weeks from 26.08.2015 to 08.09.2015, for which he has served out his suspension period without any protest. [60] Having served out the entire length of suspension without protest, it is my view that the Applicant cannot seek to impugn historical issues using a constructive dismissal on a Transfer Order as a vehicle thereof. [61] The Industrial Court had also correctly applied the Federal Court case of Ngeow Voon Yean (supra). [62] In Ngeow Voon Yean (supra) the Federal Court pronounced upon the principles of law which apply to compliance with superior instructions. It is well settled that once an instruction is issued, if that instruction is lawful, the employee's duty is to comply. There is no exception to this rule on the basis of manifestly wrong, unreasonable and/or unfavourable. [63] Reverting to the facts in the present case and applying the principle of the Ngeow Voon Yean (supra) it is the duty of the Applicant to report to work at the Penang Branch regardless of the view he has pertaining to the Transfer Order. However, the Applicant chose not to comply with the Order. Neither did he raise his concern to his superior pertaining to his Transfer Order. [64] In fact, I find that the Applicant had sat through the period of his Suspension Order, and the period where he was placed on garden leave. He then walked out of his employment by claiming constructive dismissal at the very last day of his garden leave period i.e. 30.09.2015. [65] In this scenario, it is my view that it is perverse for the Applicant to claim constructive dismissal for his own conduct of abandoning his employment. S/N 0P810sNyN0imBSpcrTuuyg 25 | P a g e [66] All in all, in view of the reasons above stated, I find that it is reasonable for the Industrial Court to conclude that the First Respondent had not acted in contrary to the Applicant's terms of employment. On the facts, the Applicant's transfer was made bona fide pursuant to Clause 22 of his terms of employment. [67] I also find that the purpose of the transfer has also been expressly stated clearly i.e. to overcome a position of disharmony between the Applicant and his superior and to use the Applicant's IT skill sets to perform the functions in Penang Branch, [68] The Applicant was at ail material unable to produce a single strand of evidence to prove that the First Respondent has acted against him to the extent which amounts to a fundamental breach in contract. [69] The learned Chairlady of the Industrial Court has heard the evidence had made a finding that the Applicant had failed to discharge the onus of proving that he was constructively dismissed and had accepted the version of the First Respondent that the transfer of the Applicant was honest and bona fide. [70] Based on the findings of the learned Chairlady above, it clearly shows that she had assessed all the facts and documents tendered before her and had made an inference on the conduct of the Applicant before concluding that the Applicant was not constructively dismissed by the First Respondent. [71] Further, I am of the view the learned Chairlady being faced with two conflicting versions of facts is entitled to ascertain which version was more probable and arrive at a specific finding of fact. [72] The learned Chairlady has all the relevant and contemporaneous documents i.e. witnesses' statements etc., to draw a reasonable inference from them. [73] Therefore, I am of the opinion that the learned Chairlady is entitled to affirm which of the two stories is the true version because the [earned Chairlady had the opportunity of seeing and hearing the witness and had the opportunity to see the demeanor of the witness and accepted the evidence adduced by the First Respondent as credible. S/N 0P810sNyN0imBSpcrTuuyg 26 | P a g e [74] The finding of facts of the Industrial Court will only be disturbed by this court when the learned Chairlady was wrong in the evaluation of the evidence. It is for the Applicant to establish that there was a misdirection by the learned Chairlady to warrant interference by this court. Unfortunately, the Applicant has not demonstrated any such errors in the facts of this case to warrant appellate interference. [75] I view the learned Chairlady's findings as rational and cogent and there are no flaws in its reasoning or the conclusions therein. Based on the evidence before the Industrial Court, it cannot be said that the findings of the learned Chairlady are irrational or perverse. [76] It is evident from the above, that the Applicant's complaints concerning the Award are largely premised on findings of fact by the Industrial Court. It is trite that this Court sitting in a supervisory capacity will not interfere with findings of the Industrial Court, more so when these findings relate to findings of credibility and evaluation of documentary and oral testimony, which are matters which fall wholly within the purview of the functions of the Industrial Court. [77] The Court of Appeal in William Jacks & Co (M) Sdn Bhd v. S Balasingam [1996] 2 MLR A 678; [2000] 7 MLJ 1; [1997] 3 AMR 2585; [1996] 1 MELR 312; [1997] 3 CLJ 235 held that a court cannot utilize certiorari proceedings as a cloak to entertain an appeal against findings of fact. The Court of Appeal in its judgment further held as follows:- "The question at the end of the day is whether a reasonable tribunal similarly circumstanced would have come to a like decision on the facts before it. However widely understood the proposition in Rama Chandran and Amanah Butler (supra) may be, it does not include the review, in certiorari proceedings, of findings of fact based on the credibility of witnesses." (emphasis added) [78] I am of the view that the finding of the learned Chairlady is based on the totality of the evidence adduced before her. To me, the learned Chairlady had scrutinized the evidence of both parties and applied the law to the facts and made a reasonable conclusion. It is not the task of this court to scrutinize every piece of evidence adduced before the Industrial Court and to make another finding of fact. That task of fact-finding fall within the jurisdiction of the Industrial Court. S/N 0P810sNyN0imBSpcrTuuyg 27 | P a g e Conclusion [79] Premised on the aforesaid reasons, I am of the view that the decision of the Second Respondent is not tainted with any errors of law, irrationality and/or unreasonableness that warrants the intervention of this court. [80] As such, the Applicant's application for judicial review is dismissed with costs of RMS,000.00 subject to the allocator fee. Our Decision [19] The relevant question in the appeal here is whether the Appellant had established on a balance of probabilities that he had been constructively dismissed. The Industrial Court concluded that the Appellant had failed to prove that he had been constructively dismissed – that the Employer had conducted itself in such a manner as to evince an intention to be no longer bound by the terms of the contract of employment or that the Employer had committed a fundamental breach of the contract of employment which went to the root of the contract. Based on the evidence that was adduced, the Industrial Court concluded that the Employer had not acted contrary to the Appellant's terms of employment. [20] On the facts, the Industrial Court found that the Appellant's transfer was made bona fide pursuant to Clause 22 of his terms of employment. The purpose of the transfer had also been expressly stated clearly i.e. to overcome a position of disharmony between the Appellant and his superior (Ms. Lai). S/N 0P810sNyN0imBSpcrTuuyg 28 | P a g e [21] No doubt the fact that the Employer had an operational need for the Appellant's IT skill set to perform the functions in the Penang Dam project was only brought up in the course of the evidence that was given by Azhani but that of itself, does not ipso facto mean that it was an afterthought or that the need for a person of the Appellant’s skill set did not exist, or that the transfer was mala fide. That is a matter which is based on the totality of the evidence and which has to be evaluated and determined by the Industrial Court. [22] In the present case, the Industrial Court examined all the evidence and concluded that the transfer was bona fide. The learned Chairperson of the Industrial Court heard the evidence and had made a finding that the Appellant had failed to discharge the onus of proving that he was constructively dismissed. The Industrial Court accepted the version of the Employer that the transfer of the Appellant was honest and bona fide. [23] In dismissing the Judicial Review application, the High Court was satisfied that the Industrial Court had correctly and fairly assessed and evaluated all the facts and documents tendered and had made an inference on the conduct of the Appellant before concluding that the Appellant was not constructively dismissed by the Employer. S/N 0P810sNyN0imBSpcrTuuyg 29 | P a g e [24] It is imperative to recall that just before the transfer order, the Appellant had been found guilty of insubordination and punished with 2 weeks of suspension. The misconduct of insubordination is a grave matter and is not a matter which is to be taken lightly as it can have a corrosive effect on discipline at the workplace, particularly when the insubordination emanates from a senior person such as the Appellant. There is hardly any doubt that, in light of the Domestic Inquiry Panel’s finding that the Appellant had committed the misconduct of insubordination, the Employer decided to transfer him out of his current workplace and placed him in the Dam project in Penang. [25] The transfer order was clear and unambiguous that his position remained intact, and although in the Job Description he was said to be in charge of the IT HelpDesk Support, the Appellant nevertheless