INDUSTRIAL COURT OF MALAYSIACASE NO. 19/4-2024/06

BETWEEN PUAN LOKE MING WAI ….... CLAIMANT

AND AXON SOLUTIONS SDN. BHD ….... COMPANY

AWARD NO. 1706 OF 2012

Before : Y.A. PUAN HAPIPAH BINTI MONEL- CHAIRMAN (Sitting Alone)

Venue : Industrial Court Malaysia,Kuala Lumpur.

Date Of Reference: : 14 June 2006

Dates of Mention : 20.10.2006, 03.01.2007, 02.02.2007, 28.02.3007,14.03.2006, 17.07.2007, 05.05.2008, 27.05.2008,04.09.2008, 30.03.2009, 17.08.2009, 08.02.2010.

Date of Hearing : 03.09.2009, 04.09.2009, 23.06.2010, 25.10.2010. Representation : Ms. R. Subithra and En. Ihsan bin Zakaria of Messrs. Surend

Mokhzani & Partners, Counsel for the Claimant Mr. A. Ramadass and Ms. T. Kavitha of Messrs. Ramadass& Associates, Counsel for the Company

REFERENCE

This is a reference under section 20(3) of the Industrial Relations Act 1967 arising out of the dismissal of PUAN LOKE MING WAI (hereinafter referred to as “The Claimant) by AXON SOLUTIONS SDN. BHD (hereinafter referred to as “The Company”) on the 10 June 2005.

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AWARD

Fact

The Claimant commenced employment with the Company with effect from 19 th

January 2005 as the applications Management Manager. (pages 1 to 3 of COB1).

It was an express term in the contract of employment that the Claimant would be

required to serve a probationary period of three months which was extendable at the

option of the Company for a further period of three (3) months. (page 5 of COB1)

Pursuant to a telephone conversation on the 27th May 2005 between the Claimant

and Ms. Ruth Rudwick, (COW2) the Global AM Director regarding various issues relating

to the Claimant’s performance, aptitude and management style, it was mutually agreed,

following a suggestion from the Claimant that she would be prepared to leave the

employment of the Company provided suitable compensation was paid to her. This fact

was set out in the Claimant’s letter of 9 th June 2005 addressed to Mr. Bala Nair (COW1)

set out at pages 23 to 25 of COB-1 and in particular at page 24 at item (v) as follows :

“.... At that point I said, 'Ruth, it is not a problem. I can exit so long as fair compensation

is given...”

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Since the Claimant had indicated her willingness to leave the employment of the

Company provided fair compensation was given, COW2 had agreed with the Claimant

that there will be a detailed discussion with Mr. Bala on the exit plans and compensation.

It would also be pertinent to note that it was the Claimant who then SMSed Mr. Bala and

Mr. Paul on the agreement reached between herself and COW2 as set out in her letter of

9th June 2005 at page 24 of COB-1 under item (vi) as follows :

“I SMSed Bala and Paul on the agreement with Ruth immediately thereafter. Paul

responded that he will talk to Ruth when he returns to UK office next week.“

As pointed out above, in view of the agreement between the Claimant and COW2,

the Claimant, communicated the contents of the discussion held between the Claimant

and COW2 to the Managing Director of the Company, via sms. COW2 in the meantime

also sent out an e-mail on the 27th May 2005 to COW1, Mr Paul Foster, Consulting

Director and Mr Steve Cardell the Chief Operating Officer (COO) confirming the

discussions held with the Claimant and the agreement reached. (page 15 of COB-1)

Vide an e-mail on the 30th May 2005 Mr Paul responded to the Claimant that he will

talk to COW2 when he returns to the UK office the following Monday. Subsequently, on

the same date the Claimant wrote another e-mail to COW2 expressing her views about

how she felt that the Company should be managed.

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On the same day, Mr. Paul Foster spoke to the Claimant from UK to discuss on her

exit plans. In the course of discussions, the Claimant mentioned to Mr. Paul that she

wanted the On-Target Earning (OTE) from January to June 2005 plus one (1) month

salary plus another one (1) month salary for June 2005. Further, the Claimant had also

told Mr. Paul Foster that she wanted to exit graciously. Mr. Paul informed the Claimant as

agreed between Mr. Paul and COW2 the Claimant's last day of employment would be 10 th

June 2005 with two weeks paid holiday for the rest of June 2005. Both parties also

agreed on the Claimant's compensations package. At no point of time during all the

above conversation did the Claimant make any allegations that she was being forced to

leave the employment of the Company.

