CONSTRUCTIVE DISMISSAL
By Faudzil Harun
In employment law, constructive dismissal, also called constructive discharge, occurs when employees resign because their employer's behavior has become so intolerable or heinous or made life so difficult that the employee has no choice but to resign. Since the resignation was not truly voluntary, it is in effect a termination. For example, when an employer makes life extremely difficult for an employee to attempt to have the employee resign rather than outright firing the employee, the employer is trying to affect a constructive discharge.
The exact legal consequences differ between
different countries, but generally a constructive dismissal leads to the
employee's obligations ending and the employee acquiring the right to make
claims against the employer. For example in the United Kingdom, a claim for "unfair dismissal" and a claim for "wrongful dismissal" may arise.
The employee may resign over a single serious incident or over a pattern of
incidents. Generally, the employee must have resigned soon after the incident.
In the United Kingdom, the notion of constructive dismissal comes from the concept that (as it is phrased in United Kingdom law) "An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.
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The Concept of Constructive
Dismissal
Constructive dismissal refers to the termination of employment by the employee for which the employer is responsible and where the employer is the prime mover of the process of termination.
Constructive dismissal meant no more than the common law right of an employee to repudiate his contract of service where the conduct of his employer is such that the latter is guilty of a breach going to the root of the contract or where he has evinced an intention no longer to be bound by the contract. In such a situation, the employee is entitled to regard himself as being dismissed and walk out of his employment.
In Harta Maintenance Sdn Bhd v Vanaja Chelliah & Others – I/C Award 174/99 quote from Dicklin Sdn Bhd v Bathma Subramaniam (1991) 2 ILR 750; it was held that if there is no contractual term in the contract of employment to enable the employer to transfer then it is a repudiation of the contract of employment which would entitle the employee to claim constructive dismissal.
In Ang Beng Teik v Pan Global Textile Bhd Penang (1996) 4 CLJ 313 the court held that :
“ A workman may treat some conduct on the part of his employer towards him, which falls short of actual dismissal or termination, as amounting to a dismissal. The workman may consider his demotion or transfer as being the same as a dismissal. Thus, although there has been no formal dismissal or termination, the workman may have recourse under Section 20 of Industrial Relations Act, 1967.
In the United Kingdom, the notion of constructive dismissal comes from the concept that (as it is phrased in United Kingdom law) "An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.
Constructive dismissal refers to the termination of employment by the employee for which the employer is responsible and where the employer is the prime mover of the process of termination.
Constructive dismissal meant no more than the common law right of an employee to repudiate his contract of service where the conduct of his employer is such that the latter is guilty of a breach going to the root of the contract or where he has evinced an intention no longer to be bound by the contract. In such a situation, the employee is entitled to regard himself as being dismissed and walk out of his employment.
In Harta Maintenance Sdn Bhd v Vanaja Chelliah & Others – I/C Award 174/99 quote from Dicklin Sdn Bhd v Bathma Subramaniam (1991) 2 ILR 750; it was held that if there is no contractual term in the contract of employment to enable the employer to transfer then it is a repudiation of the contract of employment which would entitle the employee to claim constructive dismissal.
In Ang Beng Teik v Pan Global Textile Bhd Penang (1996) 4 CLJ 313 the court held that :
“ A workman may treat some conduct on the part of his employer towards him, which falls short of actual dismissal or termination, as amounting to a dismissal. The workman may consider his demotion or transfer as being the same as a dismissal. Thus, although there has been no formal dismissal or termination, the workman may have recourse under Section 20 of Industrial Relations Act, 1967.