Constructive Dismissal happens when an employee resigns due to an employer’s conduct, which has made continued employment intolerable or unreasonable. The resignation is not voluntary but rather forced due to the employer’s actions, making it equivalent to an unfair dismissal.
Key elements of a Constructive Dismissal in Malaysia is:
- There must be a fundamental breach of contract by the employer.
- The breach must be so serious that it forces resignation.
- The employee must resign due to the breach.
- The employee must resign without undue delay.
Now, I want to highlight that for a constructive dismissal to be valid, the breach MUST be a FUNDAMENTAL breach that goes to the root of the employment contract – it cannot be just because the boss is being difficult, unreasonable, or mem-🐷.
The Industrial Court has consistently ruled that not every unfair treatment or toxic work environment qualifies as constructive dismissal. Again, the breach must involve a serious violation of an essential term of the contract i.e. something that fundamentally affects the employee’s right under the employment agreement.
Examples what is NOT considered Constructive Dismissal:
❌ Boss shouts at me
❌ Boss increases workload without increasing my salary
❌ Boss favourites another person but not me
❌ Boss stresses me like crazy without understanding
However, these examples CAN qualify as Constructive Dismissal:
✅ Salary cut without agreement or due inquiry
✅ Unfair demotion where a significant downgrade in rank or authority without justification
✅ Forced relocation where the employment contract does not allow transfers and the move creates hardship unreasonably
✅ Serious breaches in workplace safety like employer failing to provide a safe working environment
And here’s the tricky part – the burden of proof is on the employee. This means if you claim constructive dismissal, you must provide solid evidence that the employer fundamentally breached your contract and forced your resignation. Without strong proof, the case will likely fail.
xoxoxo, AuntyHR
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