IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4/4 - 1798/21

BETWEEN

S G BALASUBRAMANIAM

AND

MSM INTERNATIONAL ADJUSTERS (MALAYSIA) SDN. BHD.

AWARD NO: 380 OF 2023

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

Chairman

VENUE : Industrial Court of Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 30.04.2021.

DATE OF RECEIPT OF
REFERENCE : 10.05.2021.

DATES OF MENTION : 09.06.2021, 05.08.2021, 28.10.2021, &

19.07.2022.

DATES OF HEARING : 11.04.2022, 12.04.2022, 05.07.2022 &

19.10.2022.

REPRESENTATION : Mr. V.K Raj and Miss S.P Devi of Messrs

A.Rajadurai P. Kuppusamy & Co - Counsel
for the Claimant

1
 : Mr. R.M. Murali of Messrs Pathma Raj
Ramasamy & Co – Counsel for the
Company.

THE REFERENCE

This is a reference dated 30.04.2021 by Honourable Minister of Human

Resources pursuant to section 20(3) of the Industiral Relations Act 1967

(“The Act”) arising out of the alleged dismissal of S G

BALASUBRAMANIAM (“Claimant”) by MSM INTERNATIONAL

ADJUSTERS (MALAYSIA) SDN. BHD. (“Company”) on the 28.07.2020.

AWARD

[1] Pursuant to the directions of this Court, the parties in this matter filed

their respective submissions dated 23.11.2022 (Company’s written

submissions), 08.12.2022 (Claimant’s written submissions), 21.12.2022

(Company’s written submissions in reply) and 21.12.2022 (Claimant’s

written submissions in reply)

2
[2] This Court considered all the notes of proceedings in this matter,

documents and the cause papers in handing down this Award namely:

(i) The Claimant’s Statement of Case dated 30.06.2021;

(ii) The Company’s Statement in Reply dated 30.07.2021;

(iii) The Claimant’s Rejoinder dated 29.09.2021;

(iv) The Claimant’s Bundle of Documents – CLB 1, CLB 2, CLB 3

& CL4;

(v) The Company’s Bundle of Documents – COB1 & COB2;

(vi) The Claimant’s Witness Statement - CLW1 – WS (SG

Balasubramaniam);

(vii) The Claimant’s Witness Statement - CLW2- WS (Lim Kok

Wai);

(viii) Company’s Witness Statement - COW1- WS ( Leong Yee

Fook);

(ix) Company’s Witness Statement - COW2 - WS ( Lim Chin

Keong);

(x) Company’s Witness Statement – COW3 - WS (Dato Wong

Kem Chen);

3
INTRODUCTION

[3] The dispute before this Court is the claim of constructive dismissal by

S G Balasubramaniam (The Claimant) wherein the Claimant claims that he

had been dismissed from his employment without just cause or excuse by

MSM International Adjusters (Malaysia) Sdn Bhd. (Company) on the

28.07.2020.

[4] The Claimant commenced employment with the Company on the

01.07.2017 as the Deputy Chief Executive Officer of the Company with a

basic salary of RM28,000.00 and other allowances and his last position in

the Company was the same and he was drawing the same basic salary

with other allowances.

[5] It is the Claimant’s version that he was considering tendering his

resignation letter which he had informed one Andrew Khoo , the Deputy

CEO of the Company on the 24.07.2020 around noon on that day. The

Company had on the same day around 5.45 pm served the Claimant a

letter wherein the Claimant was suspended from services with half pay with

4
serious allegations levelled against the Claimant. The Claimant then

tendered his resignation letter dated 26.07.2020 on the 27.07.2020 and

gave the Company a notice period of 3 months in accordance with the

terms of the letter of appointment. After the Claimant tendered his

resignation letter he received many queries from customers and suppliers

about the content of the suspension letter which affected his professional

reputation and according to the Claimant when the Company was queried

by the Claimant it did not offer satisfactory explanation. The Company by

its letter dated 27.07.2020 accepted the Claimant’s resignation letter but

reserved it rights to investigate the Claimant on the allegations levelled

against the Claimant. On the 28.07.2020 the Claimant treated himself as

constructively dismissed due to the purported baseless allegations made

by the Company against him which had besmirched his reputation. The

Claimant now states that the Company by its unjust and unfair treatment

had evinced an intention no longer to be bound by the terms of his contract

of employment and had thereby breached the implied terms of mutual trust

and confidence. In view of this the Claimant had claimed constructive

dismissal. The Claimant now states that his dismissal from employment

was without just cause or excuse and prays that he be reinstated to his

former position without any loss of wages and other benefits.

5
[6] The Company’s version surrounding the Claimant’s resignation is

markedly different. The Company denies that it had dismissed the Claimant

from his employment with the Company and maintains that the Claimant

had voluntarily resigned from his position in the Company. The Company

states that it had discovered the Claimant was colluding and planning to

join a competitor with a team of managers from the Company which went

against the interest of the Company which the Company discovered when

the Claimant erroneously carbon copied his plan to the General Manager of

the Company which email was meant only for certain senior managers.

Upon this discovery of the Claimant’s alleged misconduct, the Company

suspended him on the 24.07.2020 in order for the Company to carry out its

investigation. The Claimant then tendered his resignation letter on the

26.07.2020 with the requisite notice period of 3 months with his last day

with the Company to be on the 26.10.2020 in order to avoid any

investigation or disciplinary process. The Company accepted his

resignation letter on the 27.07.2020 but reiterated that the Claimant’s

suspension will continue and he will still be investigated on the alleged

misconduct. On the 28.07.2020 the Claimant surprisingly referred back to

the Company’s letter dated 24.07.2020 and claimed that the contents of the

letter was a breach of Claimant’s essential terms of the contract of

6
employment and treated himself as constructively dismissed on that date

giving the Company no notice to remedy any breaches if there were any to

start with. The Company denies the Claimant’s allegations against the

Company and states that the Company did not dismiss him from his

employment with the Company and now prays that the Claimant’s claims

be dismissed.

