Foo Jin Keat v Mahkamah Perusahaan Malaysia (PA-16A-10-12/2023)

1.

MSM PRAI BERHAD (3753-D) … RESPONDEN-RESPONDEN (Dalam Perkara Mengenai Mahkamah Perusahaan Malaysia di Pulau Pinang Mahkamah Perusahaan Kes No.: 18/4-2996/21 Antara Foo Jin Keat … Pihak yang Menuntut Dan MSM Prai Berhad … Pihak Syarikat) GROUND OF JUDGEMENT A. INTRODUCTION [1] This is an appeal by the Appellant/ Claimant against the decision of the Industrial Court of Pulau Pinang which was delivered on 13.12.2024, dismissing the Appellant/Claimant’s claim against the Respondent/the Company for constructive dismissal. [2] For ease of reference, the parties will be referred to as the “Claimant" and the “Company” in this ground of judgement respectively. B. BACKGROUND [3] The Claimant was at all material times the Senior Sales Manager of the Company and claimed that he was constructively dismissed on 29.3.2021. However, the Company denied that the Claimant was at no material time was dismissed from employment, nor did the Company has acted in breach of the terms and conditions of the Claimant’s contract of employment. According to the Company, it was the Claimant who had on his own accord, abandoned his employment with the Company effective on 29.3.2021. [4] The Claimant’s employment with the Company commenced pursuant to his employment with Kilang Gula Felda Perlis Sdn. Bhd. (which was thereafter renamed as MSM Perlis Sdn. Bhd. as its Acting Assistant Manager vide Appointment Letter dated 17.1.2004. On 29.2.2016, the Claimant was promoted to the position of Senior Manager – Sales of MSM Perlis. [5] In light of a reorganisation exercise which the MSM Group had embarked on at the material time (involving, inter alia, MSM Perlis and the Company), the MSM Group had decided to entirely dispose MSM Perlis. Since the sales function in MSM Perlis was still required and was an ongoing function in the Company, the Claimant was offered the opportunity for a cost-centre transfer to the Company and accepted by the Claimant without any objections. The Claimant’s employment with the Company was effective from 1st March 2021. [6] As the Claimant had elected to accept the aforesaid transfer, the Claimant was transferred to the Company from MSM Perlis without any changes to the terms and conditions of his employment and his work location in Chuping, Perlis. The Claimant’s last drawn basic salary is RM8550.00. His duties and responsibilities as the Sales Manager required him to assist the group Head of the Sales Department that covered sales activities involving wholesales throughout the whole Malaysia. [7] Commencing from 1st March 2021, the Claimant alleged that he was ignored and neglected by the Company especially by his new direct Head of Department in the Sales Team; En. Tengku Haidar (COW 2) who was the Company Head of Group Commercial. Among the neglect as alleged by the Claimant include the followings: - [a] The Claimant was not invited to participate in any of the sales meeting organised by the Head of Department (HOD) as was the practice prior to the transfer of entity. The activities and discussions of the sales department among the sales team were only made by the HOD with the newly employed Sales Manager; Sunilinder Singh together with other sales executives. [b] The Claimant’s several initiatives to call Tengku Haidar to arrange for a meeting to discuss the direction of sales team were never attended to. The Claimant’s also never received any invitation from Sunilinder Singh to have discussions over the work related to the Sales Department. Neither he was notified by anyone from HQ or his superior to handover his job/portfolio to Sunilinder Singh. [c] Later, the Claimant was informed by the customers of the Company that they were notified by the Company representatives to direct deal with the specific sales representative and not the Claimant as his role has been replaced by new Senior Sale Manager. [d] As of 15.3.2021, all other sales executives in the Sales Department had been informed with the new sales demarcation area and their new task under the new head of sales; Tengku Haidar and the new Sales Manager Sunilinder Singh except for the Claimant. [8] On 29.3.2021, the Claimant attended a meeting with Tengku Haidar and Sunilinder Singh and was informed that all sales responsibilities of wholesaler will now be handled by Sunilinder Singh and the Claimant was instructed only to handle the sales activities which were restricted to East Malaysia only. He was never informed by anyone prior to the changes until the meeting on 29.3.2021. [9] As the Claimant believes it was a clear case of the Company attempting to drive him out of his employment, the Claimant left the meeting room and tendered his notice to the Company that he had been constructively dismissed by the Company without reasons and just cause. C. THE CLAIMANT’S SUBMISSION [10] The learned

