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Slide presentation employment law in malaysia

The document discusses employment law, covering employer-employee relationships, legal rights and responsibilities, and employment discrimination. It details the Malaysian Employment Act of 1955 and Industrial Relations Act of 1967, including dispute resolution mechanisms through labor and industrial courts. Additionally, it addresses issues like job discrimination, sexual harassment, and the ethical implications of workplace behavior, promoting the need for corporate social responsibility in fostering a harassment-free environment.

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GMUL 5063 ETHICS, LAW AND CORPORATE SOCIAL RESPONSIBILITY PREPARED BY: BELHIMER MESSAOUD 816228 MUHAMAD HAZWAN BIN HASHIM 816904 MOHD AZRUL BIN ABD AZIZ 816906 ABDELHAK BOUKERIKA 817803 TOPIC 8 EMPLOYMENT LAW
THE EMPLOYMENT LAW  Employment law covers all rights and commitments inside of the employer-employee relationship - whether current employees, work candidates, or previous workers.  Due to the many-sided quality of employment relationship and the wide assortment of circumstances that can emerge, employment law includes legal issues as differing as discrimination, wrongful termination, wages and tax assessment, and work environment security The main legislations related the employment:  Employment Act 1955.  Industrial Relations Act 1967.
RELATIONSHIP BETWEEN EMPLOYER AND EMPLOYEE  Defined in section 2 Employment Act 1955, any agreement, oral or in writing, express of implied, whereby one person agrees to employ another person as employee the second person agrees to serve his employer as employee, includes an apprenticeship contract Employer  An employer is any person who has entered into a contact of service to employ another person as an employee “the Employment Act 1955”. Includes the agent, manager or factor of the employee.
Employee  The term Employee means a person or class of persons included in any category in the first schedule to the extent specified therein, or in respect of whom the Minister makes an order ● First Schedule, Employment Act 1955: – Person employed by employer, with wages less than RM1,550 per month. – Person who, irrespective of wages, enters contract of service for: ● Manual labour, including artisan / apprentice ● Operating / Maintaining vehicle for passengers / goods / reward / commercial purposes ● Supervises & oversees other employees engaged in manual labour. ● Engaged in a vessel in any capacity (conditions)
LEGAL RIGHTS AND RESPONSIBILITIES  The legal rights are the rights reflected by the law which should support collective bargaining arrangement and the freedom of workers to withdraw their labour  Employers have legal responsibilities to ensure a safe and healthy workplace. As an employee you have rights and you have responsibilities for your own wellbeing and that of your colleagues.  Rights and responsibilities g hand in hand, “rights entail responsibilities
 Employer's Duties:  As an employer, his responsibilities towards the employees among others: – Duty to Provide Work - “a skilled man takes pride in his work. He does not do it merely to earn money. He does it so as to make his contribution to the well-being of all.” – Duty to exercise care – i.e. providing a safe place for employee to work. ● Traditionally understood as physical health ● Modern jurists include mental health
Employee Rights  Wages  Deductions from Wages  Hours of Work  Bonus  Minimum Wage  Rest Days, Public Holidays  Hospitalization & Sick Leave  Annual Leave  Absence Without Leave  Termination Benefits  Retirement  Maternity Leave  Non-Renewal of Contract  Management & Union
Employer Rights  Right to Hire, Fire and Transfer  Right to Terminate & Dismiss  Termination & Notice
Industrial Court/Labour Court Director General of Labour  The Director General has the power to inquire and decide the disputes between an employee and the employer where dispute pertains to wages or any other payments in cash due to the employee. These payments may relate to any term of the contract of service of the employee, or under any other law or subsidiary legislation.(Section 69 of industrial Relations Act 1967).  Also the Director General has the power to confirm or set aside any decision of the employer made under section 14(1) of the Act. The Director General’s power to disputes is restricted t employees whose wages are up to RM 5000.
Labour Court  Under the Employment Act 1955, the Director-General of Labour, the Deputy Director-General and the others subordinate officers are given the responsibility to resolve some disputes between the employer and employee. The Labour Court is a mechanism implemented by the Department of Labour to settle claims by workers against their employers or vice versa. The Labour Court has the authority to hear and decide on cases of unlimited amounts.
Industrial Court  The Industrial Court is set up under the Industrial Relations Act 1967. It consists of a President, appointed by the Yang di Pertuan Agong, few Chairmen to assist the President, a panel of persons representing employers and employees. The Industrial Court meant to provide a fair, simple and specialized means of resolving disputes between employers and employees.  Any party not satisfied with the award of the Industrial Court cannot challenge or appeal against the award. However, questions of law which have arisen in the Industrial Court can be referred to the High Court for review.
Powers of Industrial Court ● The Industrial Court may: – Order for Reinstatement (Unfair Dismissal) – Order for maximum 24 months back wages – Order for recognition of collective agreements ● Industrial Court's Awards are “final and conclusive” – Section 33, Industrial Relations Act 1967 ● However, an unsatisfied party may file a writ or certiorari at High Court to annul or quash the Award – Can appeal from High Court to Court of Appeal and Federal Court
THE ETHICS OF JOB DISCRIMINATION Job Discrimination  The wrongful act of distinguishing illicitly among people not on the basis of individual merit, but on the basis of prejudice or some other invidious or morally reprehensible attitude Types of Employment Discrimination  Workplace discrimination includes biased practices based on • Age,Disability,Equal Pay/Compensation,Genetic Information, Harassment,National Origin, Pregnancy, Race/Color, Religion, Retaliation, Sex, Sexual Harassment.
