INDUSTRIAL COURT MALAYSIA CASE NO : 24/4-302/06 BETWEEN ENCIK ADAM BIN CHIK AND SILVERSTONE MARKETING SDN. BHD.

AWARD NO : 1485 OF 2009 BEFORE VENUE DATE OF REFERENCE DATES OF MENTION : : : : Y. A PUAN YAMUNA MENON CHAIRMAN ( Sitting Alone ) Industrial Court, Kuala Lumpur 16.01.2006. 06.03.2006, 12.06.2006, 11.10.2006, 09.02.2007, 24.04.2007, 16.07.2007, 18.02.2008, 19.03.2008, 02.09.2008. 10.04.2006, 10.07.2006, 14.11.2006, 28.02.2007, 17.05.2007, 27.07.2007, 26.10.2007, 18.04.2008, 25.05.2006, 08.09.2006, 30.01.2007, 02.03.2007, 14.06.2007, 04.09.2007, 26.02.2008, 26.05.2008,

DATE OF HEARING REPRESENTATION

: :

09.06.2008, 10.06.2008, 11.06.2008 Mr. Devan Mahalingam from Messrs Mallika & Lim representing the Claimant. Ms. Shamini from Messrs Shamini Manikam & Associates representing the Company.

REFERENCE

This is a reference made under Section 20(3) of the Industrial Relations Act, 1967 pertaining to the dismissal of Encik Adam bin Chik (the Claimant) by Silverstone Marketing Sdn. Bhd. (the Respondent).

AWARD
This is a claim of constructive dismissal. The Law on Constructive Dismissal

In Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Justice Gopal Sri Ram JCA aptly described Constructive Dismissal in the following passage: An employer does not like a workman. He does not want to dismiss him and face the consequences. He wants to ease the workman out of his organisation. He wants to make the process as painless as possible for himself. He usually employs the subtlest of means. He may, under the guise of exercising the management power of transfer, demote the workman. That is what happened in Wong Chee Hong [1988] 1 CLJ

298 (Rep), [1988] 1 CLJ 45. Alternatively, he may take steps to reduce the workman in rank by giving him fewer or less prestigious responsibilities than previously held. Generally speaking, he will make life so unbearable for the workman so as to drive the latter out of employment.

In the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988] 1 CLJ 45 at page 48 the Supreme Court of Malaysia (at that time) stated the basic principles pertaining to Constructive Dismissal as follows: The common law has always recognized the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligations if the employer is guilty of such breach as affects the foundation of the contract or if the employer has evinced or shown an intention not to be bound by it any longer.

In the case of Western Excavating (ECC) Ltd. v. Sharp [1978] IRLR 27 Lord Denning observed: 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 further performance. If he does so, then he terminates the contract by reason of the employers conduct. He is constructively dismissed.

In Woods v W.M. Car Services Ltd. (1981) ICR 666, Justice Brown Wilkinson stated the following:

In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textile Ltd. v. Andrew (1979) IRLR 84. To constitute a breach of this implied term it is not necessary to show that the employer intended any repudiation of the contract: the tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it; see British Aircraft Corporation Ltd v. Austin (1978) IRLR 347. The conduct of the parties has to be looked at as a whole and its cumulative impact assessed. Four conditions to be met in a constructive dismissal claim are: (1) There must be a breach of contract by employer. Breach of contract by an employer may involve breach of an expressed or implied term;

(2)

The breach of contract must be serious enough to warrant resignation of the employee or it must be the last incident in a series of events that led to the employee leaving his employment at that instance.

(3)

The reason for the employee to leave his employment must be solely due to the breach of contract by the employer and not for some unconnected reasons.

(4)

The employee did not delay in terminating the contract following the breach of contract by the employer. Otherwise, he may be considered as having affirmed the breach and agreed to alter the contract.

Background facts 1. The Claimant commenced employment with the Respondent Company (the Company) on 3/6/1996 as a Sales Executive, based in the Melaka Branch of the Company. 2. His employment contract provided that he was transferable. It provided:Depending on the contingencies of service and/or employment, you may be transferred to serve anywhere in Malaysia or outside Malaysia either within the Company or its related or subsidiary Companies or within any other companies associated with the Lion Group. (The Claimant had in fact been transferred before (twice), prior to the transfer order dated 10th May 2004 after which the Claimant claimed CD. He had been transferred from Melaka to Johor Bahru, and later from Johor Bahru to Shah Alam).

