3(28)/4-1276/12

INDUSTRIAL COURT OF MALAYSIA

CASE NO : 3(28)/4-1276/12
BETWEEN
HEFFIYANTI BINTI ABDUL SUKOR
AND
NZ NEW IMAGE SDN. BHD.

AWARD NO : 1439 OF 2014

Before

: PUAN ANNA NG FUI CHOO - Chairman

(Sitting Alone)

Venue

: Industrial Court Malaysia, Kuala Lumpur

Date of Reference

: 6.9.2012

Dates of Mention

: 25.10.2012, 4.1.2013, 4.2.2013, 11.3.2013,

25.3.2013, 3.5.2013, 16.5.2013, 30.7.2013,
22.8.2013, 3.9.2013

Dates of Hearing

: 13.1.2014, 22.4.2014, 23.4.2014

Written Submission
of Claimant

: 17.7.2014

Written Submission
of Company

: 4.8.2014

Submission in Reply
by Company

: 15.9.2014
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3(28)/4-1276/12

Representation

: Mr. V.K. Raj

From Messrs P. Kuppusamy & Co.
Counsel for the Claimant
Mr. Gan Khong Aik together with Ms. Chen
Chiu Hua
From Messrs Gan Partnership
Counsel for the Company

Reference :
This is a reference made under section 20 (3) of the Industrial
Relations Act 1967 (the Act) arising out of the dismissal of Ms Heffiyanti
binti Abdul Sukor (hereinafter referred to as the Claimant) by NZ New
Image Sdn. Bhd. (hereinafter referred to as the Company) on 8 March
2010.

AWARD

[1]

The Ministerial reference in this case required the Court to hear

and determine the Claimant's complaint over her constructive dismissal

by the Company on 8 March 2010.
Facts
[2]

The Claimant commenced employment with the Company from 5

March 2008 as a Customer Service Officer. At the time of the Claimant

walking out of her employment claiming constructive dismissal, she was
holding the same position. Her last drawn monthly salary which came
into effect in February 2010 was RM2000.00. The Company is a direct
selling company which sells products to distributors and not end users.
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[3]

It was averred in the Statement of Case that the events which had

led to the Claimant's claim for constructive dismissal were:

(a)

Vide the Company's letter dated 26 January 2010, the

Company inter alia informed the Claimant that effective
February 2010 her monthly salary (RM2600.00) would be
reduced to RM2000.00. The Company further informed her
in the said letter that she had failed to contribute and
perform in accordance with the level of salary it had paid her
and alluded that the reduction of the salary was in particular
due to her non-cooperation in carrying out the Company's
request for overtime work.

(b)

The Claimant replied vide her letter of 5 February 2010 and

had placed on record her disagreement to the Company's
unilateral intention to effect the reduction in her monthly
salary beginning February 2010.

(c)

The Company then vide a letter dated 5 February 2010

informed the Claimant that its decision to reduce the
Claimant's salary remained.

(d)

The Claimant vide her letter dated 1 March 2010 placed on

record once again her disagreement to the salary reduction
and requested the Company not to effect the reduction for
her February salary. Meanwhile, the Company proceeded
to deduct RM600.00 from her salary bringing her basic
salary to RM2000.00 for the month of February 2010.

3(28)/4-1276/12

(e)

The Company in response, vide its letter dated 4 March

2010 wrote to the Claimant to state that the decision to
deduct her monthly salary was its managerial prerogative
discretion.

(f)

The Claimant vide her letter dated 8 March 2010 placed on

record that the Company had breached her terms of
employment, specifically her agreed salary of RM2600.00 by
reducing her salary to RM2000.00 for the month of February
2010. The Claimant claimed constructive dismissal vide the
same letter.

[4]

The Claimant contended that by the series of events as stated

above, the Company had treated her unfairly and unjustly and the
Company had evinced an intention no longer to be bound by her contract
of employment.

On the other hand, the Company averred that the

Claimant had abandoned her employment with the Company.

