12(14)/4-231/14

INDUSTRIAL COURT OF MALAYSIA

CASE NO. : 12(14)/4-231/14
BETWEEN
NORMALINA BINTI MANSOR
AND
MSU HOLDINGS SDN. BHD.

AWARD NO.: 790 OF 2017

Before : Y.A. PUAN NOOR RUWENA BINTI DATO’ MOHD

NURDIN - CHAIRMAN

Venue : Industrial Court of Malaysia, Kuala Lumpur

Date of Reference : 12.2.2014

Dates of Mention : 17.4.2014, 3.7.2014, 24.7.2014, 25.9.2014,

13.10.2014, 10.11.2014, 24.11.2014, 24.11.2014,
9.1.2015, 15.1.2015, 24.3.2015, 10.4.2015,
23.7.2015, 7.9.2015, 26.10.2015,
7.9.2015, 4.1.2016,
26.10.2015, 4.1.2016,
27.1.2016, 1.3.2016, 11.3.2016 4.4.2016
12.4.2016, 19.5.2016, 20.6.2016.

Dates of Hearing : 24.4.2015, 27.4.2015, 28.4.2015.

Representation : Mr. Mahindarjit Singh

From Messrs Mahindarjit & Co
Counsel for the Claimant

: Mr.Shanker and Ms. Juanita Chua

From Messrs Shanker & Arjunan
(Acting as counsel for the Company)

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Mr. Koh Yew Chong

From Messrs Lee & Koh
Counsel for the Company

Reference:

This is a reference made under section 20(3) of the Industrial Relations Act
1967 (the Act) arising out of the dismissal of Normalina Binti Mansor (hereinafter
referred to as “the Claimant”) by MSU Holdings Sdn. Bhd. (hereinafter referred to as
“the Company”) on 2 May 2013.

AWARD

1. The Ministerial reference in this case required the Court to hear and determine
the Claimant’s complaint of dismissal by the Company on 2 May 2013 and was
received by the Industrial Court on 14 March 2014.

2. This reference has been transferred, upon the instructions of the President of
the Industrial Court on 11 April 2017 and with the consent of the both parties, from
Court 14 to Court 12 for the writing of the Award as YA Tuan Kamaruzaman b. Ab.
Jalil, the former Chairman of Court 14 has gone on transfer. The last submission
was filed on 20 June 2016 and the matter has been pending since. Thus, in the
interest of justice the Chairman of Court 12 has been directed by the President to
hand down this Award. In this regard, the Court relies on the authority of Bax Global
(Malaysia) Sdn. Bhd. (now known as Schenker Logistic [Malaysia] Sdn. Bhd.) v.
Sukhdev Singh s/o Pritam Singh and Anor, (R3-25-162-09) where reference was
made, inter alia to subsection 23(6) of the Industrial Relations Act 1967 [Act 177] by
the learned Judicial Commissioner. It was held in the said case that in order to
obviate grave hardship being caused, the case need not be heard de novo. And the
Award written by another Chairman in similar circumstances was upheld by the
appellate Court. Hence, as Chairman of Court 12 that have been tasked with this
matter, I have written this Award based on my reading, perusal and evaluation of the

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facts and evidence contained in the notes of proceedings and from the documents
made available to Court 14.

Factual Matrix

3. The Claimant’s claim was that she had been constructively dismissed from her
employment at the Management and Science University (“the University”) by the
Company on 2 May 2013. What brought about the claim for constructive dismissal?
The Company contended that it had received information, through an anonymous
letter that was sent to it, that the Claimant had e-mailed certain documents pertaining
to the Company’s University’s syllabus and teaching methods for Years One and Two
of its medical degree programme to a third party (CLW2). The Company therefore
suspended the Claimant with half pay vide its letter dated 29 March 2013, pending
investigations. The Claimant was then given a show cause letter dated 9 April 2013
to explain herself on two (2) allegations as follows:

“1. That on Wednesday, 20th February 2013, you had allegedly

distributed and/or sent out private and/or secret and/or
confidential information belonging to the Company to a third party
without prior written consent of the Company. You had also
allegedly disclosed to a third party trade secrets and/or
confidential operation and/or processes and/or dealings and/or
information concerning the organisation, business and/or affairs
of the Company. This act is clearly in breach of the terms and
conditions of your employment;

2. That you had continuously failed to work a minimum of twenty

four (24) hours per week as per the stipulations as contained in
your contract of employment from the period of 1st Jan to 19th
March 2013.”.

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4. The Company contended that the Claimant had responded to the show cause
letter but merely made a bare denial in her letter dated 12 April 2013. The Company
proceeded to hold a domestic inquiry (“DI”) against the Claimant on 3 charges, which
contained more details of the allegations against the Claimant. However, according to
the Claimant, the third allegation raised at the DI was never a ground for the show
cause letter and which were as follows:

Charge No. 3

“It has been reported that on the 25.01.2013, 29.01.2013, 31.01.2013 and
1.02.2013, you, DR. NORMALINA BINTI MANSOR [STAFF NO. L806] had
not conducted the classes yourself but has instead requested other
individuals to replace you without prior approval. This is clearly in
breach of the terms and conditions of your employment.”.

5. At the DI, according to the Company, the Claimant either refused to answer
questions relating to the allegations or gave vague answers. What became clear
during the DI was that she did, in fact, send out the e-mail to CLW2 containing the
said confidential information. The Company therefore found her guilty of all the
allegations against her as per the findings made by the DI panel. The Company
further contended that before it actually handed to her a termination letter dated 2
May 2013, the Claimant handed in a letter dated the same on 2 May 2013 claiming
that she had been constructively dismissed by the Company. The only reason given
in the letter for her claim of constructive dismissal was that the Company had
suspended her, contrary to the terms in her Employment Agreement (“the Contract”).

6. The Company in its letter dated 7 May 2013 denied that the Claimant had
been constructively dismissed and that the allegation of constructive dismissal was
an attempt by the Claimant to avoid disciplinary actions and punishment (of
termination) that was meted out to her pursuant to the DI.

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Issues and Law

7. The Claimant prays that this Court holds her dismissal as being without any
just cause or excuse and/or is in breach of the principles of natural justice and/or is
an unfair labour practice and/or is unlawful and for reinstatement in her former job
and position. She has made her representation under section 20 of Act 177 and
where such representations have been made and are referred to the Industrial Court
for inquiry, it is the duty of the Court as stated by the Federal Court in the case of
Wong Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd. and another
appeal [1995] 2 MLJ 753 to determine whether the termination or dismissal is with or
without just cause or excuse. In Hotel Malaya Sdn. Bhd. & Anor v. National Union
of Hotel, Bar & Restaurant Workers & Anor [1982] 2 MLJ 237 it was stated that in
exercising this quasi judicial function, the Court’s functions comprise an investigation
of the facts, an analysis of the facts, findings of facts and lastly the application of the
law to those findings. Hence, the role of the Court is to determine whether the
Claimant was indeed dismissed on 2 May 2013 and if so, whether the dismissal was
without just cause or excuse. Although it is incumbent upon the Court to inquire into
the issue of justness or the excuse on its merits, the Court must first be satisfied that
the Claimant was dismissed. Since this is a claim for constructive dismissal, the fact
of dismissal is for the Claimant to establish on a balance of probabilities.

8. It was pleaded by the Company that by handing in the constructive dismissal

claim, the Claimant had attempted to avoid disciplinary action and the punishment
meted out against her and that she was not constructively dismissed from the
University and prays for her claim to be dismissed. It was also pleaded that as her
representation was based on the alleged constructive dismissal, the matter of the
Claimant’s dismissal vide the Company’s letter is therefore not before this Court.
Was she constructively dismissed then as claimed in her letter to the Company?

9. Based on the evidence and documents presented in this case, the Court has
only to consider whether the Claimant had indeed been constructively dismissed by
the Company from her employment at the University.

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10. The Supreme Court in the case of Wong Chee Hong v. Cathay Organisation
(M) Sdn. Bhd. [1998] 1 MLJ had to consider an important question of law, namely,
whether the doctrine of constructive dismissal came within the ambit of subsection
20(1) of Act 177. In interpreting the particular subsection, Salleh Abas LP at page 95
stated as follows:

“The common law has always recognised 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…”.

11. The test of constructive dismissal was laid down in the English Court of
Appeal in the case of Western Excavating (EEC) v Sharp [1978] 1 All ER 713. Dr.
Ashgar Ali Ali Mohamed in his book, Dismissal From Employment and The
Remedies (2007), examined the development of this doctrine and at page 121 he
listed down the four conditions in the English case above, that must be satisfied by
an employee in order to succeed in a claim for constructive dismissal as follows:

(i) that the employee must show that the employer no longer intends to be
bound by one or more of the essential terms of the agreement;

(ii) the employee must leave the employment immediately for reason of the
employer’s breach and for no other cause;

(iii) the employer’s breach must be significant one, going to the root of the
contract, entitling the employee to terminate it without notice; and

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(iv) the worker had not terminated the contract before the employer’s
breach.

12. The case of Suechi Industries Sdn. Bhd. v. Umah Jeralene Louis
Adailalasani [2005] 1 ILR 54 endorsed this view where it stated that it was well
established whether or not there has been constructive dismissal is to be determined
by the contract test (the aforesaid conditions) being established by the Claimant at
the hearing. If the Claimant succeeds in satisfying the “contract test” then the burden
will shift to the Company to prove that the dismissal was with just cause and excuse.