conceded during cross-examination that there was no “functional demotion” per the transfer order. [26] But, the Appellant contended that the transfer order was a manifestation of a “double punishment”. We do not see how the transfer order can amount to double punishment when the Employer had a contractual right to transfer the Appellant and there was no functional demotion and more so when there was disharmony and conflict at the workplace between the Appellant and his superior, Ms. Lai. S/N 0P810sNyN0imBSpcrTuuyg 30 | P a g e [27] It is clear and obvious that the Appellant was dissatisfied that his complaints against Ms. Lai did not yield the desired results and the Employer did not act against Ms. Lai. But then the Employer’s position is that the Appellant’s complaints had been investigated and there was nothing to be done against Ms. Lai vis-à-vis his complaints. In fact, during cross-examination he conceded that the fact that no action had been taken against Ms. Lai despite his complaints, was one of his building blocks for the complaint of constructive dismissal. Hence, any which way that one looks at the matter, it is quite clear that the Appellant had made up his mind that he was not going to comply with the transfer order. [28] Indeed, his refusal to go on transfer is of itself another manifestation of insubordination. It is also relevant to note that the Appellant had made his own quantitative assessment of the worth or value of the job in Penang, without even making any inquiries with the person in charge of the project in Penang when he had the opportunity to do so. His answer to the question as to why he had not even made any inquiries was that the person in charge (Ong Swee Tau - Project Manager) was only an engineer. [29] It is relevant to note that the Appellant had 3 weeks to prepare for the relocation to Penang. He had enough time to make the requisite inquiries. Yet he made no inquiries. But he nevertheless seemed to have formed his own opinion about the skill set required for the task in Penang. S/N 0P810sNyN0imBSpcrTuuyg 31 | P a g e [30] During cross-examination the Appellant said that the job in Penang could be done by a fresh graduate. This implies that the IT skill set of a senior IT person, such as the Appellant was not required. To the contrary, the Employer’s evidence was that there was a real need for person with the Appellant’s IT skill set to be based in Penang as this was a RM600 Million project which was being undertaken and that the IT aspects had to be undertaken by a competent IT person. [31] As far as the Employer was concerned, the Appellant was the right person to handle the job, quite apart from the fact that they also had to solve the disharmony at the workplace. The Employer’s evidence was that they needed a more organised IT protocol to be put in place at the Dam project. They just could not take a risk by engaging a fresh graduate to do the job. We think that it was rather reckless and cavalier for the Appellant to suggest that the task could be done by a fresh graduate, particularly given the value of the project, and when he did not know anything about the project. Indeed, it is totally within the management prerogative of the Employer to decide the best person who is suited for the job at the Penang Dam project. S/N 0P810sNyN0imBSpcrTuuyg 32 | P a g e [32] We do not see how the Appellant, who had admitted that there was no functional demotion, could dictate that a fresh graduate could do the job which he was asked to do. It bears repeating that the transfer of the Appellant was made pursuant to the Appellant's express contractual terms i.e. under clause 22 of the Appellant's Terms and Conditions of Employment. In order for the Industrial Court to impugn the exercise of this contractual right, it had to be satisfied that the exercise of this right was mala fide. [33] The Industrial Court however was satisfied that the transfer was bona fide. This can be seen in paragraphs 37, 42 and 44 of the Award. Here, it is clear beyond peradventure that there was no demotion. In fact, during cross-examination the Appellant had agreed that he had exaggerated the evidence in respect of the number of IT users under his portfolio. [34] Thus, in light of the Appellant’s inability to establish that the transfer was a demotion, he latched onto the bald and unsubstantiated assertion that the transfer was not bona fide. [35] On the issue of job description or the importance of the job that was to be undertaken in the Dam project, we think that it is necessary to refer to the supplementary witness statement of Azhani, who gave the following evidence to highlight the need for an IT person at the Dam project. Azhani’s evidence debunks the suggestion that the transfer was a demotion. Q2: The Claimant says that he went there in 2011 and set up the IT in Penang. To his understanding all it needed was some 8 computers to