Ex Flight Instructor Wins Appeal In Constructive Dismissal Case

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The Court of Appeal has remitted K Sudhir’s case to the Industrial Court for assessment of back wages and compensation after ruling he was constructively dismissed by Layang-Layang Helicopter Academy Sdn Bhd.
PETALING JAYA: The Court of Appeal has unanimously ruled that a former flight instructor at a regional charter airline based in Sabah was constructively dismissed from his employment.
Allowing the appeal, a three-member bench chaired by Justice Ruzima Ghazali held that the High Court had made an appealable error when affirming the award handed down by the Industrial Court.
“From the facts, we find the conduct of Layang-Layang Helicopter Academy Sdn Bhd in forcing the appellant (K Sudhir) to take leave and return all the company’s properties tantamount to constructive dismissal,” said Justice Azmi Ariffin, who wrote the 52-page judgment released last week.
Layang-Layang Helicopter Academy, which changed its name in April 4, 2018 to Layang-Layang Flying Academy, is a subsidiary of Layang-Layang Aerospace.
Azmi said the bench considered the employer’s conduct to be unreasonable. However, he said Sudhir could not be reinstated to his former position given the circumstances of the case.
“We order the payment of back wages and compensation to be assessed by the Industrial Court,” he said, ordering the company to also pay Sudhir RM20,000 in costs.
Sudhir, who joined the company on Sept 25, 2014, walked out of employment on Nov 13, 2017. His last drawn monthly salary and allowance totalled RM20,000.
As of Oct 13, 2017, Sudhir had accumulated 56 days of leave, equivalent to his entitlement over two years.
Azmi said the company had issued a letter instructing Sudhir to go on leave from Oct 16, 2017 until Jan 14, 2018, The company also specifically reserved its right to review Sudhir’s employment upon his return.
Azmi said the letter also directed Sudhir to hand over his duties as head of training to Captain Idris Ismail, and to return his company car, laptop computer, office keys and all intellectual property in his possession.
In response, Sudhir wrote a letter dated Oct 23, 2017 to his superior, seeking clarification of the directive. He also asked if the company had any intention of dismissing him from employment.
He considered himself constructively dismissed effective Nov 13, 2017 after not receiving a reply.
Sudhir filed representations claiming he had been dismissed without just cause or excuse.
His case was referred to the Industrial Court but was dismissed on grounds that the company did not commit any breach of Sudhir’s contract of employment.
Sudhir’s application for a judicial review of the award was also dismissed by the Kota Kinabalu High Court.
Azmi said it has been repeatedly held by “our courts that the proper approach in deciding whether constructive dismissal has taken place is whether the conduct of the employer was such that the employer was guilty of a breach going to the root of the contract”.
He said the company had exceeded its contractual rights by creating uncertainty and ambiguity about Sudhir’s position.
The court noted that a clause in Sudhir’s employment contract allowed for reassignment within the organisation. “However, this right must be exercised reasonably and in good faith,” he said.
Azmi said the company was wrong to remove Sudhir from his duties without clear communication as to his future role in the company.
“The appellant has successfully discharged the onus on him to prove that there was a breach of the employment contract by the company,” he said.
Lawyer Ian Cham represented Sudhir while counsel V Sukumaran appeared for the company. - FMT

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