IN THE INDUSTRIAL COURT OF MALAYSIA CASE NO: 9/4-2260/06 BETWEEN KHOO EE PENG AND GALAXY AUTOMATION SDN BHD AWARD NO: 656 OF 2009 Before : MOHD AMIN FIRDAUS ABDULLAH - CHAIRMAN Venue : INDUSTRIAL COURT OF MALAYSIA, PENANG BRANCH Date of Reference : 28 th OF AUGUST 2006 Dates of Mention Dates of Hearing Representation Reference : : 14 th OF DECEMBER 2006, 15 th OF FEBRUARY 2007, 15 th OF MARCH 2007, 30 th OF MARCH 2007 & 5 th OF APRIL 2007. : 5 t h JUNE 2008, 4 t h OF NOVEMBER 2008 & 2 N D OF APRIL 2009. : For the Claimant - Ajit Singh Jessy; M/s Jessy & Associates : For the Respondent - Edward Ong Hong Hing; M/s Meng Wai & Associates 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 1
Khoo Ee Peng ( the Claimant ) by GALAXY AUTOMATION SDN BHD ( the Respondent ). 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 Khoo Ee Peng ( the Claimant ) by GALAXY AUTOMATION SDN. BHD. ( the Respondent ). It was dated the 28 th of August 2006 and received by the Court on the 10 th of October 2006. Background By a Letter of Appointment dated the 3 rd of March 2005, the Claimant was appointed as a Sales Executive to the Bukit Mertajam Branch of the Respondent Company ( Company ) on a monthly salary of RM1,600.00 with effect from the 15 th of March 2005. The core business of the Company are selling office products like risograph, photocopy machines, audio visual aids and other office automation. Her working hours from Monday to Friday were from 8.15 a.m. to 5.00 p.m. and for Saturday from 8.15 a.m. to 1.00 p.m. 2
The Claimant Khoo Ee Peng also known as Marissa Khoo testified during cross-examination that on the 4 th of April 2005, she told the Branch Manager Teoh Soon Taik that she had to meet a difficult customer at 3.00 p.m. to 4.00 p.m. that afternoon. Normally if the Claimant was confronted with problem from any customer, the Branch Manager would follow her to meet the customer during office hours. She testified that on that particular day, the Branch Manager Teoh told her that there was no need to go by two cars and asked the Claimant to go with him in his car. He told her to meet him at a certain place in Seberang Jaya. The Claimant then went together with Teoh in his car. After meeting the difficult customer, it was almost end of the working hours for that particular day and the Claimant requested Teoh to send her back to the place where she had left her car. The Branch Manager, Teoh, however, replied that he wanted to go for some food and drinks. They then went to Seberang Jaya to eat. After finishing the food, the Claimant told Teoh that she wanted to go home but he answered that he did not want to go home yet. Consequently they sat at the restaurant for 3
quite a long time. The Claimant said that she was helpless as he was her Manager. After sitting there for quite a long time, the Claimant pleaded with Teoh to send her back to the place where she parked her car as she has a family waiting for her at home. He then relented and after the Claimant went into his car, Teoh instead drove her straight away to Pearl View Hotel in Seberang Jaya giving the excuse that he was tired and invited her to share a room with him. It was then almost midnight. Reaching the hotel, he stopped the car in front of its coffeehouse and alighted from the car to go somewhere. On returning to the car, he informed the Claimant that he had already booked a room. The Claimant rejected his advances and pleaded with the Branch Manager to respect her self respect but Teoh switched off the car engine and tried to pull her out of the car. The Claimant told him that I come to work and not to sell my body. 4
After what she said, Teoh eventually moved away from the hotel and drove her back to where she left her car. During the trip, Teoh talked a lot about sex and also tried to fondle her while inside the car before reaching the place where the Claimant parked her car. Before this incident, Teoh had tried to touch the Claimant a few times and asked her to share a car with him to meet passengers but then she rejected his invitation. The Claimant told Teoh that maybe she would take leave on the 17 th of November 2005 if her baby sitter could not come and despite this, the Branch Manager directed her to fill in the application form which she did not do so. When she managed to come to work on the 18 th of November 2005 because her mother was free to take care of her baby, however, Teoh was not happy with her and accused her of telling a lie and insisted that she took leave. He ordered the Claimant to get the leave form from the administration department to fill in to apply for the leave and put it on his table. The 5
Claimant said that at that time the adminstrative staff was busy and by the time the leave form was given to her it was late. She later put the form on the table of the Branch Manager. Teoh took the leave form from his room and told the Claimant in front of the staff that being her superior, he had the power to fire her at any time. Subsequently on the morning of the 18 th of November 2005, Teoh ordered the Claimant to return the property of the Company and its sales documents to him because he told her that he had already dismissed her. Issue Was the Claimant constructively been dismissed by the Respondent Company? Parties Contentions Claimant Vide a letter dated the 21 st of November 2005 (CLB, page 3), the Claimant informed the Director of the Company named Tony Tee Boon Chai that she had been harassed by Teoh Soon Taik, the Penang Branch Manager, after she had rejected his sexual advances. In consequence of 6
