Case Update: Employer’s poor handling of workplace assault and harassment complaints amounts to constructive dismissal

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In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

Most employers are now aware of the importance of having clear policies and processes when it comes to handling complaints and disciplinary issues. It’s the norm for businesses hiring a reasonable number of employees to have in place various codes of conduct, guidelines, and policies.

Despite this, an employer that receives an employee complaint and acts on it could still be at risk of being deemed to have breached the terms and conditions of employment, or severed the employment relationship, due to shortcomings in how the complaint was handled.

The Industrial Court recently considered these issues in Justin Maurice Read v. Petroliam Nasional Berhad (Petronas) (Award No. 965 of 2017). In this case, the claimant (the Employee) had complained of being assaulted and harassed in the workplace. The Employee then claimed that the manner in which these complaints were handled by the company (the Employer) entitled him to claim to have been constructively dismissed.

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Case Update: When an employee transfer can amount to a constructive dismissal

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In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

It is a well-established principle in employment and industrial relations law in Malaysia that the right to transfer an employee is a prerogative of the management which the Industrial Court would rarely interfere with. However, there are factors which may affect an employer’s ability to transfer an employee without consent, including the following:

  • Whether the transfer is between different roles or departments within the same location, or from one branch or location to another, or between different companies within the same Group.
  • Whether the transfer is brought about by bona fide or genuine business reasons.
  • In some cases, the practical effect of the transfer may also be relevant (eg the impact of a change in work location or job functions).

In short, employee transfers are not always straightforward. Transferring an employee without consent may result in a breach of contract or constructive dismissal.

The Industrial Court considered these issues in Ng Bee Yoong v. Capital Development Sdn Bhd (Award No. 186 of 2016).

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Handing employee dismissals properly under Malaysian law

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In this series, we have addressed the general employment law backdrop in Malaysia, legal issues when hiring employees, and how to ensure good employee management. This post will discuss the end of the employment life cycle — the termination of the employment contract, or dismissal.

Whether an employer is sacking someone on the spot, or terminating an employee’s employment contract by serving the contractually-agreed notice period, the employer must be able to show that the dismissal or termination was with just cause or excuse.

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