This article discusses the case of Prema Latha A/P S Kandasamy v Wembley Academy Sdn. Bhd. [2020] 1 ILR 371

Parties

Claimant: Prema Latha A/P S Kandasamy

Company: Wembley Academy Sdn. Bhd.

Facts of the Case

1. The Claimant entered into a fixed-term contract for the position of “Teacher” with the Company. The contract period was from 9.1.2017 to 1.12.2018. The monthly salary for the position was RM3,200.00 with transportation allowance and meal allowance amounting to RM150.00 per month respectively.
2. Subsequently, in September 2017, The Claimant was offered the position of ‘Head of Junior School’. As a result, she entered into a new fixed-term contract with the Company for that position. The new contract period was from 1.9.2017 to 6.12.2019.
3. The said new contract provided a monthly salary of RM3,400.00 as well as transportation allowance and meal allowance amounting to RM150.00 per month respectively. The Claimant was further provided an additional monthly allowance of RM300.00 for her added responsibilities.
4. Nevertheless, on 31.12.2018, the employment relationship between the Claimant and The Company came to an end.
5. While the Company claimed that the termination was a result of the Claimant’s resignation, the Claimant alleged that the resignation was not voluntary. Instead, the Claimant alleged that she had been forced by the Company to tender her resignation.
6. The Claimant alleged that she had been threatened by the Company, in that if she fails to resign, the Company will terminate her. The Claimant also alleged that she was forced to type the resignation letter in front of the Company’s Principal before submitting the same to the Company. The Claimant also alleged that she was not given the chance to seek legal advice before her forced resignation.
7. However, the Company denied the allegations and argued that the Claimant had submitted her letter of resignation voluntarily, without any threat or duress.
8. The Company argued that during the meeting with the Claimant on 8.10.2018, the Company informed the Claimant of her poor performance and poor attitude. The Company also showed the Claimant the various complaints and negative feedback received from parents and students regarding the Claimant’s performance. The Company claimed that it was after the Company raised these issues to the Claimant, that the Claimant became agitated and offered her resignation.
9. Consequently, the Company’s Principal requested the Claimant to submit a formal resignation letter, and that led to the Claimant voluntarily preparing and signing a resignation letter and submitting the same to the Company on that day.

Principal Legal Issues before the Court

The principal issue that the Court had to try and decide was whether the Claimant was indeed forced to resign by the Company.

If the Claimant was not forced to resign, then the Claimant’s case fails. If the Claimant was indeed forced to resign, then despite the “resignation”, it was in effect a dismissal by the Company. Then the Court will have to decide whether the dismissal was with just cause or excuse.

Court’s Decision and Reasoning

1. In a case of “forced resignation”, the Claimant bears the burden of proof to prove, on a balance of probabilities, that he or she was indeed forced to resign.
2. Having considered all the evidence submitted and acting in accordance with Section 30 (5) of the Industrial Relations Act 1967, the Court found that the Claimant had failed to prove that there was forced resignation, there was no dismissal by the Company. As there was no dismissal, the issue of dismissal without just cause or excuse did not arise. The Claimant’s case was dismissed.
3. The considerations that the Court had in coming to its conclusion included the following:

   • The Claimant, as a teacher and a well-educated person, should have made a note of protest on the resignation letter if she were really forced to sign the resignation letter. There was no such protest.
   • There was also no contemporaneous document that showed that the Claimant did not agree with her “forced resignation” barring one police report.
   • Despite the Claimant’s police report being made the following day of the incident alleging that she was forced to resign, upon the cross-examination by the Company’s lawyer, the Court found that that there were serious discrepancies between her testimony in Court with the contents of the police report. The Claimant claimed in the police report that she was handed a resignation letter which she was forced to sign, but during the trial in Court, she stated under oath that she was forced to type the resignation letter before signing on the resignation letter.
   • There were also numerous contradictory statements by the Claimant relating to circumstantial issues, such as in relation to the submission of examination papers, that damaged the Claimant’s credibility as a witness.
   • The Court was of the view that the Company need not force the Claimant to resign as there was substantial evidence that could prove the Claimant’s poor performance, which would have justified the Company’s dismissal anyway had the Company wanted to.
4. On these grounds, and others not mentioned here, the Court found that the Claimant failed to prove on the balance of probabilities that her resignation was a forced resignation made based on coercion, duress, or threat by the Company.

Advice to Employers

1. Employers should be cautious when discussing issues of performance with employees. While employees have to be reprimanded for poor performance, employers are advised to do so in a calm and composed manner. Not only will that be more effective, that will also avoid seeding hostility or resentment in the employee, which might lead him or her to make a complaint in the Industrial Court after he or she leaves the Company.
2. Employers are encouraged to have a third party, for example, a manager or a human resource executive, be involved or present when an employee tenders his or her resignation. This is to ensure that there is another witness to testify on the circumstances in which the resignation occur. Additionally, conversations should be recorded or minuted. Employers should also consider conducting exit interviews so that the employee’s reason for resignation is properly recorded.
3. Employers should never force an employee to resign. Employers should use other measures, such as warning letters or performance improvement plans, to help an employee improve, and only to dismiss the employee if he or she fails to do so.
4. Employers should seek legal consultation immediately if an employee expresses his/her intention to make a claim in the Industrial Court, so that the lawyer can advise on steps to be taken to protect the interest of the Employer/Company. Employers are also advised to obtain legal representation when the matter goes to Court, and not conduct the case themselves.

Advice to Employees

1. Employees who feel that they are being forced to resign should always record their protest. This can be done by marking the words “under protest” on the resignation letter, or by sending a follow-up e-mail or making a police report recording the protest.
2. Employees should also keep a note recounting the day of resignation so that the memory doesn’t fade and that they do not forget the details or contradict themselves when the matter reaches the Court.
3. Employees should also seek legal advice if they feel they are being forced to resign, and seek legal advice before filing a claim in Court. Employees should also be legally represented to maximise their likelihood of success in the Industrial Court.

Louis Liaw successfully represented the Company in this case.

If you need further advice on forced resignations, feel free to Contact Me. For details on my area of practice, see here.

Authored with the assistance of my able interns, Ong Kai Ling and Connie Yap.