1. Introduction

A central but underexplored question in the law of constructive dismissal (CD) is this: at what point does an employer’s failure to respond to an employee’s grievances cross from passivity into repudiation of the employment contract? In Malaysian employment law, the doctrine of CD — rooted in Wong Chee Hong v. Cathay Organisation Malaysia Sdn Bhd [1988] 1 CLJ 45 and Lord Denning’s formulation in Western Excavating (ECC) Ltd v. Sharp [1978] 1 All ER 713 — has long focused on the nature of the employer’s primary act of breach. Less attention has been paid to the employer’s conduct after the employee raises a complaint.

Doctoral research completed at Asia e University in 2024 addressed this gap by analysing 66 Industrial Court (ICM) cases involving senior management employees through Critical Discourse Analysis (CDA) and Thematic Analysis (Tahirah, 2024). A recurring pattern emerged in 23 of the 66 cases: the trigger for resignation was not the underlying breach itself, but the employer’s complete unresponsiveness when the employee sought to have the situation addressed. The author named this the Doctrine of the Brick Wall.

This paper examines a three-stage litigation sequence — Ismail Othman v. Seacera Properties Sdn Bhd (IC, 2022), Seacera Properties Sdn Bhd v. Ismail bin Othman & Anor (High Court, 2024), and the Court of Appeal ruling (2026) — as a case study in the Doctrine’s judicial application, its robustness on appeal, and its implications for HR practice. For the avoidance of doubt, the Industrial Court Award (2022) was decided during the author’s doctoral research period, and its independent use of “deafening silence” to describe the employer’s conduct constitutes contemporaneous judicial endorsement of the Doctrine’s core proposition. The High Court and Court of Appeal proceedings are development cases occurring at the time of and after thesis completion respectively.

2. The Doctrine of the Brick Wall: A Summary

The Doctrine of the Brick Wall is a sub-doctrine of constructive dismissal, developed from empirical CDA analysis of 66 ICM award reports (Tahirah, 2024). It describes a situation in which:

• An employee experiences a grievance arising from an employer’s act or conduct;
• The employee makes sustained attempts — through letters, emails, or verbal communication — to have the grievance addressed by the employer;
• The employer responds with silence, dismissal, or inadequate engagement (the “Brick Wall”); and
• It is this silence, and not the original act, that causes the employee to resign and claim constructive dismissal.

This distinguishes the Brick Wall from the established Doctrine of the Last Straw, which concerns a final act in a series of employer breaches that cumulatively constitute repudiation. In a Brick Wall case, the employer’s silence need not itself constitute a breach of contract — yet it is judicially capable of evincing an intention by the employer no longer to be bound by the contract (Tahirah, 2024). As the author observed, the classic CD question of “was he pushed, or did he jump?” must now accommodate a third possibility: “or did he face a Brick Wall and turn away?”

The thesis found that the Brick Wall circumstance was present in 23 of 66 sampled ICM cases — making it the single most common trigger factor identified. Strikingly, in not one of these cases was HR mentioned as having intervened to prevent the CD event.

3. The Seacera Trilogy: Facts and Proceedings

3.1 Background

Datuk Ismail bin Othman (the claimant) was employed as Project Director cum Advisor of Seacera Properties Sdn Bhd (“the company”), a subsidiary of Seacera Group Berhad (“SGB”), under a two-year fixed-term contract from 20 March 2019. His last drawn salary was RM20,000 per month.

On 12 September 2019, the claimant received a show cause letter — not from the company, his contractual employer — but from SGB, alleging three charges relating to his role as a director of Duta Skyline Sdn Bhd, a separate subsidiary. The claimant was simultaneously suspended. He responded on 19 September 2019, rejecting SGB’s authority on the basis that it was not his employer, and continued attending work.

The claimant then wrote to the company on 23 September, 25 September, and 4 October 2019 — each time asking the company, as his actual employer, to rectify the situation, reaffirm his employment, and confirm it was safe to return to work. The company’s sole response was to ask him to comply with SGB’s instructions. No board resolution was produced; no substantive engagement was made. SGB proceeded with a domestic inquiry in the claimant’s absence on 8 October 2019 and purported to terminate his employment on 15 October 2019.

On 18 October 2019, the claimant wrote a final letter to the company, giving a deadline of 5:00 pm on 21 October 2019 for confirmation that it was safe to return to work, failing which he would treat himself as constructively dismissed. The company did not respond. On 21 October 2019, the claimant treated himself as constructively dismissed.

3.2 Stage One: The Industrial Court Award [2023] 1 ILR 93

Chairman Syed Noh Said Nazir found in favour of the claimant. The Award is significant for the language used to describe the company’s conduct at paragraph 32:

This court further agrees that it had been a deafening silence on the part of the company

in failing to ensure safe return of the claimant to report duty… By failing to positively

respond as it ought have been, the company had evinced an intention no longer to be

bound by the terms of the employment contract between the company and the claimant.

The Chairman awarded backwages of 17 months — the remaining term of the fixed-term contract — at RM20,000 per month, totalling RM340,000. Reinstatement was declined as the contract had expired.

3.3 Stage Two: The High Court Judicial Review [2024] MLJU 1461

The company sought judicial review on four grounds. Amarjeet Singh Serjit Singh J dismissed all four, upholding the Industrial Court’s Award in full. The most legally significant grounds are addressed below.

Date of constructive dismissal. The company argued the IC had exceeded jurisdiction by finding CD on 21 October 2019 rather than 16 October 2019 (the date in the Minister’s reference). The High Court rejected this, reaffirming that the date of CD is a finding of fact for the Industrial Court after hearing evidence, following Mat Saad bin Ahmad & Ors v. Linfox Transport Sdn Bhd [2021] 4 MLJ 312 and Shafie bin Abd Rahman v. Petroliam Nasional Berhad [2010] MLJU 1290.

Delay. The company argued the claimant had delayed fatally in treating himself as dismissed. The High Court disagreed, finding the claimant’s appropriate time was 21 October 2019 — when the Brick Wall was finally and completely built — and that his persistent attempts to obtain a response constituted immediate action, not waiver.

The common employer doctrine. The company argued the Industrial Court had erred by applying company law’s doctrine of separate legal entity, when it should have applied the industrial law “common employer” doctrine from Ahmad Zahri Mirza Abdul Hamid v. AIMS Cyberjaya Sdn Bhd [2020] 2 MELR 421. The High Court rejected this, holding that the doctrine was being misapplied: its purpose is to protect employees by imposing liability on holding companies, not to empower holding companies to discipline employees for matters unconnected to their employment contract.

3.4 Stage Three: The Court of Appeal (2026)

In February 2026, the Court of Appeal allowed the company’s appeal and quashed the High Court’s decision. The Court of Appeal held that the doctrine of the common employer applied on the facts of this case, and that SGB accordingly had the authority to take disciplinary action against the claimant as an employee of its subsidiary.

Critically, the Court of Appeal did not address, disturb, or overturn the Industrial Court’s finding on the triggering silence. The “deafening silence” — the Brick Wall that caused the claimant to resign — was not examined by the Court of Appeal. The decision to quash rested entirely on the question of SGB’s disciplinary authority, a separate and distinct legal issue.

The practical consequence of the Court of Appeal’s ruling is that the employer’s disciplinary action, having been validated by the doctrine of the common employer, may remove the foundation of the CD claim as a whole. However, the doctrinal significance of the ruling for the Brick Wall is limited: the Court of Appeal’s silence on the silence, so to speak, leaves the Industrial Court’s finding on this point as an undisturbed and unreversed judicial observation.

4. Doctrinal Analysis

4.1 All Five Elements of the Brick Wall Are Present

Mapping the Seacera facts against the five-element framework of the Doctrine (Tahirah, 2024) reveals a textbook Brick Wall:

Element	Present in Seacera?
Antecedent grievance	Disciplinary action initiated by SGB, an entity with no contractual standing over the claimant — for acts unconnected to his employment.
Impairment of volition	Claimant blocked from his workplace under threat of “serious action”; unable to perform contractual duties.
Build-up: sustained attempts to be heard	Four letters over 28 days (23 Sep, 25 Sep, 4 Oct, 18 Oct 2019) specifically asking the company to respond and confirm safety of return.
The Brick Wall: employer’s silence or inadequate response	Company’s sole response was to direct compliance with SGB. No board resolution. No substantive engagement. Industrial Court: “deafening silence”.
Resignation in response to the silence, not the antecedent act	Claimant expressly conditioned his CD claim on the company’s failure to respond by 5:00 pm, 21 Oct 2019. He resigned in response to the Wall, not SGB’s termination letter.

 

4.2 A New Variant: The Passive Brick Wall

The cases examined in Tahirah (2024) predominantly involved a single employer-employee dyad, where the employer’s own silence was the wall. The Seacera case introduces a distinct variant: the passive Brick Wall, in which the true employer’s silence in the face of a third party’s legally questionable intervention constitutes the repudiatory act.

The company here did not cause the original grievance, nor did it enact the termination. Yet by failing to respond substantively — by neither validating nor disavowing SGB’s actions, and by providing no reassurance as to the claimant’s safety — it erected a Brick Wall between itself and its own employee. This illustrates that the Doctrine is not confined to situations of active employer misconduct. Employer inaction in the face of a third-party threat to an employee’s contractual position can be equally repudiatory.

4.3 The Court of Appeal’s Ruling: A Fork in the Road, Not a Dead End

The Court of Appeal’s application of the common employer doctrine to validate SGB’s disciplinary authority resolves the case on a different legal basis — one entirely independent of the Brick Wall analysis. The import of this for the Doctrine is twofold.

First, the Court of Appeal’s ruling does not negate the Brick Wall as a legal principle. It does not hold that an employer’s silence cannot constitute repudiation of an employment contract. It holds only that, on these facts, SGB had disciplinary authority over the claimant — a finding that changes the character of the employer’s actions but does not address whether those actions were then communicated adequately to the claimant as his true employer.

Second, and more significantly, the Court of Appeal’s silence on the triggering silence is itself instructive. The Brick Wall finding — the “deafening silence” of the company — was never challenged on appeal. It was not argued to be wrong, not found to be inapplicable, and not disturbed. As such, it stands as an unchallenged judicial observation that an employer’s failure to respond to an employee’s repeated requests for clarification is capable of evincing an intention no longer to be bound by the employment contract.

In short: the Court of Appeal resolved the Seacera case on who had the right to discipline — it left entirely open the question of whether the silence with which that discipline was administered was adequate. The Brick Wall Doctrine remains judicially intact.

 

5. Implications for Human Resources Practice

The Seacera Trilogy is, at its core, a story about an HR failure. No HR practitioner intervened at any stage to prevent a RM340,000 litigation outcome that hinged on a single repeated, unanswered question: “Is it safe for me to return to work?”

The thesis from which the Brick Wall Doctrine was developed found, across all 66 sampled cases, that HR was never mentioned as having played a mediating or preventive role in any Brick Wall case (Tahirah, 2024). The Seacera case confirms this pattern. The following HR learning points are drawn from the analysis.

5.1 Recognise the Build-Up Phase

The Brick Wall does not appear without warning. It is invariably preceded by a build-up period — a sequence of grievances, letters, and unanswered requests. In Seacera, this build-up ran from 12 September to 21 October 2019: nearly six weeks during which an HR intervention could have changed the outcome.

HR practitioners should be alert to the following early indicators of a Brick Wall build-up:

• A senior employee who continues attending work despite being under suspension or disciplinary proceedings — demonstrating intent to perform, not to abandon.
• An employee who is writing formally and repeatedly to the company about their employment status — demonstrating they want the relationship to continue, not to resign.
• A disconnect between the entity taking disciplinary action and the entity that holds the employment contract — a structural irregularity that HR is uniquely placed to identify.
• The absence of any substantive company response to the employee’s correspondence.

5.2 Respond Substantively — Not Bureaucratically

The company in this case did respond, technically: it told the claimant to comply with SGB’s instructions. This is what Tahirah (2024) terms a “bureaucratic” response — one that does not engage with the substance of the employee’s grievance. The claimant was asking a human question: “Is it safe for me to come to work?” He received a procedural deflection.

Substantive engagement would have required the company to: (a) acknowledge the irregularity of SGB’s disciplinary authority over the claimant; (b) produce or disclose the board resolution (or lack thereof) authorising the actions taken; and (c) address the safety concern directly. Any one of these responses might have broken the build-up to the Brick Wall.

5.3 HR in Corporate Group Structures: A Special Duty of Care

The Seacera case illustrates a particular risk in corporate group employment structures: where a holding company takes action that affects a subsidiary employee, the subsidiary’s HR function may assume that responsibility lies with the group’s HR or legal team. This creates a dangerous vacuum in which no one engages substantively with the affected employee.

HR practitioners in corporate group settings should ensure that any disciplinary action initiated by a holding company against a subsidiary employee is reviewed by the subsidiary’s own HR function before any communication (or silence) occurs. The employment contract is held by the subsidiary; the duty of response lies with the subsidiary.

The Court of Appeal’s ruling that the common employer doctrine applies does not diminish this HR obligation. Even if SGB had the authority to discipline, the company’s duty to communicate with and reassure its own employee remained. Authority to discipline does not carry with it permission to be silent.

 

6. Conclusion

The Seacera Trilogy offers a rare and instructive window into the lifecycle of a Brick Wall constructive dismissal case, from initial silence to appellate resolution. Its significance for the Doctrine is threefold.

First, the Industrial Court’s independent description of the company’s conduct as a “deafening silence” — without knowledge of the Doctrine — confirms that the Brick Wall captures a genuine and judicially recognised pattern in Malaysian employment law. Courts are already seeing and naming this phenomenon; the Doctrine provides the analytical framework to understand it.

Second, the High Court’s treatment of delay affirms that a Brick Wall employee’s persistence in seeking a response should not be treated as a waiver of the breach. The employee who writes four letters in 28 days is not delaying: they are building a wall against which the employer’s silence is measured.

Third, and most importantly for the development of the Doctrine, the Court of Appeal’s decision to resolve the case on the common employer ground — without touching the triggering silence — leaves the Brick Wall principle intact. The doctrine’s core proposition was never challenged, never rebutted, and never overturned. The wall stands.

For HR practitioners, the Seacera Trilogy is a RM340,000 lesson in the cost of institutional silence. The Doctrine of the Brick Wall is not a theoretical construct: it is a documented, judicially affirmed pattern of organisational failure. The employer who builds a Brick Wall does not escape liability because the wall is made of silence. If anything, that is what makes it so hard to see coming — and so costly once it arrives.

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