Elements of Employment Discrimination  1. It is a decision against one or more employees that is not based on individual merit, such as the ability to perform a given job.  2. The decisions derive solely or in part from racial or sexual prejudice, false stereotypes, or some other kind of morally unsatisfied against the employee.  3. The decision has a harmful or negative impact on the interests of the employees, perhaps costing those jobs, promotions or better pay.
Discriminatory Act  A discriminatory act may be part of the isolated (no institutionalized) behavior, intentionally and knowingly discriminates out of personal prejudice  A discriminatory act may be part of the routine behavior of an institutionalized group  An act of discrimination may be part of the isolated (no institutionalized) behavior of a single individual who intentionally and knowingly discriminates against someone because the individual unthinkingly adopts the traditional practices and stereotype of the surrounding society.
Discriminatory Practices  Recruitment Practices: Firms that depend solely on the word-of-mouth referrals of present employees to enroll new workers have tended to recruit just from those racial and sexual groups that have been represented in their work power  Screening Practices: Job qualifications are discriminatory when they are not important to the occupation to be performed.  Promotion Practices: Promotion, job progression, and transfer practices are discriminatory when employers place White males on occupation tracks separate from those open to women and minorities.  Conditions of Employment not given to people who are doing essentially the same work.
Discrimination and the Law  Civil Rights Act of 1964 made it illegal to base hiring, firing, or compensation decisions on race, color, religion, sex, or national origin  created the Equal Employment Opportunity Commission (EEOC) to administer the Act  Executive Order 11246 required companies doing business with the federal government to take steps to redress racial imbalance in workforce  Equal Employment Opportunity Act of 1972 gave EEOC increased power to combat “under representation” and to require affirmative action programs
Utility, Rights, and Justice of Discrimination  Utility: which claim that discrimination leads to an inefficient use of human resources  rights arguments: which claim that discrimination violates basic human rights  which claim that discrimination results in an unjust distribution of society’s benefits and burdens. Affirmative Action  Affirmative action programs designed to achieve a more representative distribution of minorities and women within the firm by giving preference to women and minorities.  Claims affirmative action will secure equal opportunity and claims affirmative action is a morally legitimate means
Utilitarian Argument for Affirmative Action  Claims affirmative action minimize need by reaping helpful benefits minorities and women in need, and for that reason raises utility and Criticized in good grounds in which their costs outweigh their advantages and this other methods associated with lowering need will create higher utility.
CODE OF CONDUCT FOR INDUSTRIAL HARMONY Introduction  Industrial sector in Malaysia recorded rm46.9 billion as on January 2011  Boosted by high technology and knowledge based industries  Drive Malaysian into 17th largest exporting nation in the world  Needs to integrate n cooperation between industrial players government
Malaysian Industrial – Labour Relation  Industrial relation: “systems that encourage the industrial harmony which regulate the relations between employers and employees, trade union and prevention and lastly for settlement of trade disputes”  Main aspects focused: 1) relationship between employer and union, 2) employment law and discipline procedures, 3) Terminating the services contract
 Malaysian scoped industrial relation: 1) Employer 2) Employees (represented by union) 3) government  Main institution in administration and implementation of industrial relation and labour is the “minister of human resources” or “MOHR”.  Main responsibilities of MOHR: 1) Policy deployment 2) Human resources planning
 British colonial system 1) Trade unions enactment 1940 2) Industrial courts ordinance 1948 3) Trade dispute ordinance 1949  Post independences of Malaysia 1) Essential regulation and industrial arbitration tribunal, 1965. 2) August 1967, government introduced industrial relation act 1967 to replace trade dispute ordinance 1949 and essential regulation 1965.
Introduction  Firstly introduced in February 1975.  Created with tripartite initiative of ministry of labour (now mohr), Malaysian councils of employers organization (mceo) and Malaysian trade union congress (mtuc).  The aim for code of conduct for industrial harmony: “lay down principles and guidelines for employers and workers on the practice of industrial relations for achieving the greater industrial harmony”
The History  During the Malaysia-Indonesia confrontation 1963-1966, government set up “emergency essential regulations”.  The regulation empowered government to declare these economy sectors were “essential sectors”.  After the confrontation, the “essential sectors” was incorporated into legislation called “industrial relations (ir) act 1967”.  The racial riot in 1969 and unions industrial action has made government to encouraged the mtuc to commit industrial harmony.  February 1975, the code of conduct for industrial harmony has been established.  The code endorsed by the mtuc and mceo with the mediation of ministry of labour (now mohr).
