IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 15(11)/4-1106/20

BETWEEN

ABDUL MALEK BIN MOHD AMIN

AND

SAPURAOMV UPSTREAM (SARAWAK) INC.

AWARD NO. : 1463 OF 2023

Before : Y.A. TUAN ANDERSEN ONG WAI LEONG

- CHAIRMAN (Sitting Alone)

Venue : Industrial Court of Malaysia at Kuala Lumpur

Date of Reference : 05.07.2020.

Date(s) of Mention : 01.09.2020, 29.09.2020, 08.03.2021, 12.10.2020,

30.03.2021, 13.03.2023, 21.03.2023, 31.03.2023.

Date(s) of Hearing : 07.04.2021, 08.04.2021, 15.03.2022, 05.12.2022,

06.12.2022, 12.12.2022, 16.12.2022.

Written Submissions
(Claimant) : 01.03.2023, 31.03.2023

Written Submissions
(Company) : 28.02.2023, 03.04.2023

Representation : Mr. Cheah Shu Boon, Mr. K.C. Cheng

& Mr. Prathib Patmanabon
Messrs S.B Cheah & Associates
Counsels for the Claimant

Dato’ T. Thavalingam & Ms. Aida Yasmin

Messrs Thavalingam & Co.
Counsels for the Company

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A. REFERENCE:

[1] This is a reference from The Honourable Minister of Human

Resources, Malaysia to the Industrial Court of Malaysia under Section

20(3) of the Industrial Relations Act 1967 (“the IRA”) in respect of the

alleged dismissal of ABDUL MALEK BIN MOHD AMIN (“the Claimant”) by

his employer, SAPURAOMV UPSTREAM (SARAWAK) INC. (“the

Company”) on 02.08.2019.

B. BACKGROUND

[2] The case was previously tried and concluded by me as the Chairman

of Court 11, Industrial Court of Malaysia. I had ceased to be the Chairman

of Court 11, effective 16.01.2023. I have been requested to hand down this

award as the presiding Chairman for the case after I was re-appointed as

the new Chairman of Court 15, effective 01.06.2023.

C. THE PROCEEDINGS

[3] The Claimant in our present case has claimed that he was

constructively dismissed by the Company on 02.08.2019. Like in all other

constructive dismissal cases, where the fact of dismissal is in dispute, the

Claimant had begun his case at the commencement of the trial.

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[4] Besides the Claimant giving evidence at the trial, the Claimant had

also called one, Khairul Azmee Bin Abdul Aziz (“CLW1”) who was the

Company’s Operations & Development Manager at the material time to give

evidence in support of the Claimant’s case against the Company. CLW1

had since left the Company in June 2020 and was with another company at

the time of the trial.

[5] Upon the conclusion of the Claimant’s case, the Company had

commenced its’ case by calling the following persons to give evidence in

support of the Company’s case against the Claimant:

(a) Mohamad Dzulhaidi Bin Masni (“COW1”) who was the

Company’s Human Resource Manager;

(b) Bryce Campbell (“COW2”) who was the Company’s Head of

Projects at the material time; and

(c) Mamdouh Badawi (“COW3”) who was the Company’s Chief

Operating Officer.

[6] The following cause papers and documents have been filed and/or

marked as evidence before the court and were referred to during the

proceedings:

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(a) The Claimant’s Statement of Case dated 28.08.2020 (“the

Statement of Case”);

(b) The Company’s Statement in Reply dated 29.09.2020 (“the

Statement in Reply”);

(c) The Claimant’s Rejoinder dated 09.10.2020 (“the Rejoinder”);

(d) The Claimant’s Bundle of Documents (“CLB1”);

(e) The Claimant’s Additional Bundle of Documents (“CLB2”);

(f) The Claimant’s Additional Bundle of Documents (2) (“CLB3”);

(g) The Claimant’s Income Tax Return and Employment Records

(“CL1”);

(h) The Company’s Bundle of Documents (“COB1”);

(i) The Company’s Additional Bundle of Documents (“COB2”);

(j) The Witness Statement of Khairul Azmeen Bin Abdul Aziz

(“CLWS1A”);

(k) The Additional Witness Statement of Khairul Azmeen Bin Abdul

Aziz (“CLWS1B”);

(l) The Witness Statement of Abdul Malek Bin Mohd Amin

(Claimant) (“CLWS2A”);

(m) The Additional Witness Statement of Abdul Malek Bin Mohd

Amin (Claimant) (“CLWS2B”);

(n) The Witness Statement of Mohamad Dzulhaidi Bin Masni

(“COW1”);

(o) The Witness Statement of Bryce Campbell (“COW2”);

(p) The Witness Statement of Mamdouh Badawi (“COW3”); and

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 (q) The Affidavit of Non-Service duly affirmed by Geevarethinam

s/o. Karuppiah on 09.12.2022 (“the Company’s Affidavit of

Non-Service”).

D. SALIENT FACTS

[7] The Company is an incorporation incorporated in Malaysia,

principally involves in the business of exploration, development and

production of crude oil and natural gas.

[8] The Company at its inception was known as “Newfield Sarawak

Malaysia Inc. (“Newfield”). The Company was later acquired by

SapuraKencana on 11.02.2014 and changed its’ name to SapuraKencana

Energy Sarawak Inc.

