Tsung Foong Cheong @ Margaret v Mahkamah Perusahaan Malaysia (WA-25-377-11/2023)

1.

AXIATA GROUP BERHAD …RESPONDEN-RESPONDEN

The Applicant resigned from her employment with the 2nd Respondent, claiming that she had been constructively dismissed. She then made representations under the Industrial Relations Act claiming that she had been dismissed without just cause and excuse.

On 24.8.2023, the Industrial Court handed down its award, dismissing the Applicant’s claim which led to her filing this Judicial S/N zxzwkKrem0qi9PSocdTHaw Review application. She seeks the relief of certiorari to quash the decision of the Industrial Court. Background facts

The facts giving rise to the present application are as follows:

On 1.11.2012, the Applicant commenced employment with

(ii) Since then she held various posts and was promoted Contract Management Lead at E20 grade, a post she held at the time of her resignation;

(iii) Sometime in January 2017, a disagreement arose between the Applicant and her then superior, Mr. Peter Chen pertaining to her performance appraisal for the year 2016. Mr. Peter Chen informed the Applicant in an email dated 12.1.2017, that the Applicant was to improve in several areas;

(iv) Following several discussions between the Applicant, Mr. Peter Chen and the Head of Axiata Procurement Center, it was agreed that the Applicant would report to the latter based on a redesigned role;

At a meeting on 15.6.2017, the Applicant was informed that her role as Contract Management Lead would be changed S/N zxzwkKrem0qi9PSocdTHaw and redesigned to cater to the needs of the business due to an internal restructuring of the Axiata Procurement Centre;

(vi) The Applicant agreed to the redesigned role;

(vii) Following the year-end performance appraisal for the Financial Year 2018 (“FY2018”), the Applicant was given a performance rating of “Needs Improvement”.

(viii) On 9.7.2019, the Applicant submitted a Notice of Grievance wherein she raised various issues pertaining to performance rating for FY2018. She gave the 2nd Respondent 14 days to rectify her grievances, failing which she will treat the conduct of the 2nd Respondent as a breach of the terms of employment;

(ix) In the said Notice of Grievance, the Applicant stated inter alia that she was unfairly rated as “Needs Improvement” despite her good performance based on the representations of her immediate superior. She also stated that notwithstanding she was a Level 20 employee she was requested to perform Level 18 roles which included administrative and clerical tasks, effectively demoting her to a Level 18 position. In addition, she had been pushed out of her job functions as Contract Management Lead by being excluded from tasks commensurate with her job designation. In view of her reduced functions at Level 20, the KPIs set by the 2nd Respondent was unrealistic. The 2nd Respondent had set her up to fail in the performance of her S/N zxzwkKrem0qi9PSocdTHaw duties Finally, she was no longer allowed to work from home;

On 24.7.2019, the Applicant submitted her resignation letter and claimed constructive dismissal vide Notice of Constructive Dismissal dated 24.7.2019;

(xi) The 2nd Respondent replied on the same day to deny the allegations of constructive dismissal and required her to report back to work. It also addressed the Applicant’s grievances in her Notice of Grievance;

(xii) On 25.7.2019, the 2nd Respondent issued a letter denying once more the allegations of constructive dismissal and required her to report back to work immediately on the same day, failing which she would be deemed to have abandoned her employment;

(xiii) The Applicant however maintained that she was constructively dismissed and informed the 2nd Respondent that she would not report back to work. Instead she made representations under s. 20(3) of the Industrial Relations Act claiming that she had been dismissed without just cause and excuse;

(xiv) On 23.8.2023 the Industrial Court handed down its award and dismissed her claim. S/N zxzwkKrem0qi9PSocdTHaw Grounds for judicial review

The Applicant claims that the award of the Industrial Court fell within the Wednesbury unreasonableness and seeks for a certiorari to quash the award. She advances 5 grounds in support thereof:

The Industrial Court erred in concluding that the 2nd Respondent had conducted the appraisal process for the Applicant’s 2018 EPP in a bona fide manner;

(ii) The Industrial Court erred in concluding that the 2nd Respondent had not demoted the Applicant from a Level 20 employee to a Level 18 employee;

(iii) The Industrial Court erred in concluding that the 2nd Respondent had not ousted the Applicant from her position as Contract Management Lead;

(iv) The Industrial Court erred in concluding that the Applicant wilfully refused to accept the 2019 KPI and instead claimed constructive dismissal prematurely;

The Industrial Court erred in concluding that Work From Home was not a contractual entitlement accorded to the Applicant and that it was within the Applicant’s job scope as a Contract Management Lead to attend all meetings she was instructed and/or invented to attend. S/N zxzwkKrem0qi9PSocdTHaw Analysis and findings Key principles

I shall start with trite principles on the court’s powers of review in relation to decisions of inferior tribunals. The grounds upon which a decision of an inferior tribunal can be successfully challenged in judicial review proceedings, namely procedural impropriety, illegality and irrationality are settled and trite law (See: R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1

As irrationality is the ground relied on, the Federal Court in R Rama Chandran has defined it to mean a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

In exercising its powers of judicial review, the court does not interfere with the finding of facts as the evaluation of the evidence is the function of the Industrial Court.

