Claim of Constructive Dismissal
TOPIC: CLAIM OF CONSTRUCTIVE DISMISSAL
Constructive dismissal is a term used when an employee terminates his employment contract and considers himself discharged from further performance of his work as a result of his employer's behaviour.
In Bayer (M) Sdn Bhd v Anwar Abd Rahim [1996] 2 CLJ 49, the court stated 4 conditions to be met by an employee in order to claim constructive dismissal. The four conditions are: (1) There must be a breach of contract by the employer; (2) The breach must be sufficiently important to justify the employee resigning; (3) The employee must leave in response to the breach and not for any other unconnected reasons; and (4) He must not occasion any undue delay in terminating the contract, otherwise he will be deemed to have waived the breach and agreed to vary the contract.
The High Court decision was upheld by the Court of Appeal in Anwar Abdul Ibrahim v. Bayer (M) Sdn. Bhd. [1998] 2 CLJ 197 and subsequently, the Federal Court.
Talking about breach of employment contract by the employer, it must be fundamental breach going to the root of the employment contract such as reducing employee's wages, removing certain benefits, harassment & bullying, demotion in transfer just to name a few.
If any of the four conditions not met, then the employee failed to establish constructive dismissal. The court would consider as voluntary resignation or abandonment of employment.
On contrary, if the employee successfully establish the four conditions, then there is a dismissal by the company. However, the employee does not automatically win the case. The burden is now shifted to the employer to justify the dismissal. If the employer can prove the dismissal was with just cause or excuse, then the Court will award in favor of the employer. However, if the employer cannot prove with just cause or excuse for the dismissal, the court will give award in favor of the employee.
Conclusion In order to claim CD, the employee must meet the four conditions which is: 1. There must be a breach of the employment contract by the employer 2. The breach must be fundamental breach going to the root of the employment contract 3. The employee must leave because of the breach 4. The employee must leave immediately.
Secondly, when the employee had successfully establish constructive dismissal, the burden then shift to the employer to justify the dismissal.