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2025 MarsdenLR 4365
INDUSTRIAL COURT KUALA LUMPUR
CHRISTOPHER DAVID SCOTT – Appellant
Versus
WAY-OUT CREATIONS SDN BHD – Respondent
Award No: 1189 Of 2025 [Case No: 3/4-1074/23]
The claimant must prove constructive dismissal by demonstrating a fundamental breach of employment contract by the employer; mere allegations without evidence do not suffice.
Headnote:(A) Industrial Relations Act 1967 - Section 20(3) - Constructive dismissal - Claimant alleged constructive dismissal due to breaches by the employer - Company maintained claimant resigned voluntarily - Court established burden of proof lies with claimant to prove dismissal without just cause or excuse (Paras 41, 42, 68, 70).
(B) Constructive dismissal principles - Conduct amounting to fundamental breach - Employer's conduct evaluated against the standard for dismissal.
(C) Burden of proof - Claimant must prove repetition of grievances during employment, not just in resignation letter (Paras 24-70).
Facts of the case:
The claimant, appointed Dive Centre Operation Manager, alleged constructive dismissal due to excessive workloads, lack of medical support, and unpaid wages upon resigning from the company (Paras 1, 4, 5, 24-70).
Findings of Court:
Claimant failed to substantiate allegations or demonstrate a legitimate basis for claim (Paras 62-70).
Issues: Whether there was a constructive dismissal and if it was with or without just cause or excuse (Paras 41).
Ratio Decidendi: Court confirmed that the onus is on the claimant to prove that dismissal occurred due to employer's breach of employment contract, which was not established (Paras 68, 69).
Result: Claimant's case dismissed.
| Table of Content |
|---|
| 1. award reference concerning alleged constructive dismissal. (Para 1 , 2 , 3 , 4) |
| 2. burden of proof lies on the parties. (Para 5 , 6) |
| 3. industrial court's duty to determine cause of dismissal. (Para 7 , 8 , 9) |
| 4. onus on claimants to prove constructive dismissal. (Para 10 , 11 , 12) |
| 5. constructive dismissal requires substantial breaches. (Para 13 , 14) |
| 6. conditions for establishing constructive dismissal. (Para 15 , 16 , 17 , 18) |
| 7. claimant’s health issues and treatment request. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31) |
| 8. claimant’s allegations against the company's conduct. (Para 32 , 33) |
| 9. company's rebuttal of claimant's accusations. (Para 34 , 35 , 36 , 37 , 38 , 39) |
| 10. court's inquiry into claimant’s resignation and evidence. (Para 40 , 41) |
| 11. criteria for constructive dismissal finding. (Para 42 , 43 , 44) |
| 12. court's evidence assessment of claimant's complaints. (Para 45 , 46 , 47 , 48) |
| 13. insufficient evidence leads to claim dismissal. (Para 49 , 50 , 51) |
| 14. evidence refutes claims regarding wages and allowances. (Para 52 , 53 , 54 , 55) |
| 15. employer’s responsibility concerning epf registration. (Para 56 , 57 , 58) |
| 16. employer’s liability regarding medical expenses. (Para 59 , 60) |
| 17. claimant's failure to substantiate medical expenses claims. (Para 61 , 62) |
| 18. claimant’s claims deemed afterthoughts without evidence. (Para 63 , 64 , 65 , 66 , 67) |
| 19. court’s conclusion: claim dismissed. (Para 68 , 69) |
Reference
[1] This is a reference dated 29 May 2023 made by the Director General of Industrial Relations pursuant to s 20(3) of the Industrial Relations Act 1967 [Act 177] for an award in respect of the dispute arising out of the alleged constructive dismissal of Christopher David Scott ("the claimant") by Way-Out Creations Sdn Bhd ("the company") on 4 August 2022.
Brief Facts
[2] The company is an entity incorporated in Malaysia that operates the Tioman Dive Centre and is involved in the business of recreational diving including diving training and also providing rental of diving equipment.
[3] Vide a letter of offer dated 22 February 2022 (pp 5-7, CLB1), the claimant was offered to work as Dive Centre Operation Manager with the company.
[4] The disputes before this court emanate from the decision of the claimant resigning from the Company. The claimant cited Constructive Dismissal and the company on the other hand insisted that the claimant had resigned on his own accord on 4 August 2022.
[5] The court has gone through the evidence as given through testimony in court and the documents and submission that have been filed. Those documents and submissions are listed for ease of reference as follows:
(a) Statement of Case dated 18 August 2023;
(b) Statement in Reply dated 1 December 2023;
(c) Rejoinder dated 4 March 2025;
(d) Claimant's Bundle of Documents filed on 21 August 2023 marked as exh CLB-1;
(e) Claimant's Bundle of Documents-2 filed on 19 March 2025 marked as exh CLB-2;
(f) Claimant's Bundle of Documents — III filed on 19 March 2025 marked as exh CLB-3;
(g) Company's Bundle of Documents filed on 13 March 2025 marked as exh COB-1;
(h) Company's Bundle of Documents (2) filed on 19 March 2025 marked as exh COB-2;
(i) Claimant's Witness Statement of Christopher David Scott signed on 19 March 2025 marked as exh CLWS-1;
(j) Company's Witness Statement of Frederik Johannes Combrink signed on 19 March 2025 marked as exh COWS-1;
(k) Company's Additional Witness Statement of Frederik Johannes Combrink signed on 19 March 2025 marked as exh COWS-1A;
(l) Company's Written Submission dated 21 May 2025;
(m) Ikatan Autoriti Pihak Syarikat filed on 22 May 2025;
(n) Company's Bundle of Authorities (2) filed on 24 June 2025;
(o) Claimant's Written Submission dated 17 May 2025;
(p) Claimant's Bundle of Authorities filed on 18 June 2025;
(q) Company's Written Submission in Reply dated 23 June 2025; and
(r) Claimant's Reply Submission dated 17 June 2025.
Role & Duty Of The Industrial court
[6] Before venturing further into t
