All Malayan Estates Staff Union makes it 53
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. Hence, the Minister’s reasons are not acceptable, and he obviously seemed to have just accepted explanations of employers over claims of aggrieved workers who have lost their jobs.
The aggrieved worker, whose cases are not referred by the Minister to the Industrial Court, still do have the option to apply for Judicial Review at the High Court but realistically, this would not happen because most workers just do not have the needed resources or the capacity. The government revealed recently that 34% of 1.3 million workers in a government study earn less than RM700, which is below the poverty line income. An application to the High Court involves not only expenses but also the subsequent risk of being ordered to pay cost that could be about RM10,000 if unsuccessful, and as such most workers elect not to apply to High Court. As such, a decision of the Minister not to refer the case to the Industrial Court ends an aggrieved workers quest for justice.
We call for the amendment of the law, to ensure that all cases that could not be resolved amicably between parties should as of right be referred to the Industrial Court. The now existing step of referring to the Minister who then decides to refer or not a case to the Industrial Court should be removed from the law books.
Wrongfully dismissing a worker without just cause or reason is a grave injustice. When a worker’s employment is wrongfully terminated, it seriously affects the well being, livelihood and financial security of not just the workers but also their families. Obligations to pay monthly amenities bills, car/housing loan repayments, credit card payments and others payments necessary for well being of the family continue irrespective of a loss of monthly income.
Wrongful dismissal is a serious wrongdoing by the employer, which need to be penalized with a deterrent award, and the existence of an avenue for justice for workers wrongfully dismissed need to be available for all classes of workers.
Malaysian government sadly places the interest of employers over the interest of workers. Rights of the wrongfully dismissed workers have been eroded over the years.
In 2007, the Industrial Relations Act was amended which had the effect of reducing the entitlement of a worker found to have been wrongfully dismissed by the Industrial Court. The Industrial Court could either order the worker to be reinstated as employee, or alternatively order the employer to pay compensation in lieu of reinstatement being all salary and benefits from the date of wrongful dismissal until the date of judgment, the later being the norm.
The 2007 amendment limited the compensation award to no more than twenty-four months’ back wages from the date of dismissal, but also limited it to be calculated based on the last-drawn salary of the person who has been dismissed without just cause or excuse hence eliminating the right to salary increments and bonuses which one would have been received had they not been wrongfully dismissed. It also allowed for deductions with reference to post-dismissal earnings of the wrongfully dismissed worker, and ‘contributory misconduct’ on the part of the worker. Worst affected were workers on probation whereby their entitlements were halved, when in Malaysia there is still no law that limits the period a worker can be kept on probation, which in some cases it may extend to years.
The refusal of the Minister to refer 31.5% of wrongful dismissal cases that could not be settled amicably to court is yet another anti-worker indicator.
Only 5 out of the 13 States and 1 out of the 3 Federal Territories in Malaysia have Industrial Courts. 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. There should be Industrial Courts in every State and Federal Territory, and all major towns.
Now, there are moves by the Malaysian government to even completely exclude access to this avenue of justice to certain categories of workers being workers with less than one-year of continuous service, probationers, apprentices, workers in management positions; and also contract workers. The Malaysian government now permits employers to use short-term employment contracts, and most times these contracts do not exceed 12 months. Most recently the ‘contractor for labour system’ or outsourcing workers or ‘contract workers’. If the proposed amendments become law, employers will be happy as wrongfully dismissing most workers will no longer be a problem, and workers lose their right and ability to claim justice.
As it is, most migrant workers effectively do not have access, given the fact that after they be wrongfully dismissed, their immigration visa/pass is also terminated hence disabling them the ability to stay or work legally in Malaysia. Even if they have filed a complaint in the IRD, it is immaterial for they cannot stay on in Malaysia, and if they do they risk arrest, detention, whipping and deportation.
for and on behalf of