[5]

The Company averred that on 31 July 2009, the Company had

issued a warning letter to the Claimant (page 4 of the Company's Bundle

of Documents 1 (COB1)) due to the following reasons:
(a)

the Claimant was seen by the Company's staff to have taken

longer breaks to perform prayers whereby the normal period
of time needed was only approximately 10 15 minutes per
prayer session; and

(b)

the Claimant had not only failed to complete the task and/or
assignment and/or work given to her by the Company within
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3(28)/4-1276/12

the time frame given expected by the Company, she had

also failed to inform the Company of her difficulties to
complete the task and/or assignment and/or work given to
her.
[6]

It was also alleged that during a dialogue session held on 28

October 2009 between the Company's management and its distributors,

the Claimant had, among others:
(a)

complained that she was not trained when she joined the
Company and she had to learn the Company's marketing
plan from the Company's distributors;

(b)

made an allegation that the Company was in need of more

staff; and

(c)

tarnished the reputation of her colleagues in front of the

distributors.

This had led to another warning letter from the Company issued to the
Claimant on 30 October 2009.
[7]

It was further alleged that on 29 January 2010 while at work, the

Claimant was wearing a t-shirt of another direct selling company, Nu

Skin. When asked by the Company's management on the reason for the
Claimant's inappropriate conduct of wearing the said t-shirt, the Claimant
was alleged to have replied in a rude and insulting manner the phrase
you want me to wear sexy? The Claimant was alleged to have also told
the Company's management of her intention to leave the Company's
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3(28)/4-1276/12

employment if she found another job with a better offer.

Thus, the

Company was of the view that the Claimant's behaviour and attitude was
intolerable. It had also formed the opinion that the Claimant had failed to
contribute and perform in accordance with the level of salary the
Company had paid her. Based on the aforesaid reasons, the Company
decided to revise the Claimant's monthly salary to RM2000.00 effective in
February 2010. The Claimant was informed of the Company's decision
by way of a letter dated 29 January 2010 (page 8 of COB1).
The Law on Constructive Dismissal
[8]

Since the Claimant claims that the Company had constructively

dismissed her by reducing her pay to RM2,000.00 with effect from

February 2010, the law relating to constructive dismissal should be the
starting point of the legal discourse. It has been firmly established by the
Supreme Court in the case of Wong Chee Hong v. Cathay Organisation
(Malaysia) Sdn Bhd [1988] 1 CLJ (rep) 298 when Salleh Abas LP
referred to the case of Western [E.C.G] Ltd. v. Sharp [1978] IRLR 27 and
said:
According to the Court of Appeal in Western Excavating
(E.C.G.) Ltd. v. Sharp [1978] IRLR 27, it means no more than
the common law right of an employee to repudiate his contract
of service where the conduct of his employer is such that the
latter is guilty of a breach going to the root of the contract or
where he has evinced an intention no longer to be bound by
the contract.

In such situation the employee is entitled to

regard himself as being dismissed and walk out of his

employment..
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3(28)/4-1276/12

[9]

With clarity, the law on constructive dismissal was elucidated by

Lord Denning MR in the landmark English case of Western Excavating

(ECC) Ltd v. Sharp [1978] 1 QB 761:
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 his
contract by reason of the employers 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 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..

[10]

It was further emphasized in the Court of Appeal case of Anwar

Abdul Rahim v. Bayer (M) Sdn. Bhd. (the decision of which was affirmed
by the Federal Court) [1998] 2 CLJ 197 by his Lordship Mahadev
Shanker JCA that whether there is constructive dismissal is to be
determined by the contract test when he stated as follows:
It has been repeatedly held by our courts that the proper
approach in deciding whether constructive dismissal has
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3(28)/4-1276/12

taken place is not to ask oneself whether the employers

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..

[11]

In the case of Quah Swee Khoon v. Sime Darby Bhd

[2000] 1 CLJ 9 at page 20, his Lordship Gopal Sri Ram JCA
explained the duty of the Industrial Court in constructive dismissal
cases:
In the normal case, an employer either dismisses the servant
for cause or terminates the employment under a contractual
provision that provides for notice of termination. As a matter
of law, the Industrial Court is unconcerned with labels. It does
not matter that the parties refer to the particular severance of
the relationship as a termination or a dismissal. It is for the
Industrial Court to make the determination. Having found that
there was in fact a dismissal or the bona fide exercise of the
contractual power to terminate, the Industrial Court must, in
the former case, decide whether the dismissal was for just
cause or excuse.

If, on the other hand, it comes to the

conclusion that there was a bona fide termination, then cadit

quaestio...
The task is no different where a case of constructive dismissal
is alleged.

The Industrial Court must in such a case also

determine firstly whether there was a dismissal.

