The standard for proving constructive dismissal requires showing a fundamental breach of the employment contract by the employer or evidence of intention not to be bound by it.

Ahmad Kamal Md Shahid J:

Introduction

[1] This is the Applicant's judicial review application among others, for an order of certiorari to quash the decision of the Industrial Court, the 2nd Respondent dated 19 August 2019, which is in favour of Perusahaan Otomobil Nasional Sdn Bhd, the 1st Respondent.

[2] The Industrial Court has decided that the Applicant has failed to prove that he was constructively dismissed by the 1st Respondent and the Applicant had resigned voluntarily from the 1st Respondent. As such, the Applicant's claim was dismissed.

The Salient Facts

[3] The relevant facts in the present application are the following:

3.1. The 1st Respondent is the first national car manufacturer while the Applicant commenced employment in Proton Edar Sdn Bhd (PESB) on 9 May 2007 as General Manager - Marketing.

3.2. Pursuant to the takeover by the DRB-HICOM Berhad of PROTON Holdings Berhad as announced vide memorandum dated 17 January 2012, there was continuous restructuring of the PROTON Holdings Berhad group of companies (Group).

3.3. In line with the business requirements of the Group, vide letter dated 12 September 2012, the Applicant was transferred to the 1st Respondent from PESB as General Manager - Marketing attached to Group Marketing, Branding & Motorsports where there was no reduction of salary or change of status and benefit.

3.4. Pursuant to the 1st Respondent's ongoing restructuring and in line with its managerial prerogative and efforts to consolidate and enhance its operational efficiency, the Applicant was seconded back to PESB as General Manager - Marketing attached to Group Marketing, Branding & Motorsports vide letter dated 23 October 2012.

3.5. Vide letter dated 10 December 2012, the Applicant considered himself constructively dismissed by the 1st Respondent with immediate effect purportedly on the grounds that he was put in "cold storage" for 2½ months.

3.6. Subsequently, the 1st Respondent vide letter dated 9 January 2013 refuted the Applicant's allegations and put on record that he had left the 1st Respondent on his own accord and further clarified that:

(i) As a General Manager, the Applicant should have performed his responsibilities as expected with minimal supervision and guidance;

(ii) The Applicant should have discussed with his superior, ie, the Director of Marketing, Branding & Motorsports should there be any ambiguity pertaining to his role in the 1st Respondent; and

(iii) It was never the 1st Respondent's policy to transfer personal assistant / secretary to follow their respective superiors. Nevertheless, the Group Human Resources had taken the necessary steps to find a suitable candidate to be appointed as the Applicant's Personal Assistant / Secretary.

[4] The Applicant then filed a representation to the Director General of the Industrial Relation Department under s 20(1) of the Industrial Relation Act 1967 ( IRA ) and his representation was referred by the Minister to the Industrial Court for adjudication pursuant to s 20(3) of the same Act.

[5] At the Industrial Court, the Applicant claimed that he was constructively dismissed by the 1st Respondent and gave the following reasons for the contention:

5.1. his transfer was essentially to put him in cold storage and there was never any evidence of restructuring of the 1st Respondent;

5.2. he was not given a job description, list of duties and staff;

5.3. he was not provided with a Personal Assistant / Secretary;

5.4. he had been kept out of mainstream of work and was bypassed for approvals;

5.5. he was informed to stop participating in discussions and meetings in relation to the 188K Project although it was listed in his KPI;

5.6. he was informed that he would no longer be partaking in the Sahabat Eon Edar integration programme and other meetings;

5.7. his previous secretary had requested for a transfer to work with him but was rejected by Human Resources;

5.8. his order for business cards and rubber stamps were never put into effect; and

5.9. he had been victimiz