IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 20/4-1034/19

Between

RISHINDRAN A/L PARAMANATHAN

And

LIM KOK WING UNIVERSITY OF CREATIVE TECHNOLOGY

AWARD NO. : 1611 OF 2020

Before : Y.A. PUAN RAJESWARI KARUPIAH

Chairman

Venue : Industrial Court of Malaysia,

Kuala Lumpur

Date of Reference : 26.06.2019

Date of Receipt of
the Reference : 05.07.2019

Date(s) of Mention : 20.08.2019, 24.09.2019, 24.10.2019, 14.11.2019,

08.01.2020, 03.02.2020

Date(s) of Hearing : 05.03.2020, 12.08.2020

Date of Submission
(Claimant) : 10.09.2020

Date of Submission
(Company) : 01.10.2020

Representation : Mr. Naveen Joshua Solomon

Messrs. Gregory, Yusran & Associates
Counsel for the Claimant

Mr. Muhammad Hadzwan bin Ayob

Messrs. C. Sukumaran & Co.
Counsel for the Company

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REFERENCE

This is an order of reference dated 26.06.2019 by the Honourable Minister of Human

Resources, Malaysia pursuant to Section 20(3) of the Industrial Relations Act 1967

(“the Act”) for an award in respect of a dispute arising out of the claim of

constructive dismissal by Rishindran a/l Paramanathan (“the Claimant”) by his

employer Lim Kok Wing University of Creative Technology (“the Company”).

AWARD

[1] The parties to the dispute are Rishindran a/l Paramanathan (“the Claimant”)

and Lim Kok Wing University of Creative Technology (“the Company”). The dispute

which has been referred to the Court by the Honourable Minister is over the alleged

forced resignation of the Claimant with effect from 28.02.2019.

BACKGROUND FACTS

[2] The Company is an educational institute that undertakes various courses for

Malaysian and International students. The Claimant had joined the Company

effective from 06.02.2018 as its Senior Human Resource Executive. The Claimant

was confirmed in this post on 01.06.2018. At the time of his dismissal from service,

the Claimant was being paid RM 5,500.00 per month.

[3] As a Senior Human Resource Executive, the Claimant’s duty was to manage

the Company’s Employee and Industrial Relations issues which included attendance

to the court cases on behalf of the Company.

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[4] For reasons that were unknown, the Company wanted the Claimant to resign

at the behest of Tan Sri Lim Kok Wing and Ms. Gail Phung, the Senior Vice President

of the Company. Their request was made known to the Claimant by Ms. Natasyahh

Arbyne, the Company’s Human Resources Manager. Ms. Natasyahh had in her

conversation and also vide WhatsApp Chat messages dated 13.02.2019 and

14.02.2019 reiterated the Company’s demand to the Claimant that he resign from

the Company (p.15-17 CLB-1). Ms. Natasyahh had in this chat forwarded the

instruction of Ms. Gail Phung that the Claimant’s resignation letter is needed

immediately and had as a result suggested that the Claimant type out his resignation

in the WhatsApp Chat itself (p.17 CLB-1), even though the Claimant was on medical

leave on 13.02.2019 and 14.02.2019 (p.14 CLB-1).

[5] The Claimant had thus by a letter dated 15.02.2019 (p.18-19 CLB-1), tendered

his resignation from the Company effective from 28.02.2019. In his letter, the

Claimant had stated that his resignation is caused by the repeated requests made to

him to resign by the Company’s management. The Claimant has further asserted in

this letter that he was as a result “left with no choice but to tender his

resignation”. On 15.02.2019, the Claimant had also prepared a hand-over checklist

of the industrial relations cases he was handling for the Company and passed this

list to Ms. Natasyahh, who had signed this list and acknowledged receipt of the

handover of duties (p.19 CLB-1).

[6] The Claimant’s resignation letter was received by the Company and had been

forwarded to the Payroll Department for processing on 22.02.2019 (p.13 COB). On

the same day, the Claimant was also instructed by the Vice President of the

Company, one Mr. Chua, to represent the Company in an Industrial Court matter on

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25.02.2019. In his What’s App Chat with the Claimant (p.20 CLB-1) Mr. Chua told the

Claimant that “you are still within the notice period. We require you be present

in IR Court on 25 Feb & represent the University to ask for another date…”. This

instruction was obeyed by the Claimant.

[7] Even though the Company was aware of the Claimant’s resignation letter and

the allegation of forced resignation therein, the Company did not respond to the

Claimant and deny or challenge the Claimant’s averments contained therein.

