14/4-2299/19

INDUSTRIAL COURT OF MALAYSIA

CASE NO: 14/4-2299/19

BETWEEN

TSUNG FOONG CHEONG @ MARGARET

AND

AXIATA GROUP BERHAD

AWARD NO.: 1822 OF 2023

Before : Y.A. Puan Eswary Maree

- Chairman

Venue : Industrial Court Malaysia,

Kuala Lumpur

Date of Reference : 04.12.2019

Dates of Mention : 16.01.2020; 20.02.2020; 03.09.2021;

10.09.2021; 22.10.2021 & 14.04.2023

Dates of Hearing : 30.05.2022; 31.05.2022; 10.06.2022;

31.10.2022; 07.12.2022; 08.12.2022;
14.12.2022 & 20.01.2023

Representation : Mr. Deepak Mahadevan &

Ms. Faeza Suraya Roselan
(Counsels for the Claimant)
Messrs Azmi Fadzly Maha & Sim

Dato’ Thavalingam C. Thavarajah &

Mr. Sebastian Tay Hanxin
(Counsels for the Company)
Messrs T. Thavalingam & Co.

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REFERENCE

This is a reference under Section 20(3) of the Industrial Relations Act 1967 (1967 Act)
by the Honourable Minister of Human Resources, emanates from the dismissal of
Tsung Foong Cheong @ Margaret (“the Claimant”) by Axiata Group Berhad
(“the Company”) on 24.07.2019.

AWARD
PREAMBLE

[1] This Court considered all the notes of proceedings, pleadings, the relevant oral
and documentary evidences and the cause papers in handing down this Award. The
following documents were filed before this Court:-

(i) The Claimant's Statement of Case dated 30.01.2020;

(ii) The Company's Statement in Reply dated 27.02.2020;
(iii) The Claimant's Rejoinder dated 13.03.2020;
(iv) The Claimant's Bundle of Documents : CLB-1;
(v) The Claimant’s Supplementary Bundle of Documents : CLB-2
(vi) The Claimant’s Supplementary Bundle of Documents (No. 2) : CLB-3
(vii) The Claimant’s Supplementary Bundle of Document (No.3) : CLB-4
(viii) The Claimant’s Supplementary Bundle of Documents (No.4) : CLB-5
(ix) The Company’s Bundle of Documents : COB-1
(x) The Company’s Supplementary Bundle of Documents : COB-2
(xi) Memorial Announcement for Mr. Saran : CO-3
(xii) The Claimant’s Witness Statement : CLWS-1A;
(xiii) The Claimant’s Supplementary Witness Statement : CLWS-1B
(xiv) The Witness Statement of Leong Kok Chew : COWS-1
(xv) The Witness Statement of P. Ramakrishnan a/l Potharaju : COWS-2A
(xvi) The Supplementary Witness Statement of P. Ramakrishnan a/l Potharaju
: COWS-2B
(xvii) The Witness Statement of Nurulhida binti Anwar : COWS-3
(xviii) The Witness Statement of Darke bin Mohamed Sani : COWS-4
(xix) The Witness Statement of Mohd Radhiff bin Mohd Ali : COWS-5
(xx) The Witness Statement of Siti Hidayah Zainuddin : COWS-6

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(xxi) The Claimant’s Written Submission dated 24.03.2023;

(xxii) The Company’s Written Submission dated 21.04.2023;
(xxiii) The Claimant’s Written Submission in Reply dated 24.05.2023; and
(xxiv) The Company’s Written Submission in Reply dated 24.05.2023

[2] The dispute before this Court is the claim by the Claimant that she had been
dismissed from her employment without just cause or excuse by the Company on
24.07.2019. In this case the Claimant alleges that she was constructively dismissed
by the Company.

THE CLAIMANT’S CASE

[3] The Claimant commenced employment with the Company on 01.11.2012 as a

Contract Management Manager; a Grade G4 designation that is equivalent to Level
18. Subsequently, she received several promotions from the Company.

[4] At the time of the constructive dismissal, the Claimant was holding the position
of Contract Management Lead, which is a Level 20 designation, with a last drawn
salary of RM21,480.00 per month and fixed allowance of RM300.00 per month.

[5] The job scope of the Claimant as the Contract Management Lead included, but
were not limited to, the following:-

(i) developing and obtaining approval from the Company’s legal department
for category-specific contract templates and alternative clauses;
(ii) liaising with Legal to ensure that all contract templates are up to date;
(iii) liaising with Operating Company (OpCo) Legal to ensure that OpCo
Contracts of Adherence and Group Master Agreements are aligned;
(iv) supporting sourcing managers;
(v) developing and delivering training to sourcing managers;
(vi) acting as Master User for Ariba Contract Manager to manage access to
the system and ensure that users in the Company understand the
system; and
(vii) preparing management reports on Ariba Contract Manager.

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[6] On 22.06.2017, COW-1 had emailed the Claimant to inform her about the
change in her job scope in view of the internal restructuring of APC. As a result, the
Claimant would be reporting to COW-2, the Head of APC at the material time, instead
of Mr. Peter Chen, the Head of Capabilities & Enablement. With respect to the changes
to the Claimant’s job scope as the Contract Management Lead, her new redesigned
role will be comprised of:-

(i) leading contract management for Corporate Centre (CC) Procurement

as the point of contact between Procurement and Group Legal;
(ii) leading contract management for APC group sourcing projects, if
required by the respective sourcing teams;
(iii) acting as Master User for Ariba Contract Management module and
driving utilisation of Ariba Contracts Manager; and
(iv) supporting and advising OpCo on procurement matters, especially in
areas related to contract management.

All other terms and conditions of the Claimant’s employment with the
Company remained unchanged.

[7] On 05.07.2017, the Claimant had emailed COW-1 and COW-2 to confirm her
acceptance to her redesigned role as Contract Management Lead. The Claimant was
to begin reporting to COW-2 from 01.08.2017 onwards.

[8] In or around May 2018, COW-2 had informed the Claimant that her reporting
line would be changed to Saravanan Moorthy (Saran). COW-2 also informed the
Claimant that he had delegated his authority to Saran to approve the Claimant’s leaves
and mobility at work.

[9] On 22.01.2019, the Claimant had submitted her 2018 EPP to Saran for his
review and received his review thereafter on 20.02.2019. For the Claimant’s overall
performance and behaviour, Saran had given the Claimant a rating of ‘Well Done’.

[10] On 19.04.2019, the Claimant was caught by surprise when COW-2 met with
her to provide her with the 2018 Ignite Performance Profile and bonus payout letter

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dated 18.04.2019 (Bonus Payout Letter). In the Bonus Payout Letter, the Claimant’s
overall EPP had been rated as ‘Need Improvement’.

[11] On 23.04.2019, the Claimant, in an attempt to seek a solution, had emailed

COW-4 to relay her grievances relating to the Performance Profile rating of ‘Need
Improvement’. The Claimant then met with COW-4 on 29.04.2019 to discuss her
grievances, after which COW-4 delegated the management of the Claimant’s
grievances first to Ku Farihan Ku Jaafar, and then to Linden Leong Siew Chun (Linden).

[12] On 10.05.2019, the Claimant met with Linden, to discuss the unfair appraisal
of her 2018 EPP by Saran and COW-2 (APC Management). Linden subsequently
arranged for a meeting with the Claimant and the APC Management on 29.05.2019.
The issues discussed during the said meeting were summarised by the Claimant in her
email to Linden and COW-4 on 03.06.2019.

[13] The Claimant’s grievances were subsequently escalated to the Company’s

senior management, who were tasked with reviewing the same. On 07.06.2019,
Linden emailed the Claimant to inform her of the Senior Management’s findings,
among others the Claimant’s EPP rating of ‘Need Improvement’ was maintained.

[14] On 27.06.2019, Saran had emailed the Claimant for the purpose of setting the
2019 KPI.

[15] On 02.07.2019, the Claimant had responded to Saran’s email, stating that the
2019 KPI is unachievable for her. The Claimant was still being ousted from her job
functions and did not have new projects and/or contracts coming in, which would
prevent her from performing her duties and fulfilling the 2019 KPI. As such, the
Claimant would not be able to finalise the 2019 KPI.

[16] On 08.07.2019, a meeting was held between the Claimant, the APC
Management and Linden to discuss the 2019 KPI. During the meeting, the Claimant
again explained that she would not be able to achieve the 2019 KPI in view of her
circumstances as detailed above.

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[17] There was no conclusion nor agreement to the 2019 KPI as the Claimant had
maintained that she would not be able to agree to something which is unrealistic and
unachievable as it would mean inevitable failure in meeting the 2019 KPI on the
Claimant’s part.

