- 公司偶然下在Facebook 发现员工在外从事副业，而且从事的业务与公司相似。公司认为这构成了严重的利益冲突，因此安排了HR部门与员工进行了面谈。
- 然而公司的两名证人在法庭上作证时表示，他们当时并没有威胁员工。HR部门仅告知员工，他与另一家公司从事的业务与公司的利益存在冲突。员工当时也承认一切的指控。公司接着通知员工，将对他采取Domestic Inquiry ( DI)的程序。
- 这点小编在Constructive Dismissal的文章也有提及，由于员工已经提交离职信，因此在法庭上，举证雇主逼迫他离职的责任将会落在员工身上。员工必须要证明雇主的哪些行为导致他被迫辞职，以及必须证明自己有清楚的和公司表达本身的不满。如通过书信，电邮等的方式向公司表达本身不满公司的安排等。否则可被当成员工已经自愿接受这个安排。
The Claimant’s Case
- The claimant’s case can be summarised as follows:
- The claimant commenced employment with the Company on the 15.02.2012 as a Senior Physiotherapist with monthly salary of RM7,000.00.
- On the 23.11.2018, the Manager, Physical and Rehabilitation Medicine (MPRM) informed the claimant that a meeting had been scheduled between the claimant and the General Manager of the Company on the 26 November 2018 without even stating the purpose of the meeting.
- On the 26.11.2018, the claimant went to the General Manager’s room as directed. Here the General Manager was accompanied by MPRM and another officer.
- In the General Manager’s room there were some casual conversation with the General Manager about the claimant’s health, working condition and performance. There were other conversation and enquiries relating to the claimant’s presence in an event, namely the signing of a Memorandum of Understanding involving Universiti Teknologi Mara. The conversation relating to the claimant’s presence in the event touched on the claimant’s conduct seen as being in conflicts of interest with the Company’s interest.
- The claimant responded by stating that his presence in the event stated above was purely for the purposes of accompanying and offering assistance to a friend and there were no conflicts of interest.
- In the meeting with the General Manager, the claimant reiterated his commitment to the Company and his willingness to continue serving the Company and that he was prepared to forgo any involvement in any other entity in the event the Company is of the view that his involvement with any other entity is likely to interfere with his duties in the Company.
- Thereafter the claimant was asked to place his signature in a letter which will be forwarded to the HRD for investigation and further action.
- After placing his signature in the letter which was handed to him in the General Manager’s office, the claimant returned to his usual duties in the Company thinking that a counselling session will take place or at least a show cause letter will be given to the claimant.
- At about 4.30pm on the 26.11.2018, the claimant was directed to go to the HRD meeting room where he was questioned by the HR Director and two other HR officers. Here the claimant was informed that he had contravene the Company’s rules.
- The claimant was given an ultimatum by the HR officers in that either the claimant tenders his resignation letter forthwith or face an immediate dismissal which will result in the auxiliary police personnel accompanying the claimant out of the office.
- Despite the claimant’s plea for lenience, the HR officers refused to entertain the claimant and even warned the claimant that in the event the claimant is dismissed, the claimant will have to shoulder a bad employment record which will work against him in the event the claimant intends to seek other employment.
- Faced with the ultimatum given by the HR officers which had put the claimant under pressure and caused a state of confusion in the claimant, the claimant thereafter tendered his resignation letter.
- Now the claimant claims that he was forced to tender his resignation against his will and claims that as a consequence he was dismissed without just cause or excuse.
The Company’s Case
- The Company’s case can be summarised as follows:
- That sometime in October 2018, it was brought to the attention of the Company that the claimant had acted in breach of his express and or implied duties to the Company wherein he was engaged in external businesses which were in direct competition with the Company.
- The conduct of the claimant amounted to a conflict of interest which the Company deems as Major Misconduct pursuant to the Employee Handbook and Standard Operating Procedures of the Company.
- The claimant’s letter of appointment expressly prohibits the claimant from engaging in any other business without the prior written consent of the Company. The claimant did not secure the Company’s written consent.
- It was revealed upon investigation that the claimant was engaged in providing external medical services to the public namely physiotherapy and rehabilitation. He was found to have involved in the employment with an entity known as UREHAB Sdn Bhd.
- UREHAB had entered into a memorandum of understanding (MOU) with Universiti Teknologi Mara and this event was publicized in the social media platform, Facebook. The claimant was seen as representing UREHAB as a signatory of the MOU with Universiti Teknologi Mara.
- In view of the above, COW1 (General Manager, Diagnostic & Allied Health Services) met the claimant on the 11.2018 where the claimant was informed of his business involvement with UREHAB.
- The claimant having admitted his involvement and business relationship with UREHAB, informed COW1 that instead of going through the entire disciplinary process, would prefer tendering his resignation.
- As the Company had not determined any course of action at this stage, COW1 informed the claimant that this matter will be referred to the HRD for further investigation. At the conclusion of the meeting between the claimant and COW1, the claimant was still of the view that he intend not to go through the disciplinary process.
- On the 26.11.2018, a meeting was scheduled by COW1 with the claimant in which meeting COW1 showed the claimant a “Misconduct Form” which recorded the Company’s discovery of the claimant’s external business activities.
