Employment Law in Malaysia Read Only

7/27/2019 Employment Law in Malaysia Read Only

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Employment Law in MalaysiaBy Dymphna Lanjuran

[email protected]

www.twitter.com/EmploymentLaw_

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Introduction Termination of Employment Pre-Termination (Misconduct)

Post-Termination Challenging the Decision New statutes Minimum Wages Order

2012, Minimum Retirement Age Bill 2012

AgendaFCL

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Introduction

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STATUTES

Employment Act 1956 Monthly salary RM1,500 and below Manual Labour

Domestic servants

Industrial Relations Act 1976

Remedy - Reinstatement Industrial Court

Employment Law in MalaysiaFCL

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STATUTES

Employees Provident Fund Act Applies to all employees of Malaysian

employers

Employees' Social Security Act, 1969 SOCSO

Workmen's Compensation Act 1952

Employment Law in MalaysiaFCL

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Termination of Employment

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Grounds

Misconduct Poor Performance Redundancy & Retrenchment Mutual Termination/Cessation

Constructive Dismissal Fundamental breach that goes to the root of

the contract Must be immediate no cooling off period Burden of proof on employees

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Termination of Employment:Misconduct

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Ground - Misconduct

Case: Hyatt Regency Saujana v Kananathan SGRamu [2004] 3 ILR 391


Claimant, Security Officer - the position isone of trust and confidence where thesafety and security of the entire hotel was

entrusted in the hands of the Claimant.

Illegal gambling during work.

Dismissal justifiable.

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Ground - Misconduct

Case:Southern Bank Berhad vAzmi Ali [2003] 1ILR 614


The court is of the view that honesty andintegrity are amongst the key characteristicsthat any employee should possess, no matter

what form of employment the employee isengaged in.

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Ground Misconduct

Case: Ng Hock Cheng v Pengarah Am Penjara &Ors [1998] 1 CLJ 405 (Federal Court)

An employer is the best person to judge theseriousness of the conduct of its employees.

Termination of EmploymentF

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Termination of Employment:Poor Performance

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Ground Poor Performance

Probationer

Case: Azmi & Company Sdn Bhd v FirdausMusa [2000] 2 ILR 510

His character, suitability and capacity as anemployee is to be tested during the

probationary period and his employment onprobation comes to an end if during or at theend of the probation period he is found to be

unsuitable .


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Probationer

Case: Dorsett Regency Hotel (M) Sdn Bhd vAndrew Ambrose [2003] 2 ILR 740

The real test would be whether he possesses theright skill, competence, temperament,

aptitude, attitude and suitability which wouldentitle him to transcend from being anemployee on probation to that of a confirmed

permanent employee.


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Probationer

Keep the probationer informed or alerted ofhis shortcomings to enable the probationer to

strive to meet the standards expected of himby the Company before his probationaryperiod ends.

Warnings, guidance, trainings, sufficient trimeto improve; despite that still fail to improve...


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Probationer

Case: Robert John Reeves v Menteri SumberManusia & Anor[2000] 1 CLJ 180 (High Court)

The power to either continue or discontinuethe services of an employee or probationer

rests with the employer.


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Confirmed employee

Rigid test 1st: The employer must show in what respects

the employee had failed to perform the workwhich formed the basis for his belief that theemployee was a poor performer.

2nd: The belief under 1st above emerges froma fair process; i.e. by putting an employee onnotice of his deficits & affording him a fair

opportunity to improve.


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Termination of Employment:Redundancy & Retrenchment

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Ground Redundancy & Retrenchment

Case: William Jacks & Co (M) Sdn Bhd v SBalasingam [1997] 3 CLJ 235 (Court of Appeal)


Retrenchment is defined as the discharge ofsurplus labour or staff.

It is well settled that the employer is entitled toorganize his business in the manner heconsider best.

Must be bona fide.

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Case: Musnita Mustafa v Weatherford SolutionsSdn Bhd [2012] 3 ILR 350


Did redundancy situation arise leading toretrenchment?

Was the consequent retrenchment made incompliance with reasonable selectionprocess or the principle of Last In, First Out(LIFO).

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Case: Musnita Mustafa v Weatherford SolutionsSdn Bhd [2012] 3 ILR 350


Restructuring exercise the Flow ControlDepartment and the Technical Departmentof the company were to be merged.

3 secretaries in the same division, with theClaimant being the most junior surplus.

Termination justified with just cause.

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Termination of Employment:Mutual Termination/Cessation

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Ground Mutual Termination/Cessation

Case: Timber Master Trading (M) Sdn Bhd vJaneWang Sing Fang [1994] 2 ILR 1293


The duty of the Court is to determinewhether there had been a terminationwhich had been mutually and freely agreed

upon between the parties.

