INDUSTRIAL COURT OF MALAYSIA

CASE NO: 18(12)/4-492/14

TORE NEDREGAARD

DAN

PETROFAC (MALAYSIA-PM304) LIMITED

AWARD NO: 781 OF 2017

Before : Y.A. TUAN GULAM MUHIADDEEN BIN ABDUL AZIZ

PENGERUSI

Award Issued at : Industrial Court of Malaysia,

Kuala Lumpur.

Date of Reference : 25.6.2014

Dates of Mention : 11.8.2014, 29.10.2014, 9.12.2014, 18.12.2014,

2.4.2015, 6.5.2015, 28.7.2015, 11.11.2015,
26.2.2016, 8.6.2016, 16.6.2016 & 2.8.2016.

Dates of Hearing : 19.5.2015, 15.6.2015, 10.9.2015, 6.10.2015,

20.4.2016 & 5.10.2016

Company’s Written Submission : 8 June 2016

Claimant’s Written Submission : 16 June 2016

Company’s Written Submission In Reply : 1 August 2016

Claimant’s Written Submission In Reply : 2 August 2016

Representation : Mr. Hariharan Taro Singh

& Mr. Fakhrul Redha bin Paridul Adras
Messrs Scivetti & Associates
(Learned counsel for the Claimant)

Mr. Ravindran Kumar & Miss Tham Li Vyen

Tetuan Raja Darryl & Loh
(Learned counsel for the Responden)

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 AWARD
This is a reference by the Honourable Minister of Human Resources under Section
20(3) of the Industrial Relations Act 1967 dated 25 June 2014. The parties before this
Court are Tore Nedregaard (hereinafter referred to as “the Claimant”) and Petrofac
(Malaysia-PM304) Limited (hereinafter referred to as “the Company”). The dispute is over
the alleged constructive dismissal of the Claimant by the Company on 21 October 2013.
The reference was received by this Court on 9 July 2014.

Factual Matrix of the Case

The Company is incorporated in England with its registered address at 117 Jermyn
Street, London SWIY, 6HH, United Kingdom and has a branch office at Level 21, Menara
3 Petronas, Pesiaran KLCC, Kuala Lumpur City Centre, Kuala Lumpur.

The Company’s primary business is petroleum exploration and production.

On 14 May 2012 the Claimant commenced his employment at the Company as an

Asset Manager PM 304 and Asset Operations PM304 is an area/block offshore
Peninsular Malaysia over which the Company and its co-ventures were granted rights by
Petroliam Nasional Berhad (“Petronas”) pursuant to the Petroleum Development Act 1974
to explore and exploit petroleum resources via a Production Sharing Contract dated 23
February 1998. The Company contends that PM304 yields large undeveloped
hydrocarbon resources and one of the largest oilfields in Malaysia.

The Claimant’s primary duties as the Asset Manager was to provide technical and
managerial leadership in managing the PM304 asset and its related project development
and operational phases. The Claimant had seven employees who directly reported to
him and also supervised a total of approximately 176 personnel. He reported directly to
Mr. Keith Collins, the then Country Manager up till June 2013. Thereafter, the Claimant

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reported directly to Mr. Glyn Jones who had replaced Keith as the Country Manager with
effect from July 2013.

The Claimant was paid base salary of RM643,000.00 per annum (approximately
RM53,583.00 per month) and transportation allowance of RM10,000.00 per month which
were subject to tax deduction at sources. The Claimant was also entitled to education
fees for his children at International School up to maximum three children on the
reimbursement basis upon production of the receipt. Apart from that, the Company also
provided medical insurance to the Claimant, his wife and his children subject to treatment
being given by the Company’s medical doctors, panel clinics or a specialist referred to by
the Company’s doctors.

On or about July 2013, the Company conducted a review of its business

performance. The PM304 performance trends were poor with delayed production. The
Company contends that there was a complaint by Petronas dated 28 June 2013 on the
significant delays and cost overruns experienced by PM304. The Company decided that
change was needed and therefore decided to embark on a remapping process in order
to improve its business performance. All Management Team (“MT”) members including
the Claimant were apprised of the reorganization exercise and selection process which
was premised on addressing performance issues within the Company.

