INDUSTRIAL COURT OF MALAYSIA CASE NO.

14/4-531/03 BETWEEN ENCIK NASARUDDIN BIN ABDUL A'ALA AND THE NEW STRAITS TIMES PRESS (M) BERHAD

AWARD NO : 124 OF 2013

Before : PUAN SOO AL LIN - CHAIRMAN (Award handed down by PUAN TAY LEE LY) : Industrial Court, Malaysia in Kuala Lumpur : 21.7.2003

Venue Date of Order of Reference

Date of Receipt of : 11.9.2003 Order of Reference Dates of Mention : 15.10.2003, 18.12.2003, 22.7.2004, 20.1.2005, 14.2.2005, 11.8.2005, 17.7.2006, 25.9.2006, 11.4.2007, 3.12.2007, 16.1.2008, 16.2.2011, 29.3.2011 and 18.5.2011 : 26.11.2007, 27.11.2007, 28.11.2007 and 31.3.2008

Dates of Hearing Dates of written submissions Representation

: 6.6.2009 (Company's) and 23.6.2009 (Claimant's) : Ms. Sonia Anirudhan of Messrs Haris & Co., learned counsel for the Claimant Dato' T. Thavalingam of Messrs Zaid Ibrahim & Co., learned counsel for the Company

Reference : This is a reference under subsection 20(3) of the Industrial Relations Act 1967 (IRA) arising out of the dismissal of Encik Nasaruddin bin Abdul A'ala (Claimant) on 11.2.2004 by The New Straits Times Press (M) Berhad (Company).

AWARD A. 1. Introduction The dispute in this case arose from alleged dismissal of Encik Nasaruddin bin

Abdul A'ala (Claimant) on 31.12.1998 by The New Straits Times Press (M) Berhad (Company). The dispute was referred to the Industrial Court (IC) by an order of the Honourable Minister of Human Resources under s 20(3) Industrial Relations Act 1967 (IRA) on 21.7.2003. 2. The hearing of this case was completed before the previous learned Chairman The previous learned Chairman was transferred to Legal

of IC on 31.3.2008.

Profession Qualifying Board, Malaysia on 16.11.2009. On 24.5.2011, the Honourable President of IC directed for the award to be handed down by me after both parties agreed for the award of this case to be handed down by another Chairman. It is to be noted that vide Award No. 1134 of 2006, the Court allowed the Claimant's application to amend his statement of case dated 17.12.2003 (SOC). Consequently, the Claimant filed his amended SOC on 17.8.2006 (ASOC) and the Company filed its amended statement in reply (ASIR) on 14.9.2006. The Award for this case was written based on the pleadings, witness statements, documents, notes of evidence recorded verbatim by the previous learned Chairman (NOE) and the written submissions of both parties. B. 3. Brief Facts Both parties did not dispute the Claimant's employment history with the

Company which can be summarised as follows: (a) the Claimant commenced employment with the Company on

14.12.1979 as Marketing Executive at a monthly salary of RM1080.00

vide letter dated 26.11.1979 [exhibit CO-1 of the Company's Statement

in Reply dated 26.1.2004 (SIR)];

(b)

he was confirmed in his appointment on 14.6.1980 vide letter dated 9.6.1980 (p. 5 CLB1; exhibit CO-3). His salary was revised in 1983 (p. 6 CLB1) and in 1986 (p. 7 CLB1; exhibit CO-5) to RM2,030.00 per month;

(c)

subsequently the Claimant held various positions in the Company, which included Marketing Executive in Circulation Department, Kuala Lumpur, Assistant Area Manager in Central 1, Sales Manager and Circulation Manager in East Coast;

(d)

from 11.6.1991 (p. 10 CLB1) his salary was revised and increased on several occasions and from 1.1.1998, his salary was revised to RM4,731 (exhibit CO-15);

(e)

from 16.2.1998,

the Claimant was re-designated as Circulation

Manager, Region 2 (RCM) vide letter dated 21.5.1998 (p. 19 CLB1; exhibit CO-16) with the same salary and terms of employment; (f)

vide letter dated 31.12.1998 (exhibit CO-27; p. 36-37 CLB1) (CD

Letter), the Claimant alleged that he had been constructively dismissed by the Company with immediate effect; and

(g)

vide letter dated 6.1.1999 (exhibit CO-25), the Company responded to

the Claimant's CD Letter.

4.