And

secondly, whether that dismissal was with just cause or

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excuse. That is a statutory formula employed by S.20(1) of

the Act...
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 acts
may, according to particular and peculiar circumstances of the
given case, amount to a constructive dismissal. There are
cases which fall as illustrations at either end of the spectrum

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..

The Claimant's Case

[12]

The Claimant gave evidence in her own behalf and was the only

witness in the Claimant's case. The grounds relied by her in treating

herself constructively dismissed by the Company were contained in her
letter dated 8 March 2010 (page 10 of the Claimant's Bundle of
Documents (CLB)) which have earlier been set out. Page 6 of COB1
which was the Company's second warning letter to the Claimant had
been acknowledged receipt by the Claimant. She had written in her own
handwriting which was dated 30 October in the following words,
Pernyataan

ini

adalah

sudah
9

disalah

anggap

saya

akan

3(28)/4-1276/12

menandatangani surat tetapi tidak bermakna saya mengakui kesemua

adalah kesalahan saya. Saya tidak bersetuju bahawa saya tidak boleh
memberi pandangan sendiri sebagai pekerja di Syarikat ini. Ini adalah
tidak adil sama sekali tiada demokrasi antara pekerja dan majikan.
Sekian. Terima kasih.
[13]

The Claimant denied that she had been given counselling by the

Company but what she had received was 'lecturing' whenever she was
alleged to have made mistakes. She also insisted she could give her
view that she was not given any training when she first joined the
Company. In her opinion, the Company was in need of more staff and
that was why she had said so in the dialogue session between the
management and the Company's distributors. Page 2 of COB2 was a
memo from COW1 to all administrative staff and the subject was Stay
back for month end closing which the Claimant was aware of but had not
signed on when it was circulated. The reason given by the Claimant for
her longer time to perform her asar prayer was because she had to do
her zohor prayer as well. She said there were times when the counter
was busy during her lunch time so that had taken up her prayer time.
She also said the room she had used to perform her prayers had a CCTV
fixed by the Company.
[14]

The Claimant did not deny that when she was confronted by

COW1 on wearing the Nu Skin t-shirt, she had replied if COW1 wanted
her to wear sexy. However, she said she had not uttered those words in
a public area but in a room with COW1. She justified her statements that
there was a staff who used to wear singlets and mini-skirts to the office.
Regarding her statement that she would leave the Company if she could
find another job with a better offer, the Claimant had said the retort came
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about because COW1 had asked her if she still wanted to work with the
Company.
The Company's Case
[15]

The Company called four witnesses all of whom are still

employees of the Company. They are:

(a)

Mr. Chua Nam Hoat (COW1), the CEO of the Company and
also the Vice President of Asia Pacific;

(b)

Ms. Chan Seow Ching (COW2), the Assistant Service

Manager of the Company;

(c)

Ms. Lim Poh Gaik (COW3), Assistant Admin Manager of the

Company; and

(d)

Ms. Ooi Swee Chuan (COW4), the Administrative Manager

of the Company.

[16]

It was the Company's contention that the Company was entitled to

revise the Claimant's salary to RM2000 due to the following reasons

and/or misconduct:
(a)

The Claimant had without the Company's prior consent

decided to accumulate her zohor prayers (which started at
1.22 pm) and asar prayers (which started at 4.44 pm) and
performed both at around 4 pm by starting with the zohor
prayer followed by the asar prayers which had caused the
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3(28)/4-1276/12

Claimant to be absent from her workplace during her duty

time;
(b)

The Claimant had degraded the Company's reputation by

alleging in front of the Company's distributors that the
Company did not provide training for her and the Company
did not have sufficient staff;

(c)

The Claimant had refused to stay back during the monthly

closing day and refused to acknowledge on the memo
issued by the Company pertaining to the Company's policy
of staying back during monthly closing day; and

(d)

The Claimant had behaved disrespectfully to her superior

(COW1) by uttering profane language, you want me to wear
sexy? when she was confronted by the superior for wearing
another direct selling company's t-shirt to work.

[17]

Relating to the issue of the Claimant having to stay late to work on

closing day, COW1 had testified as follows on 22 April 2014:

Q:

Please see pages 1 to 2 of COB1. Do you agree that

there is no express stipulation seeking the Claimant to
work beyond what is expressly stated as her normal
working hours?

A:

No.

Q:

Where in p.1 and 2 of COB-1 is it expressly stated that the

Claimant has to work beyond the expressly stated normal
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3(28)/4-1276/12

working hours?
A:

It's not there.