[7] The Claimant gave evidence under oath and his evidence was further

supported by the evidence CLW2 (Lim Kok Wai who was a former

employee of the Company but had since left the Company and had joined

another company by the name of Richard Hogg Lindley (Malaysia) Sdn

Bhd. and who gave evidence denying that the Claimant had enticed him to

join Richard Hogg Lindley (Malaysia) Sdn Bhd.) . The Company’s evidence

was adduced through COW1 (Leong Yee Fook, the Chief Executive Officer

and Director of the Company who gave evidence on the circumstances

leading to the Claimant’s claim of constructive dismissal), COW2 ( Lim Chin

Keong , The Senior General Manager of the Company who had received

the unintended email from the Claimant on the 20.07.2020) and COW3

(Dato’ Wong Kem Chen who is the director and Chairman of the Company

7
who was informed of the Claimant’s alleged misconduct on the

21.07.2020);

THE CLAIMANT’S CASE

[8] The Claimant’s case can be summarised as follows:-

(i) The Claimant states that the dispute in this matter is over the

constructive dismissal of the Claimant by the Company

effective 28.07.2020;

(ii) The Claimant commenced employment with the Company on

01.07.2017 as the Deputy Chief Executive Officer, drawing a

monthly basic salary of RM28,000.00 and a monthly fixed

allowance of RM2,000.00. The Claimant states that he was a

confirmed employee;

(iii) At the time of the dismissal, the Claimant was holding the same

position and his last drawn monthly basic salary was

RM28,000.00 with a monthly fixed allowance of RM2000.00;

8
(iv) The Claimant's job functions as Deputy Chief Executive Officer

of the Company amongst other includes :-

(a) Co-managing the overall operations of the Company

including branch operations;

(b) Procuring/enhancing business from existing clients and at

the same time creating business opportunities with new

clients;

(c) Co-managing the overall achievement Company budget;

(d) Other functions such as resolving issues with clients,

editing of reports, managing operational units;

(v) On 02.07.2020, the Claimant had intimated to Andrew Khoo,

the Deputy CEO, in good faith that he had received two job

offers from other companies, and as such he will decide

whether to take up those offers after the conclusion of the

financial year;

9
(vi) Andrew Khoo told the Claimant that if the offers were good, he

should consider it then;

(vii) On 24.07.2020 around 1.30 p.m, the Claimant had informed

Andrew Khoo that he will be tendering his resignation letter on

27.07.2020. Around 5.45 pm. on the same day, the Company

vide letter dated 24.07.2020, suspended the Claimant from his

services with half pay;

(viii) The Claimant states that the Company had made serious and

baseless allegations against him in the letter of suspension and

the Claimant was prohibited from entering the Company’s

premises in Kuala Lumpur and its branches;

(ix) The Claimant was also denied access to the IT systems,

prohibited from contacting any existing employees of the

Company, suppliers and customers and was also instructed to

return the Company's properties by 27.07.2020;

10
(x) By a letter dated 26.07.2020, the Claimant tendered resignation

by giving the requisite notice period under his contract of

employment, as indicated to Andrew Khoo earlier;

(xi) The Claimant contends that after he tendered his resignation,

he had received many queries from third parties such as,

customers and suppliers about the contents of his suspension

letter, which had the effect of affecting his professional

reputation;

(xii) As a result of the said queries, by an e-mail dated 26.07.2020,

the Claimant informed Andrew Khoo of his predicament. By an

e-mail dated 27.07.2020 Andrew Khoo’s replied to the

Claimant’s e-mail and his response was evasive and

insensitive;

(xiii) By a letter dated 27.07.2020, (which was received by the

Claimant on 29.07.2020) the Company accepted the Claimant’s

resignation, and intimated that it will reserve all its rights in law

11
 against the Claimant to investigate on the allegations preferred

against the Claimant;

(xiv) By letter dated 28.07.2020, the Claimant treated himself as

constructively dismissed on the ground that the Company had

breached fundamental terms of his contract of employment by

making baseless allegations against him, besmirching his

reputation as the Deputy Chief Executive Officer to the clients

and business contacts of the Company known to the Claimant;

(xv) By letter dated 30.07.2020, the Company responded to the

Claimant's letter dated 28.7.2020 denying the contents of his

letter of constructive dismissal;

(xvi) Meanwhile, the Company filed a civil suit against the Claimant

claiming for payment in lieu of notice;

(xvii) The Claimant states that by the series of events as illustrated

above, the Company had treated him unfairly and unjustly, and

the Company had evinced an intention no longer to be bound

12
 by the terms of his contract of employment, and had breached

the implied term of mutual trust and confidence;

(xviii) The Claimant states that the conduct and/or acts of the

Company had breached the following express and/or implied

terms of his contract of employment with the Company namely;

(a) that the Company would not conduct itself in manner

likely to damage or destroy the relationship of confidence

and trust between the parties as employer and employee;

(b) that the Company would act towards the Claimant in good

faith;

(c) that the Company would not exercise its powers in

relation to the Claimant in a callous manner so as to put

his mental or physical health at risk;

(d) that the Company would not exercise its power in such a

manner as to lower the Claimant's dignity and self-esteem

13
 amongst his colleagues and within the community and

that the Company would exercise its power in relation to

the Claimant fairly and reasonably;

(e) That the Company would not be making baseless

allegations against him, besmirching his reputation as the

Deputy Chief Executive Officer to the clients and business

contacts of the Company known to the Claimant;

(xix) The Claimant states that the series of acts or conduct of the

Company amounted either individually or cumulatively to

repudiatory breaches of his contract of employment, thus

entitling him to treat himself as constructively dismissed without

just cause or excuse;

(xx) The Company's conduct was motivated by mala fide with a view

to victimizing the Claimant;

(xxi) The Claimant states that the said dismissal is contrary to the

principles of natural justice, good conscience, equity and

14
 amounts to an unfair labour practice which ought to be struck

down;

(xxii) The Claimant now states that he had been dismissed from his

employment without just cause or excuse and prays that he be

reinstated to his former position without any loss of wages and

other benefits.

THE COMPANY’S CASE

[9] The Company’s case can be summarised as follows:-

(i) The Company admits the Claimant’s position in the Company as

the Deputy Chief Executive Officer of the Company, that the

Claimant was a confirmed employee of the Company and the

Claimant’s monthly basic salary but denies the fixed allowance

claim;

15
(ii) The Company does not dispute the Claimant’s job functions as

the Deputy Chief Executive Officer of the Company as stated by

the Claimant;

(iii) The Company admits that the Claimant had met Andrew Khoo on

the 02.07.2020 and discussed about the Claimant receiving job

offers but further states that it was not the first time the Claimant

has indicated to Andrew Khoo of his desire to resign and Andrew

Khoo did not pay much attention to it as it was not the first time.

(iv) The Company admits that the Claimant met Andrew Khoo on the

24.07.2020 but further states that at about 4.00 pm on the same

day, the Company’s Chief Executive Officer summoned Andrew

Khoo and informed him that the Claimant had been in collusion

with and was planning to join a competitor company together with

a team of Senior Managers of the Company enticed by the

Claimant and the Company became aware of this when the

Claimant inadvertently carbon copied an email dated 20.07.2020

of the Claimant’s plan to one of the Company’s General Manager

one Lim Chin Keong;

16
(v) The Company denies making any serious and baseless allegation

against the Claimant;

(vi) The Company admits the Claimant tendered his resignation letter

which was dated 26.07.2020;

(vii) The Company has no knowledge about any queries made by

anyone to the Claimant about any issue after the Claimant had

tendered his resignation letter and it is purely within the Claimant’s

knowledge. Andrew Khoo made no comments about the issues

raised by the Claimant in his email dated 26.07.2020 has he has

no personal knowledge about the Claimant’s predicament;

(viii) The Company accepted the Claimant’s resignation letter dated

26.07.2020 on the 27.07.2020 but reserved its rights in law against

the Claimant to investigate him on the allegations preferred

against him;

17
(ix) The Company has knowledge that the Claimant treated himself as

constructively dismissed on the 28.07.2020 but denies all the

allegations made by the Claimant that the Company had

breached any fundamental terms of the Claimant’s contract of

employment and had responded accordingly by its letter dated

30.07.2020;

(x) The Company by its letter dated 24.07.2020 suspended the

Claimant on suspicion of conspiring with the Company's

competitors to cause substantial injury, sabotage and/or losses to

the Company’s business;

(xi) The Claimant was suspended in order for the Company to carry

out its investigations before initiating disciplinary proceedings

against the Claimant if the investigation warrants it;

(xii) The Company states that the Claimant tendered his resignation to

avoid the investigation and a formal disciplinary process against

him from being initiated. Any disciplinary process if culminates into

18
 a dismissal for a serious misconduct would then seriously hamper

the Claimant’s chances of forming or joining a rival loss adjuster

Company as a Director or Chief Executive Officer as Bank Negara

might reject his application for failing the fit and proper test;

(xiii) The Claimant then by his letter dated 28.07.2020 surprisingly

referred back to the Company’s suspension letter dated

24.07.2020 and alleged that the issues raised therein amounted to

a fundamental breach of the Claimant’s employment contract and

the Claimant treated that his employment came to an end as of

28.07.2020;

(xiv) The Claimant completely and conveniently ignored the fact that he

tendered his resignation voluntarily on 26.07.2020 which was duly

accepted by the Company on 27.07.2020;

(xv) The Company by its letter dated 30.07.2020 denied the Claimant’s

allegations and notified the Claimant that his allegation of

fundamental breaches of his contract of employment which led to

19
 his constructive dismissal claim is a deliberate attempt by the

Claimant to circumvent a formal disciplinary process to which the

Claimant responded by his letter dated 03.08.2020 which the

Company disagrees;

(xvi) The Company denies having in any manner conducted itself that

can be construed as a fundamental breach of the express or

implied terms of the contract of employment of the Claimant;

(xvii) The Company states that the Claimant’s claim of constructive

dismissal is baseless and untenable;

(xviii) The Company denies dismissing the Claimant and therefore prays

that the Claimant’s case be dismissed.

20
THE LAW

Role and function of the Industrial Court

[10] The role of the Industrial Court under section 20 of the Industrial

Relations Act 1967 is succinctly explained in the case Milan Auto Sdn.

Bhd. v. Wong Seh Yen [1995] 4 CLJ 449. His Lordship Justice Mohd

Azmi bin Kamaruddin FCJ delivering the judgment of the Federal Court had

the occasion to state the following:-

“As pointed out by this Court recently in Wong Yuen Hock v. Syarikat

Hong Leong Assurance Sdn. Bhd. & Another Appeal [1995] 3 CLJ 344;

[1995] 2 MLJ 753, the function of the Industrial Court in dismissal cases on

a reference under s. 20 is two-fold firstly, to determine whether the

misconduct complained of by the employer has been established, and

secondly whether the proven misconduct constitutes just cause or excuse

for the dismissal. Failure to determine these issues on the merits would be

a jurisdictional error ...”

[11] The above principle was further reiterated by the Court of Appeal in

the case of K A Sanduran Nehru Ratnam v. I-Berhad [2007] 1 CLJ 347

where his lordship Justice Mohd Ghazali Yusoff, JCA outlined the function

of the Industrial Court:-

21
 “[21] The learned judge of the High Court held that the Industrial Court had

adopted and applied a wrong standard of proof in holding that the respondent

has failed to prove dishonest intention and further stating that the respondent has

not been able to discharge their evidential burden in failing to prove every

element of the charge. He went on to say that the function of the Industrial Court

is best described by the Federal Court in Wong Yuen Hock v. Syarikat Hong

Leong Assurance Sdn Bhdand Another Appeal [1995] 3 CLJ 344 where in

delivering the judgment of the court Mohd Azmi FCJ said (at p. 352):

On the authorities, we were of the view that the main and only function of

the Industrial Court in dealing with a reference under s. 20 of the

Act (unless otherwise lawfully provided by the terms of the reference), is to

determine whether the misconduct or irregularities complained of by the

management as the grounds of dismissal were in fact committed by the

workman, and if so, whether such grounds constitute just cause or excuse

for the dismissal”

[12] It will not be complete this if this Court fails to make reference to the

decision of the Federal Court in the case of Goon Kwee Phoy v. J & P

Coats (M) Bhd [1981] 1 LNS 30 where His Lordship Raja Azlan Shah, CJ

(Malaya) (as HRH then was) opined:

22
 “Where representations are made and are referred to the Industrial Court for

enquiry, it is the duty of that Court to determine whether the termination or

dismissal is with or without just cause or excuse. If the employer chooses to

give a reason for the action taken by him the duty of the Industrial Court

will be to enquire whether that excuse or reason has or has not been made

out. If it finds as a fact that it has not been proved, then the inevitable conclusion

must be that the termination or dismissal was without just cause or excuse. The

proper enquiry of the Court is the reason advanced by it and that Court or the

High Court cannot go into another reason not relied on by the employer or find

one for it.”

Burden Of Proof

[13] Whenever a Company had caused the dismissal of the workman, it is

then incumbent on part of the Company to discharge the burden of proof

that the dismissal was with just cause or excuse. This Court will now refer

to the case of Ireka Construction Berhad v. Chantiravathan a/l

Subramaniam James [1995] 2 ILR 11 in which case it was stated that:-

“It is a basic principle of industrial jurisprudence that in a dismissal case the

employer must produce convincing evidence that the workman committed

the offence or offences the workman is alleged to have committed for which

he has been dismissed. The burden of proof lies on the employer to prove

23
 that he has just cause and excuse for taking the decision to impose the

disciplinary measure of dismissal upon the employee. The just cause must

be, either a misconduct, negligence or poor performance based on the

facts of the case.

Burden of proof in cases of constructive dismissal.

[14] The case of Weltex Knitwear Industries Sdn. Bhd. v Law Kar Toy

& Anor (1998) 1 LNS 258/ 91998) 7 MLJ 359 is relevant on the role of

this Court when the dismissal itself is disputed by the Company. In this

case his lordship Dato' Haji Abdul Kadir Bin Sulaiman J opined :-

Next is the burden of proof on the issue of forced resignation raised by the first

Respondent. 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: (emphasis is this Court’s).

24
[15] In view of the above case and anchored on a claim of constructive

dismissal where the Company denies dismissing the Claimant from his

employment, it is now incumbent upon the Claimant to prove his case that

he had been dismissed in line with the claim of constructive dismissal. The

burden of proof thus had now shifted to the Claimant to prove that he had

been dismissed by the Company from his employment before this Court

can proceed to determine whether that dismissal if proven amounts to a

dismissal without just cause or excuse.

Standard Of Proof

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

Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal had laid down

the principle that the standard of proof that is required to prove a case in

the Industrial Court is one that is on the balance of probabilities wherein his

lordship Justice Abdul Hamid Mohamad, JCA opined:-

“Thus, we can see that the preponderant view is that the Industrial Court, when

hearing a claim of unjust dismissal, even where the ground is one of dishonest

act, including "theft", is not required to be satisfied beyond reasonable doubt that

the employee has "committed the offence", as in a criminal prosecution. On the

25
 other hand, we see that the courts and learned authors have used such terms as

"solid and sensible grounds", "sufficient to measure up to a preponderance of the

evidence," "whether a case... has been made out", "on the balance of

probabilities" and "evidence of probative value". In our view the passage

quoted from Administrative Law by H.W.R. Wade & C.F. Forsyth offers the

clearest statement on the standard of proof required, that is the civil

standard based on the balance of probabilities, which is flexible, so that the

degree of probability required is proportionate to the nature of gravity of the

issue. But, again, if we may add, these are not "passwords" that the failure to use

them or if some other words are used, the decision is automatically rendered bad

in law.”

Law on Constructive Dismissal

[17] In Wong Chee Hong v Cathay Organization Malaysia Sdn. Bhd.

[1998] 1 CLJ Rep 298/ [1988] 1 CLJ 45 his Lordship Tun Salleh Abas

delivering the judgment of the Court had this to say:-

“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

26
 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. It was an attempt to

enlarge the right of the employee of unilateral termination of his contract

beyond the perimeter of the common law by an unreasonable conduct of his

employer that the expression " constructive dismissal " was

used…………………..

………….When the Industrial Court is dealing with a reference under s. 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.”

[18] In a constructive dismissal case it must be shown by the employee

that the employer:-

(i) by his conduct had significantly breached the very essence or

root of the contract of employment or,

(ii) that the employer no longer intends to be bound by one or

more of the essential terms of the contract,

27
[19] And if the employer demonstrates the above, then the employee is

entitled to treat himself as discharged from further performance of the

contract. The termination of the contract is then for reason of the

employer’s conduct thereby allowing the employee to claim constructive

dismissal.

[20] In the case of Anwar Abdul Rahim v. Bayer (M) Sdn. Bhd. [1998] 2

CLJ 197, the Court of Appeal expounded the requirements to prove

constructive dismissal wherein his lordship Justice Mahadev Shanker JCA

delivering the judgment of the Court had the occasion to state the

following:-

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

deciding whether constructive dismissal has taken place is not to ask

oneself whether the employer's conduct was unfair or unreasonable (the

unreasonableness test) but whether "the conduct of the employer was such

that the employer was guilty of a breach going to the root of the contract or

whether he has evinced an intention no longer to be bound by the contract".

(See Holiday Inn Kuching v. Elizabeh Lee Chai Siok [1992] 1 CLJ

141 (cit) and Wong Chee Hong V. Cathay Organisation (m) Sdn. Bhd.

[1988] 1 CLJ 298 at p. 94.”

28
[21] It must be further stated here that the Claimant’s case being one of

constructive dismissal, the Claimant must give sufficient notice to his

employer of his complaints that the conduct of the employer was such that

the employer was guilty of a breach going to the root of the contract or

whether the employer has evinced an intention no longer to be bound by

the contract as stated in the case of Anwar Abdul Rahim (supra). The

notice to the employer will be necessary in order for the employer to the

remedy the breach (if any) before the Claimant can treat himself as

constructively dismissed if there was failure on part of the Company to

remedy the breaches complained of.

[22] In the case of Govindasamy Munusamy v. Industrial Court

Malaysia & Anor [2007] 10 CLJ 266, his lordship Justice Hamid Sultan

Abu Backer had succinctly stated what a Claimant had to prove in order to

succeed in a case of constructive dismissal:-

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

claimant to establish that:

29
 (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 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.”

[23] Having stated the law as above, this Court will now move to the facts

and evidence of this case for its consideration. In doing so, this Court will

now take into account the conduct of the Claimant, Company and the

series of events that led to the Claimant now claiming constructive

dismissal.

30
EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[24] The Claimant commenced employment with the Company on the

01.07.2017 as Deputy Chief Executive Officer (DCEO) of the Company.

The Claimant as the DCEO of the Company had many important

responsibilities that involves interactions with the Company’s clients.

Amongst other the Claimant had to co-manage the overall operations of the

Company including branch operations, procuring/enhancing business from

existing clients and at the same time creating business opportunities with

new clients, and other functions such as resolving issues with clients,

editing of reports, managing operational units. The senior position of the

Claimant in the Company in view of his dealing with the clients of the

Company makes the Claimant’s employment status in the Company a

matter of interest for the Company’s clients.

[25] The Claimant’s relationship with the Company and its senior officers

was at all times very amiable and this can be seen from the absence of any

unpleasant, destructive or disruptive communication throughout the

Claimant’s tenure with the Company until the 24.07.2020. The Claimant

may have indicated his desire to leave the Company for greener pasture

31
elsewhere and this cannot always be seen as any measure of

dissatisfaction of the Claimant with other senior officer of the Company or

the Company itself and no documents in this Court reveals any

discontentment of the Claimant with the Company until his first known letter

of such discontent, sadness or disenchantment as reflected in his letter

claiming constructive dismissal dated 28.07.2020.

[26] Just two days prior to the letter of the Claimant claiming constructive

dismissal, the Claimant had tendered his resignation letter dated

26.07.2020 and the tone and emotion emanating from this letter confirms

the cordial and good working relationship enjoyed by the Claimant with all

his colleagues in the Company including the senior management officers

throughout his tenure until the date of his letter of resignation. The Claimant

had at no time during the exchanges of his letters with the Company or in

this Court had raised any issue that this letter of resignation was a forced

resignation or a product of the Claimant’s extreme unhappiness or

displeasure against the Company due to its conduct. The content of the

Claimant’s resignation letter and the salient part is reproduced herein for

convenience:-

32
 “…….Letter of Resignation

I refer to the above and hereby tender my resignation from the position of Deputy

CEO in MSM International (Malalysia) Sdn Bhd.

I would like to take this opportunity to thank the Senior Management and all

colleagues who have supported and assisted me during my tenure in this

organization.

In accordance with my notice period under the letter of employment , my last day

of work with MSM International Adjusters (Malaysia) Sdn. Bhd. would be 26

October 2020 ………….”

[27] Just two days before the Claimant tendered his resignation letter, the

Company had issued the Claimant a suspension letter dated 24.07.2020

due to certain alleged misconduct of the Claimant and which suspension

letter was received by the Claimant on the 26.07.2020. The above words

as contained in the resignation letter of the Claimant is the thoughts of the

Claimant contemporaneous and immediate upon being in receipt of the

suspension letter dated 24.07.2020. This Court had taken cognizance that

the Claimant is a very high ranking officer of the Company with a position of

DCEO and also a legally qualified person who had a two day period from

the date he had received the Company’s letter of suspension of him dated

33
24.07.2020 before he crafted the resignation letter in a cordial and friendly

tone without any suggestion of disappointment or unhappiness with the

Company.

[28] It calls for question what caused the Claimant to send a letter of

resignation in a pleasant tone only to change this stance to one of serious

discontent with allegations that the Company had breached the essential or

fundamental terms of contract of employment thereby causing him to claim

constructive dismissal after just 2 days from the date of his resignation

letter.

[29] The facts and evidence in this Court reveals that the Company had

stumbled upon certain information that raised suspicion that the Claimant

was acting in a manner inconsistent with his duties as the DCEO of the

Company wherein the Claimant was allegedly conspiring with the

Company’s competitors by not only intending to join the competitor but also

to entice the Company’s senior managers to join the competitor thereby

causing severe disruption and damage to the Company.