The relevant portion of the Claimant's CD Letter reads as follows: RE: Your Letter dated 21st December 1998
(i) (ii)

I wish to have placed on record the following matters: on 24th November 1998, I was relieved of all my duties as Circulation Manager, Region 2 with immediate effect; on 26th November 1998, the Assistant General Manager, Circulation Sales & Administration was informed that I was, with immediate effect, relieved of all sale functions and responsibilities in Region 2 until further notice.

(iii)

on 27th November 1998, my subordinates were informed that the duties of which I had been relieved as aforesaid were to be undertaken by the Senior General Manager, Circulation.

The above measures were taken without any prior notice to me, nor was I then informed directly of the same nor of the reasons therefore. At the material time, I was also not informed of any alleged dereliction of duties on my part. By memo dated 28th November, 1998, the Senior General Manager, Circulation had in no uncertain terms alleged that I had discharged my duties and responsibilities in an irresponsible manner and required me to explain why disciplinary action ought not to be taken against me. I was also directed to explain the nine matters enumerated in the said memo. I had, vide my letter dated 7th December, 1998, endeavoured to render my explanation on the nine matters raised in the aforesaid memo. I had also made known my disgruntlement with regard to the abovementioned measures taken against me. I had also alluded to several other measures taken, all of which had the effect of undermining my position and authority as Circulation Manager, Region 2. To my utter dismay, you have by your letter under reply roundly condemned the content of my abovementioned letter as a flagrant act of insubordination. In this regard. I categorically refute the suggestion that the words reproduced in items 1-5 of your said letter were in any way insolent and impertinent and undermined the orderly system of conduct and discipline in the Circulation Department. I am also unable to share your view that the matters listed in items A-E-of your said letter evidenced that I had defied the authority of my superior. I must also deny that my actions have been inconsistent with the fundamental position of the relationship of employer-employee. My letter was no more than an attempt to render the explanations sought of me and to register my protest at the most inequitable treatment to which I had been subjected to. I have since taken legal advice on the matters aforesaid and now write to say that the matters aforesaid leave me little choice but to regard myself as having been constructively dismissed from the position of Circulation Manager, Region 2. I shall now leave this matter in the hands of my solicitors..

C. 5.

Claimant's Version The Claimant's learned counsel submitted at p. 3 of the written submission

that the Claimant's claim is for constructive dismissal on 31.12.1998 and is based on the following Company's conduct: (a) on 24.11.1998, without prior notice, warning and/or knowledge of the Claimant, Wan Razif Wan Musa (COW2) communicated to the 4

Claimant's superior at that time, i.e., the Assistant General Manager, Circulation Sales and Administration (AGM), that the Claimant was relieved of all duties with immediate effect (paragraph 29 ASOC); (b) on 26.11.1998, without prior notice, warning and/or Claimant's knowledge, COW2 vide memo dated 26.11.1998 (exhibit CL-14) addressed to the Company's AGM and Senior Manager, Circulations Operation & Non Traditional Channels (SMCO&NTC) at that time, formally informed that the Claimant was relieved of all sales functions and responsibilities in Region 2 with immediate effect and until further notice, and in the interim, COW2 would oversee all sale functions and responsibilities of the respective branch office under Region 2 (paragraph 30 ASOC); (c) on 27.11.1998, COW2 vide memo dated 27.11.1998 (exhibit CL-15) to the Claimant's subordinates (namely one Ms Wendy Wee of Melaka branch, Encik Asim Mohamad of Seremban branch, Mr. Johnny Wong of Petaling Jaya branch and Tuan Hj Zainal of Klang branch), copied to the Claimant, AGM and Assistant Circulation Manager, Marketing & Promotion at that time, informed that COW2 would directly oversee all sale functions and responsibilities of Claimant's respective branches (paragraph 31 ASOC); (d) on 28.11.1998, COW2 vide memo dated 28.11.1998 (exhibit CL-16) to the Claimant, accused the Claimant in uncertain terms of making erratic and irresponsible decisions in respect of daily print order which affected respective branch offices sales and the decline in sales, which allegedly had impacted the Company. The Claimant was required to explain why disciplinary proceedings should not be taken against him for the alleged irresponsible manner in which the Claimant had discharged his duties and responsibilities under the operational lines stated in the memo (paragraph 32 ASOC);

(e)

on 7.12.1998, the Claimant gave an explanation to the Company's show cause notice dated 28.11.1998. Besides that, the Claimant also expressed his regret or disgruntlement of certain events specified in his letter (paragraphs 33 and 34 ASOC);

(f)

on 21.11.1998, the Company without and/or failing to address the explanation given by the Claimant to the show cause notice, issued a further show cause letter alleging insubordination against COW2 (paragraph 35 ASOC); and

(g)

on 31.12.1998, the Claimant submitted his explanation to the Company's show cause letter dated 21.12.1998 to one Encik Abdul Wahab (COW1) and treated himself as having been constructively dismissed by the Company (paragraph 38 ASOC).

