Special Feature on Constructive Dismissal Part 2: Why HR Practitioners Must Be Savvy of the Contracts Act 1950

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The law of contract is very much embedded in the doctrine of constructive dismissal. In Malaysia, a big chunk of the body of principles of contract law is put into statutory form in the Contracts Act 1950.

Every HR practitioner must be familiar with the landmark case of Wong Chee Hong v Cathay Organisation [1988] 1 MLJ 92, which laid down the principle that in cases of constructive dismissal the test that ought to be applied is the “contract test”.  It is basically to establish if the employer is guilty of a breach of a term or condition of the employment contract that goes right down to the root of contract.

The contract test means that the complaint of constructive dismissal will only succeed where the employee is able to prove that the employer was guilty of conduct which was repudiatory or in fundamental breach of the contract and that the employee treated himself as discharged following the breach. A modern case on point would be Anwar Abdul Rahim b Bayer (M) Sdn Bhd [1988] 2 CLJ 197.

Constructive dismissal has been referred to as “a doctrine that gives life to an employee who has been dismissed without just cause or excuse”, as per Dato’ Abdul Malik Ishak J in Moo Ng v Kiwi Products Sdn Bhd, Johor & Anor [1998] 3 CLJ 475:

“It is a doctrine that gives life to an employee who has been dismissed without just cause or excuse… This doctrine hinges on the contract test as elucidated by Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. In a broad sense constructive dismissal occurs when an employee repudiates a contract of employment. The repudiation may take the form of a breach, anticipatory breach or notice on intention. It may be expressed or implied and must go to the substance of the contract. If an employee asserts that he has been constructively dismissed, he must establish that there has been conduct on the part of the employer which breaches an express or implied term of the contract of employment going to the very root of the contract.”

The onus of proving constructive dismissal lies with the employee. The employee has to prove on a balance of probabilities that:-

  1. The employer’s conduct amounted to a breach of contract which entitled the employee to resign; and
  2. Whether the employee made up his mind and acted at the appropriate point in time soon after the conduct which he complained of had taken place.

The employer’s defence, therefore, has to bear in mind these two limbs of the employee’s burden of proof. Employers must take advantage of the power conferred by contract law that even if there is a breach by the employer, it does not necessarily amount to sufficient cause for constructive dismissal unless the breach goes to the root of the contract and, if affirmative, whether the breach was a fundamental one.

Since the doctrine of constructive dismissal pivots on contract law, it would augur well for HR practitioners to expand their vista on the subject by a deeper understanding of contractual principles and statutory provisions.  In court, every constructive dismissal case is decided on it merits in accordance with contractual principles, and in today’s dynamic workplace environment, understanding the nuances of a constructive dismissal claim is essential to the practice of HR. An employer’s good intentions in making changes to an employee’s condition of employment will be irrelevant unless the court implies a term into the contract that the employer can “reasonably” alter the terms of employment. As an anticipatory measure, employment contracts must be carefully worded, and to this aim HR practitioners must be shrewd as to the yesses and nos of the Contracts Act 1950 in addition to the prevailing employment legislation in order to safeguard the employer from potential claims for breach of contract. When a claim is made, HR practitioners need to step out of their administrative role into that of an employment law advisor to the organisation’s top management in order to contrive the correct defence mechanism.

You Are Fired

A great Monday read for Termination Specialists!

uvwxying

Angry people, threatening people, people crying in front of you, people begging you… What kind of poor guy has to face all that all the time? Believe it or not, it’s George Clooney.

What a surprise. How could he have to face these situations all the time? Truth is, in the movie Up in the Air, George Clooney plays Ryan Bingham, a corporate downsizer, an expert at firing people.

It’s not an easy job, even for the good-looking layoff veteran Ryan. However, one thing that may be considered cool in his career is that he travels a lot: 270 days out of 365 days in a year. He even becomes a Hilton Hotel VIP for that. Cool enough? No. At the end of the movie, he reaches his goal: collecting 1,000,000 miles with his airline, and wins the exclusive Black Card!

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Oh, don’t call me a spoiler. It’s…

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Special Feature on Constructive Dismissal Part 1: Juicing the Turnip: Mediation and Mediative Methods of Managing Constructive Dismissal

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Staring this week, we shall feature a four-part series on constructive dismissal.

The series is aimed at informing the public in general, and new HR practitioners in particular, about the doctrine of constructive dismissal.