[18] On 09.07.2019, the Claimant had emailed a Notice of Grievances to the

Company. The Claimant gave the Company fourteen (14) days to rectify the Claimant’s
grievances, failing which she will treat the Company’s conduct as a breach of the
fundamental terms of her contract of employment and pursue the appropriate
remedies accorded to her by law.

[19] The Claimant had been pushed out of her job functions as Contract
Management Lead for four (4) consecutive months and continuing.

[20] By setting the 2019 KPI which was unachievable and unrealistic, the Company
set the Claimant up to fail in the performance of her 2019 duties, making it a certainty
that she would be put on PIP.

[21] During the 2019 KPI discussion held on 08.07.2019, the Claimant requested for
her job and her Level 20 work to be restored and for the APC Management to stop
ousting her from her job. In response, Saran stated that the Claimant would only be
restored to her original job if she accepted the Company’s 2019 KPI set for her. The
Claimant contends that the Company had oppressed, imposed undue pressure and
duress for her to accept the unachievable 2019 KPI.

[22] Due to the Company’s failure to respond to the Claimant by 23.07.2019, the
Claimant had subsequently emailed her Letter of Resignation and Notice of
Constructive Dismissal (Notice of Constructive Dismissal) to COW-4 on 24.07.2019 at
1.17 pm.

THE COMPANY’S CASE

[23] The Claimant first commenced employment with Axiata Management Services
as Contract Management Manager on 01.11.2012.

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[24] On 01.03.2015, the Claimant was transferred to Group Procurement of the

Company whereupon her job title was Senior Specialist, Contract Management.

[25] The Claimant was informed on 13.03.2015 that her position title had been
confirmed as Contract Management Lead.

[26] The Claimant was then promoted from Job Grade “E19” to “E20” effective
01.04.2015 as Contract Management Lead.

[27] Based on her job description, the Claimant’s scope of work as Contract
Management Lead included the following:-

(i) Developing and obtaining approval from the Legal Department (“Legal”)
for category-specific contract templates;
(ii) Liaising with Legal to ensure that all templates are kept up to date;
(iii) Working with the legal department of the Operating Companies
(“OpCo”) to ensure that the OpCo Contracts of Adherence and Group
Master Agreements are aligned;
(iv) Supporting sourcing managers;
(v) Developing and deliver training for sourcing managers;
(vi) Acting as the Master User for Ariba Contract Manager; and
(vii) Preparing management reports.

[28] Sometime in January 2017, there was a disagreement between the Claimant
and her then superior, Mr. Peter Chen pertaining to the behaviour assessment in her
performance appraisal for the year 2016.

[29] In an email dated 12.01.2017 Mr. Peter Chen had observed several areas for
the Claimant to improve on, namely: (page 17 of COB-1)

(i) The Claimant’s reluctance to take on crucial tasks which were within her
capability/competence,
(ii) The Claimant’s insistence on having her job description updated before
considering taking up an additional task,

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(iii) The Claimant’s repeated claims that she was unable to adequately
accomplish her tasks due to purportedly being kept out of the loop, lack
of transparency and withheld information,
(iv) Hands-off approach in the final stage of the closure of the Ncell LTE
SOW discussions.

[30] After several discussions between the Claimant, Mr. Peter Chen and COW-2, it
was agreed that the Claimant would report to COW-2 based on a “redesigned” role.

[31] During a meeting on 15.06.2017, it was explained to the Claimant that her role
as Contract Management Lead would be changed and redesigned to cater to the needs
of the business due to an internal restructuring of the Axiata Procurement Centre
(APC). The Claimant’s redesigned role, which she agreed to, was as follows:-

(i) Leading the contract management for Corporate Centre (“CC”)

Procurement as the single point of contact between Procurement and
Group Legal, which will include preparing contract templates,
negotiating/drafting contracts with suppliers and obtaining final
signatures of contracts;
(ii) Leading the contract management for APC Group sourcing projects, if
required by the respective sourcing teams;
(iii) Acting as the Master User for the Ariba Contracts Management module
and driving utilization of the Ariba Contracts Manager; and
(iv) Supporting and advising OpCos on procurement matters especially in
areas relating to contract management.

[32] The Claimant officially reported to COW-2 effective 01.08.2017. Thereafter,

from May 2018 onwards, the Claimant reported directly to Mr. Saran with COW-2 as
her next line manager.

[33] Following the year-end performance appraisal for the Financial Year 2018
(“FY2018”), the Claimant was given a performance rating of “Needs Improvement”

[34] Dissatisfied with the rating she had received, the Claimant escalated her
grievances to COW-4 on 23.04.2019.
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[35] After discussions between the Claimant, Mr. Saran and COW-2 which were
facilitated by the Human Resources Department to ensure that all parties were duly
given the opportunity to be heard, the Company’s Senior Management decided to
maintain the Claimant’s “Needs Improvement” rating.

[36] On 09.07.2019, the Claimant submitted Notice of Grievance dated the same
day wherein she raised various issues pertaining to her FY2018 rating, purportedly
being ousted from her job function and given unachievable KPIs for 2019.

[37] On 24.07.2019, the Claimant submitted her resignation letter and claimed
constructive dismissal vide Notice of Constructive Dismissal dated 24.07.2019. The
Company addressed the Claimant’s Notice of Grievance vide an email dated
24.07.2019.

[38] On 25.07.2019, the Company issued a letter denying the allegations of

constructive dismissal and required her to report back to work immediately on the
same day (25.07.2019), failing which she would be deemed to have abandoned her
employment.

[39] The Claimant however maintained that she was allegedly constructively
dismissed and informed the Company on 25.07.2019 that she would not report back
to work.

[40] In response, the Company issued an Abandonment of Employment letter dated

29.07.2019 due to her abandonment of employment effective 25.07.2019. The
Claimant was also required to pay the Company a sum of RM64,440.00 being salary
in lieu of three (3) months’ notice and RM4,918.00 on account of the overpaid salary
for the period from 25.07.2019 to 31.07.2019.

THE LAW

ROLE AND FUNCTION OF THE INDUSTRIAL COURT

[41] The role of the Industrial Court under Section 20 of the Industrial Relations Act
1967 is succinctly explained in the case Milan Auto Sdn Bhd v. Wong Seh Yen

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[1995] 4 CLJ 449. His lordship Justice Mohd Azmi bin Kamaruddin FCJ delivering the
judgment of the Federal Court had the occasion to state the following:

As pointed out by this Court recently in Wong Yuen Hock v.

Syarikat Hong Leong Assurance Sdn Bhd & Another Appeal
[1995] 3 CLJ 344; [1995] 2 MLJ 753, the function of the
Industrial Court in dismissal cases on a reference under s.20 is
two-fold firstly, to determine whether the misconduct
complained of by the employer has been established, and
secondly whether the proven misconduct constitutes just cause
or excuse for the dismissal. Failure to determine these issues
on the merits would be a jurisdictional error...

LAW ON CONSTRUCTIVE DISMISSAL

[42] In Wong Chee Hong v. Cathay Organization Malaysia Sdn Bhd [1988]
1 CLJ 45; [1988] 1 CLJ (Rep) 298 His Lordship Tun Salleh Abas, LP delivering the
judgment of the Court had this to say:-

The common law has always recognized the right of an

employee to terminate his contract of service and therefore to
consider himself as discharged from further obligations if the
employer is guilty of such breach as affects the foundation of
the contract or if the employer has evinced or shown an
intention not to be bound by it any longer. It was an attempt to
enlarge the right of the employee of unilateral termination of
his contract beyond the perimeter of the common law by an
unreasonable conduct of his employer that the expression
"constructive dismissal" was used...

... When the Industrial Court is dealing with a reference

under s. 20, the first thing that the Court will have to do is to
ask itself a question whether there was a dismissal, and if so,
whether it was with or without just cause or excuse.
[Emphasis added]
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[43] In a constructive dismissal case it must be shown by the employee that the
employer:-

(i) By his conduct had significantly breached the very essence or root of the
contract of employment; or
(ii) That the employer no longer intends to be bound by one or more the
essential terms of the contract.

[44] And if the employer demonstrates the above, then the employee is entitled to
treat himself/herself as discharged from further performance of the contract. The
termination of the contract is then for reason of the employer's conduct thereby
allowing the employee to claim constructive dismissal.