[8] On 28.02.2019, the Claimant had inquired from Ms. Natasyahh as to when his

final salary will be paid by the Company. However, he was informed that his salary

is being withheld by the Company. On 07.03.2019, the Claimant wrote an email to

the Payroll Advisor of the Company that his salary for February 2019 remains unpaid.

The Company did not also respond to this email or release the wages owed to the

Claimant.

[9] The Claimant had communicated with one Dato’ Gandesan, a Vice President

in the Company on 28.02.2019 (p.22-24 CLB-1), with Ms. Natasyahh and one Ms. Jay

from the Company’s HR from 14.03.2019 until 26.03.2019 (p.27 -31 CLB-1) about his

unpaid salary and forced resignation, all without success. The Claimant was during

this time notified that the Company is questioning Ms. Natasyahh as to why she had

acknowledged the Claimant’s resignation letter (p.30 CLB-1) and further that the

Claimant should change the contents of his resignation letter (p.31 CLB-1).

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[10] Having failed to obtain his last month’s salary from the Company, the

Claimant had filed his complaint of unfair dismissal on 08.03.2019 pursuant to

Section 20 of the Industrial Relations Act 1967.

[11] The Claimant has claimed that his forced resignation is a dismissal by the

Company and that the Company has breached the fundamental terms of his contract.

It is also the Claimant’s stand that his forced resignation goes against the principles

of natural justice as well as that of equity and good conscience.

[12] The hearing of this case was conducted on 05.03.2020 and 12.08.2020. During

the hearing, the Claimant was his sole witness. The Company too produced one

witness, who is the Human Resource Manager, Ms. Natasyahh Arbyne. At the

conclusion of the evidence from these two witnesses, the Court had called Mr.

Bathmanathan Chittirai, an interpreter of another division of the Industrial Court to

clarify about the e-mail communication between the Industrial Court and the

Company which had occurred on 13.05.2019.

THE COMPANY’S PLEADING

[13] The Company has in this case averred that the Claimant had left his

employment after tendering his resignation voluntarily. According to the Company,

the Claimant’s work ethics and productivity had declined and the Claimant had been

defiant to the Company’s instructions. The Claimant is said to have instigated his

co-workers against the Company besides making threats to resign when asked to

perform a task or deliver reports. The management therefore left it to the Claimant

to decide if he should resign.

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[14] According to the Company, the Claimant had performed tasks for third party

organisations that included a Company named Hong Leong Yamaha Motor Sdn. Bhd.,

and Param & Co. and had tendered his resignation when this was discovered by the

Company. The Claimant had made a false claim of forced resignation as an

afterthought and the Claimant had not conducted proper handover of his duties.

Further, the Claimant had unilaterally stamped the acceptance of his own

resignation letter using the Company’s rubber stamp. The Company has pleaded that

it did not pay the Claimant his salary for the month of February 2019 as it wanted

to “settle’ with him after he did a proper handover.

THE LAW

[15] In the case of Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd [1988]

1 CLJ (Rep) 298 at page 302, the function of the Industrial Court is stated by his

Lordship Salleh Abbas LP as follows:

"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."

[16] The Claimant in this case has pleaded that he had been forced to tender

his resignation whilst the Company has denied this claim. The burden of proof is

therefore on the Claimant to establish that he had been dismissed as held in the case

of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor [1998] 1 LNS 258.

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In his judgment, his Lordship Dato' Haji Abdul Kadir Bin Sulaiman J (as he then was)

had stated:

"The law is clear that if the fact of dismissal is not in dispute, the
burden is on the company to satisfy the Court that such dismissal was
done with just cause or excuse. This is because, by the 1967 Act, all
dismissal is prima facie done without just cause or excuse. Therefore,
if an employer asserts otherwise the burden is on him to discharge.
However, where the fact of dismissal is in dispute, it is for the
workman to establish that he was dismissed by his employer. If he
fails, there is no onus whatsoever on the employer to establish
anything for in such a situation no dismissal has taken place and the
question of it being with just cause or excuse would not at all
arise....".

[17] Similarly, in the case of Food Specialities (M) Sdn Bhd v. M. Halim Manap

[1992] 2 ILR 311 (Award No. 291 of 1992) it was held as follows: -

“The onus is on the claimant to establish by cogent evidence that he

wrote exhibit CO2 under duress. Mere allegations, vague suggestions
and insinuation are not enough. It is the rule of evidence that the
burden of proof lies on the party who substantially asserts the
affirmative and not the party who denied.”

[18] Whereas in the case of Stanley Ng Peng Hon v AAF Pte Ltd [1979] 1 MLJ

57, the Honourable High Court Judge Choor Singh J, had inter alia discussed the

matter of forced resignation and held that a resignation obtained under compulsion

is not a resignation in law and held that:

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 “I accept the plaintiff's version. I have no doubt at all that when
O'Callaghan asked for the plaintiff's resignation, he was in effect
dismissing the plaintiff from his appointment. It was merely a polite
way of telling the plaintiff that he was being dismissed. He had gone
into the plaintiff's office with his mind made up to dismiss him and
had with him an envelope containing a sum of money which he thought
was all that the plaintiff was entitled to.

In my judgment, on the evidence in this case, it would be quite

erroneous on my part to hold that the plaintiff resigned on his own
volition. There was quite clearly pressure on him. His
resignation was in fact demanded. O'Callaghan admits that he gave
no reason although the plaintiff did ask him to specify what the
problem was. As no reason was given, the plaintiff had no reason to
resign.”

[19] In the case of Telekom Malaysia Kawasan Utara v. Krishnan Kutty Sanguni

Nair & Anor [2002] 3 CLJ 314 the Court laid down the principle that the standard of

proof that is required is one that is on the balance of probabilities.

"Thus in hearing a claim of unjust dismissal, where the employee was

dismissed on the basis of an alleged criminal offence such as theft of
company property, the Industrial Court is not required to be satisfied
beyond a reasonable doubt that such an offence was committed. The
standard of proof applicable is the civil standard, i.e., proof on
a balance of probabilities which is flexible so that the degree of
probability required is proportionate to the nature and gravity of the
issue."

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[20] In Bata (M) Bhd v Normadiah Bte Abu Suood [1991] 2 ILR 1106, it was

observed by his Lordship Steve LK Shim (as Chairman of the Industrial Court) as

follows:-

“Now, industrial tribunals have consistently held that a "forced

resignation" is a dismissal: See Scott v. Formica Ltd. [1975] IRLR
105; Spencer Jones v. Timmens Freeman [1974] IRLR 325. It has also
been held that the use of persuasion by an employer to obtain an
employee's resignation may be a dismissal: see Pascoe v. Hallen &
Medway [1975] IRLR 116. Again that a resignation will be treated as a
dismissal if the employee is invited to resign and it is made clear to
him that, unless he does so, he will be dismissed: see East Sussex
Country Council v. Walker [1972] 7 I.T.R. 280….”

ISSUES

[21] Thus, the issues to be determined by this Court in this case are as follows: -

I. If whether the Claimant is able to establish on a balance of probabilities

that his resignation had been involuntary or forced; and if so,

II. Whether the Claimant’s alleged “dismissal” had been without just cause
or excuse.

THE EVIDENCE

[22] The Claimant’s testimony is that he was forced to tender his resignation on

15.02.2019 as a result of the repeated pressure from the management from the

middle of January 2019. This was relayed to him by Ms. Natasyahh (COW-1) who had

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stated several times to him that Dato’ Gail and Tan Sri Lim Kok Wing wanted the

Claimant to resign from the Company for reasons unknown to her. The Claimant did

not heed these requests to resign and continued to perform his job functions.

However, on 13.02.2019, COW-1 had texted him asking for his resignation whilst he

was on medical leave. In their ensuing WhatsApp conversation, COW-1 had informed

that “DG” (Dato’ Gail) wants his letter of resignation. Upon being forced repeatedly,

the Claimant had informed COW-1 that he would only be able to tender his

resignation letter on 15.02.2019 due to his medical leave. Despite that, COW-1 had

pressured the Claimant to type out his resignation via WhatsApp.

[23] On 15.02.2019, the Claimant tendered his resignation stating that he is

resigning due to the repeated request by the management (without providing any

reasons) to him to resign. The Claimant had addressed this letter to Dato’ Gail

Phung, the Senior Vice President of the Company and handed it by hand to COW-1.

COW-1 had acknowledged the said letter using the Human Resource Department’s

acknowledgement stamp which was kept by COW-1. It was also the Claimant’s

testimony that he had completed his hand over of duties the same day, which was

duly acknowledged by COW-1. After the handover, he was told that he need not

serve until his last date of employment and was asked to leave the premises of the

Company. The Claimant did however attend Industrial Court on 25.02.2019 on the

Company’s instruction.

[24] When his salary for the month of February was not paid, the Claimant had

followed up with COW-1, the Pay Roll Department and another Vice President of the

Company, Dato’ Gandesan. The Claimant was told that the February salary is unpaid

as the Company wanted the Claimant to change his resignation letter to remove the

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assertion that he was forced to resign by the Company. As the Claimant did not agree

to this, his final salary was not released by the Company.

[25] The Claimant’s above testimony is corroborated by the screen shots of his

WhatsApp chats with COW-1, Mr. Chua and Dato’ Gandesan which he had tendered

in Court as evidence (pp.15-17 and 20-25, CLB-1) . This included his conversation

with COW-1 on 13.02.2019 wherein he is told by COW-1 to tender his letter of

resignation as per the request of Dato’ Gail. It is noted that the Claimant had

expressly stated to COW-1 that he was going include in his letter about being forced

to resign and COW-1 had replied to the following effect in Malay; “Its okay, you do

what you have to”.

[26] COW-1 had in her testimony confirmed the WhatsApp chats exhibited in CLB-

1 was her communication with the Claimant. Most importantly, COW had especially

in the later part of her cross-examination, agreed in material respects with the

Claimant’s afore stated testimony. In her evidence, COW-1 had mentioned that the

Claimant’s resignation was demanded by the Company’s senior management team

that included Dato’ Gail several times and she had conveyed their messages to the

Claimant. When the Claimant tendered his letter alleging forced resignation, Mr.

Chua had wanted COW-1 to ask the Claimant to change it to a normal resignation

and when the Claimant refused to do so, his salary for his final month of work in the

Company was not paid. According to COW-1 she merely carried out the instruction

given to her by the senior management in the Company and did not know why the

Company’s top management wanted the Claimant to resign or why the Company was

unhappy with the Claimant.

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[27] COW-1 had further testified that she was aware of the Claimant’s resignation

but did not want to put her signature on the letter in order to avoid getting into

trouble with the senior management of the Company. According to COW-1, the

Claimant had done a proper handover of his duties to her on 15.02.2019 and she had

acknowledged the handover.

[28] COW-1 further admitted that the Claimant had performed to the best of his

ability in the Company and that the warning letter that was purportedly issued to

him on 28.01.2019 was actually prepared after that Claimant pursued a claim in the

Industrial Court. According to COW-1, her answer to question posed in her witness

statement (Q&A 13 COWS1) that the Claimant was frequently late or absent from

the Company is wrong in fact.

EVALUATION AND FINDINGS

[29] From the evidence led before this Court it is clear that the Company had

demanded that the Claimant resign. It is the uncontroverted evidence before the

Court that the Claimant had been pressured by the Company repeatedly to resign

through COW-1 without any reason. When the Claimant had tendered his letter of

“resignation” expressly stating that he doing so under compulsion, the Company did

not even attempt to deny the same.

[30] Thus, it is clear to this Court that the Claimant had not resigned voluntarily

as is pleaded by the Company but he had in fact been forced to tender his resignation

as a result of the undue pressure placed upon him by the Company’s senior

management including Dato’ Gail Phung and the others.

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[31] Therefore, it is my finding on the first issue before the Court that the

Claimant has on a balance of probabilities established that his resignation had not

been voluntary and he had merely tendered his letter of resignation due to the

pressure given to him by the Company. It is also the conclusion of this Court based

on the evidence and documents presented in this case that the Claimant had in fact

been dismissed by the Company.

[32] I now turn to the second issue before this Court, in which the Company bears

the burden to show if whether the Claimant’s dismissal had been with just cause or

excuse. Despite the Company’s averments stated in paragraphs 13 and 14 herein,

the Company did not provide any cogent evidence to support its claim. The

Company’s unconvincing attempt to produce the Claimant’s time sheet (pp.17-20

COB) to establish the Claimant’s lack of punctuality or absenteeism fails in the light

of COW-1’s testimony in Court and her answers during cross examination; COW-1

had stated that her answer in her witness statement with respect to the Claimant’s

punctuality and attendance are incorrect and that the Claimant had performed his

job to the best of his ability!

[33] It is observed that the Company had never issued the Claimant any letter to

show that he had been lacking either in performance or in terms of his discipline

during his tenure in the Company. The Claimant had been confirmed in his post

effective from 01.06.2018 and the Court finds no evidence whatsoever in support of

the averments made by the Company that the Claimant’s work-ethics and

productivity had declined. There is no proof as well that the letter of warning

exhibited by the Company at page 14 of COB was even issued to the Claimant.

