What Constructive Dismissal Means
You resigned because staying became impossible, and you want to know if that still counts.
Constructive dismissal happens when you resign because your employer’s own conduct left you with no real choice. Malaysian law can still treat that resignation as a dismissal.
What It Means
The test used by Malaysian courts is called the contract test. You may treat yourself as dismissed if your employer breaks a term that goes to the root of your employment contract, or shows it no longer intends to be bound by it.1
This is different from simply being unhappy at work. The breach has to be serious, not a minor disagreement or a single unpleasant meeting.
Why It Matters To You
Courts commonly apply four conditions from a case called Bayer: the breach must be fundamental, it must be serious enough to strike at the contract’s core, you must have resigned because of it, and you must not have delayed or carried on as normal after it happened.2
That last condition catches people out. Waiting months before resigning can be read as accepting the change, even if you were unhappy the entire time.
How Do You Prove It
Set out a timeline of what changed, when, and how you objected at the time, such as an email or a conversation you can point to. A sudden pay cut, a forced transfer, or a demotion without agreement are common triggers.
Because the clock for filing a Section 20 representation runs from your resignation date, check your exact window on the deadline calculator as soon as you can.
If pressure came in the form of a direct threat to quit or be fired, the related idea of forced resignation may describe your situation more precisely.
Walking us through what your employer changed or did, and how soon after you resigned, helps us see whether your case fits the legal test.
Common questions
Do I have to resign in writing to claim constructive dismissal?
You do need to actually resign, since the claim only exists once you leave. How you word the resignation letter matters less than being able to show the breach that pushed you out and that you left soon after it happened.
What if I only had a pay cut, not a firing threat?
A serious, unagreed pay cut can be enough on its own, since pay is usually a core term of your contract. Whether it is serious enough depends on the size of the cut and whether you agreed to it.
Sources
- The Federal Court in Wong Chee Hong v Cathay Organisation (M) Sdn Bhd applied the contract test, under which an employee may treat themselves as dismissed if the employer breaches a term going to the root of the contract. Thomas Philip, Forced To Resign? This May Be Constructive Dismissal
- The four conditions summarised in Bayer (M) Sdn Bhd v Anwar Abd Rahim require a breach of a fundamental term, a breach serious enough to go to the root of the contract, resignation caused by that breach, and no delay or affirmation by the employee. Thomas Philip, Forced To Resign? This May Be Constructive Dismissal
Keep reading
Walking us through what your employer changed or did, and how soon after you resigned, helps us see whether your case fits the legal test.