INDUSTRIAL COURT OF MALAYSIA

CASE NO: 25/4-278/06

ENCIK RAVINDAR SINGH A/L JESWANT SINGH

AND

ISLAND AIR SDN BHD

AWARD NO: 175 OF 2009

BEFORE : DATO’ JALALDIN HJ. HUSSAIN CHAIRMAN (Sitting Alone)

VENUE : Industrial Court, Kuala Lumpur.

DATE OF REFERENCE : 14 September 2005.

DATES OF MENTION : 22 February 2006, 20 April 2006, 22 May 2006, 16 June 2006, 4 July 2006, 27 July 2006, 18 April 2007, 4 May 2007 and 21 June 2007.

DATES OF HEARING : 5 November 2007, 7 December 2007, 3 January 2008, 7 March 2008, 1 July 2008, 14 July 2008, 21 July 2008, 30 July 2008, 26 August 208 and 27 August 2008.

DATES OF RECEIPT OF : 11 September 2008 - Claimant’s written WRITTEN SUBMISSIONS submission

13 October 2008 - Company’s written submission.

22 October 2008 - Claimant’s submission in reply.

REPRESENTATION : Mr. Mohan Singh of Messrs. David Gurupatham and Koay, counsel for the Claimant.

Mr. H. C. Yong of Zaid Ibrahim & Co., counsel for the Company.

REFERENCES

This is a reference under Section 20(3) of the Industrial Relations Act 1967 (herein

after referred to as IRA), arising out the dismissal of Encik Ravindar Singh A/L

Jeswant Singh (hereinafter referred to as “the Claimant”) by Island Air Sdn. Bhd.

(hereinafter referred to as “the Company”).

AWARD

This is a reference made under Section 20(3) of the IRA 1967 arising out of the

alleged dismissal of the Claimant on 10 February 2004 by the Company. The matter

was referred to the Industrial Court through a reference ordered by the Honourable

Minister of Human Resources dated 14 September 2005 and received by the Court

on 16 January 2006.

Brief Facts:

The Claimant commenced employment with the Company on 1 April 2002 with a

salary of RM7,000.00 per month.

The Claimant alleged that ten months into his employment and up to the date of

dismissal he was victimised by the Aviation Manager one Captain Revi Chandran

(COW1).

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On 9 November 2003, COW1 accused the Claimant of missing from the office. The

Claimant alleged that sent an email as per CLB pages 13 and 14. In the evening of

9 November 2003, the Claimant alleged in the email that he can cope with the

knowledge that COW1 do not trust him and cannot continue to work under that

condition. The Claimant states that he is unable to handle the mental stress of

disappointment when the promise to promote the Claimant to Captain on AS 365 N2

was not honoured by the Company. The Claimant also states that COW’s sudden

outburst time and again in front of the Claimant’s subordinates had not helped either.

The Claimant reiterated that he felt totally embarrassed and frustrated and would

tender his letter of resignation the next day. Based the above said acts, the

document subsequently alleged in the basis of his constructive dismissal.

On 10 November 2003, COW1 received the Claimant’s resignation letter as per CLB

page 16 dated 10 November 2003.

On 18 November 2003, COW1 replied to the Claimant acknowledging the receipt of

the Claimant’s letter of resignation and forwarding it to the Human Resource

Department for further action.

By a letter dated 1 December 2003, the Company’s Senior Legal Manager requested

that the Claimant to refund a sum of RM50,900.00 in pursuance of paragraph 4 of

the Claimant’s appointment letter for failing to work for five years with the Company.

The Claimant by his letter dated 3 December 2003 appealed to the Managing

Director of the Company (CLB page 20).

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On 9 January 2004, the Claimant sent in a letter of withdrawal of his resignation as

per CLB page 26.

By a letter dated 15 January 2004 as per CLB page 28, the Company replied to the

Claimant’s letter of withdrawal. The Company informed the Claimant that they have

accepted the Claimant’s resignation and do not accept the withdrawal of the

Claimant’s resignation.

On 19 January 2004, the Claimant replied to the Company’s letter dated 15 January

2004 through his letter of the same date as per CLB page 29. The Claimant alleged

that the Company’s refusal to accept his withdrawal of his resignation letter and to

allow him to continue in the employment of the Company was without just cause and

excuse and that he will be making representation to seek reinstatement.

The Company vide a letter dated 6 February 2004 as per CLB page 30 confirmed to

the Claimant that the Claimant’s resignation was with effect from 10 February 2004.

The Claimant, however, pleaded several incidents of victimisation and mistreatment

as per para 6 (a) to (j) of his Statement of Case to support his claim that he was

constructively dismissal on 9 November 2003.

The Law:

The law on constructive dismissal has been clearly stated in the leading case of

Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn. Bhd. [1988] 1 CLJ 45;

[1988] 1 CLJ (Rep) 298. In the words of Salleh Abas LP:-

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“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...

We think that the word “dismissal” in this section should be interpreted with

reference to the common law principle. Thus, it would be dismissal if an

employer is guilty of a breach, which goes to the root of the contract, or if he

has evinced an intention no longer to be bound by it. In such situations, the

employee is entitled to regard the contract as terminated and himself

dismissed”.

In the classic case of Western Excavating (ECC) Ltd. v. Sharp [1978] IRLR 27 Lord

Denning made this observation:-

“An employee is entitled to treat himself as constructively dismissed 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 contract.

The employee in those circumstances is entitled to leave without notice or to

give notice, but the conduct in either case must be sufficiently serious to

entitle him to leave at once. Moreover the employee must make up his mind

soon after the conduct of which he complains.

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If he continues for any length of time without leaving, he will be regarded as

having elected to affirm the contract and will lose his right to treat himself as

discharged”.

In Colgate Palmolive (M) Sdn. Bhd. v. Yap Kok Foong [1998] 2 ILR 965 (Award No.

368 of 1998) it was held as follows:-

“In a Section 20 reference, workman’s complaint consists of two elements:

firstly, that he has been dismissed, and secondly that such dismissal was

without just cause or excuse. It is upon these two elements being establish

that the workman can claim his relief, to wit, an order for reinstatement, which

may be granted or not at the discretion of the Industrial Court. As to the first

element, industrial jurisprudence as developed in the course of industrial

adjudication readily recognises that any act which has the effect of bringing

the employment contract to an end is a ‘dismissal’ within the meaning of

Section 20. The terminology used and the means resorted to by an employer

are of little significance; thus, contractual terminations, constructive

dismissals, non-renewals of contract, forced resignations, retrenchments and

retirements are all species of the same genus, which is ‘dismissal’ [emphasis

added]”

In the case of Southern Bank Bhd. v. Ng Keng Lian & Anor [2002] 2 CLJ 514, it was

submitted to the Industrial Court that as the employee had not informed her

employer that she considered herself to be constructively dismissed that the

Industrial Court would not be seized with jurisdiction to adjudicate the claim of

constructive dismissal as the representation was premature. The Industrial Court,

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however, decided otherwise, and found that the claim was not premature. As to this

approach the High Court in that case made these observations:-

“If the Industrial Court is correct in its view, then any employee can walk out of

employment for whatever reasons (eg, for a better job) without first informing

her employer or giving notice to her employer and then when things do not go

the employee’s way, the employee can say that he or she was in fact

constructively dismissed by the employer. This would be an abuse of a claim

of constructive dismissal. The High Court then held that the decision of the

Industrial Court on the issue ;is also incompatible with the contract test in

constructive dismissal cases as enunciated in the leading Supreme Court

case of Wong Chee Hong v. Cathay Organisation (Malaysia) Sdn. Bhd. [1988]

1 CLJ 45; [1988] 1 CLJ (Rep) 298”.

The High Court held at page 532:-

“As the common law contract test is applicable to all cases of constructive

dismissal, it was incumbent on the Industrial Court to apply the test for the

purposes of determining the issue before it. In doing so, the approach that the

Industrial Court should have taken is to ask itself whether under the common

law contract test there was a duty on the employee to inform her employer

that she deemed herself as having been constructively dismissed before she

made the representation”.

Burden Of Proof:

The burden is on the employee who complains of constructive dismissal to prove the

same. The law pertaining to constructive dismissal based on the contract test has

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been propounded, followed and restated in innumerable superior court judgments

and Industrial Court awards. In Wong Chee Hong v. Cathay Organisation (Malaysia)

Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ (Rep) 298, the Supreme Court laid down

the doctrine of constructive dismissal in the local context at page 95 in this manner:-

“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. ...

When the Industrial Court is dealing with a reference under Section 20, the

first thing that the court will have to do is to ask itself a question whether

there was a dismissal, and if so, whether it was with or without just cause or

excuse. Dismissal without just cause or excuse may well be similar in concept

to the U.K. legislation on unfair dismissal, but these two are not exactly

identical. Section 20 of our Industrial Relations Act is entirely different from

paragraph (c) of Section 55(2) of the U.K. Protection of Employment Act 1978.

Therefore we cannot see how the test of unreasonableness which is the basis

of the much advocated concept of constructive dismissal by a certain school

of thought in U.K. should be introduced as an aid to the interpretation of the

word “dismissal” in our Section 20. We think that the word “dismissal” in this

section should be interpreted with reference to the common law principle.

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

the root of the contract or if he has evinced an intention no longer to be bound

by it. In such situations, the employee is entitled to regard the contract as

8

terminated and himself as being dismissed. (See Bouzourou v. The Ottoman

Bank and Donovan v. Invicta Airways Ltd.)”.

In Western Excavating (E.C.C.) Ltd. v. Sharp [1978] 1 Q.B. 761 which was adopted

in Wong Chee Hong, Lord Denning M.R. illuminated the contract test at page 769:-

“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 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.”

The Issue:

The issue before the Court is whether the Company’s act or conduct amounted to a

breach of contract that entitled the Claimant to resign on the basis of constructive

dismissal. Did the Claimant in fact voluntarily resigned from his employment or was

he in truth dismissed?

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Evidence, Evaluation and Findings:

In his Witness Statement, CLWS1 at page 22, the Claimant claimed that in the

evening of 9 November 2003, a Sunday, “I sent an email message on the spur of the

moment to COW1 with a copy to COW2 and the Director of Human Resources”.

The email as per para 23 CLWS1 is as per CLB pages 13 and 14 and contained

allegations of mistreatment by COW1 and that the Claimant was unable to handle

the stress and will tender his resignation the next day on 10 November 2003. On 10

November 2003, the Claimant tendered his letter of resignation as per CLB page 16.

COW1 one Captain Revi Chandran in his Witness Statement, COWS-1 in answer to

Question 7 said that he received CLB page 16 which was the Claimant’s resignation

letter first and later received the email as per pages 13 and 14. According to COW1,

the Claimant had resigned first then the Claimant sent the email. At pages 5 and 6

of the Notes of Proceedings dated 14 July 2008 while under cross examination,

COW1 said the following:-

Q : Refer to email as per pages 13 and 14, was this after

resignation?

A : Yes, the resignation letter we received was on 10th November

2003, the email was supposed to be sent on 9th November

2003. The resignation letter was in office was on 9th November

2003 itself as on the 10th Claimant was on MC. He called and

informed the office. He was not in office on 10th as he was on

MC on 10th November 2003, the Claimant went to Department of

Civil Aviation to get his license endorsed by the Department of

Civil Aviation as it appears on the license at page 47 CLB.

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The Claimant also left a note on the 9th November 2003 asking

the clerk to pass the letter of resignation to me (COW1) the next

day.

Court : The note to the said clerk was produced and marked as COB2.

- the Claimant confirms the handwriting on COB2 as his.

COW1: Mas who is Mastura (the clerk) is still with Company.

Q : I put it to you, the letter of resignation was given after email?

A : The letter was put on Mas’s table on 9th November and Mas

gave to me on 10th November 2003.

Question: Which One Was First Received By The Company, “The Email Or

The Resignation Letter?”:

The Court had perused the evidence of the Claimant and the Company. COW1

produced COB2 which was a handwritten note from the Claimant to one Mastura, a

clerk, working with the Company. The Claimant at page 6 of the Notes of

Proceeding dated 14 July 2008 was shown the original note COB2 and confirmed

that it was in his own handwriting. The date on COB2 was 9 November 2003 and

the instruction to Mas (Mastura) was to hand over the resignation letter to COW1 on

10 November 2003. The note as per COB2 corroborates COW1’s evidence that the

Claimant had sent the resignation letter to the Company on the 9 November 2003 to

be passed to COW1 on 10 November 2003. Mas or Mastura was not a fictitious

person as the Claimant himself produced CLB page 69 whereby Mastura’s name ie,

Mastura Ab. Ghaffar appears. The Claimant too did not challenge the note COB2 as

being fictitious.

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From the totality of the above evidence, the Court finds on a balance of probability

that the Claimant had sent in his resignation letter as per CLB page 16 dated 10

November 2003 to Mastura on 9 November 2003 and the letter containing the said

CLB page 16 was given by Mastura with the note as per COB2 to COW1 on 10

November 2003. The Court finds on a balance of probability, COW1’s evidence that

the Claimant had sent the said resignation letter on 9 November 2003 before he

received the Claimant’s email, on a balance of probability, probable.

The Court also finds on a balance of probability, the Claimant’s evidence as per the

last paragraph of para 22 CLWS1 that he tendered the resignation letter on 10

November 2003, not probable.

It is also pertinent to note that the Claimant at the same para 22 of CLWS1, the

Claimant was very specific in stating that he sent the said email in the evening of 9

November 2003 after considering his doctor’s advice. The Claimant first produced

CLB pages 13 and 14 as the email, however, no date was stated on CLB pages 13

and 14. The Claimant later produced CLB page 70 which was down loaded on 8

June 2008 as per what is stated at the bottom of CLB page 70. The date and time

as per page 70 was Sunday, 9 November 2003, and the time 05:29:19, which is at

5.29 am and not in the evening as stated in para 22 CLWS1. CLB page 70 too does

not indicate when it was sent though containing the subject matter and to whom it

was intended to be sent. There is thus a material contradiction in the Claimant’s

evidence which remains unexplained. If credence is to be given to the Claimant’s

claim that he did sent the email in the evening of 9 November 2003, it would then on

12

a balance of probability be probably after the Claimant had sent CLB page 16 to Mas

with the note COB2 attached.

It is noteworthy to dwelve into this issue from the onset as it would indicate the

Claimant’s frame of mind and be relevant to what subsequently flows. The Court

notes that CLB page 16, the Claimant’s resignation letter, contains no allegation

against anyone. The said letter states:-

RAVINDAR SINGH 19 JALAN USJ 4/4A UEP SUBANG JAYA 47600 SELANGOR

10 NOV 03

CAPT REVI CHANDRAN GENERAL MANAGER ISLAND AIR SDN BHD.

Dear Sir,

NOTICE OF RESIGNATION

I regret to inform you that I would like to submit my 3 months notice of resignation as required by my appointment letter effective today. As such, my last day of employment would tentatively be on 9 Feb 04.

I would like to thank you for giving me the opportunity to be part of an exiting company, which is truly blessed with continuous success. It was indeed an honour and privilege to be of service to the YTL family and to assist your goodself on many of the flights.

I believe that no one is indispensable, hence, my departure would only allow a better more experience pilot to contribute to YTL. I know, we had our ups and downs, and after careful thought, I feel it is best for me to resign. However, I sincerely hope that we can part as friends. Thank you and hope that you have a successfully career with YTL.

Yours truly,

signed. 13

The first paragraphs of the said letter of resignation letter indicates that the Claimant

is electing to exercise his rights as provided by para 10 of his letter of appointment

as per CLB pages 1 to 6 whereby termination can be effected by either the Claimant

or the Company. It indicates on a balance of probability that the Claimant on his own

volition is exercising his rights as provided for in the said letter of appointment. The

Claimant had also stated at the third paragraphs of CLB page 16 that he had given

“careful thought’ in putting in his letter of resignation. It would then on a balance of

probability be that the Claimant he was not forced to resign but voluntarily chose to

do so.

The Claimant too at the same third para acknowledged that, “we had ups and

downs” and after careful thought, “I feel it is best for me to resign”. The tone and

choice of words, on a balance of probability indicates that the decision to resign was

the Claimants own after careful thought and is what the Claimant feels best for him

to do.

The Claimant in fact, thanked COW1 in the second paragraph and considered it a

privilege and honour to have worked with COW1.

The Claimant though acknowledging that he had ups and downs with COW1

sincerely hope that they can part as friends.

A perusal of CLB page 16 would on a balance of probability show that the Claimant

had resigned on his own after careful though. The Claimant was exercising his right

under item 10 of his terms of employment where he is given the right to give three

14

months notice to the Company if he wished to tender his resignation. In the

circumstances and on a balance of probability, the Claimant then cannot be said to

have been forced by anyone let alone COW1 to tender his resignation. There is no

allegation of wrong doing, victimization or mistreatment by anyone including COW1

and it was a parting of friends.

The Claimant’s main argument that there had allegedly been mistreatment,

victimisation and stress caused by COW1 as his main reason for his alleged

constructive dismissal does not appear in his resignation letter, CLB page 16 which

on a balance of probability was sent first on 9 November 2003.

No arguments were ever put forward by the Claimant that had the resignation as per

CLB page 16 was made and sent first by the Claimant thereby indicating that he had

by himself voluntarily resigned, there would have then been no “forced resignation”

for the Claimant to claim constructive dismissal. It flows then that the fact that the

Claimant could have had a change in mind after tendering the said resignation letter

to Mas would only be that of an afterthought or at most in the words of the Claimant

as per para 22 of CLWS, an act “on the spur of the moment”.

From the analysis of the facts of this case, the evidence of COW1 and the Claimant

and the unchallenged evidence of COB2, the Court finds on a balance of probability

that the Claimant had sent CLB page 16 first on 9 November 2003 to Mas to be

delivered to COW1 the next day (10 November 2003) before sending the email as

per CLB pages 13 and 14 to COW1 and COW2.

15

From the tone and wordings of CLB page 16, the Court finds on a balance of

probability that the Claimant by putting in his resignation as per CLB page 16 had

done so voluntarily.

It is also to be noted that the first paragraph and in fact the first sentence of page 16

CLB indicates that the Claimant was giving a three months notice. It is also in line

with the parting as friends to give three months notice. Had the situation been

different and the condition so bad, would the Claimant on a balance of probability

give a three months notice and continue to work with the Company? Would the

Claimant be more than willing to continue to face the very stress, humiliation,

victimization and mistreatment for the next three months?

