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Is there a legal way to skip the notice period when you resign in Malaysia?

5 months ago JS Lim

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

One. Entire. Month. You’ve submitted your resignation, but that’s the time you have to wait before you can move to a new employer. Why? Because it’s stated in your current employment contract.

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If you’re just looking for a new opportunity elsewhere, or it was because of something logistical like you’re moving to another state, then you might miss your boss and colleagues. But if you resigned because you don’t like your work environment, it can feel like forever…….

If you’re a senior staff in the company, your notice period might be even longer - like 3 months. But sometimes, circumstances could force you to leave before you can serve the notice period - is there a way to legally skip the notice period if you really need to? Here are a few options you can consider.

 

1. Negotiate to get your notice period waived

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Something you might not have realized about contracts is that you can negotiate changes even after you’ve signed it. There’s even a provision on what happens if you alter your contract under our Contracts Act 1950 in Section 63, which states that if you and the other party agree to alter your contract, then the old contract will no longer take effect:

“If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.”

All you have to do is come to an agreement with your employer to make a change to your contract, or agree with them to waive the notice period (which is also allowed under Section 12 of the Employment Act 1955, if it applies to you).

[READ MORE - Are part-timers considered employees or freelancers?]

It goes without saying that this method works better if you have a good working relationship with your managers and bosses.

Giving a notice period before resigning is commonly used as a leeway so employers can prepare the paperwork, do the proper handovers of your portfolio, as well as look for a replacement for your role. It really depends on whether your employer is able to say “yes” to letting you go earlier, but there’s no harm asking - if you don’t ask, you’ll never know.

Failing that, you could also ask to...

 

2. Offset your notice period with leave

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This method isn’t usually going to let you skip your entire notice period, but it can shorten it by a lot. A lot of you will be pretty familiar with offsetting your notice period with outstanding leave, and may see it as “standard practice”, but it’s actually not automatic, and must be agreed to by both you and your employer to happen.

[READ MORE - Is it legal for my boss to make me work on a public holiday?]

People use two main arrangements for this:

  1. You and your employer both agree that you will use your remaining X days of leave to offset your notice period

  2. You and your employer agree that you will not offset your notice period with your leave, but your employer will pay you extra for the outstanding leave you have (ie. if you have 10 more days of leave, your employer will pay you an extra 10 days of wages, but you must serve your full notice period)

There are certain situations where you might not be paid for outstanding leave, usually in cases where your employer provides alternative leave structures that could be abused without regulation. Some of you might also ask if you can apply for unpaid leave to offset your notice period - well, that works the same way as your employer waiving your notice period, and since the unpaid leave still needs to be approved by your boss, there’s no real difference between the two.

If even that’s not enough, you might want to consider the drastic approach…

 

3. Pay the penalty for resigning without notice

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If you really ABSOLUTELY have to, and the options above don’t work for you, you might have to opt for the last resort - paying the penalty.

Your employment contract contains a clause that tells you how early of a notice you need to give before you resign. It’ll usually be under a header saying “termination” or “end of employment” or something similar. That clause will cover both the notice period and an alternative method of ending your employment - it’ll read something like this:

“Either party may terminate the employment by serving ___ months notice, or ___ months’ pay in lieu of notice.”

This means that either you or your employer can end your employment by serving the notice, or by paying the other person X months of pay. It’s probably not the smartest financial decision you could make, but if you absolutely have to leave the company and nothing else works, just know that this option is there.

Sometimes, your new employer might offer to buyout your notice period, which means that they will pay the penalty for you to be released early - which is good news for you because it means your new employer really wants you on board immediately. Again, the “don’t ask, don’t know” rule applies here - if your new employer wants you to come in as soon as possible, don’t be afraid to bring up your notice period and see if they want to buy it out.

 

If you’re being mistreated by your company…

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We all hope for the ideal workplace, where we’re treated fairly and get to grow in the ways we want - but life isn’t always fair and sometimes you have to deal with overwhelming problems in the workplace. In those situations, you might have another option besides resigning - you could sue for “constructive dismissal”.

Constructive dismissal is where you don’t get fired, but the work environment was made difficult for you to perform in, which leads to you resigning. Bullying, threats, and leaving you out of the loop on projects are some examples which could be considered as constructive dismissal - basically it involves things that are a big hindrance to getting your job done. As an example, the case of Justin Maurice Read v Petroliam Nasional Berhad (Petronas) on constructive dismissal actually involved the employee getting attacked by a manager, and his work locker was broken into.

If you do have to file a constructive dismissal claim, properly document incidents at your workplace, and keep in mind that you only have 60 days to file a claim. You can learn more about how to file for constructive dismissal in our article linked below.

[READ MORE - My boss just fired me for no reason, what can I do now?]

Tags:
malaysian law
employment contract
resignation
notice period
labour law
constructive dismissal
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JS Lim

Jie Sheng knows a little bit about a lot, and a lot about a little bit. He swings between making bad puns and looking overly serious at screens. People call him "ginseng" because he's healthy and bitter, not because they can't say his name properly.


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