[45] In the case of Anwar Abdul Rahim v. Bayer (M) Sdn Bhd [1998] 2 CLJ
197, the Court of Appeal further explained the ingredients of the constructive
dismissal where His Lordship Justice Mahadev Shanker, JCA opined:-

It has been repeatedly held by our courts that the proper

approach in deciding whether constructive dismissal has taken
place is not to ask oneself whether the employer's conduct was
unfair or unreasonable (the unreasonableness test) but
whether "the conduct of the employer was such that the
employer was guilty of a breach going to the root of the
contract or whether he has evinced an intention no longer to
be bound by the contract. (Also see Holiday Inn Kuching v.
Elizabeh Lee Chai Siok [1992] 1 CLJ 141 (cit) and Wong Chee
Hong v. Cathay Organisation (M) Sdn Bhd [1988] 1 CLJ 298 at
p. 94) [Emphasis added]

[46] It must be further stated here that the Claimant's case being one of constructive
dismissal, the Claimant must give sufficient notice to his employer of his complaints
that the conduct of the employer was such that the employer was guilty of a breach
going to the root of the contract or whether the employer has evinced an intention no
longer to be bound by the contract as stated in the case of Anwar Abdul Rahim
(supra). The sufficient notice is to enable the Company to remedy the defect if any.
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[47] In the case of Sahabudin U Noor Muhammad & Yang Lain v. Westports
Malaysia Sdn Bhd/Kelang Multi Terminal Sdn Bhd [2014] 4 ILR 80 (Award
No. 943 of 2014) the Industrial Court held:-

The onus of proof is on the claimants to prove that they were

constructively dismissed. Once the claimants had proved that
they were constructively dismissed, the onus of proof shift to
the respondent to prove that their dismissals were with just
cause or excuse.

In constructive dismissal, the focus is on the employer's

conduct with respect to the employees concerned against the
backdrop of the employees' employment contract. The test for
constructive dismissal was whether the respondent had
breached a fundamental term of the claimants' contract of
employment which went to the root of the contract or had
evinced an intention not to be bound by the contract.
[Emphasis added]

[48] The burden in a constructive dismissal case is on the Claimant to prove, on a

balance of probabilities that she had been constructive dismissed by the Company.
The test for constructive dismissal as it stands is a test on contractual breach rather
than unreasonableness.

[49] The prerequisites that had to be established by the Claimant in order to

constitute constructive dismissal was set out in the case of Govindasamy
Munusamy v. Industrial Court Malaysia & Anor [2007] 10 CLJ 266:-

(a) That the company, by its conduct, had breached one or more of
the terms of the employment contract;
(b) That the terms which had been breached goes to the foundation
of the contract;

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(c) That the claimant, pursuant to and by reasons of the aforesaid

breach, had left the employment and not for some other reason;
and
(d) That the claimant left at an appropriate time soon after the
breach.

[50] If any of the above conditions are not established, then the Claimant’s claim
must, in law, fail.

[51] Once the prerequisites for constructive dismissal have been established by the
Claimant in a reference to a dismissal under Section 20 of the 1967 Act, the Court
moves into the second limb of inquiry to determine whether the Company had just
cause or excuse for the dismissal. Here the burden shifts upon the employer to do so.
(See Pelangi Enterprises Sdn Bhd v Oh Swee Choo & Anor [2004] 6 CLJ 157).

[52] Having taken cognizance of the law as it is set out above, this Court will now
move to the facts of this case for its determination. In doing so, this Court will now
move to the conduct of the Claimant, Company and the series of events that had led
the Claimant to now treat herself as constructively dismissed.

EVALUATION OF EVIDENCE AND THE FINDINGS OF THIS COURT

[53] The Claimant treated herself as constructively dismissed by the Company vide
the notice of constructive dismissal dated 24.07.2019.

[54] At the outset, this Court will refer to the case of Sanbos (Malaysia) Sdn Bhd
v. Gan Soon Huat [2021] 6 CLJ 700;[2021] 3 ILR 11 wherein the Court of
Appeal explained that in determining a claim of constructive dismissal, the Industrial
Court need to only consider the reasons stated in the letter of resignation and/or
constructive dismissal and any reasons not stated in the letter are irrelevant as
follows:-

[38] We are of the considered view that the learned High

Court Judge erred in reversing the decision of the
Industrial Court on the issue of constructive dismissal.
Our reasons are as follows. As stated in the authorities
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we cited earlier, an employee is only entitled to regard

himself as dismissed if there is a breach of the
fundamental terms of the contract of employment. In the
letter of resignation, the respondent only gave two
reasons for leaving employment, ie, the revision of sales
commission rate and the change in his area of sales
coverage which would reduce his monthly earnings.
Therefore, the only question that arises is whether these
two complaints amounted to a breach of the fundamental
terms of the employment contract. The other reasons he
advanced at the Industrial Court hearing are not relevant
as an employee cannot rely on reasons not given for
considering himself constructively dismissed.

[55] Based on the Claimant’s notice of constructive dismissal dated 24.07.2019, the
reasons/grounds stated by the Claimant in treating herself as constructive dismissed
by the Company can be summarized as follows:-

(i) 1st Ground – The Company’s failure to allow the Claimant to enjoy the
flexibility to work from home (WFH) and that the Claimant is not obliged
to attend all meetings which was invited to and non-attendance of the
meetings that are not relevant to her role not be factored into her KPI
performance and behaviour ratings.
(ii) 2nd Ground – The Company’s failure to grant the Claimant a fair
appraisal, failure to give the Claimant a clear description of her
performance and behavior shortcomings and failure to revise the
Claimant’s performance rating from “Needs Improvement” to “Well
Done” or “Outstanding” for FY2018.
(iii) 3rd Ground – The Company’s failure to reinstate the Claimant to perform
the leadership and supervisory role of a Level 20 employee and failure
to cease assigning tasks suited for a Level 18 employee.

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(iv) 4th Ground – Failure to reinstate the Claimant’s supervisory function,

managing and leading high value, complex contracts and participating
in Group wide special projects.
(v) 5th Ground – Failure to cease singling the Claimant out, bypassing her
role and excluding her from performing her job functions.
(vi) 6th Ground – Failure to waive the Claimant’s Performance and Behaviour
ratings for the Financial Year 2019 (FY2019) KPIs from January 2019
to the date her duties and responsibilities are fully restored to normal.

[56] I will also be cautious in adopting a wide interpretation of what conduct by the
employer that would constitute constructive dismissal wherein the Court of Appeal in
the case of Southern Investment Bank Bhd/Southern Bank & Anor v. Yap Fat
& Anor [2017] 3 ILR 433; [2017] MLJU 279, decided as follows:-

"[20] It is important, therefore, to be cautious in adopting a

wide interpretation of what conduct by an employer that
would constitute constructive dismissal because of the
danger of inviting a flood of employees who resign and
then claim to be constructively dismissed. The
paramount consideration is the requirement that the
breach must be so serious which goes to the root of the
contract and the employee cannot be expected to
continue with the contractual arrangement."
[Emphasis added]

(i) 1st Ground – The Company’s failure to allow the Claimant to enjoy the flexibility
to work from home (WFH) and that the Claimant is not obliged to attend all meetings
which was invited to and non-attendance of the meetings that are not relevant to her
role not be factored into her KPI performance and behaviour ratings.

[57] This Court finds that the Claimant had relied upon the 1st limb of the ground
merely based on what was allegedly told by COW-2 to her while handing over the
Bonus Payout Letter on 19.04.2019 but there was no documentary proof whatsoever
was produced by the Claimant to substantiate her contention. In fact, she did not raise

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the issue of she will not be allowed to WFH in her email dated 23.04.2019 in response
to the Company’s Bonus Payout Letter.

[58] Furthermore, it is apparent from the evidence tendered before this court that
the Claimant had never been banned from applying for WFH and COW-2 had
confirmed that he did not inform the Claimant that she was not entitled to WFH but
merely that she had to comply in accordance with the WFH policy.

