Unfair/Unlawful Dismissal and What You Should Know
1. Limitation Period
From the time of dismissal, an employee has 60 days to file a complaint of unfair dismissal under the Industrial Relations Act 1967. As for those dismissed with notice, they are free to file the complaint any time during the notice period, but not later than 60 days from the expiry of his notice.
If for any reason, the complaint is not filed within the limitation period, the complaint will be barred. If this happens, the complainant may look at other avenues in the civil courts. However, the damages and remedies awarded may differ.
2. Cases Are Not Heard Immediately at the Industrial Court
Anyone who wants to lodge a complaint on unfair dismissal must firstly do so at the Industrial Relations Department (IRD). Following this, the IRD will get both parties, the employer and employee to attend a conciliation meeting with the hope of amicably settling the dispute.
However, if there is no positive outcome, the IRD can then refer the matter to the Industrial Court. At times, it could take more than a year for a claim to be referred to the Industrial Court. This all depends on the number of backlog cases. Also, there is no guarantee the claim will be referred and those who are unhappy with the IRD’s decision can apply for judicial review at the High Court.
3. IRD Meeting Not a Court Hearing
The IRD officer does not have any power to decide on the merits of the complaint during the conciliation meeting. It must be remembered that the IRD meeting is not a court hearing and the IRD will not make any ruling or decision as to whether the dismissal is unfair. The purpose of the IRD meeting is to get parties to reach an amicable settlement.
If it is found that an employee was unfairly dismissed, the Industrial Court will award either reinstatement and back dated wages or back dated wages and compensation in lieu of reinstatement.
Back dated wages are meant to cover the period between the termination date and the award of the Industrial Court. However, they are capped at 24 months (confirmed employees) and 12 months (probationers).
Compensation in lieu of reinstatement is usually awarded at the rate of 1 month for every year of service, but this is not a fixed formula and is still subject to the discretion of the Court.
Any other monetary sum is also subject to discretionary deduction by the Court. The court will take into account various mitigation factors such as conduct of the employee and post-dismissal earnings. The monetary award given is meant to cover all losses relating to the termination, and employees cannot claim for additional damages for things like loss of future earnings, loss of reputation, or mental and emotional stress.
5. All Industrial Court Awards Are Public Record
The public can access all Industrial Court awards through their website (mp.gov.my). Both employers and employees should be mindful that issues relating to the termination and all evidence adduced thereto may be easily accessible by third parties.
They must remember that any unfavourable decision reached could be damaging to both the employee and the employer. This could be in terms of future job prospects or reputation in the market. With this in mind, both sides must weigh this against other relevant factors when determining whether an out of court settlement will be more beneficial.
An out of court settlement is better as it is more confidential and if requested, the terms of the settlement will not be recorded in a Court award.
Q: According to an employment contract, either party has the right to terminate the contract with one-month notice in writing or by making payment in lieu of notice. Does the employer need to show the reason of dismissal or he could terminate the contract as long as one-month notice or payment in lieu is given?
A: Other than the notice clause in the employment contract, the employer still need to show reasonable “cause and excuse” of dismissal before the termination. With this in mind, an employer need to give tangible good reasons for any dismissal but not simply depends on the notice clause as in the employment contract. Otherwise, the employer might face the claim for unfair dismissal if they failed to do so.
Having said that, an employee can terminate their employment contract (or resign) for any reason by following the notice clause.
Q: Industrial Court in Malaysia: pro-employee or pro-employer?
A: Pro-employee or pro-employer are both the misinterpreted statements because the Industrial Court in Malaysia is a court of equity and good conscience. As such, the court possesses the freedom and flexibility in determining cases and is motivated by social justice, to both employee and employer.
Q: Is the Industrial Relations Act applicable to all resident and non-resident employees in Malaysia?
A: Yes. Every employee has the right to file a representation under the Industrial Relations Act no matter you are a Malaysian or an expat.
A: Everyone can file a complaint for unfair dismissal regardless of his or her monthly income.
Q: Will my employer counter-sue me in the Industrial Court if I file a claim of unfair dismissal against my employer?
A: The employer has the right to file a lawsuit if they have a valid legal claim against the employees. However, the industrial court has no jurisdiction to any counterclaims by the employers.
Q: Is there any charges I need to pay if I were to file a complaint of unfair dismissal?
A: There are no filing fees needed in such a case. Yet, you have to bear the fees if you appoint a lawyer to represent you if the matter is referred to the Industrial Court.
Q: If I win the case, can I recover my legal fees from the employer? Otherwise, do I have to pay the employer’s legal fees?
A: Each party has to pay their own legal fees, no matter they won or lose the case.
A: The Industrial Relations Department has no right to compel you to accept such offers from the employer and you are not obliged to accept any settlement offer proposed by the employer. Yet, you can decide whether to accept any settlement offer or not.
Please bear in mind that the conciliation meeting at the IRD is not a court hearing, thus what happens during the conciliation meetings cannot be adduced as evidence in later proceedings.
Q: What are the alternatives I have if the Industrial Relations Department refused to refer my case to the Industrial Court?
A: Those who are not happy with the decision of the IRD can apply for judicial review of the decision at the High Court within 3 months from the date they were notified of the refusal. A lawyer is needed as a representative to handle the judicial review application for applicant.
Q: I won my case, a settlement agreement is reached, but I haven’t received any court-ordered Award because the employer refused to honor the Award. What should I do?
A: You could apply to have the Award to be recorded as a judgment of the High Court or Sessions Court and it can be enforced like a normal judgment from the Court.
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Edited by: 浪子
Bibliography
3E Accounting. (n.d.). Unlawful Dismissal and What You Should Know. Retrieved from
https://www.3ecpa.com.my/blog/unlawful-dismissal-and-what-you-should-know/
3E Accounting. (n.d.). Unfair Dismissal of Employee or Termination of Employment in Malaysia.
Retrieved from https://www.3ecpa.com.my/blog/unfair-dismissal-employee-termination-employment-malaysia/
Unfair and Unlawful Dismissal in Malaysia
Reviewed by 浪子
on
December 19, 2018
Rating:
Reviewed by 浪子
on
December 19, 2018
Rating:
