INDUSTRIAL COURT OF MALAYSIA
CASE NO. 2/4-616/08
BETWEEN
PUAN VASANTHI A/P C. SUVALINGAM
AND
PRICE SOLUTIONS SDN. BHD
AWARD NO. 807 OF 2012
:
Before
Y.A. PUAN MARIAH @ MALIAH BINTI AHMAD
- CHAIRMAN (Sitting Alone)
:
Venue
Industrial Court Malaysia,
Kuala Lumpur.
Date Of Reference
:
30.09.2008
Dates of Mention
:
25.11.2008,
25.05.2009,
07.10.2009,
26.07.2010.
06.01.2009,
24.06.2009,
15.10.2009,
05.03.2009,
23.07.2009,
22.10.2009,
04.05.2009,
04.09.2009,
05.03.2010,
Dates of Hearing
:
05.04.2010,
06.04.2010,
14.04.2010,
14.05.2010.
Representation
:
Pn. Khairun Niza Bt. Husnin
Messrs. Aru & Co
(The Learned Counsel for the Claimant )
Pn. S. Suganthi
Messrs. Shearn Delamore & Co
(The Learned Counsel for the Company)
REFERENCE
This is a reference made under section 20(3) of the Industrial Relations Act 1967 by the
Honourable Minister of Human Resources arising out of the alleged dismissal of Puan Vasanthi a/p
C. Suvalingam (hereinafter referred to as “The Claimant”) by Price Solutions Sdn. Bhd (hereinafter
referred to as the “The Company”).
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AWARD
The parties to the dispute are Vasanthi a/p C. Suvalingam (hereinafter referred to as “The
Claimant”) and Price Solutions Sdn. Bhd (hereinafter referred to as the “The Company”). The
dispute is over the alleged constructive dismissal of the Claimant by the Company on 17 August
2007.
BACKGROUND FACTS OF THE CASE
The Claimant commenced employment with the Company in 2001 as a Telesales
Executive drawing a monthly basic salary or RM1,200.00. The Claimant also earned commissions
every month based on the sales.
The events leading to the Claimant's constructive dismissal were as follows:
i)
During the Claimant's maternity leave which was on January 2003, one Ms.
Zanariah from the Cards and Balance Transfer Department replaced the Claimant
to handle the CFU Department;
ii)
The Claimant had to return to work after one month maternity leave due to financial
constraints. When the Claimant returned to work, Ms. Zanariah then told the
Claimant that the Claimant will be transferred to the Cards and Balance Transfer
Department which was objected to by the Claimant;
iii)
Sometime in 2004, the CFU Department was closed and the Claimant was
transferred to the Balance Transfer Department where the Claimant's income
dropped;
iv)
The Claimant then chose to be transferred to the Anti Attrition Unit Department
(hereinafter after referred to as 'AAU'). However, the Company promoted Ms.
Zanariah who could not get along with the Claimant in AAU as a Team Leader.
v)
Immediately after joining AAU, the Claimant faced problems with Ms. Zanariah as
follows:
a)
Ms. Zanariah refused to train the Claimant;
b)
started shouting at the Claimant;
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vi)
c)
embarrassed the Claimant in front of colleagues;
d)
gave volumes of cancelled letters from branches which was outdated;
e)
forced the Claimant to stay back till 9.00 pm to settle the work.
Due to heavy workload and the torture from Ms. Zanariah, the Claimant was unable
to meet the quota.
vii)
Subsequent to that, there was a proposal to transfer the Claimant to the Loan
Structure Department which was objected to by the Claimant.
viii)
The Claimant had lodged various complaints to few parties whereby the Claimant
highlighted the following issues:
a)
AAU forced the Claimant to work on public holidays and on Sundays;
b)
the Claimant was forced to sign counseling letters everyday, failing which
the Claimant was constantly blackmailed that a formal complaint will be
made to Mrs. Mimi;
c)
when the Claimant was on medical leave for a surgery, the Claimant was
forced to come back to work before the medical leave ended.
ix)
Sometime in 2006, the Claimant had an argument with Mr. Irwan Shah where he
used abusive words to the Claimant. The Claimant was tortured and forced to stay
in the office to do some work where indeed the said task can be done on the next
day.
x)
The Company then issued a show cause letter and notice of suspension dated 22
March 2007 in which the Claimant sent a reply to the same in writing.
xi)
The Company then reinstated the Claimant with effect from 4 June 2007 without
any Domestic Inquiry vide a letter dated 31 May 2007. The Claimant was not
reinstated to the same position whereby she was not allowed to take any incoming
calls neither can the Claimant receive the SRF (letters from the branches). These
are the Claimant's tasks prior to her suspension which offers more commissions to
the Claimant.
xii)
After one month of reinstatement, whilst the Claimant was working, the new Human
Resource Manager, one Mr. Shameen M. Dahalan showed a letter to the Claimant
and enquired whether the signature on the said letter was the Claimant's signature.
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The Claimant after verifying the said letter confirmed that the same was not hers.