[59] It is also obvious to this Court that the WFH flexibility was not a contractual
entitlement of the Claimant. The Claimant had confirmed during cross-examination
that her employment contract is silent as to WFH. For ease of reference, the Claimant’s
evidence in this regard is reproduced as follows:-

“Q : For constructive dismissal. So, Yang Arif, I now proceed, now I

will address the first ground, Margaret, the first ground. Can I
refer this Honourable Court, Yang Arif, to page 1 to 8 of COB-1?
If you look at page 1, look at COB1, page 1 to 8, the employment
contract. Page 1 to 8. Now, do you agree that this is your
employment contract dated 15/10/2012 and it contains the terms
and conditions of your employment?
A : Yes.
…
Q : Yes, sub question, Yang Arif, I just need to clear this so that
because we’re dealing with an experienced person, a qualified
person, so, I just want to, yes. So, you confirm that you are legally
trained with a law degree, am I correct?
A : Yes.
Q : Ok. So, that makes it easier for me to pose these kind of questions
because I asked you the word expressly contained. You know
what the express and implied terms, right?
A : Yes, it is not. Yes.
Q : So, is there an express term in the contract to make reference to
working from home?
A : No.”
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[60] The Claimant in fact went on to confirm that based on the Company’s WFH
policy, the WFH flexibility was discretionary to the Company when she admitted during
her cross-examination as follows:-

“Q : Now, if you refer to page 62 of that same document, page 62, do

you agree that it is expressly stated in the work from home policy
that, I quote, “occasional working from home is neither a
contractual or a statutory right and Axiata is under no obligation
to approve any request by an employee to work from home”. Do
you agree? This is expressly stated at page 62. This is not a trick
question, just look at page 62, under definition, the second line,
“occasional working from home is neither a contractual or a
statutory right and Axiata is under no obligation to approve any
request by an employee to work from home.” You agree?
A : Yes.
Q : Ok. So, I suggest to you therefore that the right to work from
home was not your contractual entitlement based on this
wording. It’s not your contractual entitlement the right to work
from home. Based on your contract in this wording, it is not a
contractual entitlement, agree? You’re a lawyer, Margaret, so,
simple question. Looking at this statement here, it is not a
contractual entitlement.
A : Yes, it states neither a contractual nor a statutory right, yes.
Q : Ok. Alright, so, it states there, your answer is it states so. Now, I
suggest to you, Margaret, that the Company has the discretion to
allow you to work from home based on this clause, agree?
A : Yes.”

[61] This Court finds that based on the Claimant’s admissions alone, it is patently
clear that the WFH flexibility was a discretionary privilege bestowed by the Company
and not a contractual entitlement.

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[62] It is also to be noted according to the Company’s WFH policy which applied to
all Axiata employees, only SLT and SLT-1 were authorised to approve WFH requests
and the Claimant had duly confirmed this during her cross-examination. It was further
admitted by the Claimant that Mr. Saran was neither SLT or SLT-1 and therefore,
COW-2 who was a SLT-1, was rightfully authorized to approve the Claimant’s WFH
requests.

[63] COW-2 had explained before this Court that although Mr. Saran had mistakenly
been approving WFH requests prior to 09.04.2019, Mr. Saran had informed the team
(which included the Claimant) to direct their WFH requests to the right person after
learning from the Human Resource Department that he was not authorized to approve
the Claimant’s WFH request.

[64] While the Claimant had failed to adduce any cogent evidence to prove her
contention above, the Company had led documentary evidence in trial which clearly
showed that the Claimant was merely informed by Mr. Saran as to whom her WFH
applications should have been directed to.

[65] In the circumstances, the only conclusion to be made is that the Claimant was
never victimized or singled out from applying for the WFH flexibility and that the same
policy, in particular the authorised approvers, applied to everyone in the team.

[66] Under the 1st Ground, the Claimant also contends that she was prevented from
performing her role if she was required to attend meetings which were not within her
scope of work and non-attendance of the meetings that are not relevant to her role
not be factored into her KPI performance and behaviour ratings.

[67] The Court finds that the requirement for the Claimant to attend the meetings
she had been invited to was part and parcel of her duties as Contract Management
Lead. According to the Claimant’s job description, one of the “Purpose of Role” of the
Contract Management Lead position was to “assist the strategic sourcing team during
all phases of sourcing and in particular provides expertise during contract
negotiations”. The Claimant also confirmed that her duties and responsibilities as
Contract Management Lead included the following:-

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(i) Partner with legal to ensure that all templates are kept current with
regard to legal developments and legislative changes;
(ii) Work with OpCo legal to ensure that all OpCo contracts of adherence
and group master agreements are aligned; and
(iii) Support sourcing managers during sourcing activity and in particular
during RFx development and negotiations.

[68] The Claimant however contended that her role as Contract Management Lead
was re-designed following the change in her reporting line from her former superior,
Mr. Peter Chen to COW-2 which took effect on 01.08.2017. According to the re-
designed role, the Claimant’s duties and responsibilities were as follows:-

(i) Leading the contract management for corporate centre (CC)

procurement as the single point of contact between procurement and
group legal, which will include preparing contract templates,
negotiating/drafting contracts with suppliers and obtaining final
signature of the contracts;
(ii) Leading the contract management for APC Group outsourcing projects if
required by the respective sourcing teams;
(iii) Acting as the Master User for the Ariba contracts management module
and driving utilisation of the Ariba contracts manager; and
(iv) Supporting and advising OpCos on procurement matters especially in
areas relating to contract management.

[69] During the Claimant’s cross-examination, the Claimant was brought through
both job descriptions to compare her role before and after the “redesignation”, and
she eventually admitted to the following:-

“Q : Now, do you agree that comparing the job description earlier,

remember the first one I showed you at page 15 and 16? Right,
Yang Arif, I’m making a cross reference, page 15 and 16, and the
description of your redesigned role now at page 52 to 53, right,
you have 15 and 16 in the backdrop and you’ve got 52 and 53
now being referred to in Court. The substance of this scope of

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work remain the same. The substance. Because, if not you would
have walked out on constructive dismissal already, right? I’m
saying the substance of your work role remain the same.
A : Substance, yes.
…
Q : Ok, I’m suggesting to you that the requirement for you to attend
meetings, because I’ve highlighted to you all these clauses there,
the requirement for you to attend meetings was necessary for the
fulfilment of your redesigned role as contract manager lead. It
was necessary.
A : It depends.
Q : So, your answer it depends. Now, I suggest to you that in fact,
the requirement for you to attend meetings was already part of
your duties as contract manager lead, it was already part of your
contract even from the start, to attend meetings.
A : Depending on what meetings.
…
Q : No, ok, so, you’re making qualification. You’re saying yes, I have
to attend meetings but depending. It is not a meeting to discuss
the political activities of the country and so on, correct? It has to
be work related, am I correct?
A : It has to be relevant, yes, to the job function, yes.
Q : But you agree you had to attend meetings?
A : Yes, I do have to attend meetings.
Q : Ok. So, I suggest to you, Margaret, that the requirement for you
to attend meetings was not a fundamental breach of your
employment contract. For them to ask you to come to meetings
was not a fundamental breach of your employment contract. The
fact that the Company asked you to attend meetings is not a
fundamental breach of your contract. Agree or disagree? By
asking–
A : It is not a fundamental breach.”

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[70] In furtherance to the above, COW-2 had explained during cross examination
the necessity for the Claimant to attend meetings that she was invited to, including
meetings on technical matters as follows:-

“Q : So, I’m saying to you, Mr Rama, when it comes to those matters

that are technical only, Claimant is not, it is the normal practice
that the Claimant will not be, or other contract managers, won’t
attend those meetings. Correct?
A : I disagree.
Q : Ok. So, you mean to say that everyone in the Company, even if
it’s not their scope, will attend the meeting? Is that what you’re
saying?
A : Can I clarify?
Q : No, I’m asking you, is that what you’re trying to say?
A : The role of the contract manager, if they didn’t understand the
essence of what they’re contracting, they won’t be able to help
us in contracting to the Company behaviour.
…
Q : Just now you said technical details, like specific system
requirements and so on and so forth. If the meeting is to discuss
system requirements, Claimant’s involvement is not required,
correct?
A : No.”

[71] COW-2’s evidence above is consistent with his examination-in-chief wherein he

had stated as follows:-

“3Q : What are your comments to paragraph 11 of the Statement of Case

where the Claimant contended that she had purportedly been given
the liberty and discretion to decide which meetings to attend
throughout her tenure?
A : I disagree that the Claimant was given the liberty to decide which
meetings to attend. As the Contract Management Lead, the Claimant

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was required to attend meetings and discussions if she was involved

in the project/contract discussions, or if she had been invited to
attend the said meetings and discussions. The Claimant’s attendance
was necessary for her to be involved in and aware of the negotiations
and clarifications between the relevant stakeholders.”

[72] COW-2 explained further during his re-examination as to the necessity for the
Claimant to attend meetings which she had been invited to as follows:-

“Q : And you were referred to all these paragraphs, and the questions
that were put to you were, “Do you agree that the Company did
not agree to these resolutions proposed by the Claimant?” And
you said, “Yes, the Company did not agree.”
Now, can you take us through each, because the Claimant’s
counsel took you through one by one. Can you tell us for each
point why is it that the Company had not accepted the Claimant’s
proposition? So, starting with point No.1.
A : The Company encouraged flexibility in our work. However,
working from home need approval from the SLT or SLT minus 1.
And, same, referring to the resolution No.1 as well, since we are
part of the organisation who deal with the technical thing on a
daily basis, if you are invited, that mean there is a need, then
everybody need to attend the meeting.”