3.

By letter dated 26/10/99 the Claimant was upgraded from grade D1 to C3, Executive Group, and redesignated as Manager OE, Government & Fleet Accounts. The letter dated 26-10-99 stated: Other than the above, all your other terms and conditions of employment and services will remain unchanged for the time being in force.

Background to the Transfer 1. In 2004, by letter dated 10/5/2004 entitled Job Transfer, (See page 20 of Company's Bundle or COB) the Claimant was informed that he would

be transferred to Taiping as Manager, Sales Training, effective 17/5/04, on the same grade as his current grade at that time. i.e Grade C. The letter stated that he was to report on 17/5/2004 to the Senior HR manager (COW1) to discuss his new job functions. The Claimant was given short notice (7 days notice) of transfer as the letter of transfer was dated 10/5/04 but the effective date of the transfer was 17/5/04.

The said letter is reproduced:-

10 May 2004 En. Adam bin Chik Present En. Adam, JOB TRANSFER This serves to confirm that you will be redesignated as Manager-Sales Training within Grade C3 of the Executive Group with effect from 17 May 2004. You will report to Mr. Chew Kee Guan, Sr. Manager-Human Resource and/or such other persons as may be designated by him. You are required to report to him at 11 am on Monday, 17 May 2004 where you will receive separate communication with regards to your job functions. On behalf of the Company and the Management, we wish to express our gratitude for your past performance and support. We are confident that you share the need of the Company for continuous progress in order to provide the opportunities for your career development. Thank you and regards. Your sincerely, SILVERSTONE BERHAD CHEW KEE GUAN Senior Manager-Human Resource The Claimant testified that on 17/5/04 after he had reported in Taiping to COW1 and after discussions with him in which he (the Claimant) raised his grievances pertaining to the transfer, his lack of background or experience in sales training or suitability for the new job, he was served with another letter (also dated

10/5/04) concerning his transfer (page 19 of COB). This second letter stated that the effective date of transfer to Taiping was 14/6/04. Claimant testified: A : I would like to refer to COB page 20. The letter dated 10/5/04, the transfer takes effective on 17/5/04. After the discussion on 17/5/04 with Mr Chew and Mr. Tan Song Chye, then I received a letter referring to COB p 19 dated the same day i.e 10/5/04 and this had created suspicions with me.

2.

It is the Claimant's case that the transfer order of 10/5/04 was not a bona fide transfer but actuated by improper motive. He asserts in his letter of resignation dated 18-5-04 I believe that the transfer was aimed at securing my resignation from Silverstone Berhad and hence he is claiming CD The Claimant asserted that the transfer order of 10/5/04 was issued after the Executive Director of the Company became displeased with him over the loss of a major customer of the Company (Transnational), of which account he (the Claimant) was in charge.

3.

Three (3) days prior to the transfer order, there had been a Company Sales meeting in Taiping at which meeting the Executive Director was present. The Claimant, other sales employees, together with Heads of Department were present at this Company Sales Meeting of 7/5/04. 8

At the said meeting, the Claimant was singled out by the Executive Director as being responsible for the loss of Transnational. This fact

was acknowledged by Company Witness COW1, Senior Manager HR when he answered under cross-examination as follows:Q : I put it to you that Mr. Phang singled out the Claimant for the loss of the Transnational account? A : Yes.

The Claimant in his witness statement also testified that the Executive Director mentioned do something about him (meaning the Claimant). It is also the Claimant's testimony that the minutes of the said Sales Meeting (found in COB) do not fully reflect what transpired i.e in respect of the fact that he was singled out at the said meeting for the loss of the major customer. The Executive Director upon hearing that Transnational had been lost to a rival Company, blamed the Claimant who was in charge of the account for said loss of customer. The Claimant asserted that this was the cause of his sudden transfer to Taiping . He pointed out that this transfer, unlike his earlier 2 transfer orders, was made at short notice (7 days) and without any consultation. Furthermore the transfer and

redesignation as Manager Sales Training meant that he would no longer be earning sales commissions which meant that he would earn less.

Prior to the transfer order of May 2004 the Claimant was doing sales in Shah Alam and he had been earning sales commissions. In addition to

this he had no background experience or training for the new job. He asserted that this transfer was aimed at securing his resignation from the Company.

4.

According to the Claimant, the loss of Transnational was due to external factors and he should not have been blamed for it. He testified that the Transnational boss had informed him that Transnational had bought a substantial stake in another Company i.e Bridgestone Tyres. He was informed that in view of this, Transnational would be turning to Bridgestone for the supply of tyres rather than to the Respondent Company. According to the Claimant this was the real reason for the loss of Transnational as a customer.

The Court notes that what is material here is the fact that the Claimant is asserting that the loss of this major customer became an issue and the Executive Director was displeased with him concerning this matter and this was the cause of the transfer order at short notice after the said Sales Meeting.

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5.

The Claimant testified that he did not have the background or experience to be Manager Sales Training and hence he had requested the Company to consider this fact when he met COW1 on 17/5/04 but the Company refused to do so.

The Claimant's former General Manager, Sales & Marketing (CLW2) gave evidence that in his view, the Claimant was not suitable for the position of Sales Training for the following reasons:a) b) Having sales experience does not mean one can be a trainer. Sales training requires knowledge of all areas of the Company's sales. In this case the Claimant does not have any knowledge of export sales. c) Sales training requires a very broad scope and knowledge in all aspects of sales which includes but not limited to management, planning and strategizing. d) The Claimant needs to be trained in order to be a competent trainer.

In this respect, Company witness, COW1, was also questioned under crossexamination as follows:Q : Do you agree that the export department and the sports Department form Part of the Sales Managers? A Q : : Yes. Do you agree that the Claimant was never in those departments?

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A Q

: :

Agree. So I put it to you that you are effectively asking the Claimant to train people in departments he has no experience of?

Disagree.

And further, Q : Do you agree that he had absolutely no experience in conducting sales training? A : Agree.

Letter dated 18/5/04 The Claimant on 18/5/04 wrote a letter of resignation to the Senior Manager HR. In this letter he stated inter alia that the transfer to Taiping was aimed at securing his resignation.

The said letter is reproduced:Re: Notice of Resignation 1. I refer to your letter dated 10th May 2004 informing me of my unexected transfer to Taiping, Perak as the Manager (Sales training). The meeting at your good-office in the presence of Mr. Tan Song Shye on the 17th May 2004 also refers. After much thought and discussion with my family and in particular, having regard to several incidents/events that took place during my eight (8) years tenure of service with Silverstone Berhad, I hereby tender my resignation of service with effect from the date of this letter. As required in your letter of Employment, I am giving three (3) months written notice too.

2.

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3.

I am resigning because I am dissatisfied with the treatment accorded to me. Moreover, the manner in which I was transferred was uncalled for and humiliating. Amongst others, my main reasons for resigning are as follows:4.1. No prior notice No advance notice of the transfer was given or communicated to me. Hence, I had insufficient time to make the necessary preparation. In addition to having been caught by surprise, I was given an extremely short period to relocate to Taiping. 4.2 Unfair treatment The transfer would result in a reduction in income, as it would deprive me of potential sale commissions. The inconvenience and hardship caused to my loved ones and me. I believe that the transfer was aimed at securing my resignation from Silverstone Berhad.

4.

4.3

No due consideration was given to my reasons for objection to the transfer Despite my indicating that I did not have the background or experience for the proposed assignment. I was nevertheless still assigned. Not only is it unfair to me, I believe that the failure to give such due consideration was also unfair to Silverstone Berhad.

4.4

Hostile treatment For instance, in a meeting on 7th May 2004 (SIP meeting), I was unreasonably an unfairly singled out as the person responsible for the loss of a major customer.

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5.

In order to avoid further humiliation, stress and uncertainty, I hereby formally resign from Silverstone Berhad. Accordingly, I would also appreciate it if you could let me know the last day of my service.

Yours faithfully, Adam bin Chik Employee No. 3446

It is to be noted that among the reasons stated in his letter dated 18-5-04 are:a) I am resigning because I am dissatisfied with the treatment accorded to me. Moreover, the manner in which I was transferred

was uncalled for and humiliating. (Para 3 of his letter)

b)

No advance notice of the transfer was given or communicated to me. Hence, I had insufficient time to make the necessarily preparation. In addition to having been caught by surprise, I was given an extremely short period to relocate to Taiping. (Para 4.1 of letter)

c)

The transfer would result in a reduction in income, as it would deprive me of potential sale commissions. The inconvenience and hardship caused to my loved ones and me. I believe that the transfer was aimed at securing my resignation from Silverstone Berhad. (Para 4.2 of letter)

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d)

