IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 4/4 - 2810/21

BETWEEN

CHONG KA ONG

AND

LIGHT DISCOVERY SDN. BHD.

AWARD NO: 835 OF 2023

BEFORE : Y.A. TUAN AUGUSTINE ANTHONY

Chairman

VENUE : Industrial Court of Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 06.09.2021.

DATE OF RECEIPT OF
REFERENCE : 28.09.2021.

DATES OF MENTION : 15.12.2021, 05.01.2022, 05.09.2022,

26.09.2022 & 08.02.2023.

DATE OF HEARING : 23.11.2022.

REPRESENTATION : Mr. Darshnan Kumar P. Gopala Krishnan

of Messrs Tam Kong Hai & Tui - Counsel
for the Claimant

1
 : Mr. Chang Kai Ping and Miss Choo Mei Lin
of Messrs Christopher Yeo & KP Chang –
Counsel for the Company.

THE REFERENCE

This is a reference dated 06.09.2021 by the Director General of the

Department of Industrial Relations, Ministry of Human Resources pursuant

to section 20(3) of the Industrial Relations Act 1967 (“The Act”) arising out

of the alleged dismissal of CHONG KA ONG (“Claimant”) by LIGHT

DISCOVERY SDN BHD (“Company”) on the 31.12.2020.

AWARD

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

their respective submissions dated 19.01.2023 (Claimant’s written

submissions), 19.01.2023 (Company’s written submissions) and

02.02.2023 (Company’s written submissions in reply)

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

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

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 (i) The Claimant’s Amended Statement of Case date 04.08.2022;

(ii) The Company’s Statement in Reply dated 01.03.2022;

(iii) The Claimant’s Rejoinder dated 24.03.2022;

(iv) The Claimant’s Bundle of Documents – CLB1, CLB 2(a) &

CLB 2(b) ;

(v) The Company’s Bundle of Documents – COB;

(vi) The Claimant’s Witness Statement - CLW – WS;

(vii) Company’s Witness Statement – COW1- WS ( Gary Ng Koh

Teng);

(viii) Company’s Witness Statement – COW2- WS ( Kok Ching

Seen);

INTRODUCTION

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

Chong Ka Ong (“The Claimant”) wherein the Claimant claims that she was

dismissed from her employment without just cause or excuse by Light

Discovery Sdn. Bhd. (“Company”) on the 31.12.2020.

[4] The Claimant commenced employment with the Company as a Sales

& Marketing Senior Executive on 03.06.2019 with a commencement salary

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of RM2,000.00 and allowance of RM500.00 per month. The Claimant’s last

drawn salary was RM2,500.00 with a further allowance of RM500.00 per

month. The Claimant was a confirmed employee of the Company at the

time of her alleged dismissal from employment with the Company and there

is no dispute on this issue. The Claimant alleged that from the date of

employment to the date of her alleged dismissal from employment the

Claimant was an employee with no known disciplinary or misconduct

records. The Claimant claimed constructive dismissal on the 31.12.2020

due to what the Claimant contends as breaches of the fundamental terms

of her contract of employment by the Company namely the Company’s

conduct of wrongful deduction of October and November 2020 salary of the

Claimant, the Company’s decision to impose a revised salary and

remuneration scheme that results in permanent reduction of the Claimant’s

salary, the conduct of the Company’s officers engaging in the use of

profanities against the Claimant and threatening to dismiss the Claimant

from her employment when she complained of the breaches of the

fundamental terms of her contract of employment with the Company. The

Claimant now claims that she has been dismissed from her employment

without just cause or excuse and prays that she be reinstated to her former

position in the Company with no loss of wages and other benefits.

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[5] The Company denies that it has breached any of the fundamental

terms of the Claimant’s contract of employment and has evinced an

intention no longer to be bound by the essential terms of the Claimant’s

contract of employment with the Company and further contends that the

Claimant left the Company on her own accord and/or resigned voluntarily

and as such the Claimant’s contention that she was constructively

dismissed is without basis. The Company now prays that the Claimant’s

claims be dismissed.

[6] The Claimant gave evidence under oath and remained the sole

witness for her case. The Company’s evidence was adduced through

COW1 (Gary Ng Koh Teng, who is the managing director of the Company

and who testified about the Claimant’s employment history and the

circumstances which led to the Claimant claiming constructive dismissal

which the Company denies) and COW2 (Kok Ching Seen who is the

business development manager and the superior of the Claimant ).

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THE CLAIMANT’S CASE

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

(i) The Claimant commenced employment with the Company as a

Sales & Marketing Senior Executive on 03.06.2019 with a

commencement salary of RM2,000.00 and allowance of

RM500.00 per month;

(ii) The Claimant’s last drawn salary was RM2,500.00 with a

further allowance of RM500.00 per month;

(iii) The Claimant was a confirmed employee of the Company at the

time of her dismissal from employment with the Company;

(iv) From the date of his commencement of employment till

02.12.2020, the Claimant has never received any written

warnings, show cause letters, counselling sessions or verbal

warning from the Company for any allegation of poor

performance or misconduct;

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(v) Due to the Movement Control Order (MCO) arising from the

COVID 19 pandemic which allegedly caused hardship to the

Company and its business, the Company has asked the Claimant

sometime in April 2020 to accept a pay cut of 20% for the month

of April, May, June, July, August and September 2020, which the

Claimant has agreed;

(vi) Then sometime in October 2020, the Company continued with the

pay cut, to which the Claimant has objected and informed the

Company that she is not agreeable to any further pay cut after

September 2020;

(vii) Despite the Claimant’s objection, the Company nevertheless

proceeded with pay cut of the Claimant’s salary for the month of

October and November 2020 and which was done without the

Claimant’s consent;

(viii) The Company on the 01.12.2020 informed the Claimant that the

Company will be imposing a new salary and commission scheme

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 effective immediately which will reduce the Claimant’s salary and

result in the removal of allowance, which the Claimant objected;

(ix) Upon the Company being informed by the Claimant of her

objection to the salary reduction and removal of allowance, the

Company without any reasonable cause or excuse issued the

Claimant a show cause letter on the 02.12.2020 for various

alleged misconducts and poor performance to which the Claimant

immediately responded but thereafter nothing happened to

suggest that the Company will be proceeding with any action

against the Claimant;

