IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO. 20/4-2683/20

BETWEEN

KHOR ENG KIM

AND

BLONDAL SALES & SERVICES SDN. BHD.

AWARD NO. 281 OF 2022

Before : Y.A. TUAN AMRIK SINGH

Chairman
Venue : Industrial Court of Malaysia, Kuala Lumpur
Date of Reference : 22.10.2020

Dates of Mention : 15.01.2021, 06.04.2021, 06.05.2021, 18.06.2021 &

15.11.2021
Dates of Hearing : 20.01.2022

Representation : Mr. Alfred Iruthiarajoo

Malaysian Trades Union Congress (MTUC)
Representative for The Claimant

The Company- Absent

Reference:

This is a reference dated 22.10.2020 by the Honourable Minister of Human

Resources made pursuant to section 20(3) of the Industrial Relations Act 1987
(“the Act”) arising out of the dismissal of Khor Eng Kim (“the Claimant”) by
Blondal Sales & Services Sdn. Bhd. (“the Company”) on the 17.06.2020.
 Case No. 20/4-2683/20

AWARD

[1] Based on the court’s records, the Learned Chairlady, Y.A. Puan
Rajeswari Karupiah gave directions to the parties on the filing date of their
pleadings. On the first mention date which was on 15.01.2021, the Company’s
representative was absent. Directions were given to the Claimant to file his
Statement of Case (SOC), for the Company to file its’ Statement In Reply
(SIR) on 15.03.2021 and the Claimant to file the Rejoinder on 29.03.2021.

[2] Following the email sent to the Company informing it of the above
directions given, the court served notice of the next mention date which is
06.04.2021.

[3] On the date of the second mention, neither the Claimant nor the
Company availed themselves of this proceeding although both parties have
been duly informed of this 06.04.2021 date. As no SIR was filed by the
Company, the court gave another mention date on 06.05.2021. On this
mention date, the Claimant was represented by Malaysian Trades Union
Congress (“MTUC”), while the Company had still not made itself present. The
court, then gave further directions as regards to the filing of the bundle of
documents and witness statements and fixed a hearing date on 18.06.2022.
Due to Government’s Movement Control Order, the hearing date originally
scheduled for 18.06.2022 was vacated and a new date was set for the hearing
on 20.01.2022. In response to the request made by the Claimant’s
representative, Mr. Alfred a/l Iruthiarajoo from the MTUC, that the case be
heard ex parte, the Court then set a hearing date on 20.01.2022 and further
directions were given for the Claimant to file witness statements and bundle of
documents.

[4] I was assigned to hear this matter on 20.01.2022 and after confirming
that the company had been duly served with notices of mention (Form F) and

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hearing (Form G), as required by the Industrial Court Rules 1967, I proceeded
to hear this matter without the company’s representative’s presence in
response to the request made by the Claimant’s representative, Mr. Alfred a/l
Iruthiarajoo from the MTUC, that the case be heard ex parte pursuant to s
29(d) of the IRA 1967 since the Court has set the date for the hearing.

THE LAW ON EX PARTE HEARING

[5] Section 29(d) of the IRA 1967 provides for an ex-parte hearing without
the presence of one of the parties to the dispute. Section 29 (d) of the IRA
1967 provides that:

“the court may in any proceedings before it...

(d) hear and determine the matter before it notwithstanding the

failure of any party to submit any written statement whether of
case or reply to the court within such time as may be prescribed
by the President or in the absence of any party to the
proceedings who have been served with a notice or summons
to appear..”

[6] OP Malhotra, The Law of Industrial Disputes Volume 1:6th Edition, at

page 1062 states:

“If, however, a party wilfully absents himself in such a way that

the adjudication is likely to be impede, or wilfully tries to delay or
avoid the proceedings, the tribunal may fix a preemptory
hearing on a particular day. After reasonable notice of hearing
has been given to the defaulting party, if he still neglects or
refuses to attend, the tribunal may and ought to hear in his
absence. Prompt discharge of business is of particular

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importance before a tribunal adjudicating an industrial

dispute...”

[7] Since s29(d) of the IRA 1967 permits the court to hear the case in the
absence of one of the party, provided that all requisite notices have been duly
served, the court may proceed to hear the claimant’s dismissal claim, in the
absence of the company’s representative, who had neglected to appear at any
of the mentioned dates preceding this hearing date. Additionally, it is to be
stated here that the company did not file any cause papers nor send any
correspondence informing the court of its situation or reason for its absence.

[8] To begin with, the Claimant filed 3 bundle of documents that is the
Claimant’s bundle of Document marked as CLB 1, the Companies
Commission Of Malaysia’s (“CCM”) search marked as CLB 2 and an
additional supplementary bundle of document marked as CLB 3. For purposes
of clarity on the status of the company, during the e-mention date on
15.11.2021, the Learned Chairlady had requested the Claimant’s
representative to produce the latest CCM search on the company. The CCM
search dated 14.01.2022 showing that the status of the company as ‘winding
up’ was made available to the court as it was received by the court on
17.01.2022. In the absence of any further information regarding whether a
winding up order has been obtained against the Company, I am inclined to
hear this matter expeditiously in order to ensure justice is served.

FACTUAL BACKGROUND

[9] In the Claimant’s Statement of Case, the Claimant pleads that on

15.06.2020, the Claimant considered himself to be constructively dismissed
from the employment of the Company when the Company failed to reply to his
letter dated 01.06.2022 having given the company fourteen (14) days notice to
reply to his letter dated of 01.06.2022 for the non payment of his salaries for

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the past six(6) months which was from the month of October 2019 to March
2020. In the Minister’s reference, the claimant’s date of dismissal is stated as
on 17.06.2020.

[10] It is trite that in a reference before the Industrial Court by an employee

complaining that he has been constructively dismissed by his employer, the
burden lies on the employee to prove that he has been dismissed without just
cause or excuse.

THE LAW ON CONSTRUCTIVE DISMISSAL CASE

[11] In the case of Govindasamy Munusamy v Industrial Court Malaysia

& Anor [2007] 3 MELR 306, [2007] 1 MLRH 133; [2007] 10 CLJ 266, where
Hamid Sultan Abu Backer (as he then was), laid down the test of constructive
dismissal as follows:

“[5] To succeed in a case of constructive dismissal, it is

sufficient for the claimant to establish that:

(i) the company has by its conduct breached the

contract of employment in respect of one or
more of the essential terms of the contract;
(ii) the breach is a fundamental one going to the
root or foundation of the contract;
(iii) the claimant had placed the company on
sufficient notice period giving time for the
company to remedy the defect;
(iv) if the company, despite being given sufficient
notice period, does not remedy the defect then
the claimant is entitled to terminate the contract
by reason of the company's conduct and the

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conduct is sufficiently serious to entitle the

claimant to leave at once; and
(v) the claimant, in order to assert his right to treat
himself as discharged, left soon after the
breach.

[6] The test for constructive dismissal as it stands is a test on

contractual breach rather than unreasonableness. Further,
where the workman's claim for reinstatement is based on
constructive and not actual dismissal, the onus of proving that
he has been constructively dismissed lies on the workmen
himself”.

[12] The test of constructive dismissal is a test of contractual breach rather

than unreasonableness. This has been stated in the Supreme Court case of
Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd [1987] 1 MELR 32;
[1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ (Rep) 298 :-

“[95] 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 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 as being dismissed.

[96] Past cases of constructive dismissal dealt with by this

court... are agreed that whether or not there has been
constructive dismissal is to be determined by the contract test:
that is, did the employer's conduct amount to a breach of
contract which entitled the employee to resign? And did the
employee make up his mind and act at the appropriate point in
time soon after the conduct of which he complained had taken

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place”.

[13] The evidential burden is on the employee claiming constructive

dismissal. In Chua Yeow Cher v. Tele Dynamics Sdn Bhd [1999] 2 MELR
483; [1999] 5 MLRH 24; [2000] 1 MLJ 168 (Tab 6, COBOA, p 56), the High
Court held that:

“It is now trite law that in a reference before the Industrial Court
by an employee complaining that he had been constructively
dismissed by his employer the burden is on the employee to
prove that he had been dismissed unlawfully.”

