INDUSTRIAL COURT OF MALAYSIA

CASE NO: 22/4-232/19

BETWEEN

RAVIN A/L M. VIKNASEVARAN

AND

WELLCOM COMMUNICATION (M) SDN. BHD.

AWARD NO: 2640 OF 2019

BEFORE : Y.A. DATO' FREDRICK INDRAN X.A. NICHOLAS

CHAIRMAN

VENUE : Industrial Court Malaysia, Kuala Lumpur.

DATE OF REFERENCE : 05.03.2019.

DATES OF MENTION : 05.04.2019 and 28.05.2019.

DATE OF MEDIATION : 03.05.2019.

DATE OF HEARING : 17.06.2019.

REPRESENTATION : Ms. Janeni Devi Ravendren (Claimant’s Counsel).

Mr. Aminruddin bin Salleh (Company’s Counsel).

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 AWARD

The Reference:

1. This Ministerial reference dated 5.3.2019 under s. 20 (3) of the Industrial Relations

Act 1967 concerns the cessation of employment of one Ravin a/l M. Viknasevaran

(‘the Claimant’) from the service of his former employer Wellcom Communications

(M) Sdn. Bhd. (‘the Company’) on 28.9.2018. The order of reference from the

Honourable Minister of Human Resources Malaysia was acknowledged by this

Court’s Registry on 8.3.2019.

The Prologue:

2. This case had its first mention in Court on 5.4.2019, where the usual directions for

pleadings were issued and the matter set down for mediation on 3.5.2019; and for

hearing on 17 & 18 June 2019. Mediation was conducted on the date as fixed, but

turned out to be unsuccessful. After one more mention date on 28.5.2019, the trial of

the case commenced and was concluded on 17.6.2019; where the continued

hearing date scheduled for 18.6.2019 was duly vacated. The parties, at their mutual

request, were then directed to file their written submissions in the following order:

i) the Company’s submission by 17.7.2019;

ii) the Claimant’s submission by 16.8.2019; and

iii) the Company’s reply, if any, by 30.8.2019.

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3. In the event, the Company’s written submission was filed on 23.7.2019 and the

Claimant’s submission on 26.8.2019. The Company’s reply was then filed on

27.9.2019. All that remains is for pen to be put to paper whereat the Final Award of

this Court follows:

The Facts:

4. The Claimant commenced his employment with the Company as a Chief

Technology Officer (‘CTO’) on 1.5.2018 at a basic salary of RM12,000.00 together

with an allowance of RM1,000.00 (for travelling and hand phone), per month; vide a

letter of employment dated 30.3.2018 for a fixed period of one year expiring on

30.4.2019.

5. A copy of his Letter of Appointment dated 30.3.2018 appears at pages 1 to 8 of

the Company’s Bundle of Documents marked ‘B’. He was placed on probation for a

period of 6 months.

6. The Claimant’s complaint is that his salary for the month of July 2018 was delayed

and not paid until 24.10.2018 and then only after repeated demands from him; and

that his salary for the months of August and September 2018 has not been paid at all

to date.

7. As for his July 2018 salary his repeated demands (presumably oral) and his

written notification is represented as follows (exact copy reproduced):

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(*1)

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8. As for his August 2018 salary (exact copy of letter reproduced):

(*2)

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9. Finally, after reaching his tethered end the Claimant issued the following missive

which is self-explanatory (exact copy reproduced):

(*3)

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10. On or about 24.8.2018, the Company issued a show cause letter to the Claimant

thus (exact copy):

(*4)

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11. Which the Claimant replied to, thus (exact copy):

(*5)

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12. The Company did not reply to this letter and neither did any form of disciplinary

action flow from there.

13. The Claimant is now before this Court with a prayer to seek the appropriate relief

for what he believes to have been a fundamental breach by the Company of his

contract of employment, leading thereby to what he considered himself to be, i.e.

constructively dismissed; whilst the Company is of an opposing view; where it urges

this Court to view the Claimant’s cessation of service as a plainly voluntary

resignation in order to avoid punitive action against him as a result of his alleged

performance problems.

