Many employers would think that the best way to terminate the service of an employee is to force them to resign, thinking that there will be no repercussions. The employee would usually be asked to sign a resignation letter prepared in advance by the employer's representatives.
The existence of the threat of being sacks causes the employee to be willing to resign. However, where some other consideration brings about the willingness, then it may be said that he resigned voluntarily. It is so because it was beneficial to him to do so that there has been no dismissal.
Burden of Prove
The employment law is clear that if the fact of dismissal is in dispute, the burden is on the employee to establish that his employer dismissed him. It was not a voluntary act of his own, failing which there is no dismissal has taken place and the question is with just cause or excuse would not arise.
What are the remedies available to an employee who has been forced to resign?
Generally, if the Court finds that the dismissal is without just cause or excuse, the
employee can only seek reinstatement and back wages.
However, suppose the Court finds that the reinstatement is not suitable because the position no longer exists. In that case, the Court shall order the employer to pay the employee compensation in lieu of reinstatement.
The compensation in lieu of reinstatement usually is at the rate of one month for each year of completed service. For example, if a workman was in employment for three years, the compensation in lieu of reinstatement is calculated as 1 month's salary x 3 (three years) . However, this compensation will be subjected to deduction as
follows:-
i) Mitigation;
ii) Post dismissal earning;
iii) Contributory conduct.
Take note that the monetary award is only to cover all losses relating to the termination. The employee cannot claim additional losses such as loss of future earnings or mental and emotional distress.
Written by: Dato Fion Wong with the assistance of Wilfred Loke.
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