[9] Thereafter, the Company had entered into a joint venture agreement

with the OMV Group from Austria (“the OMV Group”) on 31.01.2019 and

its’ name was further changed to its current name of SapuraOMV Upstream

(Sarawak) Inc,

[ 10 ] The Claimant is a Singaporean. He was first employed by Newfield

as Project Operations Lead (SK408) on a fixed term contract basis for one

(1) year.

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[ 11 ] By a letter dated 27.03.2014, the Claimant was offered a permanent

employment with the Company in the same position as Project Operations

Lead, reporting to East Malaysia Head of Facilities.

[ 12 ] Pursuant to the Company’s letter dated 30.05.2016, the Claimant’s

position was changed to East Malaysia Head of Facilities, reporting to

Facilities Manager, effective 01.06.2016.

[ 13 ] The Claimant’s position was again changed to Project Manager,

reporting to Engineering & Project Services Manager, effective 01.02.2018

vide letter dated 30.01.2018.

[ 14 ] Sometime in early 2019, there was a change in the management of

the Company after the Company entered into the aforesaid Joint Venture

Agreement with the OMV Group. Among others, a new Chief Operating

Officer (“COO”), Mr. Mamdouh Badawi, i.e. COW3 was appointed for the

Company.

[ 15 ] On 28.06.2019, COW3 issued a “Note To Employees” on the Project

Organization Update via email. COW3 announced inter alia the

organizational changes effective 01.07.2019 as follows:

(a) That Bryce Campbell i.e. COW2 will take over from Dave

Ramsay as Head of Projects. In addition, COW2 will lead the

B14 project through the concept selection phase;

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 (b) That Dave Ramsay to focus his efforts on leading the Jerun

project in addition to continuing to manage GolaBa project; and

(c) That the Claimant will lead the Engineering department in his

new position as the Engineering Manager.

[ 16 ] On 01.07.2019, the Claimant wrote an email to COW2 expressing his

shock and unhappiness with the re-assignment of his position and the

Company’s decision in taking him out of his previous position as the Project

Manager without telling him beforehand.

[ 17 ] Both COW2 and COW3 replied to the Claimant’s aforesaid email

informing the Claimant that the change would best fit the Company’s

business need and for its growth plan. COW2 also informed the Claimant

that he will send him a job description showing the scope and

responsibilities of the Engineering Manager position as soon as he could.

[ 18 ] By an email dated 08.07.2019, the Claimant reminded COW2 to send

him the job description. He also informed COW2 that the post of

Engineering Manager was offered to him previously and he had rejected

the same. The Claimant also indicated to COW2 that if the job description

was the same as the previous one, he would not accept it.

[ 19 ] Subsequently, COW2 forwarded the job description of Engineering

Manager to the Claimant via his email dated 08.07.2019. A discussion

7
ensued between COW2 and the Claimant on the position of Engineering

Manager and the gist of the discussion was encapsulated in COW2’s email

to the Claimant dated 18.07.2019.

[ 20 ] The Claimant via his email to COW2 dated 23.07.2019 requested

that his position in the Company be resolved urgently. A meeting was then

held between the Claimant and the Company on 25.07.2019 whereby the

Claimant had indicated his rejection of his removal as Jerun Project

Manager and the move from Jerun Project Manager to Engineering

Manager.

[ 21 ] By an email dated 26.07.2019, the Company informed the Claimant

that the Company has no other position to be offered to him and thus the

Mutual Separation Scheme. Accordingly, the Claimant was given the

Mutual Separation Agreement on 31.07.2019 (“the MSA”) for his execution.

[ 22 ] The Company’s Human Resource Manager, Encik Mohamad

Dzulhaidi Bin Masni i.e. COW1 reminded the Claimant on 01.08.2019 that

he was still the employee of the Company since he had not accepted and

executed the MSA to which the Claimant promptly replied on the same day

that he required another day to review the MSA.

[ 23 ] By an email dated 02.08.2019, the Claimant informed the Company

that the MSA was not acceptable to him and he considered himself as being

8
constructively dismissed by the Company. Relevant excerpts of the

Claimant’s aforesaid email are reproduced herein below as follows:

“Hi Zul,

I have reviewed the unilaterally, SapuraOMV-prepared MSS

document and am surprised that the document states that I

requested for a “separation”. That is the exact opposite of the

actual situation and, hence, the document, which was shown

to me on 31 Jul 2019 and requested to be signed on the same

day, is not acceptable to me.

Since the announcement of my removal as Jerun Project

Manager was made by the COO via a letter released in late

evening of Friday, 28 Jun 2019 and up until the MSS document

was shown to me on 31 Jul 2019, my situation in the Company

has been ambiguous. As such, I have been going to office daily

for over a month now without a clear career direction. In the

meantime, it is apparent that the Jerun Project Manager

position has been officially taken over by Mr Dave Ramsay as

of 28 Jun 2019.

At the meeting held on 25 th July 2019 with SapuraOMV EMC

and HR, I was informed my rejection of the removal as Jerun

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 PM leaves the Company with “no other option” for me. This was

followed by the MSS letter mentioned above, which I reject.