13. Reverting to the case of Wong Chee Hong v. Cathay Organisation (M) Sdn.
Bhd. (supra) the learned judge further at page 95 stated:

“…We think that the word 'dismissal' in this section should be

interpreted with reference to the common law principle. Thus it would
be a dismissal if an employer is guilty of a breach which goes to the root
of the contract or if he has evinced an intention no longer to be bound
by it. In such situations the employee is entitled to regard the contract
as terminated and himself as being dismissed. (see Bouzourou v. The
Ottoman Bank [3] and Donovan Invicta Airways Ltd. [4]).

In Bouzourou's case an employee would have been entitled according to

the Privy Council, to regard himself as being dismissed if his transfer
from one province to another province rendered him exposed to an
immediately threatening danger of violence or disease to his person.

And in Donovan‟s case the Court of Appeal held that when the conduct
of an employer was such that it rendered the continuance of the
employee‟s service impossible, the later was entitled to treat the contract
as at an end and to obtain damages for wrongful dismissal”.

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14. Did the employer’s conduct amount to a fundamental breach going to the root
of the contract which entitled the employee to resign? Further, did the employee
leave at the appropriate point in time soon after the employer’s conduct of which he
complained had occurred? If the employee leaves in circumstances where these
conditions are not met, there will be no dismissal within the meaning of Act 177 as he
will be held to have resigned. In deciding to leave because of the constructive
dismissal, the employee must not delay too long in determining the contract.
Otherwise he may be deemed to have “condoned” the employer’s conduct or waived
the breach and agreed to vary the contract.

15. In the current case, the facts relating to the Claimant’s history of employment
were not disputed. The Court will then focus on the facts and evidence surrounding
the period of a few weeks up to 2 May 2013 which culminated in the two letters. The
Court will resolve these issues in accordance with the facts, evidence and principles
of law.

16. In order to successfully defend an unfair dismissal claim, the burden of proof is
on the employer on the balance of probabilities to show that the reason for
dismissing the employee falls into one of the two categories set out in subsection
20(3) of Act 177. The termination of the employee will be deemed to have been
unjust unless an employer can prove that the employee was dismissed for a just
cause or excuse. Even if an employer succeeds in proving that there was a reason
for the dismissal of the employee, it is for the Industrial Court to decide whether the
dismissal was warranted or not in accordance with, inter alia, equity, good
conscience and the substantial merits of the case (subsection 30(5) of Act 177).

Evaluation by the Court

The Claimant‟s case

17. The Claimant’s case opened with the testimony of the Claimant’s husband, Dr.
Mohd. Daud Bin Sulaiman (“CLW1”). On 18 February 2013, CLW1 wrote a letter to
the Malaysian Medical Council (“MMC”) (at pages 12-13 of CLB) thereby submitting
an application by the Claimant’s son, Mohd. Syafiq Bin Mohd. Daud dated 18

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February 2013 for Credit Transfer from Year 2 of the University’s Medical Faculty to
Year 2 of the Medical Faculty of SEGI University, a competitor university (at pages
14-16 of Claimant’s Bundle of Documents (“CLB1”)). It was stated that subsequently,
the application was approved by the MMC on 6 March 2013. He testified that on 19
March 2013, Dato’ Mohd. Shukri Ab Yazid, the President of the University who was
also his patient, came to see him at CLW1’s clinic in KPJ Damansara Specialist
Hospital. The purpose of the visit was to discuss 2 issues, namely regarding:

(i) the transfer of CLW1’s son to SEGI University; and

(ii) an accusation that his wife, the Claimant, had instigated 6 other
students to leave the University.

During that meeting, he informed Dato’ Mohd. Shukri that whatever the University
decided it must be done in a good and proper way. The Court notes that Dato’ Mohd
Shukri was not called as a witness. Therefore the accusation against the Claimant
on the instigation matter cannot be proven or tested in Court.

18. The case then proceeded with the testimony of Dr. Samiah Yasmin Binti Abdul
Kadir (“CLW2”) who was a Professor of Family Medicine at SEGI University. She
knew the Claimant as they were colleagues in University Kebangsaan Malaysia
previously. She was aware of the impending application for Credit Transfer by the
Claimant’s son. In CLW2’s Witness Statement (CLWS2), it was stated that in an
application for Credit Transfer of a Medical Degree Programme to another university,
the student’s original university must send to the new university their Curriculum and
Academic Calendar, which documents will be forwarded by the new university to the
MMC for approval of transfer, along with the applicant’s required academic
qualifications/documents. At that time, she was also a Panelist, Accreditation for
Medical Programmes appointed by the MMC and Malaysia Qualifying Agency (MQA)
since 2010. She stated that on 20 February 2013 she received an e-mail from the
Claimant with 2 attachments. She could not open one of them which were supposed
to be module guides for Years 1 and 2 students as the file may be corrupted. She
could, however, open the second attachment which was an academic calendar.

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19. In her testimony during the cross-examination, CLW2 said that after she
received the e-mail from the Claimant, she called the Claimant later to inform her that
the attachment could not be opened. She could not remember if she had informed
the Claimant in writing. In her cross-examination also, CLW2 informed the Court that
the Claimant’s son’s transfer to SEGI University was done without SEGI University
having sight of the modules and academic calendar before the transfer. Further
according to her, SEGI University need not have sight of those documents in order to
process the transfer. She agreed with the Company’s counsel that the Claimant “has
no business” sending those documents to her. The requirements for Credit Transfer
for a Medical Degree Programme (as contained in pages 1-4 of the Claimant’s 2nd
Additional Bundle of Documents (“CLB3”)) was issued to all universities.

20. Interestingly, CLW2 claimed that her e-mail account was hacked by someone
on or about 25 April 2013. She lodged a police report No. Kota
Damansara/003415/13 on 2 May 2013. Later she found out that a snapshot of her
personal e-mail communication to a Dr. Nicole Shilkofski on 18 February 2013 (and
irrelevant to this proceeding) was exhibited in the Company’s Bundle of Documents
(“COB1”) without her permission or consent obtained. CLW2 lodged a police report
No. Kota Damansara/001982/15 on 25 February 2015 regarding the use of her
personal e-mail communication by the Company in this proceeding as her permission
was not first obtained. It was her testimony that she never received or saw the
documents that was e-mailed by the Claimant (since her e-mail account was
hacked).

21. On 27 April 2015, the Claimant (“CLW3”) commenced her testimony in Court.
The Claimant started her evidence by informing the Court of her academic
qualifications and employment history. The Claimant was in employment with the
Company for the period from 1 February 2011 until 2 May 2013 as a Professor of
Ophthalmology and Dean of International Medical School at the Management and
Science University, which is a private higher institution of learning owned by the
Company. The terms and conditions of the employment then were as contained in
the Contract (pages 2-6 of CLB1). According to Clause 3 of the Contract, the
employee was to serve for a period of 3 years until 31 January 2014. At the end of

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the 3 year period, her employment shall be reviewed for permanent employment
pending satisfactory performance of the job duties as a professor. During the 3 year
contract period, the employee may be terminated with 3 months’ notice without
compensation and without assigning any reasons thereto. The total remuneration
package was RM25,000 per month.

22. The Claimant also signed a pledge of allegiance to the University (appended
at page 7 of CLB1). Apart from serving at the University, she was required to provide
clinical services at the Jabatan Oftalmologi, Hospital Sungai Buloh (“the Hospital”)
effective from 1 February 2011 vide an official arrangement with the Hospital (as per
letter appended at page 9 of CLB1). This means that the Claimant was also to be
based at the Hospital. The clinical services would comprise 1 session of clinical work
and 1 session of surgery. Clause 6 of the Contract stated that the hours of work were
24 hours per week (3 days a week). Clause 8 of the Contract provided for the place
of work which was the Employer’s premises at University Drive in Section 13 Shah
Alam or such other places within Malaysia as determined by the Employer (in this
case, the University).

23. In the Claimant’s Witness Statement (CLWS3), it was stated that based on the
said letter, her place of work as determined by the University was at the Hospital,
effective 1 February 2011. Nevertheless, the Court is of the view that it cannot mean
that the Hospital was the only place where the Claimant was to carry out her duties
as she was also required to work at the University’s premises in Shah Alam from time
to time. Her job duties included performing duties suitable to the Post of the
employee and doing any other related matters incidental to the Post including
administrative work as and when required.

24. On 20 December 2012, the Claimant had a discussion with the President of
the University. She highlighted the various issues discussed then in her report to the
University’s Vice-Chancellor dated 26 December 2012 (as per pages 10-11 of CLB1).
At page 10 of CLB1, in paragraph 4 of the report which was in the form of an e-mail
to Professor Dato’ Dr. Junainah Abd. Hamid (the Vice-Chancellor of the University), it
was stated as follows:

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“…My 3 days commitment at MSU (for administrative, teaching as well

as MSU-obligation to provide services at the KKM-MSU teaching hospital as
been agreed upon between MSU and myself) and 2 days of private practice
…”)”.
The Court takes note that the 2 private practice days were on Thursdays and
Fridays. Despite the abovementioned 3 days, according to the Claimant, she also
provided her services at the University on Thursday and Friday mornings whenever it
was required of her. On 4 January 2013, the Claimant’s deanship at the International
Medical School of the University ended and one Dr. Aziz Ayob was appointed as the
new Dean.

25. The Court was then presented with the evidence on the earlier said application
for the Claimant’s son’s Credit Transfer to SEGI University. Pursuant to the said
application, the Claimant had requested via e-mail for module guides for years 1 and
2 as contained in the Company’s Bundle of Documents “COB 2” and “COB3”, from
one Prof. Dr. Sudha Suresh, the Associate Dean at Bangalore Medical Campus in
India, who had sent the same to the Claimant via e-mail dated 20 February 2013.
The Claimant, in turn had on 20 February 2013 e-mailed the said modules and
academic calendar in the form of attachments to CLW2. In the Claimant’s
Supplementary Witness Statement (CLWS3A), she said that the documents were
never shown to her at the DI. She also stated that the documents were given by her
to Dr. Sudha Suresh during the Claimant’s visit to IMS Bangalore Campus, to assist
her in the accreditation of MBBS programme at IMS Bangalore, India between April
and July 2011. According to her, they were in draft form only and had not yet been
endorsed during her tenure at the University.

