The document provides an overview of termination of employees laws and challenges in Malaysia presented by Miss Loh Sub Mui. It discusses:
- The rights of employers and employees. Employers have the right to promote, transfer, and determine workforce size while employees have rights to security, safe working conditions, and union participation.
- Key statutory provisions around termination from the Employment Act 1955 including requiring notice periods of 4-8 weeks depending on length of service and allowing termination without notice by paying indemnity.
- Challenges around proving just cause for termination such as misconduct, negligence, poor performance, and managing probationary periods. Proper documentation of warnings and opportunities for improvement is important.
Learn about what is miscoduct, understand what is a domestic inquiry, why conduct a domestic inquiry, earn how to conduct a domestic inquiry, understand the importance of proper conduct of domestic inquiry, learn points that must be remembered and wha t constitutes a defect in domestic inquiry
The first of its kind, this seminar is held to provide participants with the knowledge and skills to effectively manage the documentation and processes for employees with prolonged illness or employees with inability to work due to occupational hazards, leading to medical boarding out.
Managing Dismissal Cases to Avoid RepercussionslegalPadmin
Speech by Dato' Jalaldin b Hussain (Chairman Industrial Court, Malaysia (Rtd)) & Tuan Mohd Khalid Atan (President, MTUC), given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015
ETHICS, LAW AND CORPORATE SOCIAL RESPONSIBILITY -
Malaysian Industrial – Labour Relation, SEXUAL HARASSMENT ISSUE, RETRENCHMENT ISSUE, IMPOSITION ISSUE
Learn about what is miscoduct, understand what is a domestic inquiry, why conduct a domestic inquiry, earn how to conduct a domestic inquiry, understand the importance of proper conduct of domestic inquiry, learn points that must be remembered and wha t constitutes a defect in domestic inquiry
The first of its kind, this seminar is held to provide participants with the knowledge and skills to effectively manage the documentation and processes for employees with prolonged illness or employees with inability to work due to occupational hazards, leading to medical boarding out.
Managing Dismissal Cases to Avoid RepercussionslegalPadmin
Speech by Dato' Jalaldin b Hussain (Chairman Industrial Court, Malaysia (Rtd)) & Tuan Mohd Khalid Atan (President, MTUC), given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015
ETHICS, LAW AND CORPORATE SOCIAL RESPONSIBILITY -
Malaysian Industrial – Labour Relation, SEXUAL HARASSMENT ISSUE, RETRENCHMENT ISSUE, IMPOSITION ISSUE
Speech by Dato' Jalaldin b Hussain (Chairman Industrial Court, Malaysia (Rtd)) & Tuan Mohd Khalid Atan (President, MTUC), given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015
The first of its kind, this seminar is held to provide participants with the knowledge and skills to effectively identify common workplace misconduct i.e. minor or major misconduct. It will also share the best approach in undertaking appropriate disciplinary actions, ensuring its compliance with the Employment Practices.
The first of its kind, this seminar is held to provide participants with knowledge and skills to develop an effective performance improvement plan and to manage the process in monitoring employees’ performance, in compliance with the due process of managing a non performer.
The probation and confirmation policy provides information about the terms and conditions that a new employee should follow during probation period. The policy conveys that probation period is an opportunity to both new employee and their manager to do get adjusted and to improve the performance.
For more information visit https://www.hrhelpboard.com/hr-policies/probation-and-confirmation-policy.htm
Employment Laws Addressing Needs of EmployerslegalPadmin
Speech by YBhg Datuk Shamsuddin Bardan, Executive Director Malaysia Employers Federation, given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 9, 2015
Managing Dismissal to Avoid RepercussionlegalPadmin
Speech by K.Somasundram, Assistant Secretary from MTUC, given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015.
Speech by Dato' Jalaldin b Hussain (Chairman Industrial Court, Malaysia (Rtd)) & Tuan Mohd Khalid Atan (President, MTUC), given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015
The first of its kind, this seminar is held to provide participants with the knowledge and skills to effectively identify common workplace misconduct i.e. minor or major misconduct. It will also share the best approach in undertaking appropriate disciplinary actions, ensuring its compliance with the Employment Practices.
The first of its kind, this seminar is held to provide participants with knowledge and skills to develop an effective performance improvement plan and to manage the process in monitoring employees’ performance, in compliance with the due process of managing a non performer.
