An employee's claim for constructive dismissal must be pursued through statutory mechanisms under the Industrial Relations Act, not common law.

Introduction

[1] The question that arises in this appeal is one which is of relevance and importance to employment law and practice in Malaysia and it is this - whether it is an abuse of process of the Court for an employee who claims that he/she has been dismissed without just cause or excuse, to file a common law action to claim, (a) damages for breach of the employment contract, (b) damages for constructive dismissal, (c) damages for the tort of intentionally causing emotional distress, (d) damages for the tort of harassment and bullying, (e) damages for negligence in appointing, retaining and monitoring the recruitment of employees, (g) general and exemplary damages, instead of pursuing the statutory dispute resolution mechanism/process to obtain the remedies as provided for under the Industrial Relations Act 1967 ("the Act").

[2] This is an appeal by 7-Eleven Malaysia Sdn Bhd ("Defendant") against the decision of the Learned Judge of the High Court ("the Judge") dated 16 March 2022 dismissing the Defendant's application dated 4 January 2022 (Encl 9) filed pursuant to O 18 r 19(1) (a), (b) and/or (d) of the Rules of 2012 ("ROC") for an order that the Writ of Summons and Statement of Claim dated 26 October 2021 in Kuala Lumpur High Court Suit No WA- 22NCVC-694-10/2021 ("Suit 694") be struck out and dismissed. The High Court's Grounds of Judgment are reported at . The Plaintiff in Suit 694 (Respondent in the appeal herein) is Ashvine A/P Hari Krishnan. For convenience, we shall refer to the parties as per their titles in the High Court. Hence, the Respondent shall be referred to as Plaintiff, and the Appellant as Defendant.

Background Facts

[3] The Plaintiff was employed by the Defendant as its Senior Manager of Human Resources pursuant to a contract of employment dated 9 October 2019 ("the employment contract"). She initially reported to Kung Veng Sze ("Kung"). The problem erupted when the Plaintiff was instructed to report to Liew Kian Meng ("Liew") with effect from 8 February 2021. Liew was the General Manager of Human Resources for the Defendant. As the Plaintiff's supervisor, Liew had some concerns about her performance. Liew raised this with the Plaintiff on several occasions. The events which led to the Plaintiff's resignation and subsequent filing of Suit 694 can be traced back to the Plaintiff's performance and Liew's alleged conduct vis-a-vis the appraisal and management of her performance. The Plaintiff alleged that the appraisal was inherently unfair and that she was being bullied and harassed by Liew.

[4] The matter came to a boiling point and culminated in the Plaintiff resigning via letter dated 3 May 2021 which was accepted via Defendant's letter dated 4 May 2021. The resignation letter made reference to certain allegations which were directed at Liew. This was not dealt with in the Defendant's acceptance letter dated 4 May 2021. However, by way of a subsequent letter dated 20 May 2021, the Defendant responded to the Plaintiff's said allegations. There was an exchange of correspondence between the Plaintiff's solicitor and the Defendant's solicitors. The dispute remained unresolved. On 26 October 2021, the Plaintiff filed Suit 694.

[5] The Plaintiff's claim is essentially predicated on a complaint that she had been "constructively dismissed". In the Statement of Claim, the Plaintiff claimed that cumulatively, Liew's actions, amounted to conduct by the Defendant, which goes to the root of the employment contract, and is repudiatory of the employment contract. Indeed, although the Statement of Claim alludes to other purported causes of action, the Judge made the o