An employee was downgraded after a Domestic Inquiry and she then claimed Constructive Dismissal. Can she?
SUNWAY UNIVERSITY COLLEGE V MAHKAMAH PERUSAHAAN MALAYSIA & ANOR  1 LNS 292
- Sherly George (“Employee”) was employed by Sunway University College (“Employer”) as a lecturer on 1 June 1995 and subsequently rose through the ranks to become coordinator programme.
- Employee had, on 10 September 2007, organised a project coordination meeting on 10 September 2007 in the meeting room of the School of Computer Technology (“PC Meeting”). However, Employee was upset that Dr Wong [her immediate superior] had invited one Ms Shanta (“Shanta”) along with him to the PC Meeting.
- Employee had asked Dr Wong as to the reason why Shanta was present at the PC Meeting and Dr Wong had explained that he had brought Shanta along to ensure continuity so that Shanta as Heads of Operations could follow through on issues raised at the PC Meeting during his absence.
- Employee was unhappy with the explanation and stated that Shanta should not be present at the PC Meeting and that Dr Wong should have consulted her before he made the decision to invite Shanta to the PC Meeting.
- The Employer stated that the Employee then left the meeting room and after she returned, she insisted that Shanta should not be present.
- Dr Wong and Shanta then left the meeting room and Dr Wong went to inform Professor Jarlath [VC of the University] on the incident and they both returned to the meeting room.
- Professor Jarlath asked the Employee as to her authority to question Dr Wong on Shanta’s presence. Professor Jarlath also informed the Employee that Dr Wong, as the Acting Head of the School of Computer Technology had the right to invite Shanta.
- The Employer stated that despite the explanation from Professor Jarlath, the Employee insisted that Dr Wong should have informed her first.
- On 11 September 2007, the Employer issued a Notice of Suspension to the Employee with full pay.
- On 21 September 2007, the Employer issued a show cause letter to the Employee with four (4) allegations of misconduct in relation to her acts of defiance and insubordination towards her immediate superior, Dr Wong and Professor Jarlath.
- The Employee replied to the show cause letter, denying all allegations of misconduct against her.
- On 10 October 2007, a domestic inquiry was conducted where Employee was found guilty of acts of defiance and insubordination towards her immediate superior, Dr Wong and Professor Jarlath.
- Following the decision of the domestic inquiry, the Employee was downgraded from her current position as coordinator programme to senior lecturer and was transferred from the administration to the academic section of the company, but her salary remained unchanged.
- The Employee appealed against the downgrading and transfer but was rejected by the Employer. Following the rejection, the Employee wrote to the Employer to reinstate her to her former rank and position, failing which she would claim constructive dismissal.
- On 17 December 2007, the Employee pleaded constructive dismissal and walked out of the company on 19 December 2007.
- The matter was then referred to the Industrial Court.
- Having heard the evidence from persons present at the PC Meeting and the contemporaneous documents, the Industrial Court found that the charges of insubordination against the Employee were substantiated.
- The Industrial Court further held that the decision to downgrade the Employee pursuant to the finding of guilt could not be the subject of a claim for constructive dismissal. The Employee’s claim was accordingly dismissed.
- The Employee challenged the decision of the Industrial Court at the High Court.
- The High Court allowed the Employee’s application and found that the Employee had proved her claim for constructive dismissal.
- The Employer appealed to the Court of Appeal.
COURT OF APPEAL DECISION – APPEAL ALLOWED!
The Court of Appeal allowed the appeal and held as follows:
The findings of the Industrial Court were arrived at based on the evidence and the credibility of witnesses. Any reasonable tribunal similarly circumstanced would have arrived at the same conclusion that the Employee had failed to prove her case of constructive dismissal.