Taking into account the above matters. I conclude that I am left

with no choice but to consider myself as being constructively

dismissed. Furthermore, to avoid any negative impact of my

ambiguous presence in the Company to colleagues and

subordinates, I will not be reporting for work from next week

Monday 5 th August 2019 onwards.

I would like to put on record that I have not violated any

company rules or regulations, have not been reprimanded in

any manner for any wrongdoings and that no disciplinary action

have been initiated or taken against me todate. Instead, I have

been working diligently as Jerun PM on a fast-track basis since

early 2018 with positive endorsement from the company, the

PSC Partners as well as MPM.

Regards,”

[ 24 ] The Claimant was unhappy with the Company’s action and made a

representation to the Director General of Industrial Relations that he was

dismissed by the Company by way of constructive dismissal without just

cause or excuse on 02.08.2019,. The dispute was then referred to the

Industrial Court for adjudication.

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E. THE CLAIMANT’S CASE

[ 25 ] It is the Claimant’s contention that the dismissal and termination of

the Claimant’s employment by the Company was unfair, without any just

cause, excuse or reason. The Claimant’s in his Statement of Case and

Rejoinder put forth inter alia the following arguments to support his

aforesaid contention:

(a) That the Claimant’s position in the Company as Project

Manager was never redundant as it was taken over by Dave

Ramsay;

(b) That the Claimant believes that the Company’s restructuring

exercise / move was orchestrated to replace the Claimant as

the Project Manager for the Jerun Project for someone else to

take credit for the impending investment approval for the

execution of the Jerun Project by Petronas to the Company;

(c) That the position of Engineering Manager was a pre-existing

position which was previously offered to the Claimant before

which the Claimant declined;

(d) That the position of Engineering Department was relatively

small and the position of Engineering Manager was inferior to

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 that of Project Manager and East of Malaysia Head of

Facilities;

(e) That the Claimant was hired by the Company for projects work;

(f) That assigning the Claimant to be just the Engineering

Manager was in fact a demotion with diminished duties and

responsibilities; and

(g) That the Claimant had never requested for “mutual separation”

and the MSA was prepared unilaterally by the Company

without any consultation with or input from the Claimant.

F. THE COMPANY’S CASE

[ 26 ] It is the Company’s pleaded case that the Company has never

dismissed the Claimant and it was the Claimant who had abandoned and/or

walked out of his employment with Company on his own accord. The

learned Counsel for the Company, Dato’ T. Thavalingam submi tted inter

alia as follows:

(a) That the Company had the prerogative to re-designate the

Claimant and his re-designation was merely a lateral move and

not a demotion;

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 (b) That there was an inordinate delays of 35 days on the part of

the Claimant in claiming for constructive dismissal; and

(c) That the Company had no obligation whatsoever to offer the

MSA to the Claimant. The Company however had on good faith

offered the MSA to the Claimant as he had persistently

declined to assume his new role.

G. EVALUATION AND FINDINGS OF THE COURT

The Doctrine Of Constructive Dismissal

[ 27 ] Constructive dismissal is a legal expression of an indirect dismissal

of employment where the employee elects to terminate his employment

contract with the employer as a result of the employer’s repudiatory breach,

by resigning or walking out of the employment.

[ 28 ] It is an extension of the common law contract principle to the

industrial jurisprudence. In Malaysia, the doctrine of constructive dismissal

enjoys widespread recognition and acceptance within the legal system. The

locus classicus case on the doctrine of constructive dismissal is Wong

Chee Hong v Cathay Organisation (M) Sdn Bhd (1988) 1 MLJ 92 decided

by the then Supreme Court, per Salleh Abas LP where it was held as follows:

13
 “Therefore, we must know and be clear precisely in our minds

what a constructive dismissal is. In England, where this

expression originated, there had been a great deal of unsettled

opinion among industrial tribunals. According to the Court of

Appeal in Western Excavating (ECC) Ltd v Sharp (1978) IRLR

27, it seems no more than the common law right of an

employee to repudiate his contract of service where the

conduct of his employer is such that the latter is guilty of a

breach going to the root of the contract or where he has

evinced an intention no longer to be bound by the contract. In

such situation, the employee is entitled to regard himself as

being dismissed.”

[ 29 ] The test for constructive dismissal was propounded by Lord Denning

M.R. in Western Excavating (EEC) Ltd v Sharp (1978) IRLR 27, where the

English Court of Appeal stated as follows:

(a) the employee must show that the employer no longer intends

to be bound by one or more of the essential terms of the

agreement;

(b) the employee must leave the employment immediately for

reason of the employer’s breach and for no other cause;

14
 (c) the employer’s breach must be a significant one, going to the

root of the contract, entitling the employee to terminate it

without notice; and

(d) the worker had not terminated the contract before the

employer’s breach.

Burden Of Proof

[ 30 ] In constructive dismissal cases, the burden of proof is on the

employee to first prove on the balance of probabilities that he had been

constructively dismissed by the employer.

[ 31 ] The employee has to prove that the employer has committed a

fundamental breach of his contract of employment, entitling him to

repudiate the contract.

