IN THE INDUSTRIAL COURT OF MALAYSIA

CASE NO: 9/4-1395/06

BETWEEN

JOO SIM KEE

AND

PATENT LICHT BULBS & LAMPS SDN BHD

AWARD NO: 819 OF 2009

Before : MOHD. AMIN FIRDAUS ABDULLAH CHAIRMAN

Venue : INDUSTRIAL COURT OF MALAYSIA, PENANG BRANCH

Date of Reference : 8TH OF MAY 2006

Dates of Mention : 29TH OF AUGUST 2006, 29TH

OF SEPTEMBER 2006, 9TH OF NOVEMBER 2006, 13TH OF DECEMBER 2006 & 22ND

OF JANUARY 2007.

Dates of Hearing : 14TH OF JANUARY 2008, 25TH OF JULY

2008, 14TH OF AUGUST 2008, 10TH OF

NOVEMBER 2008, 17TH OF FEBRUARY 2009 & 24TH OF FEBRUARY 2009.

Representation : For the Claimant - Arumugam Ganapathy; M/s Ghazi & Lim

For the Respondent - Eric Cheah Woon Leng; M/s Tung, Chan & Partners

Reference :

The reference under Section 20(3) of the Industrial Relations Act 1967 by the Honourable Minister of Human Resources Malaysia, is regarding the dismissal of Joo Sim Kee (“the Claimant”) by Patent Licht Bulbs & Lamps Sdn. Bhd. (“the Respondent”).

1

AWARD

The reference under Section 20(3) of the Industrial Relations Act 1967 by

the Honourable Minister of Human Resources Malaysia, is regarding the

dismissal of Joo Sim Kee (“the Claimant”) by Patent Licht Bulbs & Lamps

Sdn. Bhd. (“the Respondent”). It was dated the 8th of May 2006 and

received by the Court on the 12th of July 2006.

Background

The Claimant commenced employment with the Respondent

Company (“Company”) in the Head Office in Penang as a Sales Executive

on the 17th of June 2002 on a basic salary of RM1,200.00 per month.

On the 1st of November 2003, the Claimant was promoted to Sales

Manager with her monthly salary adjusted to RM1,800.00.

On the 3rd of December 2004, the Company terminated the

employment of the Claimant in view of her open defiance of the Company’s

directives in her capacity as Sales Manager.

2

On the 30th of November 2004, an official directive was issued to all

sales personnel in respect of the new “Customer Distribution List”

emphasising that the monthly sales target remained at RM60,000.00 for all

of them including the Claimant. It was to take effect from the 1st of

December 2004.

The Claimant was not happy with this arrangement and expressed

her dissatisfaction by not answering telephone calls from the Managing

Director. Hence, she was terminated.

On the 14th of December 2004, the Claimant made a representation

under Section 20 of the Industrial Relations Act 1967 to the Industrial

Relations Department complaining of her unfair dismissal.

In consequence of the complaint, the Company reinstated the

Claimant and instructed her to report back for work on the 7th of February

2005 which the Claimant complied with the instruction.

3

After resuming work with the Company, on the 18th of April 2005, the

Company issued a letter titled “Non Performance Warning” (CLB; page 17)

to the Claimant drawing her attention to not achieving her sales target for

the past few months, that is, a monthly sales target of RM60,000.00.

Vide a letter dated the 3rd of May 2005 with its heading “Final Warning

for Non Performance to the Claimant (CLB; page 20), the Company told

her that she had just only managed to achieve 26.6% of her April monthly

sales target. If she still could not improve her sales performance for the

month of May 2005, the Company might be forced to take action against

her.

On the 16th of July 2005 the Company informed the Claimant that

she would be transferred to the Selangor Branch office in view of her poor

performance in the Penang region. On the 18th of July 2005, a Notice of

Relocation (COB; page 59) was issued to the Claimant directing her to

report to the Selangor office in Petaling Jaya on the 23rd of July 2005.

4

The Claimant did not report for duty there on the 23rd of July 2005.

The Company by another letter dated the 27th of July 2005 however gave

her a final opportunity to comply with the transfer order to the Petaling Jaya

office taking effect from the 1st of August 2005.

