Professional Documents
Culture Documents
BETWEEN
PUAN ROSNI BINTI TARMIDI
AND
PHN INDUSTRY SDN. BHD.
AWARD NO. 65 OF 2010
BEFORE
CHAIRMAN
VENUE
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
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).
1
AWARD
BACKGROUND
1.
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.
BRIEF FACTS
3.
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
2
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
6.
24 May 2004 applied for leaves from 7 June 2004 to 11 June 2004 (5 days)
and reason given was holiday with family.
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.
8.
Vide show cause letter (page 5 of COB) dated 14 June 2004, Puan
9.
The Claimant vide letter (pages 6-8 of COB) dated 17 June 2004
10.
The Claimant vide letter (pages 23 and 24 of COB) dated 2 July 2004
11.
The Respondent vide letter dated 5 July 2004 replied the Claimant's
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
13.
Learned counsel for the Claimant submitted inter alia the following:
(i)
(ii)
(iii)
(iv)
(v)
(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.
There was
no demotion
or any
other
constructively dismissed.
17.
18.
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.
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.
21.
22.
10
23.
What should the Claimant prove where, in a situation like the one in
24.
A:
11
Q:
A:
Yes.
Q:
A:
I agree
25.
12
26.
It was crystal clear that there was no demotion or any other form of
27.
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
13
CONCLUSION
29.
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.
14