Case Update: Court of Appeal rules that employee demotion amounts to constructive dismissal

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 recognised that it is a management prerogative for companies to decide on the best way to run their business, and that the courts will be slow to interfere with such management decisions. However, we do still see the courts stepping in when the decisions made by employers are deemed to be unfair, or in breach of the employment contract. I previously wrote about a case where an employee transfer was deemed by the Industrial Court to constitute a constructive dismissal (Case Update: When an employee transfer can amount to a constructive dismissal).

In this case update, I consider the Court of Appeal (“CoA”) case of Ng Teck Fay v. Mahkamah Perusahaan Malaysia & Anor. [2021] 10 CLJ 73, where the CoA found that an employee demotion or re-grading amounted to a constructive dismissal.

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Employee poor performance: Some recent cases

The proper management of under-performing employees is always a tricky proposition. While the law recognises poor performance as one of the reasons that would constitute “just cause” for dismissing an employee, many employers make mistakes which result in dismissed employees winning unfair dismissal claims. There have also been instances where employees have been able to walk out and claim that they have been constructively dismissed due to the employer putting them on a performance improvement plan (“PIP”).

There are many variables that will determine whether a poor performance termination was carried out fairly. It’s always useful for employers and decision-makers to review how other employers have managed under-performing employees. In this article, I briefly summarise the following recent cases related to PIPs and poor performance dismissals:

  1. Azura Norden v. Small Medium Enterprise Development Bank Malaysia Berhad (Award No. 94 of 2021).
  2. Charles Selvam Andrew Francis v. Kebabangan Petroleum Operating Company Sdn Bhd (Award No. 256 of 2021).
  3. Thomas Kuruvilla v. Malaysia Digital Economy Corporation Sdn Bhd (Award No. 151 of 2021).

These summaries will provide valuable insights on the issues the Industrial Court considers when assessing performance-related terminations.

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