[14] The High Court in Bayer (M) Sdn Bhd v. Anwar Bin Abdul Rahim
[1995] 4 MLRH 53; [1996] 2 CLJ 49 set out the four conditions as follows :-

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

(2) the breach must be sufficiently important to justify the
employee resigning;
(3) the employee must leave in response to the breach and
not for any other unconnected reason; and
(4) he must not occasion any undue delay in terminating the
contract, otherwise he will be deemed to have waived the
breach and agreed to vary the contract. (See Wong Chee
Hong v. Cathay Organization, supra) Where the employee
leaves in circumstances where these conditions are not
met, he will be held to have resigned and there will be no
dismissal within the meaning of the Act. [Emphasis Added]

[15] Based on the above law and principles, the Court shall proceed to
evaluate all the facts and evidence in this case for determination. The Court
will evaluate the facts, testimony of the Claimant from his witness statement

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and the documents presented in support of his contention, in determining the

merits of the Claimant’s case.

THE CLAIMANT’S CASE

[16] In the Claimant’s witness statement adopted as his evidence in court

marked as CLWS 1, the Claimant testified that the Claimant began his
employment with the Company as a Salesman on 01.03.1984 and through
rank and file, his last position in the Company was as a General Manager. The
Claimant avers that he had served the Company for 36 years and he reports
to one Leonard Woon Yee Chung, the Chief Finance Officer of the Company
and his last drawn salary was RM10,500.00 with a fixed allowance of
RM300.00.

[17] In his examination in chief, the Claimant, states that the Company
failed to pay his salary and outstanding sales commission from October 2019
to March 2020. He has approached the Company regarding his unpaid salary
and sales commission ever since he wasn’t paid his monthly salary and sales
commissions and the Company would respond by informing the Claimant that
it is awaiting a Chinese Investor to take over the Company and pay him his
outstanding payments. In response, the Claimant alleges that on 01.06.2020,
he gave the Company fourteen days in writing vide letter dated 01.06.2020 to
response on the non-payment of his salary but the Company did not reply nor
did it call him for a discussion. The letter dated 01.06.2020 is annexed to the
Statement of Case. The Company, in failing to pay his monthly salaries, had
breached his contract of employment with the Company. In the SOC, the
Claimant pleads that the Company did not reply to his letter seeking
clarification and had completely ignored his demands. On 15.06.2020, the
Claimant was of the view that the Company no longer evinced an intention to
be bound by the contract, resulting in the Claimant treating himself as being
constructively dismissed from his employment with the Company and made a

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representation to adjudicate his claim of constructive dismissal to this Court.

[18] Following the tendering of the Claimant’s witness statement marked

CLWS 1, the representative of the Claimant informed the Court that although
the Company deducted the statutory deductions from the Claimant’s monthly
salary for the months in which the Claimant was not paid, no contributions
were made for the statutory deductions.

[19] At para 10 of the Claimant’s submission, the Claimant submitted that

he was short-changed by the Company in which he was asked to work for the
benefit of the Company without paying him his monthly salaries. He had
worked with the Company until 17.03.2020 after which the Movement Control
Order was imposed by the Government.

[20] Bearing in mind that this is a constructive dismissal complaint, it is an

established industrial jurisprudence practice that the employee who claims to
be constructively dismissed bears the burden of proof that he has been
dismissed. The evidential burden rests on the Claimant to prove that he has
been dismissed unlawfully and the standard of proof required is on the
balance of probabilities.

EVALUATION OF FACTS AND EVIDENCE AND DECISION

[21] The Claimant was promoted as a Product Sales Manager on

01.02.2006 by letter dated 22.02.2006 at pp1-2 of CLB 1 with salary
adjustment to RM6,500.00 and travelling expenses of RM1,000.00. The
Claimant claimed that he has joined the Company on 01.03.1984 as a
Salesman and since then had been with the Company for 36 years. From the
letter, it appears there was no reference made to the Claimant’s initial
employment with the Company when he claimed to have joined the Company
in 1984.

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[22] The Claimant state that he has been employed with the Company
since 01.03.1984. Despite the uncontested nature of the Claimant’s evidence,
the Claimant did not adduced any evidence to support his contention that he
has been employed since 01.03.1984 as this would later on concern and
relate to the computation on the compensation in lieu of reinstatement should
the Claimant succeed in establishing that the Claimant’s dismissal was without
just cause or excuse.

