Constructive Dismissal In Industrial Matters

There are cases whereby the employer will refuse to give a termination letter but will ask the employee to resign.  The employer will use all kind of tactics to force the employee to resign. 

The reason why a employer will ask the employee to tender a resignation letter is that the burden to prove will be with the employee and he/she must show to the Industrial court that the dismissal was without just cause or excuse.

If the employee gives a letter of resignation because of the employer's unreasonble behaviour and the matter is referred to the court, it will be named as "constructive dismissal" case or "CD case".

CD will operate when an employee resigns because of employer's behaviour.  The primary issue in a CD case is to see the conduct of the employer and not the conduct of the employee in the dismissal.  To see whether the employer without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.   

In the case of Quah Swee Khoon v Sime Darby Bhd [2000] 2 MLJ 600 at 609, Gopal Sri Ram JCA (a retired Federal Court Judge and now a practising lawyer), he had described "CD" as:-

"A reading of the pleaded case for the parties resolved the issue that fell for adjudication before the Industrial Court into what the profession has come to call as a "constructive dismissal".  There is no magic in the phrase.  It simply means this.

An employer does not like a workman.  He does not want to dismiss him and face the consequences.  He wants to ease the workman out of his organization.  He wants to make the process as painless as possible for himself.  He usually employs the subtlest means.  He may, under the guise of exercising the management power of transfer, demote the workman.  That is what happened in Wong Chee Hong [a case law].  Alternatively, he may take steps to reduce the workman in rank by giving him fewer or less prestigious responsibilities than previously held.  Generally speaking, he will make life so unbearable for the workman so as to drive the latter out of employment.  In the normal case, the workman being unable to tolerate the acts of oppression and victimization will tender his resignation and leave the employer's services.  The question will then arise whether such departure is a voluntary resignation or a dismissal in truth and fact."

The employee must make a decision  whether to take this path, "CD".

Ramu