Incorporating Employment (Amendment) Act 2022
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Award No:5/2014
  
Company:Bella Industries Sdn. Bhd.
  
Claimant:  Aloysies Fathianathan 
 
  
Case  
  
​The employee alleged that he had been employed by the company as a Director with a basic salary of RM2,000 and a fixed monthly allowance of RM5,000, altogether totalling RM7,000.
 
He claimed that the company failed to provide him his balance wages of RM4,000 for the month of April and wrote to the company asking them to settle his wages failing which he could claim constructive dismissal.
 
The employee then went on medical leave, but upon his return he discovered that his table had been cleared. He then wrote to the company seeking clarification on his employment status.
 
After the company failed to respond, the employee left employment and claimed constructive dismissal.

Issue:
1. Whether the company had breached a fundamental term of the employee’s contract of employment?

2. Whether the employee had been constructively dismissed?

3. Whether the dismissal was with just cause and excuse?
 
The employee alleged that non-payment of his salary had been a fundamental breach of his contract of employment.
 
The company contended that the employee was a temporary worker and that all his wages had been settled, and that he had voluntarily resigned.
 
Since the contract between the employee and the company had not extended to his children, whatever payments the company had made his children – whether for work done or for financial assistance – could not be claimed under his contract of service. Thus, any payments made to the children could not be claimed as part of his wages.
 
  
Held   
  
​Based on the company’s salary sheet, the court found that the employee’s monthly salary and fixed allowances were RM3,000. There were two other payments totalling 3,000 paid by the company to the employee’s children, and commission paid to the employee.
 
Since the employment agreement was between the employee and the company, the employer-employee relationship was between the employee and the company and does not extend to the employee’s children.
 
The court was of the view that it was not in the spirit of industrial relations if payment of wages were to be paid to a person for work that was done by another person.
 
Claim for constructive dismissal is dismissed
  
 
Tags/Keywords
constructive dismissal, contract of employment
  
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