[ 32 ] Only upon the employee successfully establishing the above, the

burden of proof will then shift to the employer to prove that the dismissal of

the employee was with just cause or excuse.

[ 33 ] It is for this reason that trial in our present case had begun with the

Claimant presenting his case. In Selangor Medical Centre v Zainal Abidin

Md Tamami (2002) 2 ILR 527, the Court stated as follows: -

15
 “There is no convincing evidence offered by the claimant to

prove that the company had failed the contract test or had

repudiated the contract of employment. The claimant is not

able to discharge the burden of proof which is on him to prove,

on a balance of probabilities, that the Company as the

employer, had been guilty of any fundamental breach which

goes to root of the contract or that the Company had evinced

any intention of no longer to be bound by it. As such, the

claimant is not entitled to regard his contract of employment as

being terminated or that he was constructively dismissed. ”

[ 34 ] On the facts, the Claimant has to establish that the re -designation or

transfer of the Claimant from the position of Project Manager to Engineering

Manager in the new Engineering Department was a fundamental breach of

his contract of employment, entitling him to repudiate the contract and claim

constructive dismissal by the Company on 02.08.2019.

Management or managerial prerogative

[ 35 ] It is well recognized and accepted that it is the prerogative of the

employer to decide how he wants to conduct or organize his business. This

managerial prerogative also extends to the right of the employer to decide

on the choice of staffs for the work.

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[ 36 ] There is a plethora of cases on the managerial prerogative and right

of the employer to decide how he wants to run his business. In William

Jacks & Co (M) Sdn. Bhd. (1997) 3 CLJ 235, per Gopal Sri Ram JCA , the

Court of Appeal held as follows:

“It is well settled that the employer is entitled to organise his

business in the manner he considers best. So long as the

managerial power is exercised bona fide, the decision is

immune from examination even by the Industrial Court.

However, the Industrial Court is empowered, in fact duty bound

to investigate the facts and circumstances of the case to

determine whether the exercise of power is in fact bona fide. ”

[ 37 ] The learned counsel for the Claimant, Mr. Cheah Shu Boon in his

written submission has referred to the case, Rahayu Bt. Razali v Matrix

Power Network Sdn. Bhd. (Award No.3143 of 2019), where the Industrial

Court has stated that while it is true the employer has the right or

prerogative to transfer its employees, it must be done without malice, bona

fide and with a clear intent to benefit the employer by using the

employee’s expertise and experience as the justification. (emphasis

added).

[ 38 ] With due respect, I do not think it is the requirement of the law that

employer has to provide justification for the transfer of his employee that it

17
was done with clear intent to benefit the employer by using the employee’s

expertise and experience.

[ 39 ] Such proposition to my mind is incongruous and inconsistent with the

managerial prerogative of the employer. By definition, the word “prerogative”

means an exclusive or special right, power or privilege (see Merriam-

Webster Dictionary). There is no need for the employer to provide

justification that the transfer of his employee was for benefit of the employer

by using the employee’s expertise and experience. The transfer of

employee can be for any other reasons provided it is done in good faith.

[ 40 ] In any event, the case of Rahayu Bt. Razali is not binding on this

court. The law on managerial prerogative is clear. So long as the managerial

power is exercised bona fide, it should not be disturbed or questioned even

by the Industrial Court.

[ 41 ] The burden of proof is on the Claimant to show that the re-designation

and/or transfer from the position of Project Manager to Engineering

Manager by the Company was not bona fide and hence, a fundamental

breach of the Claimant’s contract of employment.

The Claimant’s employment with the company

[ 42 ] Mr. Cheah submitted that from inception, the Claimant joined and was

hired by the Company to lead in project managements and execution and

18
as such, he was constructively dismissed by the Company when he was re -

designated or transferred from the position of Project Manager to

Engineering Manager.

[ 43 ] He found support for his argument from the testimony of CLW1 where

CLW1 had said that during the interview, the Claimant had expressed his

aspiration to lead in projects management and execution which was a

person what the Company had intended to hire for.

[ 44 ] As stated above, the Claimant was initially hired by the Company for

the position of Project Operations Lead. It is therefore not surprising that

the Claimant had expressed his aspiration to lead in projects management

and execution during the interview session as those qualities were required

for the position of Project Operations Lead.

[ 45 ] However, there is no evidence before the Court to show that the

Company had agreed to hire the Claimant to do only project management

and execution works and he cannot be transferred to any other positions in

the Company.

[ 46 ] Indeed, the evidence before the Court shows otherwise. The Claimant

was promoted to the position of East Malaysia Head of Facilities, effective

01.06.2016 wherein he was not managing projects. He had held that same

position of East Malaysia Head of Facilities for almost two years before he

was transferred to the positon of Project Manager.

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[ 47 ] If the Claimant did not express any complaints previously when he

was the East Malaysia Head of Facilities that he supposed to do only

projects management, I do not think his argument that he was hired only to

do projects management work can hold water now in respect of the transfer

to the position of Engineering Manager.

The changes by the Company

[ 48 ] COW3 who was the Company’s COO had on 28.06.2019 announced

the changes to the Company’s Project Department wherein COW2 was

appointed as the Head of Project, taking over that position from Dave

Ramsay who was in turn move to the position of the Project Manager in

place of the Claimant. The Claimant was then transferred to the p osition of

Engineering Manager in the newly created Engineering Department.