Must be genuinely consensual.

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Termination of Employment vsConstructive Dismissal

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Employer terminates employment of anemployee

There exist a Letter of Termination Ind Ct: Burden on employer to show just cause

or excuse


Constructive Dismissal EmployerDOES NOT terminate employment of

an employee Employee WALKS OUT of out employment NO Letter of Termination

Ind Ct: Burden on employee to show dismissal

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Pre-Termination

(Ground: Misconduct)

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Pre-Termination

Ground: Misconduct

Initial investigations - to identifypossible allegations & possiblemisconduct, gather documentary

evidence and oral evidence(statutory declaration)

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Pre-Termination

Ground: Misconduct

Show Cause Letter

To suspend or not to suspend?

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Pre-Termination

Ground: Misconduct

Notice of Domestic Inquiry

Domestic Inquiry

3 Panels Independent Charge(s) to be read

Procedures to be explained Prosecuting Officer Recording Secretary

Witnesses & Documents

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Pre-Termination

Ground: Misconduct

Decision of the Panel

Decision of the Management

Demote, Suspend, Warning,Withholding of Increment/Bonus,Termination of Employment

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Post Termination

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Remedy Sought:

Reinstatement

ORWages ($$$)

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Wages = less than RM5,000

No pending inquiry orproceedings under theIndustrial Relations Act(IRA)

No proceedings before theIndustrial Court

Matter has not been

decided by the Ministerunder s.20

Conciliation Industrial Relations Officers

Report

Ministers decision (subject to

JR) Industrial Court

Representation / Complaint - 60 days rule

Labour CourtIndustrial Court

Remedy sought:

Wages or any other

Payment in Cash

Remedy sought:

Reinstatement

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Post Termination

Statement of complaint andremedy from Complainant

Summon to the Company:

Notice of the complaint Name of the

Complainant

Date, time & place toattend and to bringwitnesses.

Warrant/Authority to Act

Witness Statements

Form A & B

Statement of Case

Statement in Reply

Bundle of documents

Witness Statements


PROCEDURES - Documents

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Post Termination

a) Trial procedures

Burden of proofs Procedures Submissions

b) Order (subject to appeal)

c) Enforcement/Non-Compliance

a) Trial procedures

Burden of proof Procedures Submissions

b) Award (subject to JR)

c) Non compliance


PROCEDURES

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Challenging the Decision

(Judicial Review/Appeal)

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Challenging the DecisionREVIEW/APPEAL

Industrial Court/

Ministers Reference

Labour Court

Order 53 RHC review on

procedures not on merits

S. 77 EA procedure in a civilappeal from Sessions Court

Leave (ex parte) - Form 111A,Order 53 Statement, Affidavit inSupport

After leave Form 111B [Noticeof Hearing] & Order Exchange of Affidavits Written Submissions Hearing

Notice of Appeal

Memorandum of Appeal

Record of Appeal

Written Submissions

Hearing

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New Statutes

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Minimum Wages Order 2012(Perintah Gaji Minimum 2012)

Minimum Retirement Age Bill 2012

New Statutes

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Minimum Wages Order 2012(Perintah Gaji Minimum 2012)

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N St t t


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New Statute

Minimum Wages Order 2012

Gazetted on Monday, 16 July 2012 Dates of coming into operation:

1.1.2013: > 5 employees

Professional activity classified underMASCO (Malaysia StandardClassification of Occupations)

1.7.2013: 5 employees or less other than MASCO

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Ne Stat te


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New Statute


Deferral of implementation to another date Not less than 90 days beforecommencement date, make anapplication to the Wages Council

Discretion of the Council.

Does not apply to Domestic Servant.

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New Statute


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New Statute


Minimum Wages Rates:

3.85800Sabah,Sarawak andFT Labuan

4.33900PeninsularMalaysia

Hourly

(RM)

Monthly

(RM)

Regionalareas

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New Statute


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New Statute


ProbationersMinimum wages may be reduced NOTMORE than 30% Reduction may be based on

agreement between employer andemployee (BUT cannot exceed 30%reduction)

Reduction = ONLY for the 1st 6 months

Further reading: http://dymphnablog.wordpress.com/2012/07/17/brief-outlook-on-the-

minimum-wages-order-2012/

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Minimum Retirement Age Bill 2012

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New Statute


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New Statute

Minimum Retirement Age Bill2012

Gazetted on 16 August 2012 Minimum retirement age = 60 years old Employer SHALL NOT prematurely retire an

employee before 60 years old [*fine: