AWARD

Indra Ayub:

A. Reference

[1] This is a reference by the Director General of Industrial Relations Malaysia dated 2 March 2022 under s 20(3) of the Industrial Relations Act 1967 ("the IRA 1967") arising out of the alleged constructive dismissal of Deviana Peter Ong (hereinafter referred to as "the claimant") by Promenade Hotel Sdn Bhd (herein referred to as "the company").

B. Preface

[2] This reference required this court to determine the dispute over a constructive dismissal on 30 August 2021 claimed by the claimant.

[3] The claimant was employed by the company as Human Resources Manager effective on 15 March 2021 by a letter of offer dated 10 March 2021. Subsequently, the claimant's position as HRM was confirmed by the company through a confirmation letter dated 6 May 2021.

[4] The claimant's case for constructive dismissal is founded upon the alleged fundamental breaches by the company as follows:

1. The unilateral reduction of salary without the claimant's consent.

2. The unwarranted expansion of the claimant's workload, imposing obligations beyond the scope of her contractual duties.

3. The persistent workplace harassment perpetrated by the company's then General Manager (CoW3) which fostered an intolerable and hostile working environment.

4. The inaction of the company's then Senior General Manager (CoW4), who, despite being in a position of authority, consistently failed to address, intervene, or remedy the ongoing harassment and mistreatment inflicted upon the claimant by CoW3.

5. The claimant's coerced resignation on 30 August 2021, which was not an act of volition but one of necessity, induced by the company's cumulative breaches.

[5] On 30 August 2021, the claimant sent an email to the Senior General Manager of the company (CoW4) whereby she informed CoW4 that she wished to tender her resignation from the company with immediate effect. The claimant avers that she was constructively dismissed by the company.

[6] The company submits that there had been no dismissal of the claimant's employment by the company or any form of constructive dismissal. It was the claimant who chose to abandon her employment and/or breached her contract of employment with the company with effect from 3 September 2021, without giving the requisite notice of termination and/or paying the salary in lieu of notice as provided under her contract of employment.

C. The Duty Of The Industrial court

[7] First and foremost, it is the duty of the Industrial court to enquire whether there was a dismissal, and if so, whether it was with or without just cause or excuse. In Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298, the Supreme court held that:

"Where the Industrial court is dealing with reference under s 20, the first thing that the court will have to do is to ask itself a question whether there was a dismissal, and if so, whether it was with or without just cause or excuse "

D. The Law And Burden Of Proof

[8] In the present case, the company disputes the fact of dismissal. In such a situation, the burden of proof lies on the claimant to establish that the claimant had in fact been dismissed by the company. In Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor; [1998] 7 MLJ 359, the High court held that:

"The law is clear that if the fact of dismissal is not in dispute, the burden is on the company to satisfy the court that such dismissal was done with just cause or excuse... if an employer asserts otherwise the burden is on him to discharge. However, where the fact of dismissal is in dispute, it is for the workman to establish that he was dismissed by his employer. If he fails, there is no onus whatsoever on the employer to establish anything for in such a situation no dismissal has taken place and the question of it being with just cause or excuse would not at all arise"

[9] In Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni Nair & Anor; [2002] 1 MLRA 188; [2002] 3 MLJ 129; [2002] 3