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MAHKAMAH PERUSAHAAN MALAYSIA
KES NO: 18/4 - 2663/04
ANTARA
GURNEY PLAZA SDN BHD
DAN
OH KEAN SWEE
AWARD NO: 344 TAHUN 2007
Di hadapan : AHMAD TERRIRUDIN BIN MOHD SALLEH - Pengerusi
Tempat : MAHKAMAH PERUSAHAAN MALAYSIA CAWANGAN PULAU PINANG
Tarikh Rujukan : 27.8.2004
Tarikh Sebutan : 2.3.2005, 24.3.2005, 3.7.2006, 31.7.2006
Tarikh Bicara : 9.8.2006, 6.4.2007, 6.7.2007, 5.10.2007
Perwakilan : Encik Chin Chon Yen Daripada Tetuan Veon Szu & Co Bagi Pihak Menuntut
Encik Leow Tat Fan Daripada Tetuan B.C. Teh & Yeoh Bagi pihak Responden
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AWARD (NO. 344 OF 2007)
Introduction
The reference of the Honourable Minister of Human Resource,
Malaysia dated 27 August 2004 is regarding the alleged dismissal of
Encik Oh Kean Kwee (hereinafter referred to as “the claimant”) by the
Gurney Plaza Sdn. Bhd. (hereinafter referred to as “the company”).
The dismissal stated in the reference is 10 September 2001
(hereinafter referred to as “the material date”).
Background
The claimant commenced employment with the company on 23
January 2001 as an Assistant Security Officer (hereinafter referred to
as “ASO”) at a salary of RM1,100.00 per month and an allowance of
RM100.00 per month. This is in accordance with his Letter of Offer
dated 18 July 2001 (“COB 1-10”). The other terms and conditions of
employment contained in COB 1-10 are, inter alia:-
(a) the probationary period was for three (3) months and the
company may at its discretion extend for a further 3 months;
(b) at any time during the probationary period, employment may
be terminated by the company or the employee by giving
either party one (1) month notice in writing or one (1) month
salary in lieu of notice; and
(c) all employees are required to faithfully observe and obey all
the rules, regulations, procedures, practices and policies of
the company.
2
The claimant had in paragraph 7 of his statement of case (hereinafter
referred to as “SOC”) averred that since the commencement of his
employment with the company, he had been subjected to undue
oppression, harassment and hostility from his fellow colleague and
superiors which amounted to grievances at the work place. The
particulars of the oppression, harassment and hostility are as follows:
(a) the claimant was requested by his security officer to cheat
on the monitoring and closing of shop lots, which was part of
his duties;
(b) scolded by and received hostility from the superior, Chief
Security Officer for reporting negligence of work of his fellow
colleagues;
(c) refusal of support and assistance from the superior and
fellow colleagues in carrying out his duties;
(d) refusal of cooperation from the superior and fellow
colleagues in carrying out his duties; and
(e) double standard practiced by the superior in carrying out
duties.
Thus, due to the persistency of the grievances, the claimant was
forced to leave his job on 7 September 2001. However, the company
met the claimant on 10 September 2001 and was told to write in
writing the said grievances. As such, the claimant wrote that letter
(hereinafter referred to as “COB-13”) and in that letter also, he also
sought to resign from the position of ASO with a view of taking up
position of Operation Supervisor as promised by the Centre Manager
of the company. During that time the claimant was told to go on
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unpaid leave pending investigation by the company of those
grievances. Having failed to hear anything from the company, the
claimant went to the work place on 30.9.2001 and was surprise to be
informed that the company had approved his resignation as stated in
“COB-13” and his resignation was deemed to be effective on 10
September 2001. Therefore in paragraph 21, 22 and 23 of the SOC,
the claimant averred that he was constructively dismissed by the
company since the company has failed to take appropriate action to
prevent or remedy the claimant’s grievances at the work place. In
short, it was alleged by the claimant that the company had at all
material times failed to ensure a safe and proper working
environment for the claimant to carry out his duties. The claimant
thus contends that the company has constituted a serious breach of
company’s obligation as the claimant’s employer. Alternatively, the
claimant also contended that he was wrongfully dismissed by the
company as he was induced by the company through its centre
manager to tendered resignation and therefore his resignation was
involuntary.
