MECA Newsletter_2016_1st Edition_20th Anniversary (2)

8/19/2019 MECA Newsletter_2016_1st Edition_20th Anniversary (2)

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MECA EMPLOYERSCONSULTING AGENCY

Level 13A-05, PJX-HM Shah Tower,

No.16A, Persiaran Barat, 46050, Petaling Jaya.

#04-17, Wisma SP Setia, Indah Walk 3,

Jalan Indah 15,Taman Bukit Indah, 81200 Johor Bahru

LAST year was an exciting year

for all of us at MECA with a couple

of great achievements. To name

a few, our absolutely amazing

team at MECA joint hands and

welcomed over 65 new members

to the family, started MECA’s first

ever branch in Johor and hosted

the largest ever IR Convention

in our history with over 450 del-

egates present!

This year (2016) is a very mean-

ingful year for the MECA brand

as we celebrate our 20th anni-

versary in providing top notch IR

advisory services to employers in

Malaysia. In this edition, we have

given a special glimpse of this

long journey of MECA and how it

has developed over the years. In

conjunction with this, we will be

organizing more exciting events

for members to look out for in

the coming months. We are also

proud to announce for the first

time that our branch in Penang

will be commencing business

from April 2016 onwards!

We thank all members for be-

ing a part of this wonderful jour-

ney and we look forward to serve

you for many years to come.

LATEST ISSUES

‘Making falsesick claimsis a crime’PETALING JAYA: With employers

losing a whopping RM2.9bil annu-ally to pay workers who are replac-

ing colleagues on medical leave, a

Malaysian Anti-Corruption Com-

mission (MACC) officer said work-

ers who submit false sick claims are

committing corruption.

Mohamad Tarmize Abdul

Manaf, the commission’s commu-

nity education division officer, ex-

plained why producing a medical

certificate with false information or

claim was an offence under Section

18 of the Malaysian Anti-Corrup-

tion Commission Act.

He said submitting a medical

cert was no different from submit-

ting a claim, a receipt or an invoice.“Did you know that producing a

medical certificate with false infor-

mation about one’s illness is cor-

ruption? It is under the fake claims

category,” he wrote on the MACC’s

official blog ourdifferentview.com –

Menipu Sakit, Satu Kesalahan Ras-

uah (Faking Illness, A Corruption

Crime).

Mohamad Tarmize cited a legal

precedent where the accused was

charged for falsely taking two sick

days with full pay.

He was found guilty after it was

proven that he was not ill during

the two days.

The defence said the MCs were

not covered under the Act. But the

judge ruled that MCs had monetary

value as the accused had received

full salary on both “sick” days.He was then ordered to repay the

money and slapped with a fine.

Mohamad Tarmize hoped peo-

ple would not take sick leave and

MCs lightly.

“Doctors also have a responsibil-

EDITOR’S NOTEby VICTOR GAN

FREEMEMBERS

COPY NEWS

Best wishes for the New Year!

ity to be cautious when a patient

applies for sick leave,” he added.MACC deputy chief commis-

sioner (prevention) Datuk Seri

Mustafar Ali confirmed that fake

claims submitted to employers was

an act of deceiving the principal

and an offence.

He added that under Section 24,

workers making false claims could

be jailed for up to 20 years and fined.

It was reported previously that

Malaysian employers were incur-

ring more than RM1bil in losses

annually because of workers who

feigned illnesses to get sick leave or

MCs.

In a 2014 report, the Malaysia

Employers Federation revealed thatemployers lost RM2.9bil annually

in overtime payments to workers

who are replacing those on medical

leave.

n Source: http://www.thestar.com

THIS article came at the right time when most of our members have

time and again been reporting on the potential abuse of medical

certificates by employees. This article suggests that employers,

apart from going through normal disciplinary procedures may

report this matter to the MACC for further actions to be taken. We

would encourage members to share this with employees in your

normal engagement sessions so as to prevent this from happening.Further, members are reminded that if disciplinary actions are

taken and in the event the employee is found guilty of submitting

false MCs then the alleged ‘sick leave’ days declared under the

false MC should be treated as unpaid leave.

MECA’s COMMENTS

UiTM deputy dean claimstrial for allegedly molestingstudent in his officeTHE deputy dean of UniversitiTeknologi Mara (UiTM) claimed

trial today for allegedly using

criminal force with intent to out-

rage the modesty of a 23-year-old

student.

Prof Dr Rahmat Ghazali from

the Faculty of Communication

and Media Studies pleaded not

guilty to the charge under section354 of the Penal Code that car-

ries up to ten years in prison, or

a fine, or whipping, or any of the

two upon conviction.

The 57-year-old allegedly mo-

lested a female student in his of-

fice at the Shah Alam campus on

Dec 14 around 12.30pm.

After the charge was read be-fore magistrate Surya Wati Sha-

wal, deputy public prosecutor

Rustam Sanip asked the court to

impose RM6,000 bail.

Rahmat was later released on

RM3,500 bail.

The court has fixed Jan 20 for

case management.

MECA’s COMMENTS

IN cases involving misconduct of a criminal nature, employers

need not wait for the decision of the criminal courts but may in-

stead commence disciplinary proceedings internally. The stand-

ard of proof for employment matters is on a balance of probabili-

ties as opposed to the criminal court’s standard of proving a case

beyond a reasonable doubt. It is however prudent for employers toconsider whether or not the alleged misconduct is one that is con-

sidered a private act. If so, employers are advised to only pursue

disciplinary actions if the Company is in a position to prove that

the private act had jeopardized the reputation of the Company in

one way or another. In this case, since the alleged misconduct was

one that happened within the workplace, there should be no hesi-

tation in commencing disciplinary actions.

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www.meca.com.my


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MECA EMPLOYERS CONSULTING AGENCYMECA NEWS2

THE reports that Chelsea Football

Club’s team doctor Eva Carneiro

was to have her role “significantly

changed” after criticism from boss

Jose Mourinho raises interesting

ethical and legal questions about

the tension that can exist between

acceptable performance and ex-

pert professional judgment.

Dr Carneiro was accused of

being “impulsive and naive” by

Mourinho and failing to “under-stand the game” when she rushed

to assist player Eden Hazard fol-

lowing a fall during the first home

Premier League game of the sea-

son, against Swansea, which then

ended in a draw. In that situation,

the player must leave the pitch, but

the team were already down to ten

men, having had their goalkeeper

sent off earlier in the game.

Eva Carneiro has been with the

club for six years, so she must have

been aware how her intervention

would impact at that critical mo-

ment. She will remain as team

doctor but reports suggest she will

no longer attend matches or train-ing sessions. Some commentators

have suggested that Mourinho’s

reaction may have been different

MECA’s COMMENTS

THIS high profile matter is now awaiting hearing at the UK tribu-

nals. Our opinion is based on Malaysian labour laws and in ap-

plying the test for constructive dismissal, Chelsea or the Manager

(Jose Mourinho) has clearly (1) breached a term of Eva’s contract of

employment by not allowing her to continue first team football as-

sistance – demotion and by publicly criticizing her when she was

merely doing her job as a medical staff, (2) the breach as mentioned

above amounts to a fundamental breach going to the root of the em-

ployment contract and (3) Eva did not report to work after immedi-

ately after those incidents indicating that she left employment as aresult of the breach of contract and not for any other reasons.

There have been comments that Eva vented her frustrations

online prior to walking off thus breaching the social media policy of

Chelsea Football Club. We are of the opinion that the said conduct

would not jeopardise Eva’s claim for reinstatement. However, if Eva

is reinstated, the employer may impose the appropriate discipli-

nary action for the said act of misconduct. This could come in the

form of a warning.

Should Chelseadoctor Eva Carneiro get a lawyer?

Te disciplinary action taken against Chelsea FC’s medic could giveher a case for unfair dismissal, writes Chris Phillips

Where do you

draw the line

when allowing

a key employee

to exercise their

professional

judgment andshould the bigger

picture always

take priority?

had Dr Carneiro been a man, rais-

ing further questions about his

attitude toward gender and sex

discrimination. Others point to

the fact that the club physiothera-

pist Jon Fearn didn’t exactly come

away unscathed either. However

you look at it, the doctor’s decision

to check on the player turned out

to be a pill too bitter for the mercu-

rial Mourinho to swallow.

Where do you draw the linewhen allowing a key employee to

exercise their professional judg-

ment and should the bigger picture

always take priority? Would it, for

example, have been obvious that

the injury wasn’t more serious and

can a medical professional ever be

expected to take that risk? If an in-

jured player had been allowed to

continue, exacerbating the injury,

resulting in loss of earnings (and

what earnings!), they could have

sued the doctor and the club.

The Football Medical Asso-

ciation made its support for its

member unequivocal, stating that

where a referee agrees a playermay be injured and needs assess-

ment, “at that moment the player

becomes a patient of the medical

team and it is the duty and obliga-

tion of club medical staff to attend

to that patient without prejudice to

the interests of anyone else includ-

ing the club employing them… and

factors extraneous to the imme-

diate medical needs (such as thestage and the state of the game)

cannot be a consideration”.