The said letter contained allegations of the Claimant having borrowed money from a
client and promised to pay back. Thereafter the Claimant wanted a copy of the said
letter from Mr. Shameen for the purpose of lodging a police report but Mr. Shameen
refused to hand over the same. (page 3 of COB and page 63 of CLB2)
xiii)
Later, the Claimant wrote a letter dated 9 August 2007 to the Human Resource
Manager to reinstate her back to the same position but it was refused by the
Company, as the Company had acted in the manner that had caused this
constructive dismissal. (page 84 of CLB1).
xiv)
The Claimant vide a letter dated 15 August 2007 explained to the Company to
several issued and has considered herself constructive dismissed with effect from
17 August 2007 (pages 90 – 91 of CLB1).
THE LAW
The Applicable law on constructive dismissal is succintly stated in Award No. 289 of 2010
Kathiresan Alfred v City Link Express (M) Sdn. Bhd (2010) 2 ILR 108 as follows:
“The law relating to constructive dismissal has been clearly defined in the Supreme
Court case of Wong Chee Hong v Cathay Organisation Malaysia Sdn. Bhd (1988) 1
CLJ 45; (1998) 1 CLJ (Rep) 298 which affirmed and applied the “contract test” in
Western Excavating (ECC) Ltd v Sharp (1978) 1 All ER 713.
The term constructive dismissal has been clearly defined in the landmark case of
Western Excavating (ECC) Ltd v. Sharp (supra) where Lord Denning M.R. Held that
the correct test to apply is the contract test as follows:
If the employer is guilty of conduct which is a significant breach going to the
root of the contract of employment, or shows which the employer no longer
intends by one or more of the essential terms of the contract, then the
employee is entitled to treat himself as discharge from any form of
performance. If he does so, then he terminates the contract by reason of the
employer's conduct.
He is constructive dismissed.
The employee is entitled in those
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circumstances to leave at the instant without giving any notice at all or
alternatively, he may give notice saying he is leaving at the end of the notice.
But the conduct must be in either case sufficiently serious to entitle him to
leave at once. Moreover, he must take up his mind soon after the conduct of
which he complains; he will lose his right to treat himself as discharged. He
will be regarded as having elected to affirm the contract.
It is also well established in the law constructive dismissal that the repudiatory
conduct of the employer which entitled the employee to treat himself as discharged
from further performance of his employment contract may consist of a series of acts
or incidents. This principle is to be found in the English Court of Appeal case of
Lewis v. Motorworld Garages Ltd (1986) ICR 157. The relevant passage is found at
page 167 of the Report where his Lordship Lord Justice Neil stated as follows:
It is now established that the repudiatory conduct may consist of a series of
acts or incidents, some of them quite trivial, which cumulatively amounts to a
repudiatory breach of implied term of contract without reasonable and proper
cause conduct himself in a manner calculated or likely to destroy or seriously
damage the relationship of confidence and trust between employer and
employee. See Woods v. W.M. Car Services (Peterborough) Ltd (1981) ICR
666 in the Employment Appeal Tribunal.
In the Court of Appeal case of Quah Swee Khoon v. Sime Darby Bhd (2001) 1 CLJ
9, His Lordship Gopal Sri Ram JCA stated as follows:
Constructive dismissal can take place, as we have attempted to
demonstrate, in a number of cases. Since human ingenuity is boundless, the
categories in which constructive dismissal can occur are not closed.
Accordingly, a single act or a series of acts may, according to the particular
and peculiar circumstances of the given case, amount to constructive
dismissal.
The burden of proving that he was constructive dismissed lies on the claimant. As
such, bearing in mind the above principles and in line with the authorities as cited
above, the claimant who claims constructive dismissal must establish his case and
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prove the following elements:
i)
that the Company has by its conduct had breached the contract of
employment in respect of one or more of the essential terms of the contract
of employment or has evinced an intention no longer to be bound by it;
ii)
that the breach is a fundamental one going to the root or foundation of the
contract;
iii)
that the claimant has terminated the contract by reason of the company's
conduct and the conduct is sufficiently serious to entitle the claimant to leave
at once or that he left in response to that breach and not for some
unconnected reason; and
iv)
that the claimant, in order to assert his right to treat himself as discharged,
left soon after the breach or that he did not delay too long in terminating the
contract in response to the company's breach otherwise he may be deemed
to have waived the breach. “
THE CLAIMANT'S CASE
The Claimant (CLW1) adduced the following evidence:
In 2001 the Claimant worked with Price Solutions Sdn. Bhd (the Company) as a Telesales
Executive. According to the Claimant Price Solutions Sdn. Bhd wholly owned subsidiary of
Standard Chartered Holdings.
To her knowledge, the Company deals with among others,
Standard Chartered Credit Cards.
At that time she was earning a basic salary of RM1,200.00 per month together with
commission which was based on her monthly sales. When she commenced her employment as a
Telesales Executive with the Company the nature of her employment was purely on marketing
second card and supplementary credit card and balance transfer. Part and parcel of her tasks is to
call existing credit cardholders of Standard Chartered Bank to promote the second card to
supplementary credit card and balance transfer. She was trained to be persuasive and convincing
throughout the execution of her tasks.
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She received commission based on the number of successful sales that she had made.
The Claimant said her average nett salary during that period average is RM3,000.00 to
RM4,000.00 per month.
She was then transferred to the other department called Cancel File Unit (“CFU”) in the
year 2002. She was transferred to CFU department upon her request as she wanted to have a
lesser stressful work due to pregnancy at that time. Apart from that, she could earn more salary.
When she was in CFU she earned nett salary of RM4,000.00 to RM5,000.00 per month. In CFU
her job was to called customers which were earlier approached by the agent and then she shall
request for extra documents pertaining to their incomplete card application.
If the customer surrender the documents that she required she would get commission from
the Company based on the number of completed and approved card applications.