had a misconception that the Claimant was claiming constructive dismissal on alleged transfer when the issue was that his position was taken over by Sunilinder Singh. The IC had erred when failing to appreciate that the job scope of the Claimant had been taken over by Sunilinder Singh and he was confined to a smaller segment in east Malaysia when he was in the past responsible for the whole Malaysia. [11] The central figure in this dispute is Sunilinder Singh who had taken over the Claimant’s position while he was still in employment. However, the IC had erred when failed to call Sunilinder Singh to testify. This is a grave error of law which necessitates appellate intervention. Not only that, the IC also had erred in finding that the Company retained the prerogative to appoint employees to replace the Claimant while the evidence of the Claimant that Sunilinder Singh had replaced his without his knowledge was never challenged nor rebutted. [12] The Claimant also submitted that IC had erred in law and in fact by not appreciating the evidence that despite the Claimant handling all the sectors previously, he was left out in the cold and no tasks were assigned to him. Neither was he included in any of the meetings. In fact, he had to beg to be invited to the meetings but to no avail. [13] The learned Chairman of IC had erred in law and in fact had committed many appealable errors in handing down the award. This is despite the Claimant having proven his case on balance of probabilities and that the Company had failed to rebut his case. The Claimant therefore prays that this appeal to be allowed with cost. D. THE COMPANY’S SUBMISSION [14] The Claimant was at no material time dismissed from employment, nor did the Company act in breach of the terms and conditions of the Claimant’s employment contract but it was the Claimant who had on his own accord, abandoned his employment with the Company effective 29.3.2021. [15] Upon receipt of the Letter Claiming Constructive Dismissal, the Company had vide letter dated 1.4.2021 responded to the Claimant’s claim but the Claimant maintained his allegations against the Company and informed the Company that Form P1 had been filed by him at the Industrial Relations Department (Perlis Branch) on 1.4.2021. [16] Flowing from that both parties had attended a conciliation proceeding and had entered into a Memorandum of Agreement dated 22.4.2021 with the following terms: - [a] The Company agrees for the Claimant to return to his original position as Senior Manager – Sales with the same terms and conditions of employment without any loss of seniority. [b] The Claimant is required to report to work at the Company’s premises in Chuping, Perlis on 23.4.2021 at 8.00 a.m. [c] The Company is to pay the Claimant’s backwages from 29.3.2021 until 22.4.2021 (despite the Company never suspending the Claimant at any material time as well as the fact that he continued to enjoy all his employment benefits).’ [d] If the Claimant fails to report for duty on the scheduled time and date, the Claimant is deemed to have rejected the offer to return to the Company. [17] Despite the Company’s efforts to address the Claimant grievances, on 23.4.2021, the Claimant had failed and/or refused to report for duty and further did not entertain any phone calls from the Company to his mobile phone numbers in the Company’s record. [18] In light of the above, the Company deemed the Claimant to no longer have any intention to continue in the Claimant’s employment and that he had abandoned his employment with the Company. Vide letter dated 27.4.2021, the Company had notified the Industrial Relation Department inter alia of the Claimant’s failure to report to work as agreed in the Memorandum of Agreement. [19] Vide Abandonment of Employment Letter dated 30.4.2021 from the Company to the Claimant, the Company had also put on record, amongst others, that the Claimant was deemed to have rejected the agreed Memorandum of Agreement and had henceforth abandoned his employment with