Guidelines by the General Medi-

cal Council (GMC) similarly make

clear that a doctor must make the

care of their patient “their first

concern”.

Such judgments have to be made

daily in many occupations, but in

this case the difference was the

public spotlight and very signifi-

cant commercial considerations.

Operating in this strange bubble, it

appears that some football manag-

ers think themselves above the lawand common sense.

If the reports are correct, would

exclusion from matches and train-

ing sessions amount to a breach

of the implied term of trust and

confidence? I would have thought

so. Is the reality going to be the

employee is so well paid she will

overlook being left off the bench

for the foreseeable future? Who

knows, but beyond thanking peo-

ple on Twitter for the outpouring

of public support, Dr Carneiro has

maintained a face of quiet, profes-

sional dignity.

Contrast Mourinho’s very pub-

lic criticism of his employee andthat further reinforces the argu-

ment that the club has acted in a

way that is very likely to under-

mine her trust and confidence in

her employer, a key implied term

in every employment contract

which, if breached, would found a

claim for constructive, unfair dis-

missal.

This is a dilemma many of us

will recognise in different forms. It

reminds us that if an expert is be-

ing brought in, they should be al-

lowed to exercise their judgment,

especially on something as impor-tant as employee welfare. After all,

that’s why they are there.

One might draw an analogy

with a lecturer’s right to academic

freedom of expression in educa-

tion or a safety manager’s call to

close what they consider to be an

unsafe building despite the poten-

tial loss of revenue to the business

it accommodates. As an employer,

if you compromise the work of an

employee in this situation, you risk

significant claims, not only in the

Employment Tribunal but also in

the civil courts.

nChris Phillips is an Employment Law

Partner with Simpson & Marwick

n Source: http://www.scotsman.com

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AT least 33 security guards from 10

public schools from the Klang Val-

ley have been protesting outside

the Ministry of Human Resources

in Putrajaya today because they

say they have not been paid mini-

mum wage by a Ministry of Educa-

tion-appointed contractor.

In addition, group spokesman

Zin Yusof said that they have not

received their payslips. Similarly,

they have not been paid for leave

and their employer has not beenhonouring Employee Provident

Fund (EPF) contributions.

“There are regular delays in

paying us,” he said at a press

conference in front of the minis-

try, adding that he and the other

guards had not been paid mini-

mum wage in full from January

2013 till October 2014.

“We want to make sure that we

will the pay owing to us, because

our contract is going to end in Jan-

uary,” he said, adding that he was

owed about RM9,000.

“They deduct our EPF but they

do not put it in the EPF fund. Wha t

that we are doing is asking for

what that is supposed to be givento us,” he said.

Parti Sosialis Malaysia (PSM)

leader S. Arutchelvan, after a

meeting with senior private secre-

tary to the Minister of Human Re-

sources Peter Dennis, said that the

Ministry of Education had paid

the contractor, but the contractor

had not released the payment to

the security guards.

“The company did not pay min-

imum wage according to Mini-

mum Wages Order 2012, so when

a complaint was made it agreed to

do so.

“However, none of the guards

have been paid by the contractor,so this issue has been brought to

the Ministry of Human Resources.

School security guardstake minimum wage fight

to Putrajaya

MECA’s COMMENTS

OUR comments on this article is on the assumption that the

employer is within the private sector. Members are reminded

that the protection for labourers, especially those employed

through a contractor for labour (agent) has been under scrutiny

and tighter controls may soon be put in place by the Ministry

of Human Resources. Currently, s.33(1) of the Employment Act

1955 provides that if a contractor for labour absconds or does

not pay wages to their employees (even though your Company

paid the contractor for labour) your Company may be jointly

and severally liable to pay any outstanding balance owing to the

employee(s).

On a separate issue, we advise for members to review their

current salary structure as the minimum wage will be increased

effective 1st July 2016 as any non-compliance may result in

hefty fines imposed. Members are encouraged to sign up for ourupcoming course for a complete understanding on this area of

the law.

From the desktop of Dharmen Sivalingam & PartnersSELVARAJ MURUGAN v.

IREKA ENGINEERING &

CONSTRUCTION SDN BHD

(Application for Judicial

Review No. R2-25-23-02/2014)

(Unreported case)

Facts:

This case arises from the deci-sion of the Industrial Court which

is reported in [2013] 2 LNS 1815.

The Industrial Court decided that

the Company succeeded in prov-

ing that the Claimant’s dismissal

was with just cause and excuse.

The Applicant was appointed

as a Health & Safety Officer of the

1st Respondent with effect from

10/8/2000 for a duration of one (1)

year.