I find valuable guidance on the approach to be adopted from the Federal Court case of Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1 where it was held: The Federal Court in Petroliam National Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288 held that the reviewing court may scrutinise a decision on its merits but only in the most appropriate of cases and not S/N zxzwkKrem0qi9PSocdTHaw 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. 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 [2000] 7 MLJ 1; National Union of Plantations Workers v Kumpulan Jerai Sdn Bhd, Rengam [2000] 2 MLJ 144; [Quah Swee Khoon v Sime Darby Bhd [2000] 2 MLJ 600; Colgate Palmolive (M) Sdn Bhd v Yap Kok Foong and another appeal [2001] 4 MLJ 97; 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.

In Menara PanGlobal Sdn Bhd v Arokianathan a/l Sivapiragasam [2006] 3 MLJ 493), the Court of Appeal held: From the authorities discussed above, I would think that in dealing with judicial review a judge should have the following principles, inter alia, in the forefront of his mind:

judicial review is not an appeal from a decision but a review of the manner in which the decision was made;

(ii) the High Court is not entitled on an application for judicial review to consider whether the decision itself, on the merits of the facts, was fair and reasonable; S/N zxzwkKrem0qi9PSocdTHaw ….

(vi) the High Court will not interfere with finding 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 different conclusions on facts 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. (See also: Ng Chang Seng v Technip Geoproduction (M) Sdn Bhd & Anor [2021] 1 MLJ 447).

In the light of these authorities, it is clear that this court is to refrain from interfering with the Industrial Court’s finding of facts. It should be left to make its conclusion from the available evidence.

The central issue in this case is that of constructive dismissal. It would be apposite to state the applicable principles to be applied to the factual matrix.

The Federal Court in Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 MLJ 92 held: The common law has always recognized the right of an employee to terminate his contract of service and therefore to consider himself as discharged from further obligations if the employer is guilty of such breach as affects the foundation of the contract or if the employer has evinced or shown an 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 the perimeter of the common law by an unreasonable conduct of his employer that the expression “constructive dismissal” was used. S/N zxzwkKrem0qi9PSocdTHaw

The Federal Court enunciated what is known as the contract test. Thus, the question to ask is not whether the employer’s conduct was unreasonable but whether 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.

Very recently, this test was affirmed by the Federal Court in Tan Lay Peng v RHB Bank Bhd & Anor [2024] 6 CLJ 315, [45] Considering the current position of the law on constructive dismissal in Malaysia and other jurisdictions as alluded to above, as well as the discussion earlier, it is clear that the contract test in determining constructive dismissal is a good law and there is no reason to depart from the said position. To use the reasonableness test as the legal requirement or interchangeably with the contract test would only entail uncertainty and confusion in industrial relations. At the risk of repetition, we emphasize here that in Malaysia, the test for determining constructive dismissal of an employee is the contract test.

I shall now deal with the grounds relied on by the Applicant. Ground 1-Unfair appraisal process for YA 2018

The Applicant’s grievance on the appraisal process can be summarised as follows:

The 2nd Respondent had undertaken the appraisal process unfairly. The appraisal process comprised of 3 stages; the first being self-appraisal, and upon discussion with the line manager, a rating will be agreed upon. The second stage S/N zxzwkKrem0qi9PSocdTHaw entails a calibration by the Heads of Department and the Category Managers. The third stage entails a calibration by the Senior Leadership Team. The rating of Well Done by her immediate line manager, Mr. Saran, was not considered, and who was the best person to evaluate her;

(ii) She was not given prior notification of the appraisal. She ought to have been involved at each stage of the appraisal process before it was finalised by the Senior Leadership Team, after which it was too late to reopen the appraisal process;

(iii) Throughout the year, she was never informed by the 2nd Respondent of any issues with her behaviour; and

(iv) There were two components in the appraisal; performance and behaviour. She was evaluated as Need Improvement only for behaviour. In any event, there is no basis for such an evaluation.

With respect to this complaint, I have considered the evidence before the Industrial Court. The performance appraisal process was known to the Applicant from the time she commenced employment with the 2nd Respondent. It was no different for YA

2018.

The appraisal by Mr. Saran, her immediate superior was not final. It was still subject to the calibration by the Senior Leadership Team S/N zxzwkKrem0qi9PSocdTHaw with the Head of Department. The Applicant did not dispute it. It is not now open to her to complain about the appraisal process.

More importantly, her allegation that she was rated unfairly and given a Needs Improvement rating, to my mind, is her own personal view. The employer is best placed to evaluate and assess its employees. The fact that the 2nd Respondent’s evaluation of the Applicant does not accord with her own, does not make it an unfair appraisal.

On the evidence, there was a discussion between the Applicant, Mr. Saran and the then Axiata Head of Procurement Center, facilitated by the Human Resource Department to ensure that all parties were duly heard on the Needs Improvement rating. It was only after the discussion that the rating was maintained.

The 2nd Respondent also justified the Needs Improvement rating through the evidence of the Head of Procurement Center. There was negative feedback received from her colleagues and stakeholders. It was also based on behavioural observations from the Applicant’s absence from work. Apart from these, the Applicant’s performance was also compared to her peers.

Performance is a subjective evaluation and the best judge is the employer. The employer’s assessment takes precedence over the Applicant’s evaluation of herself, unless she can show that the appraisal was not objective but actuated by ulterior motive and mala fide. In the absence of proof of mala fides, I would be S/N zxzwkKrem0qi9PSocdTHaw circumspect to intervene with the 2nd Respondent’s evaluation of the Applicant.

In any event, the fact that the appraisal of the 2nd Respondent’s employees is subject to a three-stage process is evidence of some measure of objectivity.

The cases cited by the 2nd Respondent’s counsel shows a consistent approach by the Industrial Court when it comes to performance appraisal; it is the employer’s prerogative to decide.

The Industrial Court had duly considered the legal position as seen in the relevant portion of the judgment as follows: [87] It is also well entrenched in industrial jurisprudence that an employee who is displeased with his performance rating does not automatically give rise to a case of constructive dismissal… … [100] Based on all the foregoing, it is apparent to the Court that the Company had not at any material time breach any fundamental term of the employment contract and that it had at all material times acted and exercised its discretion, particularly in respect of the performance appraisal process, in a bona fide manner.

In spite of the Applicant’s contention of bad faith in her appraisal, the Industrial Court had made a specific finding of bona fides. I S/N zxzwkKrem0qi9PSocdTHaw therefore find that the Applicant had been rated in accordance with due process.

The Applicant contends that as a Level 20 employee, she was to perform a supervisory and leadership role, instead of administrative and clerical tasks performed by Level 18 employees. Over the course of four months, the Applicant was left with only 3 low value contracts, and excluded from email communications within the Axiata Procurement Centre team.

However, in cross-examination the Applicant agreed that her job description did not confine her role to merely a supervisory one, or that it was only limited to projects beyond a certain value. She further admitted that for a Level 20 officer, administrative and clerical tasks were well within her scope of work. In addition, she agreed to counsel’s suggestion that she was required to have a hands-on management of contracts.

Three of the 2nd Respondent’s witnesses testified on the Applicant’s hands-off approach to work. One of them explained the constant change and transformation in the company required its employees to adapt and change their roles. However, these changes do not result in a demotion as there is no reduction in the salary or benefits.

It was also in evidence that the Applicant’s employment contract expressly provide for the need to re-allocate resources from time S/N zxzwkKrem0qi9PSocdTHaw to time to ensure the 2nd Respondent’s business objectives are met. The re-allocation would necessitate varying the designation and work responsibilities of the Applicant.

Having considered the evidence, the Industrial Court found that there was no demotion from Level 20 to Level 18. Instead, the Industrial Court held that the tasks assigned to the Applicant were well within the parameters of her contract of employment.

I find no reason to disagree with the Industrial Court nor find anything perverse about its decision. Ground 3-Ousting the Applicant from role as Contract Management Lead

The Applicant claims she was ousted from her job functions for four months as her responsibilities had reduced significantly and she was consistently excluded from the email communications within the team.

The Industrial Court found otherwise and concluded that firstly, there was no cogent evidence to support her allegations. Secondly, the perceived reduction in the Applicant’s work was attributable to herself and lack of initiative and reluctance to be involved.

