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Constructive Dismissal

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asked on Jan 2, 2004 at 04:50
by   octomus
Dear Puan Ira,

I am a management staff of a trading company.  Due to differences in business approaches, I had frequent conflicts with my boss.  For the past two months, he started to harass me with the intention of forcing me to resign voluntarily.  He was using various tactics to demoralize me, for example

- interfering with the running of my division, e.g. promoting my staff without prior discussion with me
- offer bonus to my staffs but not to me
- gave me "show cause" letter with threats of dismissal for insubordination and misconduct.

I wish to seek your advice on the following

1. He has so far unable to show proof of insubodination and misconduct, do I have the right to demand for a withdral of his "show cause" letter?

2. The harassment started two months ago and he is keeping up the pressure with new issues nearly every week. He was trying to find fault with me but without any success to date.  Can I claim for victimisation?

3. I am contemplating walking out from work by claiming constructive dismissal? Do I have a case?  If I succeed, can I claim for 3 months' pay in lieu of notice? 

4. As a management staff, am I eligible to claim for work on weekend?  On my Employment Contract, the working days are from Monday to Friday.  This treatment of issue is also not specified in the Company Manual.

5. My company did not send me a confirmation letter after the 3 month probation. However, all my staffs who joined later were given. Am I considered still under probation? Can I justleave the company by just giving one  month notice as stipulated in the Employment contract?  The notice period required for confirmed staff is 3 months.

I am looking forward to receiving your advice and guidance.  Many thanks.

Yours sincerely,

Octomus
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answered on Jan 2, 2004 at 06:06
by   businessbytes
1.Don't be rash.He gave you a show cause letter and you have replied.As an employer he has every right to issue a show cause letter. The fact that he has not done anything indicates your innocence.A demand for withdrawal of the letter is not going to do you any good.It can tantamount to a challenge to his authority.
2. Unfortunately you cannot claim for victimisation.You could have hurt your boss about "differences in business approaches." That's perhaps what triggered off your bosses dislike for you. He is the boss.You are new.Each company may have different methodology in the way they do business.I do not what caused him to be unhappy with you. You should know. Is there anyway you can mend the damage?
3. You have missed the issue in constructive dismissal. An employee can walk out if the employer has breached the terms of your contract eg reducing yr salary, demotion etc.The test used in constructive dismissal cases is the contract test. You can't walk out because yr boss is unreasonable and claim constructive dismissal.Neither will you get 3 months if you walk out.  The remedy under the Industrial Relations Act is reinstatement. You can claim 3 months wages in lieu of notice if your employer terminates you without notice and if yr contract mentioned a notice period of 3 months.The employer does not want you around.Why not discuss with him and try to get the 3 months notice/wages.
4. The Employment Act does not apply to you. Neither does yr Company Manual say anything about weekend work. How about yr contract of employment? Is there any mention about compensation for weekend working? If there is you can claim.What about company practice. Has any management staff been paid for working on weekend?If the answers are in the negative yr chance of succeeding is slim indeed.
5. In industrial law an employee on probation remains a probationer so long as he is not confirmed. In yr case you are a probationer as you have not been confirmed. The notice required is the notice period applicable to probationers.

It is a pity you have been pushed to the corner.But you must have contributed in someway. Hope this would serve as a guide for the future. If you are resigning do leave with a good note. Forget the unhappy episode and leave peacefully.It will hurt you if you kick up dust while leaving.You will never know. Sometime in the future yr paths may cross or you may want to get back with changed circumstances. Try being civil and you will not regret it.
iradvice
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answered on Jan 2, 2004 at 06:26
by   octomus
Dear Puan Ira,

I'm really amazed and touched with your dedication and selflessness in rendering your service to those who are in need of help. I will think over the points you have mentioned and do what is right.

Again, my sincere thanks to you.

Octomus
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answered on Jan 2, 2004 at 15:59
by   businessbytes
Dear Octomus,
Just one correction in yr note of thanks.The advice was given by iradvice an irconsultant and not by Pn.Ira.
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answered on Jan 19, 2004 at 00:49
by   octomus
Dear Sir,

After receiving your advice, I have been lying low for the past few weeks. Surprisingly, last week my boss toke the initiative requesting me to re-negotiate on the amount of compensation if I agree to leave the company.  The reason for this sudden change to a less confrontational stance could be due to the fact that his harassment tactics did not succeed in forcing me to resign voluntarily.  At the same time, he has not been able to find any justification for my dismissal. Incidentally, my sales performance for the year is in fact much above the budget.

I would appreciate if you could advise me on the following options I have been thinking about:

1. To stay put and wait for the company to terminate my service
   - can he arbitrarily terminate my employment without giving any justifications?
   - can I sue the company for wrongful dismissal if I decide not to leave the company?
     (on Dec 24, Star reported Dell senior executive suing his company and claim for 2 mio)
   - what are the legal costs and procedures involved?
   - what is the probable amount of compensation if I win the case?
  
2. Negotiate for compensation
   - I hope to claim for 3-month salary in lieu of notice according to employment contract
     (my boss wants to re-negotiate with me indicates that he wants me to go)
   - I also hope to claim for 2 months bonus which was given to all the staffs
     (even for new staffs like me whom according to the contract are not entitled to bonus)

Thank you in advance for your advice.
  

