Case Update: Employees Cannot Pursue Claims For Damages For Wrongful Dismissal Via The Civil Courts

• Law Firm: Zul Rafique & Partners
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Contract of Employment, Unfair/ Wrongful Dismissal, Arbitration & Dispute Resolution
• Author: Zul Rafique & Partners
• Published date: 27 April 2023

EMPLOYMENT LAW
Employee - Inconsistent Performance - Bullied and Harassed - Damages - Alleged Depression - Constructive Dismissal - Industrial Relations Act 1967 - Civil Courts

7-Eleven Malaysia Sdn Bhd v Ashvine A/P Hari Krishnan
Civil Appeal No. W-02(IM)(NCVC)-629-04/2022 | Court of Appeal
- see the grounds of judgment here

Facts Ashvine A/P Hari Krishnan (the 'Respondent') was employed by 7-Eleven Malaysia Sdn Bhd (the 'Appellant') as its Senior Manager of Human Resources in 2019. In February 2021, the Respondent began reporting to Liew Kian Meng ('Liew'), the General Manager of Human Resources. As the Respondent's supervisor, Liew had some concerns about her performance and had raised this with the Respondent on several occasions. The Respondent alleged that the appraisal that was carried out with Liew was inherently unfair and that the Respondent was being bullied and harassed by Liew. Eventually, the Respondent resigned and in the resignation letter, the Respondent made reference to certain allegations which were directed at Liew. The Appellant did not address the allegations in its reply to the Respondent's resignation letter but by way of a subsequent letter, the Defendant responded to the allegations. This led to an exchange of correspondences between the Appellant's solicitors and Respondent's solicitors. The dispute remained unresolved. Unsatisfied, the Respondent filled a suit in the High Court against the Appellants for reliefs amounting to RM96,032,956.40. The Appellant applied to strike out the claim and in doing so argued that the High Court lacked the requisite jurisdiction to hear and determine the Respondent's claim which was essentially a claim for constructive dismissal which ought to have been pursued via s. 20 of the Industrial Relations Act 1967 ('IRA 1967'). The learned High Court Judge disagreed with the Appellant's arguments and opined that whilst the Respondent was entitled to pursue a claim for dismissal without just cause or excuse in the Industrial Court, the High Court nevertheless had jurisdiction to deal with and determine this claim. Unsatisfied with the decision, the Appellant filed an appeal to the Court of Appeal. Hence, this appeal.

Issue 1. Whether it is an abuse of the Court for an employee who claims that he/she has been dismissed without just cause or excuse, to file a common law action to claim damages for breach of employment contract, constructive dismissal, tort of intentionally causing emotional distress...