Situation 3: Requesting Resignation
This is a big no-no. The most common bs lines I’ve heard over the years is this. “You want a clean record. You don’t want your file to read that you have been terminated before. So better for you to resign.”
Or a case like this one: Michael Brian Davis v. Microsoft (M) Sdn Bhd [2000] 8 CLJ 386
The company was not happy with Michael’s performance, so he was subsequently placed in a PIP. In 2 occasions, he was asked blatantly to resign. To the extend the company prepared the resignation letter for him to sign.
So, it was obvious that the conduct of the employer evinced an intention to be no longer bound by the contract of employment, hence the court ruled in favor of Michael.
Situation 4: Transfer
Now, it’s true that the company has the right to transfer an employee from one branch to another. The consent of the employee is not required even if the contract of employment expressed a transfer clause. Because it would just be unreasonable, and we already learnt that The Unreasonable Test doesn’t work.
However, the law is always fair.
Like this case: Dicklin Sdn Bhd v. Bathma Subramaniam [1991] 2 ILR 750
The company wanted to transfer Bathma from KL to Sabah. She didn’t want to go because she was taking care of her aged & widowed mother. Then his husband was also working in KL. On top of that, the company didn’t give her any relocation allowance nor covered her flight tickets.
Yes, the company had the right to transfer but not to the extend of a transfer to cross the ocean without justification. And the company ignored her financial needs & her personal problems, added grievance to the case. It was argued that the company just wanted to get rid of her without paying lay off benefits.
Now, that is mala fide i.e bad faith. Hence, the court upheld the constructive dismissal claims.
Happy Weekend Everybody. To conclude this week’s series of Constructive Dismissal, just remember this. Be fair to the employee. Be fair to the employer. And the employee always comes first.
Bimbo
#ConstructiveDismissal #HRMatters #BeFair
Follow @Sim Ling KU #TheAspiredCXO also a panelist/wingman in IR Courts.
