THE COURT’S FINDINGS AND REASONS. (i) Whether there is a dismissal on the facts [37] It is the Claimant’s case that he was forced into executing the Termination Agreement wherein he was purportedly given 2 options by COW-2, i.e. either to sign a mutual termination agreement or face a domestic inquiry. [38] The Company on the other hand contends that the Claimant had voluntarily entered into a mutual separation agreement, i.e. the Termination Agreement dated 29 January 2019. The Company further contends that no threats whatsoever were made by them towards the Claimant in order to force him to execute the said Termination Agreement. [39] Counsel for the Company submits that it is imperative that there must be evidence of a threat of termination and that the lack of such an ultimatum, i.e. ‘resign or be terminated’, would necessarily destroy the basis of the Claimant’s case. Counsel relied on the case of Harpers Trading (M) Sdn. Bhd., Butterworth v. Kesatuan Kebangsaan Pekerja-Pekerja Perdagangan [1988] 2 ILR 314; [1988] 2 MELR 167 wherein the learned Industrial Court Chairman, Dato’ Xxxx Xxxx Wee, held:- “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”. (Emphasis added) [40] The Company contends that there were no offers or requests made for the Claimant to resign. The Company however admits that they did notify the Claimant that a domestic inquiry will be commenced and that the Claimant can defend himself and prove that the allegations purportedly made by the CSP Committee were untrue. The Company further contends that the right to commence a domestic inquiry against the Claimant is the management prerogative of the Company and that the punishment of termination cannot be assumed purely on the basis that the domestic inquiry was commenced. [41] Counsel for the Company r...
THE COURT’S FINDINGS AND REASONS. (i) Whether there was a dismissal on the facts