Note that this series, as with our other blog entries, are merely intended as as general information and not meant as legal advisory.

In the context of constructive dismissal in Malaysia, there is a provision for a conciliation process under S.20 of the Industrial Relations Act1967 to resolve the matters between the employee and the employer. Only after this has failed will the matter be referred to the Minister of Human Resources who will decide whether the case should be heard by the Industrial Court.

Parties involved in a constructive dismissal dispute are encouraged to enter into mediation with the intention of reaching a consensual settlement. In mediation, the mediator controls the processes through the stages of introduction, joint sessions, caucus and agreement, while parties control the outcome. The mediator merely assists in identifying and articulating parties’ interests, priorities and intentions.

Mediation is intended to reduce the backlog of cases before the Industrial Court and promote a speedy resolution to the dispute. The advantages of mediation as opposed to litigation are apparent. The mediation process takes up less time than the settlement of a court case and a successful mediation procedure may minimise the financial exposure of both parties.

We are of the view that organisations can adopt “mediation” strategies which forestall potential constructive dismissal claims even before employees have a chance at thinking them up.

Generally, being procedurally fair and compliant to statutory provisions relating to disciplinary sanctions will go a long way. Having an open, transparent and honest two-way communication with employees via meetings or townhalls about the state of the business especially if a laying-off exercise is unavoidable can help minimise the risk of potential claims for both constructive and unfair dismissals. Seeking employee consent and “buy-in” of new policies prior to implementation will take the mutual  trust and confidence factor between employer and employee to a different level, not to mention acting as a contractual safeguard for the employer. Employees who are not kept in the dark will be more inclined to accept the employer’s decision, even though they may not necessarily agree with it.

When it comes to performance issues of individual employees, the ploys may be a little painstaking but the result is well worth it. Explain what the employee has done wrong and provide constructive criticism. Set clear and genuine performance targets, meet the underperformer to discuss the problem, and then devise a potential solution with them. Following this, clear performance goals should then be set and implemented with dates agreed for a follow-up meeting to discuss whether the proposed solution has been working.

This “target-setting” approach may have to be repeated several times before the employer can decide to let the employee go.

To help the process along, employers may issue a warning for  underperformance, as well as cases of misconduct. Legally, a warning is not a precursor to dismissal, however, allegations about misconduct or underperformance should be made out clearly and in full to the employee. The employee then needs to be given a chance to respond, even if the employer is planning to dismiss them. Employers also need to genuinely consider their response.

Dismissing employees is something that cannot be hastily done.  The way an organisation conducts the dismissal may have an impact on whether the employee takes legal action. Give ample notice, pay the required amount of compensation and offer to help them find another job where possible. The whole thing must be carried out in the most professional and non-vindictive of demeanours in order to get the best of the situation and avoid the worst.

And finally, we like the judgement of Farley J in the 1993 case of Standard Trustco Ltd.:

“… you cannot get blood from a stone but you can get some juice from a turnip if it is squeezed the right way.”

 

All In The Family – Why The Kinship Approach Is Vital To Organisations

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Most people spend eight hours a day or more at the workplace. The workplace has become not just a place to earn the daily bread but has evolved into somewhat of a lifestyle concept that impacts one’s thought processes, decision-making and personal life.

Ergo the workplace is a place in which employees would like to be happy, comfortable, and even feel like a second home with family-like atmosphere amongst the people they work with.

It is a good idea for companies to promote a family-like environment in the workplace so employees will be able to take in more positive influences and give out positive vibes in reciprocation to create a great organisational climate as well as strike a work-life balance for themselves.

There is a Malay adage that goes “air ditetak tidak akan putus” which means “cleaving water will not sever it”. The saying is akin to “blood is thicker than water”, referring to the enduring nature of family ties. In the business parallel, fostering kinship values and environment in the workplace can help to strengthen esprit de corps amongst employees, something which is worthwhile for every organisation to consider.

Policy is prime: creating a comprehensive employee handbook or manual that is clear and simply written would be an ideal first step. Seek employees’ suggestions for the manual so they feel a sense of belonging to the company.

Organisations can also help employees feel important by having regular townhalls or meetings where they can voice their opinions and concerns. This has a hidden benefit:  the organisation can gain valuable information about their business that may hurt the bottom line and immediately formulate appropriate action plans.

Hosting Family Days where employees can bring their real families, such as picnics, trips and dinners, where the management can mingle with the employees and get to know their families better, are also a great way of fostering the “family” sense. Employees who perceive that employers care about them and their families will be more productive and loyal as they feel “safe” with the organisation.