The Company will normally have a number of quotas fixed for each staff to achieve. From
2001 to 2002, she managed to achieve the quota and due to that, she was granted several awards
from the Company.
According to the Claimant pages 10 to 14 of CLB are her awards that she mentioned
earlier. At page 10, this is a certificate of merit granted to her for achieving 138% quota. At page
11, this is a recognition from the Company for her achievement as a 130% Sales Achiever and she
was awarded RM100 cash voucher. At page 12, this is a certificate of year 2001 Agent Award
whereby she was awarded a Standard Chartered Excellent Sales Achievers (the e-lite Club).
At page 13, this is a certificate of year 2002 Agent Award whereby she was awarded the
100% Achievers Club in conjunction with the Gala Sales Convention Year 2002. At page 14, this is
a recognition from the Company for achieving Top Telesales Performance.
The Claimant stated she was in CFU for approximately 2 year. Later she was on maternity
leave in January 2003. Due to financial constraints caused by her separation with her husband.
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She had to return to work in February 2003. When she returned to work, one Ms. Zanariah from
the Cards and Balance Transfer department informed her that she would be transferred to that
department and someone else would be replacing her in CFU.
At that time, she was not aware of the replacement. Later on, she got to know that it was
Ms. Zanariah who replaced her. She did not agree to the transfer. She was never informed of the
transfer and her work record was clean. In fact, she achieved all the required quota and received
numerous awards. On top of that, when she was in CFU, she never took any medical leave prior
to her maternity leave in 2003.
After that they didn't transfer her out at that time because she objected to the transfer. But
later in 2004 she was transferred to the Cards and Balance Transfer Department. She was
transferred because the CFU Department was closed.
In the Cards and Balance Transfer Department she had to call customers and promote
them to take up Standard Chartered's balance transfer programme. Under this programme, the
customer's credit card balances from other financial institutions will be transferred to Standard
Chartered Credit Card. Her sales performance dropped.
The Claimant explained that when she was in that Department, there was a group of
employees who obtained personal information of the customers from other bank's staff. If she
wanted to achieve more sales she had to follow them and she refused to do so as obtaining
information in such a way is illegal.
The Company then offered her a choice to choose which department she would like to work
in. She chose the Anti Attrition Unit (“AAU”) Department as the commission was high and she was
in need of better income. Based on her request, Mr. Roslan, the Assistant Manager and Mr. Roger,
the Senior Manager allowed her to join AAU.
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At that time, Ms. Zanariah was promoted as Team Leader in AAU, she was made to
understand that Ms. Zanariah and Mr. Irwan Shah, the Manager, were unhappy with the fact that
she joined AAU. Although Ms. Zanariah and she couldn’t get along very well Ms. Zanariah still
selected her in her team despite her objection.
In AAU at that time she earned a basic salary of RM1,200.00 with the average income at
not less than RM5,000.00 per month. She handled among others, cancelled letters from branch
(SRF) phone calls on the cancellation of cards and cases involving cards which have been
cancelled 2 or 3 years back. When she joined AAU, she immediately faced problems with Ms.
Zanariah and Mr. Irwan Shah.
Ms. Zanariah refused to train her. She started shouting at her and embarrassed her in front
of her colleagues. She also gave volumes of cancelled letters from branches which were outdated
and forced her to stay back until 9.00 pm to settle the work.
Mr. Irwan Shah would always join
Ms. Zanariah to torture her.
Due to the heavy workload and the problems that she faced with Ms. Zanariah and Mr.
Irwan Shah she was unable to meet the quota fixed by the Company due to the pressure put on
her by Ms. Zanariah and Mr. Irwan Shah. However she still managed to get few rewards from the
Company in the year 2004 to 2005.
Referring to pages 15 to 18 of CLB, the Claimant said these are all her awards that she
mentioned earlier. At pages 15 and 16, this the Company's recognition from for her achievement
as a Great Sales Performance. At page 17, this is a recognition from the Company whereby she
was awarded an Elite Achiever's Club in conjunction with Gala Sales Convention Year 2004/2005.
At page 18, this is a recognition from the Company whereby she was awarded a Great Performers
Award.
When she was pressured by Ms. Zanariah and Mr. Irwan Shah she lodged a complaint to
Mrs. Mimi, the Senior Manager and wanted to meet her personally without the presence of Mr.
9
Irwan Shah. A week later, Mrs. Mimi arranged for an appointment and instructed her meet her at
the Human Resources Department at Petaling Jaya.
When she almost reached the Petaling Jaya branch, she received a call from Mrs. Mimi
who then informed her that the appointment was cancelled. After one week, another appointment
was fixed. However, despite at her request to meet Mrs. Mimi alone, the appointment was
attended by Mrs. Mimi and Mr. Irwan Shah. Both of them refused to listen to her problems.
Instead, they accused her and blamed her for not fulfilling the quota.
On 2 April 2006, Mrs. Mimi and Ms. Mandy, the Administration officer approached one Mrs.
Sunita, Manager of Loan Structure Department and sought for the consent as to whether she is
agreeable to take her as one of her staff. Mrs. Sunita then called her and told her that the Loan
Structure Department was meant for school leavers and the pay would not be more than
RM1,500.00.
She did not agree to be transferred to the Loan Structure Department. The Claimant said
she felt victimized and humiliated by the Company's treatment towards her as the Company were
trying to demote her. Furthermore, the Loan Structure Department is totally different department
altogether and handled tasks which is unknown to her. After that she lodged another complaint
after which a meeting was arranged and attended by Ms. Karen, the Human Resources Manager
together with her assistant, Ms. Anita and herself.