the situation she could no longer work under such circumstances. She then claimed constructive dismissal. Her letter is seen here (in verbatim): To, The Director, Mr. Tony Tee Boon Chai, Galaxy Automation Sdn Bhd, No: 8 Jalan 19/1 Section 19, 43600 Petaling Jaya, Selangor. Ms, Marissa Khoo, NO: 3977, Jalan Raja Uda, 12300, Butterworth, Penang. Date : 21 st November 2005 Dear Sir, RE: CONSTRUCTIVE DISMISSAL This is to inform you that Mr. Teoh Soon Taik has being harassing me in my work and person. On 18 th November 2005 at about 9.00 AM, Mr. Teoh verbally told me that I was dismissed from my employ. He also instructed me to hand over all the company property to him. I did as instructed. I also reported this matter to you and Mr. Yee. 7
Mr. Teoh also told the Admin Dept Miss Noorliza to place my sales for Kolej Kejurawatan BM as an Office Sales. He also instructed Miss Tan from the Accounts Department to call the KL Office to stop my salary for November 2005. After lunch I asked Mr. Teoh for my dismissal letter and he then said that he did not dismiss me and he did not instruct me to hand over the company s property to him. All this harassment has come about because Mr. Teoh has been making sexual advancement on my person and was unable to meet his objectives. I have always told him that I was not interested in his sexual advancement and wanted him to respect me. There was an incident on 4 th April 2005 that he wanted me to share a room at Pearl View Hotel and he had also send me an SMS on 5 th morning at 12.51 AM saying Don t worry I still Love you and Like you very much. There is also other incident that he had sexually harassed me. I have tried to put this matter aside because I am a single parent and needed the job but now the situation has worsen and has threatened my employment. 8
Accordingly I am unable to work in this situation anymore and I hereby constructively dismiss myself from your employ with immediate effect. Marissa Khoo Signed. The Claimant did not initially report the matter for fear of losing her job as being a single parent with a one year old child, she needed to eke out a living. Nevertheless, the Branch Manager continued to harass her and the Claimant warned him that if he did not stop harassing her, she would draw the attention of his superiors to the matter but Teoh scorned at her and said even if she did, no one would believe her because he was her immediate superior. The learned counsel for the Claimant contended that the incident which happened on the 4 th of April 2005 is true as the evidence of Kenneth Stephen Perkins (CLW 2), the Assistant Secretary of the Branch of the Penang Malaysian Trade Union Congress by producing the Invoice dated the 5 th of April 2005 stating the time at 12:00:07 in relation to room No. 9
6315 in Pearl View Hotel, Seberang Prai testifies to the truth of the evidence of the Claimant on the incident. Although this document was marked as an ID (identification exhibit) because the Company s learned counsel objected to its admissibility, there is no reason on why it should not be accepted by the Court as he had failed to give any grounds for his objection. The Branch Manager accused by the Claimant of sexual harassment is not present in Court to give evidence and hence the evidence of the Claimant is not rebutted. The Claimant did not lodge a police report as she was concerned for her self respect. The Claimant was forced to stay on in the job and tolerate the sexual harassment by the Branch Manager in order to have a secure source of income for her family until the 18 th of November 2005 when Teoh told her that she was dismissed. 10
The Claimant then reported the matter to the Director of the Company, the said Tony Tee and Tee Peng Wai (COW 1) the Company s Marketing Director, both of whom were based at the Headquarters in Kuala Lumpur. Tony Tee told the Claimant that instead of creating trouble, she should resign which the Claimant refused. Quah Eng Chean (COW 2) the former Sales Executive of the Company telephoned the Claimant many times persuading her to forget the matter. The Claimant unable to tolerate the failure of the Company to take steps to stop the harassment next reported the matter to the Malaysian Trade Union Congress where she was advised to claim constructive dismissal as the employer had failed to protect her from the harassment. The failure of the Company to call Tony Tee as a witness only shows that he must have said those words and the Court should invoke section 114(g) of the Evidence Act 1950 against the Company. 11