During the Functional MT meeting on 6 August 2013, the MT members agreed to

the “PML Organisational Philosophy”. Under this Philosophy, a selection process will be
commenced to select the best person for the job upon the development of an agreement
to the Organisational Blue Print.

Following the reorganisation, the role of PM304 Asset Manager no longer existed.
Instead, a more senior role of a General Asset Manager, PM304 was created.

On 11 October 2013, the Claimant was informed by Glyn Robert Jones (“COW-1”)
that he had been observing the Claimant’s performance at work and found that his

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performance was sub-standard and lacked leadership skills. Further, the Claimant failed
to fully and adequately perform the roles and responsibilities stated in his job description.
As such, the Company decided that the Claimant would not be able to undertake the role
as the General Asset Manager, PM304 which is an even more senior position involving
challenges, complexity and leadership.

As the Claimant’s roles as the PM304 Asset Manager had ceased to exist following
the organisational remapping, the Company offered the Claimant the role of Business
Strategy Planning and Systems Manager (“BSPS Manager”). The Claimant’s
remuneration and benefits in his roles as BSPS Manager would remain unchanged.

On 14 October 2013, the Claimant emailed COW-1declining the role of BSPS and
asking the latter to look for alternatives, including positions in other countries.

COW-1 responded to the email and informed the Claimant that he was
disappointed that he had refused to take up the BSPS role that was offered to him. COW-
1 further informed the Claimant that he would consult the Company’s Director of Human
Resources on any other available roles and scheduled a further meeting with the Claimant
on 16 October 2013.

However, on 15 October 2013, the Claimant emailed to COW-1 alleging that he

was “fired” by the Company. The Claimant also requested for a deal to enable him to
leave the Company.

-----Original Message-----
From: Nedregaard, Tore (Kuala Lumpur)
Sent: Tuesday, 15 October, 2013 7:25 PM
To: Jones, Glyn (Kuala Lumpur)
Subject: Going forward

Glyn,

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I know you have a job to do, having been sent in to sort out an
impossible mess, and I want you to know that so far, I have no
personal grievances with you….

However, having been fired for “sub standard work performance” and
being told I lack “basic leadership skills/talents…” I don’t rate
my future with Petrofac very highly…, or even my desire to work for
this company

I’m emotionally in a very bad state so will not plan to come in to

work, I suggest you focus your energy on getting a deal on the table
that is acceptable and let’s me leave with some semblance of respect
and dignity for what I demonstrably have done for this company.

Regs.,

Tore.

COW-1 then informed the Claimant that the Company’s Director of Human
Resources, Ms. Anusoorya Themudu (“COW-2”) would be liasing with the Claimant for
the purposes of discussing a “mutually acceptable approach moving forward” based on
his request.

-----Original Message-----
From: Jones, Glyn (Kuala Lumpur)
Sent: Wednesday, 16 October, 2013 9:15 AM
To: Nedregaard, Tore (Kuala Lumpur)
Subject: RE: Going forward

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Tore – thanks for your note last night and I am fine if you don’t come
into the office at the moment.

I have this morning asked Soorya who is copied on this note to get in
touch with you directly this morning to talk about the way forward to
find a mutually acceptable approach. She is the new Regional VP for HR
based in KL.

Regards

Glyn

On 21 October 2013, the Claimant met COW-2 requesting for similar job roles in
other countries but was told that there were no similar position available. As such, the
role of the BSPS Manager was again offered to the Claimant and he was urged to
consider accepting the same.

On the same day, vide email dated 21 October 2013, the Claimant informed COW-
2 that he felt subjected to constructive dismissal. The relevant email is reproduced as
follows :

-----Original Message-----deck
From: Nedregaard, Tore (Kuala Lumpur)
Sent: Monday, 22 October, 2013 7:41 PM
To: Themudu, Anusoorya (Kuala Lumpur)
Subject: Re: Meeting up

Soorya,
Just to re-cap our meeting today:
You told me you have checked with Bob Gower and Worldwide there are

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no
positions fitting with my experience available in Petrofac. I then
confirmed that the position you have offered me in the new re-mapped
organisation as Manager Business Strategy, Planning and Systems is
not
fitting with my career goals and aspirations, and that I also don’t
think I have the right background/experience for it. You then
offered me a package deal comprising of 6 months salary. I made my
position clear that I feel subjected to Constructive and Wrongful
dismissal as stipulated by Malaysian labour law and we agree I
would leave the office with no further requirements to come to the
office as I have no
meaningful tasks to attend to anymore.
Going forward, I will discuss my options with my advisors tomorrow
And
revert with my position in relation to your offer as soon as possible.
We both agreed that we should try to close this matter during this week.
It is my intention to find a fair and amicable solution to this very
Stressful situation and I will revert as soon as the right advisors
have been consulted and I fully understand my position.

Regs.,

Tore.

On 25 November 2013, COW-2 wrote a letter to the Claimant which stated among
others, that the Claimant was still an employee of the Company and the Claimant was
reminded to respond to the offer contained in the separation agreement by 28 November
2013, failure of which, the Claimant was deemed to have terminated his employment with
the Company on his own accord.

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8
9
 On 28 November 2013, the Claimant replied to the letter from COW-2 dated 25
November 2013. The Claimant stated that he was constructively dismissed by the
Company in view of the relegation by the Company to a position of lesser responsibilities
to which the Claimant had no experience whatsoever. Further, in view of the position
taken by the Company that confirmed that the Claimant was still an employee of the
Company, the Claimant had demanded the salary for the month of November 2013.

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11
12
 The Company contends that the Claimant’s allegation of constructive dismissal on
28 November 2013 was misplaced. Accordingly, the Company issued a letter dated 9
December 2013 to the Claimant stating that the Company did not terminate his
employment and that the Claimant had left the Company on his own volition.

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14
The Law on Constructive Dismissal

The law in respect of constructive dismissal has been explained by Lord Denning
MR when delivering the judgement of the Court of Appeal in Western Excavating (ECC)
Ltd v Sharp [1978] QB 761 whereby he stated as follows:

“If the employer is guilty of conduct which is a significant

breach going to the root of the contract of employment, or which
shows that the employer no longer intends to be bound by one or
more of essential terms of the contract, then the employee is
entitled to treat himself as discharged from any further
performance. If he does so, then he terminates the contract by reason
of the employer’s conduct. He is constructively dismissed. The employee
is entitled in those circumstances to leave at the instant without giving
any notice at all or, alternatively, he may give notice and say he is leaving
at the end of the notice. But the conduct must in either case be
sufficiently serious to entitle him to leave at once. Moreover, he
must make up his mind soon after the conduct of which he
complains: for, if he continues for any length of time without
leaving, he will lose his right to treat himself as discharged. He will
be regarded as having elected to affirm the contract.”
[Emphasis added]

In the local context, the doctrine of constructive dismissal has been firmly
established in industrial jurisprudence as expressed by the Supreme Court in Wong Chee
Hong v Cathay Organisation (M) Sdn. Bhd. [1988] 1 MLJ 92 whereby Salleh Abas
LP, at page 95, held as follows:

“The common law has always recognized the right of an employee

to terminate his contract of service and therefore to consider
himself as discharged from further obligations if the employer is

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 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.”
[Emphasis added]

In deciding whether constructive dismissal has taken place or otherwise, Salleh

Abas LP, at page 95 and 95, had this to say:

“When the Industrial Court is dealing with a reference under section

20, the first thing that the Court will have to do is to ask itself a question
whether there was a dismissal, and if so, whether it was with or without
just cause or excuse. Dismissal without just cause or excuse may well
be similar in concept to the U.K. legislation on unfair dismissal, but these
two are not exactly identical. Section 20 of our Industrial Relations Act is
entirely different from paragraph (c) of section 55(2) of the U.K.
Protection of Employment Act 1978. Therefore we cannot see how the
test of unreasonableness which is the basis of the much advocated
concept of constructive dismissal by a certain school of thought in U.K.
should be introduced as an aid to the interpretation of the word
“dismissal” in our section 20. 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
[1930] AC 271 and Donovan v Invicta Airways Ltd [1970] 1 Llyod’s
Rep 486.)