D. 6.

Company's Version The Company refuted the Claimant's allegation that the Claimant had been The Company deemed the Claimant's conduct as a

constructively dismissed.

resignation. The Company in its ASIR averred inter alia as follows: (a) the Claimant was only relieved of sale functions and responsibilities in Region 2 temporarily. He however was still in charge of operational administrative matters at the respective branch offices in Region 2. At that material time, the Company was investigating certain matters in respect of print order (paragraph 16 ASIR); (b) the Claimant was issued a memorandum dated 28.11.1998 requiring him to explain why disciplinary action should not be taken against him for the irresponsible manner in which he had discharged his duties and responsibilities. The details of the issues that the Company required his immediate response were highlighted to him together with the relevant appendices in the said memo in compliance with the rules of natural justice and procedural fairness. The memorandum issued to 6

the Claimant was pursuant to the investigation carried out by the Company in respect of the manner in which the Claimant had managed "Print Order" (paragraph 18 ASIR); (c) the Claimant made a number of unsubstantiated allegations against his superior. The Claimant further went to criticise his superior (paragraph 19 ASIR); (d) upon receipt of the Claimant's letter dated 7.12.1998, the Company had no choice but to issue the Claimant with a show cause letter dated 21.12.1998 in respect of the Claimant's insubordination (paragraph 20 ASIR). The Claimant was required to explain in writing on or before 28.12.1998 but had requested for an extension until 7.1.1999. The Company had granted until 31.12.1998 for the Claimant to respond to the show cause; (e) the Claimant did not provide any explanation to the allegations of his insubordination but instead provided a bare denial (paragraph 23 ASIR); (f) the Company had responded immediately to Claimant's letter dated 31.12.1998 vide letter dated 6.1.1999 (exhibit CO-25) refuting the allegations that the Claimant had been constructively dismissed; (g)

vide letter dated 25.3.1999, the Company wrote to the Claimant in

respect of the monies due from the Claimant to the Company (exhibit CO-26);

(h)

vide letter dated 27.5.1998 (exhibit CO-27), the Company wrote to

Claimant requesting for return of Company's property that was still in Claimant's possession;

(i)

the Company had not breached any term and condition of the Claimant's employment entitling the Claimant to claim constructive dismissal; and

(j)

the Claimant's claim is misconceived, premature and based on mere suspicion.

E. 7.

The Law The term "constructive dismissal" has been clearly explained in the English

Court of Appeal (CA) case of Western Excavating (E.C.C) Ltd v Sharp [1978] 1 I.C.R. 221 (Western Excavating) where Lord Denning M.R. held that the correct test to apply was the contractual test. stated the contractual test 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. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains, for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."

Further, at pg 226, his Lordship

(emphasis added). 8. In Malaysia, the law relating to constructive dismissal has been set out by the

Supreme Court (SC) in the case of Wong Chee Hong v Cathay Organisation

(M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 (Wong Chee Hong). In Wong Chee Hong, YAA Tun Salleh Abas LP applied the principle in Western Excavating and
held 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. It was an attempt to enlarge the right of the employee of unilateral termination of his contract beyond the perimeter of the common law by an unreasonable conduct of his employer that the expression constructive dismissal was used ..

9.

In Anwar Abdul Rahim v Bayer (M) Sdn Bhd. [1998] 2 CLJ 197, Mahadev

Shanker J. (as his Lordship then was) held as follows:

It has been repeatedly held by our courts that the proper approach in

deciding whether constructive dismissal has taken place is not to ask oneself whether the employer's conduct was unfair or unreasonable (the unreasonableness test) but 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 he has evinced an intention no longer to be bound by the contract" .

(emphasis added). F. 10. Evaluation and Findings The issues to be determined by this Court is firstly, whether the Claimant had

been constructively dismissed by the Company. If the answer is in the affirmative, then the next issue is whether the dismissal was with just cause or excuse. Whether Claimant was constructively dismissed by Company? 11. In Cycle & Carriage (M) Sdn. Bhd. v Choong Nyuk Kiong [2006] 1 ILR

192, the IC stated clearly the law on constructive dismissal in a nutshell as follows:
"The doctrine of "constructive dismissal" is one which is firmly established in our Industrial Law. The burden of proof is on the workman and to prove that he had been constructively dismissed, he will have to establish the following:

(i) (ii)

there must be a breach of contract by the employer; the breach must be sufficiently important or fundamental to justify the employee resigning;

(iii) (iv)

the employee must leave in response to the breach and not for some other unconnected reason; and the employee must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract ...".