The Issue:

14. This is a case of alleged constructive dismissal. The questions therefore that call

for an answer by this Court are as follows: -

i) Was there a dismissal in fact and in law?

and (if, affirmative)

ii) Was the dismissal with just cause or excuse?

15. This two-fold query will commence with a consideration of the established

jurisprudential position in these types of Industrial Court cases.

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The Law:

16. When dealing with a reference under section 20 of the Industrial Relations Act

1967 (‘the Act’), the first thing that the Industrial Court has to consider is the question

of whether there was, in fact, a dismissal. If this question is answered in the

affirmative, it must only then go on to consider if the said dismissal was with or

without just cause or excuse. Reference is drawn to the case of WONG CHEE

HONG v. CATHAY ORGANISATION (M) Sdn. Bhd. [1988] 1 CLJ 45; [1988] 1 CLJ

(Rep) 298 (of the then Supreme Court of Malaysia) per Mr. Justice Tun Salleh

Abas LP.

17. In COLGATE PALMOLIVE SDN. BHD. v. YAP KOK FOONG [1998] 2 ILR 965

(Award No. 368 of 1998) it was held as follows: -

“In a section 20 reference, a workman’s complaint consists of two elements: firstly,

that he has been dismissed, and secondly that such dismissal was without just cause or

excuse. It is upon these two elements being established that the workman can claim

his relief, to wit, an order for reinstatement, which may be granted or not at the

discretion of the Industrial Court. As to the first element, industrial jurisprudence as

developed in the course of industrial adjudication readily recognizes that any act

which has the effect of bringing the employment contract to an end is a ‘dismissal’

within the meaning of section 20. The terminology used and the means resorted to by

an employer are of little significance; thus, contractual terminations, constructive

dismissals, non-renewals of contract, forced resignations, retrenchments and

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 retirements are all species of the same genus, which is ‘dismissal’.” [emphasis

added]

Constructive Dismissal:

18. Constructive dismissal is a creation of the law, a fiction, where a workman

ceases employment on his own volition as a result of the conduct of his employer

and thereupon claims that he has been dismissed. As with all legal fictions it is

subject to strict requirements being proved for it to sustain itself as a dismissal de

facto and de jure and not convert into a voluntary resignation where those

prerequisites are wanting.

19. The principle underlying the concept of ‘constructive dismissal’, a doctrine

firmly established in our industrial jurisprudence, was expressed by Tun Salleh Abas

LP in the case of WONG CHEE HONG v. CATHAY ORGANISATION (M) SDN.

BHD. (supra) as follows: -

“The common law has always recognized the right of an employee to terminate his

contract and therefore to consider himself as discharged from further obligations if the

employer is guilty of such a breach as affects the foundation of the contract, or if the

employer has evinced an intention not to be bound by it any longer.”

20. In WESTERN EXACAVATING Ltd. v. SHARP [1978] 1 QB 761 (Court of

Appeal) that illustrious English judicial luminary Lord Alfred Thompson Denning

(1899 -1999) explained this doctrine as follows: -

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 “If the employer is guilty of conduct which is a significant breach going to the root of

the contract, or which shows that the employer no longer intends to be bound by one

or more of the essential terms of the contract, then the employee is entitled to treat

himself as discharged from any further performance. If he does so, then the employee

terminates the contract by reason of the employer’s conduct. He is constructively

dismissed. The employee is entitled in those circumstances to leave at the instant

without giving any notice at all or, alternatively, he may give notice and say he is

leaving at the end of the notice. But the conduct must in either case be sufficiently

serious to entitle him to leave at once. Moreover, he must make up his mind soon after

the conduct of which he complains; for, if he continues for any length of time without

leaving, he will lose his right to treat himself as discharged. He will be regarded as

having elected to affirm the [varied] contract.”

21. In ANWAR BIN ADDUL RAHIM v. BAYER (M) SDN. BHD. [1998] 2 CLJ 197

His Lordship Mahadev Shanker J. held as follows: -

“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.