34
[30] COW2 gave evidence that on the 20.07.2020 he had received an

email from the Claimant which was a forwarded email from an entity known

as Charles Taylor Adjusting of Singapore sent to the Claimant. COW2

testified that he was not the intended recipient of the email as he was not

part of any plan to set up a rival company or was having any plan to leave

the Company and join a rival company. Soon after receiving this email,

COW2 forthwith forwarded it to COW1 who is the CEO of the Company.

[31] COW1 testified that the Claimant was allegedly conspiring with the

Company’s competitor who was at that time planning to open a Malaysian

entity that would be a direct competitor to the Company and this was

revealed through the email dated 20.07.2020 which the Claimant had

inadvertently sent to COW2.

[32] This Court having perused the contents of the email dated

20.07.2020 and the evidence of the Company’s witnesses find that there

exist matters of grave concern for the Company in pursuit of its business

interest and the trepidation of the Company in view of this email is not

without substance. The contents of the email suggest that the Claimant had

35
been in discussion with Charles Taylor Adjusting from Singapore to register

a business in Malaysia which will be ready for business in late October

coinciding with the Claimant’s exact notice period given to the Company as

stated in the Claimant’s letter of resignation. This discussion between the

Claimant and the officer of Charles Taylor Adjusting from Singapore was

captured as having happened whilst the Claimant was still in employment

with the Company what more as the DCEO wherein the email also reveals

that other officers of the Company may follow the Claimant by late October.

[33] COW1 being the CEO of the Company had a duty to protect the

Company’s business and in the course of this duty embarked on his action

plan of what was best for the Company. COW1 immediately informed the

Board of the Company about the Claimant’s action and this was confirmed

by the COW3, the Chairman of the Company.

[34] After having knowledge of the Claimant’s email communication dated

20.07.2020 with Charles Taylor Adjusting from Singapore, the Company

issued the Claimant a suspension letter dated 24.07.2020 detailing the

Claimant’s alleged misconduct of acting against the interest of the

36
Company. By this letter, the Claimant was suspended for 14 days with half

pay pending full investigation of the alleged misconduct. In the said

suspension letter, the Company directed the Claimant to surrender all of

the Company’s properties which included a mobile phone which the

Company thought was its property.

[35] The Claimant received this suspension letter on the 26.07.2020. The

suspension letter had some very serious allegations made against the

Claimant and this Court would have thought that upon receipt of this letter

with the all the allegations contained therein the Claimant being a DCEO of

the Company, who is a legally trained individual and who had a reputation

to protect would have forthwith strenuously and vehemently objected the

contents of the letter with the strongest words possible if the Claimant felt

strongly that the suspension letter contained baseless and scurrilous

allegations against him that touched on his good reputation. Alas, the hand-

phone of the Claimant was a more important commodity for the Claimant at

the time of receiving the suspension letter that necessitated the Claimant

giving an adequate response on the hand-phone ownership issue with his

own handwriting but completely forgetting and not saying anything about

the serious allegations in the suspension letter. The state of mind and the

37
action of the Claimant who is a legally trained mind must be judged as any

other witnesses not only for what was said in this Court but also for what

was said and done contemporaneous to the events at the time of its

occurrence.

[36] The duty of this Court to make critical examination of all the available

evidence presented and test them with the contemporaneous documents is

imperative for this Court to arrive at a just conclusion and in embarking on

this duty, this Court is guided by the force of an unimpeachable precedent

set by the Federal Court in the case of Tindok Besar Estate Sdn Bhd v.

Tinjar Co [1979] 1 LNS 119 where his lordship Justice Chang Ming Tat

FCJ delivering the judgment of the Court had so forcefully yet eloquently

opined:-

“Nevertheless the learned trial Judge expressed himself to be completely

satisfied the veracity of the respondent's witnesses and their evidence. He

purported to come to certain findings of fact on the oral evidence but did not

notice or consider that the respondent's oral evidence openly clashed with its

contemporaneous documentary evidence. For myself, I would with respect

feel somewhat safer to refer to and rely on the acts and deeds of a witness

which are contemporaneous with the event and to draw the reasonable

38
 inferences from them than to believe his subsequent recollection or

version of it, particularly if he is a witness with a purpose of his own to

serve and if it did not account for the statements in his documents and

writings. Judicial reception of evidence requires that the oral evidence be

critically tested against the whole of the other evidence and the circumstances of

the case. Plausibility should never be mistaken for veracity. It may be

advantageous at this stage to recall the words of Lord Greene MR in Yuill v.

Yuill [1945] P 15 at pp. 19-20:

(emphasis is this Court's)

[37] On the same date of 26.07.2020 upon receipt of the suspension

letter, the Claimant even had the time to prepare a letter of resignation with

all the kind and thankful words for the senior management and colleagues

of the Company and sent the letter to the Company on the 27.07.2020. It is

this Court’s view that if the Claimant had in his mind that the Company had

conducted itself in an unfair and unjust manner as he now says in this

Court, it would have been unthinkable for the Claimant to send a

resignation letter in a manner in which he had drafted with all praises and

gratitude for the Company. This Court too having examined all the

evidence before this Court is of the view that the Company had not acted in

any malicious manner or in bad faith with intent to tarnish or destroy the

39
reputation of the Claimant purely as a vengeful reaction on account of the

Claimant’s desire to leave the Company or his intention to tender his

resignation as the relationship of the Claimant and the Company had at all

times been cordial until the email dated 20.07.2020 which the Company

stumbled upon. The Company’s decision for suspending the Claimant from

his employment was motivated by a genuine reason after stumbling upon

the Claimant’s communication with Charles Taylor Adjusting from

Singapore.

[38] The Company had accepted the Claimant resignation letter on the

27.07.2020 but maintained that the Company will proceed to fully

investigate the Claimant’s action and proceed with a formal disciplinary

inquiry wherein the Claimant was assured that he will be given all the

opportunity to respond as the Claimant’s last day with the Company was

only on the 26.10.2020. At no time the Claimant had stated that the

resignation letter was involuntary or was obtained by coercion or duress.