On 11/6/2001, the 1st Respond-

ent converted the Applicant’s em-

ployment contract to a permanent

contract and also promoted him as

the Health & Safety Manager with

effect from 1/6/2001.Clause 8(c) of the Applicant’s

contract of service state as follows:

8. Notice of termination

“…. notwithstanding the terms

of this letter, we shall be entitled to

terminate your employment upon:

(c) Any illness (mental or

otherwise) which in our judgment

prevents you from discharging

your duties efficiently and prop-

erly for any period exceeding two

(2) months in any calendar year;

[emphasis added]”.

The Applicant’s primary func-

tion as the Health & Safety Manag-

er is to plan, assign and supervisesafety matters and requirements

at all work sites. This requires the

Applicant’s presence at various

construction projects sites belong-

ing to the 1st Respondent.

The Applicant’s position was

one that was required by statute

i.e. Section 29 and 30 of the Oc-

cupational Safety and Health Act

1994. As such the Applicant was

required to be on the sites from

8am until 5pm on Monday to Fri-

day.

On 20/10/2008 the Applicant

was assigned to Sandakan Har-

bour Project.

The Claimant reported to workon 20 and 21st October 2008

and was on medical leave from

22/10/2008 until he was termi-

nated by the 1st Respondent for

breach of contract on 20/5/2009.

The Applicant’s case in

Industrial Court

The Applicant’s case are at the

Industrial Court are as follows:-

(a) the Applicant had in-

formed the Company that he

would return to work on 1/6/2009

after consulting with a doctor but

despite that the 1st Respondent

terminated his services;

(b) He (the Applicant) wasnot given an opportunity to de-

fend himself;

(c) He was not referred to med-

ical specialist on his health condi-

tion before he was terminated;

n Continued on Page 4

MECA EMPLOYERS CONSULTING AGENCY MECA NEWS 3

Parti Sosialis Malaysia (PSM) leader S. Arutchelvan (far right) holding thememorandum and standing together with the security guards in front of

the Ministry of Human Resources, Putrajaya.

The ministry called the contractor

to come, but he did not show up,”

he said.

After the meeting with the

Ministry of Human Resources,

Arutchelvan said Dennis had re-

ferred the dispute to the Ministry

of Education, which had hired the

contractor.“Dennis said he will notify the

minister, who will try to take to

Cabinet.”

Under the Minimum Wages

Order 2012, the minimum wage

must be reviewed once every two

years and employers who breach

the directive can be fined up to

RM10,000 for each employee un-

derpaid. – December 1, 2015.

n Source: http://www.

themalaysianinsider.com

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SUMMARY: CASE AWARDS

THE Claimant was first em-

ployed as Technician on 1 Oct

1999 in the Tooling Department

with a basic wage of RM1,300.00

per month. His last drawn salary

was RM2,380.00 per month as a

MouldMaker. In 22 Dec 2014, the

Claimant was issued with a Warn-ing Letter for damaging a mould.

He refused to accept the Warning

Letter as he claimed that he did

not damage the said mould. From

the following day onwards, the

Claimant refused to step into the

Tooling Dept and was seen hang-

ing out in t he canteen and prayer

room throughout normal hours.

On 15 Jan 2015, the Claimant sub-

mitted a request in writing for a

transfer to Storekeeping Dept.

The Company did not process the

Claimant’s request immediately

as there was no immediate va-

cancy available.

It was only on 26 March 2015

where the Claimant’s transfer waseffected into the Storekeeping

Dept as a Storekeeper/ Material

Handler. On 28 April 2015, bare-

ly a month later, the Claimant’s

supervisor in the Storekeeping

Dept instructed him to perform

certain tasks. The Claimant was

unhappy about it and claimed

that it is not part of his job scope.

He immediately walked out from

the Department and refused to

return. He was however reporting

to work but continued hanging

about at the canteen and prayer

room. He repeated the same the

following day. The supervisor ap-

proached him and requested forhim to return to work and he re-

fused. On 12 May 2015, the Claim-

ant sent a letter to the Company.

The contents of the letter, inter

alia, alleged that the Company

has breached his terms of em-

ployment by transferring him

to the Storekeeping Department

without issuing a transfer letter.

In the same letter, he stated that

he would like to tender his res-

ignation effective from 12 May

2015. At the same juncture, the

Claimant also put in his applica-

tion for annual leave and medi-

cal leave, the dates of which are

within the 2 weeks duration afterhis effective resignation date.

The Claimant alleged that his

termination was unlawful. He

filed a claim at the Labour De-

partment for termination ben-

efits based on 15 years of service,

amounting to RM27,271.35.