Nonetheless, the Claimant reported for work in the Penang office on

the 2nd of August 2005 but was told to leave the office and instead to report

to the Petaling Jaya Office as instructed. The Claimant refused to obey the

order. When she came back from lunch at 1.00 p.m. she was not allowed to

enter the office because the Company explained that the Claimant had

already been transferred to the Petaling Jaya office in Selangor.

The Company did not pay her salary for the month of July 2005 as

her July salary had been sent to the Petaling Jaya office in Selangor.

Consequently the Claimant claimed constructive dismissal by reason

of the aforementioned conduct of the Company. On the other hand, the

Company viewed that by not reporting for work at the Petaling Jaya office

in Selangor for the third time, it deemed that the Claimant was no longer

5

interested to work for the Company. It opined therefore that the Claimant

had abandoned her employment with the Company.

Issue

Whether the Claimant had been constructively dismissed by the Company

or that she had abandoned her employment with the Company?

Parties’ Contentions

Claimant

Harassment after Reinstatement on the 7th of February 2005

After the Claimant was reinstated on the 7th of February 2005, she

was constantly harassed by Ian Siow Hock Aun (COW2), the Managing

Director of the Company. COW2 scolded and shouted at her in the

presence of other staff that is, Victor Chan or Wong Huey Chein. She was

humiliated. These two staff members were not called by the Company to

give evidence and the Court should draw an adverse inference against the

Company.

6

The Company also stopped reimbursing the Claimant for lunch

money spent with customers including her own lunch expenses while doing

outstation sales. Prior to her reinstatement, she was reimbursed for them.

When she brought up the matter with COW2, she was instead issued with

a warning letter (COB; page 22).

On the 18th of April 2005, COW2 rejected the application of the

Claimant for annual leave (CLB; page 14). Reasons were that annual leave

is not a right but merely a privilege; she had taken too many days of

medical leave and her performance was poor.

The Claimant’s learned counsel argued that annual leave is not a

question of right or privilege but was provided by the contract of

employment dated the 17th of June 2002 (CLB; page 2) which laid down

that “Any other matters not covered in this letter or by the Company shall

be per the Employment Act (Act 265).” Act 265 provides the Claimant with

12 days of annual leave per year.

7

The Company did not also request the Claimant to re-schedule her

annual leave if the timing of the application was not suitable to its business

requirement. Such a request is permissible.

At that material time, the Claimant had taken 4 days of medical leave

namely on the 10th and 22nd of March 2005 and on the 6th and 7th of April

2005. The 4 days of medical leave were not excessive and they were

certified by qualified doctors (COB; pages 69 and 70).

There was no poor performance considering that the Customers’ List

of the Claimant had been revised. Although the Claimant had just returned

to work only about two months after the reinstatement, she still managed to

obtain the sales sum of RM4,045.00 in February 2005 after working just

only 14 days and RM18,259.00 in March 2005. As the reduced sales was

caused by the Company’s own doing, COW2 was not justified in rejecting

her annual leave on the ground of poor performance.

Another act of harassment was issuing Show Cause Letter or

demanding orally for written explanations on petty grounds. For instance,

8

on the 14th of April 2005 and the 27th of May 2005, the Claimant was

queried on why she did answer the telephone call from COW2 or

telephone him (CLB; pages 16 and 24).

As a Sales Manager, the Claimant needed to be on the road

everyday implying that she could not be attentive to all the office telephone

calls.

The Claimant also explained that she did not use the new SIM card

given to her because she required time to inform all her customers of the

change to the new telephone number, yet she was given a Show Cause

Letter for this matter.

Apart from all these acts of harassment, the Claimant was finally

directed to be transferred to its Petaling Jaya Office in Selangor.

1st Transfer

By a letter dated the 6th of June 2005, the Company directed the

Claimant to be transferred to its Petaling Jaya office in Selangor and to

9

report to work there the following day. She told another Director of the

Company named Ooi Peng Kiat that it was unreasonable to give her less

than 24 hours notice to move down to Selangor from Penang. He

answered that he did not know about the transfer and took back the letter

from her, telling her that he would speak to COW2 about it. Meanwhile he

told the Claimant that she did not need to report there.

The Claimant said that she could not produce this letter as it was

taken back by Ooi Peng Kiat.

COW2 gave evidence that the Claimant however was informed

about the transfer by a letter dated the 1st of June 2005 (COB; page 49)

stating that she would be transferred to the Selangor office with effect from

the 7th of June 2005. The Claimant denied receiving this letter dated the 1st

of June 2005 and did not acknowledge its receipt.

