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INDUSTRIAL COURT OF MALAYSIA

CASE NO. 14/4-531/03

BETWEENENCIK NASARUDDIN BIN ABDUL A'ALA

AND

THE NEW STRAITS TIMES PRESS (M) BERHAD

AWARD NO : 124 OF 2013

Before : PUAN SOO AL LIN - CHAIRMAN(Award handed down by PUAN TAY LEE LY)

Venue : Industrial Court, Malaysia in Kuala Lumpur

Date of Order of : 21.7.2003Reference

Date of Receipt of : 11.9.2003Order of Reference

Dates of Mention : 15.10.2003, 18.12.2003, 22.7.2004, 20.1.2005, 14.2.2005,11.8.2005, 17.7.2006, 25.9.2006, 11.4.2007, 3.12.2007,16.1.2008, 16.2.2011, 29.3.2011 and 18.5.2011

Dates of Hearing : 26.11.2007, 27.11.2007, 28.11.2007 and 31.3.2008

Dates of writtensubmissions : 6.6.2009 (Company's) and 23.6.2009 (Claimant's)

Representation : Ms. Sonia Anirudhan of Messrs Haris & Co., learned counselfor the Claimant

Dato' T. Thavalingam of Messrs Zaid Ibrahim & Co., learnedcounsel for the Company

Reference : This is a reference under subsection 20(3) of the IndustrialRelations Act 1967 (IRA) arising out of the dismissal of Encik Nasaruddin bin

Abdul A'ala (Claimant) on 11.2.2004 by The New Straits Times Press (M)Berhad (Company).

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AWARD

A. Introduction

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

Abdul A'ala (Claimant) on 31.12.1998 by The New Straits Times Press (M) Berhad

(Company). The dispute was referred to the Industrial Court (IC) by an order of

the Honourable Minister of Human Resources under s 20(3) Industrial Relations Act

1967 (IRA) on 21.7.2003.

2. The hearing of this case was completed before the previous learned Chairman

of IC on 31.3.2008. The previous learned Chairman was transferred to Legal

Profession Qualifying Board, Malaysia on 16.11.2009. On 24.5.2011, the Honourable

President of IC directed for the award to be handed down by me after both parties

agreed for the award of this case to be handed down by another Chairman. It is to

be noted that vide Award No. 1134 of 2006, the Court allowed the Claimant's

application to amend his statement of case dated 17.12.2003 (SOC).

Consequently, the Claimant filed his amended SOC on 17.8.2006 (ASOC) and the

Company filed its amended statement in reply (ASIR) on 14.9.2006. The Award

for this case was written based on the pleadings, witness statements, documents,

notes of evidence recorded verbatimby the previous learned Chairman (NOE) and

the written submissions of both parties.

B. Brief Facts

3. Both parties did not dispute the Claimant's employment history with the

Company which can be summarised as follows:

(a) the Claimant commenced employment with the Company on

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

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

in Reply dated 26.1.2004 (SIR)];

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(b) he was confirmed in his appointment on 14.6.1980 vide letter dated

9.6.1980 (p. 5 CLB1; exhibit CO-3). His salary was revised in 1983 (p.

6 CLB1) and in 1986 (p. 7 CLB1; exhibit CO-5) to RM2,030.00 per

month;

(c) subsequently the Claimant held various positions in the Company,

which included Marketing Executive in Circulation Department, Kuala

Lumpur, Assistant Area Manager in Central 1, Sales Manager and

Circulation Manager in East Coast;

(d) from 11.6.1991 (p. 10 CLB1) his salary was revised and increased on

several occasions and from 1.1.1998, his salary was revised to

RM4,731 (exhibit CO-15);

(e) from 16.2.1998, the Claimant was re-designated as Circulation

Manager, Region 2 (RCM) vide letter dated 21.5.1998 (p. 19 CLB1;

exhibit CO-16) with the same salary and terms of employment;

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

Letter), the Claimant alleged that he had been constructively

dismissed by the Company with immediate effect; and

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

the Claimant's CD Letter.

4. The relevant portion of the Claimant's CD Letter reads as follows:

RE: Your Letter dated 21stDecember 1998I wish to have placed on record the following matters:

(i) on 24th November 1998, I was relieved of all my duties asCirculation Manager, Region 2 with immediate effect;

(ii) on 26th November 1998, the Assistant General Manager, CirculationSales & Administration was informed that I was, with immediate

effect, relieved of all sale functions and responsibilities in Region 2until further notice.