26. Later the Claimant received a letter (page 19-20 of CLB1) from Dato’ Sharifah
Huda Engku Muda, Vice-President Administration and Resources, Management and
Science University dated 29 March 2013 informing her that she has been suspended
from employment for a period of 14 days with immediate effect until 12 April 2013
and with half pay pending investigations on several allegations whereby the Claimant
had purportedly committed several breaches of the salient terms as contained in the
Contract. The suspension was done in accordance to Clause 19.3 of the Contract.

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27. Vide letter dated 9 April 2013 (pages 21-22 of CLB1), the Claimant was
required to show cause on the 2 allegations as stated at pages 3-4 above. In view of
the gravity of the alleged misconduct, the Claimant was further suspended at full pay
for a period of 14 days from 12-25 April 2013. The Claimant was required to reply to
the show cause letter by 16 April 2013. The Claimant duly responded to the show
cause letter in her letter dated 12 April 2013 (pages 23-24 of CLB1) wherein she
denied both allegations. In respect of the first allegation, the Claimant stated that the
findings of the University were vague, baseless and did not specify nor disclose what
she had allegedly disseminated to a third party, which in all probability denied her of
her fundamental right to be given a reasonable opportunity of being heard.

28. In regard to the second allegation, the Claimant explained that she had
complied with the terms of the Contract and the Memorandum of Understanding
(MOU) between KKM-MSU and MMC requirements which included teaching and/or
training of undergraduates Year 4 MBBS, MSU and conducting End-of-Posting
Examination for the mentioned students as well as providing clinical services to
MSU-teaching hospital. According to the Claimant, she spent substantial hours at the
Hospital, which was one of the University’s teaching hospitals to carry out her duties
because essentially the University had failed to provide clerical assistance and
facilities including a room, computer and internet facilities for a person of her position,
these being facilities that she said was promised to her by the Vice-Chancellor, and
that were readily available to be used freely by her at the Hospital. Further, the time
tables at the University and patients’ and operation lists at the Hospital, among
others, were some of the documents available for inspection to show proof of her
attendance, hence, refuting the allegations that she had not complied with the
requirement of 24 hours of work per week.

29. Despite the explanation given, a DI was held on 30 April 2013 whereby notice
to that effect was given in a letter dated 23 April 2013 (pages 28-29 of CLB1) and 3
charges were preferred against the Claimant as set out earlier.

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30. At the DI, the by the Claimant was given the opportunity to defend herself. She
denied all charges and stated third charge was never raised in the show cause letter.
The Claimant claimed that Charge No. 1 pertained to stolen documents and she
would exercise her right after that meeting. The notes of the DI were as per pages
31-38 of CLB1. Apart from denying the allegations, she stated during the DI that it
was not feasible for her to return to the University from the Hospital at the end of a
teaching day just to record her thumb print in the system. There was no such
recording system at the Hospital. In CLWS3A, she stated that the University and the
Hospital did not provide her with punch-card facilities.

31. Subsequent to the DI, on 2 May 2013 the Claimant enquired via e-mail on her
status as a staff of the University. She did not receive a reply. Hence, the Claimant
tendered in a letter dated 2 May 2013 (page 39 of CLB1) stating that she had been
constructively dismissed. The letter referred to her 2 consecutive periods of
suspension commencing 29 March 2013 and which ended on 30 April 2013 and that
according to her was the reason for her giving notice to the University that she had
been constructively dismissed. On the same day, the Claimant was given a letter
dated 2 May 2013 (pages 40-41 of CLB1) from the Company terminating her
services at the University as the panel in the DI had made its findings on the 3
charges and the Company agreed with the findings that all charges against her had
been proved. Particularly, the first charge constituted a very serious misconduct and
the Company decided to dismiss her with immediate effect.

32. The Claimant on the same day lodged a police report No. SEK 11/003970/13
(page 42 of CLB1) that her personal e-mail account was purportedly hacked by
someone as she had never authorized anyone at the University to access her
account except for the Assistant Registrar, Pn Nur Hidayah Abdullah. The Claimant
found out about the breach when, at the DI, she was shown snapshots of her
personal e-mail communications with Dr. Sudha Suresh and CLW2. Later, she also
lodged a complaint on 13 May 2013 at the Suruhanjaya Komunikasi dan Multimedia
Malaysia regarding the alleged hacking of her e-mail account.

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33. The Claimant pursued her case of constructive dismissal at the Jabatan
Perhubungan Perusahaan Selangor on 21 May 2013 for reinstatement under
subsection 20(1) of Act 177. Since efforts for conciliation failed, the matter was then
referred to the Minister of Human Resources and a reference by the Minister dated
12 February 2014 was sent to the Industrial Court and was received on 14 March
2014.

34. The Claimant also appended a letter dated 18 January 2013 (page 52 of
CLB1) from Bahagian Pinjaman Perumahan, Perbendaharaan Malaysia that a
cheque was rejected by the latter (purportedly issued by the University) for the
amount of RM775.00 being monthly payment for her government housing loan. She
had also complained to the Employees Provident Fund that her monthly deductions
made by the University from March 2011 until April 2012 were not credited in full to
the statutory body. Eventually, the deductions were fully credited by the University by
28 September 2013. Documents pertaining to this matter are as per pages 56-64 of
CLB1.

35. Under cross-examination, the Claimant agreed that she was duty bound to
protect information belonging to the University and that she was to work for 24 hours
per week for the University. Under Clause 15.2 of the Contract, she agreed that as
an employee, she was bound by that clause in that she shall not at any time, whether
during or after her employment with the University, use or disclose to any person,
firm or company whatsoever nor print or publish any secret or confidential
information, matter or thing relating to the University or its business except in the
proper performance of her duties under the Contract or with the written consent of
the University.

36. It is necessary to examine certain provisions in the Contract first to understand

what were among the salient terms of the Contract which will be produced in some
parts in this Award.

37. Clause 17 stated that the Employer has the prerogative to effect immediate
dismissal of an employee within 24 hours and without compensation should the

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Employer find that there have been practices which are detrimental to the Employer’s
interests.

38. The provisions of Clause 19 on discipline are as follows:

19.1 Disciplinary actions may be taken against an employee in the event of
misconduct, inefficiency or indiscipline inconsistent with the fulfillment
of the express or implied conditions of service.

19.2 The Employer may after due inquiry and in consideration of the gravity
of the case:
a) issue a letter of warning to the employee; or
b) suspend the employee with half (1/2) pay for up to two (2) weeks; or
c) downgrade/demote the employee to a lower grade job and reduce
his salary accordingly; or
d) dismiss the employee with verbal and written notice.

19.3 For the purpose of an investigation or inquiry, the Employer may

suspend the employee from work for a period not exceeding two
(2) weeks, with half pay. Where the investigation or inquiry does
not disclose any misconduct of the employee, the Employer shall
restore the full amount of pay so withheld (emphasis added).

39. The Claimant, under cross-examination, stated that she was aware of the
provisions of Clause 15.5 on copyright and the pledge of allegiance that she had
signed upon taking up the job offer. When referred to the suspension letter, she
agreed that when she received the letter on 29 March 2013 she did not write to the
University that they have no right to suspend her services. She agreed that in her
letter to reply to the show cause letter, she had made a bare denial in paragraphs (a)
and (b) of that letter in response to the first allegation and no explanation was given
at that time.

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40. The Claimant did not agree with the Company’s Counsel that the word
“competitor” is not applicable to medical education “but in business, maybe”. She
agreed that she did not obtain written consent of the University before sending the
modules to CLW2. She agreed that she was given 7 days to prepare for the DI and
that the notes of the proceedings in the DI that was given to her were accurate. She
agreed that at the DI she did not give any explanation in respect of Charge Nos. 1
and 3. She agreed that from the date of suspension on 29 March 2013 to the date of
dismissal on 2 May 2013, she had not written to the University to state that they have
fundamentally breached the Contract. She agreed that apart from stating that she
had been wronged she had not given any reason for her claim of constructive
dismissal. She did not agree that the explanation given in respect of Charge No. 2
during the DI was not stated in the reply to the show cause letter.

41. Based on copies of the timecard that was exhibited by the Company in its
bundle, the Claimant agreed that she did not fulfill the requirement on working hours
for January and February 2013. She agreed that based on the timecards, the
University had a valid reason for conducting the investigation against her. She
disagreed that the Hospital was not her place of work as her name was stated in the
letter at page 9 of CLB1. Apart from the said letter, she did not receive any other
letter that she was to be based at the Hospital. She disagreed that she was to also
carry out her duties at the University campus. She also disagreed that she had not
produced any proof of her attendance at the Hospital. The evidence is in the form of
a monthly schedule at pages 25-27 of CLB1 that she prepared as an attachment to
the reply to the show cause letter. The Court takes note that the Claimant had
prepared the monthly schedules to be attached to her reply to the show cause letter
and did not attach photocopies of the relevant pages of her work schedule/diary
instead.

