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


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.”



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.