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.

1. K.Somasundram
Assistant Secretary – MTUC

2. 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.

3. 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.

4. 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:

5. 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.

6. 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.

7. Dismissal on grounds of misconduct
Meaning 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)

8. 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.

9. 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.

10. Suspension pending inquiry
S 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.


11. Underlying basis is natural justice
Natural 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.

12. 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).”

13. 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.

14. 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.

15. Conditions of Service
Employment contract is a contract of service as opposed
to a contract for services
Terms 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 violation
Educate workers on the do’s and Don’ts when they join
your company. Do not have orang saya mentality.

16. Examples of implied terms
To obey lawful orders
To perform his duties with reasonable care and diligence
Not to disrupt the operations of the employer’s business
To 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 employment
Not to make secret profits
To 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).

17. Misconduct: Common employment
misconduct(1)
prompt and regular attendance
neglect or non-performance of work
breaches of duties or rules of work
disregard of reasonable/lawful orders
Some habitual late comers/ MC 1st
week
(Berhenti berhenti lah banyak kerja lain di
Malaysia).

18. JPPM 18
PROCESSING OF CLAIMS FOR REINSTATEMENT
(SECTION 20 INDUSTRIAL RELATIONS ACT, 1967)
STATE DIRECTOR
CONCILIATION
PROCESS
RESULT
OF
CONCILIATION
CONCILIATION
PROCESS
(if necessary)
RESULT
OF
CONCILIATION
CASE CLOSED
HON. MINISTER
RESULT
INDUSTRIAL COURT
AWARD
DIRECTOR GENERAL
EMPLOYER
Reject
Refer. Section 20 (3)
Resolv
ed
Resolved
Unresolved
CASE CLOSED
CASE CLOSED
DIRECTOR GENERAL
WORKMAN
Written representations
within 60 days. Section
20(1)/1A
Unresolved
HEADQUARTERS
CONCILIATION
DIVISION
(REINSTATEMENT)
Notification
Section
20(2)
WORKMAN

19. Interaction with IRA, 1969
Director 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.

20. 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

21. 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

22. 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

23. 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

24. Employee’s implied obligations
To obey reasonable orders
To perform his duties with reasonable care
Not to disrupt the operation of the employer’s business
To 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 employment
Not to make secret profits
To further the interests of and not to compete with his employer
Not to act to the detriment of his employer (as fiduciary)

25. Employer’s implied obligations
To pay remuneration
To provide work; no general obligation but 3 exceptions
Not 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 seriously
To provide a suitable working environment

26. A Malaysian statement of the reciprocal duty of
trust and confidence
The 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])

27. Role of Industrial Court
In 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.

28. 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.

29. 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.

30. 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”.

31. 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?

32. 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.