42. The Claimant testified that Dr. Zurina Zainal Abidin who had replaced a class
session on her behalf on a Friday (practice day) was not an employee of the
University but she was an invited lecturer. The Claimant agreed that she had invited
Dr. Zurina but did not obtain written approval of the University. She agreed that the
University had to pay Dr. Zurina for her services. She also confirmed that she had

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invited Dr. Rosilah Mohamad to teach on Thursday (private practice day) but 29
January 2013 was a Tuesday. Dr. Rosilah had apparently replaced her class on that
Tuesday instead of Thursday. There was no written approval from the University too
in this case. She had approved the claims for the 2 doctors. In CLWS3A, the
Claimant claimed that this arrangement for replacement lecturers did not then
become an issue during her deanship. On 29 January 2013, she stated that she was
in the operation theatre together with some MBBS students in accordance with her
schedule.

43. The Claimant testified that the draft modules were partly handed to the
students. She stated that the reason for giving the draft modules to CLW2 was for the
purpose of transferring her son to SEGI University. In CLWS3A, she contended that
the draft modules were not classified as private, secret or confidential and this means
that they have not been finalized or copyright controlled.

44. During re-examination, the Claimant informed the Court that she did not write
to the University at first after 29 March 2013 as she had to obey the provisions on
Clause 19.3 of the Contract. As she was further suspended for a period of 14 days
after the first suspension, she contended that it was contradictory to Clause 19.3.

45. This Court takes note that snapshot 3 was printed without the Yahoo Mail
background and date. The Claimant contended her e-mail account was hacked and
certain communication used as snapshot 2 during the DI. According to her, this was
a breach of confidentiality but the Court takes this to mean a breach of her privacy.
She also complained that she had requested for 2 employees of the University to be
her witnesses at the DI but the Company did not call them to the inquiry.

46. In response to the question that she was not based at the Hospital, the
Claimant stated that historically after 1997 when the Government stopped building
teaching hospitals, the Ministry of Health had agreed to allow any university to use its
facilities as teaching hospitals. This was effected via an MOU between the Ministry,
various universities and MMC. No fees were paid for this but in return, the clinician
lecturer is to provide services at the Hospital. Further, the lecturers have to teach

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their own students there. She stated that she had complied with the requirement
under the MOU and also taught Year 4 students of the University using the facilities
of the Hospital. In order for her to teach the students, the Claimant needed to provide
clinical services where she could see patients and treat them, operate on them and
follow-up with them. She said on many occasions, lecturers required more than 1
clinical session.
47. In respect of the 2 replacement lecturers, the Claimant explained that they
were invited for 2 reasons. Firstly, to assist her in the teaching. Secondly, to increase
the number of lecturers so that the lecturer-student ratio is increased for accreditation
purposes.

48. She further stated that if she had bad intentions against the University (that is,
not because of her son’s application for transfer), she would have given the full
complete set of module guides for Years 1-5 and for which Years 3, 4 and 5 are more
important.

49. One point to note here is that in the Claimant’s Additional Bundle of
Documents (“CLB2”), she had exhibited proof that her e-mail account was hacked
whereby a an e-mail was sent to her Year 2 student by the name of Dalvin Singh on
7 March 2013 attaching the module guides but it was also never received by the said
recipient. The Court wonders why the “offending” communication to CLW2 on 20
February 2013 was sent using her personal e-mail account when she has an account
with the University as evidence in the e-mail dated 26 December 2012. Question
was not asked on this. Nevertheless, the Court notes that no technical expert to
explain on the issue of the corrupted attachments or hacked e-mail was called as a
witness and hence, the Court does not have the benefit of exploring further on the
alleged hacking of e-mails issue. Needless to say, whether or not the fact of the
hacking of e-mails was established, it is an undisputed fact that the Claimant had
sent that personal e-mail on 20 February 2013 to CLW2 and without the prior
consent of the University.

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The Company‟s case

50. The Company’s sole witness was Dato’ Sharifah Huda Engku Muda (COW1),
the Vice-President of Administration and Resources of the Company. According to
her, a snapshot of an e-mail from the Claimant to CLW2 with attachments containing
the Company’s confidential information was sent to the Company anonymously
(pages 9-10 of COB1). The attachments contained the syllabus and content (of a
medical course) taught to the Company’s medical students at the University.
According to her, the attachments were confidential documents because with the
information, any party will have knowledge of its teaching techniques and teaching
material. The information contained therein may be used by any party to commence
a degree course in medicine. She contended that it was highly confidential and that
the Claimant knew it was confidential. The e-mail also contained the academic
calendar of the University, in respect of the Medical Faculty. The e-mail was
purportedly sent to the Deputy Dean of the Faculty of Medicine of SEGI College, a
competitor of the University. The Claimant did not seek the Company’s consent
before sending out the e-mail to CLW2.

51. The Company suspended the Claimant with half pay for a period of 2 weeks in
its letter dated 29 March 2013 and signed by COW1 as per Clause 19.3 of the
Contract in order for the Company to commence investigation when it received the
anonymous information on the e-mail to CLW2. Then a show cause letter dated 9
April 2013 was issued to the Claimant by COW1 on behalf of the Company to explain
on 2 allegations against her, the main one being the allegation of disclosure of
confidential information belonging to the Company. The second allegation was that
the Claimant had failed to fulfill her minimum teaching obligation of 24 hours per
week as stipulated in the Contract. It was in this show cause letter that the Company
further suspended the Claimant for a period of 2 weeks from 12 to 25 April 2013 with
full pay. According to COW1 in respect of the first allegation, the Claimant simply
denied it in her letter dated 12 April 2013 and on the second allegation, she claimed
that she spent substantial hours at the Hospital and that the Company failed to
provide her with clerical assistance and facilities such as internet (and an office).

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52. A domestic inquiry was duly held on 30 April 2013 and subsequently, the
Company received a letter dated 2 May 2013 from the Claimant purporting to claim
that she had been constructively dismissed from her employment due to the
suspension of her services by the Company. The Company via letter also dated 2
May 2013 terminated her services with immediate effect at the University as the
panel in the DI had made its findings on the 3 charges and the Company agreed with
the findings that all charges against her had been proved, particularly that the first
charge constituted a very serious misconduct on her part which warranted an
immediate dismissal. The Company later in a letter dated 7 May 2013 to the
Claimant, denied that the Claimant was constructively dismissed. The period of
suspensions were to enable the Company to conduct investigations into “certain
irregularities and allegations of misconduct” against the Claimant (page 43 of CLB1).
The Company viewed the Claimant’s letter as an attempt by her to avoid disciplinary
action and the punishment meted out against her. In its Statement in Reply, the
Company had also denied that it had wrongfully accessed the Claimant’s e-mails.

53. The Company claimed that it had not breached the Contract in any way as it
had information that the Claimant had sent confidential information belonging to it to
a third party that worked for a competitor. It had acted within its rights to protect itself.
In any event, it said that the Claimant had been found guilty of the allegations against
her, and the fact that she had sent out confidential information to a competitor was
enough to justify a dismissal.

54. Under cross-examination, COW1 informed the Court that from 1 February
2011 to 2 May 2013, the Vice-Chancellor of the University in charge of academic
matters was Prof. Dato’ Dr. Junainah Abdul Hamid. She was not called as a witness
for the Company. She stated that they received snapshot 3 anonymously via post
which was the e-mail but with no “Yahoo” background, only that the content is the
same as the e-mail (page 10 C0B1).

55. COW1 informed the Court that she was not involved in the DI although she
had seen the notes of the inquiry previously. She agreed that the second period of

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suspension from 12 to 25 April 2013 was not provided for in Clause 19 of the
Contract. The Claimant was supposed to show cause by 16 April 2013. She
disagreed with Counsel’s suggestion that her answer in respect of the show cause
letter was incomplete. COW1 admitted that she was the person who drafted grounds
(a) and (b) of the show cause letter dated 9 April 2013. COW1 agreed that on 29
March 2013, she had already received the information that the e-mail was sent to
CLW2. She agreed that she had failed to state in ground (a) the type of information
that was sent to CLW2. She agreed that the Claimant had responded to the lack of
detail on misconduct (a) at page 15 of COB1.

56. On misconduct in ground (b), she agreed that from the evidence submitted of
the Claimant’s calendar, it covered the months of January and February 2013. She
agreed that if CLW3 had failed to work for 24 hours per week she would have been
able to spot it based on the calendar. She however stated that the Claimant had
failed to work for 24 hours per week despite the proof submitted. She agreed that she
did not specify which particular week of the months of January and February 2013
that the Claimant had failed to work for 24 hours per week. Nevertheless, the
Claimant had responded to allegation in ground (b). These were the only 2 grounds
of misconduct stated in the show cause letter. She agreed that Charge No. 3 in the
Notice of Inquiry was not stated in the show cause letter. Hence, she agreed that the
Claimant was not given the opportunity to answer to Charge 3 when the show cause
letter was issued as it was not in there then.

57. She admitted that she had received the e-mail dated 26 April 2013 (CLB1 at
page 30) but she did not inform the 2 employees requested by the Claimant to be
present at the DI and they in fact were not present at the DI. It was put to the witness
that the termination letter dated 2 May 2013 was not in accordance with the terms of
the Contract. It was objected by the Company’s Counsel as the issue before the
Court is one of constructive dismissal. Claimant’s Counsel stated that all the events
that took place culminated in the form of the termination letter. The Court will discuss
this issue later in this Award.

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58. COW1 stated that the Notice of Inquiry was the point of continuation of the
second suspension period at full pay although it was put to her that it was the third
suspension. When referred to pages 10-11 of CLB1, she stated that she was not
sure if she had received that e-mail dated 26 December 2012 which was the report to
the Vice-Chancellor. She said that she did not know the Claimant did not teach on
Thursdays to Fridays as it was private practice day for the Claimant. She did not
know that Dr. Rosilah and Dr. Zurina were invited lecturers. There was no
documentary evidence of payments made to them. Further under cross-examination,
she stated that although the module guides were not kept at her office, she was
aware of the contents. She agreed that it was only a draft guide. She also agreed
that she knew the Claimant’s son was a student at the University then. At that time
she did not know that he had applied for a credit transfer and came to know about it
only later after the case came about.