(x) On the 10.12.2020 the Claimant’s superior one Joliv Kok (COW2)

issued another letter with a new sales scheme and in the course

engaged in vulgarities against the Claimant;

(xi) On the 24.12.2020 the Claimant notified the Company her

objection to the new salary scheme and continuous pay cut and

requested the Company to respond within 3 days;

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(xii) The Company failed to reply to the Claimant which prompted the

Claimant to issue a letter dated 28.12.2020, putting the Company

on notice that if there is no reply towards the Claimant’s

grievances on all the breaches complained of by the Claimant, the

Claimant will claim constructive dismissal within 2 days;

(xiii) The Company had then called for a meeting on the 30.12.2020,

however instead of rectifying the breaches complained of, the

Company’s officers berated the Claimant and continued using

profanities and further justifying such use of profanities as a

normal conduct in the course of employment in the Company;

(xiv) During the meeting on the 30.12.2020 the Company’s officer

insisted the Claimant accept the new salary scheme which was a

reduction in remuneration and also threatened to dismiss the

Claimant if she raised her grievances again;

(xv) As the Company did not resolve the Claimant’s grievances

complained of and instead maintained its position against her, the

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 Claimant on the following day, by letter dated 31.12.2020, issued

the Company her notice of constructive dismissal effective

immediately citing the following breaches:-

(a) Wrongful deduction of October and November 2020 salary;

(b) Imposition of illegal deduction/revision of Claimant’s salary;

(c) Raising of Middle Finger towards the Claimant;

(d) Use of foul language towards the Claimant;

(e) Threat of dismissal towards the Claimant;

(xvi) The Company despite the Claimant’s letter dated 31.12.2020

failed to respond or reply and deny the allegations raised by the

Claimant against the Company;

(xvii) The Company only replied after the Claimant has filed a

representation against the Company to the Industrial Relations

Department, which the Company did so by its letter dated

14.01.2021 which is considered as nothing but an afterthought;

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(xviii) The Claimant now states that the Company by its conduct has

breached the fundamental terms of the contract of employment

with the Claimant and by its conducts has evinced an intention no

longer to be bound by the fundamental or essential terms of the

contract of employment with the Claimant;

(xix) The Company has engaged in unfair labour practices and has

victimized the Claimant;

(xx) The Company by its conduct has caused the Claimant to now

claim constructive dismissal and which dismissal the Claimant now

claims was done without just cause or excuse;

(xxi) The Claimant now prays that she be reinstated to her former

position the Company without any loss of wages and other

benefits.

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THE COMPANY’S CASE

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

(i) The Company does not dispute the Claimant’s commencement

date, salary and allowance and that the Claimant was also a

confirmed employee of the Company and the salary increase

after confirmation;

(ii) Company contends that due to the bad state of the economy

worldwide which includes Malaysia as a result of the Covid-19

pandemic, the Company suffered financial constraints and loss

of business;

(iii) In view of the financial hardship faced by the Company, the

Company had no choice but to seek its employees' consent for

pay cuts in order to sustain itself during the tough time of the

pandemic and this was consented by the Claimant;

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(iv) The Company denies that it had made salary deduction of the

Claimant’s salary in October and November 2020 and any

deductions made were unintentional and which was

subsequently rectified in December 2020;

(v) The Company admits that there was a new salary scheme

proposed in December 2020 but it was only a proposal which

was never implemented or imposed on the Claimant;

(vi) The Company states that that it was true that the Claimant was

issued a show cause letter but it was not as a consequence or

in response to the Claimant’s disagreement to the proposed

scheme;

(vii) The Company admits that a weekly sales meeting was held on

the 14.12.2020 and a letter dated 10.12.2020 was issued on

the new sales scheme but this scheme was never carried out;

(viii) The Company states that the use of profanity by the Claimant’s

superior against the Claimant was purely due to

13
 misunderstanding between them which had nothing to do with

the Company;

(ix) The Company contends that the new scheme complained of by

the Claimant was never implemented and any deduction made

was subsequently paid by the Company to the Claimant by

December 2020;

(x) The Company denies that the Company’s officers have called

for a meeting on the 30.12.2020 to berate the Claimant and did

so by using profanities. Further the use of any profanities is

only a normal conduct in the course of employment in the

Company;

(xi) The Company denies that during the meeting on the

30.12.2020 the Company’s officer insisted the Claimant accept

the new salary scheme which was a reduction in remuneration

and had also threatened to dismiss the Claimant if she raised

her grievances again;

14
(xii) The Company denies that it had committed any acts giving rise

to any breach of the fundamental or essential terms of the

Claimant’s contract of employment with the Company;

(xiii) The Company admits being in receipt of the Claimant’s letter

dated 31.12.2020 but denies the alleged fundamental breaches

stated there in the letter;

(xiv) The Company denies the Claimant’s assertion that the

Company by its conduct has breached the fundamental terms

of the contract of employment with the Claimant and by its

conducts has evinced an intention no longer to be bound by

the fundamental or essential terms of the contract of

employment with the Claimant;

(xv) The Company denies that it has engaged in unfair labour

practices, has victimized the Claimant or had unjustly dismissed

the Claimant;

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 (xvi) The Company contends that the Claimant left the Company on

her own accord and/or resigned voluntarily and as such the

Claimant’s contention that she was constructively dismissed is

without basis;

(xvii) Therefore the Company prays that the Claimant’s case be

dismissed;

THE LAW

Role and function of the Industrial Court

[9] 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

16
 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 ...”

[10] 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] 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

17
 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”

[11] It will not be complete this far 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:

“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.”

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Burden Of Proof

[12] Whenever a Company has 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

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.

[13] 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 Haji Abdul Kadir Bin Sulaiman J opined :-

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 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).

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

dismissal where the Company denies dismissing the Claimant from her

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

she has been dismissed in line with the claim of constructive dismissal. The

burden of proof thus has now shifted to the Claimant to prove that she has

been dismissed by the Company from her employment before this Court

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

dismissal without just cause or excuse.

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Standard Of Proof

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

Sanguni Nair & Anor [2002] 3 CLJ 314 the Court of Appeal has 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

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.”

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Law on Constructive Dismissal

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

[1998] 1 CLJ Rep 298/ [1988] 1 CLJ 45 his lordship Salleh Abas LP

delivering the judgment of the Supreme 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

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.”

