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Message Date : 25 Mar 2009 05:29:20 pm
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| Member : |
feb9514 |
| Join Date : |
24 Mar 2009 |
| Location : |
Selangor |
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Dear Consultant,
In the case of albertvm, and the case of Harta Maintenance Sdn Bhd v. Vanaja Chelliah & Ors, to claim Constructive Dismissal shold the claimant act on in immediately by walking out of the company? There is a case where a transfer was done in 'bad faith'. But the onus is on employee (claimant) to prove that the transfer is in 'bad faith' and a form of demotion.
The employee was forced to move out from his office and move to an open office although no deduction in salary. The employee had requested in writing to prove whether this is a demotion but the company did not reply, but asked to move without question. A week later it was notice in an organization chart that it is a demotion.
My question, can the employee act on Constructive dismissal or is it too late?
Thank you.
feb9514
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The Consultant says...Let's wait and see what other members have to offer (in term of advise/comment) in relation to your questions. I am maintaining my original role as moderator, and not as advisor in this Public Forum. Otherwise, no one will want to participate in this forum.
However, you can always go to Private Consultation if you want to seek my advise. |
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Message Date : 10 Sep 2008 03:17:29 pm
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| Member : |
wahidahb |
| Join Date : |
10 Sep 2008 |
| Location : |
Wilayah Persekutuan |
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I have been promote to a higher position, upon receiving the confirmation letter there was no change of my salary grade and salary has not been revised. However, my collegue got an increment upon his confirmation.
Shall I decline the promotion. |
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Message Date : 19 Aug 2008 09:11:02 pm
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| Member : |
skpeh |
| Join Date : |
19 Aug 2008 |
| Location : |
Wilayah Persekutuan |
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Can i decline to accept a job transfer to a new location(branch)? What are my rights? what other allowances can i ask if i accept the job transfer? |
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Message Date : 2 Jun 2008 09:01:40 am
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| Member : |
casey |
| Join Date : |
2 Jun 2008 |
| Location : |
Selangor |
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Hi there! Can somobody help? My situation is like this:-
- I always got the blame for things which done by my collegue from boss.
- When project accomplished, he is the one who got all the credit and
promotion from my boss where else I'm the one who did all the hard works.
Is it possible to not to follow the instruction given by my collegue since all the blame will be back to me or should I complain this matter to my boss or just leave the company? Am I demoted from this scenario?
Thanks
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The Consultant says...Let's wait and see what other members have to offer (in term of advise/comment) in relation to your questions. I am maintaining my original role as moderator, and not as advisor in this Public Forum. Otherwise, no one will want to participate in this forum.
However, you can always go to Private Consultation if you want to seek my advise. |
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Message Date : 5 May 2008 03:12:01 pm
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| Member : |
albertvm |
| Join Date : |
24 Apr 2008 |
| Location : |
Wilayah Persekutuan |
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Dear Consultant, well understood and thanks for enlightening further on this subject. Hope suanmien's doubt has been cleared. |
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Message Date : 2 May 2008 11:30:07 am
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| Member : |
albertvm |
| Join Date : |
24 Apr 2008 |
| Location : |
Wilayah Persekutuan |
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If there is no contractual term in the contract of employment to enable your employer to transfer you and if your employer insists to transfer than it is a repudiation of the contract, which you can claim Constructive Dismissal. In the case of Harta Maintenance Sdn Bhd v Vanaja Chelliah & Ors, Award 174/99 it was held in favour of employee for transfering the workman where there isn't any contractual term.
However, by reading your query, it looks like it's a transfer within organisation and onto a new role. If it is, by virtue of Section 13 (3) (b) of the IR Act 1967, it gives the right to employer to transfer a workman BUT the transfer must be for a genuine business consideration and the exercise of the prerogative to transfer should not be done by mala fide
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The Consultant says...Thanks for the comment, albertvm.
In the case of Harta Maintenance Sdn Bhd v. Vanaja Chelliah & Ors. [Award No.174 of 1999], the non-provision in the contract of employment to transfer the workers is one of the few reasons relied by the Court in reaching its decision. Perhaps you should also enlighten suanmien of the other reasons relied by the Court in reaching its decision in that case.
In advising suanmien, the following questions (based on the case of Harta Maintenance) must be given due consideration, i.e. Whether the terms of contract provides for transfer; Whether the employer has a right to transfer when the contract is silent; Whether right to transfer can be inferred; Whether transfer was actuated by bad faith; Whether the company breached a condition of the employment contract.
FYI, S.13(3)(b) of the Industrial Relations Act 1967 provides that, "...no trade union of workmen may include in its proposals for a collective agreement a proposal in relation to any of the following matters, that is to say, the transfer by an employer of a workman within the organisation of an employer’s profession, business, trade or work, provided that such transfer does not entail a change to the detriment of a workman in regard to his terms of employment."
Please note that although S.13(3)(b) of the Industrial Relations Act 1967 was cited in the case of Harta Maintenance Sdn Bhd v. Vanaja Chelliah & Ors. [Award No.174 of 1999], it must be remembered that it was used in the context of "within the spirit of the Act"... as the case of Harta Maintenance was not about "proposals for a collective agreement". |
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Message Date : 30 Apr 2008 04:12:01 pm
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| Member : |
suanmien2004 |
| Join Date : |
30 Apr 2008 |
| Location : |
Wilayah Persekutuan |
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Can i decline to accept a job transfer to a new role? What are my rights? Can the Management threaten me? |
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Message Date : 24 Apr 2008 02:48:51 pm
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| Member : |
albertvm |
| Join Date : |
24 Apr 2008 |
| Location : |
Wilayah Persekutuan |
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I agree with Rahul that most employee declined promotions due to the fact that they are going to loose on the monetory benefit even though non-monetory benefits probably sounds better.
Employer cannot compel an employee to take up the promotion, but again if you decline without good and reasonable excuse, employer may turn around the other way and put you in "cold storage", which means no career prospect for your advancement. It will jeapordise your own career path. However, concerned employer should hear your grievance first and act accordingly.
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The Consultant says...You are right in your statement that employer cannot compel an employee to take up the promotion. Can you provide us with the legal rationale in support of that statement?
It is your personal opinion (or speculation) that by declining the promotion without good and reasonable excuse will subject the employee to be put in "cold storage", resulting in no career prospect. Unless you can substantiate your opinion legally or factually, such opinion (speculation) must be rejected. |
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Message Date : 28 Feb 2008 07:46:01 pm
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| Member : |
Rahul |
| Join Date : |
28 Feb 2008 |
| Location : |
Pulau Pinang |
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u have the rite to decline but then again it depends how important are u for the new job. otherwise u might make the management at bit 'sore'. maybe u wanna talk to ur boss on the monetory benefit if u take up the offer. check what u gain and what u lose. |
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Message Date : 28 Feb 2008 11:56:07 am
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| Member : |
Raju |
| Join Date : |
28 Feb 2008 |
| Location : |
Pahang |
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Received a promotion letter 2 days ago. With the promotion I am no longer entitled to claim for my overtime. Can I not accept my promotion? Not sure if my management will be sore of my decision. What can I do? |
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