AWARD

The dispute in this case emanates from the dismissal of the Claimant by and from the services of the 3rd Company allegedly without just cause or excuse.

Salient Facts of Case

The Claimant commenced employment with the 1st Company with effect from 4th October 1993 as a Sales Executive with a basic salary of RM 1,200.00 per month. (Refer to Exhibit "C-1" in the Statement of Case).

The 1st Company vide a letter dated 1st September 1997 informed the Claimant that he has been appointed to the post of Assistant Sales/Services Manager and is transferred to the 2nd Company effective 1st September 1997 wherein his services were deemed continuous. (Refer to Exhibit "C-2" in the Statement of Case).

The 2nd Company vide a letter dated 24th December 1997 transferred the Claimant to the 3rd Company wherein again his services were deemed continuous without any changes in the terms of his employment and his designation. (Refer to Exhibit "C-3" in the Statement of Case).

The Claimant contends that upon his transfer to the 3rd Company, the Claimant continued to be based in Kuala Lumpur wherein he was tasked to oversee the sales and service operations of the 3rd Company in Kuala Lumpur.

The 3rd Company vide a letter dated 26th June 1998 offered to transfer the Claimant to Penang effective 10th July 1998. (Refer to Exhibit "C-4" in the Statement of Case).

No details were provided as to the Claimants position or job functions in the said letter (Exhibit "C-4") except that it will involve both technical and supervision responsibilities. The Claimant was asked to indicate his willingness for the transfer before 3rd July 1998.

The Claimant vide a letter dated 1st July 1998 informed the Company that he was unable to accept the 3rd Companys offer due to his commitments in Kuala Lumpur such as family and children education. (Refer to Exhibit "C-5" in the Statement of Case).

The 3rd Company vide a letter dated 26th August 1998 alleged that the Claimant had decided to cease his employment with the 3rd Company on his own effective 1st September 1998 when he rejected the offer to transfer to Penang (Refer to Exhibit "C-6" in the Statement of Case).

Vide a letter dated 26th August 1998 the Claimant denied that he wanted to cease his employment with the 3rd Company and sought further clarification as to the status of his employment with the 3rd Company. (Refer to Exhibit "C-7" in the Statement of Case).

The 3rd Company vide a letter dated 16th September 1998 informed the Claimant that the Claimant is no longer in the employment of the 3rd Company effective 1st September 1998. (Refer to Exhibit "C-8" in the Statement of Case).

The Claimants last drawn basic salary was RM2,400.00 per month.

The Claimant alleges he was dismissed from his employment on 1st September 1998 by the 3rd Company. The 3rd Company disputes the fact of dismissal. It alleges that the Company did not dismiss the Claimant but his employment ended when he refused to accept the transfer to Penang and orally informed the 3rd Company that he was ceasing employment.

It is not in dispute that the Claimant is transferable from one branch to another within the group and/or related companies at the absolute discretion of the Company.

The Law

The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. (1988) 1 CLJ 298 (Rep); (1988) 1 CLJ 45 held as follows:

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

The Court of Appeal in Ladang Holyrood v. Ayasamy Manikam & Ors (2004) 2 CLJ 697 held as follows:

"We now turn to the next issue, that is, whether the appellant has any right under the contract of service to transfer the respondents to the main Division. In Soon Seng Cement Products Sdn. Bhd. & Anor v. Non-metallic Mineral Products Manufacturing Employeess U