At the meeting she highlighted a lot of issues to them. Among others she informed them
that AAU forced her to work on public holidays and on Sundays. She was also forced to sign
counseling letters everyday and she was blackmailed and threatened that if she didn't sign those
letters, a formal complaint will be made to Mrs. Mimi. When she was on medical leave for a
surgery, she was forced to come back to work before her medical leave ended.
She also told them that she was mentally tortured with the bad treatment in the Company.
According to the Claimant the problems were not solved. Instead, she was continually being
10
harassed and victimised.
She made another appointment with the Human Resources Department and found that Ms.
Karen had left and she was replaced by Ms. Anita as the new Manager. She was told by Ms. Anita
that she couldn't locate her previous files as Ms. Karen took the files with her. The Claimant further
testified that on 13 March 2007, on or about 5.30 pm, there was an incident in the office.
On or about 5.30 pm, she was approached by Ms. Zahariah who told her that she had
made mistake on 2 cases and she requested her to rectify the mistake by making a reversal at the
late charges and interest. She also asked her to call the customers, explain the situation and
apologise to them for the mistakes.
She managed to call one customer and rectified the mistakes. However, she could not
contact the other customer as he could not be reached although she had made several attempts.
Mr. Irwan was not satisfied with what she had done. He still instructed her to get the customer
despite her explanation that she could not get the customer. It was around 6.15 pm when Mr.
Irwan gave that instruction.
Her working hour was supposed to finish work at 5.30 pm. So she told Mr. Irwan that the
work he instructed her to do can be done the next day as she has commitment to her family, she
had to pick up her daughter of S.K (C) Chung Kwok, Jalan Merpati Kuala Lumpur who finished her
classes at 4.15 pm.
In response Mr. Irwan instructed her to shut up. She then told him that he was her
Manager and he shouldn't talk to her in such way as she was much order to him. However, Mr.
Irwan kept on repeating the words several times after which she said 'stop it Irwan'. Mr. Irwan then
spontaneously responded 'F*** off'' and continued saying it several times. She told him that she is
a mother of two (2) children and much older than him and she deserved some respect and he
should not use abusive words on her. Unfortunately, Mr. Irwan continued using those abusive
words and she immediately left for she couldn't stand the humiliation.
11
After that incident, she wrote a complaint to Mr. Lum, Senior Manager at AAU complaining
on the abusive words used by Mr. Irwan on her. After that she received show cause notice of
suspension letter from the Company. Referring to page 43 of CLB, the Claimant said it is a show
cause and notice of suspension letter dated 22 March 2007 which she received from the Company
alleging among others, that she willfully disobeyed her Manager's instruction to raise a reversal
entry for an account. She was asked to revert within seven (7) days from the date of the letter.
Apart from that she was also suspended from her duties with immediate effect until further notice.
Ms. Anita came to her cubicle around 10.00 am on 22 March 2007 whilst she was rushing
for her daily quota. She submitted this letter and said 'Don't touch anything on your table, just take
your handbag and leave'. The Claimant said she was so shocked and embarrassed as all her
colleague were looking at her in shock. She asked Ms. Anita on what she did. She told her that
she used abusive words on Mr. Irwan.
Ms. Anita said to her 'Don't worry Vasanthi, Irwan is also suspended for his misbehaviour in
the office'. After the Claimant said she had no choice but to leave the office immediately. She
replied to the Company's letter. Referring to pages 44 to 46 of CLB, the Claimant said this is a
reply to the show cause letter that she wrote to the Company.
Referring to page 44 of CLB at paragraph 3, in this paragraph the Company asked her to
report to Ms. Anita at 9.00 am every work day during her suspension. The Claimant said she had
complied with the Company's instruction. Every work day at 9.00 am she would call Ms. Anita
without fail she would always asked her when the Company was going to reinstate her as she
needed money to feed her children. This is because she could not afford to pay all her
commitments without her commission.
She always said “Don't worry as Mr. Irwan is also suspended”. During her suspension, she
only earned her basic salary. After that she received a Notice of Inquiry from the Company stating
that they were not satisfied with he explanations in her reply letter. The Company then asked her
to attend a Domestic Inquiry on 23 May 2007. Then she received another letter from the
12
Company informing her that the Domestic Inquiry on 23 May 2007 had been postponed to 31 May
2007.
Referring to page 79 of CLB, the Claimant said it is another Notice of Inquiry dated 24 May
2007 which she received from the Company subsequent to the Notice of Inquiry dated 17 May
2007. Via this letter she was informed that the Domestic Inquiry on 23 May 2007 had been
postponed to 31 May 2007.
On 31 May 2007 when she was on her way to Petaling Jaya branch to attend the Domestic
Inquiry, she received a call from Ms. Anita saying that the Domestic Inquiry was cancelled. The
Domestic Inquiry never took place.
Instead the Company issued a warning letter to her. Referring to page 80 of CLB, the
Claimant said it is the Warning and Reinstatement letter dated 31 May 2007 that she received from
the Company. Via this letter she was informed among others, that the Company has decided to
bring the proceedings to an end and her suspension with pay was lifted with immediate effect. She
was also asked to report to Mr. Lam Tuck Kin, the Unit Sales Manager on 4 June 2007.
The Claimant said due to the incident she was suspended for approximately (3) months.