be connected to printers and accessories, it could be done in one overnight visit. What is your position? S/N 0P810sNyN0imBSpcrTuuyg 33 | P a g e A2: I cannot verify if that was what he did in 2011. But the Company's IT needs in 2015 is completely different from 2011. In 2014 the Project was entering a phase where IT needs were growing. They were relying on the one Assistant Construction Manager - Mr Venthan and vendors in an ad hoc way. The project needed a higher level of IT support. Q3: What do you mean by IT support? Why is it different form before? A3: A function does not become IT controlled just like that. You need an IT personnel to understand what is going on, what is needed and to then propose a solution and get a budget for it. At that time, many things were being done in a very crude way. E.g. lab results, soil testing etc were being saved on thumb drives. JDE Software was not yet being used. The Accounting and Admin staff were performing accounting duties manually, using Excel Spreadsheet, manual payment vouchers and scanning documents into thumb drives or photocopying documents. So the next level of processing of data could not be done, Oracle systems were not being used yet for centralized data etc. Likewise the process of transferring data back to HQ, there are other systems that can be used if there is proper IT support such as the Virtual Private Network (VPN) etc. All this was not needed in 2011, but the Company was progressing So IT tools were becoming more important. So we needed a person to go to Penang and introduce tools to fit the operating requirements. Q4: The Claimant says that he hardly got Inquiries for problems to solve in Penang? Does that mean there is no role for him? A4: I do not agree with his assessment. You cannot compare the situation in the past and expect the Company to just continue that way. If we do not enhance IT usage and tools in Penang it will remain backward and basic. It is like automation in the factory. Somebody needs to understand the production and see what automation is required and how. If you do nothing then you are just maintaining the old system. We needed to enhance it like what we were doing in the HQ. S/N 0P810sNyN0imBSpcrTuuyg 34 | P a g e This is why it is wrong to assess 2015 requirements based on whatever start up experience he had in 2011. Q5: The Claimant says that all this is not written into the Job Description or in the Letter of Transfer. What do you say about that? A5: That is correct. We do not write up a transfer in this kind of detail and do not encourage a work to rule culture. The transfer is clear and the Job Description is clear. He should go to Penang meet his superior, Mr Ong Swee Tau - the Site Agent or Head of the Project and then start to understand the operations in Penang and then make the necessary proposals. Yang Arif. It is like HR and training. We cannot sit outside and say that nobody made any request. They will not even know what to request, We need to visit the operation, understand the requirements and then make proposals. Q6: The Claimant says that all this can be done by a fresh graduate or an out sourced vendor? Why didn't you look for that option? A6: I do not know the basis of his assessment. A fresh graduate who does not even understand our HQ systems or the way our Company works cannot just be planted into Penang and expected to take up a full responsibility. Q7: The Claimant points out that his function is defined as IT Helpdesk. Does that indicate a demotion? A7: No. IT is a service provider unit. The project team are users. So this a term we use for them at the Project site. It does not change the rank of the Claimant. Sometimes we use terms like this to sound friendly and so that people in the project would not feel intimidated. We have job titles such as Site Agent and Liaison Officer at the Project site. The Site Agent functions as the Head of Project or the Project Director and the Liaison Officer performs project administration, accounting and project coordination duties similar to an Office Manager role. Moreover, we have stated in his transfer letter dated 9 September 2015 that his position and other terms and conditions of employment shall remain. S/N 0P810sNyN0imBSpcrTuuyg 35 | P a g e [36] It is relevant and imperative to emphasize that the Employer was completely transparent and made it quite clear that the Appellant was being transferred due to his insubordinate behaviour (which the Employer had tolerated for about 2 years). As a matter of industrial jurisprudence, it is not the law that an employee who has been punished for the misconduct of being insubordinate cannot be transferred out to enable the employer to re-establish harmony at the workplace. [37] Indeed, for an employee to say that he cannot be transferred would be to place that employee in a somewhat exalted or privileged position when there is no such privilege