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INDUSTRIAL COURT OF MALAYSIA

CASE NO. 13/4 - 230/2006

BETWEEN
PUAN ROSNI BINTI TARMIDI

AND
PHN INDUSTRY SDN. BHD.
AWARD NO. 65 OF 2010

BEFORE

TUAN EDDIE YEO SOON CHYE

CHAIRMAN

VENUE

Industrial Court Malaysia, Kuala Lumpur

DATE OF REFERENCE

16.08.2005

DATES OF MENTION

13.03.2006;
25.05.2006;
04.09.2006;
20.12.2006;
23.07.2007;
28.11.2008;
03.12.2009

DATES OF HEARING

16.09.2009; 13.10.2009

06.04.2006;
27.07.2006;
22.09.2006;
26.01.2007;
16.04.2008;
09.01.2009;

08.05.2006;
03.08.2006;
11.10.2006;
06.02.2007;
27.05.2008;
13.07.2009;

11.05.2006;
18.08.2006;
21.11.2006;
14.06.2007;
29.08.2008;
01.09.2009;

DATE OF COMPANY'S
SUBMISSIONS RECEIVED :

16.10.2009

DATE OF CLAIMANT'S
SUBMISSIONS RECEIVED :

03.12.2009

DATE OF COMPANY'S
REPLY RECEIVED

07.12.2009

REPRESENTATION

Encik M. Puravalen of Messrs Valen, Oh &


Partners,
Counsel for the Claimant.
Dato' Thavalingam Thavarajah of Messrs
Zaid Ibrahim & Co,
Counsel for the Respondent.

REFERENCE :
This is a reference by the Honourable Minister of Human
Resource under section 20(3) of the Industrial Relations Act 1967 on
16 August 2005 arising out of the dismissal of Puan Rosni binti Tarmidi
(hereinafter referred to as the Claimant) on 2 July 2004 by PHN
Industry Sdn. Bhd. (hereinafter referred to as the Respondent).
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AWARD

BACKGROUND
1.

This is a Ministerial reference

to

the

Industrial

Court

under

section 20(3) of the Industrial Relations Act 1967 (Act 177) made on
16 August 2005 for an award in respect of the dismissal of Puan Rosni binti
Tarmidi (the Claimant) by PHN Industry Sdn. Bhd. (the Respondent) on
2 July 2004.

2.

The hearing of this case was duly completed on 13 October 2009.

The Respondent's counsel filed the Written Submission on 16 October 2009


and Respondent's Reply on 7 December 2009. The Claimant's counsel filed
the Written Submission on 3 December 2009. It must be noted that this is a
constructive dismissal case, hence the commencement of case by the
Claimant.

BRIEF FACTS
3.

The Claimant was employed by the Respondent Company on 16

January 1997 as a Corporate Planning Executive.

4.

The Claimant had initially applied for leaves from 7 June 2004 to

11 June 2004 (5 days) vide Leave Application Form dated 16 March 2004
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produced and marked in COB, page 1. This application for leave by the
Claimant was not approved by the Respondent and the reason given was
that it was MCM (Management Committee Meeting) time.

5.

Vide letter dated 17 May 2004 (page 4 of CLB), the Claimant was

transferred to the Finance and Sales Department as a Senior Executive. The


Claimant shall report directly to Puan Zurina binti Abdul Wahab, Acting Head
of Finance & Sales Department.

6.

The Claimant vide Leave Application Form (page 2 of COB) dated

24 May 2004 applied for leaves from 7 June 2004 to 11 June 2004 (5 days)
and reason given was holiday with family.

The Claimant's leave

application was rejected by Puan Zurina binti Abdul Wahab on 2 June 2004
for the following reasons:
No prior discussion with superior and a lot of work to catch upon as
no temporary clerks to replace existing clerks are hired yet.

7.

Vide memorandum (pages 3 and 4 of COB) dated 4 June 2004, the

Claimant forwarded an explanation for leaves taken from 7 11 June 2004


to the Senior General Manager, Corporate Service Division and letter was
copied to Puan Zurina.

8.

Vide show cause letter (page 5 of COB) dated 14 June 2004, Puan

Shahaida Abu Bakar, Acting Head of Compensation & Development Section,


Human Resources Management Department sent this letter to the Claimant
for an explanation on the misconduct below:
Disobeyed your superior's instruction by being absent from work on
7th, 8th, 9th, 10th and 11th June 2004 although your leave application
was disapproved by your superior, which is a major Misconduct under
Category II, Item No. 9, Employee Handbook PHN Industry Sdn Bhd

9.

The Claimant vide letter (pages 6-8 of COB) dated 17 June 2004

replied to the show cause letter.

The Respondent having received the

Claimant's explanation, found them to be unacceptable to answer the


alleged misconduct and thereafter issued a Notice of Domestic Inquiry
(page 10 of COB) on 23 June 2004 signed by Encik Lukman bin Ibrahim,
Senior General Manager, Corporate Services Division. The Domestic Inquiry
was held on 25 June 2004 at 3.00 p.m. Vide letter dated 2 July 2004, the
Claimant was informed of the decision of the Domestic Inquiry whereby the
Claimant was accorded a final warning.

10.

The Claimant vide letter (pages 23 and 24 of COB) dated 2 July 2004

tendered her resignation on grounds of constructive dismissal. The relevant


extract of the letter are as follows:

Kindly be informed that my above resignation is due to my


dissatisfaction on the treatment given by the Company towards me
which eventually left me with no other option but to claim for
constructive dismissal. As you are aware, I have served the Company
loyally with my fullest heart and soul for the past seven (7) years i.e.
at the Managing Director's Office and Finance & Sales Department at
recent.
I can no longer tolerate such 'victimization' and I have lost faith in
the Management. As a result I have to consider myself constructively
dismissed.

11.

The Respondent vide letter dated 5 July 2004 replied the Claimant's

letter and stated the following:


With reference to your letter dated 2nd July 2004 pertaining to the
above matter (claim for constructive dismissal), we hereby, deny your
allegation that the Management had constructively dismissed you
from the employment with the Company.
Hence, you are required to report for duty on 6th July before
10.00 a.m., failing which we shall consider that you are no longer
interested in the employment and shall deem that you have self
terminated your service with the Company.

THE CLAIMANT'S EVIDENCE


12.

The relevant evidence-in-chief of the Claimant as in CLWS-1 are

outlined as follows:
(i)

the Claimant applied for leaves for the period 7 June 2004 to
11 June 2004. The application for leave was refused;

(ii)

the Claimant resubmitted the leave application on 24 May


2004. The Claimant explained to Puan Zurina she had bought
the tickets to Surabaya at the Matta Fair. The dates of travel
bought at this discounted fare cannot be changed.

The

Claimant was accompanying her aged father and sister. The


Claimant asked Puan Zurina the status of her application on
31 May 2004. Puan Zurina said she will discuss it with the
Senior General Manager and informed the Claimant on 2 June
2004 that her leave was not approved. The Claimant found
out that Puan Zurina had not recommended her leave.

13.

Learned counsel for the Claimant submitted inter alia the following:
(i)

Puan Zurina was not produced as a witness. She would be


critical to rebut the factual version put forward by the Claimant
to verify whether the Claimant had the discussion with her,
whether Zurina had conveyed the concerns of the Company as
told by the Claimant, whether Zurina had assured the Claimant
she could proceed with leave and whether the Claimant was
misled by actions and conduct of Zurina into believing that
there were no problems with the leave application;

(ii)

the evidence of the Claimant remains unchallenged;

(iii)

the Claimant posed a question as to whether the Court can rely


on the second leave application, when there is the Claimant's
version that seeks to assert a different version of the events;

(iv)

did the Claimant act in a cavalier fashion showing utter


contempt for the rules and regulations of the Company;

(v)

the Respondent had by its conduct in show causing the


Claimant displayed an unremitting desire to punish her for
what it perceived to be a misconduct.