COW 1 who flew down to Penang to try to meet the Claimant did not have any personal knowledge of the events. CLW 2 corroborated the story of the Claimant who told him about the hotel incident and that he had seen the text messaging on the screen of the handphone of the Claimant from Teoh saying that he loved her. She also told him that Teoh had ordered the Claimant to resign. This evidence was not challenged in Court. excuse. Thus the dismissal of the Claimant was done without just cause or Company The learned counsel for the Company argued that the Claimant was a willing party to the hotel incident which happened on the 4 th of April 2005. She had voluntarily resigned from her job and the Company had not breached any terms of the contract of employment whether express or implied. 12
The Claimant possesses her own car and was provided with petrol allowance and hence there was no reason for her to travel with Teoh Soon Taik, the Branch Manager. The Claimant was unable to adduce evidence to give details of the sexual advances as alleged in regard to date, time, place and frequency. Thus there were no such sexual advances from Teoh. The allegations were fabricated to embarrass the Branch Manager and to exact revenge on the Company. The claim of the Claimant that the Company failed to stop the alleged sexual harassment is not true as it did not receive any complaint from her prior to receiving her letter dated the 21 st of November 2005 claiming constructive dismissal. The alleged incident which happened on the 4 th of April 2005, if true, was consented to by the Claimant. The time lapse between the time the Claimant boarded the car of the Branch Manager and until past midnight was more than 7 hours. The Claimant enjoyed her time with Teoh, if not, she could have left the place where they were taking their meals or alighted 13
from his car to hail a cab to the place where she left her car. The Claimant admitted that nothing had happened during that span of time. If true, the Branch Manager would have resented her but instead the Claimant was confirmed as a Sales Executive on the 5 th of July 2005. There was no sexual harassment as the Claimant agreed to the outing. On the 18 th of November 2005 at about 9.00 a.m., the Branch Manager Teoh Soon Taik asked the Claimant as to why she went on leave on the 17 th of November 2005 without first filling in the leave form. The Claimant however, reacted angrily and raised her voice in the presence of other staff by saying Sack me lah, I know labour laws! She then left the office. Later when Teoh returned to his office, he saw the leave application form and a sales kit left by the Claimant on his table. Subsequently on the 21 st of November 2005, the Claimant came to the office for about 10 minutes and vide her letter claimed constructive dismissal. The following day COW 1 telephoned the Claimant from the Petaling Jaya Headquarters 14
telling her that he would fly to Penang to meet her on the 23 rd of November 2005 in order to resolve the differences amicably but the Claimant failed or refused to meet COW 1. By the 29 th of November 2005 after making many unsuccessful attempts to contact the Claimant, the Company was left without any choice but to treat the Claimant as had voluntarily resigned from her employment. There was no sexual harassment but the allegations were planned by the Claimant to discredit her employer. Thus, the claim of the Claimant for constructive dismissal should be dismissed. The Law In Wong Chee Hong v. Cathay Organisation Bhd, the Supreme Court held that: It is dismissal if the employer is guilty of a breach which goes to the root of the contract of employment or if he evinces an intention no longer to be bound by it. In such a situation, the employee is entitled to regard the contract as terminated and himself being dismissed. 15
page 36: In Unfair Dismissal Cases by John E. McGlyne, 2 nd edition, 1979 on It is well at this point to emphasise that a constructive dismissal may be made up of a number or a series of incidents - it may be something which develops over a period of time. A comparatively trivial incident following in the wake of more serious grounds for complaint against the employer, may operate as the last straw so as to justify the employee s resignation. In Bryn Perrin s Industrial Relations and Employment, the learned author stated the requirements for constructive dismissal to operate as follows: 1. There must be a breach of contract by the employer, either an actual breach or an anticipatory breach. 2. That breach must be sufficiently important to justify the employee resigning, or else it must be in the last in a series of incidents; albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law. 16
3. He must leave in response to the breach and not for some other unconnected reason. 4. He must not delay too long in terminating the contract in response to the employer s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract. Findings 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 the Claimant has made out a case of constructive dismissal against the Company. What appears to be the starting point for the Claimant to claim constructive dismissal began with the hotel incident which happened on the 4 th of April 2005 but the Claimant tolerated it and did not complain to the higher Management because being a single parent, she had to fend for herself and her only small child. The following day on the 5 th of April 2005, Teoh Soon Taik text messaged her declaring his love for her and this sms in the screen of the cellular phone of the Claimant was seen by CLW 2. 17
