In Malaysia, if you have been fired from your work without reasonable and fair cause, then, you may have been unfairly dismissed.
Hence, you can bring an action under section 20 (1) of Malaysian Industrial Relations Act 1967 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.
Firstly, you need to identify the reasons for your dismissal. Secondly, you have to be aware and make sure that you are being dismissed wrongly. Thirdly, the causes of your dismissal are not reasonable.
You have been unfairly dismissed by your employer. What can you claim?
The ex-employee may seek reinstatement of his employment or compensation and backwages of up to 24 months or 12 months for probationers.
If you know you have been unfairly dismissed, what action should you take immediately?
1. Make a representation to the Director General for Industrial Relations within 60 days from the date of dismissal.
2. The Director General for Industrial Relations will conduct reconciliation between the parties.
3. In the event reconciliation between parties is unsuccessful, the Director General for Industrial Relations will refer to the Minister of Human Resources and he may, if he thinks fit, refer the representation to the Industrial Court for determination.
4. The Industrial Court will hear and decide the case
Let’s read the case of 7-Eleven Malaysia Sdn Bhd v Ashvine A/P Hari Krishnan [2023] MLRAU 65.
The employee was a Senior Manager of the Human Resources department of the company, who tendered her resignation owing to purported unfair treatment, as well as bullying and harassment. She sought damages for alleged wrongful dismissal, intentionally causing emotional distress, harassment, bullying, and negligence. the issue before the Court of Appeal was whether the employee was entitled to pursue a claim for constructive dismissal in the High Court, where she sought an eye-watering sum of RM96 million damages.
The Court of Appeal allowed the matter to be struck out since the employee had served her notice period. As such, there were no outstanding sums which could have been awarded by the court. The claim was therefore found to be an abuse of process. The Court of Appeal also described the tort of harassment, bullying, and emotional distress as mere elements for a complaint of constructive dismissal. Since the Industrial Relations Act 1967 was enacted to provide a remedy for unjust dismissal, it was wholly incumbent upon the employee to invoke the aforesaid statutory remedy instead of filing a civil action.
I am an employer, but I also want to know my rights to dismiss my employee. If you are an employer, you can dismiss your employee in the following situations, among them are;
1. Employee does not come to work two (2) days in a row without the prior permission of the employer except for reasonable reasons;
2. Employer dismiss employee with sufficient notice;
3. Employers can dismiss employees without notice by paying the employees’ salary according to the period of notice that should be given based on section 12 of the Employment Act 1955;
4. Employers can also terminate employees without notice due to misconduct or violating the terms of the employment contract whether it is written or oral contract, provided that a complaint has been made to the Malaysian Department of Labour, an investigation has been made and the employee’s misconduct has been proven.
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