ELIZABETH LEE CHAI SIOK [1992] 1 CLJ 141 and WONG CHEE HONG v.

CATHAY ORGANISATION (M) Sdn. Bhd. (supra)].

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22. And in LEONG SHIN HYUN v. REKAPACIFIC Bhd. & Ors. [2001] 2 CLJ 288

the High Court referred with approval to the principle stated in the case of LEWIS v.

MOTORWORLD GARAGES Ltd. [1986] ICR 157 which was as follows:

“It is now well established that the repudiatory conduct may consist of a series of act or

incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory

breach of the implied term of the contract of employment, that the employer will not

without reasonable and proper cause conduct himself in a manner calculated or likely to

destroy or seriously damage the relationship of confidence and trust between employer

and employee.”

23. Dr. Dunston Ayadurai in his text Industrial Relations In Malaysia: Law &

Practice 3rd Edition at page 297 states: -

“A workman can seek a remedy under section 20 only if he had been dismissed. More

often than not, there is no dispute that there was an actual dismissal of the workman by

his employer. The only issue for the Industrial Court to determine is whether the

dismissal had been for just cause or excuse, the onus of proving the existence of the same

being cast upon the employer. Where, however, the workman’s claim for reinstatement

under section 20 is founded on a constructive and not an actual dismissal, the workman is

basing his claim on the repudiatory conduct of the employer which gave him the option to

treat the contract as having been terminated. Consequently, in section 20 proceedings of

this type, the onus of proving that he has been constructively dismissed by his employer is

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 cast on the workman.” [See CHUA YEOW CHER v. TELE DYNAMIC Sdn. Bhd.

[1999] 1 LNS 104 – this addition is the Court’s].

24. The learned author went on to say on the same page: -

“To prove that he has been constructively dismissed, it will be necessary for the

workman to establish the following:

(a) that the employer had by his conduct breached the contract in respect of one

or more of the obligations, owed to the workman; the obligations breached

may be in respect of either express terms or implied terms, or of both;

(b) that the terms which had been breached go to the foundation of the contract;

or, stated in other words, the employer had breached one or more of the

essential terms of the contract;

(c) that the workman, pursuant to and by reason of the aforesaid breach, had left

the employment of the employer; that is, that the workman had elected to treat

the contract as terminated; and

(d) that the workman left at an appropriate time soon after the breach complained

of; that is, that he did not stay on in such circumstances as to amount to an

affirmation of the contract, notwithstanding the breach of the same by the

employer.”

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25. Once these prerequisites for constructive dismissal have been established by the

workman in reference to a dismissal under section 20 of the Act the Industrial Court

moves into the next limb of inquiry to determine whether the employer had just cause

or excuse for the dismissal. Here the burden shifts upon the employer to do so. Raus

Sharif J. (as His Lordship then was) in PELANGI ENTERPRISES Sdn. Bhd. v. OH

SWEE CHOO & Anor. [2004] 6 CLJ 157 refers to this shift of the burden; calling that

upon the workman as “the first burden of proof” at page 165 and that upon the

employer as the “second burden of proof” at page 166.

26. In other words, once the Claimant has been successful in establishing the fact of

constructive dismissal it will only then be for the Company to show that the dismissal

was for just cause or excuse.

The Evidence:

The Claimants Case:

27. It was the Claimant’s contention that the first time that he had any inkling about

the Company’s dissatisfaction with his performance at the job was when he received

the Company’s letter of 24.8.2018 (see (*4) above).

28. He (the Claimant) promptly replied to the Company missive vide his letter of

29.8.2018 (see (*5) above) and then heard no more about it right up to the time of

his departure from the Company’s services.

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29. His simple position was that he had continued in his service with the Company

during the material time and had made his demands for his salary that was delayed

(for July 2018) and that, that was not paid (for August and September 2018), both

orally and by way of writing.

30. The Company failed, neglected and/or ignored all his demands for the payment

of his salary for all 3 months mentioned, right up to 28.9.2018, at which point he

deemed himself to be constructively dismissed and duly left his position in the

Company.

