If your boss forces you to quit, follow these steps

If your boss forces you to quit, follow these steps

If your boss forces you to quit, follow these stepsImagine this. You’re a pretty good worker. You always come to work on time and meet your goals. You also don’t give people a reason to dislike you. But you upset your boss one day that it’s so bad that he wants to get rid of you out of spite.

It’s clear that your boss knows he can’t fire you whenever he wants because you could take him to court, so he tries to be sneaky by making work so unpleasant that you have no choice but to quit. He might not pay you for a while or change the duties of your job so that you are just an overpaid office boy with a senior management title. You can see through his little plan, but he’s the boss, and you’re just an employee, so what right do you have to stand up to him?

It turns out that there is a power greater than your boss, known as “constructive dismissal.”

Constructive dismissal, to put it simply, is when your employer violates a significant provision of your employment contract, forcing you to quit your work. Based on court rulings, constructive dismissal is common law and applies to Peninsular Malaysia, Sabah, and Sawarak. 

The two common statutes that employees must rely on to sue their employers are the Employment Act 1955 and the Industrial Relations Act 1967. There is no explicit definition of constructive dismissal in these two articles of legislation. Hence, they are quiet on the subject. Nonetheless, Section 20(1) of the Industrial Relations Act 1967, which states that no employees shall be terminated without cause and excuse, may be used to support a constructive dismissal claim:

“Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer, he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.”

Naturally, this does not imply that you can file a lawsuit for constructive dismissal just because your employer gave you a difficult day at work or declined to give you the 20% raise you requested. 

Determining whether a dismissal is constructive will mostly depend on the credibility of the following two considerations.

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The two things you must establish before filing a suit

According to Malaysian courts, an employee must normally meet two requirements to file a claim for constructive dismissal:

Does your employer’s actions violate the terms of your job contract?

  • Does your employer’s actions constitute a material breach of your employment agreement? – Examples that typically suffice to meet this first need include sexual harassment, nonpayment of compensation, and reduction in job scope. 

  • Did you immediately quit your work in response to your employer’s inappropriate behavior? If you instantly leave because you are so sick of your employer’s conduct, you will meet these criteria. Therefore, your case for constructive dismissal may be unsuccessful if you choose to “hang in there” despite your boss’s unreasonable behavior.

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Let’s be clear about who you plan to put before the court for constructive dismissal before we proceed. Although we use “employer” and “boss” loosely, legally speaking, you will sue the person you signed the employment contract with—basically, the name that appears on the contract. 

For instance, even though the manager is making your work life a living hell, you will be suing the company if they hire you to be his assistant. This is so that the manager’s actions will be attributed to the company, as the company is regarded by law as a legal entity (similar to a “separate person”) that “signs” the employment contract with you.

Likewise, you will sue your boss if he pays for your employment out of his funds. 

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What may you ask for, and how can you file a lawsuit after you quit? 

If the two previously stated factors have been or can be confirmed, the procedure will essentially look like this:

  • First, within 60 days of leaving or being fired, you must visit an Industrial Relations department office or write to the Director General of Industrial Relations (more information is available here).

  • The Director General of Industrial Relations will then try to mediate a settlement between you and your employer (conciliation).

  • If this fails, the Director General of Industrial Relations to the Minister of Human Resources will refer to the case, who may subsequently send it to the Industrial Court. Here, you must present your case to your employer and receive a decision.

The continuation of employment and monetary compensation are the typical remedies (compensation) that an employee may request. However, it’s unlikely that the employee would get their job back because the employer-employee relationship is probably fairly bad. Therefore, receiving financial compensation in these situations is far more typical. 

Ultimately, employers and workers have a part to play in creating a fun work environment. Even if you have rights as an employee, not every setback or reprimand indicates that your manager wants to fire you; it could just be that you’re having a difficult time at work or made a mistake. Therefore, it could be better to take a broad view of the situation, review your job contract, consider your options, and decide.

This is not legal advice. Before pursuing any legal action, we always advise speaking with a lawyer.

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