Q:

It is because it is not stated in her letter of appointment

that she has to work until 10.00 pm on closing days, that
you issued the memo at p.2 of COB-2?

A:

No.

Q:

But, you agree that there is nothing in her letter of

appointment to expressly say that she had to work until
10.00 pm on closing days?

A:

[18]

The way you put it, I have to say Yes.

COW1 also agreed that the practice of the Company working up

to 10.00pm on closing days was not stated in the Claimant's letter of

appointment. He testified that a day called closing day was the day the
Company would finalise the monthly sales of the Company's distributors.
A lot of information and data had to be handled on a closing day and all
data had to be keyed in into the computer system. Hence, COW1 said
the Company required all officers and clerks to work overtime on the
closing day and apparently, it had been the Company's practice even
before the Claimant joined the Company.
[19]

In the Company's first warning letter to the Claimant dated 31 July

2009, the warning was to the effect:

(a)

Kamu dikehendaki menunaikan sembahyang kamu

mengikut masa biasa yang ditetapkan untuk tujuan
tersebut iaitu:-

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3(28)/4-1276/12

Kami

a)

Zohor

13:22

b)

Asar

16:44

c)

Maghrib 19:30

dimaklumkan

bahawa

kebiasaannya

masa

yang

diperlukan adalah 10 15 minit setiap kali.

(b)

Kamu dikehendaki untuk memberitahu kami selewatlewatnya 48 jam notis jika kamu tidak berupaya
menjalan sesuatu tugas yang telah diberikan kepada
kamu terlebih dahulu, ini adalah untuk memudahkan
urusan syarikat..

[20]

The Claimant's Letter of Employment (pages 1 and 2 of COB1)

provided in clauses:
6.

WORKING HOURS
Normal office working hours are:
Monday: 9.30 am to 6.00 pm, Lunch Hour : 1.00 pm to
2.00 pm
Tuesday, Wednesday : 9.30 am to 8.00 pm
Thursday, Friday : 9.30 am to 6.00 pm

7.

RESPONSIBILITY
You will be required to carry out such duties and job
functions in which you may be instructed from time to
time by the Company or persons acting on behalf of the
Company, and you may be required to transfer from
one section or department or associate Company to
another at the discretion of the Company..
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[21]

The subsequent second warning letter titled Amaran tegas dated

30 October 2009 (pages 5 and 6 of COB1) ensued following an incident

in which the Claimant was alleged to have said, The company did not
train me when I joined, I had to learn the marketing plan from the
company's distributors. The Company needs more staff. COW1 said he
had found that those statements were wrong after investigations were
conducted and the Claimant was downgrading the image of the
Company. The Company was of the view that the Claimant's statements
involved the Company's internal business affairs which were not
supposed to be revealed to the Company's distributors.

Thus, the

Claimant was accused of having tarnished the reputation of the

Company.

The Company had also taken offence when the Claimant

wore a Nu Skin t-shirt which the Company alleged was a competitor

company so it did not reflect well on the Company that its staff was
wearing the t-shirt of another competitor company. In cross-examination,
COW1 admitted that none of its distributors had complained or asked
why the Claimant was wearing that t-shirt.
[22]

The Company's decision to reduce the Claimant's monthly salary

is found in its letter dated 29 January 2010 on page 9 of COB1 which

was phrased in these words:
Reduction of Monthly Salary
We refer to our various counselling sessions over your
performance in particular as regards your commitments and
attitude towards your job requirements which have always
been our concern. In particular, we regret to note your noncooperation to carry out the Company's request for overtime
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work as required by the Company's operational needs.

In our observation and assessment, you have therefore failed
to contribute and perform in accordance with the level of
salary we have paid you thus far. In the circumstances, we
hereby notify you that effective from February 2010, your
monthly salary is RM2,000.00.
Notwithstanding the above, we continue to view your work
performance as unsatisfactory and you are required to show
improvement in accordance with our expectation as had been
notified to you from time to time..
[23]

The other three Company witnesses corroborated COW1's

evidence on all the allegations against the Claimant. There was a slight
difference in COW4's evidence as she had gone to great length in her
testimony on the Claimant's lunch hour and other administrative matters
of the Company. She had testified that the Claimant's lunch hour was
never changed and had remained as per her employment letter. COW4
also testified on the Company's monthly closing days and when the
Claimant had worked overtime and had not, on those closing days. She
had alleged that the Claimant had never stayed back until 10.00pm on
most of those closing days. Instead, it was accused that the Claimant
had the tendency of leaving earlier on those days.