The probation and confirmation policy provides information about the terms and conditions that a new employee should follow during probation period. The policy conveys that probation period is an opportunity to both new employee and their manager to do get adjusted and to improve the performance.
For more information visit https://www.hrhelpboard.com/hr-policies/probation-and-confirmation-policy.htm
Employment Laws Addressing Needs of EmployerslegalPadmin
Speech by YBhg Datuk Shamsuddin Bardan, Executive Director Malaysia Employers Federation, given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 9, 2015
Managing Dismissal to Avoid RepercussionlegalPadmin
Speech by K.Somasundram, Assistant Secretary from MTUC, given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015.
Lay-off and Retrenchment –difference between lay-off and
Retrenchment their application, necessary preconditions for their
application, lay-off and retrenchment compensation, special
provisions relating to lay-off, retrenchment, and closure in certain establishments, penalty, and punishment for illegal lay-off or retrenchment, the consequences of illegal lay-off or retrenchment.
Please be informed that the Labour Code numbered 4857 (“Labour Code”) regulates the working conditions and also rights and obligations of the employees and employers. The Labour Code shall apply to all employers, employer representatives, employees and workplaces except those listed under Article 4 of the Labour Code. There are two types of termination of the employment contract stipulated under the Labour Code; 1) Termination with notice period and 2) Immediate Termination due to justified reasons.
Welcome to our Labor Law Review No.02.2020, which provides you with (i) the insight “What employers should do if employees absent from work for several days without permission and (ii) updates on labor law from May 01, 2020, to June 14, 2020.Any questions, please feel free to contact us at info@letranlaw.com
Labor law as it is historically known, concerns regulation in the workplace. It creates rights and responsibilities in the employment relationship between employers and employees. Employee rights is a term that deals with various practices that provide protection to an employee in an organization.
WomenBizSENSE was invited by Penang Women's Development Corporation to present on business and marketing at a session called Fiesta Keusahawanan Wanita on 2 March 2013 at Bangunan MPSP, Bandar Perda,
These are the slides to be used by the participants during our 25 January 2013 WomenBizSENSE 2013 Goals, Vision & Mission Workshop conducted by WBS Advisor, Muzlifah Yusoff at YMCA Penang.
During our 28 September 2012 WomenBizSENSE meeting, Kristine Leong facilitated a group sharing exercise. The 5 specially selected women in business discussed the pros and cons of running a retail outlet. Here is the summary.
These slides shows the events and activities WomenBizSENSE organized or took part in for 2011. We encourage you to join us for more exciting events to grow your business in 2012.
This is a recap of events organized by WomenBizSENSE for 2010. If you are a woman in business and love to meet other business women, join us online at www.womenbizsense.com
Kseniya Leshchenko: Shared development support service model as the way to ma...Lviv Startup Club
Kseniya Leshchenko: Shared development support service model as the way to make small projects with small budgets profitable for the company (UA)
Kyiv PMDay 2024 Summer
Website – www.pmday.org
Youtube – https://www.youtube.com/startuplviv
FB – https://www.facebook.com/pmdayconference
Enterprise Excellence is Inclusive Excellence.pdfKaiNexus
Enterprise excellence and inclusive excellence are closely linked, and real-world challenges have shown that both are essential to the success of any organization. To achieve enterprise excellence, organizations must focus on improving their operations and processes while creating an inclusive environment that engages everyone. In this interactive session, the facilitator will highlight commonly established business practices and how they limit our ability to engage everyone every day. More importantly, though, participants will likely gain increased awareness of what we can do differently to maximize enterprise excellence through deliberate inclusion.
What is Enterprise Excellence?
Enterprise Excellence is a holistic approach that's aimed at achieving world-class performance across all aspects of the organization.
What might I learn?
A way to engage all in creating Inclusive Excellence. Lessons from the US military and their parallels to the story of Harry Potter. How belt systems and CI teams can destroy inclusive practices. How leadership language invites people to the party. There are three things leaders can do to engage everyone every day: maximizing psychological safety to create environments where folks learn, contribute, and challenge the status quo.
Who might benefit? Anyone and everyone leading folks from the shop floor to top floor.
Dr. William Harvey is a seasoned Operations Leader with extensive experience in chemical processing, manufacturing, and operations management. At Michelman, he currently oversees multiple sites, leading teams in strategic planning and coaching/practicing continuous improvement. William is set to start his eighth year of teaching at the University of Cincinnati where he teaches marketing, finance, and management. William holds various certifications in change management, quality, leadership, operational excellence, team building, and DiSC, among others.
Skye Residences | Extended Stay Residences Near Toronto Airportmarketingjdass
Experience unparalleled EXTENDED STAY and comfort at Skye Residences located just minutes from Toronto Airport. Discover sophisticated accommodations tailored for discerning travelers.
Website Link :
https://skyeresidences.com/
https://skyeresidences.com/about-us/
https://skyeresidences.com/gallery/
https://skyeresidences.com/rooms/
https://skyeresidences.com/near-by-attractions/
https://skyeresidences.com/commute/
https://skyeresidences.com/contact/
https://skyeresidences.com/queen-suite-with-sofa-bed/
https://skyeresidences.com/queen-suite-with-sofa-bed-and-balcony/
https://skyeresidences.com/queen-suite-with-sofa-bed-accessible/
https://skyeresidences.com/2-bedroom-deluxe-queen-suite-with-sofa-bed/
https://skyeresidences.com/2-bedroom-deluxe-king-queen-suite-with-sofa-bed/
https://skyeresidences.com/2-bedroom-deluxe-queen-suite-with-sofa-bed-accessible/
#Skye Residences Etobicoke, #Skye Residences Near Toronto Airport, #Skye Residences Toronto, #Skye Hotel Toronto, #Skye Hotel Near Toronto Airport, #Hotel Near Toronto Airport, #Near Toronto Airport Accommodation, #Suites Near Toronto Airport, #Etobicoke Suites Near Airport, #Hotel Near Toronto Pearson International Airport, #Toronto Airport Suite Rentals, #Pearson Airport Hotel Suites
Buy Verified PayPal Account | Buy Google 5 Star Reviewsusawebmarket
Buy Verified PayPal Account
Looking to buy verified PayPal accounts? Discover 7 expert tips for safely purchasing a verified PayPal account in 2024. Ensure security and reliability for your transactions.
PayPal Services Features-
🟢 Email Access
🟢 Bank Added
🟢 Card Verified
🟢 Full SSN Provided
🟢 Phone Number Access
🟢 Driving License Copy
🟢 Fasted Delivery
Client Satisfaction is Our First priority. Our services is very appropriate to buy. We assume that the first-rate way to purchase our offerings is to order on the website. If you have any worry in our cooperation usually You can order us on Skype or Telegram.
24/7 Hours Reply/Please Contact
usawebmarketEmail: support@usawebmarket.com
Skype: usawebmarket
Telegram: @usawebmarket
WhatsApp: +1(218) 203-5951
USA WEB MARKET is the Best Verified PayPal, Payoneer, Cash App, Skrill, Neteller, Stripe Account and SEO, SMM Service provider.100%Satisfection granted.100% replacement Granted.
Personal Brand Statement:
As an Army veteran dedicated to lifelong learning, I bring a disciplined, strategic mindset to my pursuits. I am constantly expanding my knowledge to innovate and lead effectively. My journey is driven by a commitment to excellence, and to make a meaningful impact in the world.
Digital Transformation and IT Strategy Toolkit and TemplatesAurelien Domont, MBA
This Digital Transformation and IT Strategy Toolkit was created by ex-McKinsey, Deloitte and BCG Management Consultants, after more than 5,000 hours of work. It is considered the world's best & most comprehensive Digital Transformation and IT Strategy Toolkit. It includes all the Frameworks, Best Practices & Templates required to successfully undertake the Digital Transformation of your organization and define a robust IT Strategy.
Editable Toolkit to help you reuse our content: 700 Powerpoint slides | 35 Excel sheets | 84 minutes of Video training
This PowerPoint presentation is only a small preview of our Toolkits. For more details, visit www.domontconsulting.com
LA HUG - Video Testimonials with Chynna Morgan - June 2024Lital Barkan
Have you ever heard that user-generated content or video testimonials can take your brand to the next level? We will explore how you can effectively use video testimonials to leverage and boost your sales, content strategy, and increase your CRM data.🤯
We will dig deeper into:
1. How to capture video testimonials that convert from your audience 🎥
2. How to leverage your testimonials to boost your sales 💲
3. How you can capture more CRM data to understand your audience better through video testimonials. 📊
3.0 Project 2_ Developing My Brand Identity Kit.pptxtanyjahb
A personal brand exploration presentation summarizes an individual's unique qualities and goals, covering strengths, values, passions, and target audience. It helps individuals understand what makes them stand out, their desired image, and how they aim to achieve it.
