Sunday, January 06, 2013

All cases of wrongful dismissal must be referred to the Industrial Court

Thank you Herald for giving space to highlight this call for better protection of rights, welfare and justice for workers and trade unions in Malaysia. 

Letters to Editor

All cases of wrongful dismissal must be referred to the Industrial Court
Published on: January 03, 2013 at 12:15 PM
Dear Editor,

We, the 53 undersigned groups, organisations, trade unions and networks are appalled by the revelation that between the period of 2001 and 2011, 31.5 per cent or 10,016 of workers in Malaysia who claimed wrongful dismissal, were denied their right to have their cases heard and determined by the Industrial Court, by reason of the Minister of Human Resources’ refusal to refer these cases after attempts at conciliation with the employer had failed to reach a settlement. (Utusan Online, 23/10/2012, 31,714 kes tuntutan pekerja gagal diselesaikan secara rundingan/ 31,714 cases of workers failed to be settled vide conciliation)

In Malaysia, after workers claiming wrongful dismissal is lodged within sixty (60) days at the Industrial Relations Department(IRD), conciliation meetings are held between employer and worker in an attempt to reach an amicable settlement, and if this fails, the case is referred to the Minister to decide whether the case be referred to the Industrial Court or not. There is no right to be heard before the Minister, and his decision seems only in reliance of the report sent by his officer involved in the conciliation process. During conciliation process, workers are no longer allowed the right to be represented by lawyers by virtue of amendments to the Industrial Relations Act 1967 (IRA) in 1989.

Datuk Seri Dr S Subramaniam, the Minister of Human Resources, in parliament also revealed, amongst others, the reasons why the 10,016 cases were not referred to the Industrial Court by the Minister. Amongst others, they were:-

a) Because the worker was dismissed for misconduct;
b) Because the Employer had shut down its business;
c) Because the Worker was given the opportunity to return to work but refused to come back to work;
d) Because the worker had been terminated because the employment contract had come to an end;
e) Because the worker had voluntarily stopped work under some Voluntary Separation Scheme(VSS), and then changed their mind after receiving payment;

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 workers, 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 per cent 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 the High Court. As such, the decision of the Minister not to refer the case to the Industrial Court ends an aggrieved worker’s 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 other payments necessary for the well being of the family continue irrespective of a loss of monthly income.

Wrongful dismissal is a serious wrongdoing by the employer, which needs 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.

The 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 received had he/she 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 are workers on probation whereby their entitlements are halved, when in Malaysia there is still no law that limits the period a worker can be kept on probation, which in some cases may extend to years.

The refusal of the Minister to refer 31.5 per cent of wrongful dismissal cases that could not be settled amicably to court is yet another anti-worker indicator.

Only five out of the 13 States and one out of the three 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, 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. 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.

We call on Malaysia to promote and protect worker rights and welfare, including those of their families.

We call for an amendment of the Industrial Relations Act 1967(IRA) to enable all wrongful dismissal cases that could not be resolved amicably to be referred directly to the Industrial Court. The power of the Minister to decide whether cases are referred to the Industrial Court must be extinguished.

We call for the repeal of the 2007 amendments to the IRA, including Schedule 2, that effectively reduced entitlements of workers who found to have been wrongfully dismissed by the Industrial Court, and further discriminates against workers on ‘probation’. Minimally workers should be entitled to all back-wages without loss of benefits, but justly they should be entitled to maybe double the said amount or an additional sum, which would assist workers cover all the cost, expenses, time and energy loss claiming this rights, and doubling or tripling the award sum would also serve as a deterrent to employers wrongfully dismissing workers.

We call for the making of Directors and principal shareholders to be personally liable, when the Company employer is not able to pay the worker the award sum ordered by the Industrial Court.

We call on the Minister of Human Resources to do the needful to ensure all the said 10,016 workers cases claiming wrongful dismissal be forthwith referred to the Industrial Court to ensure that a full trial is given effect.

We also call for the speedy disposal of cases of wrongful dismissal especially in cases where the claimant is a migrant worker, and that until the case is heard and settled in court, provisions be made that migrant workers be accorded the right to stay and work legally in Malaysia.

We reject any proposed amendments that will deprive certain classes of workers the right to claim justice in cases of wrongful dismissal. No employer should wrongfully dismiss workers, and all workers, even workers on short-term employment contracts or have worked for a short period, should have access to avenues of justice, and the right to claim, amongst others, reinstatement and/or compensation in lieu of reinstatement.

We also reiterate the call for the Malaysian government to abolish short-term contract employment and the ‘contractor for labour system’/’outsourcing’, and ensure that all workers have the right to regular permanent employment and security of tenure in a direct 2-party employment relationship.

Charles Hector
Syed Shahir Bin Syed Mohamud for and on behalf of 53 organisations

See earlier post:-
 AMESU makes it 53 concerned about rights of wrongfully dismissed worker's access to justice

No comments: