Case Details

• Industrial Court, Kuala Lumpur case: Selangor Medical Centre (Appellant/Company) v. Zainal Abidin Md Tamami (Respondent/Claimant), Award No. 431 of 2002, decided 22 May 2002. (!) (!)

Background Facts

• Claimant employed as HR Manager from 1 Jan 1996, basic salary RM3,800, confirmed 1 Jul 1996 at RM4,100. (!)
• Claimant suffered lower back pain from 10 Apr 1997, underwent surgery 28 Apr 1997, discharged 4 May 1997. (!)
• While on medical leave 24 Sep 1997, company issued show cause letter suspending Sep 1997 salary pending inquiry. (!)
• Claimant replied 29 Sep 1997 denying allegations. (!)
• Claimant requested Sep 1997 salary payment 2 Oct 1997; solicitors issued demand 3 Oct 1997. (!) (!)
• Company issued warning letter 3 Oct 1997 under cl. 51(1) SMC Terms, gave 30 days to improve, listed 6 matters; paid Sep salary 4 Oct 1997 but reduced basic from RM4,346 to RM3,844.54. (!) (!)
• Claimant protested warning and salary reduction 9 Oct 1997. (!)
• Claimant's solicitors alleged constructive dismissal 25 Oct 1997 due to non-payment of full Sep salary and inhuman treatment. (!)

Issues

• (1) Whether company constructively dismissed claimant; (2) if so, without just cause or excuse. (!) (!)
• Applies contract test: employer breach fundamental to root of contract, destroying foundation, or evincing intention no longer bound by contract. (!)

Law on Constructive Dismissal (General Principles)

• Employer guilty of breach to root of contract or evinces intention not bound; employee entitled to treat as terminated/dismissed. (!)
• Determined by contract test: employer's conduct breach entitling resignation? Employee acts soon after? (!)
• Four conditions: (i) employer breach (actual/anticipatory); (ii) sufficiently important/last in series; (iii) employee leaves in response, not other reason; (iv) no undue delay, else waives/affirms. (!) (!) (!) (!)
• Repudiation: breach/anticipatory breach/notice of termination, express/implied, to substance of contract. (!)
• Implied term: employer not conduct to destroy trust/confidence without reasonable cause; assess conduct as whole/cumulative effect. (!) (!)
• Burden on claimant to prove by cogent evidence dismissal without just cause. (!)

Claimant's Allegations

• Frequent medical issues post-surgery, continued work on MC at Dr. Ameen's request. (!) (!)
• Aug 1997 salary withheld until 9 Sep 1997. (!)
• Show cause letter: 6 allegations (late work, Saturday absences, no attendance signing, 79 MC days, incomplete training/welfare, neglect duties). (!) (!) - (!)
• No due inquiry before warning; salary reduced without basis; false MC days (claimant took 47-48 days). (!) (!) (!)
• Reasons for constructive dismissal claim: salary refusal, no replies to letters, excess MC discipline, false absence claims, medical pain from wrong treatment, contract breaches, no inquiry, mental torture. (!) - (!)
• No reply to dismissal letter. (!)

Court's Findings

Late Payment Aug 1997 Salary

• Cl. 24(1) SMC Terms: salary by 7th day post wage period (by 7 Sep). (!) (!)
• Delay due to bank change (Sime to Perwira Affin), all affected staff paid by cheque 25 Aug; claimant signed memos, collected cheque 25 Aug (or avail then), signed voucher. (!) (!) (!) (!)
• No deliberate delay/breach. (!) (!)

Suspension/Deduction Sep 1997 Salary

• Show cause suspended salary; warning deducted 3 days unpaid MC (63 days total exceeded 60 days s.60F Employment Act). (!) (!) (!)
• Cl.55 allows suspension per Employment Act s.14(2): max 2 weeks, half pay (not full); inapplicable as under cl.51(1)/52, not cl.53. (!) (!) (!) (!)
• No legal right to full suspension; but paid before 7 Oct, cheque ready 4 Oct, collected 6 Oct with protest. (!) (!)
• Deduction wrong (26 vs 30/31 days basis); but minor error, no HR manager input, practice to deduct excess leave; claimant verified payroll 23 Oct without correction. (!) (!) (!)
• Not fundamental breach, no mala fide; company would pay over-deduction if quantified. (!) (!) (!)

Show Cause Letter

• 6 allegations justified inquiry under cl.52(1)/(2) (not cl.53 domestic inquiry). (!) (!)
• "Due inquiry": show cause + opportunity reply satisfies natural justice (right heard, no bias), less formal than domestic. (!) (!) (!) (!)
• Board decided post-investigation/legal advice. (!)
• Allegations specific enough; claimant admitted some (lateness, some Saturday absences, delayed attendance signing). (!) (!) (!) (!)
• MC days: company used records (79->63); claimant late submissions, worked on some MCs; still frequent (min 48-63). (!) (!)
• Training/welfare/neglect: backlog due absences, justified query. (!) (!)

Warning Letter

• Lightest penalty cl.51(1); considered reply, reduced MC count, deemed uncertified leave paid. (!) (!) (!)
• Justified: poor attendance/performance continued post-warning. (!) (!)

Other Allegations

• Not all letters ignored (some acknowledged/responded indirectly). (!) - (!)
• Medical negligence: no proof, pursue civilly; relevant only to leave/attendance. (!)
• No grievance procedure used cl.50. (!)

Conclusion & Decision

• No fundamental breach/root destruction/intention not bound; claimant low tolerance to justified discipline, resigned voluntarily. (!) (!)
• Sympathy for health, but no constructive dismissal without just cause. (!)
• Claim dismissed. (!)