(see also Rasila Hamzah v UMW Corporation Sdn. Bhd. [Award No. 1141 of 2010]; Secure Guards Sdn. Bhd. v Her Bhajan Kaur [1996] 2 ILR 1342; and

Sarama bt Abdullah v Penang Heritage Trust [Award No. 582 of 2008]).

12. Once all the above pre-requisites for constructive dismissal have been

established by the claimant in reference to a dismissal under s. 20 IRA, the court then moves to the next stage of its inquiry, namely, to determine whether the company had just cause or excuse for that dismissal. Here, the evidential burden shifts to the employer to justify the employee's dismissal [see Raus Sharif J's (as his Lordship then was) judgment in Pelangi Enterprises Sdn. Bhd. v Oh Swee

Choo & Anor [2004] 6 CLJ 157, at 166]. Sdn. Bhd. & Anor [1998] 3 CLJ 475].
13.

If the above pre-requisites are not

established, then the claimant's claim must fail (see Moo Ng v Kiwi Products

It is trite law that in cases involving constructive dismissal, the burden is on

the claimant to prove that he was constructively dismissed ( see e.g.: Weltex

Knitwear Industries Sdn. Bhd. v Law Kar Toy [1998] 1 LNS 258 and Chua Yeow Cher v Tel Dynamic Sdn. Bhd. [1999] 1 LNS 104). In the present case,
learned counsel for the Claimant submitted that the series of Company's conduct as stated in the Claimant's CD Letter amounted to a breach or breaches of implied term of mutual trust and confidence. learned counsel relied on the In support of this submission, the Claimant's case of

Woods v W.M Car Services

(Peterborough) Ltd. [1980] ICR 666 wherein Browne-Wilkinson J. (as his Lordship
then was) (at p. 670) stated as follows:
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: Courtlaulds Northern Textiles Ltd v. Andrews (1979) l.R.L.R. 84. To constitute a breach of this implied term it

10

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 can not be expected to put up with it.

(emphasis added).

14.

In the case of Lewis v Motorworld Garages Ltd [1986] I.C.R 157

(Lewis), the English CA stated as follows:

It is now well established that the repudiatory conduct may consist of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of the contract of employment that the employer will not without reasonable and proper cause conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee..

15.

The Claimant's learned counsel further submitted that the principle in Woods

(supra) has been cited and accepted by our High Court (HC) in the case of Ngan

Lai Wan v ABB Industry & Offshore Sdn. Bhd. [1996] LNS 347 (Ngan Lai Wan).
In Quah Swee Khoon v Sime Darby Bhd [2001] 1 CLJ 9, the CA applied Wong Chee Hong and referred to the observation of Browne-Wilkinson J in

Woods. Further, the CA at p.21 stated as follows :

Constructive dismissal can take place, as we have attempted to demonstrate, in a number of cases. Since human ingenuity is boundless, the categories in which constructive dismissal can occur are not closed. Accordingly, a single act or a series of acts may, according to the particular and peculiar circumstances of the given case, amount to a constructive dismissal. ....

Turning once again to the pleadings, it is abundantly clear that the appellant was complaining that he had been driven out of employment whereas the respondent was contending that the former had left of his own volition. Whether one would describe the conduct complained of as amounting to constructive dismissal or the breach of the implied term governing mutual trust and confidence is really a matter of semantics. Nothing turns upon it. At the end of the day, the question simply is whether the appellant was driven out of employment or left it voluntarily ."

(emphasis added).

11

16.

This Court will now assess and consider the evidence adduced by both parties

regarding the allegations made by the Claimant to determine whether the Company's action or conduct, individually or as a whole, amounted to any breach of a fundamental term of the Claimant's contract of employment or breach of an implied term of mutual trust and confidence. 17. The Claimant vide Witness Statement (CLW1-WS) testified inter alia that he

worked with the Company for 19 years. His duty as Circulation Manager of Region 2 (which covered 3 states, i.e. Singapore, Negeri Sembilan and Malacca) was, among others, as follows: (a) total responsibility for the whole region (including to plan, manage and control all activities relating to sales, marketing, administration, finance and branch offices operations and to liaise with mail room on packaging and delivery); (b) sales (including management of print order, especially in relation to control and accountability of unsold, promotional copies and etc.); (c) marketing, which included formulating plans and strategies to promote sales growth; (d) administration (including planning, monitoring and reviewing all administrative and support services with the view to attain maximum efficiency and productivity of all staff); (e) branch office operation, which included planning, monitoring and reviewing all work by personnel at various branch offices; and (f) 18. liaison with mail room.