Family approaches are also conducive for emphasising trust: a team work environment where camaraderie means having each other’s back and not judging one another.  Employees are also more inclined to stick around during turbulent times when there is a cultural promise to unite as one in good times and bad.

Office ergonomics is also a vital aspect: just as the family home is comfortable, people at work need enough room to perform their jobs, the correct supplies and tools, and a pleasant environment. Organisations that take care of the ergonomic details of their environment are viewed as responsible employers.

Some simple tips:-

  1. Place lots of potted plants around. People feel healthier about themselves, their jobs and the work they perform when they feel a connection to nature around them.  If live plants are not an option, pictures or posters of outdoor scenes have some benefit.
  2. Change air filters regularly, and if appropriate, allow employees to keep their windows open to let in healthy fresh air.
  3. Utilise real sunlight when possible. If offices or workspaces don’t have window access, install ample overhead florescent lights.
  4. Offer healthy food choices in the cafeteria as healthy food helps people think better, improves mood and increases energy levels.
  5. Allow employees to personalise their work space, within reason. This can also be therapeutic for them as it allows them to relax by looking at family photos, vacation souvenirs or motivational mini-posters.

Finally, celebrate employees’ milestones both at work (promotions, completion of projects, jobs done well, positive feedback or praises from clients) and off work (marriages, new baby, graduations). Organisations which recognise, appreciate and reward are respected by their workforce. Respect brings about employee commitment and allegiance to the organisation which are crucial to reduce the employee turnover rate.

The Thing About Being In A League Of Your Own

Mo Farah in a League Of Their Own. Photo copyright of The Guardian and included here for illustration purpose only.

I have a young friend from the UK named Muhammed Mustaqim, a Journalism student. One day he tweeted about having stood up in class to talk about a particular subject matter, only to be reciprocated by silence and strange looks from his cohorts as if he had said something totally alien to the comprehension of the rest, “like a scientist talking to journalists”. The episode made him feel a little down, and from my big-sisterly point of view he seemed to doubt himself a little at that point.

Although he did not elaborate on what the subject matter was, and I would not understand it anyway if he did as I am not from the field, I guessed that Muhammed had actually seen a particular issue from a unique perspective and vocalised it, and the others were just too perplexed to appreciate the (his) awesomeness as it was beyond their limited scope of experience or familiarity given their green age bracket.

So I told him, take it in stride, it only means you’re differently-talented and it is not to be seen as a failure or weakness on your part.

Some of us have the ability to see things from an exclusive viewpoint. Personally I consider such people as highly-talented. There is an increasingly large number of them amongst the Gen-Ys and I envisage that in five years or so the corporate world will have an influx of them. Which is necessarily a good thing but organisations must be prepared to accommodate their presence and learn the art and science of extracting their virtuosity. Such people need a different kind of management, one that knows how to respond to talent, how to encourage it to grow, whilst gently steering it towards the organisation’s goals.

The thing about those who are in a league of their own is that they express themselves bluntly when they are happy and when they are not.  Not everyone can understand this and as a matter of fact their personality types often invite misunderstandings and misconceptions rather than appreciation.

Highly-talented people also have low tolerance for petty things, such as the insecurity of their managers with regard to their abilities. They are not in the organisation to topple over anyone, just raring to put their competencies to action. They therefore trust that their managers will be able to give them the forum for this, not to be jealous of something that they fictionalise.

Talented individuals have very different values and motivation from the majority, they think faster but get bored easily. Due to this, they need different kinds of challenges, preferably with more complexity. The manager of talent needs to be able to cope and be comfortable with the fact that they are more able than the rest of the team.

People in a league of their own do not conform to certain norms and organisations need to be prepared to lead them in a different way. The operative word being “lead” and not “control” or “manage” or “deal with”. The leaguers do not have a superiority complex per se, but they often appear to be outwardly cocksure and arrogant, although that is actually their way of expressing confusion and need for clarification.

This group of people are already self-empowered and independent by nature. This is not a problem in itself, but can be, if the management does not make an effort to see things from their point of view. It does not mean the management must accord to their every wish. Just don’t create unnecessary tension, and listen to them more instead. Tap their ideas, but gently coax them into blending in with the company culture.