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 [Emphasis added]

With regard to the principles governing the prerequisites to found a claim of

constructive dismissal, the High Court in Bayer (M) Sdn Bhd v Anwar bin Abd Rahim
[1996] 2 CLJ 49 at page 52, decreed as follows:

“In my judgement in order to succeed in a claim for constructive

dismissal, the employee must prove to the satisfaction of the Court that
the employer is guilty of breach which goes to the root of the contract or
if the employer has evinced an intention no longer to be bound by it. It is
only in such a situation that the employee is entitled to regard the contract
as terminated and treat himself as being dismissed. Constructive
dismissal does not mean that an employee can automatically terminate
the contract when his employer acts or behaves unreasonably towards
him. Indeed if it were so, it is dangerous and can lead to abuse and
unsettled industrial relation. 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:

(i) There must be a breach of contract by the employer;

(ii) The breach must be sufficiently important to justify the
employee resigning;
(iii) The employee must leave in response to the breach and
not for any other unconnected reasons; and
(iv) 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”

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 On the issue of burden of proof in constructive dismissal cases, the Industrial Court
in Yong Wee Teck v Silverwell Management Sdn. Bhd. [2016] 2 ILR 384 held, at page
390, as follows :

“[21] To determine whether there had been grounds for

constructive dismissal, the burden of proof is on the Claimant to
establish the above conditions precedent.

[22] If any of the above conditions are not established, then the
Claimant’s claim must, in law, fail.”

Preliminary Issue

At the outset, the Company submits that the date of the alleged constructive
dismissal is on 28 November 2013 and not on 21 October as stated in the Ministerial
Reference.

The Company submits that in contrast with the email dated 21 October 2013, the
Claimant’s letter to the Company dated 28 November 2013 contains an unequivocal
pronouncement of his claim of constructive dismissal as follows:

“ 9. Hence, I treat the relegation by your Company to a position of

lesser responsibilities to which I have no experience
whatsoever to be constructive dismissal”
[Emphasis added]

The Claimant had confirmed during his evidence in Court that the contents of his
email dated 21 October 2013 were merely to express his opinion and feelings at that
juncture i.e. that he “felt subjected to constructive and wrongful dismissal” and does not

18
amount to a claim for constructive dismissal. The email dated 21 October 2013 reads as
follows :

“You told me you have checked with Bob Gower and Worldwide there
are no positions fitting with my experience available in Petrofac. I then
confirmed that the position you have offered me in the new re-mapped
organisation as Manager Business Strategy, Planning and Systems is
not fitting with my career goals and aspirations, and that I also don’t think
I have the right background/ experience for it. You then offered me a
package deal comprising of 6 months’ salary. I made my position clear
that I feel subjected to Constructive and Wrongful dismissal as
stipulated by Malaysian labour law and we agreed I would leave the
office with no further requirements to come to the office as I have no
meaningful tasks to attend to anymore.”
[Emphasis added]

The Claimant’s evidence in this regard in response to the question from the
Company’s counsel as well as from the Court is as follows:

“Q: Hang on, can I refer you to para 9 of the letter?

“Hence, I treat the relegation by your Company to a position of lesser
responsibilities to which I have no experience whatsoever to be
constructive dismissal.” So on the 28 November 2013 you have
contended or you consider yourself constructively dismissed, can
you confirm that?
A: I confirm.
Q: So do you agree with me Mr. Tore that only on 28 November 2013
you said “I treat the relegation by your company to a position of
lesser responsibilities to which I have no experience whatsoever to
be constructive dismissal”. That is the first time you conveyed to the
company that I viewed all these as constructive dismissal, earlier

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 on the 21 October 2013 you said “I feel subjected to constructive
dismissal”, but only on 28 November 2013 you contended there
was constructive dismissal, do you agree?
A: I agree. On 28th I got legal advice

Q: Alright. Thank you.

Ct : I agree and?
A: I had legal representation on 28 November 2013.

Ct : So you agree that only on 28 November 2013 that this letter, you
treated it as constructive dismissal.
A: That paragraph it is stated here.

Q: Yang Arif, the witness said only on 28th he got legal advice, he
agreed that he deemed himself constructively dismissed on 28th.
A: That’s right.

Ct : And your answer?

A: That is my answer, I got my legal representation sometime in
middle of November.”
[Emphasis added]

In light of the above, the Company submitted that this Court does not have the
jurisdiction to inquire upon the Claimant’s complaint of constructive dismissal on 28
November 2013 which is at variance with the Ministerial Reference date which is on 21
October 2013.

