Legal Updates 23 of 2011

Constructive Dismissal – when can an employee consider himself dismissed.

CASE:

Encik Mohd Pauzi Bin Abd Hamid v Swiss-Gardens Rewards Sdn Bhd, Industrial Court Case No 9/4-274/08

ISSUE:

Constructive Dismissal – when can an employee consider himself dismissed.

BRIEF FACTS:

• The Claimant (Mohd Pauzi) had commenced employment with the Respondent (Swiss-Gardens) as a Swiss Ambassador to secure sales and close RM60,000 nett worth of sales per month.
• Mohd Pauzi’s wife had threatened to divorce him and he applied for leave from 01.06.2007 to 12.06.2007 to sort out the matter. The leave application was approved by the Sales Manager; Mohd Pauzi’s immediate superior.
• However, when he went back to work on 13.06.2007, the Branch Manager refused to allow him to resume work and took his access card. Mohd Pauzi tried to go back to work the next day but the same thing happened. 
• Mohd Pauzi then, via his solicitors, wrote a letter to state his objection to the matter and that it constituted a breach of his contract of employment. Swiss‐Gardens did not reply.
• Mohd Pauzi then referred his case to the Industrial Relations Office.
• The Branch Manager claims that he had a discussion with Mohd Pauzi about his poor performance at work and that Mohd Pauzi voluntarily resigned because he was unable to meet his sales target and lost interest in his work.
• Mohd Pauzi denies that the meeting took place and furthermore, no written warning or other letters were issued to Mohd Pauzi and Swiss-Gardens also has no record of any misconduct or suspension or action taken against him.
• Swiss-Gardens contended that the Sales Manager could not have approved Mohd Pauzi’s leave as the authority to do so was with the Branch Manager.
• Swiss-Gardens claims that this proves that Mohd Pauzi did not go on leave, but had voluntarily resigned.

 DECISION: Mohd Pauzi’s claim allowed.

• The burden is on Mohd Pauzi to prove that he was constructively dismissed.
• In his testimony, the Sales Manager had shown that his signature was required in the leave application form, implying that his approval was also necessary and the authority to approve leave was not with the Branch Manager alone.
• There was no documentary evidence of any written warnings or letter or any allegations of misconduct or suspension against Mohd Pauzi.
• As such, it was unlikely that the alleged meeting to discuss his poor performance took place and thus, Mohd Pauzi has proved that he was constructively dismissed.
• By refusing to allow Mohd Pauzi to resume work and collecting his access card, Swiss-Gardens has committed a breach of contract so as to entitle Mohd Pauzi to consider himself dismissed.
• If the claimant has proven that he was constructively dismissed, the burden is on the employer to show that the dismissal was with just cause and excuse.
• Swiss-Gardens failed to show any evidence that Mohd Pauzi voluntarily resigned and also failed to support it with any documentary evidence.
• The Court reinstated Mohd Pauzi with no lost of benefits or seniority together with twelve months backwages.