The learned counsel contended that the Claimant was telling the

truth. If COW2 had indeed sent the letter dated the 1st of June 2005, there

would be no reason for the Claimant to send a note dated the 17th of June

10

2005 (COB; page 51) to him requesting for one week in advance before

being transferred to the Selangor office. This note is consistent with the

evidence of the Claimant that she was only given one day notice of the

transfer.

The Company disputed the version of the Claimant but it did not call

Ooi Peng Kiat to rebut her claim, thus attracting Section 114(g) of the

Evidence Act 1950 for the Court to make an adverse inference against it.

COW2 claimed that the Claimant must have received the letter dated

the 1st of June 2005 as this letter instructed her to follow up with Sony

Bangi in Selangor which the Claimant did visit. This is not correct as she

complied with the instruction of an earlier letter of the Company dated the

31st of May 2005 (COB; pages 47 to 48).

Therefore the evidence of the Claimant is true showing that the letter

dated the 6th of June 2005 actually existed. On the contrary, the letter

dated the 1st of June 2005 was concocted, thus showing COW2 not to be a

11

credible witness. COW2 had used the transfer to victimize the Claimant in

order to drive her out of the Company.

2nd Transfer

The Company’s letter dated the 18th of July 2005 did not mention the

reason for the transfer but the subsequent letter dated the 27th of July 2005

(CLB; pages 42 to 45) gave the reason for the transfer as poor sales

performance. COW2 confirmed the reason.

It was argued that the transfer was not bona fide based on the

following factors:-

a) The alleged poor performance was brought about by the

Company when her customer base was reduced;

b) The transfer was actuated with improper motive to put

pressure on the Claimant to resign;

c) It was also intended to harass and victimize the Claimant

and

12

d) the transfer did bring about a change in the conditions of

service.

Reduction in Customer Base

Prior to December 2004, the Claimant had almost 40 accounts

including at least 7 major customers but after her reinstatement, about 21

accounts including the 7 major customers’ accounts were taken away from

the Claimant and given to other staff. She was only given 21 accounts

including 3 major accounts. Out of the 21 accounts, at least 3 accounts

were yet to become the customers of the Company. This reason given by

the Claimant was real.

Although the Claimant admitted that the employer was entitled to

redistribute the customer base of its employees but the Company should

not have expected the Claimant to meet the same sales target immediately.

Customers who had already placed orders with the Company through the

Claimant had their orders reassigned to other sales staff. It was not fair to

maintain her sales target at RM60,000.00 when the customers were not

given back to her.

13

In the circumstances, the Company did not give the Claimant enough

time to build up her sales volumes although her seniority and experience

supposed to stand her in good stead. The Company could not expect the

Claimant to achieve the same sales target as before and treat her failure as

poor performance.

The conduct of the Company is likened to harassment and

victimisation.

COW2 is not a trustworthy witness as he hurled wild accusations

recklessly.

Even though the sales of the Claimant improved from 13.5% to 56%

yet the Company still issued two reminders both dated the 2nd of July 2005

regarding her poor sales performance (CLB; pages 31 and 32).

The Final Warning for Non Performance dated the 3rd of May 2005

sent to the Claimant was incorrect as it stated that she achieved only

26.6% of her sales target when she had actually reached 41% for the

14

month of April 2005. The Company did not wait to see whether the

Claimant could reach the RM60,000.00 for any of the months before

issuing this letter.

The explanation that the account of Silterra was transferred to Victor

Chan as that company needed technically skilled staff to service them is

dubious. The Claimant had secured more sales in July, September,

October and December in 2003 and in March 2004 than the total sales

obtained by Victor Chan for Silterra from February to July 2005.

The Claimant did not consent to the transfer by her said note dated

the 17th of June 2005 as claimed by the Company. How could the

Claimant agree to a transfer that was only notified to her one month later

on the letter of the Company dated the 18th of July 2005 (COB; page 59)?

She had objected to the transfer to the Selangor office on the ground

that she could not meet her monthly sales target was unreasonable

because the Company had taken away her customer base. It was a ploy to

15

dismiss her or force her into resigning. Besides, she was also required to

report to Simon Kow Kong Yuan (COW1) a Sales Executive who was

junior in rank to her.