Falcon stands out as a top-tier P2P Invoice Discounting platform in India, bridging esteemed blue-chip companies and eager investors. Our goal is to transform the investment landscape in India by establishing a comprehensive destination for borrowers and investors with diverse profiles and needs, all while minimizing risk. What sets Falcon apart is the elimination of intermediaries such as commercial banks and depository institutions, allowing investors to enjoy higher yields.
Business Valuation Principles for EntrepreneursBen Wann
This insightful presentation is designed to equip entrepreneurs with the essential knowledge and tools needed to accurately value their businesses. Understanding business valuation is crucial for making informed decisions, whether you're seeking investment, planning to sell, or simply want to gauge your company's worth.
Attending a job Interview for B1 and B2 Englsih learnersErika906060
It is a sample of an interview for a business english class for pre-intermediate and intermediate english students with emphasis on the speking ability.
Putting the SPARK into Virtual Training.pptxCynthia Clay
This 60-minute webinar, sponsored by Adobe, was delivered for the Training Mag Network. It explored the five elements of SPARK: Storytelling, Purpose, Action, Relationships, and Kudos. Knowing how to tell a well-structured story is key to building long-term memory. Stating a clear purpose that doesn't take away from the discovery learning process is critical. Ensuring that people move from theory to practical application is imperative. Creating strong social learning is the key to commitment and engagement. Validating and affirming participants' comments is the way to create a positive learning environment.
1. Termination of
Employees:
Laws and Challenges
in Malaysia
Presented by
Miss Loh Sub Mui
27 April 2012 at
WomenBizSENSE meeting, YMCA Penang
2. Miss Loh Sub Mui, a HR generalist with 20+ years experience, is a Group HR
Manager with a locally established group of companies.
Her work requires her to deal with industrial relations matters in both unionized
and non-unionized environment.
She got her B.Arts from University Malaya and later obtained her MBA from the
University of Bath.
She has obtained certification too in Coaching & Mentoring, Neuro-Lingistic
Programing (Practitioner Certification), Human Performance Improvement and
Myer-Briggs Type Indicators (Accreditation).
WomenBizSENSE, a women entrepreneur's group in Penang, invited Miss Loh to
give a talk to its members on 27 April 2012 at the YMCA Penang.
3. Termination of Employees
- the Laws and Challenges
Agenda
Rights – Employer & Employee
Statutory Provisions
- Employment Act, 1955 - S12, S13, S14 and S15
Breach of Contract
Probationer
Poor Performance
Frustration of Contract
Fixed Term Contracts
3
5. Rights of Employer
Promotion from lower to higher grade.
Transfer within the organization provided
the change is not to the detriment of the
worker.
Employment of any person to fill a vacancy.
To reorganize and determine size of
workforce.
Allocation of duties and specific tasks that
are consistent/compatible with the terms of
employment.
5
6. Rights of Employee
Security of tenure.
Provided with work compatible with what he was
employed to do when it is available.
Safe and conducive working environment.
Form Union and take part in its lawful activities.
6
7. Obligations of Employer
Offer work when worker is fit and willing to
work.
Provide a safe & conducive working
environment.
Support and co-operation to employee.
Not to dismiss employee unlawfully.
7
8. Obligations of Employee
To be diligent at work.
Not to absent from work without leave or a
reasonable excuse.
Respect authority of the employer.
Obey all lawful instructions.
Exercise due care and skill while at work.
To be loyal and faithful to the employer.
8
10. S 12(1) Termination of contract
with notice
Either party to a contract of service may at any time
give to the other party notice of his intention to
terminate such contract of service.
10
11. S 12(2) Length of Notice
Shall be the same for both parties.
Provision made in writing & in the terms of the
contract of service.
In absence of such terms, the length of notice shall be
Length of service Length of notice
< 2 years 4 weeks
2 years to < 5 years 6 weeks
5 years & above 8 weeks
11
12. S 12(3) Length of Notice
The length of notice provides under S12(2) shall
apply if the termination of service is
attributable
wholly or mainly to the fact that:-
a) Employer has ceased, or intends to cease to
carry on business for the purpose of which
the employee was employed; (closed shop)
b) Employer has ceased or intends to cease to
carry on business in the place at which the
employee was contracted to work;(relocate)
c) Requirements of that business for the
employee to carry out work of a particular
kind have ceased or diminished or are
expected to cease or diminish; (redundancy) 12
13. S 12(3) Length of Notice
d) Requirement of that business for the employee to
carry out the work of a particular kind in the place
at which he was contracted to work have ceased or
diminished or are expected to cease or diminish;
(redundancy)
e) Employee has refused to accept his transfer to any
other place of employment, unless his contract of
service requires him to accept such transfers ;(transfer)
f) A change has occurred in the ownership of the
business for the purpose of which an employee is
employed or of a part of such business, regardless of
whether the change occurs by virtue of a sale or other
disposition or by operation of law.(change of
ownership) 13
14. S 13 (1) Termination of
contract without notice – by
paying indemnity
Either party may terminate the contract without
notice by paying the other party an indemnity of a
sum equal to the amount of wages which would
have accrued to the employee during the term of
such notice
14
15. S 13(2) Termination of contract
without notice – wilful breach of
the contract
Either party may terminate the contract without
notice in the event of any wilful breach by the other
party of a condition of the contract.
15
16. S 14(1) Termination of contract
for special reasons
An employer may, on grounds of misconduct
inconsistent with the fulfillment 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 punishment as he deems
just and fit, and where punishment of
suspension without wages imposed, it shall
not exceed a period of 2 weeks. 16
17. S 14 (3) Termination on being
threatened by violence or
disease
An employee may terminate his contract of
Service with his employer without notice
where he or his dependants are immediately
threatened by danger to the person by
violence or disease such as such employee did
not by his contract of service undertake to
run.
17
18. Regulation 4(1) Employment
(Termination & Lay-Off Benefits)
Regulations 1980
Subject to paragraph (2), (3) and (4) an employee shall be
entitled to termination benefits payment where his contract
of service is terminated for any reason whatsoever otherwise
than:-
a) by the employer, upon the employee attaining the age of
retirement if the contract of service contain a stipulation in
that behalf (stipulated retirement); or
b) by the employer, on grounds of misconduct inconsistent
with the fulfillment of the expressed or implied conditions of
his contract of service, after due inquiry (misconduct); or
c) voluntarily by the employee, other than under S 13(2) or for
the reasons specified in S 14(3). (resignation)
18
19. It is an established principle of industrial jurisprudence
that before the employer can dismiss the workman
there must be just cause or excuse and the just cause or
excuse must be based on the facts of each case, either a
misconduct, negligence or poor performance.
It is imperative that the employer prove the charges
against the workman and not the workman who has to
prove his innocence.
19
20. Consequences arising from the termination of
employment without justifiable reasons, the
Industrial Court may order:-
Reinstatement
Order reinstatement of the employee to his
previous position without loss of salary, status and
benefits (monetary or otherwise).
Monetary compensation
Order the company to pay backwages of 24
months
salary and compensation in lieu of reinstatement
(01 month for each year of service).
20
22. S 15 Termination for breach of
contract
Two (2) deeming provisions in which an employer or
employee is deemed to have breached the contract of
service:-
•
S 15 (1) The employer fails to pay wages in accordance
with Part III of the EA 1955.
•
S 15 (2) The employee has been continuously absent
from
work for more than 2 consecutive working days without
prior leave from his employer, unless he has a
reasonable
excuse for such absence and has informed or attempted
to inform his employer of such excuse prior to or at the
22
23. S 60F(2) Sick Leave – Deemed Absent
Employee who absents on sick leave:-
•
Not certified by a registered medical practitioner,
medical officer or dental surgeon; or
•
which is certified by such registered medical
practitioner, medical officer or dental surgeon, but
without informing or attempting to inform his
employer of such sick leave within 48 hours of the
commencement thereof,
Shall be deemed to absent himself from work without
the permission of his employer & without reasonable
excuse for the days on which he is so absent from
work. 23
24. S 60F(2) read together with S 15(2) and S 13(2) of the
EA 1955 would allow for termination without notice on
account of breach of contract.