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(iii) on 27th November 1998, my subordinates were informed that theduties of which I had been relieved as aforesaid were to beundertaken by the Senior General Manager, Circulation.

The above measures were taken without any prior notice to me, nor was I

then informed directly of the same nor of the reasons therefore. At thematerial time, I was also not informed of any alleged dereliction of dutieson my part.

By memo dated 28th November, 1998, the Senior General Manager,Circulation had in no uncertain terms alleged that I had discharged myduties and responsibilities in an irresponsible manner and required me toexplain why disciplinary action ought not to be taken against me. I wasalso directed to explain the nine matters enumerated in the said memo.

I had, vide my letter dated 7th December, 1998, endeavoured to render

my explanation on the nine matters raised in the aforesaid memo. I hadalso made known my disgruntlement with regard to the abovementionedmeasures taken against me. I had also alluded to several other measurestaken, all of which had the effect of undermining my position and authorityas Circulation Manager, Region 2.

To my utter dismay, you have by your letter under reply roundlycondemned the content of my abovementioned letter as a flagrant act ofinsubordination. In this regard. I categorically refute the suggestion thatthe words reproduced in items 1-5 of your said letter were in any wayinsolent and impertinent and undermined the orderly system of conductand discipline in the Circulation Department. I am also unable to shareyour view that the matters listed in items A-E-of your said letter evidencedthat I had defied the authority of my superior. I must also deny that myactions have been inconsistent with the fundamental position of therelationship of employer-employee. My letter was no more than anattempt to render the explanations sought of me and to register myprotest at the most inequitable treatment to which I had been subjectedto. I have since taken legal advice on the matters aforesaid and now writeto say that the matters aforesaid leave me little choice but to regardmyself as having been constructively dismissed from the position ofCirculation Manager, Region 2. I shall now leave this matter in the handsof my solicitors..

C. Claimant's Version

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

that the Claimant's claim is for constructive dismissal on 31.12.1998 and is based on

the following Company's conduct:

(a) on 24.11.1998, without prior notice, warning and/or knowledge of the

Claimant, Wan Razif Wan Musa (COW2) communicated to the

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Claimant's superior at that time, i.e., the Assistant General Manager,

Circulation Sales and Administration (AGM), that the Claimant was

relieved of all duties with immediate effect (paragraph 29 ASOC);

(b) on 26.11.1998, without prior notice, warning and/or Claimant's

knowledge, COW2 vide memo dated 26.11.1998 (exhibit CL-14)

addressed to the Company's AGM and Senior Manager, Circulations

Operation & Non Traditional Channels (SMCO&NTC) at that time,

formally informed that the Claimant was relieved of all sales functions

and responsibilities in Region 2 with immediate effect and until further

notice, and in the interim, COW2 would oversee all sale functions and

responsibilities of the respective branch office under Region 2

(paragraph 30 ASOC);

(c) on 27.11.1998, COW2 vidememo dated 27.11.1998 (exhibit CL-15) to

the Claimant's subordinates (namely one Ms Wendy Wee of Melaka

branch, Encik Asim Mohamad of Seremban branch, Mr. Johnny Wong

of Petaling Jaya branch and Tuan Hj Zainal of Klang branch), copied to

the Claimant, AGM and Assistant Circulation Manager, Marketing &

Promotion at that time, informed that COW2 would directly oversee all

sale functions and responsibilities of Claimant's respective branches

(paragraph 31 ASOC);

(d) on 28.11.1998, COW2 vidememo dated 28.11.1998 (exhibit CL-16) to

the Claimant, accused the Claimant in uncertain terms of making

erratic and irresponsible decisions in respect of daily print order which

affected respective branch offices sales and the decline in sales, which

allegedly had impacted the Company. The Claimant was required to

explain why disciplinary proceedings should not be taken against him

for the alleged irresponsible manner in which the Claimant had

discharged his duties and responsibilities under the operational lines

stated in the memo (paragraph 32 ASOC);

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(e) on 7.12.1998, the Claimant gave an explanation to the Company's

show cause notice dated 28.11.1998. Besides that, the Claimant also

expressed his regret or disgruntlement of certain events specified in his

letter (paragraphs 33 and 34 ASOC);

(f) on 21.11.1998, the Company without and/or failing to address the

explanation given by the Claimant to the show cause notice, issued a

further show cause letter alleging insubordination against COW2

(paragraph 35 ASOC); and

(g) on 31.12.1998, the Claimant submitted his explanation to the

Company's show cause letter dated 21.12.1998 to one Encik Abdul

Wahab (COW1) and treated himself as having been constructively

dismissed by the Company (paragraph 38 ASOC).