[ 49 ] Mr. Cheah has disputed the aforesaid changes as restructuring and

reorganization by the Company and submitted that the changes were made

solely by one person i.e. COW3 for the benefit of COW2, purportedly on the

following grounds:

(a) that the announcement itself did not say that it was a

restructuring or reorganization;

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 (b) that the Company has not produced any white papers, minutes

of meetings, budgetary estimates or any papers or documents

on the strategies aims or objectives of the exercise to show

that the Company’s Board, or the Executive Management

Committee (ËMC”), or the Company’s Finance Department and

the HR Department have been consulted and approved the

restructuring; and

(c) that there were inconsistencies between the COW2’s

testimonies and COW3’s testimonies on the restructuring

exercise and the required approvals from the relevant parties

and the Company’s Board of Directors.

[ 50 ] Firstly, I do not think it matters that the announcement made by

COW3 did not expressly mention any restructuring or reorganization

exercise by the Company. An announcement was made by COW3 on the

organizational changes in the Projects Department which entailed re-

designations and transfers of employees including the Claimant. This, to my

mind, is a restructuring exercise albeit only limited to the Projects

Department.

[ 51 ] Mr. Cheah argued that such major exercise which included also the

splitting of the previously Project Services & Engineering Department into

two separate departments to accommodate the moving of the Claimant to

become the Engineering Manager for the new Engineering Department

21
would require white papers, minutes of meetings, budgetary estimates or

any papers or documents before the restructuring exercise can be carried

out.

[ 52 ] COW3 gave evidence at the trial that the restructuring exercise

entailed two phases of changes. The first phase was the appointment of

COW2 as the Head of Projects which according to COW3 was discussed

and approved at level one (“L1”) approval, by the EMC.

[ 53 ] COW3 explained that the re-designations and/or transfers of Dave

Ramsay and the Claimant were the second phase of the restructuring

exercise which did not require approval of the EMC or Board of Directors.

According to him, the second phase of restructuring was decided by COW2

and endorsed by EMC.

[ 54 ] COW3 had confirmed that only changes to L1 require documentation

and approval of the Board of Directors. According to COW3, any changes

below L1 namely L2 and below, do not require any formal documentation ,

just announcement within the Company and the endorsement of EMC would

be sufficient.

[ 55 ] On the facts, there is no evidence before the Court to contradict

COW3’s aforesaid evidence or to show that the Board of Directors’ approval

was required for the change of the Claimant’s position.

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[ 56 ] COW2 in his evidence has never said that the approval of the Board

of Directors was required for the restructuring exercise in respect the

position of the Claimant though he was uncertain on the approval of the

restructuring exercise.

[ 57 ] Hence, it would be too presumptuous for the Court to conclude that

the change of Claimant’s position was not part of any restructuring exercise

in the absence of the Board of Directors’ approval or white paper and was

the doing of one man for the benefit of another.

[ 58 ] Mr. Cheah implored the Court to take notice that the restructuring

exercise was not only a simple isolated change of the Claimant’s position

since it entailed additional financial commitments and other resources of

the Company. As such, he submitted that the creation of new Engineering

Department for the Claimant would require the Board of Directors ’ approval.

[ 59 ] There is really no real basis to insist that the change of the Claimant’s

position from Project Manager to Engineering Manager and the creation of

the new Engineering Department require the approval of the Board of

Directors in the absence of any supporting evidence. All the more so, COW3

had confirmed there was no such requirement.

[ 60 ] For the reasons stated above, the Court is not able to agree with the

Claimant that the Company has breached his contract of employment by

conducting themselves in a manner calculated or likely to destroy or

23
seriously damage the relationship of confidence and trust between

employer and employee.

[ 61 ] The Claimant also contended that the Company in making the

changes and transferring the Claimant, has also breached the contract by

having acted not bona fide but instead was done to promote the interest of

some favoured employees to the detrimental of others.

[ 62 ] Again, there is no evidence before the Court that the changes and

transferring of the Claimant was done to promote the interest of some

favoured employees to the detrimental of others in our present case.

[ 63 ] Mr. Cheah suggested that since it was COW2 who had applied

through OMV Group to join the Company, the Company has to create a

position for him and to slot him into the Company’s structure. That according

to him was not bone fide as it was done to promote the interest of COW2 to

the detrimental of the Claimant and Dave Ramsay.

[ 64 ] The mere fact that the Company had preferred COW2 for the position

of Head of Projects over Dave Ramsay, and Dave Ramsay over the

Claimant for the position of Project Manager does not ipso facto make the

transfers mala fide.

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[ 65 ] COW3 testified that the changes were introduced in order to enhance

the efficiency of the Company’s project organisation and the effectiveness

of its project management and operations.

[ 66 ] COW3 explained that when the Claimant was appointed as the

Project Manager in 2018, he was assigned with the preparatory works for

the Jerun Project which was still a work in progress and on its front end

engineering design stage at the material time.