the Company. E. INDUSTRIAL COURT DECISION [20] Vide the Award, the learned Chairman of the IC had arrived at the conclusion, inter alia, that the Claimant had failed to establish the breach of his employment contract by the Company and therefore dismissed the Claimant’s claim against the Company, as follows: “After having considered all the evidence led, the pleadings filed and the written submissions of the parties and keeping in mind Section 30(5) of Act 177 which behoves upon this Court to act according to equity, good conscience and the substantial merits of the case without regard to technicality and legal form, it is the Court’s finding that the Claimant has failed to prove on a balance of probability that the Company had dismissed him. The Court finds that the Claimant has failed to prove that the Company had breached the contract it had with the Claimant or that the Company was guilty of a series of fundamental breaches going to the root of the contract. From the evidence gathered from the contents of the emails dated 24.3.2021 (COB-2 p. 6, 7, 8) and the Company’s letter dated 1.4.2021 (COB-1 p. 15) which was issued to the Claimant by COW-1 instructing the Claimant’s return to work, this Court is satisfied that the Company has not in any way evinced an intention to no longer be bound by the contract of employment between the Claimant and the Company. (See Anwar Abdul Rahim v Bayer (M) Sdn. Bhd. [1998] 2 CLJ 197). In the upshot, the claim is hereby dismissed.” F. ANALYSIS AND DECISION [21] In making decision, I am guided by the principle in the case of Lee Ing Chin & Ors v. Gan Yook Chin & Anor. [2003] 2 CLJ 19 where the court has decided that as follows: - “Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But an appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence. It is, we think appropriate that we say what judicial appreciation of evidence involves. [22] In the case of Murugan v Lew Chu Cheong [1980] 2 MLJ 139, the court held as follows: - “In so far as it concerns this appeal it is abundantly clear that the learned trial Judge had made a thorough and complete analysis of all the material evidence available before he made specific findings of fact and we are satisfied that he drew proper inferences of fact and had made appropriate assessment of the witnesses's credibility. The appellant has failed, in our view, to establish that there was any error of fact or law or that there was a misdirection of himself by the Judge to warrant a revision of his decision. [23] Upon hearing submission of both parties, I found that the learned Chairman of the IC had made a thorough analysis of all material evidence available before him prior to making his finding in the Award. I also found no ground whatsoever to justify this court to interfere the decision of the learned Chairman of the IC. [24] In making decision, I am also referring to the case of Court of Appeal in Anwar Abdul Rahim v Bayer (M) Sdn Bhd [1998] 2 CLJ 197 (“Bayer case”), wherein the court decreed 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. [25] In this present appeal before me, I must say that the learned Chairman could not be said to have erred in law and/or fact in dismissing the Claimant’s claim of unfair dismissal against the Company as the Claimant had, based on all the evidence and facts produced before at the Industrial Court, indeed failed to satisfy the contract test in proving that the Company had acted in breach of any terms and/or conditions of his employment contract to entitle him to treat himself as constructively dismissed by the Company. [26] I am of the opinion that the Claimant cannot be said as has been constructively dismissed by the Company when the Claimant himself had on his own accord, abandoned his employment with the Company. Memorandum of Agreement dated 22.4.2021 has been entered to by both parties for the purpose for the Claimant to return to his original position but this was disregard by the Claimant himself. Therefore, I found it unjustified to conclude that the Claimant had been constructively dismissed. [27] Based on the above reasons, I dismissed the Claimant’s appeal with cost RM5,000.00 to be paid by the Claimant to the Company. SGD (ROZANA BINTI ALI YUSOFF) Judge High Court of Penang Dated 6th January 2024 Counsel Dominic Selvam (Messrs Dominic Pragasam Tan & Co.) for the Appellant. T. Thavalingam, Farah Dini Zaini (Messrs T. Thavalingam & Co.) for the Respondent.