The company on the other hand in paragraph 5 and 6 of its
Statement In Reply (hereinafter referred to as “SIR”) denied the
alleged undue oppression and hostility. The company further avers
that it had carried out a detailed internal inquiry of the alleged
grievances raised by the claimant and found that the accusations
made by the claimant were baseless, unsubstantiated or not as
serious as portrayed by the claimant. The company also avers that
the claimant tendered his resignation voluntarily.
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In the present case, to prove his case the claimant is relying only on
his testimony. The company called a total of two witnesses namely
Mr. Chandran a/l Krishnan (COW1) who was the security officer of
the company at that material time and Mr. Nanda Kumar a/l
Rajamanickam (COW2) who was the assistant security officer of the
company at that material time.
Claimant’s Version
The counsel for the claimant submits that it is clear in the present
case that the company has been in breach of the implied term of
mutual trust and confidence between the claimant and the company.
This is because the company did not ensure a safe, proper and
conducive working environment to enable the employee to work with
dignity, self respect and esteem. The company also failed to
investigate into the complaints of the claimant in this respect. To
support this, counsel for the claimant further submits that that the
claimant has been subjected to undue oppression, harassment and
hostility from fellow colleagues and superiors. He draws the court’s
attention to the following evidence:
(a) There was lack of transparency in working environment or at
least within the security department. This is because the
claimant was prevented from recording negligence of the
workers in the station diary. So it is obvious that the department
was practicing covering up and double standard. COW2 agreed
during examination in chief that any event takes place in the
course of duty should be recorded in the station diary;
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(b) There was a serious problem of communication of instructions.
This is because no proper instruction on how to carry on duties
is given. There was no written working manual or hand book to
refer. This part of the evidence was not challenged by the
company;
(c) There was a refusal to hand over duty by outgoing security
officer to the claimant at the time of incident;
(d) Fellow colleagues of the claimant were speaking in Tamil at
the work place. The last straw of the incident of confrontation
between the CSO, Chandran (COW1) and claimant on 7
September 2001 noon at the security room when the claimant
was questioned for recording the negligence of Chandran
(COW1) in the station diary. Param and Chandran (COW1)
had again spoke in Tamil and laughed at him after claimant
raised his concerned of work. This act had triggered the
claimant leaving the company
(e) The claimant had stated that from his memory, shutters doors
left unclosed was the most rampant negligence and that he had
actually made record into the station diary as many as 2 or 3
times a week;
(f) The claimant had made numerous complaint to CSO and
Central Manager but no action has been taken; and
(g) The company’s attack over claimant’s conduct of not making
complaints to immediate superior before approaching higher
level of management.
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The claimant also contended that failure by the company to tender
the station diary an adverse inference that numerous incidents of
misbehavior and negligence at work of security personnel have been
recorded by the claimant shall be drawn pursuant to section 114(g)
of the Evidence Act 1950.
With regards to the issue of induced resignation, counsel for the
claimant submits that the claimant was induced to re sign by the
former Central Manager of the Company one Mr. Eddy Chong. The
claimant further submits that looking into the circumstances of the
case, the conduct of the parties has to be looked with the whole chain
of events. The following circumstances inter alia are as follows:
(a) On 7 September 2001 the claimant was forced to leave from
work place due to grievances in work place;
(b) The claimant was promised a job as operation supervisor in
the company provided the claimant must first resigned from
being a security personnel;
(c) Upon tendering his letter of grievances and resignation on 10
September 2001, the Central Manager approved claimant’s 2 day
unpaid leave for 8 September 2001 and 9 September 2001;
(d) The Central Manager promised the claimant that an enquiry
would be held in relation to his grievances and told him to wait
for his new designation; and
(e) Until the completion of the hearing, the claimant was never
formally informed of the acceptance of his purported
resignation.