For all intent and purposes the resignation letter was a voluntary act of

resignation by the Claimant which was a decision taken by the Claimant on

40
his own with no involvement from anyone from the Company after beinig in

receipt of the suspension letter.

[39] Now this Court finds it useful to state here the law relating to

resignation particularly a voluntary resignation. The law is clear in that an

employee, who tenders his letter of resignation, ends his employment

contract unilaterally and upon resignation, the relationship of employer and

employee is dissolved.

[40] In the case of Syed Aman Syed Hassan v. Mara Institute of

Technology [1993] 1 CLJ 228, his Lordship Lim Beng Choon J had the

occasion to state as follows:-

"Turning to the law, it is clear that the relationship of master and servant is

essentially contractual. It is created and continued with mutual consent. Just as

the master cannot force the servant to continue to serve him, so also the servant

cannot force his service upon the master. See Bain Bridge v. Smith [1889] 41

CH-D 462 @ 474. By the same token if a letter of resignation is submitted, the

contract of employment loses the bilateral relationship needed and as such may

be said to dissolve the relation created."

41
[41] In the same case above Lim Beng Choon J further referred to the

Indian case of Jawala Prasad v. State of UP AIR [1954] ALL 638 where his

lordship quoted the passages of the judgment of Justice Malik CJ which

states that:-

"No question of withdrawal could then arise, his resignation having been already

accepted. Even if his withdrawal of resignation application had been received

before the resignation was accepted he could not claim an absolute right to

withdraw his resignation. The resignation was unconditional and whether he

could be permitted to withdraw that resignation is a matter within the discretion of

the appointing authority."

[42] The Judgment of Lim Beng Choon J in the case of Syed Aman Syed

Hassan's (supra ) case was followed and applied by the Industrial Court in

the case of Percetakan Keselamatan Nasional Sdn. Bhd. v. Jamaliah

Md. Yusoff [2001] 2 ILR 536 where the Court held that:

"The principle that there is no requirement of acceptance of resignation by the

Company has been accepted by the Singapore High Court in the case of Michael

F Auty v. Pernas Plessey Electronic Sdn. Bhd. [1988] 2 CLJ 767 (Rep); [1988] 1

CLJ 729 and the High Court of England in the case of Riordan v. The War Office

[1959] 1 WLR 1046. The decision of the High Court of England was later affirmed

42
 by the English Court of Appeal. In Riordan's case, the Court of Appeal has stated

as follows:-

The giving of a notice terminating a contractual employment, whether by

employee or employer, is the exercise of the right under the contract of

employment to bring the contract to an end, either immediately or in the

future. It is a unilateral act, requiring no acceptance by the other party, and like a

notice to quit a tenancy, once given it cannot in view be withdrawn save by

mutual consent."

[43] In view of the above cases cited, this Court holds the view that once

the Claimant had tendered his resignation letter that resignation stands

despite the Claimant subsequently changing his stance and claiming

constructive dismissal even if it is only for the duration until 26.10.2020.

[44] The Claimant then sent a letter dated 28.07.2020 claiming

constructive dismissal on the same day after having knowledge that the

Company despite accepting his resignation letter would nevertheless

proceed to investigate the Claimant’s alleged misconduct. In the

constructive dismissal letter for the first time the Claimant made many

allegations against the Company including the Company’s alleged

43
circulation of the Claimant’s suspension letter outside the business so as to

tarnish his good name. This Court had considered the fact that the

Claimant had email exchanges with Andrew Khoo, the DCEO of the

Company prior to 28.07.2020 about the Claimant’s concerns about the

suspension letter allegedly being circulated but if the Claimant had any

such concerns then he should have raised it to the Company putting the

Company on notice of such an alleged act and demand the Company

remedy it, if truly there were any substance to what the Claimant had

alleged. From the tone and parts of the communication between the

Claimant and Andrew Khoo, it all seemed like a personal conversation

without any demand made to the Company to remedy any breaches or

alleged breaches and further the contents of the letter can only be

construed as the Claimant giving notice and reasons as to why the

Claimant is unable to appear at the Company premises to hand over the

Company properties at an appointed time. Andrew Khoo’s response to the

Claimant is not something that this Court can find fault as the Claimant is

still under suspension and any conversation that touched on the ongoing

investigation would affect the overall inquiry and investigation that the

Company is proceeding which is in line with the contents of the suspension

44
letter prohibiting the Claimant from contacting or persuading any of the

Company’s employees.

[45] The Claimant’s decision to abruptly leave the Company by claiming

constructive dismissal after tendering his resignation letter could only mean

that the Company will be unable to complete its investigation including

taking any statement from the Claimant for the purposes of proceeding with

the disciplinary proceedings if warranted.

[46] The Claimant’s letter dated 28.07.2020 claiming constructive

dismissal after being in receipt of the Company’s letter of acceptance of

resignation and its intention of proceeding with its investigation and

disciplinary inquiry is nothing but an afterthought of the Claimant after

having knowledge of the Company’s intention of proceeding with the

investigation and inquiry.