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

that the employer:-

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

root of the contract of employment or,

(ii) that the employer evinced an intention no longer to be bound

by one or more of the essential terms of the contract,

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

entitled to treat himself / herself 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.

[19] 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:-

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 “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.”

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

constructive dismissal, the Claimant must give sufficient notice to her

employer of her 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 essential terms of 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 herself as constructively dismissed if there was failure on part of the

Company to remedy the breaches complained of.

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

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

Abu Backer has succinctly stated what a Claimant has 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:

(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

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 (v) the claimant, in order to assert his right to treat himself as

discharged, left soon after the breach.”

[22] 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.

EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

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

03.06.2019 and was a confirmed employee of the Company effective

10.06.2019. After working for the Company for a period of more than a

year, on the 31.12.2020, the Claimant claimed constructive dismissal for

what the Claimant alleged was due to the Company’s conduct of breaching

the fundamental terms of the contract of employment of the Claimant with

the Company.

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[24] The Claimant raised several conducts of the Company giving rise to

the breaches of the fundamental or essential terms of the contract of

employment of the Claimant namely the Company’s conduct of making

wrongful deduction of the Claimant’s salary for the month of October 2020

and November 2020 without the Claimant’s agreement or consent, causing

the revision of the Claimant’s salary scheme thereby permanently reducing

the Claimant’s salary, Use of profanities in the course of the Claimant’s

employment with the Company and threatening to dismiss the Claimant

when the Claimant raised issues that affected her.

[25] This Court will deal with all the issues raised by the Claimant and

determine whether these alleged acts of the Company whether viewed

individually or collectively amount to fundamental breaches that can entitled

the Claimant to claim constructive dismissal.

[26] The parties before this Court agree that the MCO imposed by the

government has caused hardship to the Company that led the Company to

impose pay cuts for the employees of the Company including the Claimant

on about April 2020. For the month of April to September 2020 the

Claimant having full knowledge of the Company’s predicament agreed and

27
accepted a 20% pay cut and this is not in dispute. However the Company

then proceeded to continue a further pay cut of the Claimant’s salary for the

month of October and November 2020 which the Claimant disagreed. The

Claimant gave evidence that she had verbally informed her superior that

the salary deduction for the month of October and November 2020 will not

be agreeable to the Claimant but the Company proceeded to make the

deduction. The Company’s witness COW1 has given evidence that the

October and November 2020 salary was credited with her December 2020

salary and the payment voucher in support of this payment made to the

Claimant shows that the Claimant has acknowledged receipt of this salary

payment on the 31.12.2020.

[27] If the Claimant has considered the alleged salary reduction for the

month of October and November 2020 was such a fundamental breach of

her terms of contract of employment, then she should have placed the said

breach in writing and immediately ask the Company to remedy it. After all

the Claimant was fully aware of her obligation in this respect as the

Claimant had subsequently for other alleged breaches had been quick to

place them on record and in writing. The Claimant by continuing to work

even after discovering the alleged breach and subsequently accepting the

28
balance payment as reflected in the December 2020 payment voucher

cannot now be allowed to claim this as a ground for constructive dismissal.

The Claimant’s conduct in respect of this allegation upon the scrutiny of this

Court based on all the evidence presented before this Court clearly shows

that this breach if there was one was remedied despite the Claimant by her

conduct having condoned it when the Claimant failed to act promptly on

this alleged breach.

[28] The Claimant’s relationship with the Company started to show signs

of deterioration when the Company issued a show cause letter dated

02.12.2020. It is noteworthy for this Court to refer to certain allegations of

misconduct levelled by the Company against the Claimant and the

response from the Claimant. Upon being in receipt of this letter, the

Claimant promptly responded to all the allegations contained therein by her

letter dated 04.12.2020. In her response, the Claimant has alleged that the

Company has engaged in act which were victimising her by making various

allegations against her simply because she has raised the issue of her

objection to her salary reduction post September 2020. The Company did

not respond to the Claimant’s allegation of victimisation of the Claimant

when the Claimant raised the issue of salary reduction post September

29
2020 in a proper documented form as this allegation by the Claimant was

serious in nature. This Court also noticed that the Company subsequent to

sending the show cause letter and upon receiving the Claimant’s response

did not proceed with any action against the Claimant neither did the

Company reply to the Claimant on the decision taken by the Company after

being in receipt of the Claimant’s letter of response. The Company’s

conduct of issuing the show cause letter and proceeding to do nothing after

the Claimant’s response reflects that Company’s improper conduct or unfair

treatment of the Claimant. The Company could have simply said that the

Company having studied the Claimant’s response has decided to take no

further action or some other action in order to bring closure to the show

cause letter which the Company failed to do. What is even worse is the

Company’s conduct of not responding to the Claimant’s allegation of

victimisation.

[29] After the Claimant’s response dated 04.12.2020, the Company did

something that was certain to cause the Claimant much dissatisfaction. On

the 10.12.2020, the Company through COW2 issued the Claimant a letter,

informing her that her salary henceforth will be revised. COW2 is the

business development manager and the superior of the Claimant who

30
issued the Company’s letter dated 10.12.2020 revising the Claimant’s

salary to the detriment of the Claimant. Based on the evidence before this

Court, the salary revision will result in the Claimant seeing a salary

reduction and removal of her allowance. The Claimant immediately

responded on the same day, showing her total disagreement to the

proposed salary revision and in the course also highlighted how COW2 has

engaged in vulgar conduct against the Claimant. The Claimant’s allegations

against the Company and its officer are serious in nature but the Company

did not see it fit to respond to the Claimant’s allegations in a proper

documented form with at least a denial of the same. Instead a meeting was

held on the 14.12.2020 with nothing significant materialising in addressing

the allegations raised by the Claimant in her letter dated 10.12.2020.

[30] Based on the evidence, it is clear that after the meeting on the

14.12.2020, the Company did nothing to address the Claimant’s grievances

raised, be it in the Claimant’s letter dated 10.12.2020 or in the meeting on

the 14.12.2020, which prompted the Claimant to write a letter dated

24.12.2020 listing down all the Claimant’s grievances and giving the

Company 3 days to rectify the breaches.

