The burden of proof for constructive dismissal lies with the employee; additional responsibilities assigned were within contractual obligations, requiring challenges to proceed via appeal after IRA amendments.

Introduction

[1] On 21 January 2025, I dismissed the judicial review application brought by the applicant, Hasnah binti Hashim ("the claimant") to quash, by an order of certiorari, the award dated 3 July 2023, wherein her claim of constructive dismissal by her employer, Bina Puri Sdn Bhd ("the company"), was dismissed by the Industrial Court ("the impugned award"). The claim in the Industrial Court was commenced pursuant to a reference under subsection 20(3) of the Industrial Relations Act 1967 (" IRA ").

[2] This judgment contains the reasons for my decision.

Background

[3] On 4 February 2008, the claimant commenced employment with Bina Puri Construction Sdn Bhd on a contract basis as its Mechanical & Electrical ("M & E") Manager. She was then confirmed on a permanent basis in 2011. In a letter dated 29 June 2011, she was offered the post of Senior Manager M & E and was subject to an inter-company transfer. She was transferred to the company by way of an inter-company transfer as Senior Manager M & E (Grade L3A) for the KLIA 2 Project at Sepang.

[4] Upon the completion of the KLIA 2 Project, the claimant was vide letter dated 22 September 2014, transferred to the company's headquarters at Bukit Idaman, Selayang. She was given salary adjustments in 2015, the executive share option was extended for 5 years from 12 April 2016, and a share issuance scheme pursuant to a letter dated 17 February 2020.

[5] In March 2020, the COVID-19 pandemic hit the country, and the company, being in the construction business, was hit hard and was facing financial difficulties. On 28 April 2020, the company imposed the following austerity measures: (i) all staff receive half pay for the entire month of May; and (ii) unpaid leave on every second and third Friday of the month. A memorandum dated 21 May 2020 was issued on austerity measures, which included a freeze on recruitment, no relocation and transfers, and no contract renewal. Memoranda were issued on 10 June 2020, 18 June 2020, 6 July 2020, 11 August 2020, and 15 December 2020, extending the austerity measures.

[6] The claimant disagreed with the voluntary salary cut and the unpaid leave measures taken by the company to mitigate the financial impact on the company. She requested other options, one of which was a mutual separation scheme ("MSS"). The company offered her a scheme, which she rejected, and proposed a counter-offer. Negotiations took place on 12 January 2021, 14 January 2021, 18 January 2021, 1 March 2021, 17 March 2021, and 31 March 2021, but to no avail, as an agreement on an MSS could not be reached.

[7] On 10 March 2021, the company, via a memorandum, informed its staff that the austerity measure of voluntary unpaid leave on Friday would continue until further notice and would make an announcement to cancel the practice once the economic conditions were favourable.

[8] The company had two projects, one in Pengerang, Johor, and the other in Tasik Kenyir, Terengganu. In a letter dated 26 April 2021, the company informed the claimant that she would be overseeing the Tasik Kenyir Project and collaborating with the main contractor for the project.

[9] On 3 May 2021, via a notice of resignation, the claimant claimed that she was constructively dismissed as the company had imposed additional duties and responsibilities on her. The letter of resignation read as follows:

Subject: Notice of Resignation

Please accept this letter as my formal notification that I am forced to lea