- Having perused the “Misconduct Form”, the claimant appended his signature as acknowledgment of the contents therein and this “Misconduct Form” was then extended to the HRD.
- The HRD upon receipt of this “Misconduct Form” on the same day, scheduled a meeting between the claimant and the HRD officers comprising COW2 (Director of Human Resource Management) and another two officers of the same department.
- During the meeting between the claimant and the HRD officers, explanation was given to the claimant about his involvement in external business with proof of such involvement which will entail disciplinary process against the claimant.
- In the meeting with the HRD officers, the claimant then informed that instead of going through the disciplinary process, he would prefer to tender his resignation.
- The HRD officers also informed the claimant that in the event the claimant intends to continue serving the Company, the claimant should leave the external business. The Company gave the claimant the liberty to make his own decision.
- After this meeting, the Company officers left the meeting room to allow the claimant to deliberate his next course of action. When the HRD officers returned to the meeting room, the claimant enquired from the officers the procedure for tendering his resignation notice.
- Subsequently on the same day the claimant tendered his resignation letter dated 26 November 2018 and this was accepted by the Company which then issued a letter of “Acceptance Of The Resignation Letter And Agreement For Early Release From Employment” dated 26.11.2018.
- The Company denies (i) all the allegations of the claimant which purportedly resulted in the alleged forced resignation of the claimant; (ii) that the cliamant was interrogated by the HRD officers; (iii) the claimant was blocked from leaving the room.
- On the claimant’s assertion that there were no show cause letter or domestic inquiry undertaken against the claimant, the Company states that before the Company could undertake the usual disciplinary procedures, the claimant had tendered his resignation and that too was to avoid the disciplinary action that may ensue.
- The claimant’s conduct in tendering his resignation letter in avoidance of disciplinary action does not amount to a forced resignation. The claimant was not dismissed albeit by way of forced resignation.
The Burden Of Proof In Cases Of Forced Resignation
- The case of Weltex Knitwear Industries Sdn Bhd v. Law Kar Toy & Anor  4 MLRH 774 is relevant on the role of this Court when the dismissal itself is disputed by the Company. The Cour held “Next is the burden of proof on the issue of forced resignation raised by the first Respondent. The law is clear that if the fact of dismissal is not in dispute, the burden is on the company to satisfy the court that such dismissal was done with just cause or excuse. This is because, by the 1967 Act, all dismissal is prima facie done without just cause or excuse. Therefore, if an employer asserts otherwise the burden is on him to discharge. However, where the fact of dismissal is in dispute, it is for the workman to establish that he was dismissed by his employer. If he fails, there is no onus whatsoever on the employer to establish anything for in such a situation no dismissal has taken place and the question of it being with just cause or excuse would not at all arise.”
- In view of the above case and anchored on the ground of forced resignation, it is upon the claimant to prove his case that he had been dismissed albeit by way of a forced resignation. The burden of proof thus had now shifted to the claimant.
- In the case of Bata (M) Bhd v. Normadiah Abu Suood  1 MELR 383 the Industrial Court had the occasion to state this element that the claimant need to prove in the following manner: “Now, industrial tribunals have consistently held that a “forced resignation” is a dismissal: See Scott v. Formica Ltd  IRLR 105; Spencer Jones v. Timmens Freeman  IRLR 325. It has also been held that the use of persuasion by an employer to obtain an employee’s resignation may be a dismissal: see Pascoe v. Hallen & Medway  IRLR 116. Again that a resignation will be treated as a dismissal if the employee is invited to resign and it is made clear to him that, unless he does so, he will be dismissed: see East Sussex Country Council v. Walker  7 ITR 280.
- What amounts to a forced resignation was also clearly stated by the Industrial Court in the case of Harpers Trading (M) Sdn Bhd Butterworth And Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan  2 MELR 167: “3. It is a well-established principle of industrial law that if it is proved that an employer offered the employee the alternatives of “resign or be sacked” and, without anything more, the employee resigned, that would constitute a dismissal. The principle is said to be one of causation – the causation being the threat of the sack. It is the existence of the threat of being sacked which causes the employee to be willing to resign. But where that willingness is brought about by some other consideration, and the actual causation is not so much the sacking but other accepted considerations in the state of mind of the resigning employee, then it has to be said that he resigned voluntarily because it was beneficial to him to do so, that then there has therefore been no dismissal.”
- This court must also state here that there are occasions where an employee may feel that he had committed misconducts which he is fully aware to be very serious in nature upon discovery by the Company and that in the event the Company proceeded with disciplinary action, it may very likely lead to a dismissal and a subsequent bad record. In order to avoid this disciplinary action, the employee may even choose to tender his resignation. As such where an employee tenders his resignation in order to avoid any disciplinary action, that resignation of the employee cannot be taken to mean that he was forced to resign. This situation was well illustrated in the case of Mazli Mohamed v. SAP Holdings Berhad  MELRU 47 where the Industrial Court had the opportunity to state that: “In the court’s view the company merely indicated to him that he will face disciplinary actions for the alleged misconducts. However, the claimant himself opted to resign. Secondly, the court is of the view that it is not unusual for an employer who is faced with an employee who had allegedly committed serious misconduct to be called in and told of the company’s dissatisfaction with the said employee. Further the court is of further the view that the claimant may be told of the consequences of the show cause letter and that is why the issue of resignation may well crop up. Thirdly, the court is of the opinion that the claimant knew the effect of the show cause letter and that is why at the material time he thought it would be in his interest to resign. Fourthly, in this case, the court feels that maybe the claimant was told that if he does not leave, the company would take disciplinary action against him. In the court’s view although these may amount to inducements and even threats but the court is constrained to find that they do tantamount to a “resignation or be sacked” ultimatum.”