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Company’s Version
The company in its written submission submits that the claimant has
not succeeded in establishing his claim of constructive dismissal, and
or in the alternative, has also failed to sufficiently discharge the
burden of establishing the purported induced resignation against him.
It is the company’s contention that the claimant has failed to prove
the alleged grievances and even if it is proven it does not breach the
fundamental terms of the claimant’s contract of employment which
tantamount to constructive dismissal.
Regarding the alleged harassment suffered by the claimant from his
colleagues, counsel for the company submits that during cross-
examination, the claimant had agreed that conversing in Tamil does
not actually amounts to harassment but the was simply annoyed to
hear his colleagues conversing in Tamil. In further support of this
contention, it is submitted that the company’s 1st witness, COW1, Mr.
Chandran a/l Krishnan had explained in his evidence that he only
conversed in Tamil on personal matters but for official matters they
conversed either in English or Bahasa Malaysia. This piece of
evidence was never challenged by the claimant.
Pertaining to the claimant’s contention that he was told by his
superior not to do site visit for the purpose of recording the opening
and closing times of the shops in the company premises, the
company submits that COW1 did not instruct the claimant to do this.
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The company’s learned counsel argued that the claimant failed to
produce any witness to support his contention that he was scolded by
the Chief Security Officer, one Mr. Parameswaran a/l Varatharaju for
reporting in the station diary of an unlocked roller shutter and the
presence of contractors on the night of 3.9.2001. In essence,
according to COW1 they were unable to lock the roller shutter at the
basement 2 because it was not in a proper working order and the
matter was already reported in the station dairy. Thus, had the
claimant clarify with the officer on duty or read the station diary he
would not have harbored any wrong impression over the incident.
The company stresses that the claimant’s action in making such entry
in the station diary is merely to project himself unnecessary and to
undermine the authority of his immediate superiors. COW1 had
explained in court during examination in chief that it was not the
practice of the Security Department to write all incidents or
irregularities in the station diary. Regarding the presence of the said
contractors, the company submits that the claimant himself had
agreed during cross examination that the contractors were holding
valid security passes and that it was not wrong for the contractors to
perform their duties at night.
Company’s counsel also submits that the claimant has also failed to
prove that he was mistreated by his colleagues. With regards to the
issue of one security officer, Encik Zoor bin Mat Noor refused to hand
over his duties to him but had instead handed over the duties to
COW1 who arrived later that the claimant on 7.9.2001. The company
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submits that according to COW1, Encik Zoor bin Mat was merely
complying with the then Chief Security’s instruction that an outgoing
Security Officer should only hand over the duty to an incoming
Security Officer. Furthermore, the claimant at that material time was
only an Assistant Security Officer and therefore Encik Zoor bin Mat
was not obliged to hand over the duties to the claimant. The company
further submits that based on the evidence presented in this court,
the claimant is estopped from claiming that his presence on 7.9.2001
was not stated in the station diary by his superior and thus it had
created an impression that the claimant was absent from work. This
is because it is clear that during cross-examination the claimant
admitted that his name was mentioned in the station diary.
The company also disputed the fact that they prevented the claimant
from performing his duties. In relation to the robbery incident, the
company relied on the admission of the claimant during cross-
examination that he was not given any instruction robberies at
Kelawai Road. COW1 also testified in court that by the time they
arrived at the scene of the crime, there was nothing they could do as
they were too late to arrive at the scene. COW1 further said in court
that the incident had taken place outside the company’s premises
and also it was not within their job description and responsibilities. It
was also contended that the company’s security personnel were not
armed to arrest thieves and robbers nor there were trained to perform
such dangerous task.
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Based on the facts and evidence, it is the company contention that
there was no fundamental breach of the claimant’s employment
contractual terms whatsoever which would allow for constructive
dismissal. Instead company ventures to submit that the alleged
grievances raised by the claimant were actually due to the claimant’s
misconception.
The company also submits that there was no evidence to show that
the claimant was induced to resign from his assistant security position
because he was promised by the company the position of Operation
Supervisor.