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Moreover, according to COW-1 this letter was prepared after the Claimant filed his

claim in this Court.

[34] The Court has to therefore agree with the submission of the Learned Counsel

for the Claimant that the actions of the Company in this regard is ill intended and

was meant to injure the Claimant’s reputation. Clearly, the Company had

overlooked the maxim that "He Who Comes Into Equity Must Come With Clean

Hands," bearing in mind that the Industrial Court is required to act in accordance to

the principles of equity and good conscience.

[35] The Company had also pleaded that the Claimant performed work for third

party entities namely Param & Co. and Hong Leong Yamaha Motor Sdn. Bhd. Again,

no evidence was put forth in support of the allegation pertaining to the entity named

Param & Co. With regards to Hong Leong Yamaha Motor Sdn. Bhd., COW-1 had in

her witness statement asserted that the Claimant attended a mention in the

Industrial Court on 25.02.2019 on behalf of Hong Leong Yamaha Motor Sdn. Bhd.,

and tendered an email dated 13.05.2019 received from the interpreter of another

division of the Court as the evidence (pertaining to the Industrial Court Case No.5/4-

2829/18) (see p.15 to 16 COB). When this Court reviewed the Award issued by that

division with respect to the Hong Leong Yamaha Motor Case (Award No.1790 of

2019), it is noted that there was never any mention held in that case on 25.02.2019.

There was however, a case mention in that same division on 25.02.2019 that involved

the Company which the Claimant attended (see Faizal Bin Sheikh Feruq v Lim Kok

Wing University of Creative Technology Case No.5/5-2832/18, Award No.38 of

2020). As clarified by the interpreter of that division in Court, Mr. Bathmanathan,

the e-mail which the Industrial Court sent to the Company had a typographical error

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on the subject matter whereby the name of the case was mistakenly stated in that

e-mail. Based on the documents as well as the clarification given by Mr.

Bathmanathan under oath, this Court has no doubt that the allegation made by the

Company against the Claimant is without factual basis altogether.

[36] In the circumstances and based on the evidence before this Court, it is my

finding that the Company had failed to establish on a balance of probability that the

Claimant had been dismissed with just cause or excuse. Therefore, it is the finding

of this Court that the Claimant’s act of unlawfully dismissing the Claimant by forcing

him to resign had been without any just cause or excuse.

CONCLUSION

[37] Having considered the submissions and case authorities cited by both parties

and having regard to the totality of the facts and evidence before it as well as the

provisions of Ss 30(5) of the 1967 Act, the court finds that the claimant has been

able to prove on a balance of probabilities that his dismissal was without just or

excuse. Accordingly, the claimant's claim is allowed.

REMEDY

[38] Despite the Claimant’s pleading to be reinstated to his former position, this

Court is of the view that the said remedy is unsuitable as it is not in the interest of

industrial harmony. The claimant had been in employment of the of the Company

for one year when he had been forced to resign. Since leaving the Company, the

Claimant had not obtained a permanent job despite making numerous job

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applications (pp. 32-79 of CLB-1). At present, the Claimant is a Grab Car driver. The

Court will therefore not make any deduction for post-dismissal earnings as provided

for in the Second Schedule of the 1967 Act.

[39] The Claimant’s last drawn salary was RM 5,500.00 per month. There is no

evidence that the Claimant's conduct had contributed to his dismissal and as a result,

there will be no deductions from the back wages awarded to the Claimant.

[40] The Court thus orders compensation in lieu of reinstatement of one month for

the Claimant’s completed year of service. It is also noted that the Company had

failed to pay the Claimant’s final month’s salary. Therefore, the total amount of

back wages and compensation in lieu of reinstatement payable to the claimant will

be as follows:

Back wages (from 28.02.2019 up until present)

RM 5,500.00 x 20 months = RM 110,000.00

Add

Compensation in lieu of reinstatement (1 Month) + February 2019 Salary

RM 5,500 x 2 months = RM 11,000.00.

TOTAL = RM 121,000.00

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FINAL AWARD

[41] This court orders that the Company pays the Claimant the total sum of Ringgit

Malaysia One Hundred Twenty-One Thousand less any statutory deductions through

the Claimant's solicitors within 30 days from the date that this Award is

communicated to the parties.

HANDED DOWN AND DATED THIS DAY OF 26th OCTOBER, 2020

-signed-

(RAJESWARI KARUPIAH)
CHAIRMAN
INDUSTRIAL COURT MALAYSIA,
KUALA LUMPUR

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