The main issue here was

whether the Company had termi-

nated the employee (if so, termi-

nation benefits may be payable)

or whether the employee vol-

untarily resigned from employ-

ment.

The Labour Court held in fa-

vour of the Company on the

grounds of judgment that was de-

liberated at length by the Officerof the Labour Court, the gist of it

are outlined hereinbelow:

(i) Whether the employee

falls within the scope of EA

1955 by virtue of being a “man-

ual labour” (ML)

Whilst the Court agreed that

the Company, through its learned

Counsel, managed to establish

that he was not a ML in his last

position as a storekeeper, the

Court decided that since the

Claimant was only a storekeep-

er for a short period of time i.e.

slightly more than a month, the

Claimant’s position prior to beinga storekeeper was the deciding

factor. The Court thus held that

the Claimant was manual labour

by virtue of being a Mouldmaker.

By so doing, the Court had locus

to decide whether the Claimant

was entitled to termination ben-

efits under Employment (Termi-

nation & Lay-Off Benefits) Regu-

lations 1980.

(ii) Whether it was indeed

true that there was a funda-

mental breach that was com-

mitted on the terms of em-

ployment of the Claimant that

enables the Claimant to walkout constructive dismissal but

it is then superseded by the

delay of time of the Claimant

to act, which then enables the

Company to rely on the doc-

trine of condonation

The Court deliberated at

length on this issue, particular-

ly from the point of time where

the Claimant was issued with a

warning letter on 22 Dec 2014

for damaging a mould; up to the

point of time where the Claimant

tendered his resignation letter on

12 May 2015, coupled with the ap-

plication for AL & submission of

multiple MCs for the remaining

notice period.The deciding factor on this is-

sue was vide the cross examina-

tion, best reproduced as below:

Soalan: Anda menyatakan

anda duduk melepak di kantin

atau surau sepanjang tempoh

antara 22 Dis 2014 hingga 25 Mac

2015?

Pengadu : Ya

Soalan: Mengapa?

Pengadu : Se bab s aya i ngin m e-

nerima gaji saya seperti biasa.

Soalan: Walaupun tanpa mem-

buat apa-apa kerja? Pengadu : (Tia da respon )

Soalan: Jika benar Syarikat

melanggar terma-terma kontrak

pekerjaa n, mengapa kah anda

tidak meninggalkan Syarikat ser-

ta-merta? Mengapa anda duduk

melepak di Syarikat dan men-

erima gaji seperti biasa antara

22 Dis 2014 hingg a 25 Mac 2015?

Saya menyatakan anda berbuat

demikian kerana tiada pelangga-

ran terma-terma kontrak perkh-

idmatan, betul?

Pengadu : (Tia da respo n)

The Claimant’s testimony andfailure to respond during the

cross-examination established

this point.

(ii) Whether it was indeed

true that the Claimant has vol-

untarily resigned, in which the

effect therein is that the Claim-

ant will not be entitled to ter-

mination benefits as Reg 4 of

Employment (Termination &

Lay-Off Benefits) Regulations

1980 which stipulates that ter-

mination benefits is not pay-

able in 3 situations: when an

employee voluntarily resigns,

retired or committed a mis-

conduct.The Claimant tendered his res-

ignation letter on 12 May 2015.

The content of paragraph 5 of the

said letter is reproduced:

“Dari itu saya meletakkan

jawatan kerja saya bermula

12/05/2015.”

The deciding factor on this is-

sue was vide the cross examina-

tion, best reproduced as below:

Soalan: Sila rujuk pada D18.

Adakah anda yang menuli s surat

perletak an jawat an ini?

Pengadu : Ya

Soalan: Sila baca perenggan 5dalam D18.

Pengadu : “D ari itu saya melet-

akkan jawatan kerja saya bermu-

la 12/05/2015”

Soalan: Anda faham maksud

ayat yang baru anda baca?

Pengadu : Ya

Soalan: Menurut Peraturan

4(1) Peraturan-peraturan Kerja

(Faedah-Faedah Penamatan Dan

Renti-k erja Sentara ) 1980, sese-

orang yang telah meletakkan ja-

watan secara rela hati tidak boleh

menuntut faedah penamatan

perkhidm atan daripada syari-kat. Adakah anda mengetahui

tentang hal ini?

Pengadu : (Tiada respon yang

diberikan oleh Pengadu)

Soalan: Adakah anda bersetu-

ju anda ingin berkhid mat untuk

sepanjang tempoh notis?

Pengadu : (Tiada respon yang

diberikan oleh Pengadu)

Soalan: Jika anda meletakkan

jawatan serta ingin berkhi dmat

sepanjang tempoh notis, maka

saya dapat simpulkan di sini ba-

hawa perletakan jawatan anda

adalah secara sukarela, betul?

