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MAHKAMAH PERUSAHAAN MALAYSIA KES NO: 18/4 - 2663/04 ANTARA GURNEY PLAZA SDN BHD DAN OH KEAN SWEE AWARD NO: 344 TAHUN 2007 Di hadapan : AHMAD TERRIRUDIN BIN MOHD SALLEH - Pengerusi Tempat : MAHKAMAH PERUSAHAAN MALAYSIA CAWANGAN PULAU PINANG Tarikh Rujukan : 27.8.2004 Tarikh Sebutan : 2.3.2005, 24.3.2005, 3.7.2006, 31.7.2006 Tarikh Bicara : 9.8.2006, 6.4.2007, 6.7.2007, 5.10.2007 Perwakilan : Encik Chin Chon Yen Daripada Tetuan Veon Szu & Co Bagi Pihak Menuntut Encik Leow Tat Fan Daripada Tetuan B.C. Teh & Yeoh Bagi pihak Responden 1

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MAHKAMAH PERUSAHAAN MALAYSIA

KES NO: 18/4 - 2663/04

ANTARA

GURNEY PLAZA SDN BHD

DAN

OH KEAN SWEE

AWARD NO: 344 TAHUN 2007

Di hadapan : AHMAD TERRIRUDIN BIN MOHD SALLEH - Pengerusi

Tempat : MAHKAMAH PERUSAHAAN MALAYSIA CAWANGAN PULAU PINANG

Tarikh Rujukan : 27.8.2004

Tarikh Sebutan : 2.3.2005, 24.3.2005, 3.7.2006, 31.7.2006

Tarikh Bicara : 9.8.2006, 6.4.2007, 6.7.2007, 5.10.2007

Perwakilan : Encik Chin Chon Yen Daripada Tetuan Veon Szu & Co Bagi Pihak Menuntut

Encik Leow Tat Fan Daripada Tetuan B.C. Teh & Yeoh Bagi pihak Responden

1

AWARD (NO. 344 OF 2007)

Introduction

The reference of the Honourable Minister of Human Resource,

Malaysia dated 27 August 2004 is regarding the alleged dismissal of

Encik Oh Kean Kwee (hereinafter referred to as “the claimant”) by the

Gurney Plaza Sdn. Bhd. (hereinafter referred to as “the company”).

The dismissal stated in the reference is 10 September 2001

(hereinafter referred to as “the material date”).

Background

The claimant commenced employment with the company on 23

January 2001 as an Assistant Security Officer (hereinafter referred to

as “ASO”) at a salary of RM1,100.00 per month and an allowance of

RM100.00 per month. This is in accordance with his Letter of Offer

dated 18 July 2001 (“COB 1-10”). The other terms and conditions of

employment contained in COB 1-10 are, inter alia:-

(a) the probationary period was for three (3) months and the

company may at its discretion extend for a further 3 months;

(b) at any time during the probationary period, employment may

be terminated by the company or the employee by giving

either party one (1) month notice in writing or one (1) month

salary in lieu of notice; and

(c) all employees are required to faithfully observe and obey all

the rules, regulations, procedures, practices and policies of

the company.

2

The claimant had in paragraph 7 of his statement of case (hereinafter

referred to as “SOC”) averred that since the commencement of his

employment with the company, he had been subjected to undue

oppression, harassment and hostility from his fellow colleague and

superiors which amounted to grievances at the work place. The

particulars of the oppression, harassment and hostility are as follows:

(a) the claimant was requested by his security officer to cheat

on the monitoring and closing of shop lots, which was part of

his duties;

(b) scolded by and received hostility from the superior, Chief

Security Officer for reporting negligence of work of his fellow

colleagues;

(c) refusal of support and assistance from the superior and

fellow colleagues in carrying out his duties;

(d) refusal of cooperation from the superior and fellow

colleagues in carrying out his duties; and

(e) double standard practiced by the superior in carrying out

duties.

Thus, due to the persistency of the grievances, the claimant was

forced to leave his job on 7 September 2001. However, the company

met the claimant on 10 September 2001 and was told to write in

writing the said grievances. As such, the claimant wrote that letter

(hereinafter referred to as “COB-13”) and in that letter also, he also

sought to resign from the position of ASO with a view of taking up

position of Operation Supervisor as promised by the Centre Manager

of the company. During that time the claimant was told to go on

3

unpaid leave pending investigation by the company of those

grievances. Having failed to hear anything from the company, the

claimant went to the work place on 30.9.2001 and was surprise to be

informed that the company had approved his resignation as stated in

“COB-13” and his resignation was deemed to be effective on 10

September 2001. Therefore in paragraph 21, 22 and 23 of the SOC,

the claimant averred that he was constructively dismissed by the

company since the company has failed to take appropriate action to

prevent or remedy the claimant’s grievances at the work place. In

short, it was alleged by the claimant that the company had at all

material times failed to ensure a safe and proper working

environment for the claimant to carry out his duties. The claimant

thus contends that the company has constituted a serious breach of

company’s obligation as the claimant’s employer. Alternatively, the

claimant also contended that he was wrongfully dismissed by the

company as he was induced by the company through its centre

manager to tendered resignation and therefore his resignation was

involuntary.

The company on the other hand in paragraph 5 and 6 of its

Statement In Reply (hereinafter referred to as “SIR”) denied the

alleged undue oppression and hostility. The company further avers

that it had carried out a detailed internal inquiry of the alleged

grievances raised by the claimant and found that the accusations

made by the claimant were baseless, unsubstantiated or not as

serious as portrayed by the claimant. The company also avers that

the claimant tendered his resignation voluntarily.

4

In the present case, to prove his case the claimant is relying only on

his testimony. The company called a total of two witnesses namely

Mr. Chandran a/l Krishnan (COW1) who was the security officer of

the company at that material time and Mr. Nanda Kumar a/l

Rajamanickam (COW2) who was the assistant security officer of the

company at that material time.

Claimant’s Version

The counsel for the claimant submits that it is clear in the present

case that the company has been in breach of the implied term of

mutual trust and confidence between the claimant and the company.

This is because the company did not ensure a safe, proper and

conducive working environment to enable the employee to work with

dignity, self respect and esteem. The company also failed to

investigate into the complaints of the claimant in this respect. To

support this, counsel for the claimant further submits that that the

claimant has been subjected to undue oppression, harassment and

hostility from fellow colleagues and superiors. He draws the court’s

attention to the following evidence:

(a) There was lack of transparency in working environment or at

least within the security department. This is because the

claimant was prevented from recording negligence of the

workers in the station diary. So it is obvious that the department

was practicing covering up and double standard. COW2 agreed

during examination in chief that any event takes place in the

course of duty should be recorded in the station diary;

5

(b) There was a serious problem of communication of instructions.

This is because no proper instruction on how to carry on duties

is given. There was no written working manual or hand book to

refer. This part of the evidence was not challenged by the

company;

(c) There was a refusal to hand over duty by outgoing security

officer to the claimant at the time of incident;

(d) Fellow colleagues of the claimant were speaking in Tamil at

the work place. The last straw of the incident of confrontation

between the CSO, Chandran (COW1) and claimant on 7

September 2001 noon at the security room when the claimant

was questioned for recording the negligence of Chandran

(COW1) in the station diary. Param and Chandran (COW1)

had again spoke in Tamil and laughed at him after claimant

raised his concerned of work. This act had triggered the

claimant leaving the company

(e) The claimant had stated that from his memory, shutters doors

left unclosed was the most rampant negligence and that he had

actually made record into the station diary as many as 2 or 3

times a week;

(f) The claimant had made numerous complaint to CSO and

Central Manager but no action has been taken; and

(g) The company’s attack over claimant’s conduct of not making

complaints to immediate superior before approaching higher

level of management.

6

The claimant also contended that failure by the company to tender

the station diary an adverse inference that numerous incidents of

misbehavior and negligence at work of security personnel have been

recorded by the claimant shall be drawn pursuant to section 114(g)

of the Evidence Act 1950.

With regards to the issue of induced resignation, counsel for the

claimant submits that the claimant was induced to re sign by the

former Central Manager of the Company one Mr. Eddy Chong. The

claimant further submits that looking into the circumstances of the

case, the conduct of the parties has to be looked with the whole chain

of events. The following circumstances inter alia are as follows:

(a) On 7 September 2001 the claimant was forced to leave from

work place due to grievances in work place;

(b) The claimant was promised a job as operation supervisor in

the company provided the claimant must first resigned from

being a security personnel;

(c) Upon tendering his letter of grievances and resignation on 10

September 2001, the Central Manager approved claimant’s 2 day

unpaid leave for 8 September 2001 and 9 September 2001;

(d) The Central Manager promised the claimant that an enquiry

would be held in relation to his grievances and told him to wait

for his new designation; and

(e) Until the completion of the hearing, the claimant was never

formally informed of the acceptance of his purported

resignation.

7

Company’s Version

The company in its written submission submits that the claimant has

not succeeded in establishing his claim of constructive dismissal, and

or in the alternative, has also failed to sufficiently discharge the

burden of establishing the purported induced resignation against him.

It is the company’s contention that the claimant has failed to prove

the alleged grievances and even if it is proven it does not breach the

fundamental terms of the claimant’s contract of employment which

tantamount to constructive dismissal.

Regarding the alleged harassment suffered by the claimant from his

colleagues, counsel for the company submits that during cross-

examination, the claimant had agreed that conversing in Tamil does

not actually amounts to harassment but the was simply annoyed to

hear his colleagues conversing in Tamil. In further support of this

contention, it is submitted that the company’s 1st witness, COW1, Mr.

Chandran a/l Krishnan had explained in his evidence that he only

conversed in Tamil on personal matters but for official matters they

conversed either in English or Bahasa Malaysia. This piece of

evidence was never challenged by the claimant.

Pertaining to the claimant’s contention that he was told by his

superior not to do site visit for the purpose of recording the opening

and closing times of the shops in the company premises, the

company submits that COW1 did not instruct the claimant to do this.

8

The company’s learned counsel argued that the claimant failed to

produce any witness to support his contention that he was scolded by

the Chief Security Officer, one Mr. Parameswaran a/l Varatharaju for

reporting in the station diary of an unlocked roller shutter and the

presence of contractors on the night of 3.9.2001. In essence,

according to COW1 they were unable to lock the roller shutter at the

basement 2 because it was not in a proper working order and the

matter was already reported in the station dairy. Thus, had the

claimant clarify with the officer on duty or read the station diary he

would not have harbored any wrong impression over the incident.

The company stresses that the claimant’s action in making such entry

in the station diary is merely to project himself unnecessary and to

undermine the authority of his immediate superiors. COW1 had

explained in court during examination in chief that it was not the

practice of the Security Department to write all incidents or

irregularities in the station diary. Regarding the presence of the said

contractors, the company submits that the claimant himself had

agreed during cross examination that the contractors were holding

valid security passes and that it was not wrong for the contractors to

perform their duties at night.

Company’s counsel also submits that the claimant has also failed to

prove that he was mistreated by his colleagues. With regards to the

issue of one security officer, Encik Zoor bin Mat Noor refused to hand

over his duties to him but had instead handed over the duties to

COW1 who arrived later that the claimant on 7.9.2001. The company

9

submits that according to COW1, Encik Zoor bin Mat was merely

complying with the then Chief Security’s instruction that an outgoing

Security Officer should only hand over the duty to an incoming

Security Officer. Furthermore, the claimant at that material time was

only an Assistant Security Officer and therefore Encik Zoor bin Mat

was not obliged to hand over the duties to the claimant. The company

further submits that based on the evidence presented in this court,

the claimant is estopped from claiming that his presence on 7.9.2001

was not stated in the station diary by his superior and thus it had

created an impression that the claimant was absent from work. This

is because it is clear that during cross-examination the claimant

admitted that his name was mentioned in the station diary.

The company also disputed the fact that they prevented the claimant

from performing his duties. In relation to the robbery incident, the

company relied on the admission of the claimant during cross-

examination that he was not given any instruction robberies at

Kelawai Road. COW1 also testified in court that by the time they

arrived at the scene of the crime, there was nothing they could do as

they were too late to arrive at the scene. COW1 further said in court

that the incident had taken place outside the company’s premises

and also it was not within their job description and responsibilities. It

was also contended that the company’s security personnel were not

armed to arrest thieves and robbers nor there were trained to perform

such dangerous task.