From the undisputed evidence of COB2 containing the Claimant’s own handwriting

and the date 9 November 2003, the Claimant’s statement in CLB page 14 and CLB

page 70 that, “my letter of resignation will be submitted to you tomorrow”, make no

sense. It is also pertinent to note that both CLB page 14 and page 70 had the last

sentence hanging in that, “I sincerely hope that you have the heart to allow me to

resign and ...”. The question the begets one is “and” what?

A perusal of page 14 CLB would show that the email could not have been sent at

5.29 am as stated at CLB page 70 as it referred to “the incident this evening”. At

page 14 CLB, the Claimant stated, “if going to the toilet at 1710”. 1710 is 5.10 pm

could the Claimant at 5.29 am predict with certainty what will happen at 5.10 pm later

in the day and thereafter? The Claimant admitted that he was in the office on 9

November 2002 from 9.30 am till after COW1 returned to office which would have

16

been later than 5.10 pm. The Claimant too would not have seen his doctor or be

advised and got his MC as per CLB page 15 as he was working as claimed by him

as per page 7 CLWS, fifth incident. It would on a balance of probability be more

probable that the time and date of CLB page 70 (pages 14 CLB) to be 5.29 am on 10

November 2003.

It is also not disputed by the Claimant and also COW1 that COW1 did not ask the

Claimant to resign on that day (9 November 2003). COW1 could then not have

forced the Claimant to resign on 9 November 2003 nor forced him to give CLB page

16 to Mas on the same date. It would then be probable on a balance of probability

that the Claimant would have acted on his own to type out the resignation letter as

per CLB page 16 before or on 9 November 2003, date it as 10 November 2003 and

put it in an envelope with a note as per COB2 attached to it for Mas to hand it over to

COW1 the next day (10 November 2003). The Claimant could not on a balance of

probability have handed CLB page 16 on 10 November 2003 as he was on MC.

Upon a close scrutiny of the totality of the evidence before this Court, the Court finds

on a balance of probability that the Claimant had tendered his resignation letter as

per CLB page 16 to Mas on 9 November 2003 and the Claimant had done so after

careful thought. From the Claimant’s own testimony and account of the incident on 9

November 2003, COW1 did not ask the Claimant nor forced the Claimant to resign

on that date.

17

Flowing from the above, there is no evidence that anyone let alone COW1 had

forced the Claimant to write and put in his resignation letter as per CLB page 16 on 9

November 2003.

The Court also finds from the flow of events gathered from the evidence of the

Claimant, COW1, COB2 and the Claimant’s documents, CLB, especially CLB pages

14 and 70, the email was sent after the resignation letter on the spur of the moment

after considering the doctor’s advice. The Claimant was given medical leave on 10

November 2003 as per CLB page 15. It would have been after work on 9 November

2003 that the Claimant would have seen the doctor and obtained the medical

certificate. If the email was sent as stated by the Claimant after considering the

doctor’s advice and the time stated on CLB page 70 is 5.29 am, then it could not on

a balance of probability be 5.29 am 9 November 2003 but it all probabilities be 5.29

am 10 November 2003. It is also noted that the Claimant claimed that the email was

sent by him from his home and not the office. It then can only be send after 5.10 pm

9 November 2003 and not earlier as the Claimant was not at home but in the office.

The Claimant then after considering the doctor’s advice had time to ponder and in

the spur of the moment wrote on a balance of probability CLB pages 13 and 14 an

unfinished letter containing allegations against COW1 on a balance of probability at

9.25 am 10 November 2003. In the circumstances, the Court finds on a balance of

probability that the email was more of an afterthought. Based upon the above said

findings alone, the Claimant’s claimed would have failed and be dismissed as he had

voluntarily resigned on 9 November 2003. It is also to be noted that if the said letter

of resignation is voluntarily (CLB page 16) then there is no dismissal on 10 February

2004 the date stated in the ministerial reference.

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Issue Of Constructive Dismissal:

Be that as it may, even if the Court were to be wrong, the Court will consider the

allegation in the said letter CLB pages 13 and 14 which was the basis of the

allegation of constructive dismissal. The allegations as per page 14 are as follows:-

Dear Sir,

It is with deep regret that I wish to inform you of my intention to give you my notice of resignation with immediate effect. The incident this evening has hurt me a great deal and am unable to cope with the knowledge that you do not trust me. You have on 3 occasions accused me of not being present at the office when each time I was there. I have never left the office without you or Capt Sim’s permission. If going to the toilet at 1710, the time when you called the office after being on duty since 0930 hrs, is considered as missing, then I have no choice but resign to the fact that I cannot continue working under this conditions. In Jul 03, you accused me of being a “contagious disease” that need to be removed just because I objected to some of your proposals in a meeting held 12 March 03. After repeatedly apologising to you and agreeing to “tow the line”, you told me that I would be promoted to captain on AS365N2 helicopter and my salary would be adjusted to RM8,000.00 as the agreed amount in my Letter of employment starting 1 Aug 03. You have revised this date 1 Sep 03, then 1 Oct 03. Till date, I am still co-pilot and the only increment I received was my annual increment. I am unable to handle the mental stress of disappointment over and over again. I cannot sleep at night and am totally stressed out. This has greatly affected my emotions and sad to say it has also affected my marriage. I tried to improve my relationship with my family by going for holiday in Pangkor Laut but it has not help much. Your sudden outburst time and again in front of my subordinates has not help either. I feel totally embarrassed and frustrated. My letter of resignation will be submitted to you tomorrow. Thank you. Capt Ravindar Singh I sincerely hope that you have the heart to allow me to resign and

First Allegation CLB Page 14:

The first of the allegation against COW1 was that COW1 had on three occasions

accused the Claimant of not being present in the office. According to para 6 (h) of 19

the Statement of Case, two of the said occasion were in June 2002 and October

2002. The third was on the 9 November 2003. With regards to all the three

incidents, the Claimant did not testify at any point of time in the three incidents that

COW1 did ever mention to the Claimant that “COW1 did not trust the Claimant or

had asked the Claimant to resign”. In fact the Claimant in no uncertain terms said

that COW1 did not ask the Claimant to resign on the third occasion which was 9

November 2003.

The Claimant in his Witness Statement, CLWS in answer to Question 17 regarding

the fifth incident said that COW1 had in the presence of Mr. Jagjeet (CLW2) accused

the Claimant of being missing from the office. COW1 in answer to Question 11 of his

Witness Statement, COWS-1 did not deny the fact that he could have checked on

the Claimant. Under cross examination at pages 8 and 9 of the Notes of Proceeding

dated 21 July 2002, COW1 said the following:-

Q : I refer to your answer to Question 11 COWS1. On several

occasions when you were in flight, did you accuse Claimant of

being missing from the office?

A : Missing from office, no, I did not accuse him. I might have

been looking for Claimant because Claimant helps us in the

office as he keeps track of our aircraft in flight. There could

have been occasions I could have asked him about the weather

etc.

Q : Did you make Claimant call you back on the office phone just to

prove that he was in the office?

20

A : No, I might have wanted some information and that is why I

have asked him to call me back.

Q : What was the basis of your belief that Claimant was missing in

the office?

A : I never accuse Claimant of missing from the office, he could be

nearby at the hangar.

Q : Have you ever found Claimant missing from office?

A : I can’t recall.

Q : Have you ever issued any warning letter to Claimant for being

missing in the office?

A : No, I don’t think so.

Q : I put it to you, you have no genuine reason to check on Claimant

and you acted in the manner because you intended to cause the

Claimant into resigning?

A : No.

The Claimant called CLWS-2, Mr. Jagjeet Singh to testify and CLWS-2 said the

following in answer to Question 10 of his Witness Statement, CLWS-2 as follows:-

Q10 : Do you recall of any other incident at work between the General

Manager and Capt. Ravindar?

A : Yes. I recall a couple of times the General Manager while in

flight called the operations room and asked “Where is Capt.

Ravindar”. Before, I could answer, he instructed me to tell Capt.

Ravindar to call him back from the office phone.

21

A perusal of CLW2’s answer on a balance of probability shows that COW1 did not

“accuse in the presence of CLW2 that Claimant was missing from the office” as

alleged by the Claimant. This is because before CLW2 could answer, COW1 had

asked CLW2 to ask the Claimant to call back. There was no accusation by COW1.

There was no mention by COW1 that the Claimant was missing from the office. The

Claimant also was not there so the Court thus finds on a balance of probability, the

Claimant’s claim that COW1 had accused him of missing from the office in the

presence of CLW2, not proved. CLW2 was not aware of the third incident as he had

left the Company in April 2003. No witnesses were called to support the first and

third incidents. What remain were the bare assertions of the Claimant.

The Court took into consideration that there was the Claimant’s allegation on only

three occasions where COW1 was alleged to have called the office and had asked

the Claimant to call back. One in June 2002, one in October 2002 and the last being

9 November 2003. There was a three months gap between the first and the second

call and almost more than a year between the second and the third allegation. Could

the three incidents cumulatively be taken to be that COW1 was checking on the

Claimant and be regarded as COW1 “do not trust” the Claimant. An analysis of the

Claimant, CLW2 and COW1’s evidence coupled with the fact that no warning letters

were issued to the Claimant would on a balance of probability show that there was

no accusation by COW1 that the Claimant was missing from the office. The Court

also finds COW1’s answer under cross that COW1 might have wanted some

information from the Claimant as being the reason why COW1 had asked the

Claimant to call COW1 back on a balance of probability, probable. It then cannot on

22

a balance of probability be a basis to conclude that COW1 was checking and had

“not to trust” the Claimant.