Reference Cases:
1. Sykt Telekom Msia Bhd v Madurai Veeran a/l
Gopal,
Industrial Court, KL
2. Msia Airline System Bhd v Julais Stephen,
Industrial Court, Sabah
3. Cycle & Carriage Bintang Bhd v Kong Yuen Hoong,
Industrial Court, KL
24
25. Malingering – What is it?
•
Workers have no right to take leave on ground of
sickness when they are not actually sick.
•
Sometimes the workers feign sickness in order to get
leave which is called “malingering”.
•
Dictionary meaning is “to feign illness in order to
avoid duty.
•
Usually done by producing false medical certificates.
•
Malingering is a recognized misconduct but in order
to show that the worker has taken leave on false
grounds of sickness the MC has to be examined in
the light of the attendant & other circumstances.
Employer need to review the surrounding
circumstances and not just rely on the employee’s
record.
25
26. Malingering – What is it?
•
Malingering should not be confused with submitting
fake or forged or tampered MCs. In the case of a
fake/forged/tampered MC, is clearly a serious
misconduct as there is the element of intention to
cheat the Co.
26
28. Probationers
Not defined in EA 1955 nor IR Act 1967
Dictionary meaning
“who is on trial or in a state to give proof of
certain
qualifications for a place or state.”
Determined under the contract of service by the
employer to test the suitability for permanent
employment.
Employee tested for compatibility & suitability to
perform the job as well as in their conduct,
behaviour & attitude.
28
29. Probationers
Employer does not have unfettered right to
terminate.
Decision no to confirm should be bona fide &
not arbitrary or capricious.
Termination within the probationary period to
be on ground of misconduct or other sufficient
reason.
At the end of probationary period, employee has
right to terminate if he is reasonably satisfied
that employee is not suitable to be confirmed.
Could not be terminated without just cause or
excuse. 29
30. Basic principle:
As far as poor performance is concerned the
Industrial Court has laid down that in order to
justify the dismissal of the workman on this
ground, the employer has to establish:-
1. that the workman was warned about his poor
performance;
2. that the workman was accorded sufficient
opportunity to improve; and
3. that notwithstanding the above, the workman
failed to sufficiently improve his performance.
30
31. Managing probationers – the
practice:
If 3 months probationary period, appraisal should
ideally be carried out monthly.
If 6 months probationary period, appraisal should
ideally be carried out bi-monthly.
Appraisal form must be signed by Appraisor and
acknowledge by Appraisee irrespective of whether he
agrees with the appraisal or not. Appraisee should be
allowed to have his reasons for not agreeing to area(s)
appraised minuted.
The Probationer must be cautioned and warned about
his poor performance, attitude towards work,
incompetence and inadequacies.
31
32. Managing probationers – the
practice:
Sufficient opportunity must be given to the probationer
to improve and/or rectify his poor performance and/or
inadequacies. In appropriate cases, guidance should be
provided.
If the Company decides not to confirm the probationer
at the end of initial probationary period but wishes to
extend probation, the extension should be made in
writing on or before end of the probationary period.
Date of extension together with reasons should be
clearly
stated in the letter of extension of probation. Should be
included is a warning that if he fails to improve
sufficiently then the Company may have to let him go.32
34. Poor Performance
Poor performance is not a misconduct per se.
Misconduct deals with behaviour whilst poor
performance deals with ability.
More challenging to prove & very subjective in nature
Employee’s performance is very much a matter of
perception & degree.
Be slow to dismiss on grounds of poor performance.
While the easy option is to dismiss poor performing
employee as a quick-fix, the Courts frequently find
that
dismissals for poor performance are unjustified - Not
because the substantive reason for the dismissal in
unjustified, but because the process followed by the
employer was flawed. 34
35. Poor Performance
Generally, easier to establish poor performance in cases
of probationers compared to full-time employees,
since
the confirmation of probationers are subject to their
ability to perform to the satisfaction of the employer.
35
36. Poor Performance
How to manage poor performers who are
confirmed employees?
1. Identify the areas of poor performance, inefficiency,
incompetence or ineptitude.