D. Company's Version

6. The Company refuted the Claimant's allegation that the Claimant had been

constructively dismissed. The Company deemed the Claimant's conduct as a

resignation. The Company in its ASIR averred inter aliaas follows:

(a) the Claimant was only relieved of sale functions and responsibilities in

Region 2 temporarily. He however was still in charge of operational

administrative matters at the respective branch offices in Region 2. At

that material time, the Company was investigating certain matters in

respect of print order (paragraph 16 ASIR);

(b) the Claimant was issued a memorandum dated 28.11.1998 requiring

him to explain why disciplinary action should not be taken against him

for the irresponsible manner in which he had discharged his duties and

responsibilities. The details of the issues that the Company required

his immediate response were highlighted to him together with the

relevant appendices in the said memo in compliance with the rules of

natural justice and procedural fairness. The memorandum issued to

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the Claimant was pursuant to the investigation carried out by the

Company in respect of the manner in which the Claimant had managed

"Print Order" (paragraph 18 ASIR);

(c) the Claimant made a number of unsubstantiated allegations against his

superior. The Claimant further went to criticise his superior

(paragraph 19 ASIR);

(d) upon receipt of the Claimant's letter dated 7.12.1998, the Company

had no choice but to issue the Claimant with a show cause letter dated

21.12.1998 in respect of the Claimant's insubordination (paragraph 20

ASIR). The Claimant was required to explain in writing on or before

28.12.1998 but had requested for an extension until 7.1.1999. The

Company had granted until 31.12.1998 for the Claimant to respond to

the show cause;

(e) the Claimant did not provide any explanation to the allegations of his

insubordination but instead provided a bare denial (paragraph 23

ASIR);

(f) the Company had responded immediately to Claimant's letter dated

31.12.1998 vide letter dated 6.1.1999 (exhibit CO-25) refuting the

allegations that the Claimant had been constructively dismissed;

(g) vide letter dated 25.3.1999, the Company wrote to the Claimant in

respect of the monies due from the Claimant to the Company (exhibit

CO-26);

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

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

Claimant's possession;

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(i) the Company had not breached any term and condition of the

Claimant's employment entitling the Claimant to claim constructive

dismissal; and

(j) the Claimant's claim is misconceived, premature and based on mere

suspicion.

E. The Law

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

Court of Appeal (CA) case ofWestern Excavating (E.C.C) Ltd v Sharp[1978]

1 I.C.R. 221 (Western Excavating) where Lord Denning M.R. held that the

correct test to apply was the contractual test. Further, at pg 226, his Lordship

stated the contractual test as follows:

... If the employer is guilty of conduct which is a significant breach goingto the root of the contract of employment, or which shows that theemployer no longer intends to be bound by one or more of the essentialterms of the contract, then the employee is entitled to treat himself as

discharged from any further performance. If he does so, then heterminates the contract by reason of the employer's conduct. He isconstructively dismissed. The employee is entitled in those circumstancesto leave at the instant without giving any notice at all or, alternatively, hemay give notice and say that he is leaving at the end of the notice. But theconduct must in either case be sufficiently serious to entitle him to leave atonce. Moreover, he must make up his mind soon after the conductof which he complains, for if he continues for any length of timewithout leaving, he will lose his right to treat himself asdischarged. He will be regarded as having elected to affirm thecontract."

(emphasis added).

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

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

(M) Sdn. Bhd. [1988] 1 CLJ (Rep) 298 (Wong Chee Hong). InWong Chee

Hong, YAA Tun Salleh Abas LP applied the principle in Western Excavating and

held as follows:

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The common law has always recognized the right of an employee toterminate his contract of service and therefore to consider himself asdischarged from further obligations if the employer is guilty of such breachas affects the foundation of the contract or if the employer has evinced orshown an intention not to be bound by it any longer. It was an attempt to

enlarge the right of the employee of unilateral termination of his contractbeyond the perimeter of the common law by an unreasonable conduct ofhis employer that the expression constructive dismissal was used..

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

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

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

deciding whether constructive dismissal has taken place is not toask oneself whether the employer's conduct was unfair orunreasonable (the unreasonableness test) but whether 'theconduct of the employer was such that the employer was guilty ofa breach going to the root of the contract or whether he hasevinced an intention no longer to be bound by the contract" .

(emphasis added).

F. Evaluation and Findings

10. The issues to be determined by this Court is firstly, whether the Claimant had

been constructively dismissed by the Company. If the answer is in the affirmative,

then the next issue is whether the dismissal was with just cause or excuse.

