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Forced Resignation
by Hew Soon Kiong
The employer-employee relationship under the common law on resignation or termination is settled. Just as an employer has the right to terminate the service of an employee with just cause or excuse, similarly an employee has the right to put an end to his contract of employment by intimating to his employer of his intention to quit by war of resignation. An employee who makes known of his intention to resign from the job to his employer, who accepts his resignation, the contract of employment comes to an end. For there to be a resignation on the part of the employee, it must be apparent that there was a real choice on the part of the employee to be exercised and not as a result of action of the employer. In other words, resignation must be voluntarily tendered. Therefore, a resignation is defined as the voluntary termination of the employment contract by the employee but not because of the initiative of the employer.

Force resignation usually happened when an employer does not like a workman and wants to ease the workman out of his organization but does not want to dismiss him and face the consequences. The employer wants to make the process as painless for himself by employing subtlest of means or he may under the guise of exercising the management power of transfer demote the workman. Generally speaking, he will make his life so unbearable for the workman so as to drive the latter out of employment. In the normal case, the workman being unable to tolerate the acts of oppression and victimization will tender his resignation and leave the employment. The question will then arise whether such departure is a voluntary resignation or dismissal in truth and fact. It appears in the circumstances whereby the use of persuasion by an employer to obtain an employee’s resignation or an employee was put under compulsion to resign, such as where the employee resigns under duress in an involuntary resignation which would constitute a “forced resignation”. It is settled law that a “forced resignation” is a dismissal and the employee has the right to claim unfair dismissal under S.20 of the Industrial Relations Act 1967. The onus of proof is on the employee that be was forced into resigning and not a voluntary act.

It will be clear that the underlying basis of the doctrine of “forced resignation” is the existence of facts showing that an employee was put under compulsion to resign and that if he declined to do so, the employer would proceed to dismiss him in any event. There must be disclosed in the evidence elements of persuasion, for example that is would be a better for the employee to resign with a record unblemished by a dismissal or even the provision of a favorable, or at least, a neutral latter of references to prospective employee.