[73] Based on the evidence tendered by the Claimant and COW-2 it is apparent to
the Court that the requirement for the Claimant to attend meetings that she had been
invited to was essential to the performance of her role as Contract Management Lead
which included preparing contract templates, negotiating/drafting contracts with
suppliers and obtaining final signature of the contracts. Hence, it is only proper for the
Company to take into consideration the Claimant’s non-attendance of such meetings
as relevant factor into her KPI performance and/or behaviour ratings. Furthermore,
the Claimant had also admitted that the requirement to attend meetings was not a
fundamental breach of her employment contract.

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(ii) 2nd Ground – Failure to grant the Claimant a fair appraisal, failure to give the
her a clear description of her performance and behavior shortcomings and
failure to revise the Claimant’s performance rating from “Needs Improvement”
to “Well Done” or “Outstanding” for FY2018.

[74] Based on the evidence tendered by the Claimant and the submissions, this
Court can safely conclude that the Claimant under this ground disputes that she had
been rated unfairly in FY2018 and demanded that her performance rating be revised
from “Needs Improvement” to “Well Done” or “Outstanding”.

[75] The Claimant had submitted in length with regard to this ground, namely the
Claimant was rated “Well done” by her superior Mr. Saran (whom the Claimant
reported to only with effect from May 2018) and that the subsequent rating of “Needs
Improvement” is unfair.

[76] At this juncture, this Court will refer to the Bonus Payment Letter (page 32 of
CLB-1) wherein the Claimant was informed that her overall performance has been
established as “Needs Improvement” (out of 3 categories – “Needs Improvement”,
‘Well Done’ and ‘Outstanding’), among others, the Company had expressly stated as
follows:-

In arriving at your Performance Profile for the year, you had performance
`conversations with your manager/myself to review your 2018 KPIs and
assessment of behaviours. The outcomes form the basis of your overall
performance, which was then evaluated and mapped into a People Review
Framework (taking into considerations your sustained performance and
potential) by Heads of Department and for the higher levels by the Senior
Leadership Team. A calibration exercise was conducted to set standards
and to ensure consistency across the company. This time though, under
the Ignite philosophy, with very few exceptions the functional heads/SLT
member will have the final say. The calibration exercise is primarily used
for discussions and guidance to ensure some consistency across the
company but not to force fit to any ‘Bell Curve” as before.

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[77] The fact that the Company’s performance appraisal process included a
calibration stage by the Senior Leadership Team (SLT) together with the Heads of
Department was as stated in the aforesaid letter was undisputed by the Claimant.

[78] The appraisal conducted by the Claimant’s line manager/immediate superior

i.e. Mr. Saran, was not final until after the calibration by the SLT and Heads of
Department and the Claimant had in fact agreed to the same as follows:

“Q : Now, do you agree that according to the Company’s performance

appraisal process, the performance rating given by your line
manager or immediate superior was not final? Based on this
document ?
A : Yes.

[79] As stated in the said Bonus Payout Letter, the performance rating given after
calibration by the SLT together with the Head of Department is final, i.e. they have
the final say.

[80] Based on the Claimant’s evidence before this Court, at all material time she was
fully aware of the calibration conducted by the SLT and the Heads of Department as
it had been part of the Company’s performance appraisal process which the Claimant
had been subject to even before FY2018. As such, the Claimant may not now dispute
the calibration conducted by the SLT and the Heads of Department

[81] Even thought it was expressly stated in the Bonus Payout Letter that the SLT
and Heads of Department say is final, It was also evident before this Court that the
Claimant had raised her grievance with regard to this issue of she being rated as
“Needs Improvement” at the calibration level and the Company had duly addressed
her grievance and finally maintained their stand of the rating of “Needs Improvement”.
As pleaded by the Claimant, on 23.04.2019, she relay her grievance relating to the
issue of being rated “Needs Improvement”, on 29.04.2019 COW-4 met with the
Claimant to discuss her grievance, after that COW-4 delegated the grievance to Ku
Farihan Ku Jaafar and then to Linden. Linden met the Claimant on 10.05.2019 for a
discussion and subsequently a meeting was arranged with APC Management on
29.05.2019. Finally, Linden had duly informed the Claimant, vide email dated
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07.06.2019 among others, that the Claimant’s 2018 EPP rating of ‘Need Improvement’
was maintained.

[82] Hence, the Company had duly considered the Claimant’s grievance and upon
being given all the avenues available, the Company had maintained its stand.

[83] Even though the Claimant’s personal views of her performance for FY2018
differs from the Company’s final rating of “Needs Improvement”, it is the Company’s
assessment of the Claimant’s performance that should take precedence over the
Claimant’s based on the principle that an employer is the best judge of an employee’s
performance.

[84] In the case of KDE Recreation Bhd v. Glen Fernandez [1998] 2 ILR 733
wherein the learned Industrial Chairman held, inter alia, as follows:-

“In the case Samsuddin bin Mat Amin v. Austral Enterprises

Berhad (Award No. 47/74) the learned chairman observed:

Inefficiency which discloses a course of negative conduct is a

sufficient ground for termination. Incompetency also is a
ground for dismissal; indeed inaptitude resulting in failure to
perform the duties of the service, destroys the whole reality of
the contract from the point of view of the service, destroys the
whole reality of the contract from the point of view of the
employer. It must be remembered that the vast majority of the
employees make their employers the judges of their efficiency,
and so long as the employers act bone fide i.e. if he is genuinely
discontented with an employee, he is quite entitled to give
notice of termination.
…
In determining poor performance, it is virtually impossible to
have any objective criterion to gauge an employee's
performance. Performance by its very nature is subjective and
the best person to judge an employee's performance should

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and must be the employer. The learned counsel for the

company cited the following cases in support of his contention.

In Alidair Ltd. v. Taylor [1978] ICR 445 and at p. 451 Lord

Denning MR had stated:

Whenever a man is dismissed for incapacity or incompetence it

is sufficient that the employer honestly believes on reasonable
grounds that the man is incapable and incompetent. It is not
necessary for the employer to prove that he is in fact incapable
or incompetent.” [Our emphasis]

[85] There is a plethora of authorities which demonstrate the Industrial Court’s

reluctance to intervene in an employer’s assessment of the performance of an
employee. In Yee Kon Sin v. UMW Equipment Sdn Bhd [2019] 2 LNS 0559 the
learned Chairman held, inter alia, as follows:-

“[70] In the events described above this Court cannot help but
to observe that the Company had not conducted itself in
anyway adverse to how a reasonable employer would
have done when faced with similar circumstances.
Surely, Performance Reviews’ of its employees fall within
the clear and unambiguous ambit of its managerial
prerogative, where this Court is on all fours with the
Company when it states that it was neither necessary nor
desirable for this Court to conduct a critical examination
of the Company’s assessment; absent clear and cogent
evidence of mala fides. In the circumstances of this case,
the Claimant has been unable to show any element of
mala fides; and so be it the finding of this Court.”

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[86] This principle was upheld in Abdul Malek Mohamed v. MISC Berhad
[2020] 2 LNS 0840 wherein it was held, inter alia, as follows:-

“[77] … In this matter the employer remains to be the best

judge of his employee's performance. The Industrial
Court would not wish to interfere with the employer's
assessment of his employee unless if there is tangible
proof that the employee was assessed unfairly or if the
employee's performance result was distorted with an
ulterior motive.” [Our emphasis]

[87] It is also well entrenched in industrial jurisprudence that an employee who is

displeased with his performance rating does not automatically give rise to a case of
constructive dismissal. The Company relies on the authority in Azura Norden v.
Small Medium Enterprise Development Bank Malaysia Berhad [2021] 3 ILR
297 wherein the Industrial Court succinctly held, inter alia, as follows:-

“[60] It is trite that the employer is the best person and is well
within its prerogative to assess the performance of the
claimant and other employees of the company. By mere
assessing, the bank cannot be said to have breached the
claimant's contract of employment which goes to the root
of the contract. It is similarly irrelevant for the claimant
to claim that the bank had purportedly applied the new
mechanism approved in 2019 retrospectively to
performance year 2018 and that the new mechanism
should be applied for the year 2019 onwards.
…
[62] This court is not in the business of interfering in an
employer's assessment of an employee. Having said so,
dissatisfaction of an employer's assessment certainly is
not a ground to claim constructive dismissal. In the case
of Hewlett Packard (M) Sdn Bhd v. Thangasamy Brown
Gnanayutham [2000] 1 ILR 198 (Award No. 52 of 2000),
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it was held that it is the employer who is the judge of an

employee's performance and the latter has no choice but
to accept it. An employee who is dissatisfied with this
evaluation does not have the right to use his displeasure
as an excuse to treat himself as being dismissed.”
[Our emphasis]

[88] The Court took a similar stance in Hamdan Rasid Hj A Manan v. Telekom
Malaysia Berhad [2019] 1 ILR 325 wherein the learned Chairman held, inter alia,
as follows:-