Despite my indicating that I did not have the background or experience for the proposed assignment. I was nevertheless still assigned. Not only is it unfair to me, I believe that the failure to give such due consideration was also unfair to Silverstone Berhad. (Para 4.3)

e)

For instance, in a meeting on 7th May 2004 (SIP meeting), I was unreasonably and unfairly singled out as the person responsible for the loss of a major customer. (Para 4.4)

f)

In order to avoid further humiliation, stress and uncertainty, I hereby formally resign from Silverstone Berhad. Accordingly, I would also appreciate it if you could let me know the last day of my service. (Para 5)

The Right To Transfer : The Legal Principles It is pertinent at this juncture to consider the legal principles pertaining to the transfer of employees. It is trite law that the right to transfer an employee within a Company is the prerogative of Company's management.

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The Court of Appeal in Ladang Holyrood v Ayasamy a/l Manikam & 16 Ors [2004] 3 MLJ 339 stated the basic principles as follows: It is well established in Industrial Law that the right to transfer an employee from one department to another or from one post of an establishment to another or from one branch to another or from one Company to another within the organisation is the prerogative of the management and the Industrial Court will ordinarily not interfere. But if the transfer is actuated with improper motive, it will attract the jurisdiction of the Court. The power to transfer is, therefore, subject to, according to Ghaiye's Misconduct in Employment (at pages 254 and 255), the following well recognised restrictions:

(a) (b)

there is nothing to the contrary in the terms of employment; the management has acted bona fide and in the interests of its business;

(c)

the management is not actuated by any indirect motive or any kind of mala fide;

(d)

the transfer is not made for the purpose of harassing and victimising the workmen; and

(e)

the transfer does not involve a change in the conditions of service.

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Halsbury, Laws of Malaysia Vol. 17 (Industrial Relations) MLJ 2005 para 290.127, at p141 states that: a bona fide transfer which would result in the employee receiving less or no commission would not constitute CD (see Chua Yeow Cher v Tele Dynamics Sdn. Bhd. [2000] 1 MLJ 168). Similarly a transfer to a new position effected without consultation would not amount to CD (See Funai Electric (M) Sdn. Bhd v. Saliah Ahmad [2000] 2 CLJ 655.

The High Court in Funai Electric (M) Sdn. Bhd v. Saliah Ahmad [2000] 2 CLJ p 655 (to be referred to as Funai Electric case), held that the Company had the prerogative to transfer the Claimant and this was reflected in the Claimant's letter of appointment and subsequent letters of promotion. Hence the need for the Company to consult her before effecting the transfer was superfluous.

The High Court ruled that the Industrial Court was wrong in deciding that the Company should have consulted the Claimant before transferring her. Furthermore the proper test to be applied in constructive dismissal cases (Funai Electric case was a CD case) is the contract test, and the question of the reasonableness of the employer's actions does not arise in such circumstances.

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The Claimant's Case Manner of Transfer 1. The Claimant asserted that this transfer was not a bona fide transfer but actuated by improper motive. several facts. To support this assertion he pointed to

He compared this transfer of 2004 with his 2 earlier

transfers. Unlike his 2 previous transfers, where there had been prior discussion or consultation, this time there was no such discussion or consultation. It was a sudden transfer. The transfer order was issued within days (3 days) of the Sales Meeting of 7/5/04 attended by Heads of Department at which meeting the issue of the loss of Transnational had cropped up.

2.

The Court notes that it is trite law, as stated earlier, that a Company is not bound to consult an employee before a transfer order is issued. In other words failure to consult the employee prior to a transfer by itself would not be sufficient ground to claim CD. However the Claimant's case here is that the transfer was not bona fide. He states inter alia that the manner in which I was transferred was uncalled for and humiliating. respect, the suddenness of the transfer order soon after the In this Sales

Meeting of 7/5/04 at which meeting he had been singled out as being responsible for the loss of Transnational, the lack of consultation (unlike

previous transfers) and short notice given, may all be looked at cumulatively in this CD claim. 18

Loss of Sales Commissions 1. The Claimant also pointed out that he would be earning less in the new place. He would not be able to earn sales commissions.

