Wong Forklift Hire & Services Sdn Bhd v 1. ) Mahkamah Perusahaan Malaysia (WA-25-362-11/2023)

WONG JUN KIT 45 [NO. K/P: 801127-10-5417] …RESPONDEN-RESPONDEN 50 08/07/2025 09:35:58 Kand. 89 JUDGMENT (Enclosure 1) INTRODUCTION [1] The Applicant (the applicant company) sought to challenge by 55 Judicial Review (JR) application against the Industrial Court's (IC) decision in Awad No. 22(6)/4-2335/19 dated 19.10.2023 (the Final IC Award), under O.53 r.3(2) Rules of Court 2012 (RC 2012), including costs and other reliefs. 60 [2]

After considering all the cause papers and the respective written submissions of the parties, I hold that this JR Application has no merit, and it is dismissed with costs and the Final IC Award affirmed.

I also ordered that costs of RM6,000.00 against the applicant to be paid to the 2nd Respondent (R2) within 45 days from the date of this Order.

Dissatisfied, the applicant company had filed this appeal, and my reasons are as follows: 70 SALIENT FACTS [3] The Ministerial reference dated 15.04.2019, under section 20(3) Industrial Relations Act 1967 (IRA) received by the IC on 13.12.2019, and registered as IC case No. 22(6)4-2335/19 at the 75 Kuala Lumpur Industrial Court:

3.1 The applicant company is a Malaysian private limited company incorporated in Malaysia on 26.01.2001, which is primarily involved in the import, repair, service, maintenance, trade and rental business of forklifts founded by one Wong Kok Wan (deceased) in 80 1969, who died in an accident at work in 2018:

Wong Kok Wan (the deceased), together with Sim Foo Yoke (wife), as the directors hold equal shareholding in the applicant.

The Second Respondent (R2) is the eldest son of the 85 deceased but is the stepson of Sim Foo Yoke. He was employed by the applicant when he was only 18 years old.

The deceased offered him to join as a technician with the scope of work to repair and maintain forklifts.

It was determined by the learned Chairman of the IC that at 90 the material times, R2 was paid between RM26,300.00 and RM35,500.00 every month (exhibit SFY-2, L3), via a practice of issuing a cheque at the beginning of the month and followed by another cheque at the end of the month.

Sometime in 2004, the business of the applicant had 95 expanded, and it opened a branch in Shah Alam to accommodate the increase in the number of forklifts due to limited workspace at the applicant's headquarters in Klang.

R2 was tasked with managing the Shah Alam branch. 100 3.2 Upon the deceased's passing on 16.03.2018, Sim Foo Yoke, as the sole director (then) and sole shareholder, assumed the duties and roles of the deceased in managing the operations and business of the applicant.

3.3 R2 took the position of being constructively dismissed:

In a 10.04.2019 letter to the applicant, R2 claimed:

His monthly salary had been arbitrarily and unilaterally significantly reduced.

His salary for February and March 2019 was not paid.

The applicant had failed to make statutory payment 110 contributions for his EPF and SOCSO.

No work was assigned to him with no lawful justification, which he took as being placed in 'cold storage'.

R2 asked the applicant to respond to his letter by 5:00 pm on 15.04.2019 at the latest; failing which, R2 shall deem 115 himself to have been constructively dismissed.

R2 claimed that the applicant failed to respond within the time requested in his foregoing 10.04.2019 letter, R2 issued another letter dated 15.04.2019 affirming his claim on 120 constructive dismissal:

The said letter and the applicant’s belongings in his possession were handed to Wong Jun Yi (the younger stepbrother and the natural son of Sim Foo Yoke), who was appointed to the board of the applicant after the 125 passing.

The said Wong Yun Ji refused to acknowledge receipt of the letter and the items.

To protect his interest, R2 lodged a police report (16.04.2019) over the incident.