10

Based on the facts and evidence, it is the company contention that

there was no fundamental breach of the claimant’s employment

contractual terms whatsoever which would allow for constructive

dismissal. Instead company ventures to submit that the alleged

grievances raised by the claimant were actually due to the claimant’s

misconception.

The company also submits that there was no evidence to show that

the claimant was induced to resign from his assistant security position

because he was promised by the company the position of Operation

Supervisor.

Issue

The Issues for determination before this court are as follows:

(a) whether the claimant had been constructively dismissed by

the respondent;

(b) if the claimant had been dismissed , whether the dismissal

is with just cause or excuse.

Law

The law relating to constructive dismissal has been affirmatively set

out in Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988]

1 CLJ 45; [1988] 1 (Rep) 298 when Salleh Abbas LP said:

“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

11

employer is guilty of such breach as effects the foundations of the contract or if the employer has evinced or shown an intention not to be bound by it any longer....

We think the word “dismissal” in this section should be interpreted with reference to the common law principle. Thus, it would be dismissal if an employer is guilty of a breach, which goes to the root of the contract, or if he has evinced and intention no longer to be bound by it. In such situations, the employee is entitled to regard the contract as terminated and himself as dismissed.”.

Gopal Sri Ram JCA in Quah Swee Khoo v. Sime Darby Bhd. [2001] 1

CLJ 9 had this to say on constructive dismissal:

“There is no magic in the phrase. It simply means this. An employer does not like a workman. He does not want to dismiss him and face consequences. He wants to ease the workman out of his organization. He wants to make the process as painless as possible for himself. He usually employs the subtlest of means. He may, under the guise of exercising the management power of transfer, demote the workman. That is what happened in Wong Chee Hong. Alternatively, he may take steps to reduce the workman in rank by giving him fewer or less prestigious responsibilities than previously held. Generally speaking, he will make life so unbearable for the workman so as to drive the latter out of employment. In the normal case, the workman being unable to tolerate the acts of oppression and victimization will render his

12

resignation and leave the employer’s services. The question will then arise whether such departure is a voluntary resignation or a dismissal in truth and fact...

Constructive dismissal can take place, as we have 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 case, amount to a constructive dismissal...

At the end of the day, the question simply is whether the appellant was driven out of employment or left it voluntarily…... .”.

For constructive dismissal cases, it is trite industrial

jurisprudence that the onus of proof falls on the employee to

prove on the balance of probabilities that the employer has

committed a fundamental breach of the contract of the

employment (See: Chua Yeow Cher v. Tel Dynamic Sdn. Bhd.

[1999] 1 LNS 104).

Thus, in order for the claimant to be able to claim for

constructive dismissal, four elements must be fulfi l led:

(a) there must be a breach of contract by the employer.

This may be either actual or anticipatory breach;

(b) the breach must be a fundamental breach going to the

root or foundation of the contract that is to say that

13

breach must be sufficiently important to justify the

employee resigning or else it must be the last in a

series of incidence;

(c) the claimant must leave in response to the breach and

not for some unconnected reason; and

(d) the claimant must not delay too long in terminating the

contract in response to the company’s breach,

otherwise he may be deemed to have waived the

breach and agreed to vary the contract.

Evidence, Evaluation and Findings

The court will now determine whether, in the circumstances of the

case, the company had breached the contract of employment in a

fundamental manner or had evinced any intention of it no longer

bound by the contract to entitle the claimant to claim constructive

dismissal by the company.

I shall now examine the reasons proffered by the claimant in his

pleadings and in his testimony to support his claim of constructive

dismissal. These reasons he states in answer 10, 11 and 12 in his

witness statement which in substance is stated in paragraph 7 and 8

of the claimant’s pleadings. His reasons are as follows:

“7. The claimant states that since the commencement of his

employment with the company he has been subject to undue

oppression, harassment and hostil i ty from his fellow

14

colleague and superiors which amounted to grievances at

the work place.

