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Constructive dismissal and Premature retirement

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asked on Jan 14, 2017 at 16:36
by   james01
Dear All,
Two years ago, I was singled by my employer for no pay increase. I wrote to the company management but never receive any reply. I continue to work for the company.
 
However, the discrimination resurfaced recently. Appreciate if you can advise on the following:
1. The company contributed 15% toward EPF for staff in service for more than 5 years. This is my 10 years of service. Recently, the company reduced it to 12% for me only. What are option for me? Can I walk out on Constructive dismissal?
 
2. I am 56 years old. Can my employer insisted on retiring me now, considering my appointment letter dated sometimes in year 2007 stipulated the then retirement age of 55 years. Does this constitute premature retirement?
 
Appreciate your advise and thanks in advance.
 
Kind regards.
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5 Answers

answered on Jan 14, 2017 at 17:47
by   sukdekatgmail
This is only my 6 sens worth

Can I walk out on Constructive dismissal? 
Refer to your appointment letter. Maybe claim age discrimination. You have past the company approved retirement age.

While the company is not appreciative of the loyalty and long service,
one should be appreciative of gainful employment after age 50 in Malaysia,
esp at turbulent  financial crises here now.
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answered on Jan 15, 2017 at 22:49
by   kiki
Two years ago, I was singled by my employer for no pay increase. I wrote to the company management but never receive any reply. I continue to work for the company. 

Maybe you have reach the maximum in your salary scale category. To have an increment means you need to be first upgraded to the next level. There is many cases where one does not qualify upgrading due to lack of necessary skills, attitude..etc. So it can remain stagnant until you resign on your own will or goes out by the mandatory  retirement age.  

However, the discrimination resurfaced recently. Appreciate if you can advise on the following: 
1. The company contributed 15% toward EPF for staff in service for more than 5 years. This is my 10 years of service. Recently, the company reduced it to 12% for me only. What are option for me? Can I walk out on Constructive dismissal? 


I don't think your employer would want to play tricks with an institution like the EPF withs regards to your (employee) Contributions. Employer can  always pay more but never a sen less than required by the EPF act. You can always go to the EPF office to check this out.

Some companies contribute more treating as a retirement benefit for their employee.

2. I am 56 years old. Can my employer insisted on retiring me now, considering my appointment letter dated sometimes in year 2007 stipulated the then retirement age of 55 years. Does this constitute premature retirement? 

The mandatory retirement age is 60 years. 
Just be thankful and  be an obedient employee till you are 60 if you want to continue working with your current employer. At 56 there many out there that are not as fortunate as you.
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answered on Jan 16, 2017 at 05:32
by   kamsiah
@ James01

Does this constitute premature retirement?  
There is an agreement signed specifying the retirement age.
It cannot be over turned.
For those whose contract agreement did not specify the retirement age, then it is 60 years old.
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answered on Jan 17, 2017 at 01:34
by   arun kumar
1. In order to claim constructive dismissal, there must be a fundamental breach of the contract. Is the 15% contribution stated in your contract of employment? If it is, then a unilateral reduction would constitute a breach and in my opinion it would be a fundamental breach entitling you to claim for constructive dismissal. You state that they pay 15% for all those above 5 years of service. Therefore there is certainly an arguable case that is the policy of the Company and any unilateral reduction for just you could constitute a fundamental breach. 

2. Retirement age if in your contract of employment if less than 60 would automatically be be void as per Section 7 of the Minimum Retirement Age Act 2012 (MRA 2012). Therefore your retirement age would be 60 and the Company cannot prematurely retire you, see Section 5 of MRA 2012.
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answered on Feb 2, 2017 at 16:26
by   james01
Dear all,
Thanks so much for all the advice/input.

Dear Arun,
Your answers always impressed me.

With regards to Item 1, the 15% was stipulated in the company manual (which was never issued to the staff anyway) but not in my appointment letter. Do I have a case? Do I need to write to the company's management to seek clarification?

Much appreciate your advice and thought.

Thanks.
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