Was your transfer meant to push you out?
You were sent somewhere far from home, and it feels designed to make you quit.
You were told to report to a workplace far from home, with little notice and no real discussion. If the move looks designed to make you leave rather than to meet a genuine need, it may be more than an inconvenient posting.
Can your employer transfer you anywhere it wants?
Some contracts include a transfer clause, and having one is not by itself unfair. What matters is how that clause is used, not just that it exists on paper.
A transfer used for a real business reason is different from one timed and framed to push you out. Malaysia’s leading case on this, Wong Chee Hong v Cathay Organisation, set the test the Industrial Court still applies.
Under that test, you may treat yourself as dismissed if your employer breached a fundamental term, or acted as though no longer bound by the contract.1
What turns a transfer into constructive dismissal?
A transfer that ignores your contract’s terms, gives unreasonably short notice, or sends you somewhere with no genuine operational need looks very different from ordinary staff movement. Whether you were consulted also matters.
A later case, Bayer (M) Sdn Bhd v Anwar Abd Rahim, broke that contract test into four conditions the Industrial Court checks in order.2
What does the four-condition test check?
- Your employer breached an essential term, or used a genuine term in bad faith.
- The breach was serious enough to strike at the root of your contract.
- You resigned because of it.
- You acted without unreasonable delay.
Meeting only some of these conditions is not enough.
What if you have not resigned yet?
Refusing a transfer outright can itself become a reason your employer cites for dismissal, so think before you refuse. Raising your concerns in writing, and asking for the business reason behind the move, builds a record either way.
Even if the transfer is genuine, a written objection shows how you responded.
What is the deadline once you resign?
If you resign because of the transfer, the same clock applies. You have 60 days from your resignation date to lodge a written claim with the Director General of Industrial Relations.3
That claim is a Section 20 representation, and you can work out your exact deadline from your resignation date.
What to do this week
Keep the transfer letter, your contract’s transfer clause if there is one, and any message explaining the business reason given. Note how much notice you were actually given.
A constructive dismissal claim depends on your facts fitting the four conditions. If you want to pursue it, request lawyer contact first; only after an identified independent lawyer has contacted you and specifically requested the material, send those papers directly to that lawyer.
They can review your facts and act for you if it is a case they can take on.
If you think a transfer was meant to push you out and want to challenge it, send what happened and when. An independent lawyer can review whether it is a claim they can act on.
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
Can my employer transfer me anywhere the contract allows?
Having a transfer clause is not, by itself, unfair. What matters is whether it is used honestly for a real business need, or timed and framed to push you out.
What makes a transfer look like bad faith?
Short notice, no consultation, no genuine operational reason, or timing that lines up with a complaint or conflict all point the same way. None of these alone decides a case, but together they build a picture.
Do I have to accept the transfer before I can object?
Refusing outright can itself become a reason your employer cites, so think it through first. Raising written concerns and asking for the business reason is usually a safer first step.
What if my contract has no transfer clause at all?
That makes your employer's position weaker, since there is no written term giving it the right to move you. It does not decide the case by itself, but it matters.
How long do I have if I resign over this?
You have 60 days from your resignation date to lodge a written claim, the same window as any dismissal. Check your facts early so you use that time well.
Sources
- The Supreme Court in Wong Chee Hong v Cathay Organisation (M) Sdn Bhd [1988] 1 CLJ 298 held that the applicable test for constructive dismissal is the contract test: whether the employer is guilty of a breach going to the root of the contract, or shows an intention no longer to be bound by it. Thomas Philip, Forced To Resign? This May Be Constructive Dismissal
- Bayer (M) Sdn Bhd v Anwar Abd Rahim [1996] 2 CLJ 49 sets out four conditions for constructive dismissal: a breach of a fundamental term, that the breach was sufficiently serious, that the employee resigned because of it, and that the employee did not delay or affirm the contract. Thomas Philip, Forced To Resign? This May Be Constructive Dismissal
- An employee who considers they were dismissed without just cause or excuse, including by resignation forced by the employer, may make a written representation to the Director General of Industrial Relations within 60 days of the dismissal (Section 20, Industrial Relations Act 1967). Mah Weng Kwai & Associates, Unfair Dismissal
Keep reading
If you think a transfer was meant to push you out and want to challenge it, send what happened and when. An independent lawyer can review whether it is a claim they can act on.
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.