AWARD

Ahmad Razif Mohd Sidek:

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 the Award, the court would like to highlight first the issue of burden of proof for this case. This is important to ascertain whether the parties have managed to prove their case to this court. The court's general duty is to determine whether there was a constructive dismissal and whether the said dismissal was with or without just cause and excuse.

[7] The role of the Industrial court was lucidly explained by His Lordship Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) in Goon Kwee Phoy v. J & P Coats (M) Bhd; [1981] 2 MLJ 129 at p 136 (Federal court) as follows:

"Where representations are made and are referred to the Industrial court for enquiry, it is the duty of the court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason or excuse for the action taken by him, the duty of the Industrial court will be to enquire whether that reason or excuse has or has not been made out. If it finds as a fact that it has not been proven, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by the employer, and that court or the High court cannot go into another reason not relied on by the employer or find one for him."

[Emphasis Added]

[8] The Supreme court in the case of Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd; [1987] 1 ML