The Company’s Case:

31. It was the Company’s view that the Claimant well knew of his underperformance

by way of the Company’s missive of 24.8.2018 (see (*4) above). It was as a result of

this that the Claimant had brought up the issue of the non-payment of his salary; and

subsequently made a fuss about it in order to avoid any disciplinary action that the

Company may have had in its contemplation. As the Claimant had walked out of his

job in this manner the Company could very well not proceed with any action

regarding the performance issues, such as they were.

32. The Claimant well knew that the Company had been facing cash flow problems

which affected the entire Company and its employees. The Claimant never raised

issue or protest of his delayed and non-payment of salaries until he received the

show cause letter of 24.8.2019 (*4). It was only then that he apparently woke up to

the fact and issued his missives of 6.9.2018 (*1), 13.9.2018 (*2) & 19.9.2018 (*3).

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33. This subterfuge employed by the Claimant in his claim of constructive dismissal

must be called out for what it is, the Company declared, and that is as merely a ploy

to get out of the failings that he perpetrated while performing his duties.

34. Further, the Company averred that the Claimant, by the delay in asserting his

grievance in his above said letters to the Company, had not left at an appropriate

time soon after the alleged breach by the Company; and could not assert his now

forfeited rights.

35. Thus, all in all, it was not the non-payment of salaries that was the “main reason”

the Claimant left the Company but as an avoidance of possible disciplinary action

against him, thus not entitling him to any relief by this present action.

36. As to the issue of the Claimant’s salary for July 2018, the Company averred not

that it was not paid but merely that it was delayed.

37. It was contended for the Company that in the circumstances of this case the

Claimant had overreacted and had been hasty in considering himself to have been

constructively dismissed for the reasons alluded to above.

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The Evaluation of the Evidence and the Findings:

38. This Court has to answer the following: -

i) Was there a dismissal?

and (if, in the affirmative)

ii) Was the dismissal with just cause or excuse?

39. As to the first issue, has the Claimant established the factum of dismissal?

40. Having measured the evidence as presented by both parties during the course of

the trial, this Court is inclined towards ruling in favour of the Claimant. There are

twin reasons for this. For a start, reference is drawn to the Company’s unequivocal

and candid admission that the Claimant’s salary for the months of August and

September 2018 remains unpaid to this day; and the second is the Company’s

dithering on the issue of the Claimant’s alleged poor performance after he answered

in writing their allegations.

41. The Claimant did reply to the show cause letter almost immediately after he

received it, i.e. on 29.8.2019; but no further action on the matter was initiated by the

Company right up to the date the Claimant considered himself as constructively

dismissed on 28.9.2019. A good one month, if you please. If anyone was guilty of

dawdling on their rights, it was the Company and not the Claimant.

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42. The Claimant’s view of his position was reinforced by the Company’s action in its

failure to pay the Claimant his July, August and September 2018 salary when it

became due and payable at the end of each of those months.

43. Given these two circumstances taken together, being in a sense ‘a series of

acts’, the Company’s elucidation at trial seemed, more than likely, as afterthoughts.

44. Such being the case, it is the finding of this Court that the Claimant has been

successful in establishing the fact of his constructive dismissal.

45. This Court now turns to the next question: can the dismissal be considered to

have occurred with just cause or excuse?

46. The Company pleaded and attempted to show that the Claimant was a poor

performer but as indicated above this came across as an afterthought.

47. In the circumstances of this case it is the finding of this Court that the unilateral

decision to delay the Claimant’s July 2018 salary, coupled with the complete failure

of the Company to pay the Claimant’s salary for the months of August and

September 2018, when it was due and payable, constitutes a fundamental breach

going to the very root of the employment contract. Pursuant to and by reason of the

aforesaid breaches by the Company the Claimant justly left his employment [see the

case of BSN COMMERCIAL BANK & Anor. v. ARUMUGAM RAMASAMY [2006] 4

ILR 2569]; and lastly that the claimant had not done anything to affirm the contract

after the breaches of the same by the company. The fact that he wrote his letters to

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the Company concerning his salaries when he did, in the circumstances of this case,

does not constitute a delay that may belay his claim; and so be it the ruling of this

Court.