[47] All the Company had said or done was its intention to proceed with

investigation and inquiry and the Claimant was assured of an opportunity to

45
respond accordingly but the Claimant instead of clearing his name and

reputation in the investigation or inquiry quickly made unwarranted

statement that the Company was casting aspersion and tarnishing his

name. There is no substance in the Claimant’s allegation of the Company

casting aspersion simply because the Claimant was restricted access to

the Company and its assets as the Claimant was at the material time a

suspended employee. This Court also finds no merit in the Claimant’s

complaint that the Company’s mere notification of its intention to lodge a

police report amounts to any threat or intimidation. Further the Claimant’s

allegation that the Company had circulated the suspension letter also

remains unproven with convincing evidence. CLW2’s evidence does not

help the Claimant’s case in any manner and the WhatsApp communication

produced by the Claimant through his witness which was dated 25.07.2020

and which formed the basis for the Claimant to claim that the Company had

circulated his suspension letter thereby tarnishing his reputation does not in

any way prove that the Company was responsible for the circulation or

whether there was indeed a circulation of the suspension letter. It is only a

statement of believe of the author of the WhatsApp communication and

nothing more. In any event the Company had adequately responded to all

the Claimant’s allegation in its letter to the Claimant dated 30.07.2020

46
denying the Company was in any way involved in tarnishing the Claimant’s

reputation. The Claimant had substantial dealings with the Company’s

clients due to his position as the DCEO of the Company and it is only good

corporate practice for the Company to announce or notify the clients that

the Claimant had been suspended and relieved of his duties and this too is

a true fact which is not defamatory in any way. Notification of suspension

and relieving the Claimant’s duties cannot be construed as the Company

circulating the entire contents of the letter of suspension as stated by the

Claimant.

[48] The Claimant had also alleged and led evidence of what he believed

in that the Company had breached the essential and implied terms of

contract of employment thereby evincing an intention to longer be bound by

the terms of the contract of employment between the Company and the

Claimant. This Court having perused the evidence and looking at this case

as a whole cannot see anything that can support the Claimant’s assertion

that the Company had breached the essential and implied terms of the

contract of employment of the Claimant with the Company. It is the

Company’s rights and prerogative to inquire and discipline its employee no

47
matter what position they hold in the Company if the employee’s conduct

raises a strong case for investigation for any alleged misconduct.

[49] It is the Claimant upon knowledge of the Company’s intention to

proceed with the investigation, by his own action of tendering his

resignation letter attempted to outflank the Company’s decision to fully

investigate the alleged misconduct and this is manifestly clear from the

Claimant’s response in his letter claiming constructive dismissal dated

28.07.2020.

[50] The Claimant’s decision to claim constructive dismissal was so ill

conceived that the Claimant also completely ignored his responsibilities

and duties before claiming constructive dismissal and that is to provide the

Company with sufficient notice of the Company’s alleged breaches (if any)

of the fundamental or essential terms of the contract of employment with

the Claimant and further seeking the Company to remedy the breaches and

to only leave or walk away from the Company if despite being given

sufficient notice period, the Company does not remedy the defect or

48
breaches thereby entitling the Claimant to terminate the contract of

employment by reason of the Company's conduct which is sufficiently

serious so as to leave the Claimant no other choice but to leave at once.

(see Anwar Abdul Rahim v. Bayer (M) Sdn. Bhd. and Govindasamy

Munusamy v. Industrial Court Malaysia & Anor) (supra).

[51] At least in Anwar Abdul Rahim’s case (supra) the claimant therein

upon receiving the memo that he was unhappy with, put the company on

notice and confronted the management and sought clarification but from

the discussion seeking clarification, realised that the company therein was

trying to drive him out. In the present case what the Claimant did was

markedly different. Upon being in receipt of the suspension letter dated

24.07.2020, his immediate unhappiness and dissatisfaction was not about

the Company’s action in suspending him but more related to his hand-

phone ownership issue. Such was the order of priority for the Claimant. The

Claimant said nothing in his letter of resignation about the allegation

against him in the suspension letter being baseless or ludicrous. The

Claimant’s next immediate course of action after receiving the letter of

suspension was to tender his resignation letter and in the process thank the

Company with many kind words. The Claimant then sent the letter claiming

49
constructive dismissal and here for the first time took the opportunity to

deny the alleged misconduct against him and then without any notice to the

Company to remedy any breaches (if any) walked away from the Company

by claiming constructive dismissal.

[52] There is a clear give away in the Claimant’s letter claiming

constructive dismissal that this claim of constructive dismissal was nothing

but a postscript of the Claimant that this Court finds no merit and this can

be seen from the Claimant’s own wordings in the letter wherein the

Claimant had this to say:-

“.....However , I have been reflecting on your letter of 24 July 2020 which makes

a number of serious allegations and threats against me and MSM’s action in

suspending me from employment pending investigation..............”

[53] Respectfully, it is the view of this Court that the Claimant’s reflection

is nothing but a rumination leading to the reconstruction of his thoughts

which was an evolving process due to the Company’s stance of proceeding

with the investigation and inquiry which thoughts does not in any way alter

the facts as they are understood before the date when the Claimant

50
claimed constructive dismissal. It is this Court’s view that on the 28.07.2020

the Claimant far from legitimately claiming constructive dismissal in actual

fact abandoned his employment with the Company without even serving

the notice period. The Claimant herein is clearly unable to prove his claim

of constructive dismissal upon this Court evaluating all the facts and

evidence before this Court.

[54] Pursuant to Section 30(5) of “The Act” and guided by the principles of

equity, good conscience and substantial merits of the case without regard

to technicalities and legal form and after having considered the totality of

the facts of the case, all the evidence adduced in this Court and by

reasons of the established principles of industrial relations and disputes as

mentioned above, this Court finds that the Claimant had failed to prove to

the satisfaction of this Court on the balance of probabilities that he was

dismiss from his employment with the Company. As the Claimant is unable

to prove that he was dismissed by the Company from his employment with

the Company, the issue of the dismissal of the Claimant without just cause

or excuse is no longer an issue that this Court needs to consider and

determine in the circumstances of this case.

51
[55] Accordingly, the Claimant’s claims against the Company hereby

dismissed.

HANDED DOWN AND DATED THIS 21st DAY OF FEBRUARY 2023

-Signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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