Whether Claimant was constructively dismissed by Company?

11. In Cycle & Carriage (M) Sdn. Bhd. v Choong Nyuk Kiong[2006] 1 ILR

192, the IC stated clearly the law on constructive dismissal in a nutshell as follows:

"The doctrine of "constructive dismissal" is one which is firmly established inour Industrial Law. The burden of proof is on the workman and to provethat he had been constructively dismissed, he will have to establish thefollowing:

(i) there must be a breach of contract by the employer;

(ii) the breach must be sufficiently important or fundamental to justifythe employee resigning;

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(iii) the employee must leave in response to the breach and not for someother unconnected reason; and

(iv) the employee must not delay too long in terminating the contract inresponse to the employer's breach, otherwise he may be deemed to

have waived the breach and agreed to vary the contract ...".

(see also Rasila Hamzah v UMW Corporation Sdn. Bhd. [Award No. 1141 of

2010]; Secure Guards Sdn. Bhd. v Her Bhajan Kaur [1996] 2 ILR 1342; and

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

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

established by the claimant in reference to a dismissal under s. 20 IRA, the court

then moves to the next stage of its inquiry, namely, to determine whether the

company had just cause or excuse for that dismissal. Here, the evidential burden

shifts to the employer to justify the employee's dismissal [see Raus Sharif J's (as his

Lordship then was) judgment in Pelangi Enterprises Sdn. Bhd. v Oh Swee

Choo & Anor [2004] 6 CLJ 157, at 166]. If the above pre-requisites are not

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

Sdn. Bhd. & Anor[1998] 3 CLJ 475].

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

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

Knitwear Industries Sdn. Bhd. v Law Kar Toy [1998] 1 LNS 258 and Chua

Yeow Cher v Tel Dynamic Sdn. Bhd. [1999] 1 LNS 104). In the present case,

learned counsel for the Claimant submitted that the series of Company's conduct as

stated in the Claimant's CD Letter amounted to a breach or breaches of implied term

of mutual trust and confidence. In support of this submission, the Claimant's

learned counsel relied on the case of Woods v W.M Car Services

(Peterborough) Ltd. [1980] ICR 666 wherein Browne-Wilkinson J. (as his Lordship

then was) (at p. 670) stated as follows:

In our view it is clearly established that there is implied in a contract ofemployment a term that the employers will not, without reasonable andproper cause, conduct themselves in a manner calculated or likely to

destroy or seriously damage the relationship of confidence and trustbetween employer and employee: Courtlaulds Northern Textiles Ltd v.Andrews (1979) l.R.L.R. 84. To constitute a breach of this implied term it

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is not necessary to show that the employer intended any repudiation ofthe contract: the tribunal's function is to look at the employer'sconduct as a whole and determine whether it is such that itseffect, judged reasonably and sensibly, is such that the employeecan not be expected to put up with it.

(emphasis added).

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

(Lewis), the English CA stated as follows:

It is now well established that the repudiatory conduct may consist of actsor incidents, some of them perhaps quite trivial, which cumulativelyamount to a repudiatory breach of the implied term of the contract of

employment that the employer will not without reasonable and propercause conduct himself in a manner calculated or likely to destroy orseriously damage the relationship of confidence and trust betweenemployer and employee..

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

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

Lai Wan v ABB Industry & Offshore Sdn. Bhd. [1996] LNS 347 (Ngan Lai

Wan). In Quah Swee Khoon v Sime Darby Bhd [2001] 1 CLJ 9, the CA

applied Wong Chee Hongand referred to the observation of Browne-Wilkinson J in

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

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

Turning once again to the pleadings, it is abundantly clear that theappellant was complaining that he had been driven out of employmentwhereas the respondent was contending that the former had left of hisown volition. Whether one would describe the conduct complainedof as amounting to constructive dismissal or the breach of theimplied term governing mutual trust and confidence is really amatter of semantics. Nothing turns upon it. At the end of the day,the question simply is whether the appellant was driven out ofemployment or left it voluntarily."

(emphasis added).

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

regarding the allegations made by the Claimant to determine whether the

Company's action or conduct, individually or as a whole, amounted to any breach of

a fundamental term of the Claimant's contract of employment or breach of animplied term of mutual trust and confidence.

