You feel that you’ve been UNLAWFULLY FIRED? Here are some tips on how to SUE YOUR BOSS in Malaysia
Recently, we’ve published an article on whether employer can sack their employee over Pokemon Go game which is a hot topic at this point of time. Based on the recent poll taken by MEF (Malaysian Employers Federation) with 150 bosses from various sectors, MEF Director, Datuk Shamsuddin Bardan says that at least Six employers have dismissed workers for playing the popular location-based game while at work. Other actions taken by employers included advising employees against playing the game during work hours, issuing warning letters and imposing suspensions from work without pay.
Now, let us reverse the scenario a little bit. Let just say, if you are one of the affected employee who got the boot, and you felt that this termination is unfair, do you know that you have an option to take on your boss over your termination?
Let us start with the Employment Law first. Section 20 of the Industrial Relations Act 1967 states that if you as an employee and you feel that your boss has dismissed you unfairly, you can do the followings:
Step 1: Within 60 days, you’ll need to complain to the Director General of Industrial Relations or DGIR in short at their office nearest to your workplace. This part here is called making a representation.
Step 2: Industrial Relations Department will set a meeting between you and your boss for conciliation meeting. Here, an officer will be assigned to mediate the meeting between both sides and try to at least settle the matter between both parties amicably. You should take note that no lawyers are to be there for either sides in this conciliation meeting.
Step 3: Should the conciliation meeting failed where either party reach to an agreement, the case will then be forwarded to the Ministry of Human Resources and the Minister decides whether to refer or not to refer your case to the Industrial Court.
Step 4: Once it reaches the Industrial Court, there will be a trial (with witness testimony). You can represent yourself, be represented by a union officer (if you are a union member), or hire a lawyer. Then, if the court finds that you have been unfairly dismissed, you will typically be (a) reinstated to your former position and paid backwages, or (b) be paid compensation.
From our observations, most of the time the Industrial Court grants compensation to be awarded to the affected employee, typically awarded on the basis of one month’s salary for every year of service, but capped at 24 months. Recent amendments to the Industrial Relations Act 1967 has introduced a cap of 24 months on the backwages for permanent staff and 12 months for probationers. So, if you are earning RM 5,000 as a permanent worker, 24 months backwages means maximum of RM 120,000 in terms of compensation. However, this is subjected to reduction based on employee’s conduct and whether the employee have been working ever since after his termination.
Employee working in Malaysia (including foreigners working here) can file a lawsuit. This is regardless how much they’re earning, how senior or junior they are, or whether or not they’re a member of a union so long they are legal employees under the Malaysian Law.
ANY employee can file a lawsuit, regardless of how much they’re earning, how senior or junior they are, or whether or not they’re a member of a union. As long as they are an employee in the eyes of Malaysian law. Yes, that includes foreigners working in this country.
What constitute “dismissed without just cause and excuses”? (Taken from Blog Rasmi Jabatan Peguam Negara, “http://agc-blog.agc.gov.my/agc-blog/?p=142“)
When the representation had been filed by the employees against the employer. The burden to proof whether the dismissal was lawful or not was shifted to the employer. If the employer successfully give the valid and reasonable reason, therefore dismissal consider lawful and with good cause. In order to determine whether such dismissal valid or not, the test is very subjective. Based on Goon Kwee Phoy v J & P Coats (M) Bhd where Raja Azlan Shah JCA stated that:-
‘…Section 20 (1) is, in our view deliberately, couched in subjective terms. Where a non-union workman considers that his dismissal is without just cause or excuses, he may make representations for his reinstatement. It is not whether he had been dismissed without just cause or excuses; but it is how he considers he had been treated by his employer that constitutes the test for his action.”
While in the case of Dr. Dutt v Assunta Hospital, Federal Court of Malaya stated that there is no different between termination of contract of services with notice or without notice .If the employees thinks that he/she had been terminated wrongfully or without good cause, therefore he/she can used Section 20 (1) IRA to filed an action against the employers
It can be simplified to understand that the way the termination take place is not important but what the employees think that he/she had been terminate without just cause or not? This section also applicable and applied to the employees who had been constructively dismissed by their employers. Referring to the case of Western Excavation (ECC) Ltd v Sharp, whereby in this case Mr. Sharp had been suspended from working for 5 days due to disciplinary issues before any decision made to terminate his services. Mr Sharp having financial problem, therefore he applied to his employer to paid his last salary or give him an advance to make security insurance payment. But the employer did not want to help him, when this happened Mr. Sharp decided to resign from his post, in order to get his last salary from his employer. Later, he filed an action against his employer under constructive dismissal and this case the Industrial Court Mr. Sharp application due unlawful termination. The employer appeal against the Industrial Court decision, and the Court of Appeal decide that the termination lawful because the test to determine is not the test of reasonableness but contract test.
So, at the end of this article, as employee, ask yourself whether the termination given by your employer is with just cause and excuses? If yes, then this article would be definitely helpful to you. You can always check with the Department and reach them via their number +603-9236 5000 or email email@example.com and they’ll explain in more detail.