R2 claimed that he only received the applicant’s reply to his letter of 10.04.2019 via email on 14.04.2019 at 05:52 pm, and a hard copy via courier on 27.04.2019.

3.4 The applicant denied R2’s allegations:

On 15.04.2019, the company, via its reply:

Denied R2’s allegations contained in his letter of 10.04.2019.

Requested that R2 present himself at the applicant's office on 19.04.2019 to discuss the issues raised.

In denying R2’s allegations, the applicant claimed that:

The deceased was a co-signatory to the applicant’s bank accounts, and until the issue was resolved with the bank, cheques could not be issued.

(ii) Consequently, R2 was paid in cash from RM6,000 to 145 RM9,000 per month from April 2018 onwards (the learned Chairman of the IC observed that R2 did not receive his second payment of the salary that he used to get from his deceased father from the end of March 2018 onwards).

This is the first time that the applicant stated that they had allegedly received several complaints on the alleged bad performance of R2 and the supposed incomplete work assignments (the learned Chairman of the IC observed this as an afterthought). This allegation had never arisen 155 until R2 issued his letter dated 10.04.2019.

The applicant asserts that R2 failed to attend the applicant’s premises to clarify all issues raised in it’s letter of 14.04.2019. 160

The deceased supposedly died intestate, and it was agreed by Sim Foo Yoke and R2’s family members that the parties would jointly apply for the Letters of Administration (02.04.2018) to manage the estate of the deceased:

However, on 06.04.2018, Sim Foo Yoke produced a 165 supposed Will executed by the deceased that allegedly bequeathed all of the deceased’s estate to Sim Foo Yoke and her children (Wong Jun Wai and Wong Jun Yi were then appointed to the applicant’s board).

R2 challenged the validity of the supposed Will by the 170 deceased at the Shah Alam High Court: BA-22NCVC- 511-10/2018. This suit allegedly caused Sim Foo Yoke to victimise R2.

3.5 Despite Sim Foo Yoke having appointed her two sons as additional directors to the applicant's board five days on 21.3.201, after the 175 passing of the deceased (and amended the bank’s signatories), the learned Chairman of the IC observed that:

The applicant still defaulted in paying the R2 original monthly salary that he had been receiving before the passing of his deceased father. He continued to be paid RM6,000 for 180 January 2019 in February 2019. The learned Chairman of the IC observed that:

Paragraphs 7(a)-(d) of the applicant’s reply (p.105, COB- 2) to R2’s letter of 10.04.2019 clearly stated that the applicant had reduced the salary of R2 due to the 185 downturn of business and his unsatisfactory work performance.

No cogent evidence of poor work performance was adduced at the trial.

No compelling evidence other than a bare assertion to 190 establish the alleged business downturn.

It is a trite law that unilateral reduction of an employee’s salary constitutes a fundamental breach of the terms of employment: Syarikat Permodalan Kebangsaan Bhd v Mohamed Johari Abdul Rahman [2004] 2 ILR 803 195 (Award No.921/2004) that had cited and followed the observation of Gopal Sri Ram JCA in Ang Beng Teik v Pan Global Textile Bhd (Penang) [1996] 4 CLJ 313, CA.

There is no evidence by the applicant company that notification was given to R2 to pick up his salary 200 specifically for February and March 2019, if they were already prepared for R2.

Ceased assigning any work to R2.

Defaulted on statutory EPF and SOCSO contributions since October 2018: 205

The learned Chairman of the IC had observed that Sim Foo Yoke (COW-1), who had been in charge of the applicant’s accounts and was responsible for submitting the EPF and SOCSO contributions, noted that they were not commensurate with the salary of RM25,000.00 to 210 RM30,000.00

The possibility of the applicant having under-declared to the statutory bodies concerning R2’s actual salary could not be ruled out.

COW-1 failed to produce evidence that supports the 215 applicant’s position that R2’s salary was the RM1,200.00 minimum wage requirement. The applicant conjectured that since there is no written employment contract, R2’s claim on his actual salary cannot hold, as it is a far-fetched argument.

