Sheikh Amer bin Hussein v Pengurusan Air Selangor Sdn Bhd 

(High Court Judicial Review Application No. WA-16A-45-04/2024) 

This dispute arises from a claim of constructive dismissal brought by an Employee who resigned following a denied request to be transferred to a different work location. 

The Employee, a managerial-level staff member, was transferred to the Company’s headquarters for operational reasons. Several months after reporting to duty at the headquarters, the Employee sought a transfer to another branch, citing health complications arising from a long-standing back injury. He claimed that the longer commute exacerbated his condition. The Company, however, denied the request on grounds of unavailability of vacancies. The Employee subsequently resigned, issuing a resignation letter that expressed gratitude for the opportunity to serve the Company, stating “Saya juga ingin mengucapkan ribuan terima kasih di atas kerjasama sepanjang saya berkhidmat degan Syarikat ini”. 

Before the Industrial Court, the Employee contended that his resignation was not voluntary, but rather a consequence of the Company’s refusal to consider his health circumstances. He argued that this amounted to constructive dismissal. 

Decision of the Industrial Court 

The Industrial Court, in Award No. 425 of 2024, found in favour of the Company and dismissed the Employee’s claim of constructive dismissal. In arriving at its decision, the Industrial Court took into account the following: 

(a) As an employer, the Company had the authority to transfer employees. The Employee’s employment contract clearly stated that he was subject to transfers. 

(b) During his tenure of employment with the Company, the Employee had accepted various transfers, and the Company had previously accommodated his appeals against transfer orders. 

(c) Mere transfer decisions do not constitute constructive dismissal unless done in bad faith, which was not the Employee’s position. He acknowledged that his expertise and experience were needed at the Company’s headquarters. The transfer would also be beneficial to his career development. Accepting the Employee’s argument would unduly restrict the Company’s ability to manage its operations effectively. 

(d) The Company’s actions, which were tantamount to a fundamental breach of the terms and conditions of the Employee’s employment contract, should have been expressly documented in the Employee’s resignation letter, especially considering that the Employee was in a managerial position, and not a ’rank-and-file’ employee. The absence of any mention of constructive dismissal by the Employee was fatal to the Employee’s case. 

(e) The Employee’s resignation letter, including the observation of his notice period and expressions of gratitude, suggested a tone of maturity and conciliation rather than resentment. The language used indicated a voluntary resignation. 

(f) The Employee’s resignation was also motivated by other personal circumstances, such as the need to take care of his unwell wife. 

(g) The Employee should have taken immediate steps to resign if the Company’s actions were fundamental breaches warranting a claim of constructive dismissal. The fact that he tendered a letter of resignation with redolent of respect and continue working through his three-month notice period undermines his claim.