31
[31] This Court has considered the evidence of the alleged breaches

complained of by the Claimant namely the salary revision which will result

in the Claimant’s new salary being lower than her previous salary of

RM2500.00 and the removal of the allowance, the show cause letter which

can lead to threats of dismissal from employment when viewed

cumulatively with the conduct of the officers of the Company particularly

COW1 forming acts of victimization due to the Claimant raising the salary

reduction as an issue and further the use of vulgarity in the context of this

case as acts or series of acts forming fundamental breaches that goes to

the root of the Claimant’s employment contract that in normal

circumstances would require the Company to remedy the same.

[32] This Court will now deal with the reasons as to why this Court

considers the above acts as breaches of the fundamental terms of the

Claimant’s contract of employment.

[33] The Industrial Court has consistently held that any non payment of

salary, salary reduction without the consent of the employee or any form of

salary revision to the detriment of the employee without the consent of the

employee is a fundamental breach and if not remedied upon demand by

32
the employee will invariably give rise to a claim of constructive dismissal. In

this case despite the Claimant protesting and asking the Company to

remedy this breach, the conduct of the Company clearly shows that the

Company was not prepared to remedy this breach.

[34] Now this Court will deal with the Company’s conduct in issuing the

Claimant with a show cause letter dated 02.12.2020 when Claimant

complained about the salary reduction. Having perused all the evidence

this Court is of the view that the show cause letter issued to the Claimant

was an act of intimidation wherein the Company was engaging in acts that

were designed to victimize the Claimant and make her continued presence

in the Company intolerable. This Court had come to this conclusion based

on the subsequent conduct of the Company after receiving the response

from the Claimant on the 04.12.2020. If the Company was indeed serious

about the allegations of misconduct committed by the Claimant, it would

have been proper for the Company to proceed with the disciplinary action

against the Claimant on the all allegations levelled against the Claimant.

However if the Company was satisfied with the Claimant’s explanation then

the least the Company could have done is to accept the Claimant’s

explanation and bring closure to the allegations contained in its letter dated

33
02.12.2020. The Company did nothing after receiving the Claimant’s letter

of response dated 04.12.2020. Further what transpired on the 30.12.2020

can only be seen as the Company imposing unnecessary pressure on the

Claimant judging from the conduct of COW1. The show cause letter and

the subsequent conduct of COW1 issuing subtle threats to the Claimant all

amounts to victimisation of the Claimant. Further the Company also did not

address the allegation of victimization raised by the Claimant properly and

promptly, instead went on to swiftly introduce a new salary scheme with

reduced pay for the Claimant as can be seen from the Company’s letter

dated 10.12.2020. The conduct of the Company clearly falls within the

example cited in the case of Quah Swee Khoon v. Sime Darby Bhd

[2001] 1 CLJ 9, wherein his lordship Justice Gopal Sri Ram JCA delivering

the judgment of the Court of Appeal opined as follows:-

"A reading of the pleaded case for the parties resolved the issue that fell

for adjudication before the Industrial Court into what the profession has

come to call as a “constructive dismissal”. There is no magic in the

phrase. It simply means this.

An employer does not like a workman. He does not want to dismiss him

and face the consequences. He wants to ease the workman out of his

organisation. He wants to make the process as painless as possible for

34
 himself. He usually employs the subtlest of means. He may, under the

guise of exercising the management power of transfer, demote the

workman. That is what happened in Wong Chee Hong (ibid). Alternatively,

he may take steps to reduce the workman in rank by giving him fewer or

less prestigious responsibilities than previously held. Generally speaking,

he will make life so unbearable for the workman so as to drive the

latter out of employment. In the normal case, the workman being

unable to tolerate the acts of oppression and victimisation will tender

his resignation and leave the employer's services. The question will

then arise whether such departure is a voluntary resignation or a dismissal

in truth and fact."

(emphasis is this Court's)

[35] The Claimant has also stated in her evidence that the Claimant’s

superior namely COW2 (a female officer) has used vulgar gesture against

the Claimant when the Claimant complained about her salary reduction.

The Claimant was indeed offended by this vulgar gesture and this issue

was also promptly raised by the Claimant. The Company concedes that

COW2 being the superior of the Claimant used vulgar gestures against the

Claimant. However the Company did not address this concern of the

Claimant promptly and convincingly which relates to a safe workplace and

35
the evidence before this Court clearly shows that the Company has side

stepped this issue and only responded in a documented form after the

Claimant claimed constructive dismissal and this can be seen from the

Company’s letter dated 14.01.2021. In the Company’s letter dated

14.01.2021, the Company is seen to be condoning the conduct of COW2 in

engaging in vulgarity and maintaining the use of foul or vulgar language as

a mere expression of words. Having perused the documents and the

evidence of the witnesses, this Court will also make a finding that the

vulgar words and gesture of COW2 and COW1 here is crude, derogatory

and demeaning but certainly not something that can be construed as

sexual harassment in the context of the verbal and non verbal

communication in this case. The use of derogatory or demeaning words or

gestures may be offensive and unacceptable but must not always be seen

or considered as sexual harassment. Much depends on the facts of the

case and the context in which the words and gestures were used.

[36] The Claimant also testified that on the 30.12.2020, when she

complained to COW1 about the conduct of COW2, COW1 instead of

resolving the issue, further justified and also used vulgar words. Yet again

this Court finds the conduct of COW1 during this meeting, engaging and

36
explaining the context of the use of vulgar words and gestures as

demeaning and humiliating but in the context of the speech therein cannot

be considered as sexual harassment in any way.

[37] There may be truth in the Company’s letter dated 14.01.2021 that

certain words which are considered as vulgar and foul in English language

and used so commonly may also be considered as words expressing a

variety of emotions and expression of people from various walks of life

depending on the context in which the words are used. Whilst a specific

word can be considered as vulgar, demeaning and totally unacceptable in a

boardroom meeting amongst cultured and refined ladies and gentlemen

engaging in business transactions or even in places of worship, the same

word may not be considered as offensive and demeaning though vulgar in

a different place and used in a different context, for instance during shows

performed by stand-up comedians who have amassed a legion of fans

worldwide and who often use these vulgar words in creative forms to

express a variety of emotions and feelings to bring laughter and

contentment for their multitude of fans who not only marvel at the creative

use of these vulgar words but more than that pay hefty sums to buy tickets

for their shows where the audience jostle to get to the front seats and in the

37
process get hurled these vulgar words all in the spirit of good humour or

sharp sarcasm and riposte. The audience do not suffer a sense of

humiliation or loss of dignity but rather feel joy and happiness witnessing

these stand-up comedians construct the creative use of these words.

