Tuesday, November 28, 2017

Worker's access to justice. Courts decide not Minister, who blocked 31% cases reaching court?

A worker should be immediately allowed to file his case in the Industrial Court and/or Labour Court, and the court should proceed to hear the case immediately especially for wrongful dismissal cases where the worker is asking for his employment and income back. Everyone else can take their claim/dispute to court, why are workers being discriminated against.

Now, it takes a very long time before the matter goes to court, in the case of the MAS workers, it took 2 years ...and then the Minister did not even refer the matter to court. Justice demands that the courts(not the Minister or some officer) decides after listening to all the evidences, documentary and evidence from witnesses, before deciding. Now, Minister deciding without with giving the dismissed worker and the employer a right to be heard is ABSURD...

Minister of Human Resources had decided not to refer the claim of about 3,200 Malaysian Airlines(MAS) workers, alleging wrongful dismissal and claiming for reinstatement, to the Industrial Court – hence denying these workers the right for their claim of wrongful dismissal to be heard speedily and determined by the Industrial Court is grossly unjust. (Malaysiakini, 5/10/2017)

31.5%(10,016) workers denied access to Industrial Court in wrongful dismissal cases

If attempts at reaching an amicable settlement between the wrongfully dismissed worker and the employer fails - it must be immediately referred to the Industrial Court....BUT in Malaysia it is referred to the Minister who then decides which case to refer and which not to... There is No Right to Be Heard before the Minister - so the Minister's decision is based on the report send by the officer than conducted the failed conciliation attempt,... 
The revelation that between the period of 2001 and 2011, 10,016 workers in Malaysia who claimed wrongful dismissal(or 31.5%) were denied their day in the Industrial Court by the Minister of Human Resources who REFUSED to refer their cases to the Industrial Court is shocking...

What is even more shocking is the reasons the Minister gives for not referring these cases to the Industrial Court. The Minister, unlike the court, does not hear witnesses or  peruse documentary evidence... so, the decision not to refer is based on WHAT? Belief in an assertion of the employer... acceptance of an opinion of an officer who failed to amicably resolve the matter between employer and dismissed worker? ...
What were the reasons given by the Minister for not referring the case to the Industrial Court.
a) Because the worker was dismissed for misconduct
b) Because the Employer has shut down its business
c) Because the Worker was given the opportunity to return back 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.. 

When a worker takes the trouble to rush over to the Industrial Relations Department within 60 days from the date of 'wrongful dismissal' and lodge a complaint under section 20 claiming wrongful dismissal and demanding reinstatement, and thereafter coming for the attempts at 'conciliation', naturally one should assume that the worker genuinely believes that he/was was wrongfully dismissed...and has a valid case to justify the claim.

All the grounds of non-referral of the dispute to the Industrial Court by the Minister seems to be the very reasons that the Employer would have given for the termination of the worker's employment... These obviously are matters that the aggrieved worker is disputing, proven also by the very fact that the complaint itself had been lodged by the worker...
BUT, some may say that any person aggrieved by the decision of the Minister not to refer(or refer) to the Industrial Court can always file an application at the High Court to ask the court to do a judicial review of the Minister's decision...

Well, it is possible but for such an application, you need to get a lawyer and when an application is filed in the High Court, there is always the risk that if the worker were to fail in their application to the High Court, they may be ordered to pay COST to the employer - and this could very well be RM5,000, RM10,000 or even more... 

So, now a worker wrongfully dismissed would also have to raise money for lawyers and court proceedings.... and also face the risk of having to pay COST which really may be equivalent to 10 month's salary (RM5,000) or more - .... so naturally many a worker (especially those who earn lower wages)... will just walk away...and not bother to apply to the High Court when the Minister decides that the case would not be referred to Court. Justice is denied...and yet again, it is the worker that is the victim of this 'miscarriage of justice'...here being the right to have his/her claim heard and determined by an independent judge of the Industrial Court, the right to a fair and open trial...

[In the Industrial Court, what is good is that there is NO cost that the losing party would have to pay - and for poorer workers, this is a good thing and it helps make real 'avenues of justice' available in law for workers...] 
The section 20 IRA procedure is also ODD when there is an additional step that gives the Minister power to decide whether a case be referred to the Industrial Court or NOT. In other cases, once attempts to reach an amicable settlement fails - the matter is as of right referred to the Courts to resolved after hearing evidence of witnesses, considering documentary evidence and hearing legal arguments/submissions by both the worker and the employer. Rightfully, the Ministers involvement need to be extinguished... and after attempts at amicable settlement had failed, all cases must, as of right, be referred to the Industrial Court

This was an important matter that concerns rights of workers in Malaysia, but sadly it seems that most media (including also alternative media) failed to report on this matter, which was raised to the Minister of Human Resources in Parliament. The only report that I came across was a Bahasa Malaysia report carried by the Utusan Online, which is copied and pasted below. 

Sebanyak 31,714 kes tuntutan pekerja yang diterima Jabatan Perhubungan Perusahaan dari 2001 hingga 2011 gagal diselesaikan melalui proses rundingan.
Menteri Sumber Manusia, Datuk Seri Dr. S. Subramaniam berkata, daripada jumlah berkenaan, sebanyak 31.5 peratus atau 10,016 kes di bawah Seksyen 20 Akta Perhubungan Perusahaan 1967 itu tidak dirujuk ke Mahkamah Perusahaan berikutan pelbagai faktor.
"Antara sebabnya adalah pekerja diberhentikan kerja atas masalah salah laku, majikan telah menutup perniagaan dan pekerja diberi peluang untuk bekerja semula tetapi enggan berbuat demikian.
"Selain itu, perkara tersebut turut disebabkan pekerja diberhentikan kerana tamat tempoh kontrak, berhenti secara sukarela tetapi berubah fikiran menuntut bekerja semula dan telah menerima bayaran pampasan melalui Skim Pemberhentian Sukarela (VSS)," katanya menjawab soalan Khairy Jamaluddin (BN-Rembau) dalam sidang Dewan Rakyat hari ini.
Menurut Subramaniam, pekerja yang diberhentikan atas sebab-sebab seperti mengurangkan bilangan pekerja dan penstrukturan semula perniagaan wajib dibayar pampasan di bawah Akta Kerja 1955.
Katanya, bagi tuntutan untuk kembali ke pekerjaan asal, Jabatan Perhubungan Perusahaan boleh mengadakan rundingan damai di antara majikan dengan pekerja untuk menghasilkan penyelesaian.
Jelas beliau, sekiranya kes gagal diselesaikan secara rundingan, masalah tersebut dibawa kepada panel pakar sebelum diputuskan oleh pihak menteri sama ada wajar untuk dirujuk ke Mahkamah Perusahaan. - Utusan Online, 23/10/2012, 31,714 kes tuntutan pekerja gagal diselesaikan secara rundingan

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