Subsequently, the Claimant vide a letter dated 1st June 2005 submitted her letter of

resignation addressed to Mr Paul Foster, the then Consulting Director to Human Resource

Department, serving one month's notice. The Claimant also in the same letter expressed

her appreciation and thanked Mr. Paul Foster and COW1 for the opportunity given to the

Claimant to be part of the Company. The Claimant also in the said letter wished the

Company's success in achieving its vision and business goals. (page 18 of COB-1)

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On the same day, upon receiving the Claimant's letter of resignation, Mr. Paul

Foster sent an e-mail to the Applications Management Team, the Claimant's subordinates,

copied to AAM management Team, COW2, COW1 and Puan Adibah Harun, the Human

Resource Manager informing them that the Claimant had decided to leave the Company

to pursue other interests and that he will be meeting with her the following Monday to

finalise and execute her handover plan. Mr. Paul Foster also confirmed in the same e-mail

that the Claimant's last day in employment would be 30th June 2005 excluding holidays.

On the 1st June 2005 COW1 had a personal face to face discussion with the

Claimant and subsequent to the said discussion COW1 sent e-mails to all the Malaysia

staff informing them that the Claimant had decided to leave the Company to pursue other

interests and that the Claimant will be in the Company until end of June 2005. (page 20 of

COB1).

Subsequently, on the 3rd of June 2005 the Claimant sent an e-mail to Mr. Paul

Foster on the subject of compensation and reconfirmed her understanding during the

discussion on the Tuesday preceding of the agreement on the compensation for her

departure. The Claimant set out the compensation package as follow:

1. Full salary from January 19 to end June ie. 5.xx months prorated on full bonus of

RM263k.

2. Full salary + prorated 13 months for June (though given 2 weeks holiday after 10 th

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June).

3. 1 month salary.

(page 22 of COB1)

On 6th June 2005 Mr. Paul Foster forwarded the said e-mail to COW1 for the

purpose of preparation of payment. In view of the above, COW1 and the Finance

Department then had a discussion on the above said matter.

On the 9th June 2005 the Claimant sent out Exit Interview Notes to Mr. Paul Foster,

COW1 and Puan Adibah Haron setting out her version of the reasons of her leaving the

Company. Later, on the same date the Claimant sent out a leaving note via an e-mail to

all the staffs expressing her sincere appreciation and thanking them for the hard work.

The Claimant also stated in the said e-mail that her last working day at the Company

would be the 10th June 2005. (pages 23 – 26 of COB1).

However, on the 10th June 2005, the Claimant informed Mr. Paul Foster that she

had changed her mind and wanted full years OTE as compensation which worked out to

about RM500,000.00 having worked for the Company for less than six months.

Given the sudden change in mind of the Claimant, on the 14 th June 2005 COW1

met the Claimant to discuss on her demands for additional payments. At the meeting the

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Claimant demanded for two more months salary. COW1 informed the Claimant that he

would respond to the Claimant by the 17th June 2005.

On the 17th June 2005, COW1 responded to the Claimant via an e-mail that he will

contact her by the 20th or 21st June 2005. On the 20th June 2005 the Claimant sent

COW1 a sms to inform him that since the offer had lapsed, she was reverting to her

demand of the full OTE version again. COW1 tried to contact the Claimant on the same

day but he was not successful.

On the 21st June 2005 COW1 spoke to the Claimant over the phone that the

Company was willing to consider her previous week's offer but anything added would

have to be separately discussed. The Claimant rejected the offer and COW1 informed her

to sent an e-mail on what she wanted.

On the 21st June 2005 COW1 spoke to the Claimant over the phone that the

Company was willing to consider her previous week's offer but anything added would

have to be separately discussed. The Claimant rejected the offer and COW1 informed her

to sent an e-mail on what she wanted.

On the 21st June 2005 the Claimant went an e-mail to COW1 contending

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constructive dismissal and made a revised demand totaling RM406,268.00 as follows:

1. Full variable bonus for January 19 to June 30 2000 (@21,916 per month) =

RM118,772.00.

2. Full OTE (fixed salary + variable bonus) for July – December 2005 (@RM47,916 per

month) = RM287,496.

Total compensation = RM406,268.00. (page 28 of COB1)

The Company responded to the Claimant's letter dated 21st June 2005 vide it's

letter of 1st July 2005 denying her contention of constructive dismissal and setting out the

events and circumstances which led the Claimant to submit her letter of resignation.

Vide an e-mail dated 6th July 2005 the Claimant denied the contention of the

Company and intimated to the Company that her lawyers would be forwarding her claims

to the Company within the next two weeks. (page 31 of COB1).

On the 8th July 2005 the Claimant wrote a letter to the Company expressing her

alleged surprise at the Company's denial of her contention that she was driven out of

employment and further alleged that the management had defamed her performance.

The Claimant further informed the Company that she had decided to resort to legal

remedies open to her on the grounds that she felt that she was misled to a position which

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was unfair to her. (page 1 of COB1).

The Company on 22nd July 2005 reiterated its stand, as set out in its letter of 1st

July 2005. The Company also advised the Claimant if the Claimant was willing to resolve

the matter as per the original terms of settlement, the Company would be willing to resolve

the matter as per the original terms of settlement. The Claimant however did not revert to

the Company. (page 1 of COB2)

However, the Claimant subsequently filed a claim with the Industrial Relations

Department on 28th July 2005 under section 20(3) of the Industrial Relations Act 1967 and

since the matter was not resolved during the conciliation process that was held at the

Industrial Relations Department, the Minister than referred the claim to the Industrial Court

vide a letter dated 10th June 2005 (page 2 of COB2).

The Claimant's Contention

There was no complaint at all from the Claimant that was channeled to the

Company with regard to her employment. Therefore, the only time the Company was

aware of the Claimant's alleged grouses were the Claimant wrote a letter to the Company

dated 1st July 2005 contending constructive dismissal.

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The Claimant alleged inter alia in paragraph 3.2 of the Amended Statement of

Case that the involuntarily tendered her letter of resignation on 1st June 2005. The

Company submits making reference to the contents of the said letter that the Claimant

had written the resignation letter voluntarily to the Company. The Company accepted the

Claimant's resignation and informed the Claimant that her last day of employment would

be 30th June 2005.

The Claimant at page 28 of COB-1 had contended constructive dismissal and that

she was being driven out of her employment. The Claimant during the hearing did not

produce an iota of evidence to show that she was dismissed and that there was a

fundamental breach of contract entitling the Claimant to contend constructive dismissal.

Subsequently, during cross-examination the Claimant admitted that she was pursuing a

claim of forced resignation and not constructive dismissal. The evidence adduced during

the Claimant's cross-examination is as follows:

Q: Is it constructive dismissal or forced resignation that you are pursuing in this Court?

A: Forced resignation.

The evidence tendered by the Claimant in Court showed blatant inconsistency in

her claim that she was dismissed without just cause or excuse as can be seen from her

earlier contention that she was being constructively dismissed and the subsequent

abandonment of constructive dismissal in pursuance of a totally contradictory contention

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of forced resignation. On this ground alone the Claimant's contentions should be

dismissed taking into due consideration that the burden of establishing dismissal is on the

Claimant.

The Company's Contention

The Company's case and/or defence against the Claimant is that she had resigned

voluntarily after it was agreed between herself and COW2 on a compensation package to

be mutually agreed between herself and the Company. Having agreed to resign through a

mutual agreement, the Claimant had subsequently changed her mind and contended that

she was being constructively dismissed when she got greedy and demanded for more

money as can be seen from the correspondence adduced in Court.

The Company has pleaded in paragraph 2.2 of the Amended Statement in Reply

and contended that the Claimant was not dismissed on 10 th June 2005 but on the

contrary, had tendered her resignation voluntarily on her own free will without any force,

and the Company accepted her resignation.

The Company issued a letter dated 22nd July 2005 to the Claimant reiterating its

stand and was willing to resolve the matter as per the original terms of settlement. The

Company therefore contends that the Claimant was never forced to resign on 10 th of June

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2005 or dismissed by the Company as alleged by her.

The Burden Of Proof

Since the Claimant alleges that she was dismissed by the Company on 10 th June,

2005 and the Company denies the fact of dismissal, the burden of proof lies on the

Claimant to prove that she was in fact dismissed by the Company on 10 th June 2005.