17. The Claimant videWitness Statement (CLW1-WS) testified inter alia that he

worked with the Company for 19 years. His duty as Circulation Manager of Region 2

(which covered 3 states, i.e. Singapore, Negeri Sembilan and Malacca) was, among

others, as follows:

(a) total responsibility for the whole region (including to plan, manage and

control all activities relating to sales, marketing, administration, finance

and branch offices operations and to liaise with mail room on

packaging and delivery);

(b) sales (including management of print order, especially in relation to

control and accountability of unsold, promotional copies and etc.);

(c) marketing, which included formulating plans and strategies to promote

sales growth;

(d) administration (including planning, monitoring and reviewing all

administrative and support services with the view to attain maximum

efficiency and productivity of all staff);

(e) branch office operation, which included planning, monitoring and

reviewing all work by personnel at various branch offices; and

(f) liaison with mail room.

18. The Claimant testified further inter aliathat -

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(a) the Company was facing financial difficulties in 1998 (p. 20 and 38

CLB1). The Company had to restructure its financial cash flow when

the Company failed to sell its assets to Renong Group of Companies.

In July 1998, the Company decided to conduct cost cutting measuresby cutting all the staff's overtime and outstation allowances;

(b) the Company tried to obtain his consent on the withdrawal and

suspension of Company's contribution to the employees' Retirement

Benefit Scheme (RBS) videletter dated 25.6.1998 (p. 20 CLB1). The

Claimant replied that he disagreed with the suspension of RBS;

(c) in October 1998 at the Management Committee Meeting (MCM),

COW2 informed the staff members of the Circulation department

where the Claimant was the Circulation Manager of Region 2, that the

Company decided on a 10% reduction in salary and withdrawal of

Company's contribution to RBS;

(d) sales of Company's newspapers as a whole rose for the first few days

of Anwar Ibrahim's (AI) scandal before it decline. This was due to

the publication of reports on AI's scandal being biased towards the

government. It was also the Claimant's averment that the sales of the

Company's newspapers in general were not satisfactory prior to and

after AI's scandal due to factors not attributed to the Claimant;

(e) the Claimant was of the view that religion and politics should be kept

separate and he made his view (that it was wrong for AI to use Islam

to gain mileage in politics) known openly during his friendly

conversation with his colleagues, one of whom was a close liaison of

COW2. As result of the sensitivity of the political situation in the

Company, his view was resented by Faiz and COW2, and this had

caused further strain in their relationship with him. According to the

Claimant, COW2 refused to see him whenever the Claimant

approached COW2 at his office; and

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(f) since 24.11.1998, the Company's intention became evident that the

Company intended to dismiss him by plotting and scheming against

him. The circumstances forced him to leave on 31.12.1998. He

explained the events that led to his dismissal were -

(i) on 24.11.1998 Encik Saidy Ridzuan bin Abu Hasan who was the

AGM at that time (CLW2), informed him that COW2

communicated to CLW2 that the Claimant was relieved of all

duties with immediate effect;

(ii) COW2 informed CLW2 and SMCO&NTC vide memo dated

26.11.1998 (exhibit CL-14), that the Claimant was relieved of all

sale functions and responsibilities in Region 2 with immediate

effect without informing him;

(iii) COW2 vide memo dated 27.11.1998 (exhibit CL-15) to his

subordinates and copied the memo to him, CLW2 and Assistant

Circulation Manager, Marketing & Promotion at that time,

informed that COW2 would directly oversee all sale functions

and responsibilities of Claimant's respective branches;

(iv) on 27.11.1998 at 10 am, COW2 conducted a meeting with his

subordinates from Petaling Jaya and Klang office without the

Claimant's presence;

(v) COW2 vide memo dated 28.11.1998 (exhibit CL-16) to the

Claimant accused him of making erratic and irresponsible

decisions on the daily print order which affected the respective

branch offices sales and caused a decline in sales;

(vi) the Claimant rendered his explanation vide letter dated

7.12.1998 (exhibit CL-17);

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(vii) on 21.12.1998 the Company issued a further show cause letter

(exhibit CL-18) alleging insubordination against COW2 by the

use of language in the letter dated 7.11.1998;

(viii) on 28.12.1998, the Claimant requested for an extension of time

to explain until 31.12.1998 (exhibit CL-20); and

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

explained to the Company's show cause letter and further

stated that he treated himself as having been constructively

dismissed by the Company.

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

Claimant against the Company's conduct could be summarised as follows:

(a) Company's act of relieving Claimant's from his duties as Circulation

Manager, Region 2 (Allegation 1);

(b) Company's act of accusing that the Claimant had discharged his duties

and responsibilities in an irresponsible manner (Allegation 2);

(c) Company's act of alleging Claimant's insubordination against COW2

based on his letter dated 7.12.1998 (Allegation 3); and

(d) whether Company's other conduct amounted to any victimisation of

Claimant? (Allegation 4).

