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Salmah was served a notice of termination by her employer due to bad performance. The reasons provided by her employer are vague and incorrect.
Salmah is confused. What can Salmah do?
What Is Unfair Dismissal?
Section 14 of the Employment Act 1955 allows an employer to dismiss the employee without notice, downgrade the employee or to impose any other lesser punishment as he deems fit for the employee on the ground of misconduct inconsistent with the expressed or implied conditions of his service after due inquiry.
However, the Employment Act does not formally define what is an employee ‘misconduct’ or ‘due inquiry’, leaving such matters for the courts to determine. In Syarikat Kenderaan Melayu Kelantan Sdn Bhd v Transport Workers Union [1995] 2 MLJ 336, the court described “misconduct” as
“… 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.”
In Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan and Anor [1996] 1 MLJ 481, Gopal Sri Ram JCA (as he then was) held that:
“The legislature has willed that the relationship of employer and workman as resting on a mere consensual basis that is capable of termination by the employer at will with the meagre consequence of paying the hapless workman a paltry sum as damages should be altered in favour of the workman. It has accordingly provided for security of tenure and equated the right to be engaged in gainful employment to a proprietary right which may not be forfeited save, and except, for just cause or excuse”
Although the Employment Act does not define ‘misconduct’, Section 14 implies it is conduct by an employee that is ‘inconsistent with the fulfillment of the express or implied condition of his service.’ In Liew Ken & Ors v Malayan Thung Pau Berhad I.C. award 37/94, the court held:
“It has been said that, at Common Law, the employer would be entitled to dismiss the workman summarily where the conduct of the workman is inconsistent with the maintenance of the relationship created by the contract….”
Whether a dismissal is fair or unfair really depends on the ‘range of reasonable responses’ test which the tribunal will apply.
Instead of the tribunal or court inquiring whether the employer’s decision to dismiss was reasonable or unreasonable on a purely objective basis and thus substituting its own judgment for that of the employer, the tribunal must ask whether dismissal was one of the reasonable responses which an employer might take to the act complained of, the events which occurred or the reason for the employees’ dismissal.
In Goon Kwee Phoy v J & P Coats (M) Bhd [1981] 1 LNS 30, the Federal Court held:
“Where representations are made and are referred to the Industrial Court for enquiry, it is the duty of that court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse.”
What Happens When You Are Unfairly Dismissed?
Section 20 (1) of the Industrial Relations Act 1967 states that:
“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 Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.”
Section 20 (1A) further states that:
“The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal….”
Generally, employees seek for the following reliefs:
reinstatement to his former position in the Company;
if reinstatement is not possible, then compensation in lieu of reinstatement; and
back wages in respect of the Claimant’s last drawn salary and any other benefits/privileges that the Claimant would have otherwise been entitled to if the Claimant had been in continued employment with the Company.
Conclusion
In summary, there are few things that should be done when you feel like you are unfairly dismissed;
Lodge a representation to the Director General of Industrial Relations within 60 days from the date of his termination.
Industrial Relations Department will then proceed to arrange reconciliation sessions between the employee and employer.
In the event parties fail to come to a settlement, the IR Dept will notify and refer the matter to the Minister of Human Resources.
Minister of Human Resources will consider and decide whether the representation is fit to be referred to the Industrial Court for determination.
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