Pengadu : (mendiam kan diriagak lama) Puan (Pengerusi),

saya nak suruh Peguam saya

menjawab soalan ini.

Peguam Syarik at: Bantah an,

Puan. Hanya P engadu yang b oleh

menjawab soalan yang saya tan-

ya. Jika peguam beliau yang men-

jawab soalan yang saya tanya,

maka ia menjadi ‘hearsay’!

Puan Pengeru si: Awak kena

jawab s oalan y ang dit anya.

Pengadu : Saya tidak akan

menjawab soalan ini.

Based on the 3 grounds of

judgment, the Court concluded

that the Claimant had actuallyresigned from employment and

was not terminated by the Com-

pany. This resulted in the Compa-

ny saving RM27,271.35 as pay out

for termination benefits. More

importantly, the reputation of

the Company remains intact and

sets as a precedent to the rest of

the employees

JOHOR BAHRU LABOUR COURT: KBR/10101/ 2015/0317

BETWEENEMPLOYEE …COMPLAINANT/ CLAIMANT

ANDCOMPANY X …THE COMPANY

COUNSEL FOR THE EMPLOYEE …COMPLAINANT/ CLAIMANT HIMSELFCOUNSEL FOR THE COMPANY …MS. NATALIE CHONG OF MECA

MECA EMPLOYERS CONSULTING AGENCYMECA NEWS4 a n n

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n From Page 3

(d) He renewed his PMA cer-

tificates for the machines owned

by the Company; and

(e) He attended seminarsorganized by the Department

of Health and Safety in order to

maintain his license.

1st Respondent’s case at the

Industrial Court

(a) The Applicant failed to in-

form his immediate superior on his

medical leave from 22/10/2008 until

25/11/2008 which made the Com-

pany to issue a show cause letter on

25/11/2008 requesting his medical

certificates and medical report;

(b) A medical report dated2/12/2008 from the Applicant’s doc-

tor on his ability to work pending his

review on 24/12/2008;

(c) The Applicant failed to sub-

mit medical report as requested by

the 1st Respondent but continued

to be on unpaid medical leave from

26/1/2009 onwards until 20/5/2009;

(d) The 1st Respondent, in addi-

tion to the paid sick leave in year 2008

and 2009, paid the Applicant’s salary

for 61 days in 2008 and 1 month in

2009. He was also allowed to use the

Company assigned vehicle, free fuel,mobile phone and lap top until the

date of his dismissal; and

(e) As a result of the Applicant’s

absence for more than 6 months,

the 1st Respondent was exposed to

a conviction for contravening the

statutory requirement of employing

a safety and health officer at its pro-

ject site which is mandatory under

the Occupational Safety and Health

Act 1994.

Decision of the High Court:-

(a) The Company succeeded inproving that the dismissal was with

just cause and excuse;

(b) The Applicant’s position was

essential for maintaining the Safety

and Health of other workers of the

Company;

(c) To allow the Applicant to con-

tinue working would endanger his

own safety as testified by his own

doctor whom stated that he is prone

to falling as his duty at the site in-

volves climbing high stairs;

(d) According to the Applicant’s

own doctor it is not probable for theApplicant to resume work as a Health

and Safety Manager since his hearing

is impaired; and

(e) The 1st Respondent had on nu-

merous times requested the Appli-

cant to provide a medical report on

his health condition which was not

adhered to by him.


5/8

By Natalie Chong

WHEN a Company deals with any

act of major misconduct that could

potentially lead to termination of

an employee’s service, the primary

concern would then be whether

‘due inquiry’ has been complied

with, in particular whether the

twin pillars of the rule of natural

justice: ‘audi alteram partem’ and

‘nemo judex in causa sua’ are ad-

hered to. This is simply because fil-

ing a claim under Section 20 of the

Industrial Relations Act 1967 that

the termination was without just

cause or excuse is (unfortunately

for a Company), an unfettered right

of any employee who is dismissedfrom work or considers himself as

having dismissed from work.

However, the same cannot be

said when dealing with cases per-

taining to sexual harassment. An

employer needs to be cautious not

only when dealing with the alleged

employee but the complainant as

well. Why?

