K.Somasundram

Assistant Secretary – MTUC

Is the dismissal fair?The requirement of fair dismissal of an

employee by his employer is embodied in the ILO Convention 119

This convention requires the member countries which have ratified this convention to lay down specific procedures in regard to dismissal so as to ensure that there is

a) No victimization b) Punishment is awarded on the basis of

full enquiry and establishment facts.

Is the dismissal fair?The concept of fair dismissal compromises

the following elements:A) The reason or cause for fair dismissal

ought to be only proven misconduct, not victimization.

B) The burden of proving due to misconduct in on the employer for he is the one who is alleging it.

Is the dismissal fair?C) In establishing the reason for dismissal

before the Industrial Court, the employer should rely on facts known only at the time of dismissal.

D) The employer is required to prove the misconduct in accordance with the required standard of proff:

Is the dismissal fair?e) The degree of proof considered necessary to

prove misconduct before the industrial tribunal may be as low as establishing a “prima facie “case or as high as “ proof beyond reasonable doubt” with proof that satisfies the court on the “balance of probabilities” coming in between.

Is the dismissal fair?The standard of proof required to

substantiate varies depending on the nature of the misconduct and on whether or not the case is heard by the Industrial Court after a pre- dismissal enquiry.

F) In reaching a conclusion whether the dismissal has been fair or not, the court insists that not only the employer has to prove that the cause is just but also the punishment (dismissal) fits the offence.

Dismissal on grounds of misconductMeaning of the word ‘misconduct’The term ‘misconduct’ refers to a conduct so

seriously in breach of the accepted practice that by standards of fairness and justice the employer should not be bound to continue the employment.

(Syarikat Kenderaan Melayu Kelantan Sdn Bhd v. Transport Workers Union (1990) ! MLJ 5 (HC: Idris Yusoff J)

Employer choose Indemnity in lieu of notice to dismiss workers

13 (1) Either party to a contract of service may terminate such contract of service without notice or, if notice has already been given in accordance with section 12,

With some extra payment out of good will and get workers to sign that no further claims can be made.

Sec 14: Disciplinary action including dismissal (1) An employer may, on the grounds of

misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry -

(a) dismiss without notice the employee; or (b) downgrade the employee; or

(c) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.

Suspension pending inquiryS 14 (2) For the purposes of an inquiry under

subsection (1) , the employer may suspend the employee from work for a period not exceeding two weeks but shall pay him not less than half of his wages for such period:

Some employers pay the workers for several months and not conduct a DI immediately.

Such practices could be avoided.

Underlying basis is natural justiceNatural justice ensures firstly, that

decision-making administrators decide on matters entrusted to them after hearing all affected parties rather than upon hearing one side only or on their own guesses, intuitions or conjectures; and secondly, that there is no taint of biasness in such decision-making are required to comply with when undertaking its functions.

Equated with procedural fairness“The doctrine of procedural fairness … is a

product of the combined effect of Article 8(1) and 5(1) of the Constitution … the disciplinary authority must, when deciding what punishment it ought to impose … act reasonably and fairly.” (Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor (1996) 1 MLJ 261, per Gopal Sri Ram JCA).”

Due Inquiry in Employment Act 1955

The requirement of Section 14(1) of the Employment Act 1955 is met when the employer who wishes to dismiss an employee on the ground of misconduct has acted in accordance with the principles of natural justice.

Stated succinctly: The right to be heard and the rule against bias.

Natural justice The two rules of natural justice are:(a) audi alteram partem (literally, hear

the other side) or the right to be heard);(b) nemo judex in causa sua (literally, no

man ought to be a judge in his own cause) or the rule against bias.

Conditions of ServiceEmployment contract is a contract of service as

opposed to a contract for servicesTerms of contract divided into various categories,

most important of which are conditions which are essential terms

VERY VERY few contracts has an article or GP forms or procedures in it.

Why wait until a misconduct takes place.Be proactive by avoiding breach or violationEducate workers on the do’s and Don’ts when

they join your company. Do not have orang saya mentality.

Examples of implied termsTo obey lawful ordersTo perform his duties with reasonable care and diligenceNot to disrupt the operations of the employer’s businessTo conduct himself in accordance with his duty of good

faith and fidelity during the currency of his employment Not to use confidential information other than for

employmentNot to make secret profitsTo maintain trust and confidence to further the interests of

and not to compete with his employer. Not to act to the detriment of his employer (as fiduciary).

Misconduct: Common employment misconduct(1)

prompt and regular attendanceneglect or non-performance of workbreaches of duties or rules of work disregard of reasonable/lawful ordersSome habitual late comers/ MC 1st week (Berhenti berhenti lah banyak kerja lain di

Malaysia).

JPPM 18

PROCESSING OF CLAIMS FOR REINSTATEMENT(SECTION 20 INDUSTRIAL RELATIONS ACT, 1967)

STATE DIRECTOR

CONCILIATION PROCESS

RESULTOF

CONCILIATION

CONCILIATION PROCESS

(if necessary)

RESULTOF

CONCILIATION

CASE CLOSED

HON. MINISTER

RESULT

INDUSTRIAL COURT

AWARD

DIRECTOR GENERAL

EMPLOYER

Reject

Refer. Section 20 (3)

Resolved

Resolved

Unresolved

CASE CLOSEDCASE CLOSED

DIRECTOR GENERALWORKMAN

Written representations within 60 days. Section 20(1)/1A

Unresolved

HEADQUARTERS

CONCILIATION DIVISION

(REINSTATEMENT)

Notification

Section 20(2)

WORKMAN

Interaction with IRA, 1969Director General shall not inquire into, hear,

decide or make any order in respect of any claim, dispute or purported dispute which, in accordance with the Industrial Relations Act 1967 -(a) is pending in any inquiry or proceedings under that Act; (b) has been decided upon by the Minister under subsection 20(3) of that Act; or (c) has been referred to, or is pending in any proceedings before, the Industrial Court.

Supervisor who alerts himself to the conditions that commonly cause grievances has taken a big step in reducing them. The following is a checklist that will help him spot what he’s been doing wrong so that he can correct his mistakes before complaints or grievances arise:

Neglecting to correct uncomfortable physical condition

Neglecting unsafe work hazard

Placing employees on jobs they are not fitted

Placing employees together who irritate each other

Neglecting to correct uncomfortable physical condition

Neglecting unsafe work hazard

Placing employees on jobs they are not fitted

Placing employees together who irritate each other

Transferring an employee without reasonable notice and reason

Assuming employee knows to do new job without proper instruction

Ignoring an employee’s complaint Seem aloof to his employees

Leaving an employee on one job for along time

Making much of employee’s errors

Neglecting to speak a word appreciation for job well done

Treating all individual alike regardless of their different

Treating individual as you want to be treated

Taking credit for employee’s suggestion

Giving orders without giving reason

Threatening an employee either directly or indirectly

Speaking in technical term Allowing an employee repeat his mistake

Leaving an employee without a friendly word

Keeping silent about employees success

GRIEVANCE PROCEDURE

Purpose- The desire of both parties that grievances

arising between employee and the Company, or between the Union and Company, be settled as equitably and as quickly as possible, with the aim of reaching agreement at the lowest possible level and of maintaining continuous good relationship between both parties

Employee’s implied obligationsTo obey reasonable ordersTo perform his duties with reasonable careNot to disrupt the operation of the employer’s businessTo conduct himself in accordance with his duty of good faith and

fidelity during the currency of his employment To make certain disclosures (affecting confidential interests of

employer, employee’s misconduct fraudulently concealed and misconduct of other employees

Not to use confidential information other than for employmentNot to make secret profitsTo further the interests of and not to compete with his employer

Not to act to the detriment of his employer (as fiduciary)

Employer’s implied obligationsTo pay remunerationTo provide work; no general obligation but 3 exceptionsNot to require employee to do unlawful act; or to order employee

into danger To take reasonable care for employee’s safety so as not to

expose them to unnecessary risks (co-extensive with common law duty of care re negligence, thus cause of action in both tort and contract)

Not to (without reasonable and proper cause) conduct himself in a manner calculated or likely to destroy or seriously damage relationship of trust and confidence

The treat grievances seriouslyTo provide a suitable working environment

A Malaysian statement of the reciprocal duty of trust and confidenceThe obligations pertaining to trust and confidence are reciprocal. An

employee who expects his employer to honour this obligation has a reciprocal duty to honour his employer's corresponding expectations in this regard.

The Court holds that the Claimant had by his conduct set out hereinbefore undermined the relationship of trust and confidence which ought to exist between an employer and his employee.

The Company had come to the reasonable conclusion that it can no longer repose trust and confidence in the Claimant and that the Claimant's services ought to be terminated.

(Kenatex Sdn. Bhd v Yong Gat Kee [Award no. 551 OF 1997])

Role of Industrial CourtIn the context of the foregoing overview

of the theme of the subject, and inequities in its context, the Industrial Court as solely responsible for initiating action that led to these inequities and finally suggest that the Industrial Court should initiate action, since it has the necessary powers, to set right the inequitable situation governing relief for unjust dismissals in the interest of industrial harmony and social justice.

Payment of Compensation

The Industrial Relations Act 1967 when it provided for, under section 20 of the Act, representation for reinstatement by the dismissed workman, it was silent on the power of the Industrial Court to order the alternative remedy of payment of compensation.

However, legislation preceding section 20 of the Act did provide for payment of compensation in lieu of reinstatement for unjust dismissals. Specifically, when Parliament in 1980 replaced earlier provisions of the Act31 with section 20 in the Industrial Relations Act 1967, it retained reinstatement as the only relief for unfairly dismissed workman after deliberately removing from the statute the provision for the alternative remedy.

Limitation of Back Wages to 24 Months

In Edaran Otomobil case47 the Chairman stated that “following the issue of the Practice Note No I of 1987 [issued on 29 June 1987] payment of back wages was ordered in full from the date of dismissal to the date of conclusion of hearing subject to a maximum of 24 months”.

However this reference to the date of commencement of this curtailment of back wages is not correct since what was done in June 29 of 1987 was only the reiteration of the guidelines contained in the original Practice Note No. I of 198148.Was there any justification for limiting the back wages to a maximum of 24 months?

Conclusion Is it cheap to fire workers in Malaysia?

Do workers have to money to challenge the case even though you are right?

No to “terminate first think later”.

Mutual Trust and Respect - Yes.