59. In re-examination, she stated that the Claimant did not ask her to inform the 2
employees to attend as witnesses at the DI. Nevertheless, the Court takes note that
the content of the Notice of Inquiry did state that the Claimant was to submit the
names of the Company’s employees that she wanted to be called as her witnesses at
the DI by 26 April 2013, and which the Claimant did just that in her e-mail to COW1
dated 26 April 2013. In the Court’s view, COW1 had taken a too simplistic stand in
this regard by her answer and she could have at least forwarded the e-mail to the
employees named therein or to its Human Resources Department or Section. In
passing, the Court noted that the Claimant did not state what was the relevance of
the roles of Prof. Dato’ Dr. Junainah Abd. Hamid (Vice-Chancellor of the University)
and Prof. Dr. Azizi Ayob to her defence. It was not pleaded in the Statement of Case.

The Domestic Inquiry

60. The Court will address the issue of the DI because the Claimant claimed that
she was not given a fair hearing when she was unable to have the 2 employees
produced at the inquiry. It is well established that so long as at the domestic inquiry
the rules of natural justice had been properly applied and the Claimant had been
given the opportunity to be heard and to present his case then if a finding has been

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made against the Claimant based on the evidence which had been presented to the
domestic inquiry, the Court ought to consider its findings in order to conclude whether
the employee has been dismissed with just cause or excuse – see Metroplex
Administration Sdn. Bhd. v. Mohamed Elias [1998] 5 CLJ 467.

61. In Bumiputra Commerce Bank Bhd. v. Mahkamah Perusahaan Malaysia &

Anor. [2004] 7 MLJ it was held that where a domestic inquiry has been held the
Court’s jurisdiction is limited to considering whether there was a prima facie case
against the employee and whether the domestic inquiry's notes of proceedings were
accurate. In fact, in the case of Workmen of the Motipar Sugar Factory Private
Limited v. The Motipar Sugar Factory Private Limited AIR 1965 SC 1803 it was
held that if an inquiry has been held the Court should not interfere unless they want
the inquiry to be fair. The Court is also to consider whether the decision of the panel
of inquiry was perverse or otherwise.

62. In Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeal
[1997] 1 CLJ 665 at page 716 it was held that:
“The fact that an employee has conducted a domestic inquiry against his
workman is, in my judgment, an entirely irrelevant consideration to the
issue whether the latter had been dismissed without just cause or
excuse. The findings of a domestic inquiry are not binding upon the
Industrial Court which rehears the matter afresh. However it may take
into account the fact that a domestic inquiry had been held when
determining whether the particular workman was justly dismissed”.

63. In Bharat Forge Co. Ltd. v. A.B. Zodge and Another (1996-11-LLJ-643)
(SC) the Court had held that a domestic inquiry may be vitiated by either for non-
compliance of the rules of natural justice or for perversity. Any disciplinary action
thus taken on the basis of a vitiated inquiry does not stand on a better footing than a
disciplinary action with no inquiry. Two principles emerge from this, that the
principles of natural justice must have been adhered to at the domestic inquiry stage
and where the domestic inquiry has been vitiated for some reason the Court can hear
the case de novo.

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64. In the present case, there was a DI held on 30 April 2013. The facts of what
occurred in the DI have been set out above. It was argued by the Claimant's Counsel
that the Company failed to call the 2 persons she requested to be present at the DI
and had therefore resulted in her inability to provide her defence. It is the Court's view
that this is an immaterial consideration as they could have been called at the hearing
of the case when the Court hears the case de novo. In any event, the Claimant was
given the opportunity to defend herself at the DI but she did not wish to discuss the
matter then as according to her, it involved stolen documents and she had denied all
allegations. The Court also finds that the Claimant did not specifically plead in the
Statement of Case that the absence of the 2 employees had jeopardized her case at
the DI. She only stated in paragraph 14 that she will be calling 2 witnesses at the DI.

65. Under these circumstances, as there was no evidence called on behalf of the
Claimant then, the Court considers that it will only be prudent not to rely on the notes
of the said DI held and its findings but to go through all other evidence that are
available before the Court and rule as to whether the Company has proved the
charges leveled against the Claimant and whether the said charges are just reasons
for her dismissal. Nevertheless, as this was a claim for constructive dismissal, it is for
the Claimant to prove the ingredients of the claim, not the Company. Hence, the
Company did not pursue this point further in the trial as that would have been at odds
with its defence which was it did not dismiss her since the Claimant was going on the
basis of constructive dismissal.

66. Charge No. 1 that was preferred against the Claimant was on the issue of
disclosure of confidential information belonging to the Company. The Claimant
submitted that updating of the issues to the Vice Chancellor via e-mail dated 26
December 2012 showed the problems faced by the University and this was
unchallenged. In the Court’s views this point is immaterial. The Court finds that the
Claimant has a personal interest in the said application for credit transfer as it
involved her own son who was a student at the University and this developed into a
conflict of interest in the turn of events when she sent the e-mail to CLW2 on 20

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February 2013. From the communication sent to CLW2, it appeared to have been
sent informally as these words were used by the Claimant to CLW2:
“Min, I have sent the module guides from Bangalore.”.

67. The guidelines issued by the MMC are not specific on the first part of
submission of the application for credit transfer apart from stating in Lampiran A
“Permohonan Pindah Kredit Dihantar ke Institusi Yang Menjadi Pilihan Pelajar” as
exhibited in the Claimant’s 2nd Additional Bundle (CLB3). But the Court accepts the
testimony of CLW2 that the student’s original university must send to the new
university their Curriculum and Academic Calendar, which documents will be
forwarded by the new university to the MMC for approval of transfer, along with the
applicant’s required academic qualifications/documents. CLW2 had also agreed that
the Claimant “had no business sending those documents to her”. Even if the
University had been facing problems in the medical school, the Claimant’s action in
personally transmitting the confidential information was not justified. In the Court’s
view, it should have been sent officially by the University to SEGI University and that
would have avoided the fact of conflict of interest here. The fact that CLW2 was
unable to open the module guides was also irrelevant to the issue that the Claimant
did send the e-mail out to a third party, which was not in accordance with the
Contract terms. The Court finds that her action was a blatant breach of the
Company's policy as stated in the Contract and which was repeated in the pledge of
allegiance that she had signed. The relevant parts of the pledge are as follows:

“(iii) Will not act in any manner that will cause my personal affairs to be in
conflict with my responsibilities towards MSU;
(iv) Will not act in any manner that will cause reasonable doubt that I had
allowed my personal affairs to be in conflict with my responsibilities
towards MSU to the point where they affect my position as an officer of
MSU;
(v) Will not use my position as an officer of MSU for my personal gain;…”.

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68. The Claimant submitted that the charges against her were vague and not
specific, thereby denying her from adequately and completely answering the
allegations. The Court finds that the charges contained enough information for the
Claimant to be alerted to what were the allegations against her. Particularly, the fact
that she knew 20 February 2013 in Charge No. 1 referred to the e-mail that she had
sent to CLW2 and she claimed that it was not validly obtained. She lodged a police
report on the breach of privacy which showed that she was aware of what fact the
Company was referring to in regard to the disclosure of confidential information
charge. The Court is of the view that the allegation that her e-mail account was
hacked does not vitiate the validity of the anonymous information which was sent to
the Company. The fact, as submitted by the Claimant, that it is the subject of a police
report lodged on 2 May 2013 (only after the DI was held and Charge No. 1 preferred
on 23 April 2013), is also immaterial in the opinion of the Court. The undisputed fact
is that the Claimant sent the e-mail dated 20 February 2013 to CLW2, contrary to the
terms of the Contract.

69. The fact that the Claimant had not benefitted from sending the module guides
is an irrelevant issue to the seriousness of her action in the first charge. There was
also allegation by the Claimant against the Company that it wanted to constructively
dismiss her because she already instigated the 6 students to leave the University.
The alleged instigation by the Claimant on 6 students of the University remains that,
just an allegation against her which was not even in the charges preferred in the
Notice of Inquiry. Hence there is no clear evidence on this issue for the Court to
consider that it could have led to the alleged constructive dismissal. It must be borne
in mind that the only ground for the alleged constructive dismissal was the periods of
suspension imposed on the Claimant. In the face of such evidence and facts, the
Court concludes that the Claimant was guilty of Charge No. 1 relating to the
Claimant’s disclosure of confidential information belonging to the University to a third
party. If the Claimant had not brought her case on as constructive dismissal, the
Court would have found based on the evidence available on Charge No. 1 alone, that
the Company has just cause and excuse for dismissing the Claimant. The Court will
discuss further on the issue of the first charge in determining whether the Claimant
has succeeded in proving constructive dismissal later in this Award.

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70. As for the other allegations against the Claimant, the Court accepts the
evidence adduced by the Company against the Claimant which show that the
Company had valid reasons at that time for believing that she had failed to perform
the required number of hours of work. In this regard, the Court finds that the
investigation into the second allegation was warranted. At that point of time she was
already under suspension with half pay for investigations into the first allegation,
when the show cause letter was issued on 9 April 2013 for the Claimant to explain on
the 2 allegations. The Court nevertheless accepts the Claimant’s explanation about
why her recorded attendance at the University was not full that she was also working
at the Hospital as part of the 24 hours per week requirement as per the terms of the
Contract.