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Claimant’s Submission

The Claimant submits that the Claimant’s letter to the Company dated 28
November 2013, particularly paragraph nine (9) is a mere restatement of reiteration of the
Claimant’s claim that he was constructively dismissed on 21 October 2013, which has
been stated earlier in the Claimant’s email dated 21 October 2013. It does not undermine
or nullify the Claimant’s position as stated in his email dated 21 October 2013.

The Claimant further submits that the wording used in the email dated 21 October
2013 must also be read in light of the prior event leading up to the email being written,
i.e. the Claimant and COW-2 had a meeting on the same date to discuss about the future
of the Claimant at the Company post remapping exercise and both parties agreed that
the Claimant would leave the office with no further requirements to come to the office as
he had no meaningful task to attend to anymore which is consistent to his state of mind
that he felt he had been constructively dismissed by the Company on 21 October 2013.

The Claimant further submits that the notes of proceedings stated by the Company
in their submission were incomplete and wrongly presented by the Company as they do
not depict the actual testimony which was transpired during the day of trial. The Claimant
reproduced the actual and complete notes of proceedings which was transcribed by an
independent third party pertaining to this issue as follows :

Cross-examination of the Claimant

RKR Still on this letter. Mr Tore, you confirm that in fact your
allegation of constructive dismissal only surfaced on 28
November 2013. You confirm that?

TORE No. I don’t think that’s correct. Because there is an email

somewhere where I actually –

21
RKR No, hang on. Can I refer you to paragraph 9 of the letter?
Here it says “Hence, I treat the relegation by your Company
to a position of lesser responsibilities to which I have no
experience whatsoever to be constructive dismissal’. So on
28 November 2013, you have contended or you consider
yourself constructive dismissed. You confirm that?

TORE I confirm what’s there, yes, that just –

RKR Thank you. ‘I confirm what is there’. So only after this letter
dated 28 November 2013, you considered yourself
constructively dismissed. Now, therefore, Mr tore, I put it to
you –

YA Your second part what did you say?

RKR I’m sorry, Yang Arif. Only in the letter of 28th November, you
considered yourself constructively dismissed.

YA Does he agree on that?

RKR Because he confirmed earlier. Do you agree only on 28

November 2013, you considered yourself constructively
dismissed? Do you agree?

TORE No, not really. And this, keep in mind. I need to explain.

YA Slowly.

TORE Yes, can I explain?

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YA No, hold on. Your counsel will re-examine you. (00:18;03
inaudible)

TORE Fine. I confirm that I sent an email on the 21st of October

where I used the word ‘constructive dismissal’.

RKR You sent an email on 21st October and used the word
‘constructive dismissal’ is it?

TORE Yes.

RKR Can we look at that email? This is contained at page 79 of

COB, Yang Arif. Can you refer to pager 79 of COB, Mr.
Tore? This email is from yourself to Soorya dated 21
October 2013. And in the third paragraph –

TORE Which part are you referring to?

RKR I’m looking at the third paragraph. Is that where you are
saying?

TORE Yes, that’s my email.

RKR Yes, and this is where you said, the email reads, if I may
read, Mr. Tore. ‘I made my position clear that I feel subjected
to constructive and wrongful dismissal’. Is that what you are
saying?

TORE That’s what I was saying. And keep in mind I’m not a lawyer.

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RKR Alright. Now, if you look carefully at the email dated 21
October 2013, you say in your email that you feel subjected
to constructive and wrongful dismissal. Yes?

TORE That is correct, yes.

RKR But if you look at 28th of November, the letter of 28th

November, page 98 at paragraph 9, here you say ‘Hence, I
treat the relegation by your Company to a position of lesser
responsibilities to which I have no experience whatsoever to
be constructive dismissal.’

TORE That’s what it says.

RKR So do you agree with me, Mr. Tore, that only on 28

November 2013, you said ‘I treat relegation by your
Company to a position of lesser responsibilities to which I
have no experience whatsoever to be constructive
dismissal’. That is the first time you conveyed to the
Company that ‘I view all this as constructive dismissal’.
Earlier, on 21st of October, you said ‘I feel subjected to
constructive dismissal’. But only on the 28th, you contended
that there was constructive dismissal. You agree?

TORE I agree that by the 28th, I had legal representation.

RKR Alright. Thank you.

