Friday, December 07, 2012

10,000 workers 'denied right to court hearing' (Malaysiakini)

10,000 workers 'denied right to court hearing'
5:38PM Dec 5, 2012    

Labour activists are up in arms over the revelation that over 10,000 workers who were ‘wrongfully dismissed’ between 2001 and 2011, have been denied their right to have their cases determined by the Industrial Court.

Charles Hector, who represents 51 NGOs that endorsed a statement, claimed this has happened because the Human Resources Ministry has refused to refer these cases to court after attempts at conciliation with the employers failed.
"Clearly, these are conclusions that should never be made by the minister without considering all evidence of witnesses and documents, and listening to legal submissions, which is best done by the Industrial Court," said Hector.

"Hence, the minister’s reasons are not acceptable, and he obviously seems to have just accepted explanations of employers over claims of aggrieved workers who have lost their jobs.”

Hector (right), a lawyer by profession, was referring to an Utusan Online report on Oct 23,  which reported that 31,714 cases had failed to be settled via conciliation.

He also referred to Human Resources Minister S Subramanian's statement in Parliament, which cited reasons why 10,016 cases had not been referred to court.

It was claimed that workers were dismissed for misconduct, that businesses were shut down by employers; or that workers were given the opportunity to return to work but had refused to do so.

Other reasons were that workers were laid off when their contract expired, or they had stopped work under a voluntary separation scheme but changed their mind after receiving compensation.

Hector said aggrieved workers whose cases are not referred to court still have the option to apply for judicial review at the High Court.
However,  realistically, this will not happen because most workers just do not have the needed resources or the capacity to pursue their case, he noted.

An application to the High Court involves not only expenses but also the subsequent risk of being ordered to pay costs that could amount to some RM10,000 if the workers do not succeed, he said.

"As such, a decision of the minister not to refer the case to the Industrial Court ends an aggrieved worker’s quest for justice," he explained.

The group called for legislative amendments to ensure that all cases that cannot be resolved amicably are referred, as of right, to the Industrial Court.

‘Anti-worker indicator’

Former Malaysian Trade Union Congress president Syed Shahir Syed Mohamud said wrongful dismissal is a serious wrongdoing which should be penalised with a deterrent court award. He said an avenue for justice should be available to all classes of workers.
mtuc syabas pc 091007 syed shahir 
"The government sadly places the interests of employers over the interests of workers. The rights of wrongfully dismissed workers have been eroded over the years," he said the same statement.

"The refusal of the minister to refer (to court the) 31.5 percent of wrongful dismissal cases that could not be settled amicably, is yet another anti-worker indicator.”

Syed Shahir, who is a senator, urged the expansion of Industrial Courts nationwide as only five of the 13 states and one of the three federal territories now have such a facility.

"Distance will definitely be more prejudicial to the worker than the employer. There is not just the cost of transportation and accommodation, but also the difficulty of getting witnesses to attend court," he said.

The issue is even worse for migrants workers who do not have access to justice when they are wrongfully dismissed. Their immigration visa/pass is also terminated, preventing them from staying or working legally in Malaysia.

"Even if they have filed a complaint in the Industrial Court, it is immaterial, as they cannot stay in Malaysia. If they do, they risk arrest, detention, whipping and deportation," he added. - Malaysiakini, 5/12/2011, 10,000 workers 'denied right to court hearing'

See related post, the full Joint Statement :-
52 groups fight for rights of wrongfully dismissed workers in Malaysia

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