The code  The code has four main areas which are: 1) responsibilities. 2) employment policy 3) collective bargaining 4) communication and consultation  The code covered fifty (50) issue which encompassed of the four main area stated above  There is no legal obligation for the employer to adhere to the contents of the code, however section 30 (5a) of industrial relations act 1967 states: “in making its award, the court may take into consideration any agreement or code relating to employment practices between organizations, representative of employers and workmen respectively where such agreement or code has been approved by the minister”
NATURAL JUSTICE IN DOMESTIC INQUIRY The Concept of Natural Justice  Natural justice refers to the fairness to the employees in an organization where employees have the right to speak and receive proper justice if there are any problems or conflicts at work.  It can also be defined as a legal concept, which represents the highest principles of procedure developed by the courts, judicial power and the administration of justice which must be followed in making any decision that would give bad for a person's individual rights.  In other words, natural justice means fairness, equity and equality.
The Principle of Natural Justice a) Audi Alteram Partem  It is a principle of fundamental justice or equity in most legal systems. This principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party. The features:  Prior notice requirements of errors encountered by the workers  Opportunity for making representations  The right to question witnesses and the right to be represented by counsel
 The right to be informed of the decision and the reasons for the decision  Consideration of the earlier case (autrefois acquit)  Right of appeal and the trial resumed. b) The Principles of Impartiality (bias)  In Latin, it is also known as nemo judex in causa sua potest or nemo debet judex in propria sua causa which means someone who is interested in a case handled Bias and prejudice may occur for two reasons:  The parties have an interest  Biased because there is a relationship or affiliation
Domestic Inquiry  Domestic enquiry is a disciplinary procedure to be followed by all the establishments they are willing to take strong action against employee.  This enquiry is based on the principle of natural justice and has to be conducted unbiased manner.  Usually, a domestic inquiry is made for major misconduct or errors that can cause a huge penalty. For the examples, like job termination, demotion, suspension and so on.
The Relationship between Natural Justice and Domestic Inquiry  Before taking disciplinary action against a worker, management must hold a domestic enquiry based on the principles of natural justice.  The principle of natural justice states that no man should be held guilty without getting an opportunity to explain his point of view and it also states that the employee be given a fair chance which are to present evidence of his own choice and also to explain his point of view without any pressure or fear.
ISSUE 1: SEXUAL HARASSMENT
What Is Sexual Harassment?  Unwelcome sexual advances, requests for sexual favors and other verbal or physical contact Types of Sexual Harassement  Quid Pro Quo: Decisions affecting employees from requests sex, or a sexual relationship, in return for not firing or otherwise punishing the employee or in return for favors for example, advancements or raises.  Hostile Work Environment: Verbal or nonverbal behavior in the workplace (sexually provocative photographs, foul or hostile language or inappropriate touching).
 Sexual Harassment and Law: The International Labor Organization (ILO) is a specialized United Nations agency that has addressed sexual harassment as a prohibited form of sex discrimination under the Discrimination (Employment and Occupation) Convention (No. C111)  The ILO has made clear that sexual harassment is more than a problem of safety and health, and unacceptable working conditions, but is also a form of violence Who can be a victim of sexual harassment?  subordinate harassment of a supervisor, men can be harassed by women, same sex harassment, third party harassment ( co-workers, or non-employees, such as customers, vendors, and suppliers).
International and local perspective  Globally, the phenomenon of Sexual harassment has always been looked from a woman’s perspective, and in most instances victims are women. There is still large amount of men who are still unclear about what is sexual harassment is all about and feels that their sexual attitude is normal for men. This is further substantiated with the fact there is no laws on this behavior  in Malaysia and most organizations still do not take report made on sexual harassment seriously. Taking into considerations that there is a general lack of knowledge on the real definition of sexual harassment amongst men  it can be that sexual harassment should not be viewed as a personal problem but a social problem.
CASE OF SEXUAL HARASSMENT Passananti v Cook County  PROCEDURAL POSTURE: Plaintiff former employee appealed from the United States District Court for the Northern District of Illinois, Eastern Division, where she brought claims under 42 U.S.C.S. § 1983 and Title VII of the Civil Rights Act of 1964 against defendants, a county, its sheriff's department, and her supervisor. A jury awarded her a total of $4.1 million in damages, but the district court granted defendants' motion for judgment as a matter of law
 OVERVIEW: The employee claimed that her supervisor subjected her to sexual harassment and that she was fired because of her sex. Affirming the district court's decision to set aside the jury's verdict on the discriminatory termination claim, the court determined that it simply lacked any evidentiary support. However, the court concluded that the employee presented sufficient evidence to allow the jury to find that the gender-based harassment she suffered was severe and pervasive, and that she did not unreasonably fail to take advantage of available corrective measures in her workplace
 OUTCOME: The court reversed the grant of defendants' motion for judgment as a matter of law and reinstated the verdict on the sexual harassment claim. The grant of defendants' motion for judgment as a matter of law on the termination claim was affirmed. The court remanded the case for entry of judgment in favor of the employee and against the county for $70,000. The judgment was affirmed to the extent it was for the supervisor in his individual capacity.
MORAL,ETHICS AND CSR VIEW Moral View  Guidelines prohibit intimidating, hostile, or offensive working environment. But it is really sometimes difficult to distinguish this from male rudeness not intended to degrade women  It prohibit also verbal or actual physical contact of the sexual nature any time it has the particular effect regarding unreasonably interfering through an individual’s operate efficiency it is generally seems need to use strictly summary judgments.
Ethics View  Sexual harassment is inappropriate and will be an ethical violation.it truly is perpetrated at all levels of organization, most often by an individual, frequently acknowledged or supported by the immediate work group and sometimes condoned by even top management. Corporate Social Responsibility View  Employees and their trade unions have a clear role to play in helping to create a climate at work which is free from sexual harassment. Employees can do much to discourage sexual harassment by making it clear that they regard such behavior unwelcome and unacceptable.
ISSUE 2: RETRENCHMENT
CASE OF RETRENCHMENT Roselina Binti Abdullah v Konsortium Transnasional Berhad  The claimant (Roselina) appointed as head of talent and culture development of the company (Konsortium) with basic salary rm12,000 and car allowance rm2,500 on 2 November 2009.  The claimant employment for 2 years contract for service subject to probationary period of 6 month.  The claimant report to the company executive director, Tengku Mohd Hasmadi Tengku Hasim (cow1)  1st may 2010, end of 6 month probation period, the claimant was not confirmed and neither was informed by the company that her probation period was extended.  30th June 2010, the claimant received a letter of non- conformation informing that she was terminated with immediate effect.
 The reason of termination was the cow1 did not like her for the reason. There are no warning or inquiry held against claimant.  The claimant contends that there was element of biasness and her dismissal was without just cause or excuse.  The court has determine the following issue: 1) Whether the claimant had been formally appraised. 2) Whether performance appraisal had been reasonable under the circumstances. 3) Whether the company’s action had been reasonable under the circumstances. 4) Whether claimant had been given sufficient opportunity to improve. 5) Whether the dismissal with just cause to excuse.
LEGALAND ETHICS VIEW The Legal View  After considering the evidence adducted by both parties and bearing in mind section 30 (5) industrial relations act 1967 to act according to equity, good conscience and the substantial merits of the case, the dismissal of the claimant was without just cause and excuse.  The company failure to comply with the code of conduct for industrial harmony as the retrenchment of the employee being view as unfair.  The court order the company to pay the claimant the sum of rm72,000.00 less statutory deduction if any through the claimant solicitors within 30 days from the date of awards.
The Ethics View  The company was unethical because the company had breach the company's code of conduct in which the company has dismissed the claimant with the unreasonable reason and have no solid evidence that states that the claimant rude.  According to the Kant in the theory of ethics, the theory that is based on the behavior right or wrong regardless of the impact called non-consequentialist.  In this case, the company of Konsortium Transnational Berhad make a hasty decision whether right or wrong regardless of the consequences that imposed.
ISSUE 3: IMPOSITION
CASE OF IMPOSITION Wal-Mart Employment Practices Class Action Lawsuit Walmart Lawsuit: Barnett v. Wal-Mart Employment Discrimination Lawsuit  Result: $35 million settlement plus injunction to prevent wage and hour violations  The Court approved in July 2009 to a settlement valued at up to $35 million on behalf of workers in Washington State who alleged they were deprived of meal and rest breaks and forced to work off-the-clock at Wal-Mart stores and Sam’s Clubs.  In addition to monetary relief, the settlement provided injunctive relief benefiting all employees. Wal-Mart was required to undertake measures to prevent wage and hour violations at its 50 stores and clubs in Washington, measures that included the use of new technologies and compliance tools.
 Plaintiffs filed their complaint in 2001. Three years later, the Court certified a class of approximately 40,000 current and former Wal-Mart employees. The eight years of litigation were intense and adversarial. Wal-Mart, currently the world’s third largest corporation, vigorously denied liability and spared no expense in defending itself.  This lawsuit and similar actions filed against Wal-Mart across America served to reform the pay procedures and employment practices for Wal-Mart’s 1.4 million employees nationwide. In a press release announcing the Court’s approval of the settlement, Wal-Mart spokesperson Daphne Moore stated, "This lawsuit was filed years ago and the allegations are not representative of the company we are today." Lieff Cabraser served as court-appointed Co-Lead Class Counsel
 The Deontologist may Argue  From Wal-Mart spokesperson says we can see that the managers of Wal-Mart felt that their action to force the employees to work off-the-clock considered morally wrong.  Consequentialist might think that deprive workers of meal and rest breaks and forced them to work overtime adds value and benefits for the company then that action is ethical issue to increase the performance of workers and support the firm to get more profits
The Ethics View  Should Wal-Mart managers think about their image and brand which can be harmed by like these actions. It would realize the most satisfaction and least harm if Wal- mart managers respect the employee rights like the works hours and the rest time. Thus from the Utilitarian theory the action to prevent employees of rest time and forced them to work off-the-clock is morally wrong and incorrect action.

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Slide presentation employment law in malaysia

  • 1.