Upon cross-

examination of COW4 if it was stipulated in the Claimant's letter of

appointment that she had to work overtime on closing days, COW4 (and
COW3) had relied on clause 7 of the Claimant's letter of appointment that
she was required to carry out such duties and job functions in which she
could be instructed from time to time by the Company.

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The Issue Unilateral Reduction of Salary

[24]

The central issue in this case is the unilateral reduction of the

Claimant's February 2010 salary from RM2600.00 to RM2000.00. It was

a RM600.00 reduction which was more than a 20% cut in salary which
had led to the Claimant claiming for constructive dismissal.

In the

decision of the High Court in the case of Kejuruteraan Samudra Timur

Sdn. Bhd. v. Seli Mandoh & Anor [2004] CLJ 393, the High Court held
that a unilateral reduction of the claimant's salary amounted to a
repudiation of his contract of employment and was thus a fundamental
breach.
[25]

The court's attention has been veered to the Claimant's letter of

appointment running from pages 1 to 2 of CLB. The test in a constructive

dismissal case is always a 'contract test' (see the case of Wong Chee
Hong - supra) so the question that arises is whether there was any
clause in the Claimant's contract of employment authorising the
Company to reduce the Claimant's salary by any stated amount, as a
disciplinary measure or for any other reason. The court has not been
able to find such a clause.

Since there was no such clause in the

Claimant's employment contract and the Company had actually deducted

RM600.00 from the Claimant's February 2010 salary, there appeared to
be a fundamental breach of her existing contract of employment, under
which the express term was to pay her a monthly salary of RM2600.00.
The court is unable to appreciate how a salary reduction could be a
managerial prerogative discretion in these circumstances.

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Evaluation of Evidence and Findings

[26]

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

the Claimant, on a balance of probabilities to prove that she had been

constructively dismissed and the following need to be established:
(a)

that the Company had by its conduct breached the contract

in respect of one or more of the obligations owed to the
Claimant; the obligations breached may be in respect of
either express terms or implied terms, or of both.

(b)

that the terms which had been breached go to the

foundation of the contract; or, stated in other words, the
Company had breached one or more of the essential terms
of the contract.

(c)

that the Claimant, pursuant to and by reason of the

aforesaid breach, had left the employment of the Company;
that is, that she had elected to treat the contract as
terminated.

(d)

that the Claimant had left at an appropriate time soon after

the breach complained of; that is, that she did not stay on in
such circumstances as to amount to an affirmation of the
contract, notwithstanding the breach of the same by the
employer.

[27]

The court will discuss if the Company was entitled to do what it

had done by reducing the Claimant's salary. From the Claimant's own
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admission and from COW4's testimony, it was not disputed that the
Claimant had stayed back for the closing days during the early period of
her employment. It was until the end of the year of 2009 that there was a
change of attitude when the Claimant was alleged, without giving any
prior notice to the Company, decided not to stay back late.

It was

alleged that the Claimant's explanation was that she had no contractual
obligation to stay back for the closing day. COW1 had agreed there was
no such requirement in her employment contract. After his evidence was
completed, there was a lunch break and when hearing resumed, the
subsequent Company witnesses had relied on clause 8 of the Claimant's
employment contract. Thereafter, the Company's witnesses claimed it
was clearly stipulated that the Claimant was to adhere to all the
Company's rules and regulations and policy for the time being in force
(page 2 of COB1) in clause 8. It was contended that at all material times,
the Claimant was aware that the Company practised a policy that all
administrative staff had to stay back during the closing days. Hence, it
was argued that the Claimant was contractually bound to adhere to the
Company's policy of staying back during closing days.
[28]

This court is unable to agree with such an argument. If it was of

such great importance that staff of the Company, including the Claimant,
had to stay back during closing days, that would have been included in
the Claimant's contract of employment, the way her lunch hour and other
working hours of the week had been included. The court has also found
that it was not 'overtime' that the Claimant was required to work. In fact,
it was never raised if the Claimant was paid any overtime payment for the
extra hours she had to put in for closing days. Mr. Gan, the learned
counsel for the Company had in his submission diligently included the
provisions the Claimant was purportedly bound to follow under the
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3(28)/4-1276/12

Employment Act 1955. However, the Claimant was an employee earning

RM2600.00 a month so the provisions of the said Act which he had
referred to, were not applicable to the Claimant. There must be reasons
why the Claimant did not want to stay back or could not do so, till as late
as 10.00pm (and even to come back the next day if the work was not
completed) as per COW1's memo. There was no evidence adduced
that the Company had bothered to enquire from the Claimant the reasons
why she did not want to work late on closing days.