[38] Understanding all things including words and acts in the context of

the acts done or words used by the application of common sense and logic

will eliminate all serious practical inconveniences in the lives of people as

not everyone is endowed with all the trainings and trappings that some

privileged beings nestled at the top of societal ladder have been blessed

with.

[39] The proposition that certain words in the English language commonly

understood and described as vulgar must not always be seen as having

demeaning and humiliating universal application in every circumstances but

will certainly depend in the context in which it is used and this can be

further understood by the saying that “what would be a nuisance in

Belgrave square would not necessarily be so in Bermondsey”. This

widely known dictum of Lord Justice Thesiger, L.J delivering the judgment

of the Court of Appeal of England and Wales in the celebrated case of

38
Sturgess v Bridgman (1879) LR 11 Ch D 852, a landmark case in matters

of nuisance as stated below will offer clarity to the importance of the

context and circumstances when understanding an issue in its proper

perspective :-

“As regards the first, it may be answered that whether anything is a nuisance or

not is a question to be determined, not merely by an abstract consideration of the

thing itself, but in reference to its circumstances. What would be a nuisance in

Belgrave square would not necessarily be so in Bermondsey; and where a

locality is devoted to a particular trade or manufacture carried on by the traders

or manufacturers in a particular and established manner not constituting a public

nuisance, judges and juries would be justified in finding and may be trusted to

find, that the trade or manufacture so carried on in that locality is not a private or

actionable wrong..............”

[40] The dictum of Lord Justice Thesiger above can also be expanded to

find acceptance and relevance not just in cases of nuisance but in matters

that require common sense and logic to understand and appreciate that

acts and words must be understood in the proper context and to then ask

questions as to whether such acts or words given in a certain

circumstances be considered as objectionable, distasteful, reprehensible or

39
downright unacceptable. The legal compass or barometer must not only

point to the acts or words used but instead the context in which it was used

or deployed.

[41] This Court having expressed its views that words must be understood

in a proper context will now deal with the conduct of COW1 and COW2 in

this case. The Company must be reminded that in the context of the

vulgarity exhibited by COW2 or for that matter by COW1, the expression of

such vulgarity by a superior officer towards a subordinate in a workplace

especially where a show of power and authority is exhibited, will seriously

demean and humiliate the subordinate and in this case the Claimant and

such use of vulgarity to demean or humiliate a subordinate cannot be

tolerated at all. It is pertinent for this Court to ask the Company to sieve

through its own documents and reflect on the conduct of COW2 and by

extension COW1 in engaging in the inappropriate conduct by making the

Claimant’s work place no longer a conducive work place. This Court will

now refer to the Company’s show cause letter dated 02.12.2020 issued to

the Claimant and direct the Company to re-look at what it had said to the

Claimant in order to drive home the point that one should practice what one

40
tends to preach. The excerpt of the letter dated 02.12.2020 is reproduced

here for convenience:-

“The letter is with reference to several complaints about your alleged

misconducts in the organization. Our organization values respect and expects

all employees to actively maintain a healthy organizational

environment…….” (emphasis is this court’s)

[42] If any, COW1, COW2 and the Company as a whole should heed their

own advice or axiom and make the workplace a healthy and safe

environment where employees can perform their duties with dignity in

search of their livelihood.

[43] This Court having concluded that the acts complained of by the

Claimant against the Company as breaches of the express and implied

fundamental terms of the Claimant’s contract of employment would now

further ask whether did the Company take any steps to address the

Claimant’s grievances raised in her letter dated 24.12.2020? The simple

answer is a resounding No!

41
[44] The Company yet again on the 28.12.2020 through COW2 did not

address the Claimant’s grievances. Instead the Company had shown every

intention of not addressing or remedying the Claimant’s grievances and

further accused the Claimant of being incompetent. The conduct of the

Company was clear from this letter that it is not even prepared to negotiate

with the Claimant to resolve or find ways to resolve the Claimant’s

predicament arising from the Company’s conduct. At this juncture the

Company by its conduct has clearly evinced an intention to no longer be

bound by the fundamental or essential terms of the contract of employment

with the Claimant.

[45] This Court has also considered the evidence that the Company has

called for a meeting with the Claimant on the 30.12.2020 to purportedly

resolve all of the grievances of the Claimant. Having analysed the evidence

before this Court, this Court is not convinced that the Claimant’s grievances

were resolved in the meeting on the 30.12.2020. If it is true that this

meeting on the 30.12.2020 has resolved all the Claimant’s grievances, then

the Company should have properly documented all that has transpired in

the meeting on the 30.12.2020 and forthwith notify the Claimant but that

was not done. Further when the Company was in receipt of the Claimant’s

42
letter claiming constructive dismissal, the Company should have replied

immediately by stating that the meeting on the 30.12.2020 has resolved all

the Claimant’s grievances which the Company failed to do. The Company

only responded to the Claimant on the 14.01.2021 after the Claimant

lodged a complaint to the Director General of the Industrial Relations. The

Company’s conduct in replying to the Claimant’s letter after much time has

passed can only be construed as a mere afterthought. Based on the

evidence before this Court, this Court is not convinced that the Company

has resolved the Claimant’s grievances on the 30.12.2020.

[46] Once it became clear to the Claimant that the Company has evinced

an intention to no longer be bound by the fundamental or essential terms of

the contract of employment with the Claimant, the Claimant did the next

and only thing that the Claimant could do in the circumstances of this case

ie to walk out of the Company due to the breaches committed by the

Company which the Claimant promptly did on the 31.12.2020 by claiming

constructive dismissal.

[47] The Claimant did what was proper in that the Claimant identified the

breaches of the fundamental terms of the contract of employment. There

43
after the Claimant gave the Company sufficient opportunity to remedy the

breaches and once it became clear to the Claimant that the Company was

not prepared to remedy the breaches and has demonstrated that it was no

longer interested to be bound by the essential terms of the contract of

employment of the Claimant, the Claimant tendered her resignation on the

31.12.2020 and left the Company at once.