    GMUL 5063 ETHICS, LAWAND CORPORATE SOCIAL RESPONSIBILITY PREPARED BY: BELHIMER MESSAOUD 816228 MUHAMAD HAZWAN BIN HASHIM 816904 MOHD AZRUL BIN ABD AZIZ 816906 ABDELHAK BOUKERIKA 817803 TOPIC 8 EMPLOYMENT LAW
  • 2.
    THE EMPLOYMENT LAW Employment law covers all rights and commitments inside of the employer-employee relationship - whether current employees, work candidates, or previous workers.  Due to the many-sided quality of employment relationship and the wide assortment of circumstances that can emerge, employment law includes legal issues as differing as discrimination, wrongful termination, wages and tax assessment, and work environment security The main legislations related the employment:  Employment Act 1955.  Industrial Relations Act 1967.
  • 3.
    RELATIONSHIP BETWEEN EMPLOYER ANDEMPLOYEE  Defined in section 2 Employment Act 1955, any agreement, oral or in writing, express of implied, whereby one person agrees to employ another person as employee the second person agrees to serve his employer as employee, includes an apprenticeship contract Employer  An employer is any person who has entered into a contact of service to employ another person as an employee “the Employment Act 1955”. Includes the agent, manager or factor of the employee.
  • 4.
    Employee  The termEmployee means a person or class of persons included in any category in the first schedule to the extent specified therein, or in respect of whom the Minister makes an order ● First Schedule, Employment Act 1955: – Person employed by employer, with wages less than RM1,550 per month. – Person who, irrespective of wages, enters contract of service for: ● Manual labour, including artisan / apprentice ● Operating / Maintaining vehicle for passengers / goods / reward / commercial purposes ● Supervises & oversees other employees engaged in manual labour. ● Engaged in a vessel in any capacity (conditions)
  • 5.
    LEGAL RIGHTS ANDRESPONSIBILITIES  The legal rights are the rights reflected by the law which should support collective bargaining arrangement and the freedom of workers to withdraw their labour  Employers have legal responsibilities to ensure a safe and healthy workplace. As an employee you have rights and you have responsibilities for your own wellbeing and that of your colleagues.  Rights and responsibilities g hand in hand, “rights entail responsibilities
  • 6.
     Employer's Duties: As an employer, his responsibilities towards the employees among others: – Duty to Provide Work - “a skilled man takes pride in his work. He does not do it merely to earn money. He does it so as to make his contribution to the well-being of all.” – Duty to exercise care – i.e. providing a safe place for employee to work. ● Traditionally understood as physical health ● Modern jurists include mental health
  • 7.
    Employee Rights  Wages Deductions from Wages  Hours of Work  Bonus  Minimum Wage  Rest Days, Public Holidays  Hospitalization & Sick Leave  Annual Leave  Absence Without Leave  Termination Benefits  Retirement  Maternity Leave  Non-Renewal of Contract  Management & Union
  • 8.
    Employer Rights  Rightto Hire, Fire and Transfer  Right to Terminate & Dismiss  Termination & Notice
  • 9.
    Industrial Court/Labour Court DirectorGeneral of Labour  The Director General has the power to inquire and decide the disputes between an employee and the employer where dispute pertains to wages or any other payments in cash due to the employee. These payments may relate to any term of the contract of service of the employee, or under any other law or subsidiary legislation.(Section 69 of industrial Relations Act 1967).  Also the Director General has the power to confirm or set aside any decision of the employer made under section 14(1) of the Act. The Director General’s power to disputes is restricted t employees whose wages are up to RM 5000.
  • 10.
    Labour Court  Underthe Employment Act 1955, the Director-General of Labour, the Deputy Director-General and the others subordinate officers are given the responsibility to resolve some disputes between the employer and employee. The Labour Court is a mechanism implemented by the Department of Labour to settle claims by workers against their employers or vice versa. The Labour Court has the authority to hear and decide on cases of unlimited amounts.
  • 11.
    Industrial Court  TheIndustrial Court is set up under the Industrial Relations Act 1967. It consists of a President, appointed by the Yang di Pertuan Agong, few Chairmen to assist the President, a panel of persons representing employers and employees. The Industrial Court meant to provide a fair, simple and specialized means of resolving disputes between employers and employees.  Any party not satisfied with the award of the Industrial Court cannot challenge or appeal against the award. However, questions of law which have arisen in the Industrial Court can be referred to the High Court for review.
  • 12.
    Powers of IndustrialCourt ● The Industrial Court may: – Order for Reinstatement (Unfair Dismissal) – Order for maximum 24 months back wages – Order for recognition of collective agreements ● Industrial Court's Awards are “final and conclusive” – Section 33, Industrial Relations Act 1967 ● However, an unsatisfied party may file a writ or certiorari at High Court to annul or quash the Award – Can appeal from High Court to Court of Appeal and Federal Court
  • 13.
    THE ETHICS OFJOB DISCRIMINATION Job Discrimination  The wrongful act of distinguishing illicitly among people not on the basis of individual merit, but on the basis of prejudice or some other invidious or morally reprehensible attitude Types of Employment Discrimination  Workplace discrimination includes biased practices based on • Age,Disability,Equal Pay/Compensation,Genetic Information, Harassment,National Origin, Pregnancy, Race/Color, Religion, Retaliation, Sex, Sexual Harassment.
