Kirba Daisy a/p John Das v 1. City-Link Express Sdn Bhd (Permohonan Semakan Kehakiman No. 25-54-03/2015)

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MAHKAMAH PERUSAHAAN MALAYSIA … RESPONDEN-RESPONDEN 2 Grounds of Decision Azizah Nawawi, J: Application [1] This is the Applicant’s application for judicial review seeking the following orders:

That the applicant is granted an order of Certiorari to move into this Honorable Court to quash the Award dated 10.12.2014;

(ii) That the applicant be granted an order of Mandamus to compel the Industrial Court’s Registrar to fix the Industrial Court’s Case for a hearing in front of another Chairman for a determination based on the law;

(iii) Alternatively, a decision which is in favor of the applicant that the applicant was dismissed without just and reasonable excuse and for this thing to be remitted to the Industrial Court so that the proper remedy can be determined; and

(iv) Alternatively, a decision which is in favor of the applicant that he was dismissed without just and reasonable excuse and the proper relief that should be accepted by the Applicant. 3 [2] Having considered the application and the submission of the parties, this court had dismissed the application with costs. The Salient Facts [3] The applicant joined the 1st respondent on 5.2.1990 as a Credit Control Executive. Subsequently she was promoted to the position of General manager on 1.1.2001. During a restructuring exercise on 26.4.2007, the 1st respondent re-designated the applicant to the position of General Manager of Operations to support the Chief Executive Officer of the 1st respondent. [4] A further restructuring exercise was undertaken by the 1st respondent on 21.1.2008 in relation to the Central Region and the Logistics Department and the applicant was asked to head these 2 Departments. This led to one Mr. Steven Chong, the Senior Logistics Manager at the 1strespondent at the material time to report to the applicant. [5] The working relations between the applicant and Mr. Steven Chong deteriorated as can be seen from the numerous exchange of emails between them since 2007. This led to the scuffle between them on 15.4.2008 in the corridor outside the applicant’s office. [6] As a result of the scuffle, both the applicant and Mr. Steven Chong was suspended on 3.6.2008. A domestic inquiry was held jointly against both of them on 5.6.2008 and 6.6.2008 on three (3) 4 charges. Both were found guilty of conducting themselves improperly, unruly and disrespectful in the discharge of their duties thus showing a bad example of managerial leadership to their subordinates. [7] Both were thereafter demoted following the findings of guilt. The applicant was demoted to Senior Manager of the Investigation and Security Department from General Manager of Operations. Mr. Steven Chong was also demoted to the position Manager of Sea Freight Division of City Link Sea and Air Services Sdn Bhd. [8] The applicant appealed against her demotion vide her letter dated 1.7.2008. The management had considered the applicant’s appeal but decided to maintain its decision. [9] The applicant then put the 1st respondent’s company on Notice of its breach of the applicant’s contract of employment, vide a letter dated 7.7.2008. The applicant has stated her reasons and had given the 1st respondent 7 days to rectify its breach by reinstating her to her previous position, failing which, she would deem that she is constructively dismissed. The applicant did not report to the position of Senior Manager – Investigation & Security and considered herself to be constructively dismissed. 5 [10] The applicant then filed a representation under Section 20 of the Industrial Relations Act 1967 to the Industrial Relations Department and the representation was referred to the 2nd respondent for an adjudication. [11] A decision was made by the 2nd respondent (the “Industrial Court”) through the Award dated 10.12.2014 whereby the Industrial Court decided that the applicant has failed, on a balance of probabilities to show that she was constructively dismissed by the 1st respondent’s company and therefore there was no dismissal but the applicant had resigned on her own volition when the applicant refused to report to her new position. The Findings of the Court [12] The Federal Court in Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 has set out the function of the Court in an application for Judicial Review and the correct test to be applied in reviewing findings of fact made by the Industrial Court, to be as follows: “[15] …… Historically, judicial review was only concerned with the decision making process where the impugned decision is flawed on the ground of procedural impropriety. However, over the years, our courts have made inroad into this field of administrative law. Rama Chandran is the mother of 6 all those cases. The Federal Court in a landmark decision has held that the decision of inferior tribunal may be reviewed on the grounds of "illegality", "irrationality" and possibly "proportionality" which permits the courts to scrutinize the decision not only for process but also for substance. It allowed the courts to go into the merit of the matter. Thus, the distinction between review and appeal no longer holds. [16] The Rama Chandran decision has been regarded or interpreted as giving the reviewing court a license to review without restrain decisions for substance even when the said decision is based on finding of facts. However, post Rama Chandran cases have applied some brakes to the courts' liberal approach in Rama Chandran. The Federal Court in the case of Kumpulan Peransang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 after affirming the Rama Chandran decision held that there may be cases in which for reason of public policy, national interest, public safety or national security the principle in Rama Chandran may be wholly inappropriate. [17] The Federal Court, in Petroliam NasionalBhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625, again held that the reviewing court may scrutinise a decision on its 7 merits but only in the most appropriate of cases and not every case is amenable to the Rama Chandran approach. Further, it was held that a reviewing judge ought not to disturb findings of the Industrial Court unless they were grounded on illegality or plain irrationality, even where the reviewing judge might not have come to the same conclusion. [18] The Court of Appeal has in a number of cases held that where finding of facts by the Industrial Court are based on the credibility of witnesses, those findings should not be reviewed (see William Jacks & Co (M) Sdn BHd v. S Balasingam [1997] 3 CLJ 235, National Union of Plantation Workers v. Kumpulan Jerai Sdn Bhd (Rengam) [2001] 1 CLJ 681, Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9, Colgate Palmolive (M) Sdn Bhd v. Yap Kok Foong & Another [2001] 3 CLJ 9. However, there are exceptions to this restrictive principle where:

reliance upon an erroneous factual conclusion may itself offend against the principle of legality and rationality, or

there is no evidence to support the conclusion reached. 8 (See Swedish Motor Assemblies Sdn Bhd v. Hj. MdIson Baba [1998] 3 CLJ 288 ]. [19] It is clear from the above authorities that the scope and ambit of Rama Chandran had been clearly explained and clarified. Decided cases cited above have also clearly established that where the facts do not support the conclusion arrived at by the Industrial Court, or where the findings of the Industrial Court had been arrived at by taking into consideration irrelevant matters, and had failed to consider relevant matters into consideration, such findings are always amendable to judicial review”. (emphasis added) [13] In the present case, the onus is on the applicant to establish constructive dismissal in the Industrial Court. [14] In Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd [1988] 1 CLJ (Rep) 298 where at p. 301, Salleh Abas LP explained the meaning of “constructive dismissal” as follows: “We think that the word "dismissal" in this section should be interpreted with reference to the common law principle. Thus it would be a dismissal if an employer is guilty of a breach which goes to the root of the contract or if he has evinced an intention no longer to be bound by 9 it. In such situation the employee is entitled to regard the contract as terminated and himself as being dismissed. (See Bouzourou v. The Ottoman Bank [1930] AC 271 and Donovan v. Invicta Airways Ltd. [1970] Lloyd's LR 486). In Bouzourou's case an employee would have been entitled, according to the Privy Council, to regard himself as being dismissed if his transfer from one province to another province rendered him exposed to an immediately threatening danger of violence or disease to his person. And in Donovan 's case the Court of Appeal held that when the conduct of the employer was such that it rendered the continuance of the employee's service impossible, the latter was entitled to treat the contract as at end and to obtain damages for wrongful dismissal.” (emphasis added) [15] In Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 19, the Court of Appeal described “constructive dismissal” 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: 10 “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 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 victimization 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.” [16] The High Court in Bayer (M) Sdn Bhd v. Anwar Abd Rahim [1996] 2 CLJ 49 has set out the four conditions as follows which have to be met by an employee to be able to successfully claim for constructive dismissal: 11

there must be a breach of contract by the employer;

(ii) the breach must be sufficiently important to justify the employee resigning;

(iii) the employee must leave in response to the breach and not for any other unconnected reason; and

