Tutorial Week 5

Employment Law
By: Nurul Ashiqin Shamsuri
[email protected]

Question 1
For termination of contract
of service, there are several
methods
by
which
a
contract of employment can
be terminated. Explain in
details 5 (Five) methods of
termination of contract of
service.

TERMINATION OF THE CONTRACT

OF SERVICE
Methods by which a contract of employment is
terminated:
a) Death
b) Where the business ceases to exist due to
bankruptcy or dissolution
c) Sale of the business
d) Frustration
e) Termination by notice
f) Termination without notice or summary
dismissal

Death
- The death of either party
will
terminate
the
contract.
- Generally the employee
or their estate will be able
to recover any unpaid
wages.

Where the business ceases to

exist due to bankruptcy or
dissolution
- The bankruptcy of a sole proprietor,
the dissolution of partnership or the
winding up of a company will result
in the termination of the contract of
employment because in each case
the employer ceases to exist.

Frustration
Contract of employment can be
terminated by frustration
e.g:
employers
plant
and
equipment are destroyed by
natural causes such as an
earthquake or cyclone or by fire.

 Sale of the business

- Where business is sold to a new
employer, all existing contracts of
employment
between
former
owner
and
employees
are
terminated.
- Employees who stay on are
employed under new contracts of
employment
with
the
new
employer while the other only have
recourse against the old employer.

Termination by notice
-

The employee must terminate the contract in

accordance with the terms of his employment
contract
If no time is expressed, then the employee must
give reasonable notice.
reasonable notice- depends on the court to
decide based on the nature of contract
(seniority of position, tasks still to be performed
and wage periods)

Termination without
notice
- Terminating party must be careful
not to place themselves in a
position of breach and thus be
open to an action for damages
- If employees terminating without
notice-rarely worth the time or
effort involved for the employer to
pursue the matter

 If employer terminates without

notice- this is known as
summary dismissal
Employer must either give
proper notice or be able to
prove that the employee's
action were such that they
justified summary dismissal
If not the employer might face
an action for unfair dismissal.

The employer generally

have to establish that:

will

a) The acts of employee amounted to

misconduct,
disobedience,
incompetence or negligence and
b) They amounted to a breach of a
serious nature
c) They involves repudiation by the
employee of their contract of
employment
(denial
of
the
existence of a contract and/or
refusal to perform a contract
obligation)

Question 2
Lisa has been unfairly treated by her boss for 6
months. Her boss always gives her more workload
than her colleague and put her desk next to the
toilet. Lisa wanted to resign from her post but
wish for her resignation to be treated as Unfair
Dismissal. Advice Lisa on her option.

Issue?

 This is used to cover a situation where although it

is the employee who leaves the job, he wants the
Industrial Court to treat it as though he was unfair
dismissed from work by his employer.

 The employee must state the reason in his

resignation letter
In this situation, the employee, after leaving the
job can make a representation within sixty days to
the Director-General of Industrial Relations to seek
reinstatement to his former job on the same terms
and conditions, together with payback.

 This is because the employee feels that he is

being pick-on by the conduct of the employer.
Eg:
- Giving greater work-load to employee but not to
other workers
- Employees desk shifted into basement or close to
store room or toilet entrance
- Giving extra load or work at 5.15pm when his
duty ends at 5.45pm
- Demote employee or reduce salary after a jobappraisal.

Conclusions?

Question 3
Explain what are the duties of
employees, duties of employers
and domestic inquiry.

Duties of an employee:
Work in a skillful and competent manner
Obey the employers lawful, reasonable
and safe commands
Maintain confidentiality
Hand over inventions made during the
course of employment
Account for all money or property received
in the course of the employment
Disclose information relevant to the
employer
Maintain
confidentiality
after
the
employment has ceased.

Duties of an employer:

- Pay the agreed remuneration

- Provide work
Ensure the safety of their employees
This includes, the provision of the
competent staff, safe equipment, plant
and machinery and a safe system of work.
Whether the employer is under an
obligation to pay a wage depends on the
nature of the employment contract.

