Special Feature on Constructive Dismissal Part 3: “Jumping the Gun” Explained

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If an employee overreacts to the employer’s unreasonable act and quit before the employer actually commits a fundamental breach, the employee might be jumping the gun in presuming that a constructive dismissal has taken place.

Leaving hastily can be construed as abandoning employment. In Kerry Foods v Lynch [2005] IRLR 680, the employee was a manager in the appellant company. The terms and conditions of the employee’s contract of employment provided that he has to work a 5-day week, whereas other managers who were employed after him had to work a 6-day week. The company had indicated to the employee that it intended to persuade all managers to work a 6-day week. The employee had objected to the change and the company wrote a letter to him indicating that it intended to terminate his current contract in the absence of his agreeing to the new terms and to re-engage him under a new contract containing the new terms which was discussed.

The employee resigned and complained that the proposed changes to his terms and conditions had seriously damaged the relationship of trust and confidence between the parties. The Employment Tribunal found that the employee had been constructively dismissed, however, the Employment Appeal Tribunal (EAT) held that the company had provided lawful notice of termination, which could not constitute a breach of the implied term. The company’s service of a lawful notice of termination together with an offer of continuous employment on different terms could not amount to a repudiatory breach of contract. There had been neither a breach of the existing terms nor an anticipatory breach in indicating lawful termination of the contract on proper notice. The employee in this case had jumped the gun. The EAT declared that there was no dismissal, and set aside the tribunal’s decision and consequent award.

Back on home soil, the case of Malaysia Airline System Berhad, MAS Golden Boutique Sdn Bhd v Noridah bte Ahmad [2003] 2 ILR 561 illustrates the concept of jumping the gun in the context of a transfer. The 2nd company  in this case is the subsidiary of the 1st company, with the same Chairman.  After the Board of Directors’ meeting of the 2nd company, the claimant was asked to meet with the Chairman and the Executive Vice-President Corporate Services. The claimant was told by the Chairman that the 2nd company was not performing well and he wanted her to write in for a transfer or else she would be sacked. That same night the claimant wrote a letter to the Vice-President Corporate Services requesting for a transfer.  6 days later, the claimant sent another letter claming constructive dismissal, stating that she was forced by the Vice-President to request for transfer and that she did not deserve this treatment after having  served for 22 years with the companies, and that she had yet to receive a reply for her letter requesting for transfer.

The Industrial Court in Noridah held: “Going by the evidence and law, the court is satisfied that on the balance of probabilities the claimant had failed to prove that the companies had acted in the manner which resulted in the relationship of mutual trust and confidence between employer and employee had broken down. Evidence had shown that the 1st company was still willing to keep the claimant in their employment but the claimant in haste and on her own volition had abandoned the employment. It was the claimant herself, who had walked out of employment. The court therefore makes a finding that the claimant was not entitled to consider herself to constructively dismissed.”

Constructive dismissal is not the easiest of allegations to prove. Many employees get over-excited about making a claim for constructive dismissal without actually having a solid grasp of the facts at hand, let alone the law. Most base their claims on the advice of “friends” and rumours of success stories at the labour office. In truth, most constructive dismissal claims fail on technicality.

The most important thing for an employee to remember is to get your facts right in any circumstances. Never assume anything before you actually fully clarify your doubts relating to changes proposed by your employer. Be a little patient and wait out to see whether a breach actually takes place. If you jump the gun and quit your job without ample proof, your employer could just shrug it off and assert  they never did anything which would make you quit your job. Every employee must remember, the law does recognise the prerogative of employers to rearrange their commercial operations however they wish as long as the intention behind the action is bona fide in the interest of business.

If you suspect that you are being squeezed out of your employment by changes affecting your work, take it step by step.  Begin with a meeting with your manager or supervisor. Do this professionally: prepare notes of incidents or events leading up to your complaint or better still, transcribe them into a proper report format.  Voice your grievance calmly, stick to the facts and avoid getting emotional. You may also go directly to your HR Department if it is your manager who is the subject of your grievance. Be open to the responses you receive. Not every member of the management team is out to black-sheep the rest of the staff. If you are still dissatisfied, seek the advice of your friendly labour officer at the nearest Jabatan Tenaga Kerja or Jabatan Perhubungan Perusahaan. Same principle applies: bring your notes, include the transpire notes between you and your manager/HR Department. All the best.

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