An employer has an obligation and a statutory duty to provide a safe working environment to all of its employees. This duty is deeply rooted in an employer-employee relationship and it forms part of an implied contractual obligation whether or not its specifically stated in any handbook or employment contract. This requirement is also entrenched within existing laws such as the Occupation Safety Health Act 1994 which dictates mandatory safety measures for workers.

The threshold for what amounts to a safe working environment differs from case to case and depends on various factors as such as industry, physical location and the job functions of the employee. For example, an employee employed on an oil rig or a construction site would have different safety expectations compared to someone working as an accountant in an office.

Safe working environment not only refers to the physical working condition but could also include a variety of other examples such as a work place free from sexual harassment.

When an employer fails in their duty, it may cause a breach of contract that would permit an employee to walk away from their employment citing constructive dismissal.

Sexual Harassment

Employers have a statutory duty under the Employment Act 1955 to inquire into an employee’s sexual harassment complaints. This protection is provided for all employees regardless of income bracket.

The Court has acknowledged that a failure to address employees’ sexual harassment complaints may amount to constructive dismissal. In Sitt Tatt Berhad v Flora a/p Gnanapragasam [2001] ILJU 39 the Industrial Court held that management’s non-action towards sexual harassment complaints breached the terms of the employee’s contract to provide a safe and healthy working environment.

Victimisation

Harassment and bullying are forms of victimization and such occurrences can come in various scenarios, whether through superiors or colleagues.

In Kuala Lumpur Glass Manufacturers Co. Sdn Bhd v Lee Poh Kheng [1995] 1 MELR 921, the Court held that repeated threats issued to the employee coupled with bullying tactics were an effort to humiliate the Claimant into abandoning his job. This substantiated the Employee’s claim for constructive dismissal.

However, petty disagreements with the employer cannot amount to constructive dismissal (Peter Chew Hoe Teik v Pharmaniaga Marketing Sdn Bhd & Anor [2019] 2 LNS 1805) Otherwise, it would be difficult for any employer to manage its workforce, if an employee can claim harassment or bullying should they receive negative feedback or hear something that upsets them. In Peter Chew (ibid) , the Industrial Court held that it was the employee’s “poor perception” of the matters that resulted in the disagreements. There was evidence that the Company had always supported the Claimant, even when he was on medical leave, so it was surprising for all when the Claimant took the approach of constructive dismissal.

The above are just a few notable examples of how wide-ranging constructive dismissal are in the face of an employer’s failure to provide a safe working environment. The law does not have an exhaustive list of what amounts to a safe working environment, or when an employer can be said to have breached their duty to provide a safe working environment.

What will be assessed is whether the acts complained of amount to a fundamental breach of the employment contract, and whether it showed that the employer was no longer interested in being bound by the terms of the employment.  As one may appreciate, this is very fact specific and there is no “one size fits all” when determining what amounts to constructive dismissal.

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Amirul Izzat Hasri is a Senior Associate in the dispute resolution practice group at Donovan & Ho. He has experience in a diverse area of practice, including general civil and corporate litigation, judicial reviews, land related matters, defamation, debt recovery, and shareholder and boardroom disputes. He has also appeared in Industrial Court proceedings, having represented both employers and employees in unfair dismissal claims.

Donovan & Ho is a law firm in Kuala Lumpur, Malaysia. Our practice areas include employment law, dispute resolution (litigation and arbitration), corporate and tax advisory, and real estate/conveyancing. Have a query? Contact us.

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