YA ‘I agree’ –

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 TORE I agree I had the legal representation on 21st of October, I
had no legal representation. That only came in the middle of
November.

YA So, you agree that only on 28 November 2013, via this letter,
you treat it as a constructive dismissal.

TORE That is not correct, what it (00:22:06) inaudible) says here.”

The Claimant submits that the Claimant’s claim for constructive dismissal on 21
October 2013 is not at variance with the Ministerial Reference. If therefore follows that
this Court has jurisdiction to inquire upon the Claimant’s claim for constructive dismissal.

Determination on the Preliminary Issue

The Company maintains that the Claimant only alleged constructive dismissal on
28 November 2013 and not on 21 October 2013 which is the date stated in the Ministerial
Reference.

Hence, before deciding whether the Claimant’s claim for constructive dismissal
has merits and if so, whether the said dismissal was with just cause or excuse, it is
relevant and pertinent that the Court determines the preliminary issue first.

In order to ascertain the actual date the Claimant claim Constructive Dismissal, it
is pertinent to consider the prior and subsequent actions of the Claimant after the email
dated 21 October 2013 where the Claimant “felt subjected to constructive and wrongful
dismissal.”

On 15 October 2013, the Claimant emailed to COW-1 stating that “having been
fired for “sub standard work performance” and being told I lack “basic leadership skills /

25
talents …..” I don’t rate my future with Petrofac very highly…. or even my desire to work
for this Company. I’m emotionally in a very bad state so will not plan to come in to work,
I suggest you focus your energy on getting a deal on the table that is acceptable and let’s
me leave with some semblance of respect and dignity for what I demonstrably have done
for this company.”

COW-1 responded stating that he had asked Soorya (COW-2) to be in touch with
the Claimant directly to talk about the way forward to find a mutually acceptable approach.
The Claimant was also informed that COW-2 is the new Regional VP for HR based in
Kuala Lumpur.

COW-3 and the Claimant then exchanged e-mails between them to fix a date for
a meeting. They met on the 21 October 2013 whereby the Claimant recap the meeting in
his e-mail dated 21 October 2013 at 7.41 p.m. It is in this e-mail the Claimant stated that
he “feel subjected to constructive and wrongful dismissal…” and whereby the Claimant
contends that this is the date the Claimant was constructively dismissed.

COW-2 in her e-mail dated 22 October 2013 explained to the Claimant the reasons
behind the Company’s decision to offer him the role as the BSPS Manager. She also
reiterated that as the Claimant had refused to take up the role and was desirous of a
mutual separation, the Company had exercised its discretion to consider the Claimant’s
request and had engaged the Claimant in discussion in respect of the same. COW-2
further states in the e-mail as follows:

“With reference to the package deal, you informed me to make an

attractive offer which you cannot refuse. I asked you what you had in
mind. And you’re indicated up to 24 months. In return – I offered 6 months
which is above the requirement of your employment contract. Although it
is excessive in the spirit of the amicable settlement, in my opinion is fair.

26
 With reference to reporting to work, you requested if you don’t have
to come to office until amicable solution has been reached. I am fine
with this arrangement …..”

COW-2 further testified as follows:

Q16 : What did you do next?

A: I then attended to the necessary preparations for the execution of a
mutual separation agreement between the Claimant and the Company
including the processing of the Claimant’s dues.
However, I was shocked to receive a text message from the Claimant
(p29 COB2) on 14 November 2013 informing me to liaise with his
solicitors. The Claimant’s text message was followed by the letter
dated 14 November 2013 from the Claimant’s solicitors.
I refer to the letter 14 November 2013 from the Claimant’s solicitors at
p94 COB.

Q17 : Was the mutual separation agreement executed between the parties?
A: No, the mutual separation agreement was not executed between the
parties. In fact, the Company did not hear from the Claimant and/or his
solicitors further to the letter from the Claimant’s solicitor dated 14
November 2013 (p94 COB)

Q18 : What did the Company do next?