[ 67 ] COW3 said that as the Claimant’s expertise and job experiences were

predominantly in Engineering management, which was the expertise

required for the Jerun Project at that juncture, he was therefore appointed

to lead the same as its’ Project Manager.

[ 68 ] However, according to COW3, with the progression of the Jerun

Project, the operational needs for the same had also varied. He said that

as Dave Ramsay had a wider experience as a Project Manager, the

Company felt that Dave Ramsay’s job experience would better suit the

needs of the Jerun Project which was at its execution stage at the material

time.

[ 69 ] COW3 also explained that since the Claimant’s expertise was

predominantly in engineering management, the Company had therefore

decided to change his position as Engineering Manager whereby he was

25
entrusted to lead the Company’s new Engineering Department, where his

expertise and skill sets would be best utilised.

[ 70 ] COW3’s aforesaid evidence has remained uncontroverted. For the

changes and transfer of the Claimant to the position of Engineering

Manager to be regarded as not bona fide, there must be proof of the element

of bad faith on the part of the Company in carrying out the changes and the

transfer. This was missing from our present case.

[ 71 ] There is no proof of any element of bad faith on the part of the

Company in carrying out the changes. As such, the Court accepts the

reasons proffered by the Company for the changes to the Claimant’s

position from Project Manager to Engineering Manager in the new

Engineering Department.

[ 72 ] Incidentally, Mr Cheah also submitted that our present case is similar

to the case of Wong Chee Hong where the Supreme Court had upheld the

claim of constructive dismissal by the claimant in that case.

[ 73 ] Our present case is clearly distinguishable on the facts from Wong

Chee Hong’s case. In Wong Chee Hong’s case, the company was clearly

unhappy with the manner the claimant had handled the new collective

agreement. The transfer was done as a punishment for the Claimant. The

Supreme held that what took place in that case was not a transfer but a

demotion meted out without any disciplinary action taken.

26
[ 74 ] In Wong Chee Hong’s case, the intention and motive of the transfer

by the Company were clear. It was done as a form of punishment to the

claimant in that case. The same cannot be said for our present case. There

is nothing for the Court to impute bad faith on the part of the Company for

the changes effected.

The right to make the changes and/or transfer

[ 75 ] Mr. Cheah submitted that since there was nothing in the Claimant ’s

appointment letters that the Company has the sole discretion to transfer or

change his position, the Company can only make changes or transfer the

Claimant to other position with the Claimant’s consent.

[ 76 ] I do not think that is the correct position of the law in relation to the

right of the employer to transfer his employee. It is trite law that employer

has the prerogative to decide on the choice of his staff s for the work. There

is no requirement for the employer to seek consent from his employee for

the transfer.

[ 77 ] I lean in support of the case of Ladang Holyrood v Ayasamy a/l

Manikam & Ors (2004) 2 CLJ 697 (referred to by Dato Thava in his

submissions), where the Court of Appeal had held that the right to transfer

an employee is an implied right of an employer although the same is not

provided for in the employment contract. The relevant part of the judgment

is now reproduced herein below as follows:

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 “Nevertheless, an employer always has the implied right to

transfer its employees. As the right is one that is “implied”, no

express term in the contract of service is necessary. The right

to transfer exists even in the absence of a contract of service

unless there is a contract to the contrary.”

[ 78 ] Similarly, the learned author, B.R. Ghaiye in his book entitled

“Misconduct in Employment” at page 238 stated as follows:

“It is generally held that the right to transfer an employee is an

implied right of the employer and, therefore, no express term

in the contract is necessary.”

[ 79 ] Therefore, the Court is not able to accept the submission of Mr.

Cheah that the Company needs to obtain the Claimant’s prior consent for

the transfer or change of his position from Project Manager to Engineering

Manager in the new Engineering Department and the Claimant has the

right to reject the transfer.

The role of Engineering Manager

[ 80 ] COW1 in his evidence confirmed that the Claimant’s new role as the

Engineering Manager in the Engineering Department was a lateral move,

whereby the position of Engineering Manager was the same ranking as his

previous position as Project Manager, even though they were different in

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terms of job scope. This was also confirmed and corroborated by COW2’s

evidence.

[ 81 ] COW2 testified that the Claimant’s new position as the Engineering

Manager was a newly created role in the Company’s organization structure

whereby he was entrusted to lead the Engineering Department of the

Company which was a newly expanded department that stemmed from the

previous Engineering & Project Services Department of the Company.

[ 82 ] COW2 said that there would also be more subordinates reporting

directly to the Claimant as the Engineering Manager as compared to when

the Claimant was the Project Manager.

[ 83 ] The Company produced and tendered into Court the Company ’s new

Project Department Organization Chart as evidence to support that the new

position of Engineering Manager was in fact the same rank as the Project

Manager.

[ 84 ] The Claimant gave evidence at the trial that he regarded the positi on

as a demotion. He said that a similar Engineering Manager position was

offered to him a few years earlier but he declined, as it was more of an

administrative role to provide personnel support to the projects undertaken

by the Company.

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[ 85 ] According to the Claimant, the Engineering Manager position has a

much diminished role and responsibilities entailing mainly administrative

duties needed to be performed solely from the office based in Kuala Lumpur

and overseeing less than 15 engineers in the Company as compared to the

role of Project Manager which calls for technical expertise and both on and

off field leadership, the challenge of managing schedule, budget and

hundreds of multi-discipline engineers on a fast-track project.