The law on the burden of proof in cases where the employer denies the fact of

dismissal is well settled and has been propounded by the Supreme Court in the case of

Wong Chee Hong v. Cathay Organisation (M) Sdn Bhd (1998) 1 CLJ 298 where Salleh

Abas LP has stated at page 5 as follows:

“When the Industrial Court is dealing wit 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 just cause or excuse”.

In the High Court case of Nikmat Jasa Piling Sdn Bhd v. Teng Tong Mee (1998) 3 CLJ

367 Y. A. Abdul Kadir Sulaiman (as he then was) held that:

“Di dalam prosiding di bawah Seksyen 20 Akta Perhubungan Perindustrian 1967(Akta

1967) beban bukti bahawa sesuatu perberhentian kerja yang dilakukan ke atas seorang

pekerja itu adalah di atas sebab atau alasan yang adil,adalah ditanggung oleh majikan.

Tetapi sebelum beban bukti berpindah sedemikian, adalah pada mulanya menjadi beban

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pekerja untuk membuktikan bahawa ia telah diberhentikan dari kerja jika majikannya

menafikan fakta berkenaan. Maka di dalam hal ini, beban bukti adalah ditanggung oleh

Responden. Jika tidak, ketidakhadirannya untuk bekerja itu merupakan satu pelanggaran

syarat kontrak bekerja dengan majikannya oleh pekerja berkenaan”.

In this case the Claimant has alleged that she was forced to resign and the

contention of the Company that the Company did not force the Claimant to resign, the

Claimant bears the burden of proving that she was in fact forced to resign. If the Claimant

fails to show that she was forced to resign, then, the Claimant's whole case falls as there

is no need for the Company to discharge any burden. The question of justifying the

dismissal would not arise as there would be no dismissal in the first place. Y.A Abdul Kadir

Sulaiman J, has very clearly explained this proposition of the law in Weltex Knitwear

Industries Sdn. Bhd. v. Law Kar Toy And Another, 1998 7 MLJ 359 a case involving a claim

of forced resignation, as follows:

“The law is clear that if the fact of dismissal is not in dispute, the burden is on the

Company to satisfy the Court that such dismissal was done with just cause or excuse.

This is because, by the 1967 Act, all dismissal is prima facie done without just cause or

excuse. Therefore, if an employment asserts otherwise the burden is on him to discharge.

However, where the fact of dismissal is in dispute, it is for the workman to establish that

he was dismissed by his employer. If he fails, there is no onus whatsoever on the

employer to establish anything for in such a situation no dismissal has taken place and

the question of it being with just cause or excuse would not arise : see Wong Chee Hong

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v Cathay Organisation (M) Sdn. Bhd. (1998) 1 MLJ 92 SC. In the present case, it is the

first respondent who asserts that she was dismissed and the Applicant denies it. So, it is

for the first Respondent to establish so by the evidence......”

As the contention by the Claimant in the above stated case related to a claim of

forced resignation, the learned Judge went on to hold that:

“...The Applicant was no doubt unhappy with her performance by asking her to improve.

So it is up to the first Respondent to see that her performance improved or leave the

Company. On the fact she chose the latter without any threat by the Applicant to dismiss

her for her poor performance. However, in her pleading before the Industrial Court she

avers that the Production Manager of the Applicant intimidated and threatened her and

forced her to sign a printed letter of resignation supplied to her. Hence, her reason for

saying that it was a dismissal and that it was so done without just cause or excuse. The

learned author, Prof. S.B. Rao in his book entitled “Cases and Materials on

Resignation,Transfer and Suspension” at page 28 quoted the following passage from

Tata Robinson Fraser Co. Ltd. V. Labour Court 1989-II-LLJ 443 (pat., H.C.):

“To make out a cast that his resignation was not voluntary and his resignation was

obtained under undue influence, misrepresentation, fraud or the like, the employee

has to establish that he was not allowed time to think over the matter, not allowed to

come out of the office but was physically restrained and he had singed under

protest.”

This decision of the High Court was upheld on 18th January 005 by the Court of

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Appeal in Civil Appeal no W-02-681-98 thus giving effect to the law that not only must an

employee discharge the burden to prove that the resignation was in fact given

involuntarily, but also the fact that the resignation was obtained under undue influence,

misrepresentation, or fraud and that the employee concerned was not given time to think

over the matter or was physically restrained.