The applicant argued that the IC speculate on the truth of that issue.

COW-1 had admitted during cross-examination that before the passing of the deceased, R2’s salary was indeed between RM25,000.00 and RM30,000.00 per 225 month.

In the circumstances, the learned Chairman of the IC took the position that, since there was no written contract of employment, he took an average of RM27,500.00 per month.

3.6 After a full trial, the IC allowed R2’s claim through the Industrial Court Awad No. 2131 of 2023 dated 19.10.2023 and decided amongst others, that the Applicant terminated R2's services without cause and excuse and ordered the Applicant to pay 235 compensation to R2 amounting to RM1,012,000.00 (L.8, exh SFY- 7, PDF 176). THE PARTIES ARGUMENTS 240 [4] I have duly observed and considered the parties' arguments vis-à- vis the findings of the learned Chairman in the Final IC Award (L8, PDF pp. 145-177) as follows (briefly):

(A) The applicant company’s arguments.

4.1 The applicant company argued that:

Grounded on bare assertions, speculations, and slanted interpretations of the facts, the applicant company took the position that the learned Chairman of the IC had committed an 250 error of law and fact in the Final IC Award, favouring R2 on his claim of constructive dismissal. It is a trite law that bare assertions carry no evidential weight, and the Court does not consider speculations. 255

Contradicting its own evidence:

The applicant company argued that there was no fundamental breach of the employment contract of R2 since the payment of the RM6,000.00 is not a reduction of salary but an increment from R2’s minimum wage salary 260 of RM1,200.00.

The learned Chairman observed that COW-1: Sim Foo Yoke in her evidence had testified that she had imposed the salary deduction after consultation with R2 due to the bank account becoming inoperable after the passing of 265 the deceased.

It was further observed that, even after the banks' signatories were amended with the appointment of COW- 1: Sim Foo Yoke's two sons on the board of the applicant, five days after the passing of the deceased, the applicant 270 did not revert to the original salary of R2.

The learned Chairman concluded on the evidence and arguments before him that the applicant company had unilaterally imposed a salary deduction on R2 that constitutes a fundamental breach of R2’s employment. 275 There was no evidence adduced by the applicant company that it had consulted R2 on the matter.

Contrary to the evidence before the IC:

The applicant company made a bare assertion that it did 280 not unilaterally reduce the salary of R2 as claimed, and it did not fail to pay the February and March 2019 salaries that were prepared, but R2 failed to collect.

No compelling evidence was adduced by the applicant company that appropriate notification had been made to 285 R2 to collect his foregoing salaries.

The learned Chairman observed that the applicant did not address the IC on R2’s assertion that he was never informed to collect the supposed cheques, and it had remained so till today.

This is purely an afterthought action by the applicant company to mitigate the breach.

The applicant claimed:

To have paid the statutory contribution for EPF and 295 SOCSO. These statutory contributions were R2’s minimum wage of RM1,200.00 and not the RM25,000.00 to RM30,000.00 as claimed.

However, no compelling evidence was adduced.

The learned Chairman rightly observed that it is a trite law 300 that for so long as R2 remained in employment by the applicant, his statutory contribution to EPF and SOCSO must be settled irrespective of whether he has multiple employment. In default, the applicant is in a fundamental breach of R2’s employment.

If multiple employment is true, and it has not been authorised by the applicant or the deceased, it is for a different forum to address.

The applicant company denies that it failed to provide R2 with work but did not adduce any compelling evidence to establish 310 this. There was never any issue of “cold storage” as the lack of work was due to a decline in business following the deceased's passing. Similarly, these are bare assertions with no compelling evidence adduced. 315 4.2 Using a slanted interpretation of its own letter (15.04.2019) in reply to R2's letter of 10.04.2019, the applicant company distorted the interpretation of the words used, “delegate to be in charge by you,” which does not necessarily mean that R2 was in charge of managing the Shah Alam branch office. Other than this slanted 320 take on the words, no compelling evidence was adduced to establish its denial before the Court.