The Claimant testified further inter alia that -

12

(a)

the Company was facing financial difficulties in 1998 (p. 20 and 38 CLB1). The Company had to restructure its financial cash flow when the Company failed to sell its assets to Renong Group of Companies. In July 1998, the Company decided to conduct cost cutting measures by cutting all the staff's overtime and outstation allowances;

(b)

the Company tried to obtain his consent on the withdrawal and suspension of Company's contribution to the employees' Retirement Benefit Scheme (RBS) vide letter dated 25.6.1998 (p. 20 CLB1). The Claimant replied that he disagreed with the suspension of RBS;

(c)

in October 1998 at the Management Committee Meeting (MCM), COW2 informed the staff members of the Circulation department where the Claimant was the Circulation Manager of Region 2, that the Company decided on a 10% reduction in salary and withdrawal of Company's contribution to RBS;

(d)

sales of Company's newspapers as a whole rose for the first few days of Anwar Ibrahim's (AI) scandal before it decline. This was due to the publication of reports on AI's scandal being biased towards the government. It was also the Claimant's averment that the sales of the Company's newspapers in general were not satisfactory prior to and after AI's scandal due to factors not attributed to the Claimant;

(e)

the Claimant was of the view that religion and politics should be kept separate and he made his view (that it was wrong for AI to use Islam to gain mileage in politics) known openly during his friendly conversation with his colleagues, one of whom was a close liaison of COW2. As result of the sensitivity of the political situation in the Company, his view was resented by Faiz and COW2, and this had caused further strain in their relationship with him. According to the Claimant, COW2 refused to see him whenever the Claimant approached COW2 at his office; and 13

(f)

since 24.11.1998, the Company's intention became evident that the Company intended to dismiss him by plotting and scheming against him. The circumstances forced him to leave on 31.12.1998. He explained the events that led to his dismissal were (i) on 24.11.1998 Encik Saidy Ridzuan bin Abu Hasan who was the AGM at that time (CLW2), informed him that COW2 communicated to CLW2 that the Claimant was relieved of all duties with immediate effect; (ii) COW2 informed CLW2 and SMCO&NTC vide memo dated 26.11.1998 (exhibit CL-14), that the Claimant was relieved of all sale functions and responsibilities in Region 2 with immediate effect without informing him; (iii) COW2 vide memo dated 27.11.1998 (exhibit CL-15) to his subordinates and copied the memo to him, CLW2 and Assistant Circulation Manager, Marketing & Promotion at that time, informed that COW2 would directly oversee all sale functions and responsibilities of Claimant's respective branches; (iv) on 27.11.1998 at 10 am, COW2 conducted a meeting with his subordinates from Petaling Jaya and Klang office without the Claimant's presence; (v) COW2 vide memo dated 28.11.1998 (exhibit CL-16) to the Claimant accused him of making erratic and irresponsible decisions on the daily print order which affected the respective branch offices sales and caused a decline in sales; (vi) the Claimant rendered his explanation vide letter dated

7.12.1998 (exhibit CL-17);

14

(vii)

on 21.12.1998 the Company issued a further show cause letter (exhibit CL-18) alleging insubordination against COW2 by the use of language in the letter dated 7.11.1998;

(viii)

on 28.12.1998, the Claimant requested for an extension of time to explain until 31.12.1998 (exhibit CL-20); and

(ix)

vide letter dated 31.12.1998 (exhibit CL-21), the Claimant

explained to the Company's show cause letter and further stated that he treated himself as having been constructively dismissed by the Company.

19.

Based on the Claimant's evidence and submission, the allegations of the

Claimant against the Company's conduct could be summarised as follows: (a) Company's act of relieving Claimant's from his duties as Circulation Manager, Region 2 (Allegation 1); (b) Company's act of accusing that the Claimant had discharged his duties and responsibilities in an irresponsible manner (Allegation 2); (c) Company's act of alleging Claimant's insubordination against COW2 based on his letter dated 7.12.1998 (Allegation 3); and (d) whether Company's other conduct amounted to any victimisation of Claimant? (Allegation 4). Allegation 1 20. As regards Allegation 1, the Claimant testified that On 24.11.1998 Saidy When cross-examined by the Company's

informed me that Wan Razif communicated to Saidy that I was relieved of all duties with immediate effect. learned counsel, the Claimant however testified as follows: 15

 Q:
A:

Where is the proof? Is there anything in black and white? I was informed by my immediate superior, Encik Saidy. nothing in black and white. When? On 24.11.1998.