It was actually the Company who suggested to the Claimant to resign

and pay her an additional month of salary and not vice versa. The Claimant

did not demand salaries amounting to 6 months in order for her to resign

and if not, she would cause trouble to the Company.

The Company had also not paid the commission of the Claimant for

the months of September, October and November 2004. The commission

was to have been paid in January 2005. Furthermore her July salary 2005

was also not paid and the Company took away her briefcase and call

cardholders.

It was submitted by the learned counsel that the Company especially

COW2 the Managing Director, had harassed the Claimant by a series of

act and had evinced an intention to repudiate the contract of employment

16

and henceforth the Claimant was entitled to consider herself to have been

constructively dismissed.

Respondent Company

Transfer

The Company’s learned counsel contended that the right of the

Company to transfer is enshrined in Paragraph 7 of the Contract of

Employment of the Claimant.

The possibility of a transfer was first broached with the Claimant vide

the letter of the Company dated the 25th of May 2005 (COB; page 37). The

Claimant was receptive to it as seen in her note (COB; page 51) but later

rejected it outright. The letter dated the 20th of May 2005 is seen here (in

verbatim):-

“patent LICHT bulbs & lamps

Specialty & Optical Purpose Lamp Specialist

Head Office :- Branch :-

No.32, Jalan Siam No.81, 1 Floor, Jalan PJS 11/9, Bandar Sunway

10400 Penang, Malaysia 46150 Petaling Jaya, Selangor, Malaysia.

Tel: 604-2286814 Tel: 603-5638 9453 / 6703

Fax: 604-2286914 Fax; 603-5635 9453

17

Website: www.patent-licht.com Website: www.patent-licht.com

Contact: sales@patent-licht.com Contact: medical@patent-licht.com

20th May 2005

Ms. Joo Sim Kee

9-2-5 Jalan Sekolah La Salle,

11400 Pulau Pinang

Dear Ms. Noni Joo,

Reference: Reminder on Sales Performance

Referring to your Up-to-date Sales Report for the month of May 2005,

The Management would like to remind you that you had just

managed to achieve 12.49% from your monthly sales target

RM60,000.00. The Management again urges you to improve your

sales before end of the month. If you fail to achieve or do not

improve your sales performance, The Company will consider to

transfer you to Selangor branch for better opportunity. This action is

due to your poor performance/non-performance and unable to hit

your target for several months.

Again, The Company seeks your co-operation on this.

Yours sincerely,

18

Signed.

To sign on behalf of:

OOI PENG KIAT

DIRECTOR

Acknowledge Receipt and date.

Noni Joo’s Copy Patent Licht Copy”

The reason behind the transfer was in response to her continuing

poor performance as the Claimant had complained about sales had been

very slow as seen from her sales forecast for April, May and June 2005

(COB; pages 24 and 31).

The Company had not acted mala fide in transferring the Claimant on

this ground. The transfer was to help the Claimant as the market is bigger

in the central region.

Vide a letter dated the 31st of May 2005 (COB; page 46), the

Company reminded her that her gross margin from actual sales achieved in

May 2005 was only RM728.43 meaning only 9.30% of RM7,832.60 and

the amount was insufficient to pay for her expenses.

19

COW2 testified during cross-examination that this sum obtained by

the Claimant could not even maintain her because it cost the Company

RM5000.00 every month to cover expenses incurred by the Company in

respect of her.

He posed the question “How long can you bleed?”

On the 31st of May 2005, the Claimant gave a written explanation on

why she could not achieve the sales target for the month of May 2005

(COB; page 44). Sony (Prai) had just implemented VR/VSS and

production was slow as audio business in the market was waning. Sharp

Roxy being in the same business as Sony was also experiencing slow

production and Varitronix had closed down one plant in the factory.

This was followed by a letter of transfer dated the 1st of June 2005

(COB; page 49) (in verbatim):-

“patent LICHT bulbs & lamps

Specialty & Optical Purpose Lamp Specialist

Penanq Office:- Selangor Office :-

20

No.32, Jalan Siam, No.81, 1st Floor, Jalan PJS 11/9, Bandar Sunway

10400 Penang, Malaysia 46150 Petaling Jaya, Selangor, Malaysia.

Tel: 604-2286814 Tel: 603-5638 9453 / 6703

Fax: 604-2286914 Fax: 603-5635 9453

Website: www.patent-licht.com Website: www.patent-licht.com

Contact: sales@patent-licht.com Contact: medical@patent-licht.com

1st June 2005

Ms. Joo Sim Kee

9-2-5 Jalan Sekolah La Salle,

11400 Pulau Pinang

Ms. Joo,

Reference: Transfer to Selangor Office

In view of your non performance from February 2005 to May 2005

and after discussion with other management staffs, the company will

still offer you another opportunity. The management believes that

you will perform better at Selangor office covering central region.

