- T. THAVALINGAM & CO.
Senior Personnel’s claim for constructive dismissal disallowed
David Mariadass A/L S Andrew Francis v Malaysian Reinsurance Berhad
(Industrial Court Award No. 1617 of 2021)
On 2 November 2021, the Industrial Court dismissed a constructive dismissal claim brought by a senior personnel of a reinsurance company.
The Claimant in this case had alleged that he was constructively dismissed by the Company due to a cumulation of acts by the Company, which included the hiring of another personnel to head the Claimant's department.
In this regard, the Claimant had asserted that he was deputising the position of Head of Department at the material time and had a reasonable expectation to fill the said position. when it had become vacant The Claimant had further averred that the Company had through the appointment of the new Head of Department questioned his capabilities.
In dismissing the Claimant’s claim for constructive dismissal, the Court held, inter alia, as follows:
The Claimant had failed to establish that the Company had authorised him to deputize the position of Head of Department;
It is the Company’s prerogative to appoint any person it wishes to enrol (with the necessary experience and qualification); and
The Company had not acted in breach of any fundamental term of the Claimant’s contract of employment.
What this case makes clear is that the right to appoint someone with the necessary experience and expertise in a particular role remains a managerial prerogative, nevertheless, employers ought to exercise caution in ensuring that the said appointment does not result in any breach of the terms and conditions of their existing employees (i.e. reduction in salary, status and benefits) to entitle them to claim constructive dismissal.
The Industrial Court Award can be accessed below.
The Company was represented by our Managing Partner, Dato’ Thavalingam C. Thavarajah, and Senior Associate, Rebecca Sonali Alfred.