As for the third incident, the Claimant at page 14 CLB said, “if going to the toilet at

1710, the time when you called the office after being on duty since 0930 hrs, is

considered missing then I have no choice but resign to the fact that I cannot continue

working under this condition”.

COW1 had denied as stated earlier that he ever accused the Claimant of “missing” in

the office. The Claimant in fact at page 7 of CLWS-1 said that what COW1 said was

“timing is everything, when I need you, you were not there”. The question then is,

was what COW1 said not a fact or was it a baseless accusation?

The Claimant admitted that when COW1 called him at 5.10 pm, the Claimant was

not there as the Claimant had gone to the toilet. Was it not a question of timing? Or

could it be said that COW1 was just picking on the Claimant? Did COW1 make an

issue of the incident on 9 November 2003? It is undisputed that no action was taken

by COW1 with regards to this incident? There was thus no evidence of victimization

or mistreatment by COW1. COW2, Captain Sim, was called by the Company but

never cross examined by the Claimant with regard to the incident on 9 November

2003. The evidence of the Claimant remains unsubstantiated. Mr. Rashidi Mustaffa

too was not called by the Claimant to support his case. What remains is the

Claimant’s allegation vis a vis COW1’s explanation.

23

The Court after looking at the totality of evidence before it finds on a balance of

probability that the Claimant’s allegation of COW1 accusing him of being missing

from office, not proven.

Second Allegation As Per CLB Page 14:

The second allegation made in CLB page 14 was the incident in July 2003 whereby

COW1 accused the Claimant of being a “contagious disease that need to be

removed”, because the Claimant objected to COW1’s proposal in a meeting held on

12 March 2003.

With regards to the meeting on 12 March 2003, the Claimant at pages 8 and 9 of the

Notes of Proceeding dated 7 December 2007 said:-

Q : Refer to third para in Witness Statement page 6 as to 3rd

incident. What was it that the GM wanted you to tow the line?

A : On 12th March 2003, the GM called for a meeting. At that

meeting, he made a statement where half of our annual leave

would be at the discretion of the Company. He will decide when

we can take half of that annual leave. I oppose his requirement

of his and I requested that this requirement be given to me in

writing. The GM agreed to give me this requirement in writing

and almost immediately after that said he did not want to give

me in writing. This incident happens in the presence of Captain

Sim Kian Peng, Mr. Jagjeet Singh, Mr. Rashidi Mustaffa and the

secretary of the GM.

24

In July 2003, he accused me of using insubordinate language

and to comply to his requirement. That is the time that he said I

was the contagious disease that need to be removed as it would

corrupt the minds of the employee and asked me to tender my

resignation.

Court : Why did you oppose?

A : The Company operates the helicopter 24 hours a day and we

are required to work any time, there is a request for a flight. As

my term of employment allowed me to take 14 days leave a

year, I felt that it was not reasonable for GM to take away seven

days of my leave. That is why I requested him to give his

requirement in writing.

Q : Would you agree that granting of leave will be subject to work

requirements in any event?

A : Yes.

Q : How many pilots did Company have, including yourself?

A : Three.

Q : Two helicopters?

A : Yes.

Q : What was it that the GM wanted you to do to tow the line in July

2003?

A : The GM wanted me to agree to all his proposals at future

meetings and not to oppose him again.

25

The Claimant also produced CLB page 69, a notice of meeting. COW2, Captain Sim

under cross examination at page 13 of the Notes of Proceeding dated 27 August

2008 said the following:-

Q : I refer to the email at CLB page 69 dated 10th March 2003. Do

you remember attending this meeting on 12th March 2003?

A : I could not remember the date but if it was about leave

application and Company’s expectation, I did attend.

Q : Do you agree that in that meeting the Claimant objected to

COW1’s attempt to implement restriction on employee going on

annual leave?

A : Yes.

Q : Do you agree that after the meeting, the Claimant made a phone

call to HR Manager, Mr. Kuldeep Singh, in your presence to

complain about COW1?

A : I could not remember.

Q : Do you remember the Claimant informing you after the phone

call that the HR Manager asked the Claimant to resign if he

cannot work with COW1?

A : I couldn’t remember.

Q : I put it to you, Claimant did inform you that Claimant was asked

to resign by HR Manager?

A : As I mentioned earlier, I couldn’t remember.

COW1 at page 7 of the Notes of Proceeding dated 21 July 2008 said the following:-

26

Q : I put it to you, in the meeting, the Claimant objected to your

proposal as stated in email as per pages 13 and 14 CLB1?

A : No.

Witness : Which part of email?

A : “In July ...”, Claimant objected to your proposals.

Witness : What proposals, “you said the Claimant had 14 days

annual leave and the Company will take away 7 days and

decide when Claimant can go on leave and Claimant can

decide on 7 remaining days”.

If this is the proposal, it was not a proposal, it was

actually a discussion and suggestion that Company

employees who were pilot and technical staffs are

encouraged to take their leave while the aircraft is in

maintenance as that time there is not much flying and

they can better utilise their leave. This was a suggestion

which I recall Claimant was not very happy about and this

was also not implemented.

Q : I put it to you that you were unhappy with the Claimant for

having objected to your proposals and that was why you told

him that he was a contiguous disease that needed to be

removed?

A : In Management, there is bound to be disagreement and I have

never taken this into mind. And I never contend those words

that the Claimant was a contiguous disease that need to be

removed.

27

Q : I put it to you that, after that you subjected the Claimant to

mistreatment in order to force Claimant into resigning from

Company?

A : I did not do any of such things. In fact, prior to his resignation,

he had asked to go to Pangkor Laut for holiday, sometime late

October and I did arrange for him personally and if mistreatment

is going to be an issue, why should I sent him for Instrument

Rating.

The Claimant also produced as part of his Bundles CLB pages 36 and 37, a letter

from Mr. Kuldeep, the Personnel Manager. Where Mr. Kuldeep in the said letter

stated the following:-

“We deny that you have brought to the attention of management that you were allegedly victimised by Capt. Revi Chandran nor have we received any complaint, formal or otherwise from you, prior to receipt of your resignation letter. In fact, this alleged issue of victimisation was only brought up to management by you after you receipt our letter dated 1.12.2003 requesting you to repay the amount owing to us pursuant to the Agreement dated 1.7.2002.

We expressly deny that we have received “repeated” appeals and requests to meet and receive your complaint against Capt. Revi Chandran.

You had ample opportunity to submit a formal complaint against Capt. Revi Chandran at any time but instead failed to do so.

The issue of the reluctance of your “superiors” to act as alleged clearly does not arise as notwithstanding that we had not even received a formal complaint in the first place which you orally advised us that you would be submitting, we had nevertheless at our own volition investigated the matter. As you had chosen not to submit a formal complaint and to present your case obviously we had no alternative but to undertake our own investigations based on the available facts.

We expressly reject your reason for not handing over the formal complaint as there is absolutely no basis for your allegation that we had acted in the manner alleged.

28

As it is clear that you had voluntarily resigned from the Company, the issue of you alleged “forced resignation” does not arise.

We believe that we have addressed the issue raised by you which appear to be an afterthought only upon your receipt of our demand for repayment of the amount payable to us.”

An analysis of the totality of the above evidence shows that there was in fact a

meeting held on 12 March 2003 and the agenda was to discuss about annual leave

and the Company’s expectation. From the evidence of the Claimant and CLW2, the

Claimant did object to COW1’s proposal. According to COW1, the proposal was not

implemented.

The Claimant did not in his Statement of Case raise any issue with regards to the

meeting on 12 March 2003. At page 6 of CLWS-1 first para of the third incident, the

Claimant also stated that it was never brought up against him on or after the meeting

but. was only brought up in July 2003 after the gap of about four months. Under

cross examination at page 8 of the Notes of Proceeding dated 7 December 2007,

the Claimant said he protested on the 13 March 2003 to Mr. Kuldeep Singh. When

COW2 was cross examined, the Claimant’s counsel had put to COW2 that the

Claimant complained to Mr. Kuldeep after the meeting. COW2 said, he cannot

recall. Mr. Kuldeep as per his letter CLB page 36 denied that there was such a

complaint verbal or otherwise. Based upon the above evidence, the Court finds on a

balance of probability that the Claimant did not complain of the incident on 12 March

2003 to Mr. Kuldeep. The fact remains that there was a meeting on 12 March 2003

where COW1 had made a suggestion to which the Claimant disagreed or was not

happy about. The suggestion was not implemented and no action was taken against

the Claimant let alone that he was victimised or mistreated for it. The Court finds

29

COW1’s explanation that there is bound to be disagreement in Management,

probable. COW1 had stated that he had never’taken the Claimant’s objection “into

mind” and the evidence from CLB page 36 indicated that there was no such

complaint of the incident on 12 March 2003 or thereafter.

