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2025 MarsdenLR 1976
INDUSTRIAL COURT KUALA LUMPUR
ASMA ARIPIN – Appellant
Versus
M3 TECHNOLOGIES (ASIA) BERHAD – Respondent
Award No: 160 of 2025 [Case No: 12(20)/4-591/22]
The criteria for proving constructive dismissal requires showing a significant breach by the employer, which the Claimant failed to establish, leading to her voluntary resignation.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - The court analyzed the requirement for establishing constructive dismissal as being a breach going to the root of the employment contract. The Claimant resigned on 18 March 2021, alleging that her resignation was due to the Company’s conduct. However, it was held that she voluntarily resigned and failed to prove constructive dismissal. (Paras 6, 84)
(B) Constructive Dismissal - The court ruled that the claimant must satisfy four critical conditions to establish constructive dismissal: a breach of contract by the employer, the significance of the breach to justify resignation, leaving in response to the breach, and not delaying. The Claimant did not meet these conditions. (Paras 8, 14, 60)
(C) Employer's Conduct - The court indicated that perceived unfair treatment must constitute a breach of fundamental terms of the employment for constructive dismissal to be claimed and that mere grievances or perceptions that do not constitute breaches will not suffice. (Paras 6, 84)
Facts of the case:
The Claimant, after 21 years with the Company as General Manager, resigned citing constructive dismissal due to changes in workplace dynamics following a management transition. The Company claimed she voluntarily resigned.
Findings of Court:
The Claimant voluntarily resigned without proof of constructive dismissal and did not give appropriate notice for her resignation.
Issues: Was the Claimant constructively dismissed? Did the Company commit a significant breach of contract?
Ratio Decidendi: The court found no significant breach by the Company, and thus the Claimant's complaints did not justify treating her resignation as a dismissal.
Result: Claim dismissed.
| Table of Content |
|---|
| 1. nature and history of employment (Para 3 , 4 , 5) |
| 2. test for constructive dismissal (Para 6 , 8 , 9 , 14) |
| 3. allegations of unfair treatment (Para 19 , 23) |
| 4. company's contention on voluntary resignation (Para 24 , 25 , 26 , 27 , 28) |
| 5. court's conclusion on dismissal and resignation (Para 31 , 84 , 85) |
| 6. employee share option scheme effects (Para 32 , 36) |
A. Reference
[1] This is a reference from the Director General of Industrial Relations Malaysia pursuant to s 20(3) of the Industrial Relations Act 1967 ("the IRA ") in respect of the dismissal of Asma Aripin ("the Claimant") by M3 Technologies (Asia) Berhad ("the Company") on 26 April 2021.
[2] This Court had considered all the notes of proceedings, documents, cause papers, submissions and bundles of authorities in handing down this Award namely:
(i) The Claimant's Statement of Case dated 13 April 2022 ("SOC");
(ii) The Company's Statement in Reply dated 16 May 2022 ("SIR");
(iii) The Claimant's Rejoinder dated 27 May 2022 ("Rejoinder");
(iv) The Claimant's Bundle of Documents No 1 ("CLB-1");
(v) Company's Bundle of Documents No 1 ("COB-1");
(vi) Claimant's Witness Statement (Asma Aripin) dated 17 July 2024 ("CLWS-1A");
(vii) Claimant's Supplementary Witness Statement (Asma Aripin) dated 17 July 2024 ("CLWS-1B");
(viii) Company's Witness Statement (Ahmad Nasir Abdul Rahim) dated 17 July 2024 ("COWS-1");
(ix) Company's Witness Statement (Chew Shin Yong, Mark) dated 17 July 2024 ("COWS-2");
(x) Company's Witness Statement (Hui Kiat Bin) dated 30 September 2024 ("COWS-3");
(xi) The Claimant's Written Submission dated 21 October 2024 ("Claimant's Submission") and Bundle of Authorities ("CL BOA");
(xii) The Claimant's Written Submission in Reply dated 4 November 2024 ("Claimant's Reply");
(xiii) The Company's Written Submissions dated 21 October 2024 ("Company's Submission") and Bundle of Authorities ("CO BOA"); and
(xiv) The Company's Submissions in Reply dated 4 November 2024 ("Company's Reply").
B. Brief Facts
[3] The Company is a publicly listed company incorporated under the laws of Malaysia and is now known as XOX Technology Berhad. The Company is predominantly involved in the business of providing mobile solutions in the information technology ("IT") industry.
[4] The Claimant first began her employment with the Company on 14 February 2000. Her last held position was General Manager with a last drawn gross salary of RM16,750.00 per month.
[5] In the Claimant's SOC, the Claimant pleaded constructive dismissal whereby she had tendered a letter of resignation dated 18 March 2021. The Resignation Letter was addressed to one Puan Maisarah Sahran ("Maisarah"), who was her reporting superior at the material time.
C. The Law On Constructive Dismissal
[6] It has been repeatedly held by our courts that the proper approach in deciding whether constructive dismissal has taken place is not to ask oneself whether the employer's conduct was unfair or unreasonable (the unreasonableness test) but whether "the conduct of the employer was such that the employer was guilty of a breach going to the root of the contract or whether it has evinced an intention no longer to be bound by the contract". The contract test as enunciated in the case of Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 was cited with approval by the then Supreme Court in Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd ; ; [1988] 1 MLJ 92 ; [1988] 1 CLJ (Rep) 298 and the recent decision of the Federal Court in Tan Lay Peng v. RHB Bank Berhad & Anor [2025] 1 MELR 699 ; ; [2024] 3 MLJ 506 ; [2024] 2 ILR 535 ; [2024] 6 CLJ 315 ; c.
[7] The case of Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 stated the contract test as follows:
"The contract test
If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then