[48] Having considered all the evidence before this Court, this Court now

makes a finding that the Company has breached the express and implied

fundamental or essential terms of the contract of employment with the

Claimant and evinced an intention to no longer be bound by these terms of

the employment contract with the Claimant giving rise in this case to a

successful claim of constructive dismissal and as such the Claimant has

succeeded in proving that she was dismissed by the Company on the

31.12.2020. In view of the findings of this Court, the Company’s contention

that the Claimant has abandoned her employment in the Company or has

left the Company on her own accord must necessarily fail and far from it,

the Company’s conduct has resulted in the dismissal of the Claimant from

her employment with the Company

44
[49] It is now upon this Court to make a further finding as to whether the

dismissal of the Claimant from her employment amounted one without just

cause or excuse. The conduct of the Company in reducing the Claimant’s

salary with a new salary scheme was unacceptable and should not have

been resorted to by the Company regardless of whether the decision on the

salary revision was deferred to a later date. The Company further

victimised the Claimant when the Claimant expressed her disagreement to

the revision or reduction of her salary. The conduct of COW2 and other

officers of the Company have made the Claimant’s employment in the

Company intolerable. The series of acts of the officers of the Company

separately or cumulatively was certain to force the Claimant out of her

employment with the Company. Having analysed all the evidence before

this Court, this Court must conclude that the Company has engaged in

unfair labour practices, committed breaches of the Claimant’s contract of

employment and victimised the Claimant all of which makes the dismissal

of the Claimant one without just cause or excuse.

[50] 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 forms and after having considered the totality of

45
the facts of the case, the evidence adduced and by reasons of the

established principles of industrial relations and disputes as stated above,

this Court finds that the Company has failed to prove on the balance of

probabilities that the dismissal of the Claimant was with just cause or

excuse. This Court now finds that the Claimant was dismissed without just

cause or excuse.

[51] Before this Court deals with the appropriate remedy for the Claimant

after having concluded that she was dismissed without just cause or

excuse, this Court must deal with the Claimant’s conduct in engaging in a

secret audio recording of the meeting with her superiors which took place

on the 30.12.2020.

The Secret Audio Recording : Whether a misconduct

[52] It is undisputed that the Company has called for a meeting between

the Claimant and other officers of the Company which included COW1 and

COW2 on the 30.12.2020 in order to discuss amongst other the Claimant’s

grievances. Unknown to all present the Claimant has secretly recorded the

entire official meeting which lasted for about 2 hours.

46
[53] The Claimant in her amended statement of case pleaded that this

meeting was conducted on the 30.12.2020. What the Claimant

conveniently omitted to plead was the material fact that the Claimant too

has engaged in the act of secretly recording the meeting with her superiors.

The Claimant was fully aware of this secret recording at the time of filing

her statement of case and the amended statement of case but left this

material fact unpleaded. This Court has taken cognizance that this

unpleaded material fact has deprived the Company the opportunity to

address the fact of this secret recording including the admissibility and

weight to be attached to it adequately since the Claimant admitted in cross

examination that what was produced in this Court is only a small part of the

entire secret recording. If this secret recording was raised in the

Claimant’s statement of case or rejoinder, it would have given the

Company ample opportunity to plead its case accordingly and perhaps

make the necessary application to this Court to order the Claimant to

produce the entire secret recording all of which has been scuttled by the

Claimant. The Claimant’s pleaded case revealing this secret recording

would have also allowed the Company to elect and consider whether to

object to the admissibility of this secret recording after a careful study of the

Claimant’s pleaded case [(see Justin Maurice Read v Petroleum

47
Nasional Berhad (Petronas) (2017) 3 ILR527]. The Claimant had every

intention of introducing this secret recording in this Court to bolster her

case and thus should have done so within the framework of the established

principles relating to pleadings.

[54] It is trite law that parties are bound by their pleadings and this is so in

order to prevent any surprises in court and to also prevent any person from

stealing a march in the court. But there are exceptions to this rule as

expounded by his lordship Justice Gopal Sri Ram JCA in delivering the

judgment of the Federal Court in the case of Boustead Trading (1985)

Sdn. Bhd. v Arab Malaysian Merchant Bank Berhad (1995) 4 CLJ 283

wherein his lordship opined :-

“Secondly, even where a party has failed to set out the material facts in his

pleading, but there is occasioned no surprise to his opponent, a court may, in the

interests of justice, permit the point to be taken: Coppinger v. Norton [1902] 2 Ir.

R. 232, 243; Co-operative Town Bank v. Shanmugam Pillay AIR. Rang. 265,

268; Laws Holdings (supra). Useful reference may also be had to the instructive

judgment of Edgar Joseph Jr. J in Rosita Baharom & Anor v. Sabedin Salleh

[1992] 3 CLJ Rep 497; [1992] 1 MLJ 379, affirmed by the Supreme Court in

[1993] 1 MLJ 393.

48
 Thirdly, where there is no pleaded case of estoppel, but there is let in, without

any objection, a body of evidence to support the plea, and argument is directed

upon the point, it is the bounden duty of a Court to consider the evidence and the

submissions and come to a decision on the issue. It is no answer, in such

circumstances, to say that the point was not pleaded: Oversea-Chinese Banking

Corporation Ltd v. Philip Wee Kee Puan [1984] 2 CLJ 319 (Rep); [1984].....

[55] Now before this Court, the secret recording done by the Claimant has

been admitted as evidence. Further the Claimant was crossed examined

about this secret recording by the Company’s counsel and the parties have

amply submitted on this secret recording done by the Claimant. The

manner in which the Claimant was crossed examined by the Company’s

counsel on this secret recording and the submissions advanced all imply

that the Company views the Claimant’s conduct as a misconduct as this

secret recording was done by the Claimant whilst she was still in the

employment of the Company and was done without the knowledge and

authorisation of all present in the meeting who were discussing various

matters including the Claimant’s issues with the Company. To a question

during cross examination the Claimant answered as follows:-

49
 Company’s Counsel: Can you tell the Court whether when you record this

meeting, did you get the consent of other parties in

the recording?

Claimant : No

[56] The question that this Court would ask is, if the Company knew that

the Claimant has secretly recorded this meeting on the 30.12.2020 without

the consent of the officers present whilst still in employment what would

have been the action taken by the Company against the Claimant? No right

thinking or reasonable employer would condone or acquiesce any of their

subordinates to record any conversation of its officer in a clandestine

manner especially when Company’s matters are being discussed. The

reason for this could be many including preserving confidentiality of

information shared which includes information related to corporate

strategies and business planning or other matters related to the operation

and management of the Company including investigative process relating

to any disciplinary matter.