As pointed out by the Industrial Court in Food Specialist (M) Sdn Bhd v. M Halim

Manp @ Ab Manaf (1992) 2 ILR 311 (Award No 291 of 1992):

“The onus is on the Claimant to establish cogent evidence that he wrote exhibit CO-2

under duress. Mere allegation, vague suggestion and insinuation are not enough. It is a

rule of evidence that the burden of proof lies on the party who substantially asserts the

affirmative of the issue and not the party that denies it “

The Claimant had not adduced any iota of evidence, other than making bare

allegations that she was forced and/or pressured to tender he resignation vide the said

resignation letter dated 1st June 2005. The Claimant, in her letter dated 1.6.2005 did not

state or note anywhere that she was tendering the resignation under protest or without

prejudice to her rights against the Company. The Claimant in her letter dated 1st June

2005 even thanked Mr. Paul Foster and Mr. Bala Nair for the opportunity given to her to be

part of the Company's management team and support during her service. In the case of

Malayan Banking Berhad v. Chan Hock Low [2007] 4 ILR 203 (Award NO. 1796 OF 2007)

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it was held by YA Puan Amelia Tee Hong Geok Abdullah as she was stated that:

“In light of the above evidence, the court finds that when the Claimant tendered his

resignation on 13 February 2001, there were no threats of “resign or be sacked” hanging

over his head. As such his resignation was motivated not by the threat of sacking but by

some other ancillary considerations. He feared the humiliation and embarrassment of an

investigation. He was concerned that any audit against him may not be fair. He was

concerned that he may not be able to get another employment. The court finds that the

claimant tendered his resignation to avoid any action being taken against him by the

company and that he did so only after he had accepted alternative employment,

notwithstanding that the alternative employment may have brought with it a lesser

remuneration. The court is thus of view that there was no forced resignation in this case.

The court's finding in this regard is reinforced by the fact that on 10 April 2001 the

claimant wrote a courteous letter to the company asking for certain considerations in

respect of his staff housing loan. His request was well received as evidenced by the

company's reply dated 20 April 2001. The claimant would not have written the letter that

he did if indeed he had been forced to resign.”

The Court held that the Claimant's claim is hereby dismissed.

Based in the language and the manner in which the letter dated 1st June 2003 was

written, it is clear that the Claimant's allegation of forced resignation is merely an

afterthought to initiate this false claim against the Company.

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Most importantly, did the Claimant discharge her burden if proof in this case? No

she did not. Did she produce any evidence to substantiate he Claim of forced resignation.

No she did not. It would be difficult to accept the Claimant's contention that she could be

forced to resign by COW2 over a telephone conversation form London. As set out above,

it was the Claimant who had volunteered to resign of suitable compensation was payable.

The allegation of threat, duress/compulsion or undue influence are all serious

allegations leveled against the Company that would have created unhappiness and

dissatisfaction with the Claimant. The Claimant's character evaluated during her testimony

shows that she knew her legal rights and she was neither timid not weak that would result

in her being compelled to resign. If at all someone from the Company had forced and/or

unduly influenced and/or compelled her to resign, she would not have kept quiet about it

as she would have vigorously pursued the alleged unjust treatment with the Company. Did

the claimant in the first place adduce any evidence of such threat, force and/or

compulsion. No she did not. Did she state anywhere in her letter of resignation that she

was resigning under protest? No she did not.

The Claimant's an educated lady with vast experience and she appeared to be

strong-willed and clear-headed enough to resist the allegations of coercion and/or undue

influence or force if at all there is any truth in such allegations where the Company had

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allegedly demanded for her resignation.

Since she was aware and/or could foresee the adverse implications of resigning

under such alleged circumstances, wouldn't she have stated all these in the said letter of

resignation? Is she so naive and percipient? The obvious answers to these questions

makes the Claimant's case one without any merit at all.

It would not be sufficient for the Claimant to claim that she was forced to resign

when the evidence adduce in Court clearly showed that there was no misrepresentation,

no undue influence and that the Claimant had all the opportunities and time to obtain

independent advice before filing her claim in the Industrial Relations Department

approximately 2 months after she had submitted he resignation.

