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2025 MarsdenLR 2848
INDUSTRIAL COURT KUALA LUMPUR
MUSHANAFAH MUHAMMAD – Appellant
Versus
BMG GLOBAL SDN BHD – Respondent
Award No: 166 of 2025 [Case No: 19/4-68/22]
To prove constructive dismissal, an employee must show the employer's conduct constituted a significant breach of the employment contract, demonstrating there was no just cause for dismissal.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Employee's transfer and alleged breach of contract - Court found no breach of employment contract regarding transfer; employer’s conduct did not amount to breach going to the root of the contract - The nature of the Company’s operations allowing employee transfers was recognized - Principles of burden of proof discussed. (Paras 20-21, 24, 36-41)
(B) Constructive Dismissal - To establish constructive dismissal, the employee must demonstrate the employer's significant breach of contract; the contract test, not unreasonableness, is applied - Claimant failed to prove the allegations of constructive dismissal. (Paras 26, 28-30, 38-41)
Facts of the case:
The Claimant worked as a Sales Administration and Credit Control Executive and alleged constructive dismissal upon being transferred to an outstation project by the Company on 4 February 2021. The transfer was made under the employment contract's transfer clause, which the employee accepted. The Claimant contested the transfer citing personal reasons.
Findings of Court:
The Court concluded the Claimant did not prove the constructive dismissal claim as the transfer was consistent with the employment contract and did not constitute a major breach.
Issues: Whether the Claimant experienced constructive dismissal and if the Company's actions constituted a breach of the employment contract.
Ratio Decidendi: It was found that an employer's conduct must demonstrate a breach going to the core of an employment contract; the alleged constructive dismissal was not supported by evidence.
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. employment context and claimant's status. (Para 1 , 2 , 4 , 5 , 12) |
| 2. transfer clause in employment contract. (Para 8 , 13 , 14) |
| 3. claimant's arguments for constructive dismissal. (Para 18 , 21) |
| 4. duties of the industrial court in dismissal cases. (Para 22 , 23 , 24) |
| 5. conduct constituting constructive dismissal. (Para 26 , 30 , 32) |
| 6. court's findings on constructive dismissal. (Para 36 , 40) |
Reference
[1] This is a reference under s 20(3) of the Industrial Relations Act 1967 (the Act) by the Director General of Industrial Relation of Malaysia arising out of the dismissal of Mushanafah Binti Muhammad ("the Claimant") by BMG Global Sdn Bhd ("the Company") on 4 February 2021.
Introduction
[2] On 21 April 2017, the Claimant was offered employment with the Company for the position of Sales Administration and Credit Control Executive with the monthly basic salary of RM3,500.00 and upon confirmation with additional parking and meal allowance of RM200.00 ("Contract of Employment") (see pp 1 to 4 of the CLB1). It is undisputed that the Claimant was confirmed on 4 December 2017. ("Letter of Confirmation") (as at p 5 of the CLB1).
Documents Filed And Tendered In This Case
[3] The trial was conducted over three (3) days ie, on 23 August 2023, 24 April 2024 and 26 June 2024. The following documents were referred to:
[4] The issue arose when, during the Movement Control Order by the Government of Malaysia, the Company verbally instructed the Claimant on 12 January 2021 not to attend the office starting from 13 January 2021. However, when the Claimant returned to the office on 25 January 2021, the Company instructed her to apply for annual leave or unpaid leave for the days she worked from home, which the Claimant refused.
[5] The Claimant has been working at the Company since 21 April 2017 until she alleged to have been constructively dismissed by the Company on 4 February 2021.
The Company's Business
[6] At the outset, it is pertinent to note that the Company is a property and real estate development company. Since its incorporation, the Company involved in various properties development ranging from commercial and residential developments across the country. A large portion of the Company's works are based on projects awarded by employers wherein the Company would act as the main contractor at the project sites at various states.
[7] Due to the nature of the Company's business, it is part and parcel in the employment of the Company's employees that they are constantly subject to transfer to other project sites of the Company.
[8] It is on that basis cl 13 on transfer was incorporated into the Claimant's offer letter which reads:
"13. Transfer
The Company may at its discretion transfer you to another location, section, department, division, branch, subsidiary, or associates Company where your services are required. The Company shall reimburse you for the expenses incurred in transferring to outstation locations."
[9] The fact that the Company constantly transfers its employees to outstation site was also in evidence.
[10] At all material times, the Claimant was aware of the nature of the Company's business which involves outstation project. The notes of proceeding regarding this matter as per below:
"So, my question is, semasa Cik Musha menghadiri interviu tersebut:
Adakah or I cadangkan kepada Cik Musha bahawa Cik Musha bahawa Cik Musha mempunyai pengetahuan, knowledge, bahawa Company ini adalah dalam sector pembinaan. Setuju tak?
MUSHA: Setuju
...
MUSHA: Kalau based on property development, yang saya tahu, projek saya handle masa itu adalah Taman Beluran Jaya, dekat Sabah.
JUDGE: Taman Beluran Jaya?
MUSHA: Ya, itu property.
JUDGE: Di mana?
MUSHA: Property di Sabah.
JUDGE: Sabah? Ok.
MUSHA: Selain itu, kalau yang saya handle lah, selain itu, di Johor Bharu, service apartment, Taman Uda."
[11] The Claimant was more than willing to accept the employment with the Company with the transfer clause in place. Notes of proceeding dur
