Constructive Dismissal
What is constructive dismissal in Malaysia?
Constructive dismissal occurs when an employee resigns due to the employer’s conduct, which effectively forces the employee to leave. This could be due to significant changes in employment terms, unfair treatment, harassment, or a hostile work environment. The resignation is treated as an involuntary termination by the employer.
What are the key elements required to prove constructive dismissal?
To prove constructive dismissal, the employee must demonstrate:
- Employer’s Conduct: The employer’s conduct must be serious and fundamental, breaching an essential term of the employment contract.
- No Reasonable Alternative: The employee had no reasonable alternative but to resign.
- Immediate Resignation: The employee resigned soon after the employer’s conduct occurred, indicating the resignation was a direct response to the conduct.
What legal recourse does an employee have in cases of constructive dismissal?
An employee who claims constructive dismissal can file a complaint with the Director General of Industrial Relations Department and seek redress through the Industrial Court. The court may order remedies such as reinstatement to the former position, compensation in lieu of reinstatement, or back pay.
How does the Industrial Court assess constructive dismissal claims?
The Industrial Court assesses constructive dismissal claims by examining the facts and circumstances surrounding the resignation. The court looks at whether the employer’s conduct constituted a significant breach of the employment contract and if the employee’s resignation was a reasonable response to that breach. The court also considers the timing of the resignation relative to the employer’s conduct.
What are common examples of employer conduct that could lead to constructive dismissal?
Common examples include:
- Unilateral Changes to Employment Terms: Significant changes to job responsibilities, salary, or work location without the employee’s consent.
- Harassment or Bullying: Persistent harassment or bullying by the employer or colleagues that is not addressed by the employer.
- Unpaid Wages: Failure to pay agreed wages or salary on time.
- Demotion without Cause: Unjustified demotion or significant reduction in job status.
- Unsafe Working Conditions: Failure to provide a safe working environment.
These examples, if not rectified promptly, can justify an employee’s claim for constructive dismissal.
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