During that time she was depressed as she couldn't afford to pay her monthly commitments for a
total sum of RM2,786.00 being her housing loan for RM1,200.00, car loan for RM586.00 including
her daughter's school tees, tuition, ballet fees, transport and food for RM1,000.00. On top of that,
she also suffered loss, stress and embarrassment.
Referring to pages 52 to 53, the Claimant said the documents are in regard to her housing
loan that she took from Alliance Bank Malaysia Berhad in which she received a final reminder due
to her loan arrears. The occurrences which caused stress and embarrassment to her as follows:
Firstly, she was under the Credit Counselling and Debt Management Agency ('AKPK')
scheme prior to the suspension. Due to the suspension, she was unable to make
payments and she was removed from the AKPK Scheme.
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Secondly, her car with the Registration No. BGS 6991 was repossessed in front her little
children, old parents and few neighbours.
Thirdly, when she applied for many jobs in a few banks and companies after some
interviews, she was promised with several jobs but she lost the prospective jobs due to the
adverse comments by the Company.
Finally, due to the financial crisis, she had to send her children to her parents' house as
she was unable to feed and take care of them.
After she had been reinstated and upon her return to work on 4 June 2007, her manager,
Ms. Jolene instructed her that she was not allowed to take any incoming calls and receive the
SRF (letters from branches) which were part and parcel of her tasks prior to the suspension.
These tasks also offer more commissions. When she approached Mr. Lum on the matter, he didn't
give her any satisfactory reply. Then on 6 August 2007, she approached Ms. Jolene on the same
issue, but she also failed to give her any satisfactory reply.
About one month after the reinstatement, while she was doing her work, the new Human
Resources Manager, Mr. Shameen M. Dahalan showed her a letter and inquired whether the
signature on the letter was hers. The letter contained allegations saying that she borrowed money
from a client and promised to pay back. She confirmed that the signature was not hers. Mr.
Shameen then agreed with her. But when she asked for a copy of the letter to be given to her for
the purpose of lodging a Police Report, he refused to give her a copy as it is the Company's
property.
On the next day, she was told by Mr. Shameen that Ms. Anita gave 24 hours notice and
resigned. At the some time, she was also told that Mr. Irwan was never suspended at all as
claimed by Ms. Anita earlier.
Referring to page 63 of CLB-1, the Claimant said it is a Police Report dated 29 March 2010
which she lodged to report on the letter which contained her forged signature. She only lodged the
report recently, CLW-1 as she said earlier, when she asked for a copy of the letter to be given to
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her for the purpose of lodging a Police Report, Mr. Shameen refused to give her a copy as it is the
Company's property.
She only lodged the Police Report after her lawyer showed her the
Company's Bundle of Document.
After the resignation of Ms. Anita, the Claimant was still trying to convince Mr. Lum to
reinstate her back to her previous position as now she could not get sales and her income had
totally dropped.
She had no choice but to send another letter to the Company demanding the Company to
reinstate her back to her original position prior to her suspension. The current position that they
gave her was just like demoting herself.
Referring to pages 83 to 87 of CLB, the Claimant said this is a letter dated 9 August 2007
that she sent to the Company demanding them to reinstate her back to her original position prior to
her suspension.
In the said letter she explained all the chronology of unsatisfied events that had taken place
throughout her employment with the Company. She also mentioned about her achievement and
high earnings in the Company to show that she had achieved the required quota.
On top of that, she also questioned on why Domestic Inquiry was never held. She also
argued on her position and the Company's treatment after she came back from her 3 months
suspension which is totally unfair and which demoted her.
When she came back from her suspension she was stopped from handling her previous
tasks inclusive of handling incoming calls. Everyday, she was told to pass all the incoming calls to
other staff which are all her juniors. Due to that she felt very embarrassed to all of them and she
also heard some of them were teasing and laughing at her.
15
Referring to page 83 of CLB, the Claimant said this is letter dated 8 August 2007 which
was given to her after she submitted her letter at pages 84 to 97 of CLB. Even though this letter
was dated 8 August 2007, she only received this letter after the submission of her letter dated 9
September 2007.
THE COMPANY'S EVIDENCE
The witness for the Company Lam Tuck Kin (COW2) testified as follows:
i)
In 2007 his position in the Company was as the Unit Sales Manager. He knew the
Claimant in the present instance as she was my subordinate for the period 1 March
2007 – 17 August 2007.
ii)
COW2 stated he was aware of the Claimant's level of performance since 2006 from
records as well as his personal involvement. In the first quarter of 2006 the
Claimant had been counseled regarding her performance which was on a
deteriorating level. The complaints related to inter alia the failure to attain the sales
targets set by the Company, delay in the issuance of cancellation letters, failure to
attend to CFU cases over a period of one months etc (pages 46 – 47 of CBOD).
iii)
According to the records she continued to be counseled on her unsatisfactory
performance and decline in the achievement of her sales targets which led to the
issuance of the first warning letter dated 9 May 2006 (page 55 CBOD). The
Claimant also received a warning letter dated 10 May 2006 in relation to her
insubordinate conduct towards her Manager on 25 April 2006 (page 176 CBOD).
iv)
Thereafter the Claimant was consistently counseled and reprimanded on her
unsatisfactory performance and accorded time for improvement. In this regard she
had been issued several counseling notices as well as warning letters over the
duration of 2006 – 2007 in relation to her attitude and continuous deteriorating
performance. Pages 58 – 60 provide a brief summary from the period 27 February
2007 – 14 March 2007.