Evaluation Of Evidence And The Findings Of This Court
- This Court had considered the claimant’s evidence. In summary, the claimant’s evidence suggests to this Court that on the 26.11.2018 the HR officers had given the claimant an ultimatum to either resign with a 24 hours’ notice or face dismissal forthwith on the same day with the claimant being escorted out by the auxiliary police officers. This ultimatum was pursuant to the HR officers interrogating the claimant in a closed door room. The claimant was accused of violating the Company rules. The claimant was accused of stealing patient data of the Company and also soliciting the Company’s patients. The claimant was not allowed to leave the room until he signed the letter of resignation. The claimant was also threatened with a bad record in the event of a dismissal. The cumulative conduct of the HR officers had place tremendous pressure and inducement on the claimant and the claimant under duress, was left with no other choice but to tender his resignation on the same day.
- The Company’s witness COW2 who was present in the room when the meeting was held between the claimant and the HR officers on the 26.11.2018 gave evidence denying all the allegation of threat, inducement or ultimatum for the claimant to resign or face forthwith dismissal. All that was said by the HR officers was that the Company had received reports that the claimant had engaged in external business with UREHAB that was in conflict of interest with the Company’s interest by showing evidence to the effect. As the claimant admitted all that was alleged by the HR officers, COW2 then explained that a disciplinary procedure to thoroughly investigate the claimant’s conduct including a domestic inquiry against him may follow. COW2 further explained that in the event the claimant intends to continue serving the Company, he should then leave his external business. In the meeting COW2 left the decision to the claimant to choose to serve the Company or proceed with his external business without any suggestion to the claimant with an ultimatum to resign to be dismissed.
- The evidence before this Court on the events that transpired on the 26.11.2018 clearly shows that there are two versions as correctly pointed out by the learned counsel for the Company. This Court must emphasise here that the claimant was the sole witness for his case and there are no contemporaneous documents to support the claimant’s version. The evidence in support of the claimant’s case before this Court is purely the oral evidence of the claimant of the events that purportedly transpired on the 26.11.2018 leading to the alleged forced resignation of the claimant. This does not necessarily mean that the claimant is not telling the truth or his version in not believable. However, this Court is now tasked to compare the claimant’s version with the Company’s version to determine which is a more credible and believable version.
- Having perused COW2’s evidence, this Court must conclude that there is nothing suspicious about the evidence of this witness neither is this Court convinced that the claimant was able to prove that COW2 was not telling the truth. In fact, COW2’s evidence is convincing on the event that transpired on the 26.11.2018 which was supported by the evidence of COW1.
- The claimant had not shown any credible proof or tendered any evidence that is able to demonstrate to this Court that either COW1 or any other officers of the Company had forced the claimant to resign failing which the claimant will be dismissed forthwith. The claimant had also failed to show that the HR officers had induced the claimant to resign by their conduct on the 26.11.2018. There is no evidence of duress
- The claimant’s post resignation conduct also does not support the claimant’s version that he was forced to resign by the HR officers. If it is true that the claimant was forced to resign and that the claimant was prevented from leaving the room until he prepared and signed the resignation letter, the claimant after tendering the resignation letter and leaving the room, could have still availed the opportunity to notify the Company by various means of the improper conduct of the HR officers. If the claimant had done so, at least this Court will have some supporting evidence to view the claimant’s version in a more believable manner. It is also noteworthy that the claimant was issued a letter by the Company on the same day he tendered his resignation letter, accepting his resignation but the claimant did not do anything thereafter. The claimant could have simply protested the alleged forced resignation by responding to the letter dated 26.11.2018 from the Company by stating that he was prevented from leaving the room until he tendered his resignation letter and on account of that prohibition from leaving the room, he tendered his resignation letter involuntarily.
- This Court had also considered the evidence of the Company on the alleged misconduct of the claimant engaging in a similar business which the Company carries out without getting the approval or consent of the Company. The evidence of the Company is so compelling that in the event a disciplinary proceeding was conducted against the claimant, the Company would have most likely dismissed the claimant. No Company can tolerate an employee who engages in a business which is in direct competition with the Company’s core business and which was done so without the consent of the Company. And if the Company had dismissed the claimant on account of this misconduct, this Court too would have no hesitation to conclude that such a dismissal was one with just cause or excuse.
- As the claimant is unable to prove that there was a forced resignation, the issue of the Company dismissing the claimant without just cause or excuse does not arise and need not be determine herein. Claimant’s claim hereby dismissed.
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