The Claimant did not raise the issue of the meeting in his Statement of Case and did

not say he objected nor complained of it at page 6 of CLWS. The Claimant then

shifted his stand to making a complaint on 13 March 2003 but later changed it to

after the meeting on 12 March 2003 when putting it to COW2. CLB page 36 was

tendered by the Claimant and is part of his own case. Mr. Kuldeep specifically deny

that there was any complaint. The Claimant’s evidence on the complaint then

remains unsubstantiated and at the very least contradictory. It affects his credibility

and weight to be given to his evidence as against that of COW1 pertaining to the

allegation that COW1 did accuse the Claimant in July of being a “contagious disease

that needs to be removed”. The Court finds on a balance of probability COW1’s

evidence on this point more credible and probable that he did not utter those words

nor asked the Claimant to resign. The Court had the opportunity of seeing both the

Claimant’s and COW1’s demeanor when they gave evidence. COW1 was firm

while the Claimant as stated above seen to be wavering and changing his stand.

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

allegation.

30

The Third Allegation As Per Page 14:

This is pertaining to the promise of promoting the Claimant to Captain starting 1

August 2002 revised to 1 September 2003 then 1 October 2003 and till the effective

date of his resignation ie, 10 February 2004, the Claimant was not promoted. It is

pertinent to note that at page 9, eighth incident of CLWS-1, the Claimant said COW1

informed him that COW1 would promote the Claimant as of 1 August 2003 based on

clause of the Claimant’s letter of appointment. Clause 6 of the Claimant’s letter of

appointment as per CLB page 2 is as follows:-”

“As Captain:

After having obtained the necessary Company aircraft Type Ratings

including Instrument Rating as applicable and meeting the pre-

requisites for Command, you could be appointed as Company Captain.

In this instance, your gross salary will be readsjusted to RM8,000.00

(Ringgit Malaysia : Eight Thousand Only) per month”.

Based on Clause 6, COW1’s promise would then be subjected to the Claimant

obtaining the necessary aircraft Type Rating including Instrument Rating as

applicable and meeting the pre-requisites for command. What was the Rating that

was applicable in this case? It then will depend on what aircraft the Claimant is

flying. It is not disputed that the Claimant was flying the AS 365N2. It is also not

disputed that the Claimant only sat for the relevant Instrument Rating test for As 356

N2 on 8 November 2003 and received his Instrument Rating (got it endorsed) on 10

November 2003. This was after the Claimant had sent to Mas on 9 November 2003

his resignation letter, CLB page 16. Basing on his own words as per page 9 CLWS-

1, COW1 only had “informed” the Claimant that he will be promoted based on Clause

31

6. This runs contrary to CLB page 14 that there was a “promise” to promote the

Claimant to captain on 1 August 2003. There is a lot of difference between “inform”

and “promise”. There is also a world of difference as to the condition and training

which was “based on Clause 6” and “on 1 August 2003”. The first merely stating the

facts and being conditional while the other specific with a date fixed. The Claimant,

from his own evidence, seems to be blowing hot and cold at the same. At the very

least he is contradicting himself. The dates of the promise too keep changing dates

does not imply that the pre condition of Clause 6 have yet to be complied with?

The Claimant did not adduce any evidence before this Court that he had attained the

necessary rating prior to 10 November 2003 to enable him to be promoted to captain

as provided by Clause 6 of the Claimant’s letter of appointment. If one were to take

what the Claimant said at page 9 of CLWS-1, then COW1 had not on a balance of

probability victimised or mistreated the Claimant by not promoting him as the

Claimant had yet to attain the said rating. Then there is still the pre requisite for

command.

It is also pertinent to note what COW1 said in answers to Questions 13 to 16 COWS-

1 as follows:-

Q13 : Was there a guarantee that the Claimant would be Captain?

A : No, there was never any guarantee. As you can see, the letter

states that the Claimant “could” be promoted to Captain. It

would still be within the discretion of the Company. We must

also bear in mind that the Company is not a commercial airline.

It is a private company and decisions to appoint captains are

very much at the discretion of the Company.

32

Q14 : Looking back again at page 2 of the Claimant’s Bundle of

Documents, it states here that the employees must obtain

necessary instrument ratings. Did the Claimant receive the

required ratings as per the letter of appointment so that he

would have the pre-requisites to be considered for promotion to

Captain?

A : From my recollection, the Claimant only received the relevant

instrument rating on 10 November 2003. In regard, he did not

have the pre-requisites to be considered for appointment as

Captain in any event until 10 November 2003.

Q15 : What is this document on page 47 of the Claimant’s Bundle of

Documents?

A : This a Certificate of Test for Instrument Rating endorsed by the

Department of Civil Aviation (DCA).

Q16 : Could you tell us the date this document was stamped?

A : If you look at the document, the date is stated as 10 November

2003.

COW1 at pages 9 and 10 of the Notes of Proceeding dated 21 July 2008 said as

follows:-

Q : Refer to answer to Question 13 COWS1, by your answer, is it

the discretion of Company to promote Claimant as Captain?

A : That is correct.

Q : When you say discretion of Company, does it mean it is in your

discretion?

33

A : It is totally not my discretion, I do recommend to the Board and

the Board decides. Normally what happen is that all pilots

undergo a series of training after which they will be evaluated for

consideration to the Captain as this is a private Company, it is

totally up to the owners to decide.

Q : Refer to your answer for Questions 14 to 18, by your answers,

are you suggesting that you did not promote Claimant because

he did not have his Instrument Rating?

A : That is not the only reason.

Q : What was the other reason?

A : The other considerations are of which is attitude and work

ethics. There was one incident involving a VVIP flight to

Pangkor Laut, the crew, me and the Claimant. The departure

was at 8.00 am, at about 7.40 to 7.45, the Claimant was not yet

at the aircraft and Claimant was staying in Pangkor Island and I

called him and I believed he was still in bed.

Nevertheless, I prepared the aircraft myself for the flight. By the

time Claimant arrived, the VVIP was already there. So there are

the things we look at the forward captaincy in our Company. We

look at the overall picture. I do not wish to go further than this

incident.

COW2, Captain Sim in his examination in chief at page 10 of the Notes of

Proceeding dated 27 August 2008 said the following:-

34

Q : Try to recall one incident of VVIP’s flight to Pangkor Laut and

the crews were supposed to be COW1 and Claimant. Do you

recall COW1 complained to you of Claimant’s absence - flight

from Pangkor Laut?

A : Yes, I know.

Q : How did you find out?

A : I was informed by COW1.

Court : What happened actually?

A : What I recall, it was a flight from Pangkor Laut taking VVIP.

Captain Revi (COW1) was already at the heliport and the

Claimant was not there. Later Claimant did turn up but by then

the passengers were already there.

COW2 was cross examined on the incident from pages 13 to 16 of the same Notes

of Proceeding. From the evidence of COW2, the Court finds on a balance of

probability COW1’s version of the Pangkor Laut incident, proven. Would it then not

raise on issue with regard to this ability and of his pre requisite to command?

After a critical evaluation of the evidence before this Court on this point, the Court

finds on a balance of probability that the Claimant’s allegation against COW1 of

victimisation or mistreatment with regards to the Claimant’s .promotion to Captain

is not proven.

35

Fourth Allegation As Per CLB Page 14:

The fourth and final allegation at CLB page 14 was COW1’s “sudden outburst time

and again in front of my subordinates” has not help either.

With regard to the incident of sudden outburst, the Claimant at page 2 para 6 (a) and

(b) stated as follows:-

(a) on 24.2.2003, the General Manager embarrassed and humiliated the

Claimant by angrily shouting at the Claimant in the operations room in

the presence of his subordinates, Mr. Jagjeet Singh, and accused the

Claimant without any valid reason or cause of reporting late to work

and cheating by recording 9.30 am in the daily attendance form;

(b) in October 2003, in presence of another subordinate, Mr. Ibrahim bin

Razes, the General Manager without any valid cause or reason yelled

at the Claimant for not informing him of a telephone call from

Eurocopter SEA Singapore Pte Ltd. and even though the message was

for the engineer, Mr. Rashide Mustapha, and not for him.

In his Witness Statement, CLWS-1 at pages 4 and 5, first incident, the Claimant

said:-

The 1st Incident

The first incident I can remember was on 24.2.2003. The General Manager

without any apparent cause or reason came into the office and shouted loudly

at me “What time did you come into the office?” After I had informed him that

I came into the office at 9.30 am, he said “How could you have come in at 9.30

when I came in at 9.30”. He further said that “your attendance record

36

always shows 9.30 am”. He then instructed me to record the time in as 9.40

am for that day. He made this statement angrily implying that I had lied. At

that time my subordinate, Mr. Jagjeet Singh, was present and heard the

accusation. Mr. Jagjeet Singh was my Operations Executive. I was

embarrassed and humiliated because the General Manager had wrongly

implied that I had come in late to work and I lied to him. He questioned my

work integrity in the presence of my subordinate.

After that day, I recorded the exact time that I came into office, which

incidentally were earlier that 9.30 am. Subsequently, the General Manager

issued a directive to me to record the time in as 9.30 am for everyday, which

was what I was practising prior to that date. The General Manager did not

offer an apology or any explanation for mistreating me on that day.

I refer to page 39 of the Claimant’s Bundle of Document.

This is a copy of my record of attendance in the Company, On 24.2.2003, the

record shows the time in as 9.40 am. This entry is for the time I was directed

to record by the General Manager on the date of the incident. After

24.2.2003, the record shows the actual time I recorded when I came in to

work. The record shows that later the General Manager circled the recorded

times and wrote the words “Nonsense”. The General Manager wrote a note

on my record directing me as follows; “Working time starting at 0930. If you

come in earlier clock in at 0930”. This was his directive to me to record the

time in as 9.30 am from after that day onwards.

In support of the Claimant’s allegation, CLW2 testified as per his answer to

Questions 7 to 9 of CLWS as follows:-

37

Q7 : Can you refer to the relevant part of the document where the

entries are circled. Were you at work with the Claimant on

Monday, 24.2.2003?

A : Yes. I was. We shared the same office and our tables were

next to each other.

Q8 : Can you recall an incident in the morning after you came in to

work on 24.2.2003?

A : Yes. On that morning, I, remember the General Manager

suddenly came into the office and started shouting loudly at

Capt. Ravindar. He asked Capt. Ravindar what time he came to

the office. Capt. Ravindar said he came in at 9.30 am. The

General Manager said that he came in at 9.30 am and how

could Capt. Ravindar come in at 9.30 am. The General

Manager then accused Capt. Ravindar of putting in wrong entry

in the attendance record. The General Manager then instructed

Capt. Ravindar to change his attendance time in as 9.40 am for

that day.

I felt sorry for Capt. Ravindar because as the Pilot in Company,

this incident should not happen in my presence. The General

Manager should have called Capt. Ravindar to his office and

deal with the matter privately.

Q9 : Do you recall what time did Capt. Ravindar came in to work that

morning?

A : Yes. I was in the office at 9.00 am. I recalled Capt. Ravindar

walking into the office a few minutes before 9.30 am.

38

The Claimant also produced CLB page 39 in support thereof.

COW1 at page 7 of the Notes of Proceeding in his Supplementary answers said:-

Q : Refer to CLWS1 - 1 page 4 - 1st incident.

A : I cannot remember this incident. Even if I raised my voice, it is

so minor, it happens in the course of work and I can’t recollect it.

In aviation, it is a safety problem if you have two Captains in the

cockpit, if they are at loggerheads with each other. I think I have

flown with the Claimant after this incident.

2nd incident - page 5 CLWS-1. This is in normal cause of work.

If I can’t reprimand those under me then the whole office

cannot be run.

From the totality the above evidence, the Court finds on a balance of probability what

the Claimant alleged against COW1 that COW1 had a sudden outburst on 24

February 2003, proven. CLB page 39 reinforces what the Claimant and CLW2 said

of the entry for time recorded on 24 February 2003 as the time recorded was at 9.40

am (0940 hrs). COW1’s only explanation was that he did not shout but his normal

way of speaking is on a higher voice. The Court also finds on a balance of

probability from the Claimant and CLW2’s evidence that the Claimant would have felt

embarrassed and frustrated as a result of the incident with COW1 on 24 February

2003.

The Claimant, however, did not stop there he went further and tried to link what

happened on 24 February 2003 with what is written on CLB page 39. This the

Claimant did not raise in his Statement of Case. A perusal of CLB page 39 would

39

indicate that the writings on CLB page 39 could not have happened on 24 February

2003 as there were entries on CLB page 39 till 28 February 2003. The notes on

CLB page 39, on a balance of probability would not have anything to do with the

allege shouting on 24 February 2003. The note on COB page 39 would on a

balance of probability be done much later most probability after 24 February 2003.

With regards to the note on CLB page 39, the Court finds on a balance of probability

that it was a directive by COW1 for the Claimant to record the time as 9.30 am from

then onwards. COW1 too had explained the notes he made on CLB page 39. The

Court, on a balance of probability finds COW1’s explanation, probable. The sudden

outburst then on a balance of probability remains to have been committed and done

by COW1 on 24 February 2003.

With regards to the second incident, Mr. Rashidi Mustaffa was not called by the

Claimant. No specific question about the incident in October 2003 was put to

COW2, Captain Sim. COW1 denied that he shouted and yelled at the Claimant. At

page 7 of the Notes of Proceeding dated 1 July 2008, COW said of the second

incident, “this is in normal course of work. If I can’t reprimand those under me then

the whole office cannot be run”. From COW1’s answer, COW1 did not deny that he

had reprimanded the Claimant. What is disputed is by COW1 is that in doing so,

COW1 had shouted or yelled at the Claimant in front of the Claimant’s subordinate

one Ibrahim bin Razak. It is the Claimant who is alleging the second incident of

sudden outburst and it is for him to prove it. As the evidence stands, the Court finds

on a balance of probability that the Claimant had not done so. The fact that COW1

had a sudden outburst so on 24 February 2003 does not ipso facto mean that he

could have also done it in October 2003. Evidence must be let. Here it is Claimant’s

40

allegation vis a vis COW1’s denial. No dates for the October 2003 incident were

given whereas for February a specific date (24) was given.

What is proven by the Claimant is the incident on 24 February 2003 which was the

single incident of sudden outburst proven against COW1. It happened some nine

months before the Claimant tendered his resignation. The Claimant did not allege

that COW1 did ask him to resign on 24 February 2003 nor forced him to do so.

There was also no repetition of the alleged incident on 24 February 2003 pertaining

to the clock in and the Claimant did fly with COW1 after that. The Court thus finds,

on a balance of probability that although the incident on 24 February 2003 did

happen, it did not cause the Claimant to resign. The Claimant had himself admitted

that after the incident on 24 February 2003 and that of CLB 39, the time he clocked

in was 9.30 am and there was no issue after that. The Claimant did not aver that

there was any other “sudden outburst” pertaining to the same issue. The Court

accepts the second incident on 24 February 2003 to have happened but it was nine

months after the first incident and also nine months prior to his email as per CLB

page 14. There is no evidence that the sudden outburst was with such regularity

intensity by COW1 to have caused the Claimant to resign. It remains a single act of

sudden outburst by COW1.

Upon a perusal of the totality of the evidence before this Court, the Court finds on a

balance of probability that the single incident the Claimant had proven on 24

February 2003 is not sufficient cause for the Claimant to be said to be “forced” to

resign.

41

The Claimant, however, in his Statement of Case added further grounds to that of

CLB page 14 as per para 6 (d), (f), (g), (i) and (j).

In Goon Kwee Poh v. J. P. Coats [1981] 1 LNS 30, the Court held that in dismissal

cases where the Company choses to give a reason for the dismissal, then it is the

duty of the Court to enquire into it and not go into another reason not relied on by the

employer or find one for it. Similarly, in converse, if the Claimant in constructive

dismissal cases including that of “forced resignation” gives reason for it, the Court

then must enquire into it and not find any other reason not relied on by the Claimant

or find one for it. The Claimant had alleged that he had sent the email as per CLB

page 14 as reason for his subsequent tendering of resignation. Would it then not be

that those reasons as stated in CLB page 14 were the reasons or cause of his

alleged “forced resignation” (see para 10 of Claimant’s submission). No other

reason was stated in the said email at CLB page 14 as being the basis of his forced

resignation. Even if the Court were to accept for the sake of argument, that the

email was sent earlier than his resignation letter CLB page 16, the Court had

considered all the reasons stated in CLB page 14 and finds on a balance of

probability that it does not constitute “forced resignation” to enable the Claimant to

prove his case of constructive dismissal.

The Court had considered all the authorities cited by both counsels for the Claimant

as well as that of the Company as per their Bundles of Authorities as follows:-

(1) Malayan Banking Berhad v. Chan Hock Low [2007] 4 ILR 203;

(2) Bata (M) Bhd. v. Normadiah Abu Samad;

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(3) Harper’s Trading (M) Sdn. Bhd. Butterworth v. Kesatuan Kebangsaan

Pekerja-pekerja Perdagangan [1988] 2 ILR 314;

(4) Stanley Ng Peng Hon v. AAF Pte Ltd. [1978] 1 LNS 186;

(5) Weltex Knitwear Industries Sdn. Bhd. v. Kau Kar Toy & Anor [1998] 1

LNS 258;

(6) Tata Robinson Fraser & Co. v. Labour Court [1989] 11 LLJ 443;

(7) Swedish Motor Assembly Sdn. Bhd. v. Haji Mohd. Ison bin Basa [1998]

2 MLJ 377;

(8) Anwar bin Abd. Rahman v. Bayer (M) Sdn. Bhd. [1998] 2 MLJ 599;

(9) Nadarajah & Anor v. Golf (M) Sdn. Bhd. [1992] 1 MLJ 506;

(10) Kumpulan Perangsang Selangor Bhd. v. Zaid bin Haji Mohd. Noh

[1997] 1 MLJ 789;

(11) Tan Cheng Hin v. Federal Metal Printing Sdn. Bhd. & Anor [1999] 3

MLJ 564; and

(12) V.P. Nathan & Partners v. Illangoran s/o Dorairaj A Suppiah and Anor

[2002] 1 MLJ 341

and find on a balance of probability that the Claimant had not proven that he was

“forced” to resign. Based on the converse of Goon Kwee Phoy’s case, it would then

be unnecessary for the Court to enquire into the other grounds not stated in CLB

page 14.

Lest the Court be accused of not applying its mind to Section 30(5) of the IRA 1967

in arriving at the above decision, the Court will also consider the said additional

allegations as per the Claimant’s statement of claim and his Witness Statement,

CLWS-1. The allegation in para 6(d) is as per the eleventh incident in CLWS-1, para

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6(f) is as per ninth incident, para 6(g) is as per the fourth incident, para 6(i) is as per

tenth incident and para 6(j) is the twelfth incident mentioned in CLWS-1.

The Court notes that the allegations put forward in his Statement of Case para 6(a)

to (j) and incidents in CLWS-1 were not in sequence or chronologically set according

to the dates they occurred. It was lump in a haphazard way more akin like putting in

everything possible to indicate COW1’s mistreatment against the Claimant. It would

have been easier for the Court to consider had it been put in chronological order

showing the regularity and arguing its cumulative effect on the Claimant.

Be that as it may the Court will consider whatever is put before this Court in the

manner and form put forward by the Claimant.

Para 6 (d) - Eleventh Incident:

This allegation was pertaining to the Claimant not being allowed to fly between 3 July

2003 to 26 August 2003.

The Claimant adduced CLB page 52 and CLB page 53 to show that he did not fly

between 3 July 2003 to 26 August 2003. The Claimant produced CLB pages 54 to

60, the Aircrew Individual Flying Hours record showing that the Claimant had flown

the EC 155 and as such should be allowed to fly it during the said period.

The Company through COW1 explained that the last entry on page 54 CLB shows

that he AS 365 N2 aircraft was sent for maintenance on 19 June 2003. The

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Claimant was the one who flew with COW1 to send the aircraft for maintenance in

Singapore.

The first entry on page 52 CLB shows that the AS 365 N2 returned back to base

after maintenance on 27 August 2003. It was flown back by Captain Sim (COW2)

and the Claimant. The Company had established that the AS 365 N2 was sent for

maintenance during the said period. It is pertinent to note the Claimant’s

responsibilities as per his letter of appointment as per page 1 CLB. Para (d) of item

1 CLB page 1 states that the Claimant was to conform to such hours of work as may

from time to time be required of him. The Court had perused CLB pages 50 to 60. It

shows the following:-

“In March, the Claimant flew seven times. In April the total number of times

the Claimant flew was twenty three times and in fact the Claimant flew three

times on 4 April 2003, four times on 12 April 2003 and twice on 24 April 2003.

In May, the Claimant flew three times. In June, seven times. In July once. In

August twice. In September eighteen times and in October thirteen times”.

If one were to take para 1 (d) of page 1 CLB and CLB pages 50 to 60, it is clear that

the Claimant’s working/flying hours would have been in accordance to the

Company’s requirements. The Court finds that to pick and choose a date and use it

to indicate that the Claimant was victimised or mistreated would not on a balance of

probability give a true picture, the evidence as a whole should be taken into

account and this the Court did.

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From the above pages 52 to 60 CLB, the Claimant was not complaining when in

April he flew for twenty three times. The Claimant, however, chooses to pick specific

dates when the aircraft was sent for maintenance to drive the point that he was

victimised. The Claimant by his very own document had proven that there was no

victimisation by COW1 or the Company on this ground.

Para 6 (f) - Ninth Incident:

This is pertaining to the training course for the EC 155. The Claimant alleged that

both he and COW2 attended in May 2003 the ground training certificate for EC 155

aircraft The Claimant produced CLB page 12 in support thereof. However, when it

came to flight conversion training for qualifying as Captain, only COW2 was allowed

to continue by COW1 and the Claimant was left out. This, the Claimant alleged is

tantamount to COW1 victimising him.

COW1 at pages 5 and 6 of the Notes of Proceeding dated 26 August 2003 said the

following:-

Q : Refer to your answer to 9th incident as page 10 CLWS1. Do you

agree that it would have been beneficial for the Company to

have an additional qualified pilot for the EC 155 aircraft. Do you

agree?

A : Yes.

Q : Do you agree it would have also save cost for Company if you

had allowed the Claimant to continue with the flight training

because the instructor was already there for such a purpose?

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A : As I have stated earlier. The instructor came for Captain Sim’s

type conversion of the EC 155 and also as a refresher for me.

The Claimant had not yet made to Captain and in the limited

time the instructor was there, he just concentrated on both of us.

Q : Do you agree that whether or not the Claimant was promoted

Captain is irrelevant for the type conversation for the EC 155

aircraft?

A : It is just up to the Company.

Q : I put it up to you that the training was actually meant for the

Claimant and Captain Sim but you took up Claimant’s slot for

refresher training?

A : No.

Q : Do you agree that you were already qualified to fly the EC 155

aircraft?

A : Yes.

The Court had considered COW1’s explanation that the training was for COW2 and

refresher for COW1, the conversion was for COW2 and not for the Claimant. It is

also stated that the conversion was for Captain and COW2 was a Captain. The

Claimant was yet to be made Captain. COW1 had already qualified so the training

was refresher for him and thus was no necessity for him to go for this type

conversion.

The Court finds on a balance of probability if the conversion was for Captain and the

Claimant was not yet a Captain then it would not be wrong for the Company to

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exclude him from the type conversion. The Claimant had not adduced any evidence

nor disputed that he was yet to be made Captain. As such the Claimant does not

qualify to sit for the EC 155 type conversion as explained by COW1. COW2 and the

Claimant were not on equal footing or in the same shoes for the Company to be

obliged to allow him to sit for the EC 155 type conversion.

Based upon the evidence before this Court, the Court finds the Claimant have on

a balance of probability not able to prove that he had been victimised by COW1 when

he was not allowed to continue with the type conversion for EC 155.

Para 6 (g) - Fourth Incident:

This was pertaining to the allegation on 19 August 2003 where the Claimant accused

COW1 of staring at him for ten seconds and telling him “why do you look so dumb”.

COW1 said “I could have called him for whatever reason but I do not remember the

incident”. COW1, however, disagreed that he called the Claimant to his office to “tell

him that he is dumb”.

The Claimant in fact provided the reason COW1 called him and said that it was for a

briefing on a flight test requirement to Singapore. This is again a one to one

situation between the Claimant and COW1, there is no eye witness or document in

support thereof.

It would have been probable on a balance of probability that COW1 could have

forgotten the incident as he was giving evidence in August 2008, some five years

later as the incident happened on 19 August 2003. It would also on a balance of

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probability been probable that the Claimant could have remembered as he was at

the receiving end. The question, however, is does this amount to victimisation or

mistreatment. The Court will then have to consider the totality of the evidence of the

events on 19 August 2003. The Claimant said that when he replied “Dumb Sir”,

COW1 did not explain and proceeded with the briefing. In the circumstance, the

Court finds on a balance of probability the utterance of such words by COW1 could

not amount to victimisation or mistreatment. COW1 at most was commenting on the

Claimant’s look and did not proceed to say or act further. The comment “why do you

look so dumb” if at all it happened had not been carried further nor it was said to

have been uttered in the close proximity of subordinates to have caused the

Claimant severe embarrassment or mental anguish so as to be tantamount on a

balance of probability to have “forced” the Claimant to resign.

Para 6 (i) - Tenth Incident:

This is pertaining to the allegation that COW1 had subjected the Claimant, COW2

and VIP passengers to “flight safety hazard” from August 2003 to October 2003 for

fifteen flights in total by asking the Claimant to fly on the “right hand seat”. The

Claimant argued that COW2 as Captain should be flying on the right hand seat and

not the Claimant. In support, the Claimant produced CLB pages 66 to 67. The flight

manual items 5 and 3.1.2.

It is pertinent to note that this issue was never raised in CLB page 14 nor in any of

his correspondence with the Company after his letter of resignation. It was not even

raised in his letter of complaint to the Company as per CLB pages 33 and 35 (dated

17 March 2004) even though he had filed a complaint on 29 January 2004 to the

49

Industrial Relation’s Department. The first time it was raised was when the Claimant

filed his Statement of Case in this Court on 5 April 2006, almost 2 1/2 years after his

alleged “forced resignation”. The Court notes that if indeed it was a. really serious

issue of life ant death where the Claimant, COW2 and VIP’s life had been

endangered, it would on a balance of probability have been raised the earliest

possible time as it involves occupational safety which was repeatedly disregarded by

COW1.

Be that as it may, the Claimant explained at length this issue and had cross

examined both COW1 and COW2 also at length. One of the main contentions of the

Claimant was that COW2 was not a qualified “left hand seat captain”.

COW2 had given evidence that he is a qualified left hand seat captain and the Court

on a balance of probability accepts his evidence.

Both COW1 and COW2 explained to the Court the so called safely hazards raised by

the Claimant. The Court had also seen CLB pages 50 to 60 a record of Claimant’s

flying hours. For August to October the relevant pages are CLB page 50 for the

month of October 2003, CLB page 51 for the month of September 2003 and CLB

page 52 for the month of August. All the said pages show that the Captain was

either COW1 or COW2 and the Claimant was “crew”. The Claimant was flying

either as second pilot or “dual”. “Dual” according to COW1 at page 3 Notes of Proceeding

dated 30 July 2008, “means under instruction”. All the flights, the Claimant involved

from August to October were day flights and none night flights. For the month of

October, the Claimant was not involved in instrument flying whether actual or

simulated. For the month of September, all the instrument flying were simulated. In

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August, the Claimant was not involved with instrument flying. All these facts are

relevant when the Court is considering the Claimant, COW1 and COW2 evidence

regarding safety hazards.

If one were to apply the manual, then on all the flights where the commander was

either COW1 or COW2, they would be sitting on the right hand seat. Only the dual

flights, seven in September and six in October would entail the Claimant and COW1

and COW2 sitting in the right hand side or the left hand side. Out of the thirteen dual

flight, the Claimant flew twelve of those with COW1 and only one with COW2.

