The Industrial Court has dismissed a constructive dismissal claim brought by an expatriate in an oil and gas company who was earning a monthly salary of about RM80,000.
Court chairman Andersen Ong said Singaporean Abdul Malek Amin failed to prove that his new position as engineering manager was a demotion from his previous position as project manager.
“The claimant has failed to discharge the burden of proof placed on him to prove that the company has committed a fundamental breach, which goes to the root of the contract,” Ong said in a 39-page award released last week.
He ruled that the employer, SapuraOMV Upstream (Sarawak) Inc, was not obliged to show that Malek had been terminated from his employment with just cause or excuse after he walked out of his job on Aug 2, 2019.
He said it is well recognised and accepted that it is the prerogative of an employer to decide how to conduct or organise its business.
“This managerial prerogative also extends to the right of the employer to decide on the choice of staff for the work,” he said.
Malek was made a permanent employee in 2018 with a basic monthly salary of RM81,469.01.
The company also paid monthly allowances and contributed to his pension payment, which totalled about RM60,000.
Malek alleged that he was demoted after the company went through a restructuring exercise.
There was a change of management in the company in early 2019 following a joint venture exercise, and Malek said his new position was of a lesser status and importance.
He also said he was hired for his expertise in project management.
Malek, who was represented by Cheah Shu Boon, KC Cheng and Prathib Patmanabon, said the company’s prerogative to transfer or redesignate its employees must be done with “a clear intent to benefit the employer by using the employee’s expertise and experience”.
T Thavalingam, who represented the company, had submitted that Malek’s redesignation was merely a lateral move and that his salary, benefits and status remained unchanged.
He also submitted that in effecting the redesignation, the company had exercised its managerial prerogative in good faith and in accordance with the terms and conditions of Malek’s employment with the company.
Thavalingam, who was assisted by Aida Yasmin Cheree Mohamad, said there was no legal requirement for the company to transfer or redesignate its employees according to their expertise and experience.
https://www.freemalaysiatoday.com/category/...ismissal-claim/ 
Jun 11 2023, 08:11 PM
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