v)
Referring to pages 65 – 66 CBOD, COW2 stated he did issue this letter to the
Claimant for the reasons stated therein. The summary identifies previous dates of
counseling sessions with the Claimant, some which he had attended in person,
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some where he had personally counseled her and some with her immediate
superiors the details of which are also in the CBOD.
vi)
The related documents to the counseling session in the CBOD pages 67 – 70 relate
to the counseling session and related documents to the incident in respect of which
he had counseled her on the same day. Page 71 relates to the session on 27
February 2007 he had undertaken and pages 72 – 80 are the related documents to
the incident in question. Page 81 also relate to the session on 27 February 2007 he
had undertaken an pages 82 – 85 are the related documents. Page 86 also relates
to the session he undertook on the 27 February 2007 and pages 87 – 90 are the
related documents. Page 95 also relates to the session he undertook and the
related documents are at pages 91 – 94 and 96. Page 97 is related to session on 27
February 2007 and related documents are at pages 98 – 99. Page 100 is related to
the session on 27 February 2007 and related documents at pages 101 – 108. Page
109 is in respect of a session with Ivan Irwan held on 30 January 2007 and the
related documents are at pages 110 – 112. The 113 is in respect of a session on 30
January 2007 and the related documents are at pages 114 – 121. Page 112 is in
respect of a session on 19 January 2007 the related documents are at pages 123 –
132.
Page 157 is in respect of a session on 19 January 2007 the related
documents are at pages 158 – 167. Page 133 is in respect of a session he
attended together with Irwan on 21 September 2006 and the related documents are
at pages 134 – 135. Page 136 is in respect of a session on 30 June 2006 with
Irwan. Pages 44 – 45, 48 are sessions undertaken by the previous superior En.
Irwan Shah on 5 May 2006 and 29 April 2006. Page 51 – 54 relate to sessions on
24 April 2006, 4.406, 27 January 2006. Page 137 is in respect of a session with
Irwan and he, and the related documents are at pages 138 – 143. Pages 144 – 145
are in respect of sessions on 15 May 2006 with Irwan. Page 146 is in respect of a
session with Irwan on 30 January 2007 and the supporting documents at pages 147
– 152. Page 153 is in respect of a session with Irwan on 30 October 2007 and the
related documents are at pages 154 – 145.
vii)
Referring to page 4 CBOD, COW3 stated he was aware of the issuance of a letter
17
to show cause to the claimant. He had raised the subject matter with the Human
Resources Department as well as the Claimant which resulted in the issuance of
the letter to show cause. He had a counseling session with the Claimant, the
details of which are as reflected in the staff counseling form at page 38 of the
CBOC. Pages 39 – 43 CBOD are as reflected in the staff counseling form at page
38 of the CBOD. Pages 39 – 43 CBOD are the supporting documents in relation tot
he incident which he had counseling the Claimant on.
viii)
The Claimant responded by an undated letter. The Company was not satisfied with
the explanation advanced and directed the Claimant to attend a domestic inquiry on
23 May 2007. Pages 5 - 6 CBOD. The inquiry did not proceed on the date
scheduled as the Claimant was ill and she sought an adjournment. Accordingly the
inquiry was postponed to the 31 May 2007 on the Claimant's request (page 7
CBOD). The inquiry on 31 May 2007 did not proceed.
ix)
From the records, the Company subsequently became aware that material
witnesses whom were no longer in the employment of the Company and the
holdings Company i.e Standard Chartered Bank were unavailable on the 31 May
2007 which was the date the Claimant had sought and the Company was of the
view that it would have been unfair to have proceeded in the absence of material
witnesses. In order not to delay proceedings and to avoid a further extension of the
Claimant's suspension on full pay, the Company thereafter in the exercise of it's
managerial prerogative elected to discipline the Claimant with a warning letter dated
31 May 2007 premised on the Claimant's response to the letter to show cause on
account of the behaviour towards her superior on 13 March 2007. The Claimant's
suspension was also lifted (page 8 CBOD).
x)
She reported for duty on 4 June 2007 in the Unsecured Cards. Anti Attrition Unit
(AAU) Teams in TTDI. He was the Unit Sales Manager at the time. She reported
for duty and remained there until August 2007 without any complaint for a period of
over two months.
xi)
They did not want her to attend to the service request form type of requests on
account of the turn around time sensitivity. It was compulsory for all service request
18
form requests to be contacted within 3 workings days and as she had been unable
to deliver this previously they assigned her tasks relating to non-usage nonpayment (NUNP) credit card customers and non delivery of card (NDC) lists for
solicitation. In addition, she was also to attend to in-bound requests coming from
the call center.
xii)
The Claimant was contractually entitled to a fixed amount of commission.
Subsequently, on account of the continued deteriorating levels of performance and
attitude of the Claimant, he had issued a warning letter dated 29 June 2007 for her
failure to undertake the responsibilities assigned to her as particularised in the said
letter (pages 187 – 188 CBOC).
xiii)
According to COW2, the warning letter in June 2007 was one of the many
correspondence which had taken place with the Claimant relating to her
performance which included but are not limited to the counseling form and letter of
10 June 2006 (pages 37 and 176 CBOD), 15 May 2006 (;ages 144 – 145 CBOD),
30June 2006 (page 147), 13 September 2006 (page 137 CBOD), 21 September
2006 (page 137 CBOD), 21 September 2006 (page 133 CBOD), 19 January 2007
(page 157 CBOD), 30 January 2007 (pages 146 & 153 CBOD), 27 February 2007
(page 100 CBOD) and 29 June 2007 (pages 187 – 188 CBOD).
xiv)
Subsequent to the letter of 29 June 2007, he did participate in any counseling
sessions with the Claimant.
employment with them.