Would it then mean that the hazard was only for one flight as the hazard was

according to the Claimant, to him and COW2 and the VIP passengers and not to

COW1. These thirteen dual flights would also be near to the Claimant’s claim of

about fifteen flights. The Claimant, however, did not specify the said fifteen flights

even though he had CLB pages 50 to 52 and it is thus difficult for this Court to verify

which of the flights the Claimant is referring to. The Claimant is alleging the “safety

hazard” on a total fifteen flights. The evidential burden is then for him to establish

the said fifteen flights. If the twelve flights with COW1 is to be considered, would it

also mean that COW1 is subjecting himself as well to safety hazard for the said

twelve flights? If so then these we/e not the flights referred to by the Claimant as it

involved COW1.

COW1 said he had verified from the Department of Civil Aviation that if the left hand

seat pilot is qualified, the Claimant can fly on the right hand seat. This is not

challenged by the Claimant. COW1 also testified that the Claimant had been trained

to manipulate the trim switch and briefed on emergency procedures. It is also to be

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noted that one of the conditions for promotion as per Clause 6 of the Claimant’s

employment Agreement CLB page 2 was pre-requisite for “command”. If the

Claimant is given the experience to fly on the right hand seat, would it not on a

balance of probability allow COW1/Company to assess the Claimant’s ability to

command?

It is to be noted that in none of the flights from August to October was the Claimant

flying alone.

Even if one were to give the Claimant the benefit of the doubt and take all the flights

in August to October which the Claimant was flying with Captain Sim (COW2) which

also in fact total fifteen (two in August; eight in September and five in October) one

was with the EC 155 (14 October 2003), one was a “dual” flight ie, the Claimant had

flown under instruction of Captain Sim. The Claimant had given evidence that he

had yet to get his conversion for the EC 155 and that Captain Sim had obtained his.

The Claimant had undergone the ground course for the EC 155 in May as per

allegation in the ninth incident and since COW2 had sat for and is a qualified Captain

for the EC 155, it does not matter if the Claimant was on the right hand or the left

hand seat when COW1’s evidence is taken into consideration. This would mean the

flight safety hazard could not have been for fifteen flights as the two flights stated

above would on a balance of probability show the Claimant was flying on the left

hand seat. With regards to flight safety hazard, COW2 gave evidence under cross

examination as per pages 17 to 21 Notes of Proceeding dated 27 August 2008. The

Court had heard his explanation and observed his demeanor. COW2 was firm and

answered without hesitation. COW2 had been truthfully as he had even testified of

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the incident involving the Claimant and COW1 on 12 March 2003. The Court

accepts on a balance of probability COW2’s evidence that there were no flying

hazards when COW2 flew with the Claimant.

Based on the totality of the above evidence, the Court finds on a balance of

probability, that the Claimant’s had not proved the above said allegation.

Para 6 (i) - Twelfth Incident:

This is the allegation of tempering with the Training Bond. The Claimant claimed

that he was not given a copy of the Training Bond when he signed it. COW1,

however, admitted that he read the bond at the time of signing it.

The Claimant claimed that when he read the bond, the required time to serve was

three years. The Claimant said he was surprised of two things when he received

CLB page 18 on 1 December 2003. The first was that he was obliged to work for

five years on Training Bond for conversion of the AS 365 N2 aircraft. The second

being the Training Bond was dated 1 July 2002, while the Claimant claimed that he

only signed the Training Bond in October 2002. The Claimant thus believed that the

said Training Bond to be tempered and back dated.

It is pertinent to note that it is the Claimant who is alleging that there was tempering

of the bond. The duty is then on him to prove his allegation on a balance of

probability and not for the Company to show otherwise. The Claimant wants the

Court to believe on a balance of probability that there was tempering of the said

Training Bond. However, needless to say, the Claimant did not even produce the

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Training Bond in his Bundles of Document, CLB. The Claimant did not aver that he

was not given a copy of the Training Bond. The Claimant though alleging that he

was surprised when he received CLB page 18 on 1 December 2003 and believe the

Agreement/Training Bond had been tempered with, did not raise such issues from

the very first letter he wrote to the Company which was CLB page 20 dated two

days later ie, 3 December 2003. In fact the Claimant requested an extension of time to

pay the compensation which was seven days from 1 December 2003 ie, 8

December 2003. Would the contents of CLB page 20 be then consistent with that of

a person who is surprised and alleged tempering of the said bond?

The Claimant also in CLB page 20 wrote inter alia that he “would like to offer his

expertise or his services at anytime to offset this “or” if there is any other way you

could solve this heavy burden”. It is to be noted that the said CLB page 20 was sent

to the Managing Director of the Company, Tan Sri Dato’ Francis Yeoh Sock Ping.

The Claimant on 13 December 2003 then requested for the said document but did

not state what happen after that. Subsequently the Claimant again email to the MD

as per CLB page 25. He did not raise the issue of tempering of the Training Bond

but only wish to withdraw his resignation. The Claimant again reiterated the reason

he resigned was as stated in CLB page 14. Nothing was said about the tempering of

the Training Bond. In his subsequent email to the MD as per CLB page 27 dated 15

January 2004 too the Claimant did not raise the tempering of the Training Bond. The

Claimant on 19 January 2003 as per CLB page 29 wrote to the Company about the

compensation, the Company requested from him as per CLB pages 18 and 19. This

is what the Claimant said at para 4 of the said letter:-

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“As regards your purported claim of RM50,900.00, I am not liable to

compensate you for any claim due to your refusal to allow me to continue in

the employment of the company without just cause and excuse”.

The Claimant never raised the issue of tempering of the Training Bond. Then in his

undated letter of complaint as per CLB page 33, the Claimant too did not allege

tempering of the Training Bond. In fact at page 34, the Claimant maintained what he

had stated as quoted earlier at para 4 of CLB page 29.

Even in his letter dated 17 March 2004, the Claimant did not raise the issue of

tempering of his Training Bond even though he did make a complaint to the

Industrial Relation Department on 29 January 2004. The Claimant in fact admitted

that he was given a copy of the Training Bond vide Sessions Court summons no. 05-

52-103-2004, but yet did not produce it when giving evidence in this Court. What

then is the document that the Claimant claimed to have been tempered? Is the

Court to guess? If there was indeed tempering why did the Claimant not raise it with

the Company from 3 December 2004 till the filing of the Statement of Case on 5 April

2006. Tempering of a document is a serious allegation. Without proof it remains a

mere suspicion or a mere conjecture. A perusal of CLB page 18 would show that the

Company was referring to paragraphs 4 of the Appointment letter which was Type

Conversion Training. The Claimant’s attention had been brought as early as 4 May

2002 when the Claimant signed the said letter of acceptance at CLB page 6 that the

Claimant understands that the bond period is to be five years.

55

The Claimant had already been forewarned of the five years Training Bond and the

three years Simulator Training as per Clause 5. Clause 4 was specific. It had stated

five years and the same number of years is what the Claimant claimed is stated in

the alleged Tempered Training Bond. It is also noted that the Training Bond was not

an issue that had caused the Claimant to tender CLB page 16 nor was it raised with

the Company in CLB page 14 or when the Claimant filed his Statement of Case.

Upon a scrutiny of the above evidence, the Court finds that the Claimant had on a

balance of probability not proven this allegation.

The Court notes that the Claimant was given an opportunity to reconsider his

decision in putting in his resignation letter. COW1 had asked COW2 to talk to the

Claimant to reconsider his decision to resign and had given the Claimant a week’s

grace to reconsider. COW2 had given back the resignation letter to the Claimant

and asked him to reconsider. The Claimant had time to think and reconsider his

decision to resign and yet chose to continue with his resignation. It is not a case

where the Claimant had no choice and had no time to think. COW1 had in fact

waited till 18 November 2003 as per CLB 17 to allow the Claimant enough time to

reconsider his decision. COW1 only sent the Claimant’s resignation letter as per

CLB page 16 to the Human Resources Department on 18 November 2003 as per

CLB page 17. The Claimant could have at anytime during the said period retracted

his resignation. The Claimant’s choice to continue with his resignation on a balance

of probability would have indicated that his resignation was then voluntarily and not

“forced”. It would also be pertinent to note that as per CLB page 18, the Company

referred to the Claimant’s appointment letter which includes para 10 on termination

56

by the Claimant and the Claimant contractual obligation under para 4 which would

not have arisen had the Company not accepted the Claimant’s resignation.

The Court notes in passing that the date of dismissal as per the Minister’s reference

was 10 February 2004. Was the Claimant dismissed on 10 February 2004? It is to

be noted that 10 February 2004 is the last day of the Claimant’s three months notice

as per CLB page 16, the Claimant’s resignation letter given to Mas on 9 November

2003 and dated 10 November 2003. By not disputing the date of 10 February 2004

as the date of dismissal in the Ministerial reference is the Claimant not admitting that

there was no forced dismissal on 10 February 2004? It is to be noted that there was

no “force” resignation on 10 February 2004, if there was, then the date of dismissal

in the said reference should have been 10 November 2003.

Conclusion:

After a close scrutiny of the evidence before this Court of all the allegations made by

the Claimant, the Court finds on a balance of probability that the Claimant had not

proved that he was “forced” to resign. Flowing from the above the Claimant claim of

constructive dismissal against the Company fails. The Claimant’s claim is hereby

dismissed.

HANDED DOWN AND DATED 16 FEBRUARY 2009

(DATO’ JALALDIN BIN HAJI HUSSAIN) CHAIRMAN

INDUSTRIAL COURT, MALAYSIA KUALA LUMPUR

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