  • 14.
    Elements of EmploymentDiscrimination  1. It is a decision against one or more employees that is not based on individual merit, such as the ability to perform a given job.  2. The decisions derive solely or in part from racial or sexual prejudice, false stereotypes, or some other kind of morally unsatisfied against the employee.  3. The decision has a harmful or negative impact on the interests of the employees, perhaps costing those jobs, promotions or better pay.
  • 15.
    Discriminatory Act  Adiscriminatory act may be part of the isolated (no institutionalized) behavior, intentionally and knowingly discriminates out of personal prejudice  A discriminatory act may be part of the routine behavior of an institutionalized group  An act of discrimination may be part of the isolated (no institutionalized) behavior of a single individual who intentionally and knowingly discriminates against someone because the individual unthinkingly adopts the traditional practices and stereotype of the surrounding society.
  • 16.
    Discriminatory Practices  RecruitmentPractices: Firms that depend solely on the word-of-mouth referrals of present employees to enroll new workers have tended to recruit just from those racial and sexual groups that have been represented in their work power  Screening Practices: Job qualifications are discriminatory when they are not important to the occupation to be performed.  Promotion Practices: Promotion, job progression, and transfer practices are discriminatory when employers place White males on occupation tracks separate from those open to women and minorities.  Conditions of Employment not given to people who are doing essentially the same work.
  • 17.
    Discrimination and theLaw  Civil Rights Act of 1964 made it illegal to base hiring, firing, or compensation decisions on race, color, religion, sex, or national origin  created the Equal Employment Opportunity Commission (EEOC) to administer the Act  Executive Order 11246 required companies doing business with the federal government to take steps to redress racial imbalance in workforce  Equal Employment Opportunity Act of 1972 gave EEOC increased power to combat “under representation” and to require affirmative action programs
  • 18.
    Utility, Rights, andJustice of Discrimination  Utility: which claim that discrimination leads to an inefficient use of human resources  rights arguments: which claim that discrimination violates basic human rights  which claim that discrimination results in an unjust distribution of society’s benefits and burdens. Affirmative Action  Affirmative action programs designed to achieve a more representative distribution of minorities and women within the firm by giving preference to women and minorities.  Claims affirmative action will secure equal opportunity and claims affirmative action is a morally legitimate means
  • 19.
    Utilitarian Argument forAffirmative Action  Claims affirmative action minimize need by reaping helpful benefits minorities and women in need, and for that reason raises utility and Criticized in good grounds in which their costs outweigh their advantages and this other methods associated with lowering need will create higher utility.
  • 20.
    CODE OF CONDUCTFOR INDUSTRIAL HARMONY Introduction  Industrial sector in Malaysia recorded rm46.9 billion as on January 2011  Boosted by high technology and knowledge based industries  Drive Malaysian into 17th largest exporting nation in the world  Needs to integrate n cooperation between industrial players government
  • 21.
    Malaysian Industrial –Labour Relation  Industrial relation: “systems that encourage the industrial harmony which regulate the relations between employers and employees, trade union and prevention and lastly for settlement of trade disputes”  Main aspects focused: 1) relationship between employer and union, 2) employment law and discipline procedures, 3) Terminating the services contract
  • 22.
     Malaysian scopedindustrial relation: 1) Employer 2) Employees (represented by union) 3) government  Main institution in administration and implementation of industrial relation and labour is the “minister of human resources” or “MOHR”.  Main responsibilities of MOHR: 1) Policy deployment 2) Human resources planning
  • 23.
     British colonialsystem 1) Trade unions enactment 1940 2) Industrial courts ordinance 1948 3) Trade dispute ordinance 1949  Post independences of Malaysia 1) Essential regulation and industrial arbitration tribunal, 1965. 2) August 1967, government introduced industrial relation act 1967 to replace trade dispute ordinance 1949 and essential regulation 1965.
  • 24.
    Introduction  Firstly introducedin February 1975.  Created with tripartite initiative of ministry of labour (now mohr), Malaysian councils of employers organization (mceo) and Malaysian trade union congress (mtuc).  The aim for code of conduct for industrial harmony: “lay down principles and guidelines for employers and workers on the practice of industrial relations for achieving the greater industrial harmony”
  • 25.
    The History  Duringthe Malaysia-Indonesia confrontation 1963-1966, government set up “emergency essential regulations”.  The regulation empowered government to declare these economy sectors were “essential sectors”.  After the confrontation, the “essential sectors” was incorporated into legislation called “industrial relations (ir) act 1967”.  The racial riot in 1969 and unions industrial action has made government to encouraged the mtuc to commit industrial harmony.  February 1975, the code of conduct for industrial harmony has been established.  The code endorsed by the mtuc and mceo with the mediation of ministry of labour (now mohr).
  • 26.
    The code  Thecode has four main areas which are: 1) responsibilities. 2) employment policy 3) collective bargaining 4) communication and consultation  The code covered fifty (50) issue which encompassed of the four main area stated above  There is no legal obligation for the employer to adhere to the contents of the code, however section 30 (5a) of industrial relations act 1967 states: “in making its award, the court may take into consideration any agreement or code relating to employment practices between organizations, representative of employers and workmen respectively where such agreement or code has been approved by the minister”
  • 27.
    NATURAL JUSTICE INDOMESTIC INQUIRY The Concept of Natural Justice  Natural justice refers to the fairness to the employees in an organization where employees have the right to speak and receive proper justice if there are any problems or conflicts at work.  It can also be defined as a legal concept, which represents the highest principles of procedure developed by the courts, judicial power and the administration of justice which must be followed in making any decision that would give bad for a person's individual rights.  In other words, natural justice means fairness, equity and equality.
  • 28.
    The Principle ofNatural Justice a) Audi Alteram Partem  It is a principle of fundamental justice or equity in most legal systems. This principle includes the rights of a party or his lawyers to confront the witnesses against him, to have a fair opportunity to challenge the evidence presented by the other party. The features:  Prior notice requirements of errors encountered by the workers  Opportunity for making representations  The right to question witnesses and the right to be represented by counsel
  • 29.
     The rightto be informed of the decision and the reasons for the decision  Consideration of the earlier case (autrefois acquit)  Right of appeal and the trial resumed. b) The Principles of Impartiality (bias)  In Latin, it is also known as nemo judex in causa sua potest or nemo debet judex in propria sua causa which means someone who is interested in a case handled Bias and prejudice may occur for two reasons:  The parties have an interest  Biased because there is a relationship or affiliation
  • 30.
    Domestic Inquiry  Domesticenquiry is a disciplinary procedure to be followed by all the establishments they are willing to take strong action against employee.  This enquiry is based on the principle of natural justice and has to be conducted unbiased manner.  Usually, a domestic inquiry is made for major misconduct or errors that can cause a huge penalty. For the examples, like job termination, demotion, suspension and so on.
  • 31.
    The Relationship betweenNatural Justice and Domestic Inquiry  Before taking disciplinary action against a worker, management must hold a domestic enquiry based on the principles of natural justice.  The principle of natural justice states that no man should be held guilty without getting an opportunity to explain his point of view and it also states that the employee be given a fair chance which are to present evidence of his own choice and also to explain his point of view without any pressure or fear.
  • 32.
  • 33.
    What Is SexualHarassment?  Unwelcome sexual advances, requests for sexual favors and other verbal or physical contact Types of Sexual Harassement  Quid Pro Quo: Decisions affecting employees from requests sex, or a sexual relationship, in return for not firing or otherwise punishing the employee or in return for favors for example, advancements or raises.  Hostile Work Environment: Verbal or nonverbal behavior in the workplace (sexually provocative photographs, foul or hostile language or inappropriate touching).
  • 34.
     Sexual Harassmentand Law: The International Labor Organization (ILO) is a specialized United Nations agency that has addressed sexual harassment as a prohibited form of sex discrimination under the Discrimination (Employment and Occupation) Convention (No. C111)  The ILO has made clear that sexual harassment is more than a problem of safety and health, and unacceptable working conditions, but is also a form of violence Who can be a victim of sexual harassment?  subordinate harassment of a supervisor, men can be harassed by women, same sex harassment, third party harassment ( co-workers, or non-employees, such as customers, vendors, and suppliers).
  • 35.
    International and localperspective  Globally, the phenomenon of Sexual harassment has always been looked from a woman’s perspective, and in most instances victims are women. There is still large amount of men who are still unclear about what is sexual harassment is all about and feels that their sexual attitude is normal for men. This is further substantiated with the fact there is no laws on this behavior  in Malaysia and most organizations still do not take report made on sexual harassment seriously. Taking into considerations that there is a general lack of knowledge on the real definition of sexual harassment amongst men  it can be that sexual harassment should not be viewed as a personal problem but a social problem.
  • 36.
    CASE OF SEXUALHARASSMENT Passananti v Cook County  PROCEDURAL POSTURE: Plaintiff former employee appealed from the United States District Court for the Northern District of Illinois, Eastern Division, where she brought claims under 42 U.S.C.S. § 1983 and Title VII of the Civil Rights Act of 1964 against defendants, a county, its sheriff's department, and her supervisor. A jury awarded her a total of $4.1 million in damages, but the district court granted defendants' motion for judgment as a matter of law
  • 37.
     OVERVIEW: Theemployee claimed that her supervisor subjected her to sexual harassment and that she was fired because of her sex. Affirming the district court's decision to set aside the jury's verdict on the discriminatory termination claim, the court determined that it simply lacked any evidentiary support. However, the court concluded that the employee presented sufficient evidence to allow the jury to find that the gender-based harassment she suffered was severe and pervasive, and that she did not unreasonably fail to take advantage of available corrective measures in her workplace
  • 38.
     OUTCOME: Thecourt reversed the grant of defendants' motion for judgment as a matter of law and reinstated the verdict on the sexual harassment claim. The grant of defendants' motion for judgment as a matter of law on the termination claim was affirmed. The court remanded the case for entry of judgment in favor of the employee and against the county for $70,000. The judgment was affirmed to the extent it was for the supervisor in his individual capacity.
  • 39.