[ 86 ] To further support the Claimant’s contention that the position of

Engineering Manager was a demotion, the Claimant had called on CLW1 to

testify that the position of Engineering Manager was of a lesser status and

important than a Project Manager.

[ 87 ] I do not think that CLW1’s aforesaid remark can carry much weight. It

was his own preconception of the matter as he was not the Claimant’s

superior and never involved in the restructuring exercise.

[ 88 ] It was not disputed that the Engineering Department was a newly

expanded department that stemmed from the previous Engineering &

Project Services Department of the Company. As such, CLW1 was in no

position to explain the new position of Engineering Manager offered to the

Claimant.

[ 89 ] There is really no basis for the Claimant and/or CLW1 to say that the

new position of Engineering Manager was of lesser status and important

30
than the Project Manager when both positions rank the same in the Project

Department Organization Chart.

[ 90 ] COW2 had also reassured the Claimant that the new position of

Engineering Manager was not a demotion in his discussion with the

Claimant on 17.07.2019 by explaining to him inter alia as follows (as

captured in COW2’s email to the Claimant dated 18.07.2019):

(a) That the reorganisation of the Company’s project organization

structure was done to best advance the current projects and to

prepare the Company for its future growth;

(b) That the Engineering Manager position refers to the

Engineering Department of the Company as a whole, and not

to the organization of the Company’s projects. However, as

shown in the Job Description, the Engineering Manager of the

Engineering Department will also act as Engineering Manager

on assigned projects until a dedicated Engineering Manager is

required to be recruited for the project;

(c) That the Engineering Manager would work with Exploration and

Subsurface to mature the project portfolio;

(d) That the Engineering Manager would also work on new

opportunities to enable growth of the Company. In respect of

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 this, there was no long-term clarity available yet since the

strategy for the growth aspiration was currently being

developed; and

(e) That the Engineering Manager position was a lateral move, not

a promotion or a demotion from the Project Manager position.

[ 91 ] The Court has perused the documents filed and submitted by the

parties including the job description given by COW2 to the Claimant and

finds that there is no truth in the Claimant’s contention that the position of

Engineering Manager in the new Engineering Department was a demotion

and/or has a much diminished role and responsibilities entailing mainly

administrative duties.

[ 92 ] Both positions have different job scope and entail different

responsibilities and duties. They are incomparable and incommensurable. I

do not think it is fair for us to compare and undermine the role and important

of either of these positions. It would be akin to “comparing apples with

oranges.”

[ 93 ] Since both positions rank pari passu in the Company’s organization

structure, they are of equal important and significant to the Company. Just

like “the eye cannot say to the hand, I don’t need you, and the head cannot

say to the feet, Ï don’t need you”, the Project Manager is also not entitled

32
to says that it is more important than the Engineering Manager as they

perform different roles and functions in the Company.

[ 94 ] Moreover, the position of Engineering Manager offered to the Claimant

was a new position. The Company never had a separate standalone

Engineering Department previously. In all likelihood, when the Claimant

said that he had declined the offer for similar Engineering Manager position

a few years ago, it was in reference to the position of Engineering Manager

in the organization of the Company’s projects and not Engineering

Department as there was none previously.

[ 95 ] The position of Engineering Manager in the organization of the

Company’s projects previously arguably was lower in status than the Project

Manager as it was a position within the organization of the Company’s

projects only. The same cannot be said for the position of Engineering

Manager in the new Engineering Department offered to the Claimant which

was a position in the Company’s organization structure as a whole i.e. the

head of department.

[ 96 ] As such, the Claimant’s contention that the position of Engineering

Manager in the new Engineering Department was similar to the position

offered to him previous which he had declined and it was a demotion is

misconceived and unfounded.

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[ 97 ] In the circumstances, the Court holds that the re-designation and

transfer of the Claimant to the position of Engineering Manager in the new

Engineering Department was not a demotion. The Court agrees with the

Company’s submission that it was indeed a lateral transfer within the

Company’s organization.

Mutual Separation Agreement

[ 98 ] COW1 gave evidence that as the Claimant had persistently refused

to accept the position of Engineering Manager, he together EMC and Puan

Sharifanor Hassan (“Puan Sha”) who was the Company’s Head, Human

Resources and Admin at the material time had met the Claimant again on

25.07.2019 to obtain his final confirmation as to whether he would be

accepting the new role, during which, the Claimant had again rejected the

same.

[ 99 ] COW1 also said that he and Puan Sha had met the Claimant later in

the afternoon of the same day, during which the Claimant had verbally

requested for a mutual separation package which the Company had agreed

to.

[ 100 ] However, this piece of evidence was disputed by the Claimant. The

Claimant denied requesting for a mutual separation package and contended

that it was the Company who had initiated the offer for mutual s eparation

package.

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[ 101 ] Mr. Cheah submitted that the Claimant could not be expected to

accept the Mutual Separation Agreement (“MSA”) because it did not contain

the severance payment terms and had wrongly stated that it was the

Claimant who had requested for the MSA.