THE RESPONDENT'S CASE


14.

The Respondent's sole witness was Nor Azlinna binti Mohamed

(COW-1) to state that the two witnesses i.e. Zurina binti Abdul Wahab and
Shahaida binti Abu Bakar were served with Form O Summons to appear in
Court by Acknowledgement Receipt (AR) Registered Post on 5 October
2009 and 6 October 2009 respectively.

15.

Learned counsel for the Respondent submitted inter alia as follows:


(i)

from the pleadings, the issue appears to be absence without


leave and the warning issued by the Respondent as the result
of the findings of the Domestic Inquiry. The show cause letter
dated 14 June 2004 made reference to the fact that being

absence without leave was a major misconduct under Category


II, Employee Handhook. The Claimant was absent for 5 days
without prior leave or approval.
(ii)

the Claimant has failed to substantiate her allegations of


victimization.

There was

no demotion

or any

other

punishment of a severe nature imposed on the Claimant. The


Claimant was not paid for the days she did not attend work.
Hence, the Respondent has every right to discipline an
employee who disobey orders.

THE LAW ON CONSTRUCTIVE DISMISSAL


16.

The onus of proof is on the Claimant to prove that he was

constructively dismissed.

Once the Claimant had proved that he was

constructively dismissed, the onus of proof shifts to the Respondent to prove


that the dismissal was with just cause or excuse. The test for constructive
dismissal was whether the Respondent had breached a fundamental term of
the contract of employment which went to the root of the contract or had
evinced an intention not be bound by the contract.

17.

In Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd

[1988] 1 CLJ 45, the Supreme Court decided inter alia:

Thus it would be a dismissal if an employer is guilty of a breach


which goes to the root of the contract or if he has evinced an
intention no longer to be bound by it. In such situation the
employee is entitled to regard the contract as terminated and himself
as being dismissed.

The next question is this. Is the dismissal with a just cause or


excuse? Since the appellant has succeeded in showing that he was
dismissed, it is for the respondent company to show that the
dismissal was with a just cause or excuse.
[Emphasis added]

18.

The doctrine of constructive dismissal was succinctly explained in

the case of Western Excavating (E.C.C.) Ltd. v. Sharp [1978] 1 All E.R.
713 at page 717 where Lord Denning M.R. decided as follows:
If the employer is guilty of conduct which is a significant breach
going to the root of the contract of employment, or which shows that
the employer no longer intends to be bound by one or more of the
essential terms of the contract, then the employee is entitled to treat
himself as discharged from any further performance. If he does so,
then he terminates the contract by reason of the employer's conduct.
He is constructively dismissed.

ISSUE
19.

The question that arose now for the Court's determination is whether

the Claimant has established that the Respondent had breached a term of
the contract of employment or evinced an intention not to be bound by it.

EVALUATION AND FINDINGS


20.

The proper approach in deciding whether constructive dismissal has

taken place is for the Court to determine whether the conduct of the
employer was such that the employer was guilty of a breach going to the
root of the contract or whether the employer has evinced an intention no
longer to be bound by the contract.

This principle had been clearly

enunciated in the Court of Appeal case of Anwar Abdul Rahim v. Bayer


(M) Sdn Bhd [1998] 2 CLJ 197 at page 205.

21.

The burden of proving constructive dismissal is on the employee i.e.

the Claimant in this case.

It is settled law that where the employee's claim

for reinstatement is based on constructive dismissal the onus of proving


constructive dismissal lies on the employee. see Chua Yeow Cher v. Tele
Dynamics Sdn. Bhd. [2000] 1 MLJ 168.

Applying this principle to the

factual matrix and circumstances of this case, it is incumbent that the


Claimant must establish on a balance of probabilities that the Respondent's
conduct amounted to a fundamental breach that went to the root of her
employment contract.

22.