Allegation 1

20. As regards Allegation 1, the Claimant testified that On 24.11.1998 Saidy

informed me that Wan Razif communicated to Saidy that I was relieved of

all duties with immediate effect. When cross-examined by the Company's

learned counsel, the Claimant however testified as follows:

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Q: Where is the proof? Is there anything in black and white?A: I was informed by my immediate superior, Encik Saidy. Yes

nothing in black and white.

Q: When?

A: On 24.11.1998.

Q: Did you write to the management about this issue then, on24.11.1998?

A: No.

(emphasis added).

21. The Claimant also testified in his evidence in chief that On 26.11.1998,

Wan Razif sent a memo to the Company's AGM and Senior Manager, Circulation

Operations & Non Traditional Channels (NTC) informing that I was relieved of all

sale functions and responsibilities in Region 2 with immediate effect without

informing me.. He further testified that he felt saddened, disappointed, stressed

and confused as he felt that he was punished without prior warning and justification

when he saw the memo.

22. The Court observed that paragraph 2 of COW2's memo dated 26.11.1998

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

Please be informed of the following changes in the Circulation Department.

1. The Marketing and Promotion Unit shall now report directly to theSGM, Circulation.

2. The Circulation Manager, Region 2 - En. Nasaruddin A'alashall be relieved of all sales functions and responsibilities inRegion 2 until further notice. However, all operational

administrative matters at the respective branch offices inRegion 2 shall continue to remain under his responsibility..

23. Under cross-examination, the Claimant admitted that his testimony

contradicted COW2's memo that he was relieved of all duties.

24. As regards COW2's memo dated 27.11.1998 (p. 23 CLB1), the memo stated

inter aliaas follows:

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Further to my memo dated 26 November 1998, I shall directly oversee allsales functions and responsibilities at your respective branches untilfurther notice.

With regards to the pre-plan order management, you are to liaise with

Miss Navanila, Asst. Circulation Manager, Marketing & Promotion, who willcompile, monitor and approve all orders in your areas on my behalf for thetime being. For your action, the print order for the next 3 weeks shouldnot be cut below the order of November 15 to 21, 1998. Re-distribute thesupplies to ensure availability in the market.

These changes shall take effect immediately..

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

of the above memo that the pre-plan order management was his core function and

taking away that function would leave him redundant. The Court finds that under

cross-examination, the Claimant however -

(a) agreed that he was only temporarily relieved until further notice;

(b) testified that he still continued to monitor all sales from the Branch

offices; and

(c) agreed that he continued to look after all operational administrative

matters at Region 2's branches.

26. Besides the above, CLW2 testified in his evidence in chief that the Claimant

told him that he was quitting because he could no longer function as RCM effectively

after COW2 pulled back almost all his functions. CLW2 when questioned by the

Company's learned counsel (with reference to Claimant's allegations as stated in

items (i), (ii) and (iii) CD Letter wherein the Claimant alleged that on 24.11.1998, he

was told by CLW2 that he was relieved of all his duties), said as follows:

A: I was called by Wan Razif on 24.11.1998. Memo dated 26.11.1998.The story I was made aware of on 24.11.1998 Wan Razif told methat he would be pulling away the sales functions from theClaimant consistent with what he wrote in the memo on

26.11.1998.

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Q: Now the Claimant blames you because in his letter on p.36 he saidhe was relieved of all his duties item (i). When I asked theClaimant whats the proof nothing in black and white, he said noproof but I was informed by Saidy on 24.11.1998 now you gave adifferent story, who is telling the truth?

A: I told Claimant on same day ie. 24.11.1998 what Wan Razif told methat he would be pulling away the sales functions from the Claimant thats all I said.

Q: Look at CLB-1 p.36, item (i). You said as above. Comparedwith item (i) do you agree what you said and what Claimantsaid here is not the same, does not tally?

A: Yes, it doesnt tally.

(emphasis added).

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

the Claimant was relieved of the sale functions and responsibilities for Region 2

temporary pending investigation in respect of print order management under Region

2. The Court finds that the Company did not breach any of the Claimant's term of

employment contract which goes to the root of his contract or has evinced an

intention of no longer to be bound by the employment contract.

Allegation 2

28. Concerning Allegation 2, the Claimant alleged that the Company had

accused him of making erratic and irresponsible decisions on the daily print order.