The Code of Practice on the Pre-

vention and Eradication of Sexual

Harassment in the Workplace was

first formulated by the Malaysian

Government in 1999 wherein em-

ployers were urged to adopt inter-

nally. In 2012, the legislature fur-

ther demonstrated that they mean

business when dealing with caseson sexual harassment by amend-

ing the Employment Act 1955 (EA)

and introducing a whole new part,

i.e Part XVA: Sections 81A to 81G

governing issues regarding to mis-

conduct of a sexual nature which

amounts to sexual harassment in

the workplace with regards to the

relationship between an employee

and employer.Whilst the EA only provides pro-

tection to those within the scope of

the First Schedule, Section 81G EA

1955 makes it clear that Part XVA ap-

plies to every employee employed

under a contract of service, irre-

spective of the wages earned by the

employee. This ordinarily entails

that you could have a complainant

who is a Senior Manager earning a

lucrative salary of RM25,000.00 per

month and yet still able to seek re-

course under Part XVA of the Em-

ployment Act!

But from the employer’s per-

spective, this spells trouble! Why?

To start with, Section 81B(1) pro-vides that an employer shall inquire

into the complaint of sexual harass-

ment upon receiving it. Be that as it

may, Section 81B(3) provides that

an employer may refuse to inquire

into any complaint of sexual har-

assment if the employer is of the

opinion that the complaint has pre-

viously been inquired into and no

sexual harassment was proven; or

the employer is of the opinion that

the complaint of the sexual harass-

ment is frivolous, vexatious or is

not made in good faith.

The trouble begins for employ-

ers in Section 81B (4) of EA 1955.

It provides an avenue to any com-

plainant who is dissatisfied withthe refusal of the employer to in-

quire into his complaint of sexual

harassment to lodge a complaint

to the Director General of Labour

(DGL). Section 81D (1) of EA 1955

further provides that if a complaint

of sexual harassment is made to the

DGL, he shall assess the complaint

Sexual harassment provisions:a double whammy?


Having a sexual

harassment

policy does not

mean that there

will be no sexual

harassment

complaints. The

implementation

of this policy and

the commitment

by the Management to

eradicate sexual

harassment must

be clearly reflected

through the

rolling out phase

and at all times

thereafter.

and may direct the employer to

conduct an inquiry, if he thinks that

the matter should be inquired into.

Section 81D (2) further stipulates

that the employer must submit a

report of the inquiry to the Direc-

tor General within 30 days from the

date of such direction. These provi-

sions ordinarily gives the power tothe Director General to instruct the

employer and even interfere into

the findings of the employer.

Section 81F tops it all by provid-

ing that an employer could be li-

able to a fine up to a maximum of

RM10,000.00 if an employer fails

to:

• inquire into complaints of sex-

ual harassment;

• inquire into complaints of sex-

ual harassment when directed to

do so by the DGL; or

• submit a report of inquiry into

sexual harassment to the DGL.

Most successful preventivestrategies and plans on sexual har-

assment require the involvement

of all those concerned and a clear

statement of intent. The statement

of intent should reflect a real com-

mitment from all parties concerned

to recognize the importance of the

prevention and eradication of sex-

ual harassment in the workplace.

This is usually accompanied by the

establishment of a written policy

on sexual harassment. Policies on

sexual harassment should also

set forth a detailed mechanism by

which employees can make com-

plaints when sexual harassment

occurs.

Having a sexual harassment pol-icy does not mean that there will be

no sexual harassment complaints.

The implementation of this policy

and the commitment by the man-

agement to eradicate sexual har-

assment must be clearly reflected

through the rolling out phase and

at all times thereafter. The main in-

gredients for any company should

be the prevention of cases and thelevel of support or protection given

to a victim or a whistleblower who

witnessed an unacceptable behav-

iour.

In several of our appointments

as an external investigator for sexu-

al harassment complaints, the most

often-quoted defence of the alleged

employee would be that he/she

(yes, it applies to both genders!) is

not aware that his words/ conducts/

gestures amounts to a sexual har-

assment. The big question here is

how informed are these employees

when it comes to the policy drafted

by HR? Was this covered during an

employee’s induction or were theregood communication forums, or

training sessions held for employ-

ees to understand these policies?

The season for annual dinners

will soon come. In the past, we’ve

often encountered incidences dur-

ing a Company’s annual dinner.

Whilst we do agree that it should

be an occasion to unwind and relax

with colleagues outside of the nor-

mal working environment – we also

urge HR to prevent the occurrence

by clearly stating that this is not

“free-for-all” function. Incidents at

such functions can have a lasting

effect on an employee’s reputation,

their work relationships and even

their career prospects. The moresenior the employee, the more seri-

ous it usually is. Did you know that

an employee may just walk of on

grounds of constructive dismissal

on grounds that the company had

breached the contract of service by

failing to provide a safe a conducive

working environment?

a n n i ver s a r y

20EDITION

TH


6/8

MECA EMPLOYERS CONSULTING AGENCYMECA NEWS6

CALENDAR OF EVENTS

oday, we are the leaders in employers’ IR

solutions and education in Malaysia. We started

our first Industrial Relations Convention in 1997 at

Holiday Inn City Centre with 115 delegates.

1996 1999 2008 2015

Our daughters, Shanu and Renu joined with their timely

LLB (Hons.) degrees within a few month. With strategic

goals and diligence, we took the helm and steered

towards a membership growth of 100 in our first year.

In January 2008, I transferred MECA & MCIR

to Anna as Managing Director, and Dharmen

the Chief Executive Officer of the companies.

Dharmen has been responsible for building

up both the companies tp great heights.

His diligence brought about a steady

increase in membership, a staff of 21, the

acquisition of our current office in PJX in 2013,

and our Johor Bahru branch, headed by Victor

Gan. Our Penang office headed by Natalie will

be launched in a few months.

By January 1999, we purchased our own

premises in Leisure Commerce Square

in Bandar Sunway and added training in

Industrial Relations to our services. Meca

Centre for Industrial Relations Sdn Bhd was

founded for this purpose. At this office, our

fourth daughter Gowri joined the team as an

LLB graduate followed by our third daughter

Anna, and her husband Dharmen, both of

whom were in legal practice.

HISTORY OF MECA

MECA CENTRAL (Kuala Lumpur) MECA SOUTH (Johor Bahru)

By T. Balasubramaniam

We began operations on 10th February 1996 when my wife,

Saras and I, established Meca Employers Consulting Agency, a

firm dedicated to providing valuable HR support and advice to

companies in Malaysia. Our modest office was a room leased from

my brother’s law firm M/S .Siva & Co in SS2, Petaling Jaya.

Jan 20 Malaysian Labour Law VS PPA – It’s Impact & PossibleChanges in 2016. Extra Bonus: New Minimum Wages Rates2016 and it’s impact oan your business

Feb 23 Misconduct in Employment and Domestic Inquiry Process(including investigation techniques for HR)

Mar 15,16&17 Industrial Relations Boot Camp

Mar 23 Malaysian Labour Law VS PPA – It’s Impact & PossibleChanges in 2016. Extra Bonus: New Minimum Wages Rates2016 and it’s impact on your business

Apr MECA North Opening (Penang)

Apr 4&5 Reducing Manpower Cost Seminar

May New Minimum Wages Rates 2016 Seminar

July 14 Managing Difficult Employees and Unsatisfied Performance

In Your Organization

Oct 12th MECA Industrial Relations Convention

Nov 17 Crucial IR skills for HR & Non-HR

Jan 12 Updates to Labour Law in 2016 & Minimum Wages

Mar 9 Misconduct in Employment and Domestic Inquiry Process(including investigation techniques for HR)

Apr MECA North Opening (Penang)

Apr 12&13 ermination of Employment

June 1&2 1st MECA South IR Convention 2016

July 20&21 Crucial IR Skills for HR & Non-HR

Aug 16,17&18 Industrial Relations Boot Camp

Sept 14&15 Employment Act 1955: Te Amendments

Nov 16&17 Reducing Manpower Cost Seminar

In 2015, our annual convention numbers grew to 450 delegates. I am indeed

proud to see the progress that MECA has made in these 20 years and am

confident that it will soar to even greater heights in years to come.

a n n i ver s a r y

20EDITION

TH


7/8


MR. Andrew Pastors obtained his

LL.B (Hons) from the University

of London and then Proceeded

to obtain his CLP with Brickfields

Asia College. He has a passion for

litigation and his area of interests

mainly include Civil and CriminalLitigation.

Prior to joining MECA, An-

drew worked for 3 years in a civil

litigation firm in Kuala Lumpur

doing general litigation where

he was involved in and exposed

to diverse areas of law including

Winding-Up & Bankruptcy, Pro-

bate, Divorce and also contractual

claim disputes. Andrew has alsohandled numerous interlocutory

court applications, assisted in

multiple civil trials and has done

sentencing mitigation in the Kuala

Lumpur Criminal Courts.

Andrew is a fluent speaker in

English and Bahasa Malaysia. He

currently operates in a dual capac-

ity as a Legal Advisor/ Consultant

in MECA and as a Legal Assistantin MECA’s panel solicitor firm,

Messrs. Dharmen Sivalingam &

Partners.

NEW CONSULTANT

WELCOME NEW MECA MEMBERS

a n n i ver s a r y

20EDITION

TH


8/8

MECA EMPLOYERS CONSULTING AGENCYMECA NEWS8 a n n i ver s a r y 20

EDITION

TH

Documents

MECA Newsletter_2016_1st Edition_20th Anniversary (2)