[ 102 ] COW1 gave evidence that during the meeting on 25.07.2019, the

Company had proposed the following to the Claimant:

(a) That the Claimant’s last date of employment would be on

31.07.2019;

(b) That an ex gratia sum of USD123,450.44 would be paid to the

Claimant;

(c) That the Company would be drafting the MSA with the

proposed separation package and other suggested terms; and

(d) That a further meeting would be held on 31.07.2019 to finalise

and execute the MSA.

[ 103 ] Be that as it may, it is immaterial who had initiated the discussion on

the mutual separation package as the mutual separation agreement was

never accepted by the Claimant and the Claimant was never termin ated by

the Company on 31.07.2019.

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[ 104 ] If indeed, the content of the MSA was an issue, surely it could have

easily be resolved by the parties through discussion. There is no evidence

of any discussion of the terms of the MSA after the MSA was given to the

Claimant. The Claimant merely requested for additional time to go through

the MSA and had thereafter outright rejected it.

[ 105 ] In any event, I do not think that the mutual separation agreement is

material to our present case. The MSA was not the reason for the

constructive dismissal claim by the Claimant.

S.114(g) of Evidence Act 1950 - Adverse Inference

[ 106 ] Mr. Cheah submitted that Puan Sha was a very if not the most

important person required to testify not only for the Company but also for

the Claimant to cross examine and confirm very pertinent issues as she had

been with the Company before the Claimant joined.

[ 107 ] As such, Mr. Cheah implored the Court to presume the existence of

certain facts and draw adverse inferences against the Company pursuant

to s.114(g) of the Evidence Act 1950 (“the EA 1950”).

[ 108 ] There is no doubt that Puan Sha would be a relevant witness to the

case. However, she is not the most important witness for the case, as

claimed by Mr. Cheah.

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[ 109 ] The key witnesses in this case are COW2 and COW3 who were the

members of the EMC and the persons behind the restructuring exercise.

Puan Sha and COW2 being the persons from the Company’s Human

Resource Department were merely facilitating the changes requested by

COW2 and COW3.

[ 110 ] The Company had called on COW1 to give evidence on matters

pertaining to the Claimant’s employment and his dismissal. COW1 was also

present in the meetings with the Claimant. As such, Puan Sha ’s absence is

not fatal to the Company’s case.

[ 111 ] Dato’ Thava submitted that there was no basis to invoke adverse

inference against the Company for the non-attendance of Puan Sha as the

Company’s witness since the Company had duly issued subpoena against

Puan Sha to procure her attendance as a witness and the Affidavit of Non-

Service of the Subpoena had also been filed before this Court.

[ 112 ] In support of his submission, Dato’ Thava referred to the case of

John Amaechi v PP (2015) 1 LNS 571, where the Court of Appeal had held,

inter alia, as follows:

“The law on adverse inference is well settled. No adverse

inference can be made unless there is oblique motive for
withholding or suppressing evidence either on the part of the
prosecution or the defence (see Munasamy v PP [1987] 1 MLJ
492 (SC), Mohd Shamsir bin Md Rashid v PP [2008] 1 LNS 235;
[2008] 5 MLJ 50). In the instant appeal, there was no such

37
 withholding when the subpoena could not be served on Sahuri.
It was not a case of withholding or suppression of evidence,
but one where a witness could not be produced. The Federal
Court in Siew Yoke Keong v PP [2013] 4 CLJ 149; [2013] 3 MLJ
630 reaffirmed the legal position that s.114(g) can only be
drawn if there is withholding or suppression, but not on mere
failure to produce a witness.”

[ 113 ] Similarly, in our present case, there is proof of withholding or

suppression of evidence by the Company. As pointed out by Dato ’ Thava,

the Company had issued sub-poena against Puan Sha to secure her

attendance as the Company’s witness but the sub-poena simply could not

be served on her.

[ 114 ] As such, the Court accepts the submission of the Company, there

was no suppression or withholding of evidence. Accordingly, the Court is

not prepared to invoke s.114(g) of the EA 1950 and draw adverse inference

against the Company for the non-attendance of Puan Sha as the Company’s

witness.

Findings

[ 115 ] On the facts, the Claimant has failed to prove that the change and

transfer of the Claimant to the position of Engineering Manager in the new

Engineering Department was not bona fide and/or it was a demotion from

the position of Project Manager, thereby constituting a fundamental breach

of his employment contract.

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[ 116 ] The Claimant has failed to discharge the burden of proof placed on

him to prove, on a balance of probabilities, that the Company has

committed a fundamental breach which goes to the root of the contract or

that the Company had evinced any intention of no longer to be bound by

the Claimant’s contract of employment, entitling the Claimant to repudiate

his employment contract and claim constructive dismissal against the

Company.

[ 117 ] Accordingly, there is no onus whatsoever on the Company 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. The

Claimant had left the Company on 02.08.2019 on his own accord. Hence,

the Claimant’s case against the Company is hereby dismissed.

HANDED DOWN AND DATED THIS 28 th DAY OF JUNE, 2023

-Signed-

(ANDERSEN ONG WAI LEONG)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
AT KUALA LUMPUR

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