You will be able to maximise your potential and experience and

expertise. Central region is a vast market and offers a much bigger

potential. Your experience and expertise is much needed in

Selangor office.

21

Moreover, after consideration and evaluation from your report about

major accounts like Sony, Komag, Sharp Roxy Spansion and

Varitronix (All located in Penang) business slowdown, the

management would like to inform you that for your personal growth

and development, you will be transferred to Patent Licht Bulbs

and Lamps Sdn. Bhd. (Selangor office) with effect from 9.00am

on 7th June 2005 officially. (The company exercises the right in

article 7 in your employment letter).

There will be a familiarization purposes and introduction to

colleagues at Selangor branch on the day, 7th June 2005. Please be

punctual.

Major Accounts (Allocated to you for follow up) at Central Region.

1. Sony Bangi ~ Since Sony has moved purchasing and other

major operations to Sony Bangi from Sony Penang.

2. Spansion at Kuala Lumpur has bigger potential than Spansion

in Penang.

3. Agilent (Penang) outsourced many production to

subcontracters in Central Region.

4. Pokka

22

5. Carlsberg

6. JVC

7. Konica Minolta

8. Infineon

9. Texas Instruments

10. Shinetsu

11. NEC Semiconductors

12. Freescale Semiconductors

13. Nichia

14. Stat Chippac

15. Fujitsu

16. Flextronics

17. Renesas

Accommodation

The company is providing accommodation at the “Arcadia” in USJ

11/1 (location near Selangor office for convenience and ease of travel

from office), Selangor so that this would not caused you

inconvenience for accommodation.

Allowance

1. Full claims on petrol bill including personal usage.

2. Full claims on phone bill for customer calls.

3. Full claims for customer visit on toll and parking charges.

23

Yours sincerely,

Signed. 01.06.2005 Singed.

Ian Siow Ooi Peng Kiat

Managing Director Director

Acknowledge Receipt and date.

Noni Joo’s Copy Patent Licht Copy”

The Claimant vehemently denied receiving this letter dated the 1st of

June 2005 because its contents prove the falsity of her allegations that

COW2 did not brief her about her position after the transfer nor on the

question of accomodation there. This particular letter gave the details of

the accomodation, maintaining the status quo of her position and giving the

reasons for her transfer to the Branch office in Petaling Jaya in Selangor.

The Claimant’s claim that the letter dated the 6th of June 2005 which

gave her only one day notice to report at the Selangor office did exist is not

substantiated by evidence.

The Company asserted that the letter dated the 6th of June 2005

claimed by the Claimant to have ordered the transfer does not exist

24

because as pointed out by the Claimant’s learned counsel that the

Claimant is one person who meticulously keeps all her letters and replies

to them. If so, why she did not photo copy this letter in question for her

own interest? The conclusion to be drawn is that there was actually no

such letter.

The Claimant also said that this letter dated the 6th of June was taken

back by Ooi Peng Kiat, the Company’s Director. It is not the duty of the

Company to call this witness as argued by her learned counsel. On the

contrary, it should be the Claimant herself to call as the person who asserts

must prove. Thus an adverse inference must be drawn against her under

Section 114(g) of the Evidence Act 1950.

She also denied having received the list of customers allocated to her

vide e-mail on the 30th of November 2004 which the Company doubted.

The Company admitted that some months Victor Chan a junior Sales

Executive also did not reach the RM60,000.00 sales target but in February

and April 2005, he exceeded the sales target by 50%. In comparison, the

25

Claimant consistently failed to reach the target although being a Sales

Manager, she was more experienced than him.

The Claimant gave the excuse that she had not done well as her five

major customers were removed from her list by the Company, namely

Certance, Osram Opto, Qdos, Silterra and SMCI Globetronics. When

shown the Sales Transaction Listing of the Company for February to July

2005 during cross-examination, the Claimant admitted that Qdos remained

her customer. Based on the Agent Sales Listings between January 2003

till May 2004, the Claimant only recorded a single transaction with Osram

Opto earning a commission of RM6.00 while the Company earned

RM60.00. Therefore it cannot be true that Osram Opto was one of her

major customers.