In the High Court case of Nikmat Jasa Piling Sdn. Bhd v. Teng Tong Kee (1988) 3

CLJ 367 where there existed different versions of the Company's and the Claimant's

testimony the learned Judge in his judgment stated as below:

“Sebenarnya, jika keseluruhannya keterangan diambilkira oleh Mahkamah tiada terdapat

apa-apa percanggahan melalui keterangan tiga saksi pemohon tersebut. Apa yang

terdapat ialah versi responden adalah bercanggah dengan versi pemohon di atas isu

pemecatan responden dari kerjanya. Di dalam keadaan sedemikian mengikut keadaan

yang terdapat di dalam prosiding tersebut, adalah menjadi tanggungjawab responden

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untuk menjelaskan perbezaan versi-versi tersebut supaya akhirnya dapat mahkamah

membuat keputusan yang adil sama ada ianya telah dipecat atau sebaliknya. Oleh

kerana versi responden berbeza dengan versi pemohon, tanpa asas Mahkamah telah

mengecap saksi-saksi pemohon sebagai pembohong. Ini adalah tidak wajar. Dengan

yang demikian, Mahkamah telah gagal mengarahkan pertimbangannya dengan betul di

segi undang-undang.”

This decision was upheld by the Court or Appeal.

Therefore the Court finds that the Claimant had failed to adduce any evidence to

support her contention. Taking into consideration the whole evidence tendered in Court,

the Claimant had failed to discharge the burden of proving that she was terminated by the

Company on 10th June 2005.

Company's Submission

In case Harpers Trading Sdn. Bhd v. National Union of Commercial Workers

(Award 251 of 1988) 2 ILR 314 on the issue of forced resignation, the Industrial Court held

as follows:

“It is well-established principle of industrial law if it is proved that an employer offered the

employee the alternative of 'resign or be sacked', and without anything more the

employee resigned, that would constitute a dismissal. The principle is said to be one of

causation – the causation being the threat of the sack. It is the existence of the threat of

being sacked which the willingness is brought about by some other consideration, and the

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actual causation is not so much the threat of the sack but other accepted consideration in

the said that he resigned voluntarily because it was beneficial for him to do so, then there

has therefore been no dismissal.”

In his book, Law Relating to Resignation and VRS, the learned Author, H.L. Kumar

has examined the concept of involuntarily resignation in the following manner at pages 88

and 89:

“An involuntary or forced/coerced resignation amounts to wrongful termination of service.

The reason why acceptance of resignation amounts to termination of employment is that

consent of parties is capable of dissolving the contract, as consent is capable of creating

one. In other words, where the consent of the employee in offering or tendering the

resignation is not free, eg. Where it is induced by coercion, undue influence,

misrepresentation, fraud or mistake, it will not be capable of dissolving the contract of

employment and it is for this reason that forced or coerced resignations have been held

to be wrongful termination of service. A resignation can be acted only if it is genuine and

the adjudicating authority is satisfied that it is voluntary and does not appear to have

been brought out by inducement, threat or promise as contemplated by section 24 of the

Indian Evidence Act 1872 and hence where the employee was not only compelled to

submit his resignation but also promised Immunity from further action the resignation

cannot be acted upon against the resignor. However, whether a resignation was

obtained under threat or coercion is a question of fact to be determined in each case by

the adjudicating authority. Mere existence of threat, inducement or promise is sufficient to

cause a reasonable belief in the mind of the resignor that by submitting hid resignation he

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would get an advantage or avoid any evil of a temporal nature in reference to the

proceedings against him.

Where it does not appear that the person or authority to whom the resignation was

submitted gave any threat, inducement or promise to the resignor, it cannot be said that

the resignation was a forced or involuntary one... ”

In Bata (M) Bhd v. Normadiah bt. Abu Suood (1991) 2 ILR 1106, Y.A. Steve L.K.

Shim, Chairman (as he then was) on the issue of forced resignation held as follows:

“Industrial tribunals have consistently held that a 'forced resignation' is a dismissal and it

has also been held that the use of persuasion by an employer to obtain an employee's

resignation may be a dismissal. A resignation will be treated as a dismissal if the

employee is invited to resign and it is made clear to him that, unless he/she does so,

he/she will be dismissed.”