Yes

Q: A: Q: A:

Did you write to the management about this issue then, on 24.11.1998? No.

(emphasis added). 21. The Claimant also testified in his evidence in chief that On 26.11.1998,

Wan Razif sent a memo to the Company's AGM and Senior Manager, Circulation Operations & Non Traditional Channels (NTC) informing that I was relieved of all sale functions and responsibilities in Region 2 with immediate effect without informing me.. He further testified that he felt saddened, disappointed, stressed
and confused as he felt that he was punished without prior warning and justification when he saw the memo. 22. The Court observed that paragraph 2 of COW2's memo dated 26.11.1998

(p.22 CLB-1) however stated as follows:

Please be informed of the following changes in the Circulation Department. 1. 2. The Marketing and Promotion Unit shall now report directly to the SGM, Circulation. The Circulation Manager, Region 2 - En. Nasaruddin A'ala shall be relieved of all sales functions and responsibilities in Region 2 until further notice. However, all operational administrative matters at the respective branch offices in Region 2 shall continue to remain under his responsibility..

23.

Under cross-examination, the Claimant admitted that his testimony

contradicted COW2's memo that he was relieved of all duties. 24. As regards COW2's memo dated 27.11.1998 (p. 23 CLB1), the memo stated

inter alia as follows:

16

 Further to my memo dated 26 November 1998, I shall directly oversee all sales functions and responsibilities at your respective branches until further notice.

With regards to the pre-plan order management, you are to liaise with Miss Navanila, Asst. Circulation Manager, Marketing & Promotion, who will compile, monitor and approve all orders in your areas on my behalf for the time being. For your action, the print order for the next 3 weeks should not be cut below the order of November 15 to 21, 1998. Re-distribute the supplies to ensure availability in the market. These changes shall take effect immediately..

25.

The Claimant testified during examination in chief with regard to paragraph 2

of the above memo that the pre-plan order management was his core function and taking away that function would leave him redundant. The Court finds that under cross-examination, the Claimant however (a) (b) agreed that he was only temporarily relieved until further notice; testified that he still continued to monitor all sales from the Branch offices; and (c) agreed that he continued to look after all operational administrative matters at Region 2's branches. 26. Besides the above, CLW2 testified in his evidence in chief that the Claimant

told him that he was quitting because he could no longer function as RCM effectively after COW2 pulled back almost all his functions. CLW2 when questioned by the Company's learned counsel (with reference to Claimant's allegations as stated in items (i), (ii) and (iii) CD Letter wherein the Claimant alleged that on 24.11.1998, he was told by CLW2 that he was relieved of all his duties), said as follows:
A: I was called by Wan Razif on 24.11.1998. Memo dated 26.11.1998. The story I was made aware of on 24.11.1998 Wan Razif told me that he would be pulling away the sales functions from the Claimant consistent with what he wrote in the memo on 26.11.1998.

17

Q:

Now the Claimant blames you because in his letter on p.36 he said he was relieved of all his duties item (i). When I asked the Claimant whats the proof nothing in black and white, he said no proof but I was informed by Saidy on 24.11.1998 now you gave a different story, who is telling the truth? I told Claimant on same day ie. 24.11.1998 what Wan Razif told me that he would be pulling away the sales functions from the Claimant thats all I said. Look at CLB-1 p.36, item (i). You said as above. Compared with item (i) do you agree what you said and what Claimant said here is not the same, does not tally? Yes, it doesnt tally.

A:

Q:

A:

(emphasis added).

27.

What CLW2 has testified was consistent with what COW2 had said, i.e., that

the Claimant was relieved of the sale functions and responsibilities for Region 2 temporary pending investigation in respect of print order management under Region 2. The Court finds that the Company did not breach any of the Claimant's term of employment contract which goes to the root of his contract or has evinced an intention of no longer to be bound by the employment contract. Allegation 2 28. Concerning Allegation 2, the Claimant alleged that the Company had

accused him of making erratic and irresponsible decisions on the daily print order. He further testified inter alia that (a) sales trends were consistent with any other week or month, but the sale fluctuation varies depending on news outbreak; (b) from the memo dated 28.11.1998 (p. 25-27 CLB1), he could not tell that his actions had caused significant decline in the sales. Hence, the Claimant contended that the Company did not show any proof that the decline in sales was caused by him;

18

(c)

his decision to reduce the print order would not have caused sold out/black outs; and

(d)

he felt disappointed, saddened, stressed and confused when he received the memo because the memo was uncalled for and his integrity had been questioned.