2. After counselling, send a Note to Personal File
highlighting the areas counselled and improvement
expected. Get the employee to sign on the Note to
Personal File.
3.If no improvement after sufficient time or
opportunity given, issue a written warning and state
period in which improvement is expected. Get the
employee to acknowledge receipt of the warning
letter. 36
37. Poor Performance
4. If no improvement, issue another warning letter
and state that stern disciplinary action will be
taken if no improvement is made or if the
employee fails to meet the expectations of the
Company at the end of the period given.
5. Where no improvement is shown or if there is
insufficient improvement or if employee’s poor
performance carries on, issue a show cause letter
to employee stating the areas or repeated areas of
poor performance and his reason(s) as to why
disciplinary action should not be taken against
him.
37
38. Poor Performance
6. Is the explanation acceptable?
a) If Yes, proceed to issue a final letter, setting out
that if no improvement within reasonable time,
the employee will be dismissed.
b) If No, proceed to conduct domestic inquiry, in
case if employee is found guilty, take the
appropriate disciplinary action.
(** Generally, no need for domestic inquiry if
dismissal is solely on ground of poor performance
but advisable in any event.)
c) Proceed to terminate the employee, in
appropriate case.
38
39. Poor Performance
6. Is the explanation acceptable?
a) If Yes, proceed to issue a final letter, setting out
that if no improvement within reasonable time,
the employee will be dismissed.
b) If No, proceed to conduct domestic inquiry, in
case if employee is found guilty, take the
appropriate disciplinary action.
(** Generally, no need for domestic inquiry if
dismissal is solely on ground of poor performance
but advisable in any event.)
c) Proceed to terminate the employee, in
appropriate case.
39
40. Commonly committed mistakes by
superior in relation to managing poor
performance:
In relation to Probationer
•
Failure to carry out periodic performance appraisal.
•
Discovering the expiry of the probationary period later.
Recommends extension for probation graded above
average.
•
Recommends confirmation for probation graded below
average.
•
Failure to counsel or issue warning when situation calls
for.
•
Failure to put warning in writing or nor keeping
records. 40
41. Commonly committed mistakes by
superior in relation to managing poor
performance:
In relation to Confirmed employee
•
The “good guy” symptom.
•
Unable to carry out performance appraisal objective.
•
Over evaluation.
Common pitfall – Employer fail to set out the reasons
for dismissal ie poor performance in the letter of
termination.
Address the problem earlier rather than later since it may
be construed as condonation on the part of the employer.41
42. Poor Performance
Tedious process for poor performance cases and
may be impractical for small companies.
The underlying rationale of the entire process is
to assist the employee and not serve as
punishment.
The Court set a high standard for employers who
dismiss an employee for poor performance, in
terms of procedural fairness and justification.
42
44. Frustration of Contract
Premature determination of an
agreement due to change of circumstances
striking at the root of the contract.
The intervening circumstances must be so
fundamental as to destroy the basis of the
agreement.
When frustration occurs it kills the contract
itself & discharges the parties of their
obligations.
44
45. Factors & Principles
•
Award No. 33/1973
“..change in circumstances that events make it physically
impossible for a contract to be performed eg illness of
the employee lasts or likely to last for a prolonged
period……illness or incapacity which is permanent..”
•
Award No. 64/1974
“…incapacity or illness should not be temporary but
serious & prolonged, so that the employee cannot be
expected to perform his duties in the foreseeable
future….”
45
46. Factors & Principles
•
MHS Aviation v Zainol Akmar Hj Mohd Noor [2001] 2
ILR 366 Award No. 419
“Where without the fault of either party, some
supervening event occurs which was not reasonably
foreseeable at the time when the contract was made &
which renders further performance of the contract totally
impossible or something radically different from what
the parties bargained for, the contract is forthwith
discharged by operation of law. Absence of ill health
may take the form of either of persistent brief absences
over a long period of time, or a single long absence from
work. ….Where this is the case, there is in law no 46
47. Factors & Principles
•
Spencer v Paragon Wallpapers Ltd [1976] IRLR 373
“Where there is dismissal, the starting point for analyzing
the duty of the tribunal in deciding whether or not the
dismissal is fair, the court emphasized the importance of
scrutinizing all the relevant factors. Every case depends
on its own circumstances. The basic question which has
to be determined in every case is whether, in all the
circumstances, the employer can be expected to wait any
longer and if so, how much longer? The relevant
circumstances include “the nature of the illness, the likely
length of the continuing absence, the need of the
employers to have done the work, which the employee
was engaged to do.” 47
48. For termination on medical grounds, it is necessary for
the employer to obtain:-
1. A conclusive medical report which states that the
employee will not be able to perform the tasks he was
hired to do; or
2. That his condition is such that it is unlikely in the
reasonable future that the employee will be able to
perform the tasks he was hired to do.