48. Thus, premised on a balance of probabilities and on the whole of the evidence as

presented in this case this Court finds that the dismissal of the Claimant was without

just cause or excuse.

The Remedy:

49. Based on the evidence before the Court it would appear that the Claimant

remained a probationer up to and until the date of his cessation of employment.

Nowhere has it been stated or adduced that the Claimant had been confirmed in his

employment; and there was no cogent evidence to show that the Company had

acted in any way that was consistent to them having confirmed the Claimant in his

position.

50. In K.C. MATHEWS v. KUMPULAN GUTHRIE Sdn. Bhd. [1981] 2 MLJ 320 @

321 Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) quoted with

approval the following passage from the judgement of Das Gupta J. in EXPRESS

NEWSPAPERS Ltd. V. LABOUR COURT & Anor. A.I.R. 1964 S.C. 806: -

“There can, in our opinion, be no doubt about the position in law that an employee

appointed on probation for six months continues as a probationer even after the

period of six months if at the end of the period his service had either not been

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 terminated or he is confirmed. It appears clear to us that without anything more an

appointment on probation for six months gives the employer no right to terminate the

service of an employee before six months had expired – except on the ground of

misconduct or other sufficient reasons in which case even the services of a permanent

employee could be terminated. At the end of the six months period the employer can

either confirm him or terminate his services, because his service is found

unsatisfactory. If no action is taken by the employer either by way of confirmation or

by way of termination, the employee continues to be in service as a probationer.”

[emphasis added].

51. It is an entrenched rule of Industrial Jurisprudence that a probationer has no

substantive right of tenure to hold the position nor does he or she hold a lien upon

the post beyond the agreed contractual probationary period. Authority for this can be

found in the following cases; EQUATORIAL TIMBER MOULDING Sdn. Bhd.,

KUCHING v. JOHN MICHAEL CROSSKEY, KUCHING [1986] 2 ILR 1666 (Award

No. 387 of 1986); SOON SENG INDUSTRIAL PRODUCTS Sdn. Bhd. v. METAL

INDUSRTY EMPLOYEES UNION [1988] 2 ILR 219 (Award No. 227 of 1988); and

EDARAN OTOMOBIL NASIONAL Bhd. v. SAFRI JAUKARANI TIGUAT [1994] 2

ILR 928 (Award No. 422 of 1994).

52. In KHALIAH bte ABBAS v. PESAKA CAPITAL Corp. Sdn. Bhd. [1997] 1 MLJ

376 @ 379 Shaik Daud JCA speaking for the Court of Appeal held: -

“It is our view that an employee on probation enjoys the same rights as a permanent or

confirmed employee and his or her services cannot be terminated without just cause or

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 excuse. The requirement of bone fides is essential in the dismissal of an employee on

probation, but if the dismissal or termination is found to be a colourable exercise of the

power to dismiss or is a result of discrimination or unfair labour practice, the Industrial

Court has the jurisdiction to interfere and to set aside such a dismissal.”

53. See also the case of SMART GLOVE CORPORATION Sdn. Bhd. V.

INDUSTRIAL COURT, MALAYSIA & Anor. [2006] 4 ILR 2697 @ 2705 where Raus

Sharif J. (as His Lordship then was) held: -

“It is well established principle [sic] that a probationer enjoys the same rights as a

permanent or confirmed employee and his service cannot be terminated without just

cause or excuse. Like a confirmed officer, a probationer is also entitled to compensation

when it is found that his service is terminated without just cause or excuse. By s. 30 of the

Act, the amount of compensation to be awarded is within the discretion of the Industrial

Court.”

54. In DORSETT REGENCY HOTEL (M) SDN. BHD. v. ANDREW JAYADAS

JAMES AMBROSE [2003] 2 ILR 740 @ 751 (Award No. 421 of 2003), the learned

Chairman John Louis O ‘Hara (as His Lordship then was) reflected on the passage

quoted above from the case of KHALIAH BTE ABBAS v. PESAKA CAPITAL

CORP. SDN. BHD. (supra) with regard to a reference under section 20 of the Act.

This is what he had to say:

“However Kaliah’s case does not expound the substantive law pertaining to a probationer

but relates to the specific question that if a probationer is to be terminated, it should be

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 within the general purview of s. 20 (3) of the Act in that it should not be without just cause

and excuse. Nevertheless this court must be mindful that there is an intrinsic and material

distinction between employees under probation and confirmed permanent employees. In

the case of Vikay Technology Sdn. Bhd. v Ang Eng Sew [1993] 1 ILR 90 at p. 95 the

learned chairman referred to a passage in Malhotra’s book “The Law of Industrial

Disputes” (11th Edn.[sic] At p. 224) which reads as follows:

“It is well settled law that at the end of the probationary period, it is open to the employer

to continue the employee in his service or not in his discretion, otherwise the distinction

between probationary employment and permanent employment will be wiped out. Even if

on the expiry of the probationary period the work of the employees is satisfactory, it does

not confer any right on them to be confirmed.”

55. At the High Court, Wan Afrah JC (as Her Ladyship then was) in HARTALEGA

SDN. BHD. v. SHAMSUL HISHAM MOHD AINI [2004] 3 CLJ 257 approved the

interpretation of KHALIAH BTE ABBAS v. PESAKA CAPITAL CORP. SDN. BHD.

(supra) by the learned Chairman in DORSETT REGENCY HOTEL (M) SDN. BHD. v

ANDREW JAYADAS JAMES AMBROSE (supra). The Court in Hartalega’s case

further held that: -

“Held:

[1] …..

[2] There should be a distinction between a probationer and a confirmed employee.

Merely bringing the probationer within the ambit of s. 20 of the Act does not

automatically imply that the probationer is elevated to the status of a confirmed

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 employee. This was not the intention of the legislature in enacting s. 20 (3) of the

Act.”

56. Thus, an employee on probation cannot expect to be accorded with the same

status, rights or privileges as a permanent employee.

57. Under the circumstances and in accordance to the authorities that a probationer

has no substantive right of tenure to hold the position nor does he or she hold a lien

upon the post, reinstatement of the Claimant in his former position is not ordered in

this case.

58. In HOTEL JAYA PURI BHD. v. NUHBRW (supra), Salleh Abas J. (as he then

was) held:

“… If there is a legal basis for paying the compensation, the question of the amount of

course is very much a matter of discretion which the Industrial Court is fully empowered

under s. 30 of the Industrial Relations Act to fix.”

59. In NADA PAKAR SDN. BHD. v. RADJA ARITONANG [2001] 3 ILR 58 it was

held:

“The practice of awarding compensation under the usual heads of back wages and

compensation in lieu of reinstatement which is relevant to the confirmed employee on

permanent employment can have no logical basis in the case of a probationer where no

exceptional circumstances exist to justify the court dealing with this matter on the basis

that he is a confirmed employee.”

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60. Following from this the Court is inclined in this case towards ordering a fixed sum

as compensation for the wrong which the Claimant has suffered; whilst taking into

consideration the period of time that the Claimant was engaged by the Company, the

age of the Claimant and the unchallenged fact that he has remained unemployed

ever since his termination of employment. Applying section 30 (5) of the Industrial

Relations Act 1967, I hereby award the sum of RM65,000.00 as fixed compensation

to the Claimant made up as follows:

RM13,000.00 x 5 months = RM65,000.00

The Final Order:

61. This Court therefore, for the reasons stated above, orders the Company to pay

the Claimant, through his Solicitors, the sum of RM65,000.00 only, less statutory

deductions, if any, as compensation within 15 days from the date of the service of

this Award on the Company’s Solicitors.

HANDED DOWN AND DATED this 3rd DAY OF OCTOBER 2019.

-Signed-
(FREDRICK INDRAN X.A. NICHOLAS)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
AT KUALA LUMPUR

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