SEN WEN HAN v 1. ) SS REFORM MARKETING SDN BHD 2. ) MAHKAMAH PERUSAHAAN MALAYSIA

Case Significance

Illustrates the contractual test for constructive dismissal — fundamental breach, prompt resignation and a clear causal nexus for cumulative breaches — and the deference a court gives to the Industrial Court's findings of fact on judicial review.

This High Court decision at Ipoh, delivered by Moses Susayan J, concerns an application for judicial review — an order of certiorari under Order 53 of the Rules of Court 2012 — to quash an award of the Industrial Court that had dismissed a claim of constructive dismissal. The applicant, a former employee, had claimed that a series of cumulative breaches by the employer — salary reductions, unpaid allowances, a relocation and a change in management — amounted to a fundamental breach entitling him to treat himself as constructively dismissed, and he had resigned in February 2020. The Industrial Court dismissed the reference, and the employee sought to impugn that award, with the Industrial Court joined as the second respondent.

The Court set out the applicable law. The test for constructive dismissal is contractual: there must be a fundamental breach by the employer going to the root of the contract, followed by a prompt resignation, and where cumulative breaches are relied on there must be a clear causal nexus between the breaches and the resignation. On judicial review of an Industrial Court award — a rehearing informed by section 33C of the Industrial Relations Act 1967 and Order 55 rule 2 of the Rules of Court 2012 — the court defers to the tribunal's primary fact-finding unless it is plainly wrong. The Court found that the resignation was not sufficiently proximate in time to, or causally linked with, any specific breach by the employer, that the alleged unpaid allowances were unproven for want of claim forms, receipts or payroll records, and that the applicant had not established that his notice of constructive dismissal had been properly communicated to the employer.

The Court held that the Chairman of the Industrial Court had not erred in law or fact in dismissing the claim, and it dismissed the application for judicial review, making no order as to costs given the familial and internal issues underlying the dispute. The judgment is a useful illustration of the contractual test for constructive dismissal — fundamental breach, prompt resignation and a clear causal nexus for cumulative breaches — and of the deference a court gives to the Industrial Court's findings of fact on judicial review.