The law is clear however that the loss of sales commissions upon transfer by itself would not be a sufficient ground for CD. The pertinent point to consider in our case however is that the Claimant is asserting that the bona fide but aimed at a securing his resignation. transfer was not

In Chua Yeow Cher v Teledynamics Sdn. Bhd. 2000 1 MLJ 168, it was held that the loss of earning sales commission was not a valid reason to reject a transfer because the employer has the absolute discretion in transferring its employees, the exception being if the transfer was not bona fide. The High

Court observed that it was for the workman to adduce sufficient evidence on a balance of probabilities that his transfer was not bona fide. Azmel J stated:An employee has the power to transfer its employees at its absolute discretion. An employee can be transferred even though not on a

promotion. And the employee has no right to question the right of the employer unless, as has been stated above, the transfer was not bona fide. Sufficient evidence has to be adduced by the employee on a balance of probabilities that his transfer by the employer was not bona fide. 19

Position not filled The Claimant also pointed to the fact that the position of Manager Sales Training had not been filled since he left the Company. (This was acknowledged by COW1 Mr. Chew under cross-examination). The Claimant asserted that this shows that there had been no urgent need to transfer him there in the first place, as there had been no Manager Sales Training prior to his transfer and none since he left the Company. (The function of sales training had earlier been outsourced to consultants prior to his transfer). The Claimant pointed to these facts to show that his transfer was not a bona fide one.

The Company's Case 1. The Company asserted that it had plans to appoint a Sales Training Manager since 2003. In 2003, in its original Profit Improvement

Project towards Value Added Human Capital, prepared on 16 June 2003, it had set out as part of its objectives and action plans to appoint a Manager Sales Training to develop Sales Personnel.

In the meantime the function of Sales Training in Taiping had been outsourced to consultants. (See Witness Statement of COW1, COWS1, at Q and A 12).

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2.

COW1, the Senior Manager HR, testified that even before the meeting on 7th May 2004, the Claimant had been considered as a candidate. However this was never communicated to the Claimant until 10th May 2004. According to COW1, the Claimant was selected due to his ability to speak and motivate others well.

The Court however is not convinced of the truth of COW1's testimony. If what COW1 is saying is really true, this matter could easily have been earlier communicated to the Claimant. Why was the transfer order issued at such short notice on 10/5/04, 3 days after the Sales Meeting, notifying him that he has to report in Taiping to COW1 on 17/5/04? The irrefutable facts before this Court point to something else.

3.

COW1 conceded that the position of Manager Sales Training was not filled up after the Claimant left. He was quick to point out that this did not mean that the function did not exist. He testified that if existing personnel other than the Claimant do not measure up to sales

expectations

it is the Company's prerogative not to appoint them for the position and source it out to third party consultants. Again, COW1's evidence is not at all convincing. The Company seems to be saying that the Claimant was chosen because he was good and other sales personnel did not measure up. Then why was the transfer order issued in such a hurry?

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Furthermore the Claimant had no experience or background in sales training.

4.

It was also submitted that the Claimant had never referred to the alleged words by the Executive Director Do something about him. Statement of Case. In his

The Company submitted that these words were

neither mentioned in the Claimant's letter nor even pleaded by him, and hence it was an afterthought. The Court notes that the Claimant's letter dated 18/5/04 indeed does not specifically state these words. Neither is it pleaded in the Statement

of Case. Hence the specific reference to these words will be disregarded by this Court.

5.

As regards the Claimant's assertion that the transfer was sudden, the Company argued that the Claimant had been given one month's notice. According to the Company the transfer order was dated 10/5/04 but effective 14/6/04. However the Court notes that the letter dated 10-5-04 entitled Job Transfer was effective 17/5/04. The second letter at p19 of COB was only given after he had reported in Taiping on 17-5-04.

6.

The Claimant was asked to meet COW1 on 17/5/2004 for COW1 to explain about the duties of the new position. According to the Company

the Claimant rejected the transfer from the onset at that meeting, 22

because of the loss of sales commissions, as his main ground for the rejection of the transfer. (The Court notes however that these Reply

submissions are not consistent with para 11 of the Statement In

that the only matters raised by the Claimant during the meeting on 17/5/2004 were that he needed more time to go on the transfer to which he was given the assurance that the Company was prepared to accommodate his need for more time. The other matter raised was that he was concerned about the experience required for the position he was transferred to which the Claimant was also assured that he would be given sufficient assistance).

7.

According to COW1, pursuant to his meeting with the Claimant on 17/5/2004, he (COW1) sought to consult the management with view to obtain an additional monthly allowance in addition to the relocation reimbursement and the transfer allowance for the Claimant payable pursuant to the transfer. However this was not finalised.