A: As the Company did not hear from the Claimant and/or his solicitors
further to the letter from the Claimant’s solicitors dated 14 November
2013 (p94 COB) as stated above, I issued a letter on 25 November
2013 on behalf of the Company informing the Claimant of inter alia the
following :

27
 (a) As the Claimant had declined the offer of the role of the BSPS
Manager, the Claimant had requested from the Company a
separation package in lieu of continuing employment with the
Company.
(b) Further to discussions between the parties, the parties had mutually
agreed on a separation package equivalent to 6 months’ of the
Claimant’s salary.
(c) The mutual separation agreement was handed over to the Claimant
on 12 November 2013 for his execution (pp10 – 13CLB).
(d) However, the mutual separation agreement was not executed by the
Claimant and the Company was surprised to receive a letter dated
14 November 2013 from the Claimant’s solicitors requesting the
Company to direct all correspondence to them.
(e) The Company still considered the Claimant as an employee of the
Company and as such, the Claimant is still subject to the Company’s
rules and regulations.
(f) In the event the Claimant fails to respond to the Company by 28
November 2013, the Company has no option but to deem that the
Claimant had left his employment on his own volition.

I refer to the letter dated 25 November 2013 from the Company to the
Claimant at pp95 - 96 COB.

Q19 : What happened next?

A: On 28 November 2013, the Claimant wrote to the Company alleging
inter alia constructive dismissal against the Company.
I refer to the letter dated 28 November 2013 from the Claimant at pp97
- 99 COB.

Based on the above e-mails and also the evidence of COW-1 and COW-2, it is
obvious to the Court that the Claimant still considered himself as an employee of the

28
Company even after the date of the alleged dismissal. The Claimant was negotiating for
a mutual separation agreement and in fact had mutually agreed on a separation package
equivalent to 6 months’ of the Claimant’s salary. There is no indication by the Claimant in
his correspondence with COW-1 and COW-2 that he had considered himself
constructively dismissed by the Company on 21 October 2013. Even the Claimant’s
solicitor letter to the Company dated 14 November 2013 did not state that the Claimant
is claiming constructive dismissal. It merely informed the Company that they were
representing the Claimant and was reviewing the terms of the Separation Agreement.

The evidence of the Claimant also shows that he was not certain as the when he
was actually dismissed. In cross-examination, the Claimant confirmed that the contents
of his e-mail dated 21 October 2013 were merely to express his opinion and feelings at
that juncture. Only on 28 November 2013 after getting legal advise, he considered himself
constructively dismissed.

The Claimant continued to consider himself as an employee of the Company and

was in fact performing his duties as an employee until 28 November 2013. On 7
November 2013, the Claimant had signed 7 cheques on behalf of the Company. This was
admitted by the Claimant in his letter dated 28 November 2013.

The Claimant in his letter also demanded that his salary for the month of November
2013 be paid by the Company in accordance with his contract of employment. His salary
for November 2013 was duly paid by the Company on 11 December 2013 and accepted
by the Claimant without any protest.

In light of the above, this Court is of the considered view that the Claimant’s
complaint of constructive dismissal was on 28 November 2013 which is at variance with
the Ministerial Reference date on 21 October 2013.

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The Ministerial Reference

In Dreamland Corporation (M) Sdn. Bhd. v Choong Chin Sooi & Anor [1981]
1 MLJ 112, the Supreme Court held that the scope of inquiry of the Industrial Court is
limited to the date of dismissal as stated in the ministerial reference. The Supreme Court
further held that the Industrial Court cannot seek to amend the date of alleged dismissal
as stated in the reference and make an award as a consequence of the amended date.

“Accordingly, we hold that the workman was lawfully dismissed as was

held by the Industrial Court. However, neither the Industrial Court nor
the High Court was correct in amending the date of dismissal and
in awarding compensation as a consequence of such amended
date, both matters outside their jurisdiction in an inquiry under
section 20(3) of the Industrial Relations Act.

We would therefore allow the appeal, set aside the finding of the High
Court and quash the award by the Industrial Court with regard to effective
date of dismissal and backwages and orders consequential thereon.
Costs to the appellant here and below. Deposit to be refunded.”
[Emphasis added]

In Azlina Suminggu v WRP Asia Pacific Sdn. Bhd. [2011] 3 ILR 294, the
Industrial Court dismissed the Claimant’s claim as the date of her alleged constructive
dismissal is different from the date stated in the Ministerial Reference. The Industrial
Court held at page 98 as follows :

“It is trite law that the Court takes its terms of reference from the
Ministerial reference it receives pursuant to section 20(3) of the Industrial
Relations Act 1967 and its jurisdiction is limited to the dispute referred to
it. The reference determines the jurisdiction of the Court and the scope
and nature of the issues referred to it.

