Syazwani Suhaimy and Teh Jovaynne from ZUL RAFIQUE & partners’ Employment & Industrial Relations team, succeeded in defending Gamuda Land (T12) Sdn Bhd (the ‘Company’) in a constructive dismissal claim in the case of Chan Yeong Sen v Gamuda Land (T12) Sdn Bhd (Award No 1622 of 2020, Industrial Court).

The Claimant who was reporting to the Chief Executive Officer (‘CEO’) of the Company alleged that she had been constructively dismissed from her employment as a Secretary without just cause or excuse. The Claimant was to be transferred to the Company’s site office at Dengkil and would be reporting to the Company’s General Manager instead of the CEO. The Claimant claimed to have objected to this transfer as it would cause her untold hardship and burden due to the long travel distance from her new office to her residence in Rawang. The Claimant also claimed that because of the transfer, her job nature, duties, and functions had changed significantly. She further stated that this was the Company’s attempt to undermine her position, thus effectively demoting her and humiliating her, which resulted in her resignation in 2019.

The Company on the other hand contended that the Claimant’s constructive dismissal claim was without basis or merit as she was duly informed that she will be subjected to transfer from one post to another or from one station to another within the said company or to any of the associate or subsidiary companies of the Gamuda group of companies. Further, given the Claimant’s reply that the workload was heavy, the Company made attempts to accommodate her by exploring other suitable roles in the Company and adjusted her salary to account for the increased travel distance. The Company further asserted that the Claimant once informed the CEO that she had the intention to look for another job near her house after being informed of the said transfer, and had asked for a recommendation letter which the Claimant herself prepared for the CEO to sign which he did so in good faith.

In this case, the Industrial Court held that the Claimant was fully aware that the nature of the Company’s business is project-based and that all the employees employed are subjected to transfer and must be prepared for such transfers. The Court also found that the Company was doing nothing more than harnessing the abilities and capabilities of the Claimant in furtherance of the Company’s business interest consistent with its past practice within the Group of companies and was not acting in malice to harass or victimise her in light of the said transfer. On the Claimant’s claim that the travel distance and the traveling allowance allocated by the Company would cause her hardship, and the long journey was unsafe, the Court found that many employees in employment who were subjected to transfer orders would normally undergo this form of inconvenience and hardship too and it was part and parcel of the employer-employee relationship so long as it was not actuated by bad faith by the employer. The Court further stated that the Claimant was unhappy with the transfer and had every intention of leaving the Company for a better job whenever one comes by and it was for this reason the Claimant had requested for a letter of recommendation from the CEO. Thus, the Court concluded that the Claimant tendered her resignation letter on her own volition for which the Company cannot be faulted and thereby dismissed her constructive dismissal claim.

For more insight into this area of law, please contact our Partners in Employment & Industrial Relations Practice Group:
P Jayasingam
Wong Keat Ching
Thavaselvi Pararajasingam