It is to be noted that this is being asserted by the Company after the Claimant has claimed CD. In any case, even if this is true, it was uncertain whether COW1 could have convinced management in the first place. (Counsel for Claimant submitted that COW1's evidence that his suggestion to management to pay a temporary relief allowance of RM1,000.00 per month rings hollow when this, together with the 23

Claimant's job functions, suitability and agreement to the same was not discussed first (as previously done by the Company in the Claimant's two other transfers) before the issuance of the letter of transfer CL-6).

8.

As regards the loss of sales commissions, the Company referred to an earlier case in the Industrial Court i.e SILVERSTONE MARKETING SDN. BHD. v TAN EE TOH [2005] 776 1 ILR, a case involving the same Respondent Company and another Claimant. This was also a CD claim and it was dismissed by the Industrial Court. A perusal of the facts of that case however show that the facts of that case are very different from the facts of the present case.

The facts of that case On or about early August 1998, the Company informed the Claimant of the employer's plans to transfer him to the export department. The Claimant was advised by the employer that the Company also planned to given the Claimant to be the head of the export department in the future as the Company found him to be the most suitable candidate for the said position.

According to the Company a remuneration package of RM2,400 per month was drawn up for the Claimant on 5 August 1998 and the Claimant was informed of the said remuneration package and the Claimant was agreeable to the transfer.

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The Industrial Court in that case held inter alia: (1) The Company did not transfer the Claimant to another department with mala fide as it had indicated to the Claimant that he would be given better pay package.

The Industrial Court held if the employer's action of transferring the Claimant to another department was with mala fide, how could the employer indicate to the Claimant that he would be given better pay package, which was claimed by the Claimant as an inducement, otherwise the Claimant would have to tender his resignation.

(2)

The Claimant had delayed in forwarding his claim of the alleged breach i.e CD claim. He was transferred to the export department in August 1998. If there was a breach, the Claimant should have tendered his

resignation then and claimed constructive dismissal as early as September or October 1998. However, he did not do so. He waited until January

1999 to tender his resignation and claim constructive dismissal. Thus, he was deemed to have waived the breach and agreed to vary the employment contract.

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(3)

There were elements of condonation by the Claimant. If he was not happy with his transfer, he should have tendered his resignation forthwith. If he was not happy with his pay, he should have resigned forthwith also.

(4)

The Claimant's conduct, viewed as whole, allowed a conclusion that he chose to resign or abandon his employment with the employer.

(5)

The Company asserted that it did not face any problems from the Claimant at the material time. The employer was in fact pleased with the Claimant's performance and ability and considered him to have the potential of doing well in the export department and decided that the Claimant was the best candidate for the position of sales executive in the export department.

6.

As regards the reduction in sales commission the Industrial Court held: On the loss of commission, again in my considered opinion is not a breach. Commission is an incentive for those in sales, which has to be earned. Once an employee is not doing sales anymore, he is not entitled to commission at all. Since commission is not contractual, as in this case, the Claimant cannot rely on this ground to fortify his claim.

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The decision of the Industrial Court in the above case has been given in length, to show that although that case touched on the issue of loss of sales commissions, this was only one aspect of the case. There were many other facts in that case which are very different from ours, and on the totality of the facts of that case, the Industrial Court had rejected the CD claim.

Decision The Court has evaluated the totality of the evidence carefully on a balance of probabilities, applying the contract test and is satisfied that the Claimant has proven constructive dismissal. Looking at the totality of the facts cumulatively, it is clear that this was not a bona fide transfer, but rather the Claimant was being constructively dismissed. The Company has failed to prove that the

dismissal is with just cause and excuse. Hence the claim of CD is allowed.

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Remedy As regards the remedy, having carefully considered all the relevant factors this Court is of the view that reinstatement is not the appropriate remedy in this case. 1. Backwages : RM4,050 x 24 months 2. 10% deductions for post dismissal earnings RM97,200.00 RM 9,720.00 ---------------RM87,480.00 ----------------

3.

Compensation in lieu of reinstatement RM4050 x 8 TOTAL: The total sum to be paid is RM87,480 + RM32,400 = RM119,880.00 RM32,400.00

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The total sum of $119,880.00 less any statutory deductions is to be paid to the Claimant through his solicitors Messrs Mallika & Lim within 30 days from the date of service of this award.

HANDED DOWN AND DATED THIS DAY 28TH OF DISEMBER 2009

( YAMUNA MENON ) CHAIRMAN INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR

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