Domestic Inquiry
Before dismissing employee, a due
inquiry must be conducted
This is called a domestic inquiry
Before such inquiry, a notice should
be given to the concerned employee
detailing the allegations against him
He will asked to reply to the
allegation within a reasonable time

 If not satisfied with the reply, the employer will

proceed to conduct a domestic inquiry
An independent panel of members shall conduct
a hearing on the allegation against the
employee.
The employers HR department will present the
case against the affected employee
This is done by calling witness, presenting CCTV
evidence or any other available evidence

 The affected employees can question these

witnesses and then call his own witnesses
The panel will come to a finding and makes a
recommendation to the management
The entire process is meant to provide a fair
hearing

 The management will then make the

final decision
Under this provision, the management
can:
- Dismiss the employee immediately
(without notice)
- Downgrade or denote the employee
- Impose any other lesser punishment
(e.g: barring increments or issue
warning)

Question 4

Explain ALL Termination under Employment Act

1955

TERMINATION UNDER EMPLOYMENT

ACT 1955
Section 11 to 14 : Do not
give any right to an
employer to terminate any
employees service except
when there is just and
reasonable cause.

 When an employee is dismissed from

service without a just excuse or
reasonable cause, he may apply to
the court for reinstatement or claim
compensation for the loss of his
employment.

If the employee is reinstated, he will

be eligible to revert to his original
position as well as to back wages

SECTION 10
Employment contracts should
be in writing and must include
a provision for the termination
of the employment contract.
If no notice has been agreed
upon between the parties,
then Section 12 will supply.

SECTION 11
A contract of service for a
specified period of time or for
the
performance
on
a
specified piece of work shall
normally terminated when the
specified period of time has
expired or when then piece of
specified work has been

SECTION 12
If no notice has been agreed upon
between the parties, then the
minimum notice is as follow:
- Employed < 2 years= 4 weeks
notice
- Employed 2-5 years= 6 weeks
notice
- Employed 5 years or> = 8 weeks
notice

SECTION 13
Gives both the parties the right to terminate the
contract of service without giving notice in the following
circumstances:
-

By paying to the other party an indemnity of a sum equal

to the amount of wages which would have accrued to the
employee during the term of such notice

In the event of any willful breach of a condition of the

contract of service by one party, the other party can
terminate without notice.

SECTION 14
Where there is misconduct by
the employee, the employer can
dismiss the employee without
notice.

 Misconduct is not defined under

the Act but may includes:
-

Poor performance of work

Sleeping while on the job
Gambling while on the job
Use of abusive language against coworker/superiors
Conflicts of interest
Sexual harassment of co-workers
Alteration of medical certificate
Negligence

Question 5

What are the differences between Unfair Dismissal

and Constructive Dismissal?

UNFAIR DISMISSAL- THE

CONSEQUENCE
The main law on unfair
dismissalThe
Industrial
Relation Act 1967
Where
the
contract
is
terminated by either party
without complying with the
terms for notice, then there

 If a breach is proved, a tribunal may

make an order directing an employer
to:
- re-employ or reinstate the employee
in their original position or to an
alternate position
- Order
compensation
if
reemployment is not a viable option
- In the case of unlawful termination,
impose a penalty on the employer

CONSTRUCTIVE DISMISSAL
This is used to cover a situation
where
although
it
is
the
employee who leaves the job, he
wants the Industrial Court to
treat it as though he was unfair
dismissed from work by his
employer.

 The employee must state the reason

in his resignation letter
In this situation, the employee, after
leaving the job can make a
representation within sixty days to
the Director-General of Industrial
Relations to seek reinstatement to
his former job on the same terms and
conditions, together with payback.

 This is because the employee feels

that he is being pick-on by the
conduct of the employer.
Eg:
- Giving
greater
work-load
to
employee but not to other workers
- Employees
desk
shifted
into
basement or close to store room or
toilet entrance
- Giving extra load or work at 5.15pm
when his duty ends at 5.45pm
- Demote employee or reduce salary
after a job-appraisal.

7/19/15

THANK YOU