This was a constant feature in the Claimant's
As highlighted earlier under paragraph 6.1 and the
following documents as well:
“Please refer to page 19 which is reflective of the counseling session that
he had attended together with Ms. Jolene Ng and the Claimant on 12
July 2007.
Pages 20 – 27 relate to a counseling session on 27 June 2007 with Ms. Jolene the
Claimant's immediate superior. COW2 was the overall head of the unit.
xv)
By letter dated 8 August 2007, the Claimant was issued a letter to show cause to
matters relating to her poor performance in the Company. The Claimant was
requested to provide an explanation failing which the Company would take the
19
appropriate disciplinary action against her which could include dismissal. He issued
the letter at page 9 CBOD.
xvi)
The Claimant responded by her letter of 9 August 2007, received by the Company
on 10 August 2007 (pages 10 – 13 CBOD). The Claimant had sought to revisit
previous incidents which had been dealt with buy the Company and failed to
actually respond to the matters they had set out in the show cause letter.
xvii)
From the record at pages 14 – 15 CBOD, the Company responded by its letter of 13
August 2007 clarifying matters and stating the sequence of events which had
occurred in relation to the Claimant's suspension and the reasons why the domestic
inquiry could not take place. Thereafter the Company received the Claimant's letter
dated 15 August 2007 on 17 August 2007 treating herself s constructively dismissed
with effect from 17 August 2007.
xviii)
Referring to page 16 CBOD, COW2 stated the Company issued this letter in light of
the fact that she did not attend at the Company's premises they took it that she had
resigned on her own accord without the requisite notice.
The main issue before the Court is whether there was a constructive dismissal
The Claimant's grounds for leaving the Company and treated herself as constructively
dismissed can be seen from the various incidents which had been disclosed in various letters
written by the Claimant to the Company.
The incident on 13 March 2007 at 6.15 pm was that Mr. Irwan Shah had used abusive
words to the Claimant. Mr. Irwan Shah had forced the Claimant to stay in the office to do work
when such task could be done on the next day. The abusive words were uttered when the
Claimant told Mr. Irwan Shah that she could not stay as she had to fetch her daughter from school
and that her working hours was already over.
Vide a letter dated 15 August 2007 (see page 90 – 01 of COB1) the Claimant has raised
the following issues, inter alia:
a)
That the failure of the Company to conduct a Domestic Inquiry has deprived the
20
Claimant's opportunity to be heard;
b)
That it is difficult to believe the Company's ground for not conducting the Domestic
Inquiry;
c)
That the Company's action by not assigning her to the original position and handling
the same tasks as before the suspension had resulted in a substantial drop of the
Claimant's monthly commissions and monthly income;
d)
That the Company's conduct shows that the Company Claimant's failure to conduct
a Domestic Inquiry has evinced an intention of no longer to be bound by the terms
of the contract of employment;
e)
That in view of the above, the Claimant has decided to leave the employment and
consider herself being constructively dismissed.
The issue is was the Company guilty of a breach going to the root of the contract?
It is an undisputed fact that the Claimant's working hours finished at 5.30 pm. This fact was
confirmed by COW2 during cross-examination that the Claimant's working hours when she was in
AAU was from 9.00 am to 5.30 pm (Monday to Thursday) and from 9.00 am to 5.00 pm on Friday.
It is thus clear the incident on 13 March 2007 is one instance where the Company had
breached the fundamental term of its contract with the Claimant.
The Claimant's testimony regarding the incident which the Court accepts as truthful are as
follows:
Q48: Can you describe about the incident on 13.3.2007?
A:
On or about 5.30 pm, I was approached by Ms. Zanariah who told me that I had
made mistakes on 2 cases and she requested me to rectify the mistake by making
a reversal of the late charges and interest. She also asked me to call the
customers, explain the situation and apologize to them for the mistakes.
Q49: Did you obey Ms. Zanariah's instruction?
A:
Yes. I managed to call 1 customer and rectified the mistakes. However, I could not
contact the other customer as he could not be reached although I have made
21
several attempts.
Q50: What happened then?
A:
Mr. Irwan did not satisfy with what I've done. He still instructed me to get the
customer despite my explanation that I could not get the customer.
Q51: What was the time when Mr. Irwan gave that instruction?
A:
It was around 6.15 pm.
Q52: What time did you suppose to finish your working hour?
A:
At 5.30 pm.
Q53: So, what did you tell Mr. Irwan?
A:
I told Mr. Irwan that the work he instructed me to do can be done the next day as I
have commitment to my family, I had to pick up my daughter at S.K (C) Chung
Kwok, Jalan Merpati Kuala Lumpur who finished her classes at 4.15 pm.
Q54: What was the response by Mr. Irwan?
A:
He instructed me to shut up. I then told him that he is my Manager and he shouldn't
talk to me in such way as I am much older to him. However, Mr. Irwan kept on
repeating the words several time after which I said 'stop it Irwan'. Mr. Irwan then
spontaneously responded 'F*** off' and continued saying it several times. I told him
that I am a mother of two (2) children and much older to him and I deserve some
respect and he can't use abusive words on me. Unfortunately, Mr. Irwan continues
using those abusive words and I immediately left as I couldn't stand the humiliation.
