Mohd Razif Bin Zainal Abidin v 1. ) Perodua Sales Sdn Bhd 2. ) MAHKAMAH PERUSAHAAN MALAYSIA

w-01a-478-08-2021 Court of Appeal (Mahkamah Rayuan) 1 December 2024 • W-01(A)-478-08/2021 • 56 min read
17 cases cited (0 SG, 17 foreign)

Catchwords

Constructive Dismissal - sale of the business to a new associate company in which the employer has substantial shareholding - whether an employee has a equally valid option to remain with current employer instead of having to resign from their permanent position to join the new company for a 2-year fixed term employment contract when nothing is mentioned about the recognition by the new company of the years of service with their current employer - whether the requirement of “reasonableness” has been incorporated into the Transfer Clause as a term in the contract of employment - the 3 appellants who opted to remain with the employer were transferred from Rawang to Kota Kinabalu, Kuching and Kuala Trengganu -whether the transfer was “unreasonable” in the context and circumstances of the case - whether the appellants had been victimized for opting to remain and that the transfer amounted to a fundamental breach of the term of the contract requiring the employer to act reasonably - whether the employer should have acted reasonably in a secondment of employees to the new company as the employer had agreed to keep their positions vacant for them after the 2-year contract is over subject to availability- whether the transfer exercise was done mala fide with a 3-day Notice of Transfer to report for work in the new locations - whether the appellants had discharged their legal burden to prove constructive dismissal - whether the employer had discharged the evidential burden to prove that there was a need for the appellants’ services in the locations that they were being transferred to and whether there no vacancies for them in other nearby branches of the employer - whether the Court may take cognisance of illegality though not pleaded in that there was no work permit applied for and obtained when 2 of the appellants were required to report to work in East Malaysia.

Judges (3)

Azhahari Kamal bin Ramli Coram Lee Swee Seng Delivered Wan Ahmad Farid bin Wan Salleh Coram

Counsel (6)

Lee Hishammuddin Allen & Gledhill Firm Ramakrishnan & Associates Firm Chong Yue Han Counsel Respondent Mohan Ramakrishan Counsel Appellant Nurul Aisyah Hassan Counsel Respondent Shariffullah Majeed Counsel Respondent

Parties (3)

MAHKAMAH PERUSAHAAN MALAYSIA Respondent Perodua Sales Sdn Bhd Respondent Mohd Razif bin Zainal Abidin Appellant

Statutes Cited

Evidence Act 1950 (Cap 56)
Federal Constitution
Art 6
Industrial Relations Act 1967 (Cap 177)
s 20

Cases Cited (17)

UK (6)
[1930] AC 271 [1939] 1 All ER 513 [1953] 1 All ER 645 [1969] 3 All ER 1126 [2009] EWCA Civ 156 [2014] UKSC 55
MY (11)
[1988] 1 CLJ 45 [1995] 1 MLJ 308 [1995] 2 AMR 1601 [1995] 2 CLJ 748 [1995] 2 MLJ 317 [2000] 3 AMR 3009 [2000] 3 CLJ 625 [2000] 3 MLJ 714 [2000] 4 CLJ 77 [2015] 5 MLJ 619 [2024] MLJU 840

Judgment

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Source: eJudgment (w-01a-478-08-2021)