“[55] On the facts of the case at hand, it is evident that it was

the claimant who had simply and voluntarily walked out
of his employment with the company when he was not
given his salary increment for 2017 and bonus for 2016.
It was clearly not a case of the company dismissing him
from his employment. The performance review exercise
on the employees and the ratings reached on those
reviews is also under the sole discretion and prerogative
of the company and does not in any way breach any
fundamental term of the contract in the event an
employee is found to be a poor performer.”
[Our emphasis]

[89] The Company also refers to Wasudevan Shridathan v. The New Straits
Times Press (Malaysia) Berhad [2018] 2 LNS 1872, wherein the Industrial Court
opined, inter alia, as follows:-

“[69] … The witnesses for both sides agreed that the HOD has
the final say on the review. I am of the view that even
with him consulting with the immediate superior and
appraise, the final say is still with the HOD. The Company
then had wanted to put him on a performance-coaching
list to monitor his performance for 2014 with the hope

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that he would improve upon it. Comparing the facts with

the case cited above, these actions did not constitute
fundamental breaches going to the root of the contract
of employment as it is within any company's prerogative
to do so.” [Our emphasis]

[90] Bearing in mind the authorities above, the Claimant eventually agreed under
cross-examination that the final decision in respect of her performance rating was a
managerial prerogative and further admitted as follows:-

Q : Ok. Because if you agreed then I would have stopped here. I

move to the next question. I suggest to you that the final decision
in respect of a performance rating was a managerial prerogative.
Agree with me? The final decision in respect of your performance
rating was a management prerogative, agree or disagree?
A : Yes.
…
Q : No, I’m suggesting to you that that rating which they gave you,
needs improvement for 2018 was not a valid ground to claim
constructive dismissal
A : That rating alone, no. Yes.”

[91] On the issue of whether the Claimant’s appraisal was conducted in a bona fide
manner, based on the evidence tendered before this Court by the Claimant and the
witnesses for the Company, it is apparent to the Court that the “Needs Improvement”
rating she had received for FY2018 post-calibration by SLT and the Heads of
Department was justified. COW-2 had clearly explained the reasons as to why the
Claimant had received a rating of “Needs Improvement” post-calibration as follows:-

“Q10. : What was the justification for the Claimant’s “Needs Improvement”
rating?
The decision of the APC management was based on the following
considerations:
The negative feedback from the CC/APC team;

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Stakeholders who were unhappy with the Claimant’s delivery;

Behavioural observations on the Claimant’s absence from work; and
The Claimant’s performance compared to other Contract Contract
Managers in APC.

If you refer to p. 78 of the Company’s Bundle of Documents, you will

find the Claimant’s “Behaviour” ratings postcalibration where she was
given a “Below Expectation” rating for 4 out of 5 components. It was
observed that the Claimant needed to improve in the following areas:
Work attendance and discrepancies in reporting leave,
Not leading contract discussions with User, Legal & Vendor,
Non-participation in business meetings by either being absent or
giving excuses, and
There was no evidence of the Claimant displaying the “Think
Different, Do Faster, Do Better” attitude expected of her.”

[92] COW-2 then went on to explain during his examination-in-chief as follows:

“Q11 : What are the documents at pp. 79 – 84 of the Company’s

Bundle of Documents?
A : Page 80 of the Company’s Bundle of Documents shows the
observations collated from the Claimant’s colleagues and various
stakeholders pertaining to her performance and work attitude. The
feedback showed, amongst others, that:
the Claimant was tardy, applied to work from home too frequently,
and inconsistent in reporting her leave,
the Claimant had not demonstrated the ability to lead contract
management discussion between the User, Vendor & Legal until
contract closure. The Claimant was also frequently absent from
meetings and gave excuses by claiming that they were not within
her purview,
As the Contract Management Lead, the Claimant did not contribute
meaningfully to her team,

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If you refer to pp. 81 – 82 of the Company’s Bundle of Documents,

you will find the record of the Claimant’s annual and medical leave
for 2018 and 2019 respectively. In 2018, the Claimant claimed to
be on medical leave for 18 days but only applied for ten (10) days.
Further, she was absent without leave on four days. In 2019, the
Claimant claimed to be on medical leave for eight (8) days but only
applied for five (5) days.

Based on the feedback and records relating to the Claimant’s

performance and work attitude, the APC management decided that
she was appropriately rated as “Needs Improvement”. This was
also approved by the Senior Leadership Team as part of the
Company’s performance appraisal process.”

[93] COW-2 had also concurred that the comments/feedback collated from the
Claimant’s former colleagues (page 80 of COB-1) which contributed to her “Needs
Improvement” rating was prepared by Mr. Saran (who was not called as a witness due
to his passing) and that there was no documentary evidence to support the said
comments/feedback.

[94] Despite there being no documentary evidence, this Court refers to the evidence
of COW-3 and COW-6 pertaining to their observations of the Claimant’s work
performance and behaviour at work. COW-3 and COW-6 who were both former
colleagues of the Claimant and who have since left the Company, had come forward
and attended the hearing to confirm that they had indeed provided their respective
feedback of the Claimant to Mr. Saran verbally (page 80 of COB-1). With respect, the
Company refers to the evidence-in-chief of both COW-3 and COW-6 pertaining to their
observations of the Claimant’s work performance and behaviour at work.

[95] As regards the Claimant’s attendance records, COW-2 had given evidence from
the Company’s records that the Claimant had claimed to be on medical leave for
eighteen (18) days in 2018 but only applied for ten (10) days, and had been absent
from work without leave for four (4) days. Similarly, in 2019, the Claimant had claimed
to be on medical leave for eight (8) days but only applied for five (5) days only.

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[96] Furthermore, when the Claimant was referred to the Company’s records of her
attendance for the years 2018 and 2019, she did not dispute the above and further
confirmed that the Company did not take any disciplinary actions against her for her
failure to apply for annual leave and medical leave. Even though there was no
disciplinary action taken against the Claimant, nothing stops the Company from relying
on these issues during the calibration in deciding the rating of the Claimant for 2018
EPP.

[97] Although the Claimant denied having been given any guidance and/or advice
by COW-2 and Mr. Saran throughout FY2018, COW-2 had testified that verbal
counselling had been given to the Claimant to improve her behaviour and work ethics.

[98] COW-2 had also testified that the Claimant’s shortcomings/areas for
improvement and a Performance Improvement Plan were explained to her, as
follows:-

Q : COB-1, Yang Arif. Right? Because… Right. So, I just want you to
have this in the backdrop and answer this question. My learned
friend had put a series of questions to you in respect of lack of
evidence. Because you said, oh, you did not put it in writing to
her, you did not put it in writing to her. And you did say, yes, I
did not, I did not, I did not. You didn’t even say I don’t know. I
did not. So, now, if you look at page 87, can you look at what you
have said here? After No.4.
A : Yes.
Q : Could you read out to the Court?
A : “While she was defensive in my discussion, I have clearly
explained with examples of areas of improvement and how we
can help via PIP”.
Q : So, does this confirm what you said earlier, that you had
discussions with her?
A : Yes.”

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[99] In fact in the email dated 24.07.2019 from Linden to the Claimant (pages 1 and
2 of COB-2) the Company had expressly stated that despite the fact that the Claimant
was holding a senior position, COW-2 had given you feedback on various issues
pertaining to your duties and responsibilities e.g., attending business meeting to
support CC colleagues, driving contract and to-end.

[100] Based on the all the foregoing, it is apparent to the Court that the Company
had not at any material time breach any fundamental term of the employment contract
and that it had at all material times acted and exercised its discretions, particularly in
respect of the performance appraisal process, in a bona fide manner.

(iii) 3rd Ground – Failure to reinstate the Claimant to perform the leadership and
supervisory role of a Level 20 employee and Failure to cease assigning tasks
suited for a Level 18 employee.

(iv) 4th Ground – Failure to reinstate the Claimant’s supervisory function, managing
and leading high value, complex contracts and participating in Group wide
special projects.

[101] These grounds relate to the Company allegedly assigning tasks which were
either beneath her level, specifically having to take on a more hands-on management
of contracts including “administrative and clerical task” or failing to assign her the
leadership and supervisory role of a Level 20 employee.

[102] On these grounds, it is apparent to the Court that the Claimant’s job
description under the “redesigned” she was required to have a hands-on management
of contracts in order to perform her duties such as preparing contract templates,
negotiating/drafting contracts with suppliers and obtaining final signature of the
contracts.

[103] Furthermore, the Claimant had admitted under cross-examination that her
employment contract did not provide that her role as Contract Management Lead was
to perform supervisory functions only, or that her role was only limited to projects of
a certain value or more.