or position. It all depends on the decision of management as to how they should handle the delicate issue of workplace disharmony or the risk of its perpetuation by the continued presence of the recalcitrant employee who has been found guilty of insubordination. [38] On this note, it is relevant to mention that in industrial jurisprudence, a transfer which is aimed at resolving a disharmonious workplace environment is not one which should be impugned on the grounds that it is, per se, sinister. See: Decision of the Industrial Court in Pan Global Insurance Bhd v. Habibah Mohd Zaman [2000] 2 ILR 238 (IC). We are aware that this decision was quashed by the High Court. However, the Court of Appeal allowed the employer’s appeal and reinstated the Industrial Court’s award. (See: [2004] 3 ILR p.1 (IC)) S/N 0P810sNyN0imBSpcrTuuyg 36 | P a g e [39] It was also argued on behalf of the Appellant that the Employer did not give the Appellant time to “repent”. But as rightly pointed out by counsel for the Employer, that was not the Appellant’s complaint per his letter dated 30 September 2015 or his pleaded case. In any event, the notion that he needed a chance to repent is quite untenable as he made it quite clear during cross-examination that the fact that the Employer did not pursue any action against Ms. Lai was one of his strands of complaint for constructive dismissal. [40] At any rate, we fail to see how this can even be a ground for constructive dismissal as the issue is one of disharmony caused by the Appellant’s insubordinate behaviour towards his superior which left the Employer hardly any choice but to transfer him out to another workplace where his skill set is required. [41] Based on all the facts and circumstances, then prevailing at the workplace and taking into account the need for a person with the Appellant’s IT skill set, the Employer’s decision to transfer the Appellant to the Dam project in Penang is par excellence part of an employer’s management prerogative and the Industrial Court should not lightly interfere in these matters save where it is demonstrated by cogent and convincing evidence and not by mere perception, surmise or speculation, that the transfer was actuated by mala fides or that it was a demotion. S/N 0P810sNyN0imBSpcrTuuyg 37 | P a g e [42] In conclusion, in the context and circumstances of the present appeal we feel it is necessary and relevant to refer to the Court of Appeal’s decision in Southern Investment Bank Bhd / Southern Bank & Anor v Yap Fat & Anor [2017] 3 MLJ 327 (CA), where it held that: “[24] The law recognises that in pursuit of its legitimate interest, the management has the prerogative to assign or transfer employees from one area of operation to another provided there is no demotion in rank or diminution of salary, benefits, and other privileges; and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. This is a privilege inherent in the employer’s right to control and manage his enterprise effectively. For this reason, courts often decline to interfere in legitimate business decisions of employers. In fact, industrial relations laws discourage interference in employer’s decisions concerning the conduct of their business.” Outcome [43] For the reasons stated above, we are impelled to the conclusion that the Award was not tainted with any of the vitiating circumstances or errors of law. In all the circumstances, the Industrial Court was correct in its decision not to interfere with the Employer’s decision to transfer the Appellant and in concluding that the Appellant had failed to prove that he had been constructively dismissal. Consequently, we find that the High Court did not err or misdirect itself in dismissing the Judicial Review. S/N 0P810sNyN0imBSpcrTuuyg 38 | P a g e [44] In the upshot, the appeal lacks merit and it is hereby dismissed with costs of RM15,000.00 to be paid by the Appellant to the Employer (First Respondent) (subject to allocatur). S. Nantha Balan Judge, Court of Appeal, Putrajaya, Malaysia Date: 21 February 2024 Legal Representation For the Appellant Teoh Bi Shan Messrs. Bishan & Partners A-03-02, Garden Shoppe @ One City Jalan USJ 25/1f 47650 Subang Jaya Selangor Darul Ehsan For the Employer (First Respondent) Rutheran Sivagnanam Messrs. R. Sivagnanam & Assoc. Suite 16-11, Level 16, Q Sentral, Jalan Stesen Sentral 2, KL Sentral, 50470 Kuala Lumpur S/N 0P810sNyN0imBSpcrTuuyg 39 | P a g e Legislation Section 20 Industrial Relations Act 1967 Cases CIMB Bank Bhd v. Ahmad Suhairi bin Mat Ali & Anor [2023] 4 ILR 1, [2023] 5 MLJ 829 (CA) Southern Investment Bank Bhd / Southern Bank & Anor v Yap Fat & Anor [2017] 3 MLJ 327 (CA) Pan Global Insurance Bhd v. Habibah Mohd Zaman [2000] 2 ILR 238 (IC) Loo Cheng Teck v. George Kent (Malaysia) Berhad [2019] ILRU 2393, [2019] 2 LNS 2393 (IC) Loo Cheng Teck v. George Kent (Malaysia) Berhad & Anor [2022] 1 LNS 972 (HC) S/N 0P810sNyN0imBSpcrTuuyg