71. On the third allegation of replacing her classes with the services of other
persons not employed by the Company, there was no evidence whether the 2
lecturers were subsequently paid for their services. But this is not an important point
for the Company on whether or not they were paid to prove the charge against her as
the Court accepted the Claimant’s explanation on why she had to get the 2 external
lecturers to conduct her classes. The Claimant also had raised the point that the
Company did not produce the third allegation when the show cause letter was issued.
As far as the Court is concerned on this point, the Company is entitled to prefer the
number of charges against the Claimant for the purposes of the DI as it deems
proper, although in this case it was one less charge in the show cause letter.
Moreover, the third charge was added after their investigations had been completed
and the Notice of Inquiry issued via letter dated 23 April 2013 and she agreed that
she was given 7 days to prepare for the DI.

Application of the Law on Constructive Dismissal

72. The Company submitted that the burden in a case of constructive dismissal is
on the employee to prove that there has been a fundamental breach of contract, and
that such breach was not rectified by the employer. The proper test for such a claim
to succeed is the contract test. Unreasonable behaviour by an employer cannot by
itself amount to a fundamental breach of contract.

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73. The Company submitted that it acted on information that was made available
to it. The Company gave the Claimant a chance to explain. She chose not to. The
Company suspended her pending the explanations and the domestic inquiry. Where
then, was the fundamental breach of contract? The Company prayed that the
Claimant’s claim be dismissed accordingly. In support of its submission, the Company
relied on Wong Chee Hong. The relevant passage is at page 96 of the report, where
the Court held as follows:

“Looking at the award, it is clear to everyone that the Industrial Court in

coming to the conclusion that the appellant was dismissed did not
misdirect itself in law. The court only spoke of constructive dismissal in
the context of the contract test. It never made any reference to the
reasonableness test. This is made clear by the following passage at page
9 of the award:

„past cases of constructive dismissals dealt with by this court……are

agreed that whether or not there has been a constructive dismissal is to
be determined by the contract test: that is, did the employer‟s conduct
amount to a breach of the contract which entitled the employee to
resign? And did the employee make up his mind and act at the
appropriate point in time soon after the conduct of which he complained
had taken place.‟

We accept this passage to be the correct statement of law. The questions

asked by the Industrial Court in fact are similar to that part of the
judgement of Lord Denning M.R. in Wester Excavation‟s case where the
learned Master of the Rolls set out the contract test. Only in those
circumstances can an employee be held to be constructively dismissed
and that is what constructive dismissal is”.

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74. The Company also relied on the case Bayer (M) Sdn. Bhd. V Anwar Bin
Abdul Rahim (1996) 2 CLJ 49 on the contract test application where it was held as
follows:
“Thus it is settled law that the test applicable in a constructive dismissal
case is „the contract test‟ and not the „test of reasonableness‟. To claim
constructive dismissal, four conditions must be fulfilled. These
conditions are:
1. There must be a breach of contract by the employer;
2. The breach must be sufficiently important to justify the employee
resigning;
3. The employee must leave in response to the breach and not for any
other unconnected reasons; and
4. He must not occasion any undue delay in terminating the contract,
otherwise he will be deemed to have waived the breach and agreed to
vary the contract.

(See Wong Chee Hong v Cathay Organisation, supra)

If the employee leaves in circumstances where the conditions have

not been met, he will be held to have resigned and there will be no
dismissal within the meaning of the Act.

75. Before applying the law to the present case, we need to look at the chronology
of events first. The Claimant claimed that she was dismissed by the Company’s act
of suspending her. From the facts, the Claimant was suspended with half pay from
29 March to 12 April 2013. She did not raise the issue that the Company has
breached/repudiated the Contract at that point in time as the suspension was done
according to Clause 19.3 of the Contract.

76. Then a second period of suspension, with full pay, was imposed upon her from
12 – 25 April 2013, this notification being in the form of the show cause letter to the
Claimant from the Company dated 9 April 2013. The Claimant’s reply to the show
cause letter was dated 12 April 2013 and which was acknowledged by the Company

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in its Notice of Inquiry dated 23 April 2013. In her Witness Statement (CLWS3), the
Claimant stated that it was at this very point in time (upon receipt of the show cause
letter) that she first considered that the Company was constructively dismissing her
on the grounds of a vague allegation of her disseminating confidential information to
a third party and failing to complete 24 working hours per week as per the Contract.
The third suspension was the further suspension which she claimed was unjust and
not provided for in the Contract. Needless to say, she did not leave or claim
constructive dismissal then but had instead waited to defend herself at the DI on 30
April 2013.

77. The third period of suspension from 26-30 April 2013, as the Court will refer to
it, is an extension of the second suspension period which leads up to the date of the
DI. She did not give any warning to the Company or asked the Company to rectify
any breach during the period of 12-30 April 2013 (when the first period of suspension
ended up until the date of the DI), which was a total of 18 days. In CLWS3, the
Claimant stated that it was at this second point in time that she again considered, and
this time very strongly, that the Company was constructively dismissing her on the
grounds that the third charge mentioned in the Notice of Inquiry was never a basis in
the grounds for her to show cause previously. She claimed that she was not afforded
a reasonable opportunity of being heard on this charge at the show cause stage. But
even then at that point in time, the Claimant did not immediately inform the Company
that she considered herself as being constructively dismissed. Instead, that letter to
the Company was only given on 2 May 2013 which makes it a total of 20 days after
the first period of suspension ended.

78. The Court applies the cases of Wong Chee Hong and Bayer and agrees with
the Company’s submission on this point of acting without “…undue delay in
terminating the contract, otherwise he will be deemed to have waived the
breach and agreed to vary the contract…”, having considered very thoroughly the
facts and chronology of events in this case.

79. The Company also submitted that the Claimant considered herself dismissed
as she knew that she was guilty of the allegations against her. The only reason given

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for her claim was the suspension. The question therefore arises as to whether the
Company had a right to suspend her pending the inquiry. It is well settled in Industrial
Law that an employer has the right to suspend an employee pending investigation or
an inquiry. An authority on point is the case of BSN Commercial Bank & Anor v.
Arumugam Ramasamy [2006] 4 ILR 2569, where the Industrial Court held as
follows:

“It is the bank‟s contention that they had the right to suspend the
claimant pending investigations to determine whether or not to take
disciplinary action against him. The bank relies on the case of MBF
Finance Bhd. V Abdul Aziz bin Hashim [1995] 2 ILR 753 (Award no. 458 of
1995) which was cited in the case of Eon Bank Bhd. V Goh Lee Miang
[2003] 1 ILR 226 (Award no. 1083 of 2002) where it was held as follows:

„It would appear that while the claimant is prepared to concede that an
employer has the right to suspend an employee during the pendency of
a domestic inquiry, the former has no such right during the pendency of
the investigations into the complaints made against the latter. In this
regard the claimant is inviting the court to hold that while the employer
has the right to suspend an employee during the actual process of
determining the guilt or otherwise of the charges of misconduct
performed against him, no such right, whatever the circumstances,
exists when the employer is in the process of determining whether or not
there are sufficient grounds in the first place to prefer charges against
an employee.
The Court does not think that the exercise founded upon a technical
distinction between an investigation and an inquiry….advance the
claimant‟s case very far. There must be; and the court holds that there is
an implied right vested in an employer to suspend an employee with full
pay during the pendency of investigations into the allegations of
misconduct of the latter with the view to the employer arriving at a
decision whether or not to prefer formal charges of misconduct against
the employee.

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The Court is in agreement with the bank‟s submission on this point. It is

the court‟s findings that notwithstanding the absence of a specific
provision in the Letter of Appointment (CLE2) which states that the bank
has the right to suspend the claimant for purposed of investigations into
possible misconduct, there is nevertheless an implied power to so
suspend as long as the suspension is with pay and there is cause or
basis for such suspension.

80. The Company submitted that it had a basis for suspending the Claimant. The
first suspension was done in accordance with the terms of Clause 19.3 of the
Contract. There was therefore no breach by the Company then, and in any event the
Claimant never complained about the suspension on half pay. As for the period after
the first 2 weeks, the Company submitted that the law as stated above is directly on
point. There is therefore no breach of contract by the Company.

81. The Claimant submitted that the second suspension was unnecessary as the
Company had all the facts before it then. The Court takes note from the documents
available, that investigations appeared to have been completed around the time that
the Notice of Inquiry dated 23 April 2013 was issued when the third charge was
preferred. Hence, the Court is of the view that as at 9 April 2013, there was a valid
ground for the Company to decide for the suspension to continue. If the charges had
not been proven, they would have to pay the Claimant her full salary. But as the
finding after the DI was of one of guilt, termination was then necessary and the
Contract stated that it may be done with immediate effect without any compensation
being paid, which was the case here.

82. Applying the case of BSN Commercial Bank, the Court also agrees with the
Company’s submission on this point. Notwithstanding there was no clear provision in
Clause 19 of the Contract on a further suspension of service pending inquiry,
nevertheless, the Court must consider the position of the Company then as it was
conducting its investigation into the alleged breach of confidential information after 20
March 2013. The first suspension was for the Company to commence and conduct its

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investigations thereto. The second suspension given from was for the purpose of the
show cause on why disciplinary actions could not be taken against the Claimant
based on its findings of the earlier investigations which it viewed as warranting
“further action” (page 21 of CLB1). The third suspension period of 4 days was given
when the Claimant was notified of the DI to be held at the end of that month then, so
it was for the purpose of the holding of the DI and it was still with full pay.