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[104] This Court also agrees with the Company that there was no evidence
whatsoever to prove that she was not able to perform the tasks of a Level 18 role or
“administrative and clerical tasks”, it is pertinent to note that the Claimant had also
stated as follows under cross-examination:-

“Q : Agreed. So, can I please refer to the terms and conditions of your
employment? Can I, Yang Arif, go back to page 4 of COB1? In
particular, page 4, Clause 4 under the heading “Business
requirement”.
A : Clause 6.
Q : Sorry, 6. Page 4, Clause 6. Sorry, I have to amend 73, there is a
typo there. So, do you agree that Clause 6 especially states as
follows, “Business requirement. In order to ensure that our
continued progress meets our overall business objectives, we
may need to re-allocate available resources from time to time.
Consequently, you acknowledged and accept that we may need
to vary your designation and/or your work responsibilities from
time to time as may be necessary due to the nature of your work”.
Agree it’s stated there? In the contract.
A : Agree, it’s stated here.
Q : Stated. 72A, Yang Arif. Can I ask you this question? Did you
object to this clause when you signed it?
A : No.
A : No. So, do you also agree that Clause 6 states that if we decide
on any of the above, you must comply with our instructions? It’s
stated here, right
A : Yes.”

[105] Upon being cross examined further, the Claimant admitted that the Company
did indeed have the managerial prerogative to assign her additional tasks, and further
stated as follows: -

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“Q : The requirement for you to be more hands-on in the management

of contracts was well within your scope of work because you know
what you are doing.
A : For my level, yes.
Q : For my level, yes. We’ll take what you said, “for my level, yes”.
So, I suggest to you, Margaret, that any task assigned to you
which were administrative or clerical were well within your scope
of work. If it’s, of course, if it is related to that particular project.
A : For Level 20, yes.”

[106] The Court also finds that the Claimant’s propensity to dismiss work as
“beneath” her and her hands-off approach were not new to the Company. The
evidence before this Court show that the Claimant had been warned of similar issues
in the year 2017. The Claimant testified as follows during cross-examination:-

“Q : They changed your reporting line because you had an issue with
Peter vis-à-vis your rating for the financial year 2016, correct?
A : That was one of the grounds, yes.
Q : Ok, yes, it was one of the ground. Alright, take down what she
said, yes. Yes, it was one of the grounds. Can I now, Yang Arif,
Question 79, can I now refer to page 17 of COB-1? Do you agree
that you received this email on 12.01.2017 from Peter?
A : Page?
Q : 17.
A : 17?
…
Q : So, you received this email, correct, 79. Now, do you agree, you
just look at this email, I know you have the document with you
but look at this email. I am just going to extract some of the
pertinent points here. Do you agree that some of the comments
he had provided you in respect of your 2016 appraisal included
the following? No. 1, I am taking it from the email, “Reluctance
to take on crucial tasks which are deemed to be within your
capability and competence. Repeated claims that you are unable
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to adequately accomplish tasks due to being kept out of the loop,

lack of transparency and information being withheld”. This is your
claims, ok. “And hands-off approach in the final stage of closure
of the Ncell LTE SOW discussions”. SOW discussions, correct?
This what is stated there.
A : Peter’s email.
Q : Yes, Peter’s email.
A : Yes.”

[107] It is also apparent to the Court that the Claimant’s true motivations were not
the Company’s best interest and needs, but her personal career aspirations and
ambitions and this would best explain her attitude and hands-off approach at work.
The Claimant’s evidence in this regard are as follows:-

“Q : Thank you. Now, can I refer you to page 46 in particular? Page

46, the top part there, Item 1. The third line from the top, starting
with “These CC contracts”. So, do you agree that you had stated
in your email to Peter on 09.03.2017, “These CC contracts are
mostly low value, non-complex, high volume contracts. Whilst I
see the benefit I would bring to the team by supporting these
contracts, I cannot see the value it brings to my career
development and professional growth”. You said this, right?
A : Yes.

[108] In fact, as early as in 2017, the Claimant’s superior at the material time, Mr.
Peter Chen had advised the that, “… as employees, we are contracted first to serve
the needs of the business and develop ourselves in the course of doing so. The
company does not exist to fulfil our career aspirations.”

[109] In the circumstances, it is apparent to this Court that the tasks assigned to
the Claimant, including the requirement for her to have a more hands-on approach,
were well within her scope of work as Contract Management Lead and that the
requirement to perform any administrative and clerical tasks were within the

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parameters of her employment contract and there is also no demotion as alleged by

the Claimant.

(v) 5th Ground – Failure to cease singling the Claimant out, bypassing her role and
excluding her from performing her job functions.

[110] As regards this ground, there is no cogent evidence adduced by the Claimant
to prove that she had purportedly been ousted by the APC and CC team. In this regard,
the COW-2’s response to the allegations that the Claimant had been ousted from her
job function was as follows:-

“This is no true, Margaret has been informed that she is one of the
pillar for CC team and she should be able to approach the team and
support them in her role as a contract manager…”

[111] Having denied the said allegations, COW-2 had also explained that the
purported reduction in the Claimant’s work, duties and responsibilities was attributable
to herself and her lack of initiative to be involved in client meetings/discussions and
frequent absences.

[112] In fact, COW-2’s evidence is consistent with the behaviour and work ethics
observed by COW-3 and COW-6, and further corroborated by the Claimant’s own
evidence wherein she had repeatedly demanded for the Company to “reinstate her
to perform the leadership and supervisory role of a Level 20 employee” and
“to reinstate the Claimant’s supervisory function, managing and leading
high value, complex contracts and participating in Group wide special
projects”.

[113] Based on the totally of evidence tendered before this Court, the Claimant had
failed to prove that the Company had intention to oust the Claimant from performing
her job functions. In fact, it was evident that it was the Claimant who refused work
which she deemed to be beneath her job grade, such as having to take on a more
hands-on management of contracts including “administrative and clerical task”.

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(vi) 6th Ground – Failure to waive the Claimant’s Performance and Behaviour ratings
for the Financial Year 2019 (“FY2019”) KPIs from January 2019 to the date her
duties and responsibilities are fully restored to normal.

[114] This ground raised by the Claimant was that the Company had purportedly
failed to waive the Claimant’s Performance and Behaviour ratings for FY2019 KPIs.

[115] With regard to this ground it is pertinent to note that the Company had taken
steps to resolve the Claimant’s concerns regarding her FY2019 KPIs. The Claimant had
confirmed that a meeting on 08.07.2019 was held with her, Mr. Saran, COW-2 to
discuss her KPIs for FY2019.

[116] The Claimant also confirmed that during the said meeting, the Company had
presented her with the following options to allay her concerns:-

“Q : Yes, that’s right, at 86, yes. So Margaret, do you agree that on

the 08/07/2019, a meeting was attended by you, the late Saran,
Rama and Linden to discuss your KPIs for 2019? There was a
meeting on the 8th of July, Saran, Rama, Linden and you to
discuss your KPIs for 2019, correct?
A : There was a meeting to discuss.
…
Q : Yes, one of the grounds, right? And do you agree at this meeting,
the late Saran and Rama had presented to you two options to
allay your concerns, right? They had presented to you two options
to allay your concerns, right. The first, Option 1, that you be
evaluated, to be evaluated for nine months for the financial year
2019. That means it’s only nine months to be evaluated for
financial year 2019. Secondly, to evaluate and close the first half
of 2019 and move on with the new KPIs for the second half of
the 2019. This is what they told you, correct? They gave you two
options to allay your concerns, correct?
A : Yes.”
…

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Q : Now do you agree that at the conclusion of the meeting, it was

agreed that the list of projects, including performance evaluation,
will be discussed at the next meeting on the 12th of July?
A : Will be discussed, yes.
Q : Yes, will be discussed. So, do you agree, I am putting, ok, I think
I have to put this to you first. My instructions are that you, Yang
Arif, can I just put a Question 90A? My instructions are that you
had opted for Option 2. Agree or disagree?
A : Disagree.
Q : Disagree. So, I am putting it to you that despite agreeing to
Option 2, you had sent in a grievance notice, notice of grievance
dated 9th July. 8th is your meeting, next meeting on the 12th, you
had sent a notice of grievance on the 9th of July, which is at page
100 to page 106 of COB-1. This is a long one which I showed you
earlier, remember that I said I just went to 102.
A : Yes.”