8. The particulars of the oppression, harassment and

hostility are as follows:

(a) the claimant was requested by his security officer to

cheat on the monitoring and closing of shop lots, which was

part of his duties;

(b) scolded by and received hostility from superior, Chief

Security officer for reporting negligence of work of his fellow

colleagues;

(c) refusal of support and assistance from the superior and

fellow colleagues in carrying out duties;

(d) refusal of cooperation from the superior and fellow

colleagues in carrying out his; and

(e) double standard practiced by the superior in carrying out

duties.

From the evidence adduced in totality, the court finds that the

claimant’s allegation with regard to him being oppressed harassed

and treated with hostility from his fellow colleague is without basis

and cannot be sustained. Thus, the claimant had failed to prove his

case on a balance of probability that the company were guilty of

significant breach which went to the root of his contract of service. My

reasons are as follows:

15

(a) Cheating

As regards to the allegation by the claimant that he was

requested by his security officer to cheat on the monitoring and

closing of shops, the court is unable to accept this contention.

This because COW1 in his evidence vide witness statement

categorically denies that he had at any point of time asked the

claimant to cheat the recording of times and also in absence of

any evidence adduced to the contrary by the claimant. It is also

pertinent to note that COW1 during cross-examination

strenuously denied his involvement with claimant’s allegation.

(b) Scolding

The claimant alleged that he was scolded by the CSO, one Mr.

Parameswaran a/l Varatharaju for reporting in the station diary

of an unlocked roller shutter and the presence of contractors on

the night of 3.9.2001. After perusing the evidence adduced in

this case, once again there is no cogent evidence upon which

the claimant may justify his allegation. It was abundantly clear

from COW1’s testimony when he said as follows in his witness

statement:

“Q: It was averred in paragraph 2 of the letter, that on entry

at the basement 2-cold storage was not locked. Were you

aware of this?.

A: Yes. The roller shutter of the entrance at Basement 2 was

not in proper working condition at that time and therefore

we were unable to lock the shutter at the basement 2 on

that day. Anyway it was not crucial to lock the shutter as

16

the glass door at the basement 2 and the shutter at

Basement 1 was locked on that day.

Thus, from the above evidence, it is the opinion of the court that

there is no reason for the CSO to scold the claimant since

COW1 said “it was not crucial to lock the shutter as the glass

door at the basement 2 and the shutter at the Basement 1 was

locked on that day”. In this aspect also, I am in agreement with

counsel for company submission that had the claimant read the

station diary or clarify with COW1 he could have been aware of

the actual situation and not harbored under the wrong

impression over the said incident.

Regarding the presence of contractor’s workers in the

company’s premises on the night of 3.9.2001, the claimant

himself said during cross-examination that they said workers

were actually permitted to enter the premises because they

were holding security passes and also cleared by the security

officer on duty at that material time. The evidence of the

claimant is also corroborated by COW1. Hence, it is crystal

clear that it is not mundane for the claimant to report the

presence of the contractor’s workers in the station dairy.

In this regard, I am also mindful of the fact that COW1 has

given evidence unequivocally that it was not the practice of the

Security Department to record all incidents in the station diary

and the correct procedure was for the claimant to report the 17

matter to the security officer on duty. If the matters could not be

resolved, the said officer should report the matter to the Chief

Security Officer.

In light of the above, it would appear that it is highly improbable

for the claimant to allege that he was scolded for recording the

said incidents.

(c) Refusal of support, assistance and cooperation from superior

and fellow colleagues in carrying out duties

With regards to the robbery incident involving a tenant of a

shop lot in Gurney Plaza at Kelawai Road where the claimant

said he was prevented by COW1 to go to the scene to provide

assistance, I agree with the explanation given by COW1 that

the incident took place outside the company’s premise and not

within their job description and jurisdiction. From the claimant’s

evidence, the court also found that he had rightfully conceded

during cross-examination that his job was to direct the traffic

and not to stop robbery.