Issue
The Issues for determination before this court are as follows:
(a) whether the claimant had been constructively dismissed by
the respondent;
(b) if the claimant had been dismissed , whether the dismissal
is with just cause or excuse.
Law
The law relating to constructive dismissal has been affirmatively set
out in Wong Chee Hong v. Cathay Organisation (M) Sdn. Bhd. [1988]
1 CLJ 45; [1988] 1 (Rep) 298 when Salleh Abbas LP said:
“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
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employer is guilty of such breach as effects the foundations of the contract or if the employer has evinced or shown an intention not to be bound by it any longer....
We think the word “dismissal” in this section should be interpreted with reference to the common law principle. Thus, it would be dismissal if an employer is guilty of a breach, which goes to the root of the contract, or if he has evinced and intention no longer to be bound by it. In such situations, the employee is entitled to regard the contract as terminated and himself as dismissed.”.
Gopal Sri Ram JCA in Quah Swee Khoo v. Sime Darby Bhd. [2001] 1
CLJ 9 had this to say on constructive dismissal:
“There is no magic in the phrase. It simply means this. An employer does not like a workman. He does not want to dismiss him and face consequences. He wants to ease the workman out of his organization. He wants to make the process as painless as possible for himself. He usually employs the subtlest of means. He may, under the guise of exercising the management power of transfer, demote the workman. That is what happened in Wong Chee Hong. Alternatively, he may take steps to reduce the workman in rank by giving him fewer or less prestigious responsibilities than previously held. Generally speaking, he will make life so unbearable for the workman so as to drive the latter out of employment. In the normal case, the workman being unable to tolerate the acts of oppression and victimization will render his
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resignation and leave the employer’s services. The question will then arise whether such departure is a voluntary resignation or a dismissal in truth and fact...
Constructive dismissal can take place, as we have attempted to demonstrate, in a number of cases. Since human ingenuity is boundless, the categories in which constructive dismissal can occur are not closed. Accordingly, a single act or a series of acts may, according to the particular and peculiar circumstances of the given case, amount to a constructive dismissal...
At the end of the day, the question simply is whether the appellant was driven out of employment or left it voluntarily…... .”.
For constructive dismissal cases, it is trite industrial
jurisprudence that the onus of proof falls on the employee to
prove on the balance of probabilities that the employer has
committed a fundamental breach of the contract of the
employment (See: Chua Yeow Cher v. Tel Dynamic Sdn. Bhd.
[1999] 1 LNS 104).
Thus, in order for the claimant to be able to claim for
constructive dismissal, four elements must be fulfi l led:
(a) there must be a breach of contract by the employer.
This may be either actual or anticipatory breach;
(b) the breach must be a fundamental breach going to the
root or foundation of the contract that is to say that
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breach must be sufficiently important to justify the
employee resigning or else it must be the last in a
series of incidence;
(c) the claimant must leave in response to the breach and
not for some unconnected reason; and
(d) the claimant must not delay too long in terminating the
contract in response to the company’s breach,
otherwise he may be deemed to have waived the
breach and agreed to vary the contract.
Evidence, Evaluation and Findings
The court will now determine whether, in the circumstances of the
case, the company had breached the contract of employment in a
fundamental manner or had evinced any intention of it no longer
bound by the contract to entitle the claimant to claim constructive
dismissal by the company.
I shall now examine the reasons proffered by the claimant in his
pleadings and in his testimony to support his claim of constructive
dismissal. These reasons he states in answer 10, 11 and 12 in his
witness statement which in substance is stated in paragraph 7 and 8
of the claimant’s pleadings. His reasons are as follows:
“7. The claimant states that since the commencement of his
employment with the company he has been subject to undue
oppression, harassment and hostil i ty from his fellow
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colleague and superiors which amounted to grievances at
the work place.