83. Rightly so, the Court believes that the Company had considered the position of
the Claimant then and her right to her monthly stipend whereby the Company was
still obliged to pay the Claimant her full salary pending the outcome of the DI. The
Court takes note that in this case, the Company had agreed with the finding of the DI
panel which met on 30 April 2013 that the Claimant had misconducted herself and
the allegations proven to be true and the Company had terminated her services in its
letter dated 2 May 2013. The next day after the DI was 1 May 2013, which was a
public holiday. Upon careful consideration of the termination letter, although it was not
stated as such in that letter, the Court believes that the termination by the Company
was done in accordance with the provision of Clause 22.3(e) whereby the Employer
was entitled to give notice in writing to the employee to determine within 24 hours
forthwith her employment under the Contract, whereupon the employee shall have no
claim against the Employer for damages or otherwise by reason of such termination.
Even though the termination letter was not the basis for the constructive dismissal
claim, the Court did consider it in the evaluation of evidence because it was
eventually issued to end her employment with the Company.

84. For completeness, the Company proceeded to show that it had good cause to
take action against the Claimant. In Court, the Claimant did not deny sending out the
relevant documents. However, she claimed that she did so solely for the purpose of
registering her son in a new college (SEGI). It is the Company’s submission that she
was not telling the truth. CLW2 told the Court that those documents were not relevant
to the registration of the Claimant’s son. COW 2 actually admitted under cross
examination that the Claimant had “…no business sending those documents to her.”.
The Claimant also did not obtain any written consent from the Company before
sending the documents. The Company further in its written submission stated that

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“She also refused to answer questions in respect of the documents at the inquiry.
There can only be one reason for the Claimant to give the reason she gave. She
knew that she had been caught doing wrong. She needed an excuse. She made one
up.”.

85. While the Court takes note that the Claimant did not deny that she did not
obtain the Company’s consent first before she sent that fated e-mail, the Court
however believes that she was not lying about the reason for her doing so. There
was ample evidence to that effect in the form of the testimony of CLW1 and the
supporting documents in respect of the application for their son’s Credit Transfer to
SEGI University. The fact that CLW2 agreed with counsel that the Claimant had “…no
business sending those documents to her” does not mean that the documents were
not relevant to the registration of the Claimant’s son at SEGI University. That would
be stretching the facts too far. From the notes of proceeding, this Court gathers that
what CLW2 meant was it was not the Claimant’s duty to send the relevant documents
to CLW2 on her own accord.

86. The Court also takes note that in CLW2’s Witness Statement (CLWS2), it was
not disputed that she was a Panelist for the MQA. In CLWS2, it was stated that “in an
application for Credit Transfer of a Medical Degree Programme to another university,
the student’s original university must send to the new university their Curriculum and
Academic Calendar, which documents will be forwarded by the new university to the
Malaysian Medical Council for approval of transfer,...”. According to her, the body that
stipulates such requirements is the MMC. Upon perusing the guidelines of the MMC
in respect of credit transfers as exhibited in CLB3 and which was not disputed, the
Court finds that the conditions stated in the guidelines are as outlined in Lampiran A
and Lampiran B. Particularly Lampiran A mentions “Pemetaan dan Penyetaraan
Kurikulum”. This “Pemetaan dan Penyetaraan Kurikulum” in the Court’s view, can
only be achieved by comparing the academic modules of the original university and
the new university. One of the requirements was also under Dokumen A at the same
page whereby it is stated “No. 5 Dokumen Pengesahan Status Enrolmen Semasa di
Institusi Asal”. This document, the Court believes, can only be obtained from a
registrar (or similarly designated officer) from the original university who would have

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transmitted the required confirmation and academic modules etc. belonging to the
original university to the new university.

87. The Court agrees with the Company’s submission in relying on the case of
CHARLES MOK NGOH CHECK V ALLIED MARINE & EQUIPMENT SDN. BHD.
(2008) 1 ILR 421 on the point of disclosure of confidential information. This is a case
where the employee had disclosed and divulged information pertaining to the
company’s business to an outsider. The Industrial Court upheld the employee’s
dismissal. The relevant portion of the award is as follows:

“[155] The final question then would be for the court after finding that
the claimant had committed the misconduct is to consider whether the
nature and extent of the misconduct could constitute just cause or
excuse for the dismissal.

[156] In the case of Pearce v. Foster [1886] (71) QBD 536, Lord Esher,
M.P succinctly stated as follows:

The rule of law is that where a person has entered into the position of
servant, if he does anything incompatible with the due or faithful
discharge of his duty to his master, the latter has a right to dismiss.
The relation of master and servant implies necessarily that the servant
shall be in a position to perform his duty and faithfully, and if by this
own act he prevents himself from doing so, the master may dismiss
him....

[163] In order for an interference with the decision of the employer to

dismiss the employee, the essential question the court must ask itself
is: whether a reasonable employer would have dismissed the
employee, on the facts of the case as was the common law position in
the case of British Leyland UK Ltd v. Swift [1981] IRLR 91 which held as
follows:

... The correct test is: Was it reasonable for the employers to dismiss
him? If no reasonable employer would have dismissed him, then the

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dismissal was unfair. But if a reasonable employer might reasonably

have dismissed him, then the dismissal was fair. It must be
remembered that in all these cases there is a band of reasonableness,
within which one employer might reasonably take one view: another
quite reasonably take a different view. One would quite reasonably
dismiss the man. The other would quite reasonably keep him on. Both
views may be quite reasonable. If it was quite reasonable to dismiss
him, then the dismissal must be upheld as fair: even though some
other employers may not have dismissed him.

[164] The above common law position was adopted by the Court of
Appeal in the case of Tan Tek Seng v. Suruhanjaya Perkhidmatan
Pendidikan & Anor [1996] 2 CLJ 771 where NH Chan JCA (dissenting)
postulated the following principle:

The correct test was to determine whether it was reasonable for the
appellant's employers to dismiss him on those facts. When considering
the reasonableness of what a reasonable employer would have done,
the court (whether it be the High Court, Court of Appeal or, the
Industrial Court) must not substitute its own views as to what was the
appropriate penalty (for the employee's misconduct) for the view of the
particular employer concerned.

[165] The above said principle was subsequently approved by the

Federal Court in the case of Ng Hock Cheng v. Pengarah Am Penjara &
Ors [1998] 1 CLJ 405 where Peh Swee Chin FCJ held as follows:

To repeat, a court intervenes only on the nature and manner of

accusation against a public officer as distinct from a consequential
punishment as explained above. Just like a professional body being
the best tribunal to judge the seriousness of misconduct of the
members, in a similar vein, an employer including a government, is the
best person to judge similarly the seriousness of misconduct of an
employee. Thus, we are of the opinion that on the narrow point in
question, the majority judgment in Tan Tek Seng cannot stand though

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we express our agreement with the minority judgment on the same

narrow point.

[166] In Southern Bank Bhd. v. Kamarudin Othman & Anor [2005] 6 CLJ
379, her Lordship Wan Arfah Ibrahim J.C. held as follows:

I am also agreeable that the guidelines for the court with regard to the
issue of intervention in the punishment was as propounded in the
dissenting judgment of NH Chan JCA in the case of Tan Tek Seng v.
Suruhanjaya Perkhidmatan & Anor. It is obvious to me that, this narrow
point on the test for punishment was approved by the Federal Court in
Ng Hock Cheng v. Pengarah Am Penjara & Ors. Nonetheless, I concede
that the facts of Tan Tek Seng's case concerns the intervention of the
High Court in respect of punishment of a public servant. However, it is
pertinent to note that NH Chan JCA specifically made reference to the
Industrial Court when he said "Industrial Court must not substitute its
own view as to what was the appropriate penalty for the employee's
misconduct." In fact, the learned judge granted with approval the dicta
of Lord Denning MR in the British Leyland's case.

[167] The court finds in this case, there was a breach of a clear term of
the claimant's employment contract as per p. 5 COB1 and also the
addendum thereto as per p. 3 COB. It would mean that the company no
longer holds any trust on the claimant. The company had found it
reasonable to dismiss the claimant and the court too finds that a
reasonable employer would not have accepted the above violation
taking into consideration the claimant's position as the number two
man in the company.

Conclusion

[168] In conclusion, the court finds, taking into account the totality of
the evidence adduced by both parties and bearing in mind s. 30(5) of
the Industrial Relations Act 1967 to act according to equity, good
conscience and the substantial merits of the case without regard to

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technicalities and legal form, the company had been able to prove on a
balance of probability that the dismissal of the claimant was with just
cause and excuse.

[169] Accordingly, the claimant's case is hereby dismissed.”

88. The Company further submitted that in the recent case of Khaw Siang Lee v
Cybertowers Berhad (Award no. 542 of 2015) the Industrial Court considered the
validity of the dismissal of an employee who had sent out information belonging to
the company to his personal e-mail account. The Court held that this act of sending
the document to the claimant’s own e-mail account (let alone a third party) was an act
of misconduct warranting dismissal. The Court held as follows:

“In AZAHARI SHAHROM & Anor v ASSOCIATED PAN MALAYSIA

CEMENT Sdn Bhd [2010] 1 ILR 423 @ 436 this Court was of the view that:

„It is trite that the association between the employer and the employee
out of necessity is fiduciary in nature. There has to be mutual trust and
confidence that one would deal with the other in all fairness and
rectitude over the rights and obligations flowing between the parties
under the employment agreement. If one does an act or commits an
omission which is inconsistent with that fiduciary relationship then that
act or omission will be mala fide. This principle has equal application as
against the employer and the employee in their respective positions viz
the employment relationship between them.‟

In ESSO PRODUCTION MALAYSIA INCORPORATED V YUSOP NORDIN

(Award 356 of 1997) it was held that:

„It is settled law that the employee is required at all times to act in a
faithful manner, and not place himself in a position where his interests
conflicts with his duties. If the employee does an act which is

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inconsistent with the fiduciary relationship with the employer, then it will
be an act of bad faith for which his services can be terminated.”

89. The Court then goes on to refer to several other cases which re-state the
same point of law, that is, that an employee owes a fiduciary duty to the employer
and cannot act in any way that destroy that relationship, and concluded as follows:

“The Claimant being a senior manager in the Company must be taken to

know that documents officially belonging to the Company are properly
proprietary documents belonging to them, as the rightful owners. He had
no business transferring them to his personal account and in the
process attempting to conceal his nefarious doings. That he did so, i.e.
the deed that he has been accused of, is reasonably assured based on
the evidence; as such it would seem that he had placed the Company in
real danger of the potential risk of losing their trade secrets and
proprietary documents and/or having it exposed to third parties. By
doing what he did must surely show him to be reckless of the trust and
confidence placed in him by the Company as its General Manager (Sales
& Marketing Department).

The Claimant‟s conduct in the entire circumstances of this case was

inconsistent with the trust and responsibility reposed in him by the
Company in the relationship of employer-employee between them. The
Claimant had acted in conflict of interest with the rudimentary
responsibilities and fiduciary duties that he owed to the Company as his
employer; and by the hazard of the potential risk that he placed them
(the Company) in.”

90. The Company submitted that it was therefore well within its rights when it
suspended the Claimant upon discovering what she had done. In this case, the
Claimant contended that the relevant documents were only in draft form and not
copyright controlled. Further, purportedly CLW2 could not open the module guides

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and therefore, the Claimant contended that there was no breach if the Company had
investigated this fact properly. On this point, the Court agrees also with the
submission of the Company and finds that the information that was transmitted by the
Claimant in her personal e-mail to CLW2 was confidential information belonging to
the Company albeit in draft form as it was in the form of module guides which could
have been used by other parties (not necessarily SEGI University) to set up a new
degree in Medicine programme.

91. In the Court’s view, it is then for the University to transmit such information,
upon request, to another university in an application for a credit transfer. Whereas
here, the Claimant had done it on behalf of her son in her capacity as the mother of
the transferring student and not officially as a representative of the University. The
fact that CLW2 was unable to open the module guides (but could open the academic
calendar) is irrelevant as the charge against the Claimant was on her act in sending
out the e-mail with confidential information belonging to the Company.

92. The Court believes that the condition as imposed by the MMC is to protect the
interests of both universities involved in the transfer of credits by students from one
university to another. If it had been a request for credit transfer from one public
university to another public university, that would not have been an issue as public
universities are not business entities unlike private higher institutions of learning.
However, in this case, the transfer is from one private university to another private
university where both have business concerns and student enrolments become the
income/capital of such universities.

93. The disclosure of confidential information goes to the very root of this
dismissal claim by the Claimant in this case. If the Claimant had requested for
permission from the Company to give the required documents to SEGI University or
asked for the University to transmit the relevant documents which contain confidential
information to the latter, probably there would not have been this claim as the
Company/University would have been aware of such request. The Court takes note
of Clause 15.2 of the Contract which in effect provides that any disclosure of secret
or confidential matter relating to the Employer or its business could be made in the

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proper performance of the employee’s duties or with the prior written consent of the
Employer. COW1’s testimony that the Claimant did not seek the Company’s consent
reiterates this point.

94. In this regard, the Claimant held a very senior position in the University, being
one of the dean of the various schools. Her son was a student at the University and
he wanted to change his place of study to another university. At this juncture, there
was no conflict of interest. But then, the Claimant had obtained the documents from
Prof. Sudha Suresh and had intended for them to be used in her son’s application for
credit transfer when she sent them personally to CLW2. This was when the Claimant
had allowed her personal affairs to be in conflict with her responsibilities towards the
University where she was bound to keep their confidential documents as confidential,
unless she had approval first from the University. If she claimed that she had done it
in her capacity of the Dean of the IMS, the Court still takes the view that the approval
of the University should have been sought first as stated by COW1 so that she will
not be accused later of acting in conflict with the University’s interests. When a
student wants to transfer his study credits and leave an institution, that institution
cannot stop him from doing so. However, everything must be done according to the
proper procedures set for it.

95. The Court had looked at the e-mail communication with CLW2 and noted that
it was done informally using her personal e-mail account and not from the University
officially or using the University’s e-mail account. The communication appeared to be
quite informal between two friends. It just so happened that the two friends in this
case worked at two private institutions of higher learning whereby it was stated by
COW1 that SEGI University was a competitor. That being said, it was all the more
reason for the Claimant to approach the University directly to apply for the credit
transfer and all documentations to be handed by the University to SEGI University.
The Claimant, this Court believes for all intents and purposes, did not have mala fide
intention against the University by her actions but the way it was done could have
brought even more serious repercussions and injured the Company’s position if the
information had fallen into the wrong hands.

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96. Two out of the 4 conditions of the contract test in the Bayer case to establish
constructive dismissal, are whether the Company’s act in further suspending the
Claimant although not specifically provided for in the Contract, amounted to a breach
of the contract and whether the breach was sufficiently important to justify the
employee resigning. The Court has considered all the evidence available before it
and makes a finding that the act of putting the Claimant on further suspension with
full pay pending investigations and the DI, did not amount to a breach by the
Company. Therefore, as the first question is answered in the negative and the
condition is not fulfilled, it is not necessary to answer the second question. On the
other 2 questions as outlined in the Bayer case (which applied Wong Chee Hong),
the Court finds that the Claimant did leave her employment in response to the
Company’s action to further suspend her but she only left about 20 days later when
she submitted her letter dated 2 May 2013 to the Company. In any event, she is not
able to show that the Company had breached the Contract by the consecutive
periods of suspension until 30 April 2013, which was the only reason she gave for
leaving her employment, hence questions 3 and 4 of the contract test need not be
answered. All 4 conditions must be fulfilled before a claimant can succeed in a claim
for constructive dismissal but in the evaluation of the evidence, the Claimant is
unable to answer in the affirmative to all 4 questions. The Court therefore finds that
the Claimant is not able to satisfy all 4 conditions to succeed in her constructive
dismissal claim.

97. In passing, the Court notes that the length of time taken by the employee to
leave his employment is a crucial factor that the Court would consider in a
constructive dismissal claim. It is trite that the employee should leave soon after the
breach. He is required in law to act fast to repudiate the contract based on the
breach that he alleges goes to the root of the contract of employee. In Pexxon
Sendirian Berhad v. Sia Qui Yau, Johore [1989] 2 ILR 235 (Award No. 139/1989)
it was held that a period of one month delay has been held to be unreasonable for
the Claimant not to have acted against his employer. It was held that upon
discovering that there was a substantial breach of the employment contract that went
to its very root, he must act immediately either by protesting or giving notice to the
employer and walking out of the job, otherwise he might be said to have affirmed the

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new term of the contract thereby accepting it with their terms added. In the present
case, the DI was duly held after about one month of the suspension letter to the
Claimant and she left only after the DI. The Court finds that the Claimant did not walk
out of her job immediately after the second suspension on 12 April 2013 which she
claimed was a breach of the Contract, if indeed it was a breach by the Company.

98. The law requires the Company to have committed a fundamental breach of
the contract of employment, that is, a breach that goes to the very root of the contract
and which warrants a repudiation of the contract by the Claimant. In the present
case, the act of the Company that was considered by the Claimant as a breach of the
Contract was the further suspension that she was put on until the conclusion of the
DI. This Court is of the view that on the facts, the Claimant has failed to show the
further suspension imposed upon her by the Company was a fundamental breach.
Instead, her actions in transmitting the confidential information to a third party who
worked for a competitor university (although the intention was not malicious), was a
breach of her contractual obligations as an employee of the Company. The Company
suspended her services with pay and the further suspension was to enable them to
complete investigations and hold the DI. There was no breach by the Company but
instead the Claimant had breached her obligations under the Contract and the pledge
of allegiance, and the Company was reacting to that breach. Later she had put in the
constructive dismissal letter on the same day but before the Company terminated her
services.

99. It is said that there is a two stage inquiry into constructive dismissal that the
Court must observe. The Court must first decide whether there has been a dismissal
which requires the employee to prove that the employer's conduct led him to
terminate the employment relationship. If the employee discharges this burden of
proof, then the employer is required to call the relevant evidence to rebut that the
dismissal was for just cause or excuse. In this case, it is a finding of fact by the Court
on the facts and evidence made available to it that the Claimant has failed to show
that the Company had breached the contract of employment by its actions in the
further suspension of her services pending the completion of the investigations and
DI. At that point in time on 9 April 2013, the Company’s actions did not show an

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intention that it no longer wanted to be bound by the Contract. The decision to let her
go was only made after the findings of the DI panel was forwarded to the Company
and on 2 May 2013 they issued her the termination letter as it was the Company’s
view that the Claimant’s action constituted a very serious breach of the Contract
which had justified the termination of the Contract in accordance with Clause 22.3(e).
Under these circumstances the Claimant was not entitled to treat herself as
discharged from any further performance.

100. In conclusion, the Court finds, having considered all evidence available before
it and bearing in mind subsection 30(5) of Act 177 to act according to equity, good
conscience and the substantial merits of the case without regard to technicalities and
legal form, the Claimant has been unable to prove on a balance of probability that
she has been constructively dismissed. Accordingly the Claimant’s case is hereby
dismissed.

HANDED DOWN AND DATED THIS 31st DAY OF MAY 2017

signed

(NOOR RUWENA BINTI DATO' MOHD NURDIN)

INDUSTRIAL COURT, MALAYSIA
KUALA LUMPUR

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