[117] Although COW-2 had given evidence that the Claimant had opted for Option
2 i.e. to evaluate and close the first half of 2019 and move on with the new KPIs for
the second half of FY2019, the Claimant denied agreeing to any of the options
presented to her as they purportedly did not allay her concerns. The Court also finds
that COW-2’s evidence that the Claimant had opted to Option 2 is corroborated
wherein in the email dated 24.07.2019 to the Claimant, Linden had expressly stated
that:- [please see page 2 of COB-2]

“Further to the above and in relation to your claim that the KPIs for
the Financial Year 2019 are “unachievable and unrealistic”, we wish
to place on record that during a discussion on 08.07.2019 between
you and your line manager Saravanan Moorthy, Ramakrishnan
Potharaju, Head of APC and Linden Leong, HR, you had on your own
volition elected to proceed with the option presented to you by the
Company that your performance for the first half of Financial Year
2019 will be evaluated and closed in order to move forward with the

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new KPIs for the second half of the year 2019. As such, your dispute
in respect of your KPIs for the Financial Year 2019 is merely an
afterthought”

[118] Hence, it is apparent that the Claimant did indeed agree to Option 2,
otherwise it would not make have made sense for the Company to state the above in
its email dated 24.07.2019 and for there to be another meeting scheduled on
12.07.2019 to discuss the list of projects including performance evaluation, which the
Claimant had admitted.

[119] Before the meeting on 12.07.2019 took place however, the Claimant issued
the Notice of Grievance on 09.07.2019.

[120] The only conclusion to be made by this Court with regard to this grounds is
that the Claimant’s FY2019 KPIs had yet to be finalized and the Claimant had jumped
the gun and walked out on constructive dismissal prematurely without even finalizing
her FY2019 KPIs.

[121] Based on the following evidence tendered before this Court, it is the finding
of this Court that the Company did not have any intention not to bound by the contract
of employment it has with the Claimant:-

(i) The Claimant’s grievance with her former superior, Mr. Peter Chen
pertaining to the behavior assessment in her performance appraisal for
the year 2016, the Company took measures to resolve her grievance and
although it had no obligations, the Claimant’s reporting line was changed
from Mr. Peter Chen to COW-2.
(ii) The Claimant had admitted under cross-examination that she had
expressed her gratitude to the Company as follows:-

“Q : You disagree, ok. Now, can I refer you to page 54 of COB-

1? This is a very important document, page 54 of COB-1.
“Dear Darke, Amandeep, I want to express my heartfelt
thanks to both of you for taking time off your busy
schedule to listen and understand and support me during
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my most challenging times and work with my manager

which is now resolved.” Ok. So, do you agree that you had
expressed gratitude to the Company for resolving your
grievance based on this line I read out?
A : In 2017, yes.”

(iii) The Claimant also confirmed that the Company did not take any
disciplinary action against the Claimant for her failure to apply for annual
leave and medical leave in the years 2018 and 2019 which were clearly
act of misconduct.
(iv) Following the Claimant’s FY2018 performance appraisal where the
Claimant had received a “Needs Improvement” rating, the Claimant had
agreed during cross-examination that the Company did not place her on
a performance improvement plan and further admitted that she was in
fact paid a bonus.
(v) The Company had also taken steps to resolve the Claimant’s grievance
in respect of her FY2018 rating, including meetings and discussions on
various occasions with Mr. Saran, Linden and COW-2 to explain the basis
for her “Needs Improvement” rating.
(vi) As the Claimant was dissatisfied with the outcome of the discussions on
29.05.2019, it was escalated to the Senior Management for their
deliberation. Upon due consideration of all the relevant information and
feedback however, COW-4 confirmed that the Senior Management had
decided to maintain the Claimant’s rating which was communicated to
the Claimant vide email dated 07.06.2019.
(vii) The Company had also gone to great lengths to resolve the Claimant’s
grievance in respect of her FY2019 KPIs, including offering her options
which the Claimant initially accepted but denied before this Court.

[122] This Court also considered the fact that following the Company’s rebuttal (the
Company’s email dated 24.07.2019) of her Notice of Grievance, it had repeatedly
requested for the Claimant to report back to work. With this regard, in the case of

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Tan Siew Bueh v. Measat Broadcast Network Systems Sdn Bhd [2019] 2 LNS
0118 the Court opined, inter alia, as follows: -

“[45] It is only logical that the appraisal of each employee for

every financial year depends on the performance of that
employee for that year concerned. As there may be many
factors that need to be considered, the result of the
appraisal for each year may very well vary accordingly.
There is no surety that the ratings will be the same every
year. In any event, it is not the court's role to assess
whether the Claimant's performance warranted the low
score she received in her Performance Appraisal. What
then is the role of the court when faced with the
contentions that an employee's appraisal was not
properly done? In the case of Tzehong Architectural
Products Sdn Bhd v. Tan Beng Imm [2005] 3 ILR 582
(Award No. 1527 of 2005) at pp. 588 and 589, the
Industrial Court held as follows:

"On the issue of poor appraisal, the court do not wish to

disturb such evaluation as it is the prerogative of the
employer as they know better their business affairs. The
sales and the return thereof and shown by the employer
speak for itself."

[46] The court also takes cognisance that by the Company

asking the Claimant to report to work after she had
tendered in her resignation, only goes to show that the
Company had no intention to dismiss the Claimant in the
first place as claimed. As such, based on the evidence
adduced by the Claimant and the Company, it is the
finding of the court that the Claimant had abandoned her
employment.”

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[123] Having analysed all the evidence in this Court, this Court is unable to find
anything that can show that the Company had conducted itself in a manner that
amounted to a severe breach of both express and implied terms of the Claimant's
employment contract. In this whole episode, this Court having analysed all the facts
and evidence only found facts and evidence that had shown that the Company had
attempted to ensure that the Claimant continued in the service of the Company. There
is no evidence before this Court that the Company had breached any of the essential
or fundamental terms of employment of the Claimant or had evinced an intention no
longer to be bound by the essential terms of the Claimant's contract of employment
with the Company. This Court cannot allow the Claimant to seize any minor
shortcomings or failings of the Company (if there is) and turn it into or interpret it as
though they form the breach of essential or fundamental terms of the contract of
employment of the Claimant with the Company.

[124] This Court is mindful that the circumstances giving rise to a constructive
dismissal depends on the facts and circumstances of each case. However, this Court
would also ask questions regarding the conduct of the Company and whether such
conduct of the Company was a deliberate design to drive the employee out of the
Company by making the employee's continued presence in the Company unbearable
or intolerable. In this regard, this court finds the judgment of the Court of Appeal in
the case of Quah Swee Khoon v. Sime Darby Bhd [2001] 1 CLJ 9 instructive
wherein the Court of Appeal opined as follows:-

A reading of the pleaded case for the parties resolved the issue
that fell for adjudication before the Industrial Court into what
the profession has come to call as a ‘constructive dismissal’.
There is no magic in the phrase. It simply means this.

An employer does not like a workman. He does not want to

dismiss him and face the consequences. He wants to ease the
workman out of his organisation. He wants to make the process
as painless as possible for himself. He usually employs the
subtlest of means. He may, under the guise of exercising the
management power of transfer, demote the workman. That is
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what happened in Wong Chee Hong (ibid). Alternatively, he

may take steps to reduce the workman in rank by giving him
fewer or less prestigious responsibilities than previously
held. Generally speaking, he will make life so unbearable for
the workman so as to drive the latter out of employment. In the
normal case, the workman being unable to tolerate the acts of
oppression and victimisation will tender his resignation and
leave the employer's services. The question will then arise
whether such departure is a voluntary resignation or a
dismissal in truth and fact.

[125] The complete analysis of the facts and evidence in this case does not show
that the Company had engaged in any acts or conducts that is designed to make the
Claimant's working experience in the Company unbearable that had the likely result
of driving the Claimant out of employment from the Company. This Court finds that
the Claimant's allegations of that the Company had breached the express and/or
implied terms of her employment contract with the Company are unproven. Contrary
to the Claimant's allegation, this Court is of the view that the Company had acted fairly
without engaging in any acts that is or can be deemed as breaches of the fundamental
or essential terms of the contract of employment of the Claimant with the Company.

CONCLUSION

[126] Pursuant to Section 30(5) of the 1967 Act and guided by the principles of
equity, good conscience and substantial merits of the case without regard to
technicalities and legal form and after having considered the totality of the facts of the
case, all the evidence adduced in this Court and by reasons of the established
principles of Industrial Relations and disputes as stated above, this Court finds that
the Claimant had failed to prove to the satisfaction of this Court on the balance of
probabilities that she was dismissed from her employment by the Company. Since the
Court finds that the Claimant has failed to prove that she had been constructively
dismissed by the Company, thus the issue of whether the dismissal was done with or
without just cause or excuse does not arise as there was is no dismissal to begin with
in the first place.

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[127] Accordingly the Claimant's claims hereby dismissed.

HANDED DOWN AND DATED THIS 24th DAY OF AUGUST 2023

-signed-

(ESWARY MAREE)
CHAIRMAN
INDUSTRIAL COURT OF MALAYSIA
KUALA LUMPUR

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