Case Background & Strategy

We Successfully Defended Bina Puri in a Malaysian Constructive Dismissal Judicial Review Case

In a recent Malaysian employment law matter, NZSK Legal, represented by Lawyer Khoo, successfully defended Bina Puri Sdn Bhd in a High Court judicial review application arising from a constructive dismissal dispute.

The case involved Hasnah Hashim v Bina Puri Sdn Bhd & Anor, where the claimant had earlier alleged that she was constructively dismissed after the company assigned her additional responsibility to oversee the Tasik Kenyir Project. The claimant argued that the assignment was not part of her job scope, that it allegedly amounted to a transfer far from her residence, and that the instruction was given while discussions on a mutual separation scheme were ongoing.

The Industrial Court had dismissed the constructive dismissal claim. The claimant then filed a judicial review application in the High Court to quash the Industrial Court’s award. Our firm successfully resisted the application, and the High Court dismissed the judicial review.

This win is important for employers in Malaysia because it confirms that not every new assignment, additional duty, project instruction or temporary site responsibility amounts to constructive dismissal. In employment law, an employee who claims constructive dismissal must prove that the employer committed a fundamental breach of the employment contract. It is not enough for the employee to say that the instruction was inconvenient, unexpected or given during ongoing separation discussions.

The High Court accepted that the claimant’s role involved Mechanical and Electrical responsibilities, and that her job description included overall planning, coordination and monitoring of site activities for building M&E services. Her employment terms also allowed the company to direct her to work at other places. On the facts, the court found that the additional responsibility of overseeing and monitoring the Tasik Kenyir Project was within her job description and did not amount to a breach of contract.

The court also rejected the allegation that there had been a transfer. The evidence showed that the claimant was not permanently transferred to Tasik Kenyir. Instead, she was expected to travel there for several days a week for a limited period and return to headquarters. The High Court found that there was no relocation of the company’s business and no transfer of the claimant in the legal sense relied upon by her.

This is a strong reminder that constructive dismissal is not automatic. In Malaysia, the employee must prove four key requirements. There must be a breach of contract by the employer. The breach must be serious enough to justify resignation. The employee must resign in response to that breach. The employee must not delay too long before treating the contract as terminated. If these requirements are not proven, the employee may be treated as having resigned voluntarily.

Another important part of this win was the procedural issue. The High Court agreed that the claimant had chosen the wrong route. Since the claimant’s representation to the Director General of Industrial Relations was made after 1 January 2021, the proper remedy against the Industrial Court award was an appeal to the High Court under section 33C of the Industrial Relations Act 1967, not judicial review. On that ground alone, the judicial review application was incompetent and liable to be struck out.

This point is very important for employment disputes in Malaysia after the amendments to the Industrial Relations Act. Parties who are dissatisfied with an Industrial Court award must be careful about the correct legal route. Filing the wrong procedure can be fatal. Employers and employees should obtain legal advice immediately after receiving an Industrial Court award because strict timelines and procedural rules may apply.

For employers, this decision is useful because it shows that companies may assign duties within an employee’s job scope, especially where the employee has the relevant expertise and the company has a legitimate business need. A reasonable work instruction, properly connected to the employee’s role, does not necessarily become constructive dismissal simply because the employee disagrees with it.

For employees, this case is also a caution. Before resigning and claiming constructive dismissal, the employee should first assess whether there is truly a fundamental breach of contract. A resignation letter that alleges constructive dismissal must be carefully prepared because the reasons stated may later define the dispute. If the employee resigns too quickly without strong legal grounds, the claim may fail.

The case also shows that mutual separation discussions do not freeze the employment relationship. Unless and until a mutual separation agreement is concluded, the employee generally remains employed, and the employer may continue to assign work within the employment contract. The mere fact that MSS discussions are ongoing does not automatically mean the employer has acted in bad faith by giving work instructions.

At NZSK Legal, we assist companies and employees in constructive dismissal claims, Industrial Court proceedings, judicial review and appeal matters, mutual separation disputes, transfer disputes, demotion allegations, workplace restructuring issues, employment contract disputes and unfair dismissal litigation in Malaysia.

This Malaysian employment law case was successfully defended by Ng, Zainurul, Seke & Khoo, represented by Lawyer Khoo.