Instead, the

Company had elected to condemn her for having an attitude problem due
to her non-cooperation. Employers should be sensitive to the plight of
working married women, especially those who have children. Working
late at night especially for those who depend on public transport, pose a
safety threat to these women.
[29]

Mr. Gan had also submitted on the effect of the Claimant's

cumulative actions of misconduct thus making her dismissal justified and

with just cause or excuse if this court finds that the Company had indeed
constructively dismissed her.

Touching on the issue of the Claimant

wearing a Nu Skin t-shirt, all the Company's witnesses had known that
the company Nu Skin was the Claimant's previous employer. Hence, it is
perplexing why these witnesses had viewed that as a threat when the
Claimant could be wearing it without any intention to provoke anyone or
had any malicious intention save just to wear it because she had the tshirt! The court does not see how that could tarnish the image of the
Company especially when the Company's witnesses had agreed that its
distributors had not even asked about it! Although the court does not
condone what the Claimant was alleged to have retorted in reaction to
COW1's questioning, it could be an accumulation of the frustration the
Claimant was feeling in the light of what she was confronted with in her
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3(28)/4-1276/12

workplace.
[30]

The court had seen all the witnesses and heard their evidence. It

was apparent that the Claimant was unhappy on how the Company had
dictated and managed her prayer times.

The court can take judicial

notice of the fact that prayer times for Muslims change all the time and
are not the same every day. Thus, the Company's first warning letter
fixing the time for the Claimant's prayer times was clearly unreasonable
and unacceptable. Furthermore, the Claimant sounded most disgruntled
when she testified that there was a CCTV in the prayer room.
Undoubtedly, the staff of the Company could view what she was doing
and she was under observation and scrutiny! COW1's explanation on
the CCTV was that the room was a file room and the CCTV was fixed to
ensure that nothing was taken out of the room. If the contents of that
room were important, the Company could have locked the room and
designated another area for the Muslims to perform their prayers.
[31]

The Claimant did not appear to be timid so it was not surprising

that she had spoken out during the distributors' dialogue session with the
Company's management. It was not the best venue to voice out her
grievances but she probably felt she had no other recourse and channel
as she had been 'lectured' often by COW1 and other administrative
bosses. In this respect, the court can conclude from the totality of the
evidence adduced that the Claimant had not been counselled as claimed
by the Company's witnesses. Rather, she had been 'lectured' or in a
better word, reprimanded by her bosses for the many misconduct she
was alleged to have committed.

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[32]

The Company said it had investigated the Claimant's allegations

about her training and the Company needed more staff and found them
to be not true. COW2 was then the other customer service officer and
was the one who had complained about the Claimant's absence due to
her 'long' prayer time and other related matters. The court does not find
the Company's witnesses very credible witnesses as their evidence
appeared to be tailored for the trial. In addition, they are all still in the
employment of the Company and are COW1's subordinates.

The

Company's witnesses' evidence were too consistent to be capable of

total belief. They were the complainants, they were also the ones to
investigate the Claimant's alleged misconduct and they, especially
COW1, was also the prosecutor and the one to inflict the punishment on
the Claimant.

In view of the many allegations which related to

insubordination and breach of mutual trust and confidence against the

Claimant, the Company had not issued a single show cause letter
against her. Yet, there were two warning letters against the Claimant
and the worst punishment, that of reducing her salary. For the times that
the Claimant was alleged to have misconducted herself, the Company
had diverted from what it could have done in a just and fair manner that
of the Claimant's right to be heard by conducting a proper disciplinary
action against her. The Claimant had been punished without the right to
be heard and the last straw was to have her salary reduced. It is the
court's considered opinion that it was not justified and in breach of natural
justice when she was not given an opportunity to be heard before the
drastic action was taken.
[33]

Having taken into account the above considerations, the court

concludes that the Company had breached a fundamental and essential

term of the Claimant's employment contract and had evinced an intention
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to no longer be bound by the contract. Hence, the Claimant was correct

in treating the employment contract as being terminated and to walk out
of the employment of the Company.
[34]