50
[57] The Industrial Court has consistently held that secret recordings done

by employees in a clandestine fashion is unethical, reprehensible and

destroys industrial harmony. It further obliterates mutual trust, fidelity and

confidence woven into the very fabric of the employer, employee

relationship [please see Sanjungan Sekata Sdn. Bhd.v Liew Tiam Seng

(2003) 3 ILR 1155, Justin Maurice Read v Petroleum Nasional Berhad

(Petronas) (2017) 3 ILR527, Izaiddin Bin Joinne v Amanah Saham

Sarawak Berhad (Award No: 1787 of 2018]

[58] The Industrial Court has also held that though these secret

recordings are such as explained above but nevertheless can be

admissible bearing in mind that illegally or unlawfully obtained materials

can be tendered as evidence if they are relevant to the matter before the

court [( please see Ng Cheng Wei v Synchro RKK Sdn. Bhd. (Award

No: 577 OF 2023)]. In the case of Ng Cheng Wei above this Court

dismissed the Claimant’s claim of constructive dismissal and has also

expressed its disapproval of the Claimant’s conduct of engaging in the

secret recording of the meeting between him and the Company’s officer.

51
[59] Whether a secret recording done in the workplace by an employee

can amount to misconduct or a serious misconduct much depends on the

facts of each case. There may be cases where such secret recordings

instead of being deemed as unethical, reprehensible or unacceptable,

maybe be considered as necessary and acceptable. For example when an

employee witnesses a violent fight in the workplace between other

employees where serious injuries inflicted and damage to properties are

resulted and the said employee who is not a person of interest and was at

the scene merely as a bystander secretly records the entire act, can the

employee in all good conscience be punished for misconduct of secretly

recording the event? A reasonable and sensible employer would not resort

to that course of action against the employee but the same cannot be said

of an employee who is an interested party who engages in the said secret

recording for his benefit and to the detriment of the Company as has

happened in this case and Ng Cheng Wei’s case (supra).

[60] This Court has also admitted secret recordings done by an employee

against another employee in the case of Kavitha Chakravarthy v Malayan

Banking Berhad (2021) 2 ILR 112. However the facts in that case are

52
markedly different. The employee who made the secret recording in

Kavitha’s case, surrendered the secret audio recording to the Company’s

investigator who was investigating a complaint against the Claimant and

there were no elements of surprise to the Claimant as the secret recording

was made known to her during the investigative process where she was

given ample opportunity to explain the contents therein. In any event this

Court found in favour of the Bank because there were other overwhelming

evidence against the Claimant in Kavitha’s case and did not merely rely

on the secret recording. The argument of whether the Bank should or

should not use its discretion to take disciplinary action against the

employee who has made the secret recording was not the subject matter of

dispute in Kavitha’s case as that will be entirely a matter for the Bank to

consider.

[61] In this case the Claimant conceded that the entire secret recording

was about 2 hours in duration and what was produced in this Court was a

short snippet of the entire recording. The Claimant also testified that much

of the secret recording contained discussions between his superiors on

other matters unrelated to the Claimant. Of course this Court does not have

53
the advantage of listening to the whole secret recording made by the

Claimant against the officers of the Company. Much of the secret recording

is now in the possession of the Claimant and no one knows how much of

the Company’s information which has been recorded in an unauthorised

manner which is in the hands of the Claimant is now open to abuse.

[62] The test to follow on whether a secret recording of communications of

an employee with his superiors or other employees giving rise to a

misconduct can be clearly understood in the context of “The Act” which is a

social legislation by simply understanding of the preamble of the “The Act”

itself which states :-

“An Act to promote and maintain industrial harmony and to provide for regulation

of relations between employers and workmen and their trade unions and the

prevention and settlement of any differences or disputes arising from their

relationship and generally to deal with trade disputes and matters arising

therefrom…..”

[63] This social legislation was enacted to promote and maintain industrial

harmony and regulate the employer employee relationship. Bearing in mind

54
the intent of this social legislation, the conduct of the employer and

employee must always be seen in light of this dictate.

[64] If an employee who is not an interested party but who however

witnesses a violent fight in the workplace that results in serious injuries to

persons and destruction of properties and who then proceeds to secretly

record the entire event and that secret recordings was later used as

evidence to proceed with disciplinary action against the culprits, the

conduct of the employee in light of this social legislation can only be seen

as promoting and maintaining industrial harmony as any action taken by

the employer against the offenders will set an example against such similar

occurrences in the future and preserve order and discipline in the work

place.

[65] Suppose an employee who is an interested party, enters a meeting

with fellow officers or enters a boardroom meeting with the senior officers

and directors of the Company and secretly records the entire discussion

and deliberation without anyone’s knowledge or authorisation, can that

55
employee be seen as a person who is promoting or maintaining industrial

harmony? The answer will certainly be in the negative. The presence of

this employee/s with such propensity in any meetings or even casual

gatherings of colleagues will send shivers down the spine of all employees

not knowing what and how much that this employee is capable of secretly

recording. The workplace atmosphere with such an employee cannot be

seen as promoting industrial harmony but will descend into chaos and fear.

No person will freely and openly engage in conversations which are

sensitive in nature in meetings for fear at whose table these secret

recordings will land subsequently. It can create a hostile work environment

where no one can feel safe and secure, the very argument put forth by the

Claimant here that the Company has not created a safe working

environment for her. Whether knowingly or unknowingly the Claimant

herself in this case has created a hostile work place for her and others in

the Company and it is fortunate that she left the work place claiming

constructive dismissal. The work environment in the Company will never be

the same if this Court is to order reinstatement of the Claimant to her

former position since all employees will now know what the Claimant is

capable of doing in an unethical manner. Further the Company is also kept

in the dark until the date of the full trial as to what the other information that

56
the Claimant has secretly recorded as the secret recording on the

30.12.2020 spans a duration of approximately 2 hours. No employer can be

expected to keep such an employee in its employment and if the secret

recording had come to the knowledge of the Company before the Claimant

claimed constructive dismissal and if any action taken by the Company

against the Claimant, this Court may not find any fault in the action of the

Company.

[66] For the reasons stated above , this Court will now rule that the

Claimant by her action in engaging, recording and making subsequent

production of this secret audio recording has committed a misconduct.

