What is constructive dismissal?
You resigned because of how your employer treated you, and you wonder if you can still claim.
What does constructive dismissal mean?
It means you resigned because your employer’s conduct left you no real choice, and the law may still treat that resignation as a dismissal. The leading Malaysian case sets the contract test.
Under that test, you may treat yourself as dismissed if the employer’s conduct breaches the contract at its root or shows an intention no longer to be bound by it.1 The test looks at what the employer did, not how upset you felt.
What test do courts use?
A later case turns the contract test into four conditions: a breach of an essential term, a serious breach, resigning because of it, and resigning without unreasonable delay.2 All four must be met, so the order of events matters.
One unpleasant instruction is rarely enough. A pattern of serious breaches makes your case stronger.
What should you do now?
If you still work there, write down what changed, when it changed and any objection you raised. Read the four conditions in more detail before you decide when to act, because timing is part of the test.
If you have already resigned, the same 60-day filing window applies. Check your dates with the deadline calculator without delay.
Why does a written record matter?
Two workers can react differently to the same treatment, and the law looks at the employer’s conduct, not your feelings. A written account of dates, events and the words used counts for more than a general description of being mistreated.
Build that record early, ideally while you are still deciding whether to resign. If you want a lawyer to judge whether your facts meet the four conditions, an employment lawyer can review them and act if they do.
If you are thinking of challenging a forced resignation, an independent employment lawyer can review your timeline and take a constructive dismissal claim forward if you have grounds.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.
Common questions
Do I have to resign to make a constructive dismissal claim?
Yes. The claim only arises once you have resigned because of the employer's conduct. Staying on too long after that conduct can weaken it, since the law expects you to act within a reasonable time.
What kind of employer conduct usually qualifies?
A serious pay cut, a forced demotion or a sudden change to core duties are common examples. Not every unpleasant change qualifies, because the conduct must strike at the root of the contract.
Is constructive dismissal harder to prove than a direct dismissal?
It asks more of you at the start, because you must argue that your resignation should be treated as a dismissal. A clear written record of what changed and when helps a great deal.
Can I still claim if I did not complain in writing first?
It is possible, but a written complaint before you resign makes the claim stronger. If you still work there, consider raising the issue in writing before you decide what to do.
Sources
- In Wong Chee Hong v Cathay Organisation (M) Sdn Bhd, the Supreme Court set the contract test: an employee may treat themselves as dismissed where the employer's conduct breaches the contract at its root or shows an intention no longer to be bound. Thomas Philip
- Bayer (M) Sdn Bhd v Anwar Abd Rahim sets four conditions for constructive dismissal, including a serious breach of an essential term and resigning promptly because of it. Thomas Philip
Keep reading
If you are thinking of challenging a forced resignation, an independent employment lawyer can review your timeline and take a constructive dismissal claim forward if you have grounds.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.