Regarding the last pre-requisite condition to claim for constructive

dismissal which was that the Claimant must not delay in terminating the
contract, it was submitted that as early as 29 January 2010, the
Company had informed the Claimant that her salary was to be revised to
RM2000.00 in view of the Claimant's working attitude. However, the
Claimant had not left the Company there and then. The Claimant did
appeal against the order and it was on 5 February 2010 that the
Company informed the Claimant that the Company had rejected the
Claimant's demand for reinstatement of her salary and maintained the
decision to reduce the Claimant's salary to RM2000.00. It was submitted
that since then, there was an absolute silence by the Claimant from 5
February 2010 to 1 March 2010. The Claimant had continued to work
with the Company and it was submitted that she had not raised any
objection orally or in writing with regard to the revised salary until 1
March 2010. The court would not subscribe to such a submission as it
was evident that the Claimant had objected immediately to the
Company's action. Furthermore, that period in February coincided with
the festive season, that of the Chinese New Year. The court does not
find that the Claimant had delayed (a mere three weeks) in walking out of
her employment, especially with the additional fact that February is a
short month.
[35]

The court has found that the Company had no contractual right to

impose a punishment of the reduction of RM600.00 from the Claimant's

February 2010 salary. Hence, the Claimant was rightly expectant of and
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contractually entitled to her full salary of RM2600.00.

However, the

Company did and had deducted RM600.00 from the Claimant's February
salary and that tantamounts to a fundamental breach of her contract of
employment. Of equal significance is that since there was no contractual
provision entitling the Company to deduct the Claimant's salary as a
measure of punishment, the Company had no just cause or excuse to
have fundamentally breached the Claimant's contract of employment by
resorting to that as the Claimant's punishment. It is the court's findings
that the Claimant's dismissal was without just cause or excuse.
Relief
[36]

The court does not find it in the interest of industrial harmony to

reinstate the Claimant to her former position in view of the circumstances

she had treated herself constructively dismissed and the less than
conducive circumstances in the Company she was confronted with. She
had left the Company more than four years ago and many things would
have changed for her and the Company. She is now gainfully employed.
Hence, the court would make an order for back wages to be paid to the
Claimant. The Claimant had stated that she was unemployed for three
months after she walked out and later was employed for about 12
months until that company had closed down.
[37]

On the amount of back wages to be awarded, the court takes into

consideration what was stated in the Federal Court case of Dr James

Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah & Anor) [2001]
3 CLJ 541 at page 545:

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Of course, taking into account of such employment after

dismissal does not necessarily mean that the Industrial Court
has to conduct a mathematical exercise in deduction. What is
important is that the Industrial Court, in the exercise of its
discretion in assessing the quantum of backwages, should
take into account all relevant matters including the fact, where
it exists, that the workman has been gainfully employed
elsewhere after this dismissal...
What comes across quite clearly is that an adjustment should
be made to an award of backwages where the workman has
found other employment.

[38]

The court also takes into consideration the Second Schedule of

the Act and the fact that the Claimant was unemployed for three (3)
months after she left the Company's employment.

Then, she was

employed for about 12 months earning RM2600.00 a month until that

company closed down. She was then unemployed until she found her
present employment. In these circumstances, the court orders a scaling
down of a lump sum of RM30,000.00 from the back wages to be granted.
The break down in the amount of back wages and compensation in lieu
of reinstatement is calculated as follows:

Back wages:
RM2000.00 (the Claimant's last drawn
basic salary) x 24 months

RM

48,000.00

Scaling down

RM

30,000.00

RM

18,000.00

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Compensation in lieu of reinstatement of

one month's pay for each year of
completed service:

[39]

RM2000.00 x 2 months (5 March 2008 to

8 March 2010)

RM

4,000.00

Total

RM

22,000.00

The amount, after deducting the necessary statutory deductions

is to be paid by the Company to the Claimant through the Claimant's

counsel Messrs P. Kuppusamy & Co. within 30 days from the date of this
award.
[40]

Section 30(5) of the Act enjoins the court to act according to

equity and good conscience and the substantial merits of the case
without regard to technicalities and legal form which this court has so
conformed, after considering the evidence in its totality.

HANDED DOWN AND DATED THIS 19 DAY OF DECEMBER 2014

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