In Industrial Law, Seventh Edition, Butterworths 2000 by IT

Smith and Gareth Thomas at page 427 on Procedure at Tribunal Hearing:

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Each side has the right to call witnesses, give evidence,


cross-examine witnesses called by the other side and address the
tribunal at the conclusion. In unfair dismissal cases, the respondent
employer will usually present his case first, as he bears the burden of
proving that the dismissal was not unfair, if however the employer
disputes that there was ever a dismissal (e.g. in a
constructive dismissal case) it will be for the employee to
begin and argue that he was in fact dismissed.
[Emphasis added]

23.

What should the Claimant prove where, in a situation like the one in

the instant case, there is a final warning following a finding of guilt by a


domestic inquiry?

It is for the Claimant to prove that the Respondent's

conduct of final warning amounted to a breach of contract which entitled the


Claimant to treat himself as dismissed. see Gula Padang Terap Bhd v.
Mohd Yusoff Mahmood [2005] 1 ILR 602 at page 606.

24.

In cross-examination of the Claimant by learned counsel for the

Respondent, the following questions were asked:


Q:

You claimed for constructive dismissal, was it based on the fact


your leave was denied or was it because of the final warning
you were given after Domestic Inquiry?

A:

It is because of the leave not approved, the show cause and


the Domestic Inquiry (final warning). I have worked for about
7 years since 16 January 1997.

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Q:

You agreed you proceeded the 5 days leave (7.6.2004


11.6.2004) without approval?

A:

Yes.

Q:

Did you attend the domestic inquiry on 25 June 2004?

A:

I attended the domestic inquiry. The domestic inquiry found


me guilty for absent without leave for 5 days.

I agree

Company did not dismiss me but merely gave me a final


warning.
[Emphasis added]

25.

It was inter alia stated in the Claimant's letter of constructive

dismissal that I can no longer tolerate victimization and I have lost

faith in the Management.

As a result I have to consider myself

constructively dismissed. The recent mistreatment was when my annual


leave application was rejected with any reasonable explanation by my
immediate superior and Senior General Manager (SGM), Corporate Services
Division. Where in this case was the conduct on the part of the employer
which breaches an express or implied term of the contract of employment
going to the very root of the employment contract?

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26.

It was crystal clear that there was no demotion or any other form of

punishment of a severe nature imposed on the Claimant. According to the


Claimant as evidenced in the June 2004 salary slip (CL1), a total of
RM517.15 was deducted as 5 days NPL (No Pay Leave) at RM103.43 per day
for the days Claimant failed to attend work.

27.

The conduct of the Respondent in not approving the leaves of the

Claimant was not within the strict contract test, as enunciated in Wong
Chee Hong (supra). The conduct of the Respondent does not tantamount
to a breach of contract which entitled the Claimant to resign. The Claimant
in cross-examination agreed that the leave approval is at the management
discretion. The Claimant has also failed to substantiate her allegations of
victimization by the Respondent.

28.

On the totality of the evidence adduced and having regard to all the

written submission of both parties, it is the finding of this Court the


Respondent had not committed any act whatsoever to have breached a
fundamental term of the Claimant's term of employment which goes to the
root of the contract. On the balance of probabilities and having considered
the factual matrix and circumstances of the case, this Court finds that the
Claimant failed to prove that she was constructively dismissed by the
Respondent Company.

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CONCLUSION
29.

In conclusion, taking into account the totality of the evidence

adduced by both parties and bearing in mind section 30(5) of the Industrial
Relations Act 1967 to act according to equity, good conscience and the
substantial merits of the case without regard to technicalities and legal form,
this Court finds that the Claimant failed to prove that she was constructively
dismissed by the Respondent.

30.

Accordingly, the Claimant's case is hereby dismissed.

HANDED DOWN AND DATED THIS 15TH JANUARY 2010.

( EDDIE YEO SOON CHYE )


CHAIRMAN
INDUSTRIAL COURT MALAYSIA
KUALA LUMPUR

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