[23] As of 21.03.2008 (Exh CL-2), the Company increased the Claimant’s

salary to MYR7,600 per month with a travelling allowance of MYR1,000.
Sometime thereafter, the Claimant was further promoted to his last position as
the General Manager. In the Claimant’s Bundle of Documents CLB 1, the
Claimant exhibited salary slips for the end month of November, end month of
December and end month of January 2020 which he should have been paid
as the General Manager. The Court notes, however, that the Claimant’s
monthly salary for the month of February and March 2020 was not exhibited
although the Claimant claims to be working in the months of February and
March 2020. There is nothing to suggest why the Claimant shouldn’t be
having his salary slips for the months of February and March 2020 if he had
worked in the months of February and March 2020 and why the Claimant saw
it fit not to produce the salary slips for the month of February 2020 and March
2020 at the hearing to prove that he was still working with the Company in
February and March 2020 is unexplained by the Claimant. As the Claimant did
not produce the evidence of his monthly salary slips for the month of February
and March 2020 or any other evidence relating thereto, the Court is not
convinced that the Claimant was still employed with the Company during the
month of February 2020 and March 2020. At the most, the Claimant is only
taken to have remain employed with the Company until the end of January
2020.

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[24] It is apparent that several aspects of the Claimant’s letter dated

01.06.2020 indicate that the facts leading to the Claimant’s claim of
constructive dismissal is not convincing. The Claimant in his letter dated
01.06.2020 stated that owner of the premises where the Company operates
had locked up the premises on 30.03.2020. This implies that the Claimant had
known since 30.03.2020 that the Company was not operating its business at
the usual premises.

[25] Evidently the letter dated as January 2020 (exhibit CL-6) written under
the letter head of Primuda Sdn Bhd which was signed by Christine Ding King
Sing in the capacity of the director of Primuda Sdn Bhd, shows that Primuda
Sdn Bhd acquired the trademark of the goods belonging to the Company
(Blondal Sales and Services Sdn Bhd) in January 2020. The acquiring of the
trademark issue coupled with the non production of the pay slips for February
and March 2020, raises question on the employment status of the Claimant
with the Company after January 2020 and the genuity of the Claimant’s claim
of constructive dismissal.

[26] The Claimant’s case is that he had worked until March 2020 and it is
his contention that the Company did not pay his salary from October 2019 to
March 2020. The Claimant had considered himself to be dismissed on
15.06.2020, there is no evidence that he was still in employment with the
Company for the month of April and Mei, 2020. It is unclear to the Court
whether the Claimant worked with the Company after January 2020, as the
Claimant had only exhibited his January 2020 pay slip and none other. In
short, the Claimant did not show credible evidence or demonstrate that he
was still employed by the Company in February, March, April and Mei 2020
before he tendered the letter dated 01.6.2020 to the Company.

[27] The Court also finds that the letter dated 01.06.2020 which is alleged
to have been acknowledged received by the Company or Christine Ding King

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Sing, was not acknowledged in a way that would indicate that the Company or
Christine Ding King Sing did receive the Claimant’s letter since the rubber
stamp mark on the letter dated 01.06.2020 has no indication that it is the
Company’s rubber stamp or the acknowledgement of Christine’s business
rubber stamp. The Claimant’s letter dated 01.06.2020 is also without any
signature of the person to whom it was purportedly served.

[28] In the Claimant’s pleading, the Claimant did not indicate who in the
Company had he been approaching concerning his unpaid salary and sales
commission. As the above gaps were evident from the Claimant’s case, the
fact that the Company was not present at the hearing does not mean that the
court will not examine the facts and evidence adduced before the Court in
deciding whether the claim of dismissal without just cause or excuse is one
with merits or genuine.

[29] The provision of section 30(5) of the Act mandates the court to act
according to equity, good conscience and the substantial merits of the case
without regard to technicalities and legal form. The Act seeks to do social
justice and protects workman who has been aggrieved by the conduct of the
Company in dismissing him without just cause or excuse. Nevertheless, this
court must be vigilant at all times to ensure that this social legislation is not to
be used casually or abused for the convenience of parties.

[30] The Claimant’s claim against the Company is hereby dismissed.

HANDED DOWN AND DATED THIS 16th DAY OF FEBRUARY 2022

~Signed~

( AMRIK SINGH )
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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