Yours truly,

Octomus
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answered on Jan 19, 2004 at 03:09
by   businessbytes
Dear Octomus,
1. Yr employer can terminatee your service arbitrarily without justification.You then will have to file a claim for unfair dismissal under Sec.20 of the Industrial Relations Act within 60 days of dismissal.The industrial Relations officer will call you and the employer for a conciliatory meeting to see if you would agree. If there is no agreement he would report to his boss and his boss will advise the Minister whether your claim merits reference to the industrial court. Workmen have no direct access to the Industrial Court.
If your claim lands in the industrial court both you and the employer will have to present your cases. Usually the parties are represented by lawyers.The legal costs can be RM3000/- to up to 30% of compensation awarded, though this contingency payment is frowned upon by the legal fraternity. However it is more honoured in the breach.
The amount of compensation you eventually get will be at the discretion of the Industrial Court. If you happen to find a job immediately after dismissal the court can take into account yr new earnings and slash the compensation to be awardedto you. In normal circumstances the compensation is one month per year of service and back wages from the date of dismissal to the hearing of the case with a max(in most cases) of 3 years back pay.
The other thing to note is that the industrial court deals with a heavy burden and it is not uncommon to have your case heard afterr three years.One case was decided afterr 22 years.This of course is an exception.
2.Taking all this into consideration I would opt to negotiate for a fair deal with the employer.I do not know how long you have been in employment with the present employer.i take it that since you are on probation you have less than 12 months service.The five months you are seeking is fair and reasonable considering the bonus of 2 months was given to everyone.If you say yr performance was not wanting the 2 months should have been given to you.
When negotiating with the employer explain to him that it is not easy to obtain jobs at this moment in time.You can also talk of yr performance and hint you may seek the help of the IR office to assist you.You could also start with a higher demand say 8 months pay-i.e 3 months notice, 3 months compensation and 2 months bonus. You can come down. If you ask for 5 months you are putting yr employer at an advantage. He will expect to close the deal with lesser than 5 months.
regards/iradvice
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answered on Jan 19, 2004 at 04:38
by   octomus
Dear Sir,

Many thanks for your prompt reply.  My boss will probably come back to me tomorrow with a counter offer, your advice has definitely put me more at ease to face the situation.  However, I must prepare for the worst in case our top management does not agree with my terms.  During my negotiation with my boss last week, he told me that the management's wish is to settle the case promptly since it has been dragging for more than three months.  He slipped his tongue by mentioning that "....drastic measures will be taken."  How should I react if I were asked to pack up personal belongings and leave the company immediately?  Or what else could the company do, I mean legally?

It is clearly stated in our Employee Manual that verbal/written warning followed by domestic enquiry will be carried out prior to dismissal.  My employer did follow any of the above except for a "show cause" letter which I had successfully refuted all the allegations.  Can my boss ignore the company rules which was put in place to ensure all employees get a fair treatment?  Will this enhance my chance of winning the case if I choose to refer my case to the Industrial court?  I am fifty plus of age and my retirement age is 60.  The loss of employment is a big loss financially to me.  The chances of finding another job of similar level would be rather difficult; I am now contemplating to fight to the end if I have more than 50% of winning the case.  The compensation could be very substantial.  Do you happen to come across the case of a senior executive of Dell who was seeking a claim of 2 million for wrongful dismissal? I did none of those naughty things; I was in fact harassed by my boss just because we have different views on how to conduct our business.  Do I have a case?

I hope to have your advice again on the above issues before I meet my boss tomorrow.  I am truly grateful for your help.


Octomus
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answered on Jan 19, 2004 at 19:19
by   businessbytes
Dear Octomus,

If your employer does not follow procedures like going thru a domestic inquiry before terrminating you then your case would be strengthened.If you are not guilty of any  wrongdoing and yr production has not been off established targets/standards you have a good case for reinstatement/compensation.
What you need to understand is that it will take a few years to materialise.
If you feel getting another job is going to be tought then insist on a good package before leaving - if it is not offered and they terminate you, file a claim and take yr chances with the Industrial Court. Please ensure you keep yr cool during this trying moments. Do not give reasons for the employer to dismiss you.You may feel like abusing yr boss physically/verbally but be patient.
Good luck to you,
iradvice
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answered on Jan 19, 2004 at 22:42
by   octomus
Dear Sir,

Thank you for taking time to help me through with my predicament.  As I expected, my boss called  me this morning for negotiation on the compensation.  He offered me 5 months salary as compensation subject to approval of the top management.  I guessed it is as good as being approved. 

After thinking through last night, I have decided to forget about taking the company to court.  Life is not about money alone; may be I should retire for good and spend more time with my family. 

I wish to take this opportunity to extend my heart felt thanks for your selfless service to those who are in need of help.  May God bless you.

Octomus
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answered on Jan 20, 2004 at 02:26
by   businessbytes
Dear Octomus,
I am glad u are taking it in the right spirit and good luck to yr family and u. u certainly need the break. About/jobs business opportunities there is a whole wide world open to you. If you are in yr fifties then you have a world of experience which you can put to good use.I do not know what skills u have but they are certainly marketable.Think about it.
regards and a very happy chinese new year to you and family.
iradvice
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answered on Jan 28, 2004 at 18:47
by   octomus
Dear Sir,

I missed your very warm and encouraging reply to my earlier email after returning from a long leave during the CNY.  There was another surprise for me this morning - my boss had agreed to all my compensation requests!!! 

May I ask for for another advice from you again? My boss asked me to sign an agreement the main points being my resignation is voluntary and not by any threat or inducement.  Further, the ex-gratia payment is final and I shall make no further claims against the company.  I am not sure whether I should sign the agreement admitting that I wish to resign voluntarily? I just want to be abolutely sure that the company will not make claim against me since according to the employment agreement, I should be the one to compensate the company if I resign voluntarily .  It may sound paranoid, but after goning through the nightmare for the past few months, I tend to have less trust especially on the company. Hope you could share your thought on this small issue.

Finally, would it be possible for me to contact you directly?

Many thanks!

Octomus
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