The only major customers transferred to Victor Chan were Certance

and Silterra. The transfer of Silterra was justified as being the first wafer-

fabrication technology company in Malaysia, it then required technically

skilled people to service them and Victor Chan is a qualified engineer.

26

The Company transferred Certance to him as he was then new

whereas the Claimant had about 21/2 years of sales experience. It was a fair

administrative decision.

The learned counsel argued that the sales potentialities of the

Claimant’s portfolio was always there, only waiting to be tapped.

Reporting to Simon Kow (COW1)

When the Claimant was asked to report to Simon Kow (COW1) who

was junior to her at the Branch office, it was not meant to be a demotion as

he was merely asked to help the Claimant to familiarise with her new

environment.

Glancing from the letters of the Company dated the 1st of June 2005

and the 27th of July 2005 (COB; pages 49 to 50 and 65 to 68), the Claimant

was accorded all the due respect as a Sales Manager even though she did

not perform well. Accomodation was also provided free for her in the

Petaling Jaya office and the list of customers for the central region was

also prepared and given to her. Her terms and conditions of employment

also remained the same.

27

Despite being given almost three months of preparation to go on

transfer, the Claimant eventually rejected it for reasons better known to

herself.

The learned counsel for the Company concluded that COW2 was

more credible than the Claimant when assessing both their evidence. The

transfer was meant to be a solution for both parties but the Claimant

instead chose insubordination and abandonment of employment. Thus,

the Company did not dismiss the Claimant constructively.

Findings

Generally, the Court will not delve into events which happened before

the reinstatement of the Claimant by the Company on the 7th of February

2005 because they are not relevant.

The Claimant argued that the constructive dismissal of the Claimant

was caused by the constant harassment, unilateral changes to the terms

and conditions of her employment like its failure or refusal to pay her salary

and commission and transferring her to the Petaling Jaya Branch office in

Selangor which was actuated by malice.

28

The transfer of the Claimant to the Branch office was the last straw

that broke the camel’s back which eventually led to her constructive

dismissal.

Harassment after reinstatement on the 7th of February 2005

The claim of the Claimant that she was scolded and shouted at by

COW2 on “various pretexts” including that she could not bring in sales

always in the presence of Victor Chan or Wong Huey Chin.

In examination-in-chief, COW2 testified that he did shout at the

Claimant when she still reported to the Penang office on the 2nd of August

2005 although she was directed to report at the Petaling Jaya office in

Selangor on the 1st of August 2005. The Claimant however, took medical

leave on the 1st of August 2005. The Claimant knocked on the glass panel

door entrance with her bag and COW2 ticked her off for doing it.

The Court finds that the reaction of COW2 towards the disobedience

of the Claimant was reasonable.

29

He also admitted that on another occasion, he did shout at the

Claimant when she quarrelled with another staff named Lily Leong in his

room. COW2 was then trying to mediate between both of them when the

Claimant raised her voice at Lily Leong.

The explanation of COW2 was not unreasonable and the Court

believes it.

On the other hand, the Claimant gave a general picture that COW2

shouted and humiliated her on “various occasions” without elaboration.

Moreover, the Claimant did not call Victor Chan or Wong Huey Chein to

substantiate her claim of harassment. It is not for the Company to

subpoena them as it is settled law that whoever asserts must prove it.

Hence, the Claimant had failed to prove harassment against her by

the Company.

30

Salary for July 2005 not paid

The Company had explained that based on the contents of the letter

dated the 17th of June 2005 (COB; page 51) when the Claimant requested

for one week grace period in order to prepare herself to be transferred to

Selangor, her salary for the month of July 2005 was sent to the Branch

office there.

The Court finds this explanation to be reasonable in view of the

contents of the Claimant’s letter. There was nothing sinister about the

action of the Company.

Briefcase and call cardholders taken away

By its letter dated the 6th of August 2005 (CLB; pages 49 and 50), the

Company had clarified to the Claimant that her briefcase and two call

cardholders were taken away from her work place in Penang and sent to

the Selangor office as she had been transferred to the Branch office there.

