LIEW ZEE FEI v BJAK SDN BHD

Case Significance

Confirms that the deemed-resignation rule in section 15(2) of the Employment Act 1955 requires absence for more than two consecutive working days, and that an employer who has characterised an employee as suspended, then as having resigned, cannot later recast continued absence as abandonment.

This High Court decision at Shah Alam is an appeal under the Employment Act 1955 against a decision of the Assistant Director of Manpower (ADM) who had dismissed an employee's claim for unpaid salary and computer allowance. The appellant, employed as a lead AI specialist, was suspended by letter in January 2024 and later told he had voluntarily resigned; he denied resigning and claimed salary and allowance for February to August 2024. The employer, BJAK Sdn Bhd, contended that his failure to attend work on two days amounted to a deemed voluntary resignation under section 15(2) of the Act, so that he was no longer its employee and had no salary entitlement. The ADM had found for the employer, concluding — in the words recorded in the judgment — that "pihak syarikat telah berjaya membuktikan di atas imbangan kebarangkalian bahawa penamatan kerja pengadu telah dibuat atas sebab dan alasan" (the company had succeeded in proving on a balance of probabilities that the complainant's dismissal was made with cause and justification). On appeal, the court applied the principles governing the High Court's appellate jurisdiction over Labour Court decisions, drawing on China Airlines Ltd v Maltran Air Corp and UMW Motor Sdn Bhd v Allan Chong Teck Hin. Turning to section 15(2), the court emphasised that an employee is only deemed to have broken the contract of service if continuously absent for more than two consecutive working days; here the absence was of two days only. The court also held that, having told the employee he was suspended and then that he had voluntarily resigned, the employer could not rely on his continued absence as abandonment. It followed that the employee had neither resigned nor broken his contract, so he remained an employee entitled to his salary. The court allowed the appeal.