Special Feature on Constructive Dismissal Part 4: LinkedIn, Squeezed Out – The Future of Constructive Dismissal?

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In the final instalment of our constructive dismissal series, we look at the historical case of Flexman v BG Group ET/2701998/11.

John Flexman is reportedly the first person in the world to bring a case for constructive dismissal over social media.

Flexman was the Graduate and Development Manager of BG Group, a gas exploration company based in Reading, England. The problem started when Mr Flexman uploaded his CV and ticked the box in his LinkedIn profile page to register his interest in ‘career opportunities’. He was contacted by his manager whilst on a family holiday in the United States and ordered to remove his CV. On his return he was accused of ‘inappropriate use of social media’ and called to attend an internal disciplinary hearing.

BG Group claimed that Flexman breached its social media policies by uploading his CV to LinkedIn and ticking the “career opportunities” box on his LinkedIn profile. It also accused Flexman of breaching confidentiality by stating on his CV that he was assisting the company in reducing its “attrition rate.”  Flexman eventually resigned and claimed constructive dismissal.

The Employment Tribunal upheld Flexman’s claim of constructive dismissal due to unacceptable delays in the company’s dealing of the case and the company’s failure to address a grievance related to the incident.

Forbes’ Kashmir Hill contended that the conflict between an employee’s desire to brag about what they’ve done at a company and that company’s desire to keep such things under wrap is a common one in the social media age. “As I’ve written before, corporate spies say there are lots of juicy tidbits to be found in LinkedIn profiles. Also at issue here appears to be a company’s sensitivity to its employees playing the field. Finding an employee on LinkedIn seeking “career opportunities” is a little like discovering your significant other has an active OKCupid account” writes Hill.

Through their omnipresence and power to make or break public perception of individuals and organisations, social media sites are now pervading into contractual relationships between employer and employee and destroying the sense of mutual trust and confidence. Employers must ensure they are one (or a few!) steps ahead of employees and have proper social media policies in place protect their reputation as well as stop possible leaks of confidential information.

To us at Har Abada Nasara, the Flexman Revolution is a prophetic indication of the shape of things to come in constructive dismissal. This case may set the trend for a more litigacious generation in the workplace. Employers in general and human resources practitioners in particular must be prepared for this wave of change brought about by a new breed of employees who have savoir-faire in both law and technology. The need for human resources practitioners to master more than just everyday operational personnel management skills cannot be emphasised enough.

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.

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.

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.

 

Keep Calm And Love HR

When I first graduated, I didn’t care much for HR. Never thought about it, never had anything to do with it. It looked complicated. Labour law looked complex. I went into corporate legal as early as my first job and was doing policy-making and employment-law related projects to handle, but operational HR was handled by someone else, and it didn’t look like something I would be good at doing.

I gravitated towards HR in the early 2000’s when I met my then HR Assistant named Rohayu.

I was then the Head of Corporate Services and HR was under my purview. Rohayu or Kak Ayu as we called her, had a natural talent for HR and having her in my team was a pleasure, but it was her trademark style of dealing with people that magnetised the rest of the staff towards the HR Department and made me very interested to analyse the HR function, and her working style, with much interest. At places where I worked before, HR is not viewed with enthusiasm, and I wondered why the case was different in this organisation, particularly, where Kak Ayu was concerned.

I figured out soon enough that she viewed her job as a means of connecting with people. She smiles at everyone. Always ready to listen to anyone who has a problem. Always willing to help. Was efficient in her work and when the answer was a “No” she would make an iced cupcake out of it. I watched her touch the lives of the rest of the employees in that organisation. She used her job to help people. And she seemed to enjoy it.

She was Big Sister to all of us. While I was just The Bossy Boss, the Division Head whom people rarely talked to because, well, I didn’t want to talk to anyone anyway. To me, being in charge of HR was all about compliance to laws and policies, discipline and punishment, and being a perfectionist so that I could have a reason to tick off those who are not. I was a Law and Policy Person, not a People Person. After working with Kak Ayu, I realised I was doing it wrong, but I liked that realisation, and that became my tipping point.

The nobility of HR is obvious to me now after more than 15 years on the job, but I understand if many people still don’t see it and if many HR practitioners are not actually “feeling” it. Not everyone loves you.

Why is HR hated? I will address this in detail in another post but here is a big reason why: the way the company is managed puts HR as second class citizens. HR bears the brunt of mismanagement and bad organisational climate. HR people get frustrated and take it out on their jobs.  Employees do not know this. The one who gets the black sheep image is HR.

I however urge everyone to give HR a break. Take time to talk to your HR Manager or Officer. Not just when it comes to your performance appraisals but as a friend. Get insights into their job, why and how they got into the field. I can tell you one thing. HR people love their job. Even if they don’t show it. It takes a lot to be a HR practitioner, and you cannot do it without love.

My favourite HR influencer, Dave Ulrich,  professor, Ross School of Business, University of Michigan Partner, The RBL Group, defines six competencies for the HR professionals. Please read them, so that you can see the mettle that makes up your HR colleagues and the challenges they have to rise to in order to keep their jobs, and to keep yours.

Yes we are all these things, and yep, HR is more than meets your eye. But these are roles that we play which we are not manifestly seen to be playing by other employees.

If Ulrich couldn’t convince you, then let these HR-by-HR articles entice you:

http://hrringleader.com/2011/08/19/top-10-reasons-to-love-hr/

http://hrjourneys.blogspot.com/2007/12/why-i-love-hr.html

http://www.payscale.com/compensation-today/2011/01/hr-staff

I love my job for a far bigger reason. Because it humbles me. After I started adopting Kak Ayu’s HR style, I opened my door, closed my mouth, and lent my ears to staff grievances together with the HR team. I binned the perfectionist attitude (problem), got into the shoes of the others, and rolled up my sleeves to solve their problems together with them. That was many many years ago. Today I reap the reward: not a tangible reward, but a spiritual one. And that is a true reward indeed.