He further testified inter aliathat -

(a) sales trends were consistent with any other week or month, but the

sale fluctuation varies depending on news outbreak;

(b) from the memo dated 28.11.1998 (p. 25-27 CLB1), he could not tell

that his actions had caused significant decline in the sales. Hence, the

Claimant contended that the Company did not show any proof that the

decline in sales was caused by him;

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(c) his decision to reduce the print order would not have caused sold

out/black outs; and

(d) he felt disappointed, saddened, stressed and confused when hereceived the memo because the memo was uncalled for and his

integrity had been questioned.

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

however testified as follows:

Q: CLB 1 p.24 25 (with appendixes goes up to p.29 memo dated28.11.1998 and appendixes). Do you agree with me that this isa memo sent by Wan Razif to you asking you to explain yourconduct 9 issues raised by Wan Razif and he wanted yourwritten response to the same by 7.12.1998,correct?

A: Yes I agree.

Q: He also enclosed supporting documents to make things easyfor you, you agree?

A: Yes.

Q: Do you agree that there were some issues on the print order

which relate to sales thats why Wan Razif wrote to you?A: Yes I agree there were some issues on print order and sales.

Thats why Wan Razif wrote to me on p.24.

(emphasis added).

30. The Claimant's testimony under cross-examination was consistent with what

COW2 had testified, which inter aliawas as follows:

(a) sales in October 1998 started to dwindle;

(b) COW2 joined Circulation department since 1983 and rose to head the

department in 1998. Throughout his stint in the Company, COW2 was

in Circulation department. COW2 found that that there were some

irregularities in the manner on how the print order in the branches

under the Claimant in Region 2 was conducted;

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(c) COW2 had written to the Claimant (p. 24-29 CLB1) and the Claimant

did not revert to say that he needed more time or information to

respond to his queries; and

(d) the show cause letter was only issued for Region 2 because of the print

order management. Other regions did not have the kind of erratic

print order management.

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

probabilities that Allegation 2 amounted to a breach of a fundamental term of his

contract of employment or breach of implied term of mutual trust and confidence.

Allegation 3

32. Learned counsel for the Claimant argued the show cause letter dated

21.12.1998 (p. 32 CLB1) was a sure sign of getting rid of the Claimant because the

Claimant was aware of term no. 21 of the Terms and Conditions of employment (p.

66 CLB2). This term stated that insubordination was one of the causes for summary

dismissal. The show cause letter dated 21.12.1998 referred to Claimant's reply

dated 7.12.1998 (p. 30-31 CLB1) to COW2's memo dated 28.11.1998. In the show

cause letter, the Company referred to the words used by the Claimant in his reply

letter dated 7.12.1998. The relevant portion of the reply letter reads as follows:

RE: PRINT ORDER MANAGERMENT IN BRANCH OFFICES.

I have received your memorandum dated 28.11.1998 and was shockedand surprised over your accusation against me of being erratic and makingirresponsible decisions on the above matter.

I strongly disagree with your accusation as it is insufficient basis.

I feel thatyou have victimised me base on the followings:

A. On 24 11 1998 you had instructed through your AGM to relieve allmy duties with immediate effect.

B. On 26.11.1998, you wrote to AGM and clearly mention that The CMRegion 2 shall be relieved of all sales functions and responsibilitiesuntil further notice.

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C. On 27.11.1998, you wrote to my subordinates on the same issue.

D. At 10.00 am on 27.11.1998, you had conducted a meeting with mysubordinates from PJ and Klang Offices without my presence.

E. You continue to instruct my subordinates on many matters until todate.

F. It has reached to my knowledge that you had accused me ofsabotage.

G. On 4th Dec. 1998 at 11.00 am you have threatened to

suspend my subordinates Dzul and Amirul of Petaling JayaOffice.

To comply to your instruction, my reply to the nine accusations are as

follows:1. 2. 3. 4. 5. 6. 7. 8. 9.

Finally, I feel that your action in this issue is uncall for and youonly follow your wishful thinkingand regret to note that some of thefigures in your appendix were wrong. As the Senior General Manager ofthe department, of late you never call us for meetings or discussions.

Please take note that, the actionyou had taken had caused hardshipand undue pressure on my lifeand I feel thatyou simply want tovictimize meand I do not know the reasons.

I humbly hope you will come back to your sense and lets worktogether for the interest of the company..

