3) of the IRA 1967 ("the Act") arising out of the dismissal of AYSHA FAHEEM BINTI ABDULLAH (hereinafter referred to as "the Claimant") by CIGNA INTERNATIONAL HEALTH SERVICES SDN BHD (hereinafter referred to as "the company") on 30 November 2020.
Background Facts
[2] The parties in this case are Aysha Faheem Binti Abdullah (hereinafter referred to as "Claimant") and Cigna international Health Services Sdn Bhd (hereinafter referred to as "Company"). This is a claim initiated by the claimant under s 20(3) of the Industrial Relations Act 1967 against the Company.
[3] The relevant cause-papers and bundles filed in these proceedings are:
(i) The Claimant's Statement of Case dated 1 March 2022 ("SOC"):
(ii) The Company's Statement In Reply dated 15 November 2022 ("SIR");
(iii) The Company's Bundle of Documents filed on 16 November 2022 ("COB1"):
(iv) The company's Written Submission; and
(v) The claimant's Written Submission filed on 28 March 2023.
Brief Procedural History
[4] On the case management date on 27 July 2022, upon considering the claimant's request, this court had brought forward the hearing date of this case from 8 February 2023 and 9 February 2023 to 16 November 2022. The trial of the matter proceeded and completed on 16 November 2022. The claimant represented herself and testified orally. So as the company, it was represented by its Human Resources Manager in the person of Sharifah Zaitulakamal Binti Syed Abdullah.
[5] Upon completion of the hearing on 16 November 2022, both parties were ordered to file Written Submissions. However, specifically on 2 March 2023, the firm of solicitors of Ms Tharamjit Singh & Co wrote to the court in two separate letters to (i) enclose Form A (Application For Permission To Be Represented By A Legal Practioner) and (ii) enclose Medical Report of the claimant dated 7 February 2023 as supporting document to the claimant's claim (the said action). For the record, the company had objected to the said action, vide letter dated 2 March 2023. This court agrees with the company's objection, wherein vide email dated 6 March 2023, the said action was rejected by this court, on the grounds that hearing of the case has completed and the parties had been ordered to file written submissions. Subsequent application by Ms Tharamjit Singh & Co for an extension of time to file written submission and reply written submission were nevertheless allowed by this court, from 21 December 2022 and 4 January 2023 to 28 March 2022 and 11 April 2023 respectively.
[6] The said firm went on further and filed a Notice of Application on 13 March 2023 which sought to include the claimant's medical report in the evidence which was responded to by this court by reiterating that the previous order as to filings of written submissions; maintains, and that the inclusion of new evidence was disallowed, after the close of evidence of the case.
[7] In this court's considered views, such an application must be disregarded on the grounds that the parties had closed their respective cases and had been ordered to file written submissions. It is clear that the delay in the attempt to include the new evidence was inordinate and after the court is functious officio. For the company, it was represented by Sharifah Zaitulakamal binti Syed Abdullah similarly, after the close of the case.
[8] The Claimant's only witness was the Claimant herself ("CLW") and the Company's only witness was Sharifah Zaitul