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Further at page 298, the Chairman states :

“Since the Claimant had pleaded that she was constructively

dismissed on 8 March 2007 and not on 8 February 2007 which is the
date of dismissal stated in the Ministerial Reference, the Claimant
is therefore uncertain as to the actual date of dismissal and on that
ground alone, her case could be dismissed.”
[Emphasis added]

In Khalil Mohd Damin v Penerbanagan Malaysia [2012] 1 ILR 107, the Industrial
Court held that it would be acting outside its jurisdiction if it proceeds to adjudicate the
Claimant’s claim of constructive dismissal based on the date as stated in his evidence in
Court which is different from the date on the Ministerial Reference.

“It is trite that the threshold jurisdiction of this Court comes from the
reference by the Minister under section 20(3) of the Act. In fact, in the
Supreme Court case of Kathiravelu Ganesan & Anor v. Kojasa
Holdings Bhd [1997] 3 CLJ 777; [1997] 2 MLJ 685 at p. 695, hi
Lordship Gopal Sri Ram JCA (as he then was) clearly stated as follows:
…the Industrial Court, unlike the ordinary courts, is not available for
direct approach by an aggrieved party. Access to it, may only be had
through there levels earlier adverted to. The Industrial Court is
therefore empowered to take cognisance of a trade dispute and
adjudicate upon it only when the Minister makes a reference. In other
words, it is the reference that constitutes threshold jurisdiction.

In view of the above stated pronouncement in the Supreme Court

case of Kathiravelu (supra) if the complaint of unfair dismissal is
not one which is stated in the reference by the Minister, the Court
is empowered to dismiss the same on the ground that it does not

31
 have the jurisdiction to adjudicate the said complaint which is not
the subject matter of the reference by the Minister.

The reference by the Minister (CEO2) states that the alleged date of
unfair dismissal is on 25 July 2004. However, the date of the alleged
constructive dismissal by the Claimant is on 16 July 2004. The Claimant
himself conceded that his constructive dismissal with effect from 16 July
2004 is not the date stated in the reference by the Minister.
Q: Setuju, bahawa tarikh Encik menuntut Constructive
Dismissal, iaitu 16 July 2004, bukan tarikh yang dinyatakan
seperti di dalam COE1?
A: Saya setuju.

Thus, going by the ratio decidendi in the case of Kathiravelu (supra), it is

evident that this Court will be acting outside its threshold jurisdiction if it
adjudicates on the Claimant’s alleged constructively dismissal claim with
effect from 16 July 2004 or the date 28 July 2004, which he informed this
Court as being his last day.

However, this Court could still dismiss the Claimant’s claim of unfair
dismissal because the Claimant himself was uncertain as to when he was
actually dismissed (constructive or otherwise).

….
In the circumstances, vis-à-vis, in light of the fact that the Claimant
himself was uncertain as to when he was actually dismissed
(constructive or otherwise) the Claimant’s claim ought to be dismissed.”
[Emphasis added]

By reason of the matters aforesaid, this Court lacks the threshold jurisdiction to
inquire into the Claimant’s complaint of constructive dismissal on 28 November 2013 as

32
the alleged date complained of is not the subject matter of the Ministerial Reference i.e.
the alleged dismissal on 21 October 2013.

Conclusion

As the threshold jurisdiction of this Court rests on the Minister’s reference and in
view of the fact that the dismissal date of 21 October 2013 appearing in the Minister’s
reference is different from the actual dismissal date i.e. 28 November 2013 and on this
ground alone the Court is of the view that the Claimant is uncertain as to when he was
actually allegedly dismissed. In the circumstances the Court upholds the preliminary issue
as raised by the company and on this ground alone the Claimant’s claim is hereby
dismissed and the issue as to whether the dismissal was with just cause or excuse does
not arise for determination.

The claim is hereby dismissed.

HANDED DOWN AND DATED THIS 30th DAY OF MAY 2017.

(GULAM MUHIADDEEN BIN ABDUL AZIZ)

CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
PENANG BRANCH
AT GEORGE TOWN

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