Outstation meal allowances

COW2 gave evidence that the Company does not provide lunch

allowances for staff on outstation duty but if the Claimant had brought

31

along customers then she was entitled to such allowances. The Claimant

pleaded that after her reinstatement she was no longer provided with such

allowances but she did not mention that she had entertained customers for

lunches.

A perusal of the contents of the Letter of Employment (CLB; pages 1

to 3) also does not show that lunch allowances are provided for outstation

assignments for the Claimant. Thus it was not a contractual right.

Annual leave

COW2 was wrong to view that annual leave is not a right but merely

a privilege. The Company however had the right not to approve the

application of the Claimant for annual leave (CLB; page 14) although it

should have stated the reason for the disapproval to her on the 18th of April

2005, the very day itself when it was not approved.

From all the evidence adduced, the Court concludes that the

Company is a small one without many staff and taking into consideration

that the Claimant had still not achieved her monthly sales target, looking

from that angle, it was reasonable for it to view that the Claimant by taking

32

4 days of medical leave spanning two months consecutively in March and

April 2005, had taken excessive medical leave (COB; pages 69 and 70).

The Court finds that the disapproval does not necessarily mean that

the Company had evinced an intention not to be bound by the terms and

conditions of the employment contract or that it had breached a

fundamental term of it. On the contrary, it had given the reasons for not

allowing the application for annual leave as the Claimant had taken

excessive number of days of medical leave and she had still not achieved

her monthly sales target of RM60,000.00. Perhaps it ought to be faulted

for not advising the Claimant to reschedule the date of her leave.

It is to be noted that the Company did not state that the Claimant was

not entitled to annual leave at all.

Not answering the telephone calls from COW2

COW2 had proven that he did telephone the Claimant (CLB; page

16) but there was no response until he had to call one Cheang to call the

Claimant. The reason that the Claimant being a Sales Manager was on the

road daily and implied that she could not be attentive to all the telephone

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calls while outdoors is not an excuse because she could have stopped by

the roadside to answer incoming calls while driving.

The Claimant herself admitted that she had forgotten to telephone

back COW2 on the 25th of May 2005.

Nonetheless, the point to note is that the telephone calls were from

COW2, the Managing Director of the Company which the Claimant being

the Sales Manager should not have forgotten to call back.

COW2 was not bent on finding fault with the Claimant as he being

the Managing Director had the right to know why his telephone calls to her

went unheeded. COW2 was not her colleague. He was her boss.

It is noteworthy that prior to her reinstatement when the Claimant was

not happy with the Customer Distribution List, she also displayed her

dissatisfaction by not answering the telephone calls of COW2.

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Show Cause Letter for not using new SIM card

The Company had acted reasonably by issuing the Show Cause

Letter dated the 18th of July 2005 to the Claimant for not changing to the

new SIM card provided to her. It was frustrating for the Company to try to

contact her vide this new telephone number to get some information but

unsuccessful.

The Claimant explained that she did not use the new number as she

needed time to inform all her customers about the new number is not

acceptable because it would have taken her 2 to 3 days or may be even

fewer days than that to inform each of her customer by telephone calls

about the new number.

Reporting to Simon Kow Kong Yuen (COW1)

The Claimant was insinuating that by instructing her to report to COW

1 who was her junior at the Branch office in Selangor on the 23rd of July

2005 meant that it was a demotion does not hold water. The Company had

led evidence that being the Sales or Marketing Executive there, he was

only to help the Claimant to get acquainted with her new working

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environment. In the strictest sense of the word, she was not reporting to

him as her superior officer.

The Company gave evidence that all her terms and conditions of her

employment contract remained unchanged on transfer there. Hence her

fear was unfounded.

Transfer

The failure of the Claimant to achieve her monthly sales repeatedly

was the primary reason for the Claimant to be transferred and the other

lesser reason was her complaint that sales had been very “slow” for the

past few months when she made her Sales Forecast for April, May and

June 2005 on the 18th of April 2005 (COB; page 24 and COB; page 31). In

fact the Claimant admitted her failure as the Company’s learned counsel

pointed out.

The Claimant tried to justify her failure to reach her monthly sales

target by alleging that the Company had taken away her major customers

that is Certance, Osram Opto, Qdos, Silterra and SMCI Globetronics.

Evidence had been led by the Company that Qdos sti ll remained her

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customer and that she had only one transaction with Osram Opto earning a

commission of RM6.00. Therefore her claim is not true.

