Sen Wen Han v 1. ) Ss Reform Marketing Sdn Bhd (AA-25-1-01/2024)

SS REFORM MARKETING SDN BHD (Company No.: 201401019750 (1095837-W)

THE INDUSTRIAL COURT OF MALAYSIA ------------------------------------------------------------------------------------------- APPLICATION FOR JUDICIAL REVIEW NO. AA-25-2-01/2024 40 CHIN YEN YEN [NRIC NO. 850729-14-6006]

SS REFORM MARKETING SDN BHD 45 (Company No.: 201401019750 (1095837-W)

THE INDUSTRIAL COURT OF MALAYSIA ------------------------------------------------------------------------------------------- 50 APPLICATION FOR JUDICIAL REVIEW NO: AA-25-3-01/2024 SEN WEN KAE [NRIC NO. 730410-08-5989] 55

SS REFORM MARKETING SDN BHD [COMPANY NO. : 201401019750] (1095837-W)

THE INDUSTRIAL COURT OF MALAYSIA 60 ------------------------------------------------------------------------------------------- S/N bk43C8NkUet8qsMAThtKw APPLICATION FOR JUDICIAL REVIEW NO.: AA-25-4-01/2024 SEN WEN PING 65

SS REFORM MARKETING SDN BHD [COMPANY NO.: 201401019750 (1095837-W) 70

THE INDUSTRIAL COURT OF MALAYSIA GROUNDS OF JUDGMENT Introduction 75 [1]. This application for Judicial Review, together with three other applications AA-25-2-01/2024, AA-25-3-01/2024, and AA-25-4- 01/2024, are respectively applications by the applicants for judicial review under Order 53 of the Rules of Court 2012, to quash the respective Award of the Industrial Court (Award Nos. 80 2092; 2094, 2095 & 2093 of 2023 dated 12 October 2023) which dismissed their claims for constructive dismissal. The applicants contend that their resignations were compelled by the respondent unilateral salary reductions, failure to pay allowances, and 85 S/N bk43C8NkUet8qsMAThtKw displacement from their positions following a change in [2]. The respondent opposes the application, asserting that the applicants voluntarily abandoned their employment without establishing a fundamental breach or timely resignation, and 90 that no constructive dismissal occurred. [3]. By consent of counsel, these Grounds of Judgment shall, mutatis mutandis, apply to and bind the parties in AA-25-2- 01/2024, AA-25-3-01/2024, and AA-25-4-01/2024. Issues for Determination 95 a) Whether the applicant to any alleged fundamental breach to justify a finding of constructive dismissal; b) Whether the Industrial Court erred in holding that the applicants are not entitled to full salary for January 2020; 100 c) Failure to Prove Communication of Constructive Dismissal Notice; and d) Whether the 2nd respondent erred in law and fact, finding no evidence of unpaid travel allowance. Decision of the court 105 [4]. In Georgiana Chai Siaw Vun v Lekamas Sdn Bhd [2024] 5 MLRH 1; [2024] MLJU 2168; [2024] CLJU 863; [2024] AMEJ S/N bk43C8NkUet8qsMAThtKw 0893, this court has set out the law governing an appeal under , which is a rehearing governed by and the law governing 110 constructive dismissal. Law Governing Appeal [4] In deliberating this appeal, the court is mindful of the laws governing appeals as provided in Section 33C of the 115 as a rehearing. The procedure for appeals from the Industrial Court to the High Court follows Order 55 Rule 2 of modifications. The guiding principle in such appeals is that appellate courts should be cautious and refrain from readily 120 interfering with factual findings made by the court of 1st instance unless there is a fundamental misdirection or error. [5] Bhd v. Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857; : [2010] 4 MLJ 577, emphasizes that trial judges have 125 the advantage of witnessing witness testimonies and demeanour, and unless their findings are plainly wrong, appellate courts should not reverse them. Mere differences of opinion do not suffice for appellate intervention instead a fundamental misdirection must be evident. 130 [6] Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2018] 2 MLJ 177; : [2018] 2 CLJ 641, appellate courts should only interfere with factual findings if 135 be reasonably explained or justified, and no reasonable S/N bk43C8NkUet8qsMAThtKw judge could have arrived at such a decision. Simple differences of opinion do not warrant appellate intervention. 140 [7] Furthermore, the Federal Court, in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, reiterated the principles established in the 145 case. It emphasized that appellate courts should not interfere with the factual findings of a trial judge unless those reasonably be explained or justified, and no reasonable judge could have reached such conclusions. 150 Law Governing Constructive Dismissal [8] Section 20(3) of the Industrial Relations Act 1967, is well 155 established as expressed by Salleh Abas LP in the case of Wong Chee Hong v Cathay Organisation (M) Sdn. Bhd. [1988] 1 MLJ 92: common law has always recognized the 160 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 165 intention not to be bound by it any longer. It was an attempt to enlarge the right of the employee of unilateral termination of his contract beyond S/N bk43C8NkUet8qsMAThtKw the perimeter of the common law by an unreasonable conduct of his employer that the 170 expression was [9] In Western Excavating (ECC) Ltd v Sharp [1978] 1 All E.R. 713 at p. 717, it was decided by Lord Denning M.R. that the correct test to be applied in the instance of constructive - 175 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 180 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 conduct. 185 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 that he is leaving at the end of the notice. But the 190 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, 195 he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the [varied] S/N bk43C8NkUet8qsMAThtKw [10] In Kaur v Leeds Teaching Hospitals NHS Trust [2018] 200 EWCA Civ 978, the English Court of Appeal listed five questions that it should be satisfied with in order to determine whether an employee was constructively dismissed: a. What was the most recent act (or omission) 205 on the part of the employer which the employee says caused, or triggered, their resignation? a. Has the employee affirmed the contract since that act? b. If not, was that act (or omission) by 210 itself a repudiatory breach of contract? c. If not, was it nevertheless a part (applying the approach explained in case) of a course of 215 conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? 220 (Omilaju v. Waltham Forest London Borough Council [2005] 1 All ER 75) d. Did the employee resign in response (or partly in response) to that 225 (Underline is emphasized for the purpose of the present case) S/N bk43C8NkUet8qsMAThtKw