Prior to this incident the Branch Manager had sexually harassed her by trying to touch her a few times and asked her to share the car with him to meet customers. The Claimant also testified during cross-examination that Teoh Soon Taik remarked that even if she were to complain, nobody would believe her as he was her superior officer, the Branch Manager. The Claimant further testified that after the incident although she was not demoted, her petrol allowance was withdrawn and she was assigned work she did not want to do. On the 18 th of November 2005, Teoh Soon Taik asked the Claimant for an explanation on why she went on leave without filling in the leave application form. He later demanded for the return of the sales documents and the property of the Company, telling her that he had dismissed her. This incident was the last straw that broke the camel s back and on the 21 st of November 2005 the Claimant claimed constructive dismissal. 18
Why did it take more than 7 months over for the Claimant after the hotel incident which happened on the 4 th of April 2005 which appears to be sufficiently serious enough to entitle her to leave at once and claim constructive dismissal? Had she lost her right to treat herself as discharged and elected to affirm the employment contract? Although from the point of view of an outsider it was serious enough for the Claimant to leave at once yet the chain of events ranging from the earlier sexual harassment committed by the Branch Manager in trying to touch the Claimant on a few occasions before reaching the crescendo on the 4 th of April 2005 and subsequently taking away her petrol allowance and assigning her work which she did not like, eventually culminated in the Branch Manager telling her that he was purportedly dismissing her on the 18 th of August 2005. Her purported dismissal on the spot by the Teoh Soon Taik, the Branch Manager, to the Court was the last straw that is the conduct of the employer through him, which was sufficiently serious to entitle the Claimant to leave at once. There was not a shred of evidence to show that the Penang Branch Manager was solely empowered to terminate the employment of the Claimant. 19
The Claimant had told CLW 2 about the misconduct of the Branch Manager. CLW 2 corroborated her story. The employer by the lewd behaviour of the Branch Manager had destroyed the implied contractual term of mutual trust and confidence between the parties as employer and employee subjecting the Claimant to humiliation and distress. The Company had breached the root of the contract by his conduct. The Company s learned counsel argued that the Claimant was a willing partner because she was supposed to have volunteered herself to go by Teoh s car. The Claimant had explained that the Branch Manager had asked her to go to see her difficult customer in his car and being her immediate boss, a single parent with a small child to support, she had no choice. There was not one iota of evidence adduced by the Company to show that the relationship between both the Claimant and Teoh Soon Taik was intimate. On the contrary, the absence of the Branch Manager in Court to clear his honour in the face of the accusation from the Claimant regarding his sexual misconduct towards her only goes to show her credibility. Teoh Soon Taik was fully aware of this Court case but why did 20
not he of his own accord appear at the trial to clear his name? Any innocent and reasonable man would have no hesitation to come to Court to fight for his honour especially in view of the seriousness of the accusation concerning his improper behaviour towards the Claimant around midnight that day in question. Therefore on a balance of probability, the Court finds that the Claimant has proven constructive dismissal against the Respondent Company and the Claimant did not resign from her employment voluntarily. Award: In the light of the findings, the Court now hands down the following As Teoh Soon Taik, the Branch Manager, who had now resigned from the Respondent Company is no longer working for the Company, the Claimant will not have to endure sexual harassment at the workplace anymore. The Court is now of the view that the Claimant should be reinstated to her former position without any loss of seniority. 21
The Claimant shall be reinstated within 2 months from the date of receiving this Award. Backwages The Claimant is awarded RM1,600.00 x 10 months = RM16,000.00. As no evidence was elicited by the Company regarding post dismissal earnings, the Court will not scale down the backwages. HANDED DOWN AND DATED THIS 1 JUNE 2009. (MOHD AMIN FIRDAUS ABDULLAH) CHAIRMAN INDUSTRIAL COURT OF MALAYSIA PENANG BRANCH. 22