29.

When cross-examined by the Company's learned counsel, the Claimant

however testified as follows:

Q: CLB 1 p.24 25 (with appendixes goes up to p.29 memo dated 28.11.1998 and appendixes). Do you agree with me that this is a memo sent by Wan Razif to you asking you to explain your conduct 9 issues raised by Wan Razif and he wanted your written response to the same by 7.12.1998, correct? Yes I agree. He also enclosed supporting documents to make things easy for you, you agree? Yes. Do you agree that there were some issues on the print order which relate to sales thats why Wan Razif wrote to you? Yes I agree there were some issues on print order and sales. Thats why Wan Razif wrote to me on p.24.

A: Q: A: Q: A:

(emphasis added). 30. The Claimant's testimony under cross-examination was consistent with what

COW2 had testified, which inter alia was as follows: (a) (b) sales in October 1998 started to dwindle; COW2 joined Circulation department since 1983 and rose to head the department in 1998. Throughout his stint in the Company, COW2 was in Circulation department. COW2 found that that there were some irregularities in the manner on how the print order in the branches under the Claimant in Region 2 was conducted;

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(c)

COW2 had written to the Claimant (p. 24-29 CLB1) and the Claimant did not revert to say that he needed more time or information to respond to his queries; and

(d)

the show cause letter was only issued for Region 2 because of the print order management. Other regions did not have the kind of erratic print order management.

31.

The Court finds that the Claimant had not proven on a balance of

probabilities that Allegation 2 amounted to a breach of a fundamental term of his contract of employment or breach of implied term of mutual trust and confidence. Allegation 3 32. Learned counsel for the Claimant argued the show cause letter dated

21.12.1998 (p. 32 CLB1) was a sure sign of getting rid of the Claimant because the Claimant was aware of term no. 21 of the Terms and Conditions of employment (p. 66 CLB2). This term stated that insubordination was one of the causes for summary dismissal. The show cause letter dated 21.12.1998 referred to Claimant's reply dated 7.12.1998 (p. 30-31 CLB1) to COW2's memo dated 28.11.1998. In the show cause letter, the Company referred to the words used by the Claimant in his reply letter dated 7.12.1998. The relevant portion of the reply letter reads as follows:
RE: PRINT ORDER MANAGERMENT IN BRANCH OFFICES. I have received your memorandum dated 28.11.1998 and was shocked and surprised over your accusation against me of being erratic and making irresponsible decisions on the above matter. I strongly disagree with your accusation as it is insufficient basis. I feel that you have victimised me base on the followings: A. B. On 24 11 1998 you had instructed through your AGM to relieve all my duties with immediate effect. On 26.11.1998, you wrote to AGM and clearly mention that The CM Region 2 shall be relieved of all sales functions and responsibilities until further notice.

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C. D. E. F. G.

On 27.11.1998, you wrote to my subordinates on the same issue. At 10.00 am on 27.11.1998, you had conducted a meeting with my subordinates from PJ and Klang Offices without my presence. You continue to instruct my subordinates on many matters until to date. It has reached to my knowledge that you had accused me of sabotage. On 4th Dec. 1998 at 11.00 am you have threatened to suspend my subordinates Dzul and Amirul of Petaling Jaya Office.

To comply to your instruction, my reply to the nine accusations are as follows: 1. 2. 3. 4. 5. 6. 7. 8. 9. Finally, I feel that your action in this issue is uncall for and you only follow your wishful thinking and regret to note that some of the figures in your appendix were wrong. As the Senior General Manager of the department, of late you never call us for meetings or discussions. Please take note that, the action you had taken had caused hardship and undue pressure on my life and I feel that you simply want to victimize me and I do not know the reasons. I humbly hope you will come back to your sense and lets work together for the interest of the company..

33.

As regards the words used by the Claimant in his reply letter, it is to be noted

that under cross-examination, the Claimant (a) agreed that the allegations made by him against COW2 in his letter, as shown in item G (... you have threatened to suspend my subordinates

); in item F (..You have accused me of sabotage ); below item 9,

which stated you only follow your wishful thinking and ...you simply

want to victimize me, were serious allegations;