[67] The misconduct committed by the Claimant here is only discovered in

this Court during the hearing of this matter and considering the fact that the

Company is deprived of any chance of taking disciplinary action against the

Claimant on account of this misconduct due to this late stage of discovery

and the fact that the Company could not have possibly taken any action

against the Claimant as the Claimant has already claimed constructive

57
dismissal, this Court must look for certain ways in which the Claimant can

be made accountable for her misconduct.

[68] In dealing with a position where the employer discovers the

employee’s misconduct subsequent to the dismissal, the instructive

passages in her ladyship Justice Nallini Pathmanathan’s (FCJ),

pronouncement in delivering the judgment of the Federal Court in Maritime

Intelligence Sdn. Bhd. v Tan Ah Gek [2021] 4 ILR 417 has brought the

much needed clarity wherein her ladyship opined :-

“[109] But it might well be asked what is the position if the employer discovers,

that unknown to it, the workman had been guilty of grave misconduct comprising

compelling factors which preclude relief to the workman? It would be unjust to the

employer to expect him to reinstate, for example, a workman guilty of theft or

some other serious misconduct, which the employer only discovered after the

workman had been dismissed?

[110] It is here that a distinction must be made between the basis for the

dismissal and the appropriate remedy to be afforded to a workman.

58
 ……………………………..However, that does not mean that events after

institution of the representations cannot be considered at all.

[111] In a case where there are compelling new facts of for example breach of

trust or theft, discovered post-dismissal, it is open to the employer to adduce

such evidence in relation to the remedy to be afforded to the workman. It would

be a formidable basis to counter a claim for reinstatement, and may well be

sufficient for the Industrial Court to conclude that no compensation in lieu of

reinstatement ought to be allowed either. In point of fact, it is the duty of the

Industrial Court under s.30 to consider the subsequent facts and

circumstances and mould the relief accordingly. It might conclude that the

relief has become inappropriate and determine the correct relief to achieve

complete justice between the parties.” (emphasis in this court’s)

[69] In considering the appropriate remedy pursuant to Section 30(6), (6A)

and the Second Schedule of “The Act” for the Claimant who was dismissed

by the Company without just cause or excuse, this Court must also take

into account contributory misconduct of the Claimant too.

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Remedy

[70] This Court having ruled that the Claimant was dismissed without just

cause or excuse, will now consider the appropriate remedy for the Claimant

and in so doing will also consider the contributory misconduct of the

Claimant here.

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

03.06.2019. The Claimant’s dismissal took effect on the 31.12.2020. Thus

the Claimant has served the Company for a period of 1 full year of service.

There is no dispute that the Claimant was a confirmed employee of the

Company.

[72] The Claimant, in stating that her dismissal from employment with the

Company was without just cause or excuse, prays to this Court for

reinstatement to her former position without any loss of wages and other

benefits. Considering the factual matrix of this case amongst other where

the Claimant claimed constructive dismissal, it is this Court’s view that

reinstatement of the Claimant to her former positions in the Company not a

suitable remedy in the circumstances of this case.

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[73] As such the appropriate remedy in the circumstances of this case

must be compensation in lieu of reinstatement. The Claimant is also

entitled for back wages in line with Section 30(6A) of “The Act” and the

factors specified in the Second Schedule therein which states:-

“1. In the event that backwages are to be given, such

backwages shall not exceed twenty-four months' backwages

from the date of dismissal based on the last-drawn salary of

the person who has been dismissed without just cause or

excuse;”

[74] The Claimant’s last drawn wages and fixed allowance was

RM3,000.00 per month.

[75] Equity, good conscience and substantial merits of the case without

regard to technicalities and legal forms remains the central feature and

focal point of this Court in arriving at its decision and these principles will be

adhered to by this Court at all times leading to the final order of this Court.

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[76] This Court is further bound by the principle laid down in the case of

Dr James Alfred (Sabah) v. Koperasi Serbaguna Sanya Bhd (Sabah) &

Anor [2001] 3 CLJ 541 where his lordship Justice Steve Shim CJ (Sabah

& Sarawak) in delivering the judgment of the Federal Court opined:-

“In our view, it is in line with equity and good conscience that the Industrial

Court, in assessing quantum of backwages, should take into account the fact,

if established by evidence or admitted, that the workman has been gainfully

employed elsewhere after his dismissal. Failure to do so constitutes a

jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course,

taking into account of such employment after dismissal does not

necessarily mean that the Industrial Court has to conduct a

mathematical exercise in deduction. What is important is that the Industrial

Court, in the exercise of its discretion in assessing the quantum of

backwages, should take into account all relevant matters including the fact,

where it exists, that the workman has been gainfully employed elsewhere

after his dismissal. This discretion is in the nature of a decision-making

process”.

(emphasis is this Court’s)

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[77] This Court must take into account the post dismissal earnings of the

Claimant in order to make an appropriate deduction from the back wages to

be awarded. The Claimant has given evidence that she is unemployed,

unable to secure any employment and living of her savings now. There is

no evidence of any post dismissal earnings or income of the Claimant.

[78] Having considered all the facts of case on the appropriate sum to be

awarded and after taking into account that the Claimant has no post

dismissal earnings or income, this Court hereby orders that the Claimant be

paid 1 month wages of the last drawn wages of RM3,000.00 for every year

of service completed which is only one year and back wages of the last

drawn wages for 24 months. This will amount to:-

(i) Backwages ordered:

RM3,000.00 x 24 months = RM 72,000.00

(ii) Compensation in lieu of Reinstatement:

RM 3,000.00 x 1 month = RM 3,000.00

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[79] Total amount ordered by this Court will be RM 75,000.00. This Court

will order a deduction of 35% from the total amount order on account of the

Claimant’s contributory misconduct. As such after making a deduction of

35% from the total amount ordered, the Claimant’s final entitlement sum

shall be :-

RM75,000.00 – RM26,250.00 = RM48,750.00

FINAL ORDER OF THIS COURT

[80] It is this Court’s order that the Company pays the Claimant a sum of

Ringgit Malaysia Forty Eight Thousand Seven Hundred Fifty (RM

48,750.00) only less statutory deduction (if any) within 30 days from the

date of this Award.

HANDED DOWN AND DATED THIS 05th DAY OF APRIL 2023

-Signed-

(AUGUSTINE ANTHONY)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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