Q55: What did you do after that incident?
A:
I wrote a complaint to Mr. Lum, Senior Manager of AAU complaining on the abusive
words used by Mr. Irwan on me.
Q56: What happened after that?
A:
I received a show cause and notice of suspension letter from the Company.
The fact that the Claimant was forced to stay after her working hours is confirmed by the
various counseling forms found in COB:
22
PAGE NO: (COB)
DATE
TIME COUNSELING
SESSION CONDUCTED
a)
Page 21
27-7-2007 (Friday)
5.15 pm
b)
Page 29
25-4-2006
8.15 pm
c)
Page 51
24-4-2006
6.10 pm
d) Page 133
21-9-2006 (Thursday)
5.50 pm
e) Page 177
29-4-2006 (Saturday)
1.10 pm to 2.45 pm
f)
29-4-2006 (Saturday)
1.10 pm to 2.45 pm
24-4-2006
6.10 pm
Page 179
g) Page 182
It is clear from the above evidence, the Claimant was forced to stay in the office even after
office hours were over. Therefore the Company was guilty of a breach going to the root of the
contract by forcing the Claimant to work after working hours.
The evidence of the Claimant which was not seriously disputed is that she was not allowed
by the Company to carry out the same tasks that were handled by her before her suspension.
Such conduct of the Company had caused the Claimant to earn lesser commission. The
Company's allegation that only one aspect of her job's function had been removed due to her
inability to perform the same was without proof.
The Court therefore upholds the Claimant's submission that the Company's conduct in
giving lesser responsibility to the Claimant was mala fide and it amounts to a breach of the
fundamental term of contract. Thus, the Claimant was entitled to plead constructive dismissal.
The next issue to consider is was the dismissal with just cause or excuse
The Company has produced many counseling letters in COB. The Claimant's case is that
she was forced to sign these letters everyday and was threatened that if she did not sign these
letters, a formal complaint would be made to Mrs. Mimi.
23
Having fully considered the counseling letters the Court finds that the Company had
created them in mala fide with the purpose of torturing the Claimant as there are numerous
features regarding the said counseling letters inter alia as follows:
a)
The counselling letters at page 136 and 175 of COB were the same documents but
with some alteration.
b)
The counseling sessions towards the Claimant were done frequently
notwithstanding the Claimant's performance and the achievement of various awards
(refer to pages 10 – 20 CLB1 and pages 30 – 37 of CLB2).
c)
Therefore, the creation of counseling letters were totally done in mala fide and did
not reflect the Claimant's achievement in the Company.
d)
The counseling session at page 136 of COB was witnessed by the Company's clerk
who has no authority in the said matter.
The Company has failed to produced concrete evidence of any misconduct or nonperformance to justify the dismissal.
CONCLUSION
In this instant case the Claimant has proved on a balance of probabilities that the Claimant
has satisfies the ingredients of constructive dismissal as follows:
a)
That the Company by its conduct had breached a term or terms (express or
implied) of the contract;
b)
that the breach is a fundamental one going to the root or foundation of the contract;
c)
that the Claimant has terminated the contract by reason of the Company's conduct
and the conduct is sufficiently serious to entitle the Claimant to leave at once; and
d)
that the Claimant in order to treat himself as discharged left soon after the breach.
As the Claimant had been dismissed without just cause or excuse the Court allows the
Claimant's claim.
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REMEDY
The Claimant commenced employment with the Company in 2001 as a Tele Sales
Executive drawing a monthly basic salary of RM1,200.00. The Claimant also earned commissions
every month based on the sales. During the period of 2001 to 2002 she earned a net salary or
RM3,000.00 ti RM4,000.00 per month. In 2002 the Claimant was transferred to the Cancel File
Unit (“CFU”) and she earned a nett salary of RM4,000.00 – RM5,000.00 per month during that
period.
Upon the Claimant's request, she was transferred to AAU she still earned a basic salary of
RM1,200.00 with the average income of RM5,000.00 per month during that period. In their
Statement in Reply, the Company averred that her monthly nett salary of RM4,000.00 to
RM5,000.00 was inclusive of the Claimant's basic salary and commissions such commissions
which would vary on a monthly basic dependent on the target achieved by the Claimant.
The Court orders the Company to pay the Claimant backwages based on her last drawn
salary of RM5,000.00 but limited to 24 months as follows:
RM5,000.00 x 24 = RM120,000.00
Reinstatement is obviously unsuitable in the circumstances of the case as the Claimant
had left the employment for about five (5) years.
In lieu of reinstatement, compensation based on the formula of one month's salary for
every completed year of service shall be paid by the Company to the Claimant. The Claimant
joined the Company in 2001 and was constructively dismissed on 18 August 2007 (approximately
seven (7) years). Thus, the Company shall pay the Claimant compensation in lieu of reinstatement
as follows:
RM5,000.00 x 7 years service=
RM35,000.00
25
The total sum or RM155,000.00 (i.e RM120,000.00 + RM35,000.00 = RM155,000.00)
less EPF and income tax deductions, if applicable shall be paid by the Company to the Claimant
through her solicitors within 30 days from the date of this Award.
HANDED DOWN AND DATED THIS 20 JUNE 2012
(MARIAH @ MALIAH BINTI AHMAD)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
AT KUALA LUMPUR
26