4.3 The applicant company argued that to ascertain R2’s actual salary, one should deduct the amount of expenses that he uses to maintain 325 his family members. The RM25,000.00 to RM30,000.00 cheques produced by R2 do not establish that it was his monthly salary. The applicant further argued that R2 failed to notify LHDN of his salary in his annual returns. 330 4.4 The applicant company claimed that it had no knowledge of the Shah Alam Forklift business conducted at its branch office in Shah Alam, and by the time it found out, the deceased had passed away.

4.5 R2’s letter on constructive dismissal, dated 10.04.2019, was not 335 accepted by the applicant as it was premature, until R2 clarifies all issues contained in the said letter to the applicant at the proposed joint inspection that he refuses to attend.

4.6 Though entirely irrelevant for the proceedings before the IC:

The applicant made an overreaching argument that the 340 dispute stems from a broken relationship between a stepmother (COW-1: Sim Foo Yoke) and her stepson (R2), where the learned Chairman of the IC had reached his decision under the influence of the stereotypical stepmother-stepchild relationship.

The learned Chairman had mentioned the deterioration of the stepmother-stepson relationship in his observation.

The learned Chairman had committed an error of fact and the law in his determination of the present case. 350 In the circumstances, the applicant company pray that an order for certiorari is warranted to quash the Final IC Award.

(B) The Second Respondent’s (R2) Arguments. [5] In a nutshell, R2 argued as follows: 355 5.1 R2 argued that:

Contrary to the allegation by the applicant company, the learned Chairman of the IC had committed no error of law or fact in concluding that R2 termination was without just cause or excuse to warrant a judicial intervention. A JR application is 360 not an appeal from a decision, but a review of how the decision was made: Menara PanGlobal Sdn Bhd v Arokianathan a/l Sivapiragasam [2006] 3 MLJ 496, CA.

The learned Chairman duly considered the arguments and 365 evidence on R2’s claim on:

His monthly salary had been arbitrarily and unilaterally significantly reduced.

His salary for February and March 2019 was not paid.

The applicant had failed to make statutory payment 370 contributions for his EPF and SOCSO.

No work was assigned to him with no lawful justification, which he took as being placed in 'cold storage'. He rightly found that the applicant company had fundamentally 375 breached the employment contract, thereby rendering the termination without just cause and excuse. There is compelling evidence from the applicant company to negate that finding.

The applicant company, by its letter dated 14.04.2019 380 (paragraph 7(c), pg.77), in reply to R2’s letter of 10.04.2019, expressly admitted that the management of the applicant’s branch in Shah Alam is entrusted to R2.

The suggestion by the applicant company that the actual 385 salary received by R2 is determined by deducting the amount spent on maintaining his family members is not probable. After working for the applicant for over twenty years since 1998, his salary remained at the minimum wage of RM1,200 per month. The learned Chairman had duly considered all these factors.

5.2 The applicant company could not argue that R2 failed to report his annual tax returns when it was them that had made monthly tax deductions and to submit these deductions to LHDN. COW-1: Sim Foo Yoke was the person in charge of the applicant’s administrative 395 and clerical work, and management of human resources. Regardless, this is an issue for LHDN and does not concern this proceeding.

5.3 The learned Chairman had held that from the arguments of the 400 parties during the trial, the applicant ceased to assign any work to R2 from February 2019 to 10.4.2019, when R2 issued the notice for constructive dismissal. This evidence remained unchallenged by the applicant. 405 5.4 Despite the bare claim by the applicant company that R2 failed to collect his salary for February and March 2019, no evidence was adduced that it had been done.