8. The particulars of the oppression, harassment and
hostility are as follows:
(a) the claimant was requested by his security officer to
cheat on the monitoring and closing of shop lots, which was
part of his duties;
(b) scolded by and received hostility from superior, Chief
Security officer for reporting negligence of work of his fellow
colleagues;
(c) refusal of support and assistance from the superior and
fellow colleagues in carrying out duties;
(d) refusal of cooperation from the superior and fellow
colleagues in carrying out his; and
(e) double standard practiced by the superior in carrying out
duties.
From the evidence adduced in totality, the court finds that the
claimant’s allegation with regard to him being oppressed harassed
and treated with hostility from his fellow colleague is without basis
and cannot be sustained. Thus, the claimant had failed to prove his
case on a balance of probability that the company were guilty of
significant breach which went to the root of his contract of service. My
reasons are as follows:
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(a) Cheating
As regards to the allegation by the claimant that he was
requested by his security officer to cheat on the monitoring and
closing of shops, the court is unable to accept this contention.
This because COW1 in his evidence vide witness statement
categorically denies that he had at any point of time asked the
claimant to cheat the recording of times and also in absence of
any evidence adduced to the contrary by the claimant. It is also
pertinent to note that COW1 during cross-examination
strenuously denied his involvement with claimant’s allegation.
(b) Scolding
The claimant alleged that he was scolded by the CSO, one Mr.
Parameswaran a/l Varatharaju for reporting in the station diary
of an unlocked roller shutter and the presence of contractors on
the night of 3.9.2001. After perusing the evidence adduced in
this case, once again there is no cogent evidence upon which
the claimant may justify his allegation. It was abundantly clear
from COW1’s testimony when he said as follows in his witness
statement:
“Q: It was averred in paragraph 2 of the letter, that on entry
at the basement 2-cold storage was not locked. Were you
aware of this?.
A: Yes. The roller shutter of the entrance at Basement 2 was
not in proper working condition at that time and therefore
we were unable to lock the shutter at the basement 2 on
that day. Anyway it was not crucial to lock the shutter as
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the glass door at the basement 2 and the shutter at
Basement 1 was locked on that day.
Thus, from the above evidence, it is the opinion of the court that
there is no reason for the CSO to scold the claimant since
COW1 said “it was not crucial to lock the shutter as the glass
door at the basement 2 and the shutter at the Basement 1 was
locked on that day”. In this aspect also, I am in agreement with
counsel for company submission that had the claimant read the
station diary or clarify with COW1 he could have been aware of
the actual situation and not harbored under the wrong
impression over the said incident.
Regarding the presence of contractor’s workers in the
company’s premises on the night of 3.9.2001, the claimant
himself said during cross-examination that they said workers
were actually permitted to enter the premises because they
were holding security passes and also cleared by the security
officer on duty at that material time. The evidence of the
claimant is also corroborated by COW1. Hence, it is crystal
clear that it is not mundane for the claimant to report the
presence of the contractor’s workers in the station dairy.
In this regard, I am also mindful of the fact that COW1 has
given evidence unequivocally that it was not the practice of the
Security Department to record all incidents in the station diary
and the correct procedure was for the claimant to report the 17
matter to the security officer on duty. If the matters could not be
resolved, the said officer should report the matter to the Chief
Security Officer.
In light of the above, it would appear that it is highly improbable
for the claimant to allege that he was scolded for recording the
said incidents.
(c) Refusal of support, assistance and cooperation from superior
and fellow colleagues in carrying out duties
With regards to the robbery incident involving a tenant of a
shop lot in Gurney Plaza at Kelawai Road where the claimant
said he was prevented by COW1 to go to the scene to provide
assistance, I agree with the explanation given by COW1 that
the incident took place outside the company’s premise and not
within their job description and jurisdiction. From the claimant’s
evidence, the court also found that he had rightfully conceded
during cross-examination that his job was to direct the traffic
and not to stop robbery.
In respect of claimant’s allegation that when he reported for
duty on 7.9.01, one security officer, Encik Zoor bin Mat Noor
refused to talk and to hand over the duties to him. Again it is the
court’s opinion that there was no truth in claimant’s claim. This
is because the court finds that the uncontroverted evidence of
COW1 clearly shows that Encik Zoor was merely complying
with then Chief Security’s instruction that an outgoing Security
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Officer should only hand over the duty to an incoming Security
Officer. COW1 further testified that the claimant was only the
assistant security officer at that time. In the circumstances,
there is no basis to the claimant’s contention.
