Joint Statement 5/12/2012[Now 52]
Remedy
against employers that wrongfully dismiss workers is a fundamental right of all
workers
-
All cases of wrongful dismissal must be referred to the Industrial Court -
We, the 52 undersigned groups, organisations, trade unions and networks are
appalled by the revelation that revelation that between the period of 2001 and
2011, that 31.5% 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 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;
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.
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 amicable 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 the right to 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 classed 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
Aliran
Arus
Pelangi
Asia
Monitor Resource Centre
Burma
Campaign Malaysia
CCHR
(Cambodian Center for Human Rights)
Centre for
Development Resourses-CENFORD, Vietnam
Clean
Clothes Campaign
Community
Action Network
Community
Development Services (CDS), Sri Lanka
Democratic
Party for a New Society (DPNS)
FORLITAN
(Forum Peduli Pertanahan Indonesia)
GoodElectronics
Network
Hope
Community Action Network
Human
Rights Ambassador for Salem-News.com
IMPARSIAL
The Indonesian Human Rights Monitor
Indonesia
for Human's
JERIT
(Jaringan Rakyat Tertindas), Malaysia
Kesatuan
Pekerja-Pekerja Polyplastics Asia Pacific - (KPPAP)
Kesatuan
Sekerja Industri Elektronik Wilayah Selatan
Kilusang
Mayo Uno (May First Movement, Philippines)
Knights
For Peace, International, Philippines
Legal
Resources Center for Gender Justice and Human Rights /LRC-KJHAM
LIPS
(Lembaga Informasi Perburuhan Sedane/Sedane Labour Resource Centre)
LPSD (The
Law and Policy of Sustainable Development Research Center).
LRC-KJHAM
(Legal Resources Center for Gender Justice and Human
Rights)
Indonesia
MADPET
(Malaysians Against Death Penalty and Torture)
Malaysian
Physicians for Social Responsibility
MAP
Foundation, Thailand
makeITfair
Mindanao
Migrant Center for Empowering Actions, Inc. (MMCEAI)
MIGRANTE
International
NAMM
(Network of Action for Migrants in Malaysia)
National
Union of Bank Employees.(NUBE), Malaysia
National
Union of Transport Equipment & Allied Industries Workers (NUTEAIW),
Malaysia.
NLD-LA
(National League for Democracy-Liberated Areas), Malaysia
Pakistan
Rural Workers Social Welfare Organization,(PRWSWO),
Paper
Union Of Malaysia
Parti
Rakyat Malaysia(PRM)
Pax
Romana-ICMICA Asia
Persatuan
Sahabat Wanita Selangor
PINAY
(Filipino Womens' Oganization in Quebec)
Persatuan
Masyarakat Selangor dan Wilayah Persekutuan (PERMAS)
Pusat
Komunikasi Masyarakat (KOMAS)
Reclasseering
Indonesia KOMWIl Provinsi Sumatera Utara
Seafarers
Union of Burma/Myanmar (S.U.B)
Seksualiti
Merdeka
SUARAM
Tenaganita
Thai
Committee for Refugees Foundation (TCR)
WH4C
(Workers Hub For Change)
Yaung Chi
Oo Workers Association (YCOWA)
Yayasan
Lintas Nusa - Batam, Indonesia
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