The Doctrine of Constructive Dismissal: What It Is, What It Isn’t

(First published as a series of posts in February 2019)

Through this write-up I shall endeavour to illustrate what constructive dismissal (CD) is and the myths and misconceptions surrounding the doctrine. If you are looking for legal and technical explanations you may want to refer to the plethora of cases and materials on the subject, easily available on the net. My aim is to make practical simplifications so the everyday employee can understand what his/her rights and obligations are.

CD occurs when an employee resigns because of his employer's behaviour. In Malaysia, the authority for CD is Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 CLJ 298. Gopal Sri Ram JCA as he then was, described CD in Quah Swee Khoon v Sime Darby Bhd [2001] 1 CLJ 9 like this: "An employer doesn't like a workman. He does not want to dismiss him and face the consequences. He wants to ease the workman out of the organisation. He wants to make the process as painless as possible for himself. He usually employs the subtlest of means."

CD is the workplace succubus that hides in the light, that silently creeps up upon you and sucks the soul out of you. Before you realise what is happening, you have been hollowed and left to die.

Common examples of CD include:

1. Forced resignation
2. Placement in "cold storage"
3. Unilateral variation of a fundamental term of the employment contract by the employer
4. Non-payment of wages
5. Reduction or deduction of salary or benefits
6. Not providing work for prolonged period
7. Demotion or downgrading (unless in compliance with S.14(1) of the Employment Act 1955)
8. Unnecessary or inordinately long suspension
9. Transfer orders tainted with mala-fide intentions
10. Failure of the employer to provide a safe working environment
11. Failure of the employer to investigate a sexual harassment complaint
12. The employer acting in a way that destroys mutual trust and confidence.

Basically, if you're being scape-goated, dog-housed and black-sheeped, you're being CD-ed.

Four conditions must be met for CD claim to be successful:

1. There must be a breach of contract by the employer
2. The breach must be sufficiently important to justify the employee resigning
3. The employee must leave in response to the breach, and
4. The employee must not delay in walking out of his job.

 Defending a case of CD needs precision timing and exactitude of claim. It is NOT CD if the claimant, say, waits for a year before leaving his job after being unilaterally demoted in rank, even though there was no just cause for the demotion. He will be seen to have waived the breach by his employer and varied the contract of employment.

It is also NOT CD if the employee is overzealous and walks out of his job prematurely, for example after receiving a show cause letter from his superior. He cannot assume that he will be subject to punishment just because his employer requires an explanation from him about a particular incident.

Hyper-sensitivity and childishness on the part of the employee such as leaving the office in a huff on the pretext of “merajuk” after being reprimanded by a superior in private is also NOT grounds for CD.

Can you think of anything else that's NOT CD? This is to ensure you understand that in order for your claim to succeed, you CANNOT be emotional in dealing with it. Use your judgement and maintain a professional demeanour when you walk out of your job, no matter how humiliated, angry or depressed you feel.

Should you tell your employer that you consider yourself having been CD-ed and are therefore walking out of your job for that reason?

It is advisable to do this. Write a notice of resignation in the usual manner but instead of giving contractual notice, state that you are leaving your job immediately because of (describe the breach). Ensure that your reason for leaving is due to that breach by your employer and not because of some other unconnected reason. Do not mask your real reason for leaving in any way by providing a different explanation (family problems, better offer, further study), because it will affect your chances of successfully claiming CD.

Some may ask, if I have been repeatedly humiliated, when would be the right time to walk out? Well each case has its peculiarities and I cannot really say that you should leave after X number of incidences. Based on past Court awards, however, don’t wait past the 4th time. Once you get the “that’s it, I cannot take any more of this” feeling, that is when you should leave. This is called the doctrine of “The Last Straw”, that precise moment something at the back of your head snaps. This is called “impaired volition”.

Note: The author is a termination specialist, with an entire Master of Science (by Research) thesis in the study of the Doctrine of Constructive Dismissal behind her.

(c) Tahirah Manesah Binti Abu Bakar, 2019