5.5 There is no issue with R2 setting up the Shah Alam Forklift 410 business while under the employment of the applicant company, as it was under the instruction of the deceased, who wanted a separate company for each son. This was a family business:

The applicant company, by its letter dated 14.04.2019 (paragraph 7(f) to (h), in reply to R2’s letter of 10.04.2019 415 admitted they were aware of that operation from August 2018, but they took no action over if it had intended to object. They only raised it as an issue when the constructive dismissal was served. 420

The applicant can’t feign ignorance when the Shah Alam Forklift business was carried out at the applicant’s company, Shah Alam branch, since the signages for the two businesses were on display at the applicant’s Shah Alam branch office. 425

The learned Chairman took notice in his determination that even COW-1: Sim Foo Yoke’s sons, who are now directors of the applicant company, also had competing businesses (WJW Equipment Handling (M) Sdn Bhd). 430 5.6 The applicant company claimed that it had supposedly offered to pay the February and March 2019 salaries as a purely afterthought. No notification was made, and no payment had been made to date. This had been noted correctly by the learned Chairman. 435 5.7 R2 elected not to attend the proposed joint inspection and clarification by the applicant in its 15.04.2019 letter since the applicant had proceeded without his presence on 15.04.2019. There was no necessity for it, which the learned Chairman had taken note of.

5.8 There is no cogent evidence adduced by the applicant that R2 consented to the supposed salary deduction unilaterally carried out by the applicant. R2 had adduced documentary evidence of receiving a salary of RM25,000.00 to RM30,000.00 per month, 445 which the applicant could not negate, as determined by the learned Chairman.

5.9 The learned Chairman of the IC had duly considered all facts, circumstances, and evidence before him at the hearing before the 450 IC in determining, on a balance of probabilities, that the applicant terminated R2 without just cause and excuse. Therefore, R2 prays that the JR application be dismissed with costs. 455 THE LAW [6] Constructive dismissal in a nutshell:

6.1 Constructive dismissal arises when an employee considers himself to be terminated from his contract of service as a result of the employer’s fundamental breach of the terms that were agreed 460 upon. Wong Chee Hong v Cathay Organisation Malaysia Sdn Bhd [1988] 1 CLJ (Rep) 298, SC observed that the role of the Industrial Court concerning a reference under s.20(3) of the IRA 1967 is to ask itself whether there was a dismissal; and if so, whether it was with or without just cause or excuse.

6.2 The Supreme Court ruling in Wong Chee Hong v Cathay Organisation Malaysia Sdn Bhd [1988] 1 CLJ (Rep) 298, was cited and followed by Abdul Malik Ishak J in Moo Ng v Kiwi Products Sdn Bhd, Johor & Anor [1998] 3 CLJ 475, when he 470 said that constructive dismissal (distilled as follows):

It is not a mere label coined to benefit the employee in an industrial dispute.

It is a doctrine that gives life to an employee who has been dismissed without just cause or excuse.

In a broad sense, constructive dismissal occurs when an employer repudiates a contract of employment.

It takes the form of a breach, anticipatory breach or notice of intention.

It may be express or implied, and it must go to the substance 480 of the contract.

What has to be ascertained is whether, in all the circumstances of the case, the responsibilities and duties of the employee have been so altered by the employer as to constitute a breach of a fundamental term of the 485 contract of employment.

6.3 Gopal Sri Ram JCA observed in the Court of Appeal decision in Quah Swee Khoon v Sime Darby Bhd [2000] 2 AMR 2265, CA (distilled) as follows:

The employer, in seeking to ease the workman out of the organisation without facing the consequences, wants to make the process as painless as possible for himself.

The employer usually employs the subtlest of means.

It may be disguised as exercising the management power of 495 transfer, demotion, etc.

Alternatively, steps may be taken to reduce the workman in rank by giving him fewer or less prestigious responsibilities than previously held.

The employer will make life so unbearable for the workman as 500 to drive the latter out of employment.

Normally, the workman, being unable to tolerate the acts of oppression and victimisation, will tender his resignation and leave the employer’s services.

The question will then arise whether such departure is a 505 voluntary resignation or a dismissal in truth and fact.

6.4 The aggrieved employee:

Has the right to leave immediately without giving any notice if the employer’s conduct is sufficiently grave to warrant it. This 510 category of breach affords the employee the option to treat such a breach as immediate and, if repudiatory, to terminate the contract and claim constructive dismissal without further delay. 515

Alternatively, the employee may give notice and declare that he is leaving at the end of the notice period.

However, the employee must act without delay, as he may be taken as having affirmed the contract (and the employer’s 520 conduct) if he continues to work for any length of time without discharging himself from further performance of his work. Such affirmation of his contract would effectively be treated as the employee’s disposal of his right to treat himself as constructively dismissed by the employer.

The court’s consensus concerning such a delay lies in the question of reasonableness and the factual matrix of the dispute before it. Facts and circumstances differ from case to case. Undue delay is generally fatal.

Bayer (M) Sdn Bhd v Anwar bin Abdul Rahim [1996] 2 CLJ 49, HC, was affirmed by the Court of Appeal: [1998] 2 AMR 1801, CA. The HC observed that the applicable test is the “Contract Test,” not the “Test of Reasonableness,” in 535 constructive dismissal cases. Four conditions must be satisfied:

There must be a breach of contract by the employer.

The breach must be sufficiently substantial to justify the employee resigning.

The employee must leave as a consequence of it, and not for any other unconnected reasons.

There must be no undue delay in terminating the breached contract; otherwise, he will be deemed to have waived the breached contract and agreed to vary it.

Govindasamy Munusamy v Industrial Court Malaysia & Anor [2007] 10 CLJ 266, HC added a fifth (5) condition: If the company, despite being given a sufficient notice period, does not remedy the defect, then the claimant is entitled to terminate the contract because of the 550 company’s conduct and the conduct is sufficiently severe to entitle the claimant to leave at once.

The burden lies on the aggrieved workmen to establish constructive dismissal on a balance of probability. When an 555 employee intends to claim constructive dismissal, it is crucial that some form of protest is documented and that a claim for constructive dismissal is stated in a formal communication, such as a letter or email. The resignation should have indicated the employee’s protest of his alleged constructive 560 dismissal either in his resignation letter or in any other document.

Once the aggrieved employee meets the burden, the burden shifts to the employer to establish that the termination was 565 done with cause and excuse.

It is incumbent upon the aggrieved employee to notify his employer of his stand before walking out and lodging a representation to seek reinstatement at the Industrial 570 Relations Department. Under section 20 of the IRA 1967, there must be an act or event amounting to a dismissal of the employee (workman) for the employee to have the statutory right to make the necessary representation. 575 FINDINGS OF THIS COURT [7] In coming to my conclusion, I have examined and duly considered all-cause papers, the evidence, the parties' submissions, and the findings of facts by the learned Chairman contained in the Final IC 580 Award.

7.1 I am guided by the Federal Court in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1 CLJ 269, FC, that observed:

The starting point is for the Court to recognise that in an 585 action for a breach of Contract, it is for the Court to determine who is the innocent party and who is the guilty party.

In coming to this determination, a Court interpreting the facts is entitled to look at the factual matrix forming the 590 background of the transaction.

The factual matrix of the transaction's background includes all material reasonably available to the parties. A breach of Contract occurs when a party to a Contract 595 expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his obligations.

7.2 In this context:

Looking at the facts and background of the present case, I am 600 guided by the Court of Appeal in Guan Teik Sdn Bhd v Hj Mohd Noor bin Hj Yakob & Ors [2000] 4 MLJ 433, CA in observing that the Court must not only weigh such evidence on a balance of probabilities but must also consider the surrounding circumstances and evaluate contemporary 605 documents that may tend to establish the truth or otherwise of a given fact.

In my overall observation of the foregoing paragraphs [1] to [6], I find that there is no error of law or fact to warrant judicial 610 intervention in the Final IC Award.

