A three-member bench chaired by Justice Harmindar Singh Dhaliwal dismissed an appeal by the estate of former RHB Bank Bhd employee Tan Leong Huat, who walked out of his job alleging he had been constructively dismissed in March 2015.
“The Court of Appeal did not commit any error of law in ruling in favour of the respondent (bank),” said Harmindar, who sat with Justices Rhodzariah Bujang and Nordin Hassan.
The appeals court had previously ruled that both the Industrial Court and the High Court had applied the wrong test.
The correct test, it said, was whether there was a fundamental breach by the employer of the express or implied terms of the contract of employment.
Harmindar said the apex court would issue its written grounds of judgment as the issue is one of importance in employment law.
The present appeal was brought by Tan Lay Peng, in her capacity as the administratrix of the estate of Leong Huat, who died on May 15, 2022.
Lawyers representing the estate argued that both the “contract test and reasonableness test” are of no difference and be applied in constructive dismissal matters in light of recent developments in industrial disputes.
Counsel Jec Siose, KS Devanathan and Chen Hui Ken represented the deceased’s estate, while N Sivabalah and Jamie Goh appeared for the bank.
Leong Huat was employed by the bank in June 2011 and was assigned to be the operations head of its Bangkok branch office.
Two years later, the bank opened a second branch in Sri Racha, about 100km from Bangkok, and he was asked to be stationed there.
In 2014, the bank opened its third branch, but the employer felt a more senior and experienced candidate ought to assume the role of steering its enhanced and expanded Thailand operations. This led to the appointment of Chin Yoke Fong.
Meanwhile, Leong Huat was asked to assume the role of branch manager in Ayutthaya, about 80km from the Thai capital, for nine months until the bank secured a suitable position for him.
In February 2015, Leong Huat was informed that he would be repatriated to Malaysia with no change in terms and conditions of employment.
He objected, refused to report for duty and instead treated himself as being constructively dismissed.
He then brought his claim for wrongful dismissal to the Industrial Court.
In 2019, the Industrial Court ruled in Leong Huat’s favour and awarded him RM216,000 as compensation in lieu of reinstatement.
The bank’s application for judicial review was dismissed by the High Court the following year.
However, a three-member Court of Appeal bench, chaired by Justice Hanipah Farikullah, allowed the bank’s appeal on the basis that both the Industrial Court and the High Court had applied the wrong test to determine whether Leong Huat was constructively dismissed, giving rise to the present appeal.