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

that under cross-examination, the Claimant -

(a) agreed that the allegations made by him against COW2 in his letter, as

shown in item G (... you have threatened to suspend my subordinates

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

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

want to victimize me, were serious allegations;

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

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

complimentary statement;

(c) admitted that he knew of the consequences the allegations he made

against COW2. Despite such allegations by the Claimant, the Company

did not sack him but gave him a chance to be heard;

(d) testified that the Company accused him of insubordination on

21.12.1998 and he wrote to the Company to say that he needed time

to write a comprehensive reply (p. 34 CLB1). The Claimant also

testified that the Company agreed to give him time at p. 35 CLB1.

When cross-examined by the Company's learned counsel whether he

provided a comprehensive reply the Claimant initially testified that he

did. However when asked further by the Company's learned counsel

regarding the reply, the Claimant answered as follows:

Q: Where is it? Your comprehensive reply on the issue of

insubordination?A: I think I didnt provide a comprehensive reply.

Q: I put it to you that you had no explanation and thus took ashort cut to claim constructive dismissal on 31.12.1998 (ie.p.36 see last para. To my utter dismay, (up to p.37),agree or disagree?

A: I disagree with the word short-cut. I did refer this issue tomy lawyer.

Q: Are you saying your lawyer told you to claimconstructive dismissal?

A: Yes.(emphasis added).

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

balance of probabilities that Allegation 3 amounted to any breach of any

fundamental term of the Claimant's employment contract or breach of implied term

of mutual trust and confidence.

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Allegation 4

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

raised concerning Company's financial position as one of the grounds for his claim ofconstructive dismissal against the Company. The Court noted that when he was

cross-examined, he testified as follows:

Q: CLB 1 p.20 : This cost cutting measure, you agree with me thatthiscost cutting measure letter was sent to all staff in NST notonly you?

A: Yes, to all staff.

Q: So you agree you were not singled out?A: Yes.

Q: And you agree with me that cost cutting was never imposedon you from June to December 1998 when you walkedout, they never cut your salary?

A: I agree.

Q: So the 10% reduction in salary was never implemented?A: Yes, never.

(emphasis added).

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

witnesses (COW1 and COW2). As such, it is clear that the Claimant's allegation in

relation to Company's financial situation, did not amount to any breach of any

fundamental term of the Claimant's employment contract or breach of implied term

of mutual trust and confidence.

37. The Court have carefully considered the totality of the evidence in relation to

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

Wan(supra) could be distinguished from the facts of the present case. In Roche

(M) Sdn Bhd v. Jennifer Ng Yu Hong[1994] 2 ILR 612, the IC in dismissing the

claimant's claim on the ground that she had failed to discharge the burden of

proving that she had been constructively dismissed, held as follows:

The Claimant might have a genuine cause for complaint at theunreasonable act done to her but she had overreacted by quitting her

job..

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

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

issuance of caution letter, show cause letter, being suspended pending investigation

and being asked to attend a domestic inquiry, was not constructive dismissal..Similarly, in Protek Engineers Sdn Bhd v Tang Khai Hing[2000] 1 ILR 286, the

IC held as follows:

The claimant had acted prematurely in considering himself dismissed, andhad in fact pre-empted the company's rights and prerogatives toinvestigate into some justifiable grounds of suspicion of irregularitiesattributable to the claimant. The company had not breached any of theterms of the contract of employment nor evinced any intention on their

part no longer to be bound by the terms of the contract..

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

Berhad [2009] 2 ILR 109 wherein IC held inter alia that the issurance of show

cause letter could not have amounted to a fundamental breach of the claimant's

contract of employment).

39. Reverting to the present case, the Court agrees with the submission of theCompany's learned counsel that the Claimant had jumped the gun (see Simon

Gnanmuthan v Tamil Nesan (M) Sdn. Bhd. [2010] 2 LNS 0141). He had acted

pre-maturely. He had a chance to rebut the show cause notice but failed to use that

opportunity. Having considered the totality of the evidence and submissions of both

parties, it is clear that the Company's conduct or the series of conduct, did not

amount to any breach of a fundamental term or breach of any implied term of

mutual trust and confidence of the Claimant's contract of employment.

G. Conclusion

40. As an epilogue, based on the totality of evidence adduced by both parties as

well as the written submissions made (having regard to equity and good conscience

and substantial merits of case without regard to technicalities and legal form), this

Court finds that the Claimant has failed to discharge the burden to prove on a

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balance of probabilities that he was constructively dismissed by the Company.

Accordingly, the Claimant's claim is hereby dismissed.

HANDED DOWN AND DATED THIS 14 JANUARY 2013