The Industrial Court came to this finding based on evidence before it. The Applicant had repeatedly demanded to be reinstated to perform the leadership and supervisory role commensurate with a Level 20 employee and to manage and lead high value, complex contracts and participating in special projects. S/N zxzwkKrem0qi9PSocdTHaw

The 2nd Respondent led evidence to explain the alleged exclusion of the Applicant from the email correspondence. The witness for the 2nd Respondent explained as the Applicant failed to attend several meetings and discussion with the vendors, the emails were sent only to the parties who attended the meeting. She further explained that in the one occasion the Applicant was not kept in the loop, it was an inadvertent omission.

I therefore find that the Industrial Court’s conclusion on this issue that there was no intention to oust the Applicant from performing her job functions, is justified. Ground 4-Refusal by the Applicant to accept the 2019 KPI

The Applicant had concerns about the 2019 KPI set by the 2nd Respondent. She informed her immediate line manager Mr. Saran, that it was neither achievable nor realistic.

The 2nd Respondent then took steps to resolve the Applicant’s concern by proposing 2 options for her at a meeting with Mr. Saran and the Head of Procurement Centre. The first was to be evaluated for 9 months for 2019 and the second was to evaluate and close the first half of 2019 and move on with new KPIs for the second half of 2019.

The Applicant denied accepting any of the options. However, the Industrial Court having considered and evaluated the evidence of both parties, made a specific finding that the Applicant agreed to S/N zxzwkKrem0qi9PSocdTHaw Option 2. The court in its exercise of review ought not to substitute the finding of facts of the Industrial Court.

The Industrial Court then found that without finalizing the KPI for 2019, the Applicant jumped the gun and claimed constructive dismissal instead.

In the light of the evidence it considered, I am of the view that the finding of the Industrial Court was not irrational. Ground 5-Work From Home (WFH)/requirement to attend meetings

The Applicant contends that she was restricted from applying for the Work From Home benefit. There were no issues to granting her that benefit previously. As the position of the 2nd Respondent has shifted, she had therefore been subjected to unjust and prejudicial treatment.

Before the Industrial Court, the 2nd Respondent referred the Applicant to its written policy pertaining to WFH to which she agreed to. The policy expressly states that “occasional working from home is neither a contractual or a statutory right and Axiata is under no obligation to approve any request by an employee to work from home”. She also agreed that the discretion to approve her application lies with the 2nd Respondent.

In the light of the policy, I find that it was reasonable for the Industrial Court to conclude that WFH is a discretionary privilege bestowed by the company as opposed to a contractual entitlement. S/N zxzwkKrem0qi9PSocdTHaw There is no question of unjust treatment when the discretion to approve is entirely with the 2nd Respondent.

Finally, the Applicant also contends that the 2nd Respondent’s requirement for her to attend all meetings effectively prevented her from performing her role. The 2nd Respondent’s claim of non-attendance was also untrue.

The 2nd Respondent however, explained that her attendance at meetings invited to was part and parcel of her duties as Contract Management Lead. This is expected of the Applicant if she was involved in the project discussions or if she was invited to attend. It was necessary for the Applicant to attend as she is required to be aware of the negotiations and clarification between the relevant stakeholders.

The Applicant in fact conceded in cross examination that the instruction to attend meetings cannot be considered a fundamental breach of her contract. To my mind, her concession is an implicit agreement that meeting attendance was a necessary part of her job function.

On this point, the Industrial Court concluded that there was no evidence before it of any breach of the essential terms of the contract with the Applicant. Premised on the evidence it considered, I would not have come to a different conclusion from that of the Industrial Court. S/N zxzwkKrem0qi9PSocdTHaw

The Industrial Court is the trier of facts and in so doing, comes to a finding after evaluating the evidence before it. The grounds advanced by the Applicant to impugn the decision of the Industrial Court are primarily matters to be considered by a court exercising its powers of appeal. It does not lie with a court exercising its powers of review.

Having considered the award of the Industrial Court, the available evidence, the evaluation of the evidence before it and the eventual findings on the evidence, I do not find its decision to be perverse as alleged.

In the upshot, the Judicial Review application is dismissed. I order that costs of RM 5,000.00 be paid to the 2nd Respondent. Dated: 16th March 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur S/N zxzwkKrem0qi9PSocdTHaw Counsel for Applicant: Mr. Deepak Mahadevan (Ms. Faeza Suraya Roslan together with him) Tetuan Azmi Fadzly Maha & Sim Counsel for 2nd Respondent: Mr. Sebastian Tay Tetuan T. Thavalingam & Co. S/N zxzwkKrem0qi9PSocdTHaw