Whether resignation is proximate to breaches or a mere afterthought [5]. In the present case, the applicants assert that breaches 230 commenced as early as March 2019, when salary deductions allegedly began. Nevertheless, they continued working until February 2020, an interval of nearly 11 months, without any contemporaneous written protest or objection. The eventual resignation followed internal changes in January 2020, 235 including the appointment of a new CEO and relocation memos. The applicants did not, at any material time before their resignation, raise those earlier grievances. Instead, they relied retrospectively on a series of past complaints, many of which were never formally documented when they allegedly occurred. 240 [6]. Although the law does recognise cumulative breaches as a basis for constructive dismissal, as stated by the Court of Appeal in Quah Swee Khoon v Sime Darby Bhd [2000] 2 MLJ 600; [2001] 1 CLJ 9: Constructive dismissal can take place, as we have 245 attempted to demonstrate, in a number of cases. Since human ingenuity is boundless, the categories in which constructive dismissal can occur are not closed. Accordingly, a single act or a series of acts may, according to the particular and peculiar circumstances of the given 250 case, amount to a constructive dismissal. There are cases which fall as illustrations at either end of the spectrum. S/N bk43C8NkUet8qsMAThtKw [7]. Such reliance on cumulative breaches must nonetheless demonstrate a clear and proximate causal connection between 255 the final breach and the act of resignation. In this case, the applicants provided inconsistent and shifting explanations during the trial, ranging from salary non-payment to a lack of work scope and relocation difficulties. These contradictions, coupled with the extended delay in raising their complaints, 260 substantially weaken their case. The court is thus satisfied that the resignation was not sufficiently proximate to any specific breach to justify a finding of constructive dismissal. On the contrary, it appears more like an afterthought. [8]. As noted by the Court of Appeal in Quah Swee Khoon v Sime 265 Darby Bhd [2001] 1 CLJ 9; [2000] 1 MLRA 856: Turning once again to the pleadings, it is abundantly clear that the appellant was complaining that he had been driven out of employment whereas the respondent was contending that the former had left of his own volition... At the end of the day, the 270 question simply is whether the appellant was driven out of [9]. In Anwar Abdul Rahim v. Bayer (M) Sdn Bhd v [1997] 1 MELR 50; [1997] 2 MLRA 327; [1997] 2 MLRA 327; [1998] 2 275 MLJ 599; [1998] 2 CLJ 197; [1998] 2 AMR, the Court of Appeal similarly emphasised these principles: [22] It has been repeatedly held by our courts that the proper approach in deciding whether constructive dismissal S/N bk43C8NkUet8qsMAThtKw has taken place is not to ask oneself whether the employer's 280 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. 285 Elizabeh Lee Chai Siok [1991] 2 MELR 246; [1991] 3 MLRH 455; [1992] 1 MLJ 230; [1992] 1 CLJ 141 and Wong Chee Hong V. Cathay Organisation (m) Sdn. Bhd. [1987] 1 MELR 32; [1987] 1 MLRA 346; [1988] 1 MLJ 92; [1988] 1 CLJ 298 at p. 94. 290 The doctrine of waiver or condonation applies equally to employees. Therefore, if cumulative misconduct is being urged it must be pleaded and evidence has to be given to show that each misconduct was so connected with the 295 culminating act of misconduct as to form part of the same [10]. Applying these principles, this court finds that the applicants failed to demonstrate either a proximate or coherent link 300 between the alleged breaches and the timing of their resignations. The delay, coupled with a lack of consistent reasoning and contemporaneous protest, leads to the conclusion that the resignations were not in direct response to any specific breach and therefore do not support a claim for 305 constructive dismissal in the present case. S/N bk43C8NkUet8qsMAThtKw

Whether Industrial Court erred in holding that the applicants are not entitled to full salary for January 2020 [11]. Having considered both sides on the second ground, I find no 310 applicants were not entitled to full salary for January 2020. The a reply asserts that they were present throughout January and even met with the CEO on 20 January 2020, and they pleaded for unpaid January salary. However, under cross-examination, 315 they produced no contemporaneous proof of attendance for that month; Sen Wen Kae candidly admitted he had no documents to show he actually worked in January. [12]. applicant . From February 320 2020, they did not report for duty at the Bukit Mertajam office. The evidence bore out of these findings, and the Chairman expressly noted the absence of any proof of January attendance. As such, irregular appearances cannot qualify as full attendance and therefore do not warrant full wages. The 325 applicants also raised no contemporaneous objection to the relocation, which they already knew of, and this undermines any suggestion that they were prevented from working. In law, the burden lay on the applicants to show that they were driven out rather than having left or failed to report of their own volition. 330 [13]. Furthermore, the cases referred to emphasise prompt and consistent conduct in constructive dismissal complaints; delay S/N bk43C8NkUet8qsMAThtKw or acquiescence signifies no breach, making continued employment intolerable. In Southern Investment Bank Bhd v Yap Fat [2017] 2 MELR 183; [2017] 3 MLJ 327; [2017] 8 CLJ 335 159; [2017] 3 ILR 433 (refd), the Court of Appeal stated: [29] months in leaving employment goes to show that there was never any conduct by the appellants which rendered continued employment impossible, unreasonable and 340 unbearable as alleged by the 1st respondent. [30] It is trite that in a claim for constructive dismissal, it is imperative for the employee to take immediate steps in walking out of his employment within a reasonable time after 345 the alleged breach of contract. Failing with, the employee will be deemed to have waived the breach and agreed to vary the contract. [31] In Kelang Container Terminal Sdn Bhd v. Tuan Syed 350 Khadzail Syed Salim [1993] 1 MELR 3; [1993] 1 ILR 1, the Industrial Court had this to say on the issue of delay: "What made the claimant wait until 24 January 1991 to complain? Why did he delay his 355 departure? Then the speed between his decision to leave and his new employment letter within a period of five days was very unusual. He was to report for duties as Senior Manager of Human Resources and Administration of 360 Celcom on 2 February 1991. I am more inclined to hold the view that it was his new appointment S/N bk43C8NkUet8qsMAThtKw which helped him to make up his mind to leave after he had earlier elected to stay on. After considering the facts and surrounding 365 circumstances of this case this court finds that the company had breached the terms of the contract of employment of the claimant but the claimant had by his delay implied that he had elected to affirm the contract rather than accept 370 the repudiation to end the contract. The court therefore upholds the dismissal. [14]. Accordingly, this ground of appeal fails on both fact and law.

Failure to Prove Communication of Constructive Dismissal 375 Notice [15]. Constructive dismissal must also be communicated clearly and unequivocally to the employer. The burden lies with the employee to prove that the employer had actual or constructive knowledge of the resignation resulting from a breach. 380 [16]. The applicants claim to have emailed their resignation letter to one "Ms Aileen", whom they describe as the company's HR officer. However, the c asserts that no such letter was received by any authorised officer. During the proceedings, the applicants relied on their 385 own email, which showed address, but provided no proof that it reached any designated S/N bk43C8NkUet8qsMAThtKw officer of the company. Aileen was not called as a witness, and the applicants concede they were unable to subpoena her. [17]. ies with the applicants. 390 Their failure to call Aileen, who is identified as a person who could have corroborated dispatch/receipt, left the allegation as a bare assertion. The tribunal was entitled to treat uncorroborated claims with caution, just as courts reject monetary claims unsupported by documents. In Choong Kwee 395 Sang v Choong Kwee Keong (as the executor of the estate of Chan Fook Lin, deceased) [2009] 1 MLJ 186; [2008] 5 CLJ 229; [2008] 1 MLRA 666, dismissed because documentary proof of allowances was absent: The Court of Appeal stated: 400 Though the appellant tried to show he had other income, namely his travel allowances for working trips to Indonesia and East Malaysia, the documentary proof of such claims never surfaced. [49] 405 appellant had failed to prove that he had $38,000 which he said he had saved from his income and mileage claims and [18]. This is especially so in a consolidated hearing where each 410 applicant Accordingly, no error of law or fact is shown. The Industrial applicant witness was fatal. S/N bk43C8NkUet8qsMAThtKw [19]. The Industrial Court noted, and this court agrees, that the 415 applicants failed to establish that the resignation was properly communicated to the company. Mere forwarding of an email to an unverified address, without acknowledgment or follow-up, is insufficient to verify that the employer received adequate notice of the email. 420 [20]. It is also notable that the applicants were previously in managerial control of the company, and would have been familiar with the appropriate communication protocols. [21]. Having considered both submissions, I uphold the determination that it was not reasonable for the applicants to 425 issue a constructive dismissal letter on 27 February 2020 while not leaving employment promptly. In their own case, the impugned conduct comprised salary reductions in late 2019 and alleged non-payment for January 2020; yet they made no written protest and accepted payment for months.

Whether the 2nd respondent erred in law and fact, finding no evidence of unpaid travel allowance [22]. On the Fourth Ground, I find no error in the 2nd respondent conclusion that the applicants failed to prove any unpaid travel allowance. The applicants produced no supporting documents, 435 no claim forms, receipts, approvals, payroll records, or bank slips to establish any unpaid travel allowance. This failure was highlighted by the 1st respondent and confirmed in cross-S/N bk43C8NkUet8qsMAThtKw examination when Sen Wen Han admitted he had no proof of the alleged expenses. The Industrial Court was entitled to reject 440 a bare figure without documentary proof, especially since the applicants had 2020 and could have produced records if any existed. This approach is consistent with Chong Kwee Sang v Choong Kwee Keong (supra), where allowance claims failed without 445 documentary proof. In short, the applicants bore the burden of showing non-payment but provided nothing. The tribunal rightly dismissed the claim. This ground also fails. Conclusion [23]. Having considered the totality of the evidence and submissions, 450 this court finds that the applicant sufficiently proximate in time or causally linked to any specific breach by the 1st respondent. Also, the applicants failed to establish that their notice of constructive dismissal was properly communicated to the 1st respondent. The learned Chairman of 455 the Industrial Court did not err in law or fact in dismissing the applicant applicant as to costs is made, given the familial and internal issues underlying the dispute. 460 S/N bk43C8NkUet8qsMAThtKw Dated : 27 October 2025 465 [MOSES SUSAYAN] JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 470 For all the Applicants : Rathi Jebaratnam (together with Yap Wen Han) Advocates and Solicitors 475 [Messrs HL Lee & Co] Subang Jaya, Selangor For the 1st Respondent : Calvin Ho Yew Ching Advocates and Solicitors 480 [Messrs WS Ang & Associates] Bukit Mertajam, Pulau Pinang 485 S/N bk43C8NkUet8qsMAThtKw Headnotes Constructive dismissal claims Alleged cumulative breaches (salary reductions, unpaid allowances, relocation, change in management) 490 Resignations in February 2020 Dispute on attendance and communication of constructive dismissal notice. Whether resignation proximate to breaches Extended delay Inconsistent reasons Resignation not sufficiently proximate; afterthought. January 2020 salary No 495 contemporaneous proof No entitlement to full salary. Communication of constructive dismissal notice unproven Material witness not called Notice not proved communicated. Unpaid travel allowance No claim forms, receipts, payroll or bank records Allowance claim unproven. 500 Principles Contract test for constructive dismissal Fundamental breach going to the root Prompt resignation required Cumulative breaches require a clear causal nexus. Appeal standard Rehearing under s 33C IRA and O 55 r 2 ROC Deference to primary fact-finding unless plainly wrong. 505 S/N bk43C8NkUet8qsMAThtKw