48
49. What if the report from the medical practitioner states
that he should only be given light duties?
•
Award No. 130 of 1985
“If an employee is incapacitated by ill health & is no longer
able to perform the job he was employed to do, his employer
should consider whether or not the man could be kept in
employment in another capacity. If there is an existing job,
even if it is a lower paid, the employer should offer the
alternative employment to the employee. If the employee
refuses any such offers then it seems to be reasonable for the
employer to dismiss the employee. It should be noted that
the employer is only required to consider the employee’s
ability to perform existing jobs – there is no duty on the
employer to create new job in order to continue the
employment.” 49
50. Excessive medical leave
•
Extent/Level of excessive MC
•
Termination – can this be done when the MC’s are
obtained from registered medical practitioners?
Reference cases:-
1.Kelang Port Management Sdn Bhd v Karuppiah Sinniah,
Industrial Court, KL
Taken 35 days of MC + 51 days medical leave.
Held:
The company had not acted in error or with malice to
victimise
him. The company has been lenient on the issue of his
excesses and abuses for the 4 years from 1994/97. They had
correctly decided that the final 6 months of monitoring him
was a final warning to him, made with all good intentions,
which had been flouted & abused. This left the employer no
option but to terminate the claimant’s services. 50
51. Reference cases:-
2. Dunlop Malaysian Industries Employees Union v
Dunlop Industries Bhd, Industrial Court, KL
Jan/Sep 1979 = 49 days medical leave
Aug/Sep 1980 = 32 days medical leave
8/8/80-9/8/80 and 16/8/80 – 23/8/80 = MC from 7
different clinics.
Held:
1. Considering that the Claimant has been certified
physically & mentally fit & in the absence of any
evidence that his state of health had deteriorated in
Aug/Sep 1980, the Court agrees that the Company
had established its case that the Claimant had no
serious or long-standing illness to account for the
excessive medical leave. 51
52. 2. From the pattern of the medical leave taken by the
Claimant, the Court agrees with the Company that it
does indicate an intention not to perform his
contractual obligation to his employer.
52
53. What if medical leave taken is not grossly excessive but
in relation to others, is high?
•
In such an instance, the Co. will not be able to terminate
the services of the employee. Rather the Co. has to
manage this.
How?
One way ask the employee to go for a medical check-up
to try and determine e to be what exactly is causing the
employee to be constantly ill.
53
55. S 11(1) EA 1955 - Fixed
Term Contract
A contract of service for a specified period of time
or for the performance of a specified piece of work
shall, unless otherwise terminated in accordance
with this Part, terminate when the period of time
for which such contract was made has expired or
when the piece of work specified in such contract
has been completed.
55
56. Under the laws of contract – a party to a contract may
generally terminate the same by giving the requisite
notice of termination stipulated under the said contract.
However, the same does not apply to employment
contract in Malaysia due to the existence of the
Industrial Relations Act 1967 and in particular S20(1)
which provides as follows:-
“Where a workman, irrespective of whether he is a
member of a trade union of workmen or otherwise,
considers that he has been dismissed without just cause
or excuse by his employer, he may make representations
in writing to the DG to be reinstated to his former
employment,……..”
56
57. Fixed Term Contract
As a general rule, fixed term contract does not
carry the right of renewal.
Normally fixed term contract allowed for jobs of a
certain duration only.
Employer not allowed to make a series of
contracts of finite duration with intention to
evade statutory protection.
57
58. What amounts to a Genuine
Fixed Term Contract
Intention of the parties.
The nature of the job.
The circumstances of the non-renewal/
termination.
Temporary, one-off jobs.
Seasonal work.
Understanding that the contract will not be
renewed on expiry.
58