Length of Notice Period of Resignation in Malaysia

Section 12 of Employment Act 1955 stated that the length of notice period of resignation should be stated in writing in the contract of service. If there is no provision, then it should be as follows:-

i. Less Than 2 Years Service → 4 Weeks
ii. More Than 2 Years but Less Than 5 Years → 6 Weeks
iii. More Than 5 Years → 8 Weeks

It is easy for the employee use the clause. This is usually done when he tenders his resignation. However, it is not easy for the employer to use the clause. WHY? It is because of the existence of another provision in a statute, i.e. section 20 of the Industrial Relations Act 1967 (“IRA“).

Section 20 of IRA states that where a workman considers that he was dismissed without just cause or excuse, he may bring a legal action against his former employer to be reinstated in his former employment.

Therefore, if an employer uses the clause and says that it was merely following what was stated as per the clause, the employee can bring a legal action against the employer for unfair dismissal. Unlike other civil cases or criminal cases, in industrial law, the employer has the burden of proving that the employee was dismissed with just cause or excuse. The employee only needs to show that he was in employment with the employer together with the circumstances leading up to the dismissal.

If the employer only wishes to rely on the clause, there is a very high probability that the court will rule dismissal to be without just cause or excuse. Thus, mere reliance on the clause is insufficient.

Any dismissal of workman/employee in Malaysia whether due to misconduct, poor performance, retrenchment, business closure, VSS, etc, must be with just cause or excuse. The employer has the burden to prove just cause or excuse. If the employer is attempting to justify the just cause or excuse by adducing evidence, the court will scrutinize the evidence. If the employer only has verbal evidence, the employer’s case will be significantly weakened.

Read more:
1. Unfair and Unlawful Dismissal in Malaysia
2. Boost App - The Malaysian Leading eWallet
3. Difference Between Retrenchment, VSS & MSS
4. AirAsia BigPay - Sign Up Today To Get RM 10 Free Credit !

Edited by: 浪子

Bibliography

MyIndustrial3Employment. (2017). Length of Notice Period. Retrieved from https://myindustrial3employment.wordpress.com/2017/04/19/length-of-notice-period/