    MORAL,ETHICS AND CSRVIEW Moral View  Guidelines prohibit intimidating, hostile, or offensive working environment. But it is really sometimes difficult to distinguish this from male rudeness not intended to degrade women  It prohibit also verbal or actual physical contact of the sexual nature any time it has the particular effect regarding unreasonably interfering through an individual’s operate efficiency it is generally seems need to use strictly summary judgments.
  • 40.
    Ethics View  Sexualharassment is inappropriate and will be an ethical violation.it truly is perpetrated at all levels of organization, most often by an individual, frequently acknowledged or supported by the immediate work group and sometimes condoned by even top management. Corporate Social Responsibility View  Employees and their trade unions have a clear role to play in helping to create a climate at work which is free from sexual harassment. Employees can do much to discourage sexual harassment by making it clear that they regard such behavior unwelcome and unacceptable.
  • 41.
  • 42.
    CASE OF RETRENCHMENT RoselinaBinti Abdullah v Konsortium Transnasional Berhad  The claimant (Roselina) appointed as head of talent and culture development of the company (Konsortium) with basic salary rm12,000 and car allowance rm2,500 on 2 November 2009.  The claimant employment for 2 years contract for service subject to probationary period of 6 month.  The claimant report to the company executive director, Tengku Mohd Hasmadi Tengku Hasim (cow1)  1st may 2010, end of 6 month probation period, the claimant was not confirmed and neither was informed by the company that her probation period was extended.  30th June 2010, the claimant received a letter of non- conformation informing that she was terminated with immediate effect.
  • 43.
     The reasonof termination was the cow1 did not like her for the reason. There are no warning or inquiry held against claimant.  The claimant contends that there was element of biasness and her dismissal was without just cause or excuse.  The court has determine the following issue: 1) Whether the claimant had been formally appraised. 2) Whether performance appraisal had been reasonable under the circumstances. 3) Whether the company’s action had been reasonable under the circumstances. 4) Whether claimant had been given sufficient opportunity to improve. 5) Whether the dismissal with just cause to excuse.
  • 44.
    LEGALAND ETHICS VIEW TheLegal View  After considering the evidence adducted by both parties and bearing in mind section 30 (5) industrial relations act 1967 to act according to equity, good conscience and the substantial merits of the case, the dismissal of the claimant was without just cause and excuse.  The company failure to comply with the code of conduct for industrial harmony as the retrenchment of the employee being view as unfair.  The court order the company to pay the claimant the sum of rm72,000.00 less statutory deduction if any through the claimant solicitors within 30 days from the date of awards.
  • 45.
    The Ethics View The company was unethical because the company had breach the company's code of conduct in which the company has dismissed the claimant with the unreasonable reason and have no solid evidence that states that the claimant rude.  According to the Kant in the theory of ethics, the theory that is based on the behavior right or wrong regardless of the impact called non-consequentialist.  In this case, the company of Konsortium Transnational Berhad make a hasty decision whether right or wrong regardless of the consequences that imposed.
  • 46.
  • 47.
    CASE OF IMPOSITION Wal-MartEmployment Practices Class Action Lawsuit Walmart Lawsuit: Barnett v. Wal-Mart Employment Discrimination Lawsuit  Result: $35 million settlement plus injunction to prevent wage and hour violations  The Court approved in July 2009 to a settlement valued at up to $35 million on behalf of workers in Washington State who alleged they were deprived of meal and rest breaks and forced to work off-the-clock at Wal-Mart stores and Sam’s Clubs.  In addition to monetary relief, the settlement provided injunctive relief benefiting all employees. Wal-Mart was required to undertake measures to prevent wage and hour violations at its 50 stores and clubs in Washington, measures that included the use of new technologies and compliance tools.
  • 48.
     Plaintiffs filedtheir complaint in 2001. Three years later, the Court certified a class of approximately 40,000 current and former Wal-Mart employees. The eight years of litigation were intense and adversarial. Wal-Mart, currently the world’s third largest corporation, vigorously denied liability and spared no expense in defending itself.  This lawsuit and similar actions filed against Wal-Mart across America served to reform the pay procedures and employment practices for Wal-Mart’s 1.4 million employees nationwide. In a press release announcing the Court’s approval of the settlement, Wal-Mart spokesperson Daphne Moore stated, "This lawsuit was filed years ago and the allegations are not representative of the company we are today." Lieff Cabraser served as court-appointed Co-Lead Class Counsel
  • 49.
     The Deontologistmay Argue  From Wal-Mart spokesperson says we can see that the managers of Wal-Mart felt that their action to force the employees to work off-the-clock considered morally wrong.  Consequentialist might think that deprive workers of meal and rest breaks and forced them to work overtime adds value and benefits for the company then that action is ethical issue to increase the performance of workers and support the firm to get more profits
  • 50.
    The Ethics View Should Wal-Mart managers think about their image and brand which can be harmed by like these actions. It would realize the most satisfaction and least harm if Wal- mart managers respect the employee rights like the works hours and the rest time. Thus from the Utilitarian theory the action to prevent employees of rest time and forced them to work off-the-clock is morally wrong and incorrect action.