(iv) he must not occasion any undue delay in terminating the contract, otherwise he will be deemed to have waived the breach and agreed to vary the contract. Where the employee leaves in circumstances where these conditions are not met, he will be held to have resigned and there will be no dismissal within the meaning of the Act. [17] The Court of Appeal in Southern Investment Bank Bhd/Southern Bank & Anor v. Yap Fat & Anor [2017] 8 CLJ 159, with regards to constructive dismissal held as follows: “[18] We agreed with the submission of learned counsel for the appellants that in the overall conspectus of evidence adduced in this instant appeal, the constructive dismissal contended for by the first respondent was devoid of substance, and he failed to discharge the onus on him to prove that there was any breach of the employment contract by the appellant, let 12 alone one which goes to the root of the contract justifying the resignation of the first respondent. [19] It is trite that the employee must prove that the employer's action amounted to a fundamental breach of contract or the law. In Moo Ng v. Kiwi Products Sdn Bhd, Johor & Anor [1998]1 3 CLJ 475, the court stated: In a broad sense constructive dismissal occurs when an employer repudiates a contract of employment. The repudiation may take the form of a breach, anticipatory breach or notice of intention. It may be express or implied and it must go to the substance of the contract. If an employee asserts that he has been constructively dismissed, he must establish that there has been conduct on the part of the employer which breaches an express or implied term of the contract of employment going to the very root of the contract. [20] It is important, therefore, to be cautious in adopting a wide interpretation of what conduct by an employer that would constitute constructive dismissal because of the danger of inviting a flood of employees who resign and then resile and claim to be constructively dismissed. The paramount consideration is the requirement that the 13 breach must be so serious which goes to the root of the contract and the employee cannot be expected to continue with the contractual arrangement.” [18] In her letter dated 7.7.2008, the applicant had given notice of a breach of the contract of employment to the 1st respondent, which inter alia, reads: “I wish to place on record that the charges thrown at me, the proceedings in the Domestic Inquiry, the decision of the Panel and the subsequent demotion of my position in the Company as punishment are serious breaches of the terms of my contract of employment. I wish to put you on NOTICE that you are to reinstate me to my previous position as the General Manager within seven (7) days from the date hereof, failing which I shall go on constructive dismissal.” [19] In the Award of the Industrial Court, the court has made the following findings: “23. After going through the evidences and submissions of the parties, this Court finds that it is within the rights of the Company to take disciplinary actions against both the Claimant and Mr. Chong for their conduct. There was indeed a strained relationship which culminates in the scuffle on 15.4.2008 as shown in the exchange of the 14 e-mails. The Court agrees with the Company’s submissions that the incident involving the log book was a result of the Claimant’s finding fault with Mr. Chong. The Company’s management was aware and allowed Mr. Chong and his staff to sell the pallets and use the proceeds for their social activities like organising dinners in what they called a fun club”. The conducts of both the Claimant and Mr. Chong are not just unbecoming of their position and shows bad managerial leadership but also dragged other employees and the management into their personal dispute. No company can tolerate such a situation which clearly cause disharmony in the work place. Thus this Court agrees with the Company’s submission that the Company did not act unreasonably when it decided to discipline both the Claimant and Mr. Chong.

…..

In any event, it has not been shown in this trial itself why the conduct of the Company in initiating the disciplinary proceedings and demoting and transferring the Claimant was unjustified, or the conduct of the Company breach any fundamental terms of the contract of employment. It was the Claimant’s own conduct that led to the disciplinary proceedings and demotions and 15 transfer, which resulted in the Claimant claiming constructive dismissal.” [20] Having considered the application and the Award, I am of the considered opinion that the Industrial Court has made a finding of facts which this court should not readily interfere with. In Menara Pan Global Sdn Bhd v. Arokianathan a/l Sivapiragasam [2006] 3 MLJ 49, the Court of Appeal held that: “(vi) the High Court will not interfere with the findings of facts by the Industrial Court unless the same are completely unsupported by evidence and further, will not interfere merely because it may come to a different conclusions of fact on the basis of the same evidence; weighing and assessing the evidence of the witnesses is the function of the Industrial Court and not that of the High Court.” [21] The Industrial Court has decided that from the evidence, the conduct of the applicant warranted the disciplinary action against her, as well as Mr. Chong over the scuffle. Having made a finding of guilt against the applicant over the misconduct, it is within the powers of the 1st respondent to demote her. The same cannot be said to be a claim for constructive dismissal as it cannot be said that the 1st respondent had acted in breach of a fundamental term of the contract of employment. 16 [22] In the premise, I find no merit in the application and the same is dismissed with costs. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 24 May 2018 For the Applicant : Mohan Ramakrishnan Messrs Ramakrishnan & Assicuates Petaling Jaya, Selangor D.E. For the 2nd Respondent : MithranPoobalan Messrs Sothi & Ang Kuala Lumpur. Cases referred:

Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8

Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd [1988] 1 CLJ (Rep) 298.

Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 19.

Bayer (M) Sdn Bhd v. Anwar Abd Rahim [1996] 2 CLJ 49.

Southern Investment Bank Bhd/Southern Bank & Anor v. Yap Fat & Anor [2017] 8 CLJ 159. 17

Menara Pan Global Sdn Bhd v. Arokianathan a/l Sivapiragasam [2006] 3 MLJ 49.