managing dismissal cases to avoid repercussions

*MANAGING DISMISSAL

CASES TO AVOID

REPERCUSSIONS.

*INTRODUCTION

*FOUR PARTS;

*1.PRINCIPLES.

*2.PRE TRIAL PREPARATION.

*3. TRIAL PREPARATION

*4. FIT AND PROPER PUNISHMENT.

*DISMISSAL

*Meaning ;

* when someone is removed from their job

*Legal meaning ;

*Discharge of an employee from service

*Pan Global Textiles Bhd v Ang Beng Teik

*[2002] 1 CLJ 181.

*Employee; see section 2 (1),2A , First Schedule Employment Act 1955 and Employment (Part Time Employees)Regulation 2010.

*Employer ; see section 2 Employment Act 1955.

* PART 1 .

*CONTRACTUAL RELATIONSHIP

Section 2A Employment Act ;

- Minister may prohibit employment other than under contract of service.

- contract of service see section 2 E.A.

- see also Chapter 1 MEF book Employment Relationship.

- Section 10 and 11 E.A. contract to include termination provisions see also section 12. and 13

- Employee can give notice or pay in lieu and terminate.

- Employer must give reason see ; Goon Kwee Phoy v J.P,Coats (M) Bhd [1981] 1 LNS 30.Federal Court.

“so called termination simpliciter ie. termination by

contractual termination and for no reason ungrounded

on any just cause or excuse would still be dismissal without just cause or excuse”

*EMPLOYER’S RIGHT

Employer’s Right in Industrial Jurisprudence;

- Malayan Racing Association v Ong Huat Leng [ Award no 264 of 1995]

“It is a rule in industrial jurisprudence that a workman’s right and status under his employment contract are not to be decided solely on the basis of the law of contract, and neither is a workman’s security of tenure to be dependent on the absolute discretion of employer on the terms and conditions of his contract of employment, his right are to be determined on the basis of fair labour practice, equity and good conscience to ensure that security of tenure is not undermined and social justice is dispensed with”

*DUTY OF IC

“Where representations are made and are referred to the IC for enquiry, it is the duty of IC to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason to give a reason for the action taken by him, the duty of the IC 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, the inevitable conclusion must be that the termination or dismissal was without just or excuse. The proper inquiry of the IC is the reason advanced by it and IC or the High Court cannot go into another reason not relied on by the employer or find one for it.”

-Goon Kwee Phoy v J. & P. Coats (M) Bhd. [1981] 1 LNS 30 (Federal Court)

*JUST CAUSE OR EXCUSE

*H.E PLATT ;

“There is no absolute answers as to what is just

and equitable and the least an arbitrator can

do is to have regard to community standards

of the day and decide whether the conduct or

performance of the employee concerned was

that of a reasonable person and whether the

sanction imposed by the employer was just “

*GROUNDS HELD AS JUST

*Section 14 E.A.;

*Misconduct inconsistent with the express or

*Implied conditions of the employees service.

*OP Malholtra ;

“Any conduct or positive act inconsistent with the faithful discharge of his duties or incompatible with the express and implied terms of relationship to the employer”

*See also Tractors Malaysia (award no 27 of 1972); and

*Malayan Tung Pau (award no 37 of 1974)

*MISCONDUCT

* See Notes ;

1) Insubordination.

2) Dishonesty, theft and fraud.

3) Fighting at workplace.

4) Misrepresentation.

5) Absenteeism.

6) Industrial action –strike/picket –Harianto’s case.

7) Sexual harassment.

8) Drug related Offence.

9) Misuse of company’s property/cyber misconduct.

10) Criminal misconduct – see MEF book.

11) Sleeping while on duty.

12) Breach of fiduciary duty/conflict of interest.

13) Negligence.

14) Poor Performance.

15) Breach of company’s Rules & Regulations

*EMPLOYEES CLAIM

*Constructive Dismissal ;

*Meaning ;

*See Western Excavating [1978] 1 All ER 713.

*Breach going to root of contract or

*Act showing intent to no longer be bound

*By terms and condition of contract.

*See Anwar b Abd Rahman [1998] 2 CLJ 197.

*Employers act unfair / unreasonable.

*4 condition ,breach , fundamental term , left, did not stay on.

*CASES

1,Transfer ;

- employers discretion

-whether any victimization /bad faith

- see: Ladang Hollyrood’s case [1996]1 ILR 414.

2. Benefits ; reduced /revise allowance.

3. Salary – not paid.

4. Demotion – lower position /responsibility.

FORCED RESIGNATION ;

- resign or be dismissed

See: Stanley Ng [1979] 1 MLJ 57.

Pascoe v Hellen [1975] IRLR 116

East Sussex county v Walker [1972] 7 I.T.T 280

Normadiah Abu suood [1991] 2 ILR 1106

PROBATIONER ;

- considered not confirm until issued with a letter of appointment

- see: Nur Dini Md Noh lwn KEDA [2014] 1 ILR 225 .

REASONABLE EXPECTATION ;

- Promise by person in authority personally to claimant

- Person able to carry out

See: Dr Chandra Muzaffar’s case.[20022] 2 CLJ 446

*BURDEN OF PROOF

*ONUS PROBANDI – obligation to prove.

*Lie with the person allege

*Employer allege that there is just cause and excuse to dismiss employee.

*See Stamford Executive Centre v Dharsini

[Award No 263/1985]

“…in dismissal case employer must produce cogent evidence that employee committed the misconduct / offence . The burden lies with the employer……”

*BURDEN OF PROOF

*Company give reason to dismiss –

*Company to adduce evidence to support and sustain that reason and cannot go or give other reason –Goon Kwee Phoy’s case.

*See also Wong Yuen Hock [1995] 3 CLJ 344; and Milan Auto Sdn Bhd [1995] 4 CLJ 449.

*Company had to show that they had investigated and had reasonable grounds to believe on the guilt of the claimant –see : K A Sanduran Nehru [2007] 1 CLJ 347

*IF CLAIMANT ALLEGE

*Constructive dismissal /force resignation ; then Claimant’s duty to prove ;

*See Moo Ng v Kiwi Products [1998] 3 CLJ 475.

“…If an employee asserts that he has been constructively dismissed , he must

establish that there has been conduct on the part of the employer which breaches an express or implied term of the contract going to the very root of the contract.”

*STANDARD OF PROOF

*Telekom Malaysia Kawasan Utara v Krishnan Kutty [2002] 3 CLJ 314

“….the standard of prove required ,that is the civil standard based on the balance of

probabilities……”

See also the case of;

MAS v Wan Sa’aidi bin Wan Mustafa

Federal Court Civil Appeal no 02[F]-15-04/2013[N]

-THE END-

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