Termination of contract

An employee's journey starts with a service contract, but it ends when

the employment contract is terminated. Termination means the end of a
work relationship. In general, there are three branches of dismissal
namely summary dismissal, constructive dismissal, and forced
resignation. This paper will focus on forced resignation. The paper will
cover defining forced resignation, detailing what constitutes it, exploring
reinstatement remedies, and concluding with the findings

Resignation

According to MST Industrial System Sdn Bhd v Foo Chee Lek

resignation is the voluntary termination of an employment contract upon
acceptance.There are two primary types of dismissal: direct dismissal
and indirect dismissal. Resignation is a dismissal, either a direct
dismissal or in the case of a ‘forced resignation’, an indirect
dismissal.This paper will docus on forced resignation

Forced Resignation

Forced resignation, is when an employee has no real choice but to

resign due to conduct engaged in by an employer. In BATA (M) BHD.V
NORMADIAH BT. ABU SUOOD ,It is a principle of law that a forced
resignation is a dismissal. In this case,the claimant was told by her
superior to resign or face termination. the court hold that the claimant
had not resigned voluntarily but a dismissal.

The employee's resignation must be a result of a threat from the

employer. If other factors lead to the willingness to resign, then it's
considered a voluntary resignation. In Stanley Ng Peng Han v AAF Re
Ltd ,the court held that a resignation under compulsion is no resignation
in law. When court makes a finding of ‘forced resignation’, employee did
not in fact resign despite submission of letter of resignation, but in effect
was dismissed by his employer
What amount to Forced resignation

To prove forced resignation, it's crucial that the resignation wasn't

voluntary, there was compulsion to resign, and the employee was
unfairly dismissed from their position. This will be discussed in different
subheadings below.

Non-Voluntary Resignation

First , The resignation must be involuntary. In Malayan Banking

Berhad v Chan Hock Low to decide if a resignation wasn't voluntary ,
the court typically looks at what's written in the resignation letter to see if
the claimant was compelled to send it despite their unwillingness .In
Bata (M) Bhd v Normadiah Abu Suood , the Court will not import
words that are not in letter in determining forced resignation.Further in
Food Specialities (M) Sdn Bhd v M Halim Manap @ Abd Manaf ,The
language used in resignation letter should show protest or indicate being
forced to leave. Mere accusations or unclear hints aren't adequate. This
is because per Malaysia Airline System Bhd v Noridah Ahmad The
resignation letter was prepared by claimant personally, thus choice of
words were his own & company did not influence him what to state in the
letter .However ,In KL Glass Manufacturers Co. Sdn Bhd.Claimant’s
case would be different if he was asked to sign a letter pre-prepared by
company

Compulsion to resign

Second, the employee's resignation must be a result of a threat from the

employer. If other factors lead to the willingness to resign, then it's
considered a voluntary resignation. In Stanley Ng Peng Han v AAF Re
Ltd ,the court held that a resignation under compulsion is no resignation
in law. The court stated the claimant needed to prove he wasn't given
time to think, was physically restrained, couldn't leave the office, and
signed the document against his will

In North South Development Sdn Bhd v Aloysies Fathianathan , the

claimant alleged a director demanded resignation under threat of
termination. But the court noticed a four-day gap when the claimant was
at home and drafted the resignation. As they were comfortable and not
under compulsion at home, the court ruled it wasn't a forced resignation
Unfairly dismissed

The court will then have jurisdiction to decide whether the employee is
unfairly dismissed by determining whether the employer had just cause
or excuse to do so. Courts assess the totality of circumstances and
evidence to determine whether a resignation was genuinely voluntary or
if it was effectively forced upon an employee due to the employer's
actions or omissions.

Burden of Prove

Per, Tung Shen Hospital v Lew Chee Heng ,burden is on claimant to

prove forced resignation; he must prove that when he wrote letter of
resignation, he was forced to do so, in the sense that if he did not resign,
the employer would dismiss him.

Reinstatement

Section 20 of the Industrial Relations Act allows a worker who

believes they were unfairly dismissed to file a representation with the
Industrial Relations Department within 60 days. The remedy available
under this section is reinstatement.

Findings

the law regarding forced resignation may initially evoke both negative and positive
perceptions, a deeper analysis reveals the reasons

A Critical Analysis : Compulsions

It's acceptable to request prompt resignations under compulsion, but

denying compulsion due to delayed resignation isn't fair. The pressure
from threats doesn't vanish simply because the resignation took longer.
However ,Prompt resolution ensures fresh evidence and swift legal action

A Critical Analysis :Remedies available

Employees, after proving forced resignation, may prefer compensation

over reinstatement. Despite a challenging relationship with the employer,
the court offered only reinstatement , not the desired remedy which is
compensation. Pursuing case to civil court for desired compensation is
complex and time-consuming which will discourage complaints by
employee and risking employer abuse of power. The law's prioritising on
reinstatement in the Industrial Court could also reflects a positive intent,
valuing job security and work relationships over monetary compensation.

A critical analysis :Duration to make representation

Further ,in terms of duration, The underlying rationale of the 60-day

limitation period, can be criticized as too short

Conclusion

The law on forced resignation is crucial to protect employees.