The court emphasized that to prove constructive dismissal, a claimant must demonstrate a breach of a fundamental employment contract term rather than mere unreasonableness by the employer.

Introduction

[1] There are two (2) appeals before this Court against the decision of the learned High Court Judge dated 7 November 2019. Appeal No WA-01(A)-664-11-2019 ("Appeal 664") is the Appellant/Keretapi Tanah Melayu Berhad's ("KTMB") appeal against the decision of the Judge in dismissing KTMB's application to quash the award of the Industrial Court, No 465/2019 dated 31 January 2019. The Industrial Court had allowed the claim by the 1st Respondent for constructive dismissal and awarding the sum of RM95,152.00, comprising 24 months of back wages and 1 1/3 month wages in lieu of reinstatement.

[2] Appeal No. WA-01(A)-684-11-2019 ("Appeal 684") is En Mohan a/l Vythialingam's ("Claimant") appeal on the quantum of compensation that was allowed by the Industrial Court, which was affirmed by the High Court.

[3] These appeals emanated from two (2) judicial review applications which were consolidated and heard together. Judicial Review Application No WA-25-182-04-2019 was filed by KTMB, inter alia, for an order of certiorari to quash the decision of the Industrial Court in deciding that the Claimant was constructively dismissed and was awarded back wages and compensation in lieu of reinstatement (Appeal 664). The other Judicial Review Application No WA-25-177-04-2019, was filed by the Claimant in respect of the quantum of compensation awarded by the Industrial Court, in Appeal 684.

[4] Having considered the appeal records and the submissions of the parties, this Court has allowed KTMB's appeal and quashed the Industrial Court Award No 465/2019 with no order as to costs.

The Salient Facts

[5] KTMB is the main rail operator in Semenanjung Malaysia, whilst the Claimant was a former employee of KTMB.

[6] The Claimant started working with KTMB on 1 September 1983 as a Pembantu Lokomotif Rendah. In 1992, the Claimant was promoted to Pemandu Lokomotif Rendah (Kanan).

[7] On 21 September 1994, the Claimant was confirmed as a Locomotive Driver with a monthly salary of RM1,042.80.

[8] In November 2014, KTMB advertised in its website a vacancy for the position of Manager, Industrial Relations Department. Eight (8) candidates applied for that job, including the Claimant, who had since obtained a Master in Business Administration from University Kebangsaan Malaysia.

[9] The Claimant was unsuccessful in his application after being interviewed for the position. Another candidate, Azhari Bin Hashim, was offered the position and was subsequently employed as the Manager of the Industrial Relations Department.

[10] On 24 December 2014, the Claimant was assigned an acting position, as an Acting Industrial Relations Executive (Grade N03G05), for a fixed period of six (6) months, from 26 December 2014 to 25 June 2015, receiving an acting allowance of RM532.78 per month, on top of his existing salary as a locomotive driver.

[11] After the end of the six (6) months period, KTMB reassigned the Claimant as Acting Executive, Rules & Regulations (Grade N05AG07) with effect from 30 July 2015, and an acting allowance of RM518.00 per month was paid to the Claimant, on top of his existing salary as a locomotive driver.

[12] Based on two Collective Agreements signed between KTMB and the unions, when an employee of KTMB is offered an acting position, the employee will be paid an "acting allowance", calculated based on the grade of the acting position.

[13] The Claimant was unhappy with the re-assignment from Acting Industrial Relations Executive, to Acting Executive, Rules & Regulations, and wrote a letter dated 10 August 2015 to KTMB, seeking an explanation on the re-as