As for claimant’s contention that Encik Zoor failed to put his
name in the station diary when he handed over the duty to
COW1, suffice for this court to say that from page 11 (part of
the station diary which was confirmed by COW2) of the COB it
is apparent and blatantly clear that claimant’s name was
mentioned in the said diary.
It is also the contention of the claimant there was a serious
problem of communication of instructions. This is because the
claimant alleged that there was no proper instruction on how to
carry on duties is given. There was no written working manual
or hand book to refer. On this issue, the court is satisfied when
COW1 has stated in his evidence that there was no written
instruction and he had learnt the security department’s
procedures through his experience working with the company.
(d) Double standard
The claimant alleged that he had suffered from his colleagues
because they had frequently conversed in Tamil during his
presence. It is the finding of this court that the claimant’s
allegation is unjustified and cannot be supported. The court
finds that the explanation given by COW1 to be reasonable.
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This is because COW1 in his testimony said as follows vide
witness statement:
“As far as the usage of Tamil language, I conversed in that
language only on personal matters, such as going to the
temple. I conversed in Bahasa Malaysia and English on
official matters.”.
What was more perplexing for the court was that during cross-
examination the claimant agreed that he was not harassed but
rather felt annoyed when his colleagues were conversing in
Tamil.
(e) Failure by the company to tender the station diary
The law on section 114(g) of the evidence Act 1950 is very
clear that an adverse inference can be drawn only if there is
withholding or suppression of evidence and not merely on
account of a failure to obtain evidence. It may be drawn from
withholding or suppressing not just any document but a material
document (see: Munusamy Vengasalam v. PP [1987] CLJ (rep)
221 SC). In the instant case, there is no evidence to suggest
that the company was suppressing the production of the station
diary. This is because COW2 came to court and successfully
explained that he had made three searches in the Chief
Security Officer’s office but still could not find the said diary. In
the upshot, the non production of the said station diary does not
derogate the evidence COB page 11 but instead shows the
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failure of the claimant to prove his case. As such, there is no
basis for this court to invoke section 114(g) of the Evidence Act
1950.
(f) Induced resignation
On the question of induced resignation claimed by the claimant,
with respect this court disagrees with this contention. Firstly, a
scrutiny of the evidence shows that apart from claimant’s oral
evidence and mere assertions, there is no other evidence to
support his claim. Claimant’s resignation letter (page 13 and 14
of COB) itself is clear that the claimant wanted to resign
because of grievances at his work place and not because he
was promised the position of Operation Supervisor by Mr.Eddy
Chong.
Secondly, in the case of Bata (M) Bhd v. Normadiah Abu Suood
[1991] 2 ILR 1106 Steve LK Shim, Chairman of the Industrial
Court (as he then was) had observed as follows:
“Now, industrial tribunals have consistently held that a “forced
resignation” is a dismissal: See Scott v. Fomica Ltd [1975]
IRLR 105; Spencer Jones v. Timmens Freeman [1974] IRLR
325. It has also been held that the use of persuasion by an
employee to obtain employee’s resignation may be a
dismissal: see Pascoe V. Hallen & Medway [1975] IRLR 116.
Again that a resignation will be treated as a dismissal if the
21
employee is invited to resign and it is made clear to him that,
unless he does so, he will be dismissed : see Easf Sussex
Country Council v. Walker [1972] 7.I T.R. 280.”.
In the present case, from the evidence led, the claimant has
failed to establish that he was invited to resign by the company.
As such, I of the view that the claimant’s resignation was not
motivated by inducement.
For the reasons adumbrated above, the claim against the company is
hereby dismissed.
HANDED DOWN AND DATED THIS 27TH FEBRUARY 2008
(AHMAD TERRIRUDIN BIN MOHD SALLEH) CHAIRMAN
INDUSTRIAL COURT
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