A passive-aggressive workplace trend, known as “quiet firing,” has gone viral on social media. Like “quiet quitting,” the word has a similar ring to it. Sounds familiar? However, the two are distinct.
Distinguishing “Quiet Quitting” & “Quiet Firing”
The phrase “quiet quitting” was invented relatively recently to characterise workers who are fed up with going above and beyond their job descriptions for little reward. In this instance, employees are in control: they opt to do the bare minimum of their duties to get by.
Per contra, “quiet firing” occurs when employers intentionally treat employees so badly and demoralise them, through passive – aggressive tactics that the employee is “forced” to resign themselves. Here, managers have the power. Managers use quiet firing tactics to force a resignation as opposed to directly dismissing them. More than 80% of over 20,000 respondents in a recent LinkedIn News survey had either experienced or witnessed “quiet firing”.
The Signs – “Quiet Firing” in Your Company?
- Lack of feedback or guidance to employees;
- Denial of promotion opportunities without adequate reason/explanation;
- Managers failing to attend meetings or mistreating employees in meetings;
- Employees being given unsatisfactory shift patterns or working time; or
- Employees being transferred, demoted or given lower-level tasks
Risks Quiet Firing Poses to Employers
- Firstly, the employer risks a potential constructive unfair dismissal claim if conduct towards an employee breaches the implied term of trust and confidence (discussed further below).
- A claim for harassment or other discrimination may arise if their manager’s conduct relates to a legally protected characteristic. This claim might be filed while the employee is still in employment, or in addition to a claim for unfair dismissal.
- A hostile work environment might aggravate, or lead an employee to develop, a mental health condition. As of consequence, this could result in a personal injury claim.
Labour Law Calls it Constructive Dismissal
Whilst the phrase has only recently entered the public lexicon, this concept is not new. Quiet firing has existed for decades, although labour law has a different name for it; “Constructive Dismissal.” So what is Constructive Dismissal?
In Malaysia, The Industrial Relations Act 1967 and Employment Act 1955 are silent (meaning that nothing is specifically stated) on the definition of constructive dismissal. Thus, it is a common law right, i.e., it is a judge-made law established in case laws that is not explicitly provided under any statutory legal provisions.
However, a claim of constructive dismissal can be made based on Section 20(1) of the Industrial Relations Act 1967 which states that no employees shall be terminated without just cause and excuse.
To simply put it, Constructive Dismissal refers to a situation where an employee is forced to resign or leave the employment as a result of a serious breach of the Contract committed by the employer so as to be ‘constructively dismissed’ or indirectly terminated by the employer.
Ingredients for Successful Constructive Dismissal Claim
As provided by the Court of Appeal in Southern Investment Bank Bhd. Southern Bank & Anor v Yap Fat & Anor [2017] 3 MLJ 327, there are four material conditions to be met before a claim of constructive dismissal can be successfully established by an employee:
- Gross breach of the employment contract by the employer;
- The breach must be sufficiently important to justify the resignation of the employee;
- The employee must leave in response to the breach and not for any other unconnected reason; and
- The employee must not occasion any undue delay in terminating the contract.
Instances of Constructive Dismissal
Departmental transfer & change of job description
In Govindasamy Munusamy v. Industrial Court Malaysia & Anor [2007] 10 CLJ 266, the alleged transfer was held to be not bona fide when evidence revealed that there were attempts to eliminate the employee from the service of the company by transferring him to a different entity which was not part of the contractual term.
Demotion
In Ang Beng Teik v. Pan Global Textile Bhd Penang [1996] 4 CLJ 313, a demotion without any just cause or excuse can be classified as a dismissal.
Failure to pay/withholding salary
In Tan Kok Chai v. Mega 9 Housing Sdn Bhd [2020] 2 LNS 0013, the salary of an employee has been regarded as a fundamental factor in a contract of employment and any non-payment of salary by the employer was deemed as a fundamental breach of the contract of employment, constituting constructive dismissal.
Are they Synonymous?
Although the signs of “quiet firing” and instances of constructive dismissal appear similar, it is pertinent to note that constructive dismissal is not merely about “unfairness” which sometimes “Quiet Firing” could be confused with. Constructive dismissal does not mean that an employee can automatically terminate the contract when his employer acts or behaves unreasonably towards him.
In constructive dismissal, the conduct of the employer must be such that the employer was guilty of a breach going to the root of the contract or that it illustrates the employer’s intention of not wanting to pursue the contractual relationship anymore.
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