In this present case however the Claimant during her cross-examination did admit

that she asked for higher compensation and asked for the salary and bonus for the rest of

the year after submitting her letter of resignation on the 10 th June 2005. Therefore it can

be concluded that the Claimant tendered her resignation voluntarily and only contended

forced resignation in Court after her demands for increased compensation after the initial

agreement was not acceded to by the Company. As such, based on the authorities

referred to above, the Court finds that the Claimant's contention of forced resignation has

no basis and ought to be dismissed.

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The concept or forced resignation has been considered adequately as set out

above. To succeed, the Claimant must show that she was not given a choice but told that

if she did not resign, she would be sacked any way. Or in the alternative, she must be

apprehended or confined and told that if she did not resign, she would not be released.

The underlying factor in all these instances is the fact the Claimant had been subjected to

threats, duress or coercion which had impaired her thinking resulting in her tendering her

resignation. She must also show that she was nor given any opportunity to consider the

options available to her or to seek independent advice before filing a compliant in the

Industrial Relations Department, then the resignation must be held to be made voluntarily

as any kind of force, duress or threat must have necessarily been dissipated through the

passage of time.

In Weltex Knitwear Industries case referred to above the learned judge addressed

the issue of involuntariness in the following manner:

“I also find that the learned Chairman had committed an error of law when she based her

decision also upon the first Respondent's confused state of mind when she signed 'C-1'.

From the evidence adduced before her, the first respondent from her conduct before the

signing of it had all the time with her to be in a proper state of mind to decide on the

signing. She was with her colleague to seek the advice and to fill up and sign an entirely

new resignation from than the one given to her by COW1.”

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In the Weltex case the employee concerned had submitted her resignation within

hours of the alleged threat but the High Court held than the employee concerned had the

opportunity and time to seek independent advice before submitting the resignation letter.

As submitted earlier, the Court of Appeal agreed with the High Court Judge. In the

present case, the Claimant tendered her resignation voluntarily and requested for salary

and bonus for the rest of the year. Obviously this fact must go against the Claimant in

contending that she was forced to resign by the Company. On the given facts, the

Claimant had the opportunity to leave the Company on the terms agreed. It would be

pertinent to restate here that the Claimant never adduced any evidence in Court to show

that she was given the ultimatum of resigning or be sacked.

When the Court makes a finding of 'forced resignation', it is essentially saying that

the employee, notwithstanding the submission of a letter of resignation, was in effect

dismissed by his employer. The Court will thereupon be vested with the threshold

jurisdiction to inquire into the merits of the case, ie. to determine whether for the purpose

of section 20 of the Industrial Relations Act the employer who had forced the employee to

resign rather than be dismissed had just cause of excuse for doing so. It needs to be

emphasized, however, that a finding of 'forced resignation' is not necessarily tantamount

to the Court coming to the conclusion that the employee had been dismissed without just

cause or excuse.

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The Industrial Court had acknowledge that the employee had the right to resign at

any time and without giving any reason, and that resignation, one accepted, terminates

the employment contract and ends the employment relationship.

In MST Industrial System Sdn. Bhd v. Foo Chee Lek (1993) 1 ILR 202 it was held:

“Under common law, the impact of resignation on the employer-employee relationship is

settled. Just as an employer has the right to terminate the service of an employee, an

employee has the right to put an end to the contract by intimating to his employer his

intention to resign, and the employer accepts his resignation, the contract comes to an

end, ending the employer-employee until it is accepted by the employer, and before such

acceptance the employee can change his mind and withdraw his resignation.”

Conclusion

The Company's witnesses had adequately explained to the Court during the trial

proper the Company's reasons for offering a suitable compensation package. Therefore,

the Claimant's arguments are nothing but lame excuses for her failure to abide by the

terms and conditions of the compensation packages.

It is clear that the Claimant has resigned voluntarily. The Company has also

advised the Claimant that if the Claimant was willing to resolve the matter as per the

original terms of settlement, the Company would be willing to resolve the matter amicably.

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The Court finds that the Claimant has failed to prove that the Company has forced

her into tendering her resignation without just cause or excuse. Therefore the Claimant's

claim is hereby dismissed.

HANDED DOWN AND DATED THIS 12 DECEMBER 2012

(HAPIPAH BINTI MONEL)CHAIRMAN

INDUSTRIAL COURT OF MALAYSIAAT KUALA LUMPUR

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