In respect of claimant’s allegation that when he reported for

duty on 7.9.01, one security officer, Encik Zoor bin Mat Noor

refused to talk and to hand over the duties to him. Again it is the

court’s opinion that there was no truth in claimant’s claim. This

is because the court finds that the uncontroverted evidence of

COW1 clearly shows that Encik Zoor was merely complying

with then Chief Security’s instruction that an outgoing Security

18

Officer should only hand over the duty to an incoming Security

Officer. COW1 further testified that the claimant was only the

assistant security officer at that time. In the circumstances,

there is no basis to the claimant’s contention.

As for claimant’s contention that Encik Zoor failed to put his

name in the station diary when he handed over the duty to

COW1, suffice for this court to say that from page 11 (part of

the station diary which was confirmed by COW2) of the COB it

is apparent and blatantly clear that claimant’s name was

mentioned in the said diary.

It is also the contention of the claimant there was a serious

problem of communication of instructions. This is because the

claimant alleged that there was no proper instruction on how to

carry on duties is given. There was no written working manual

or hand book to refer. On this issue, the court is satisfied when

COW1 has stated in his evidence that there was no written

instruction and he had learnt the security department’s

procedures through his experience working with the company.

(d) Double standard

The claimant alleged that he had suffered from his colleagues

because they had frequently conversed in Tamil during his

presence. It is the finding of this court that the claimant’s

allegation is unjustified and cannot be supported. The court

finds that the explanation given by COW1 to be reasonable.

19

This is because COW1 in his testimony said as follows vide

witness statement:

“As far as the usage of Tamil language, I conversed in that

language only on personal matters, such as going to the

temple. I conversed in Bahasa Malaysia and English on

official matters.”.

What was more perplexing for the court was that during cross-

examination the claimant agreed that he was not harassed but

rather felt annoyed when his colleagues were conversing in

Tamil.

(e) Failure by the company to tender the station diary

The law on section 114(g) of the evidence Act 1950 is very

clear that an adverse inference can be drawn only if there is

withholding or suppression of evidence and not merely on

account of a failure to obtain evidence. It may be drawn from

withholding or suppressing not just any document but a material

document (see: Munusamy Vengasalam v. PP [1987] CLJ (rep)

221 SC). In the instant case, there is no evidence to suggest

that the company was suppressing the production of the station

diary. This is because COW2 came to court and successfully

explained that he had made three searches in the Chief

Security Officer’s office but still could not find the said diary. In

the upshot, the non production of the said station diary does not

derogate the evidence COB page 11 but instead shows the

20

failure of the claimant to prove his case. As such, there is no

basis for this court to invoke section 114(g) of the Evidence Act

1950.

(f) Induced resignation

On the question of induced resignation claimed by the claimant,

with respect this court disagrees with this contention. Firstly, a

scrutiny of the evidence shows that apart from claimant’s oral

evidence and mere assertions, there is no other evidence to

support his claim. Claimant’s resignation letter (page 13 and 14

of COB) itself is clear that the claimant wanted to resign

because of grievances at his work place and not because he

was promised the position of Operation Supervisor by Mr.Eddy

Chong.

Secondly, in the case of Bata (M) Bhd v. Normadiah Abu Suood

[1991] 2 ILR 1106 Steve LK Shim, Chairman of the Industrial

Court (as he then was) had observed as follows:

“Now, industrial tribunals have consistently held that a “forced

resignation” is a dismissal: See Scott v. Fomica Ltd [1975]

IRLR 105; Spencer Jones v. Timmens Freeman [1974] IRLR

325. It has also been held that the use of persuasion by an

employee to obtain employee’s resignation may be a

dismissal: see Pascoe V. Hallen & Medway [1975] IRLR 116.

Again that a resignation will be treated as a dismissal if the

21

employee is invited to resign and it is made clear to him that,

unless he does so, he will be dismissed : see Easf Sussex

Country Council v. Walker [1972] 7.I T.R. 280.”.

In the present case, from the evidence led, the claimant has

failed to establish that he was invited to resign by the company.

As such, I of the view that the claimant’s resignation was not

motivated by inducement.

For the reasons adumbrated above, the claim against the company is

hereby dismissed.

HANDED DOWN AND DATED THIS 27TH FEBRUARY 2008

(AHMAD TERRIRUDIN BIN MOHD SALLEH) CHAIRMAN

INDUSTRIAL COURT

22