Highly-talented people like freedom and space. Do not nag or breathe down their necks. Most importantly they value trust. If you trust them to do their job, they will deliver. They will respect a person whom they perceive understand them. They honour these people as their mentors or icons and will be more inclined to listen to them than anyone else.  It augurs well for the management to identify these Yodas and make them “mediators” between the bosses and the leaguers.

How do these Yodas do it?

First of all they talk the language of the leaguers. They DO NOT not talk down to them.

Secondly, the talented tend to push boundaries, resulting in a confused relationship between them and the  management. Yodas understand this and work harder (and with more patience) with the talented and seek opportunities to optimise their contribution to the company’s growth. They do not force or impose, but guide and appreciate.

People who are particularly good at something which is of value for the organisation, present two fundamental challenges for any manager:- balancing the value of the talented person’s individualism with the need for control balancing the value of the talented person’s individualism with the need for teamwork . The Yodas take these challenges by the horns.

Managers may want to adopt a Yoda-ish stance: you shouldn’t feel inferior compared to your high-impact team. They respect your chair by default, and they are only expecting one thing from you: to be a friend. Be that.

Notwithstanding all this, leaguers have a responsibility too, if they want to realise their talents fully, to recognise and engage with the context they are working in. You are still part of the team and you cannot have pure autonomy.

I can see how my young pal Muhammed can excel in his chosen vocation and in life, as his gift is already apparent. My advice for him and others like him is to have a high threshold of tolerance and never compromise on being you. There are more people running this world who do not readily understand talent but given the chance, and time, and by Allah’s grace, eventually they will. The key is to use your talent to turn situations to your advantage every time.

 

Why New Trainers Must Migrate From Pedagogical to Andragogical Methodology

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I address new trainers because I am sure seasoned veterans in the training industry have already done this, but in any case, it is not too late for the more experienced of us to consider reviewing our delivery style.

Why do we need to make our trek from pedagogy to andragogy?

You see, it all boils down to the answers to two questions.  What do we trainers want from the people we train? And what do we NOT want?

We want to see them enjoy learning from us and we want them to open up and share their experiences (or frustrations as the case may be) in the learning process. We want to enrich and be enriched, impart knowledge and have wisdom boomerang back to us.

And we do not want to bore and be bored.

First of all, pedagogical methods are very dependent on the trainer. The trainer is the teacher, the training room is a classroom or lecture hall, and the modules are dry. It is a unilateral communication of information: the trainer is fully-responsible for how the “lessons” go and evaluates the learning process while the participant is a mere “student” who does not have much say in the whole activity.

While this may be appropriate for an academic teaching and learning scenario, it is a guaranteed sleeping pill for adults who attend a corporate training programme expecting his mastery in a certain skill or subject to improve markedly over two training days.

By using andragogical methods however, the training participant is made to be responsible for his own learning and is encouraged to evaluate himself.  The training room is a big “brainstorm-tank” full of professionals and executives each with their own understanding, capability or experience related to the skill or subject of the training programme, instead of an uninspired classroom.  The trainer changes roles from “instructor” or “teacher” or “lecturer”, to “facilitator”, “coach”, and “encourager”, inspires participants to critically-analyse the information delivered to them vide the training syllabus vis-à-vis their own experiences and the experience of the group collectively, for an all-rounded learning experience. A good trainer will know how to tap the rich resources from participants and blend them with the training modules to create synergised knowledge of practical value.

While the pedagogical way dictates to participants what they have to learn to upskill themselves, the andragogical technique encourages enthusiasm for adult learners to gather more skills by deciding how and what they want to learn, using the modules as a guideline. Trainers can break the dull routine of sequencing modules to letting the programme run on a natural course and adapting the training pace and modules to go along with the flow of the ongoing discussion in the training room. Trainers must be able to deliver outside what is on the PowerPoint, answer questions on their feet, and  “twist” the topic to bring in the element of relevance to real-life issues and problems in order for participants to gain maximum value from the programme that will help them perform a certain task, solve a problem or have more satisfaction at work.

Most importantly, whatever the programme, trainers must instill excitement and confidence in the participants to apply or use the skills or knowledge harvested from the training programme. Participants must be made to feel the “I can’t wait to show my colleagues or boss what I’ve learned” feeling. Trainers need to appreciate that even adults need recognition, so engage them in discussions and activities which give reason to praise, acknowledge or recognise them. Respect them as professionals instead of looking at them as mere “trainees”.  They will remember what you imparted to them, but more importantly they will remember you for the difference you brought to their learning experience.