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(b)

agreed that the words he used in the last line of his letter, i.e., I

humbly hope you will come back to your sense is not a

complimentary statement; (c) admitted that he knew of the consequences the allegations he made against COW2. Despite such allegations by the Claimant, the Company did not sack him but gave him a chance to be heard; (d) testified that the Company accused him of insubordination on 21.12.1998 and he wrote to the Company to say that he needed time to write a comprehensive reply (p. 34 CLB1). The Claimant also testified that the Company agreed to give him time at p. 35 CLB1. When cross-examined by the Company's learned counsel whether he provided a comprehensive reply the Claimant initially testified that he did. However when asked further by the Company's learned counsel regarding the reply, the Claimant answered as follows:
Q: A: Q: Where is it? Your comprehensive reply on the issue of insubordination? I think I didnt provide a comprehensive reply. I put it to you that you had no explanation and thus took a short cut to claim constructive dismissal on 31.12.1998 (ie. p.36 see last para. To my utter dismay, (up to p.37), agree or disagree? I disagree with the word short-cut. I did refer this issue to my lawyer. Are you saying your lawyer told you to claim constructive dismissal? Yes.

A: Q: A:

(emphasis added).

34.

Based on the foregoing, it is clear that the Claimant has failed to prove on a

balance of probabilities that Allegation 3 amounted to any breach of any fundamental term of the Claimant's employment contract or breach of implied term of mutual trust and confidence.

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Allegation 4 35. The Claimant in his evidence in chief as well as in the written submission also

raised concerning Company's financial position as one of the grounds for his claim of constructive dismissal against the Company. The Court noted that when he was cross-examined, he testified as follows:
Q: A: Q: A: Q: A: Q: A: CLB 1 p.20 : This cost cutting measure, you agree with me that this cost cutting measure letter was sent to all staff in NST not only you? Yes, to all staff. So you agree you were not singled out? Yes. And you agree with me that cost cutting was never imposed on you from June to December 1998 when you walked out, they never cut your salary? I agree. So the 10% reduction in salary was never implemented? Yes, never.

(emphasis added).

36.

The above evidence was supported by CLW2's evidence and the Company's

witnesses (COW1 and COW2). As such, it is clear that the Claimant's allegation in relation to Company's financial situation, did not amount to any breach of any fundamental term of the Claimant's employment contract or breach of implied term of mutual trust and confidence. 37. The Court have carefully considered the totality of the evidence in relation to

the Claimant's pleaded case. The Court finds that the facts of the case of Ngan Lai

Wan (supra) could be distinguished from the facts of the present case. In Roche (M) Sdn Bhd v. Jennifer Ng Yu Hong [1994] 2 ILR 612, the IC in dismissing the
claimant's claim on the ground that she had failed to discharge the burden of proving that she had been constructively dismissed, held as follows: The Claimant might have a genuine cause for complaint at the
unreasonable act done to her but she had overreacted by quitting her job..

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38.

In Rudy Darius Ogou v. Ming Court Hotel, Kuala Lumpur [2000] 1 LNS

147, the HC affirmed the decision of the IC which stated inter alia that bona fide

issuance of caution letter, show cause letter, being suspended pending investigation and being asked to attend a domestic inquiry, was not constructive dismissal ..
Similarly, in Protek Engineers Sdn Bhd v Tang Khai Hing [2000] 1 ILR 286, the IC held as follows: The claimant had acted prematurely in considering himself dismissed, and

had in fact pre-empted the company's rights and prerogatives to investigate into some justifiable grounds of suspicion of irregularities attributable to the claimant. The company had not breached any of the terms of the contract of employment nor evinced any intention on their part no longer to be bound by the terms of the contract ..

(see also Suppiah Vellaisamy v The New Straits Times Press (Malaysia)

Berhad [2009] 2 ILR 109 wherein IC held inter alia that the issurance of show
cause letter could not have amounted to a fundamental breach of the claimant's contract of employment). 39. Reverting to the present case, the Court agrees with the submission of the

Company's learned counsel that the Claimant had jumped the gun (see Simon

Gnanmuthan v Tamil Nesan (M) Sdn. Bhd. [2010] 2 LNS 0141). He had acted
pre-maturely. He had a chance to rebut the show cause notice but failed to use that opportunity. Having considered the totality of the evidence and submissions of both parties, it is clear that the Company's conduct or the series of conduct, did not amount to any breach of a fundamental term or breach of any implied term of mutual trust and confidence of the Claimant's contract of employment. G. 40. Conclusion As an epilogue, based on the totality of evidence adduced by both parties as

well as the written submissions made (having regard to equity and good conscience and substantial merits of case without regard to technicalities and legal form), this Court finds that the Claimant has failed to discharge the burden to prove on a

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balance of probabilities that he was constructively dismissed by the Company. Accordingly, the Claimant's claim is hereby dismissed.

HANDED DOWN AND DATED THIS 14 JANUARY 2013

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