Silterra was given to Victor Chan as the customer needed a

technically qualified staff. Victor is a qualified engineer. Certance was

given to him he as he was junior to the Claimant in order to help him to

boost his sales whereas she was more experienced in sales.

Although her customer base was reduced, there was no evidence

that it was done with malice. Nevertheless, the learned counsel for the

Claimant himself admitted that the Company possesses the right to

redistribute its customer list or customer base among its staff.

To avoid needless repetition, evidence had been adduced to show

that the Claimant repeatedly had not reached her monthly sales target and

as COW2 had lamented “How long can the Company bleed?” The

reshuffle was done to save the Company and was not motivated with any

ulterior motive.

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The argument that the Claimant was not given enough time to

achieve her sales target is without merit as other staff even junior sales

personnel to her in Penang and the Branch office in Selangor had achieved

or surpassed their respective sales targets. (Please see COB; page 65).

The Claimant moreover had the edge over the junior staff with her

experience and as a Sales Manager.

As admitted by the learned counsel for the Claimant that a Company

has the prerogative to transfer its employees within its own organization

provided the transfer was not actuated by improper motive. In essence, it

must not result in a change to the terms of the employment contract

detrimental to the employee. Please see the Court of Appeal case in

Ladang Holyrood v. Ayasamy a/l Manikam & 16 Others [2004] 3 MLJ 339.

After delving into all the evidence adduced by both parties, the Court

concludes that the transfer was not activated by any hidden agenda. It was

made in good faith for pure business reason as seen from the testimony of

COW2 who testified “How long can the Company bleed?” The Claimant

was not meeting her monthly sales target of RM60,000.00 consecutively

and COW2 had said that the Company needed RM5,000.00 to pay for the

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expenses incurred by the Claimant as an employee every month. The

income she managed to bring in was not even enough to reimburse such

expenses. Thus the Company was forced to take remedial action by

transferring her to the Branch office where the market is bigger in the

central region.

The transfer was not to harass or victimize the Claimant. The

Management had acted bona fide in the interest of its business and the

transfer did not involve a change in the terms and conditions of her service.

The Company had been very accommodating towards her by

delaying the transfer in response to her request in order to give her more

time to prepare for it. Accommodation was even provided for her at the

Branch office although the Company was under no contractual obligation to

do so. At the risk of repetition, her terms and conditions of employment

still remained the same on transfer. Despite the magnanimity displayed by

her employer (Please see COB; pages 49 and 50; 39; 61; 65 to 68 and 79

to 80), the Claimant instead in a sudden turnabout refused to obey the

lawful and reasonable order of transfer in open defiance of her contractual

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obligation embodied in her employment contract (CLB; page 2; Item 7)

dated the 17th of June 2002 which stipulated:-

Transfer

The Company reserves the right to transfer you to any other

department, subsidiary or associated company or to re-assign or modify

your job responsibilities.

On the 18th of June 2002, the Claimant herself had signed the

contract stating that she understood and agreed to all the terms and

conditions as stipulated in the document.

The Court also finds that the Claimant had not satisfied the

requirements of law as laid down in the Supreme Court case of Wong

Chee Hong v. Cathay Organisation [1988] 1 CLJ 45 where it held that:-

“The common law has always recognised 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

guilty of such a breach as affects the foundation of the contract or

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if the employer has evinced or shown an intention not to be bound

by it any longer.”

Again the landmark case of Western Excavating (ECC) Ltd v. Sharp

[1978] 1 QB 761 where the eminent Lord Denning (MR) propounded the

concept of constructive dismissal is also not applicable to the Claimant’s

case:-

“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 he no longer intends to be bound by one or more of the

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 entitlted in those circumstances to leave at that

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. If he continues for any length

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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”.

To recapitulate, after evaluating the total evidence and arguments of

both parties in relation to the facts and surrounding circumstances of the

case, the Court finds that there was no constructive dismissal. The

Claimant instead had abandoned her employment on the 2nd of August

2005.

In the light of the findings, the Court now dismisses the claim of the

Claimant.

HANDED DOWN AND DATED THIS 8 JULY 2009

(MOHD. AMIN FIRDAUS ABDULLAH) CHAIRMAN

INDUSTRIAL COURT OF MALAYSIA PENANG BRANCH

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