7.3 Guided by:

The The Supreme Court ruling in Wong Chee Hong v Cathay 615 Organisation Malaysia Sdn Bhd [1988] 1 CLJ (Rep) 298, was cited and followed by Abdul Malik Ishak J in Moo Ng v Kiwi Products Sdn Bhd, Johor & Anor [1998] 3 CLJ 475 that what has to be ascertained is whether, in all the circumstances of the case, the responsibilities and duties of 620 the employee have been so altered by the employer as to constitute a breach of a fundamental term of the contract of employment.

The Court of Appeal decision in Quah Swee Khoon v Sime 625 Darby Bhd [2000] 2 AMR 2265, CA that constructive dismissal arising from a fundamental breach of the service contract may be disguised as exercising the management power of transfer, demotion, salary deduction and etc. The employer will make life so unbearable for the workman as to 630 drive the latter out of employment. The question will then arise whether such departure is a voluntary resignation or a dismissal in truth and fact.

Applying these foregoing principles, I had duly appraised the 635 four fundamental issues raised by R2:

His monthly salary had been arbitrarily and unilaterally significantly reduced.

His salary for February and March 2019 was not paid.

The applicant had failed to make statutory payment 640 contributions for his EPF and SOCSO.

No work was assigned to him with no lawful justification, which he took as being placed in 'cold storage'. As seen from my observations in the foregoing paragraphs [1] 645 to [6] the issues had been established by R2 on a balance of probabilities. Therefore, it has met the 5 requirements of the Contract Test to establish a constructive dismissal that entitles R2 to walk out of his employment set out by the High Court in Bayer (M) Sdn Bhd v Anwar bin Abdul Rahim [1996] 2 CLJ 650 49, HC, and affirmed by the Court of Appeal: [1998] 2 AMR 1801, CA.

There was a breach of contract by the applicant company.

(ii) The breach was fundamental to warrant R2 walking out of his employment.

(iii) R2 had as a consequence walked out of his employment. The employee must leave as a consequence of it, and not for any other unconnected reasons.

(iv) There was no undue delay in R2 exercising his right under constructive dismissal, and the issue of affirmation does 660 not arise.

Govindasamy Munusamy v Industrial Court Malaysia & Anor [2007] 10 CLJ 266, HC added a fifth (5) condition: R2 had given an official written notice of him claiming constructive dismissal in the event the applicant company 665 failed to address his concerns in his 10.04.2019 letter to the applicant.

I find the explanation offered by the applicant company for not responding are merely unsustainable excuses to mitigate the 670 legal consequences.

It is my considered finding, in the circumstances of the case, R2 had acted without any undue delay in exercising his right as required by law in such circumstances. 675 [8] All things considered:

I find the applicant company failed to discharge its burden to establish its case. The facts of this case are not disputed, and 680 neither is the relationship between the parties. I see that there were no errors of law or fact committed by the learned Chairman.

I agree with the findings of the learned Chairman of the IC that 685 R2's employment was terminated without just cause or excuse, and the company arbitrarily and unilaterally reduced his salary that constitutes a fundamental breach in the employment of R2, justifying his position on constructive dismissal from the applicant company.

The determination of the learned Chairman of the IC in the Final IC Award is hereby affirmed. CONCLUSION 695 [9] By and large, on a balance of probabilities, I find the applicant company has failed to meet the legal requirements to prove the merits of this JR application. Accordingly, I dismissed it with costs of RM6,000.00 subject to the allocator fee, to be paid within 45 days from the date of this order. 700 Dated 07.07.2025. HAYATUL AKMAL ABDUL AZIZ JUDGE 705 HIGH COURT OF MALAYA KUALA LUMPUR Counsel For the Applicant Company : Yap Teck Hui together with Gan Soon Ong 710 Messrs. Joyce, Farah, Yap & Gan Counsel For the Second Respondent: Justin Chin Messrs. Justin Chin 715