Constructive dismissal requires proof of a fundamental breach of contract by the employer; performance issues must justify non-confirmation of probationary employment.

Reference

[1] This is a reference made under s 20(3) of the Industrial Relations Act 1967 (Act 177), arising out of the dismissal of Rahimuddin Bin Md Harun (hereinafter referred to as "the Claimant') by Darul Khusus Venture Sdn Bhd (hereinafter referred to as "the Company") on 3 April 2023.

[2] The reference by the Director General of Industrial Relations ("DGIR") in this case required the Court to hear and determine the Claimant's complaint of dismissal by the Company on 3 April 2023.

I. Procedural History

[3] The Court received the letter pertaining to the DGIR's reference under s 20(3) of the Industrial Relations Act 1967 on 4 October 2023.

[4] The matter was fixed for mention on 1 November 2023, 20 December 2023, 13 February 2024, 5 March 2024, 1 April 2024, 23 April 2024, 30 April 2024, 14 May 2024 and 11 June 2024.

[5] The trial proceeded on 11 July 2024 and concluded on the same day.

II. Parties' Position On The Merits

a. The Claimant

[6] The Claimant commenced employment with the Company on 4 August 2022 as a General Manager with a salary of RM20,000.00 per month.

[7] The Claimant was required to report to the Principal Officer/Chief Executive Officer of the Company.

[8] The Claimant's tenure of employment as the general manager was from 4 August 2022 until 3 August 2023. He was also required to undergo a probationary period of 6 months.

[9] On 10 February 2023, the Claimant had sent a letter to Tn Hj Rahman with regards to the Audit Report for February 2023. Upon receiving the Claimant's letter, Tn Hj Rahman had responded via WhatsApp stating "BERCERAI".

[10] When the Claimant enquired as to what the word "BERCERAI" meant at the Board of Directors Meeting, Tn Hj Rahman had replied by asking the Claimant to find the meaning himself in the dictionary. In this context, the Claimant had understood the word to mean that his employment contract had been terminated by the Company.

[11] On 14 February 2023, the Claimant was asked to sign the Audit Report for 2021 wherein during the handover, the Audit Report for 2021 was still incomplete and the Claimant had rejected the same as he was forced to acknowledge and agree to some of the matters that Claimant felt was untrue and unfounded.

[12] On 19 February 2023, the Claimant had sent an email to En Shahrin and his secretary. The Claimant was dissatisfied over the Claimant's failure to pay his salary, thus he had requested for the arrears of salary to be paid.

[13] Subsequently, the Claimant's salary from February until 3 April 2023 was not paid by the Company. The Claimant had sent a letter as well as WhatsApp message to the CEO and Human Resource Manager asking about the status of his salary but there was no response.

[14] The Claimant thereafter left his employment claiming that he had been constructively dismissed by the Company on 10 February 2023.

b The Company

[15] The Company contends that at the time of the Claimant's alleged claim of constructive dismissal, the Claimant held the position of General manager in the Company, whereby Kumpulan Semesta Sdn Bhd ("KSSB") is the majority shareholder of 60%, based in Shah Ala, Selangor and his last drawn basic salary was RM20,000.00 per month. The Claimant is the minority shareholder in the Company with 40% shares.

[16] The Claimant's employment history and events preceding the Claimant's alleged constructive dismissal are as follows:

i. Prior to his appointment as the General Manager of the Company,