Professional Documents
Culture Documents
Dismissal and Redundancy
Dismissal and Redundancy
of
Contract
(J09
Q2)
Automatically 1. A contract of service for a specied period of time or for the performance of a specied piece of work will terminate automatically when the specied period of time has elapsed or the specied piece of work has been completed. Section 11(1) EA55
With Notice 2. A contract of service may also be terminated by one party giving to the other notice of his intention to terminate it Section 12(1) EA55 Section 12(4) EA55 requires the notice to be in writing. The notice may be given at any time but must comply with the period of notice stated in Section 12(2) EA55.
Without Notice 3. Either party to a contract of service may terminate it without notice (or if notice has already been given in accordance with s.12, without waiting for the expiry of the notice) by paying and indemnity to the other. Section 13 EA55. The indemnity must be a sum equal to the amount of wages that would have accrued to the employee during the period of notice required under s.12 or during the unexpired term of such notice. 4. Either party to a contract of service may terminate it without notice in the event of a willful breach, by the other party, of a condition of the contract of service. Section 13 EA55 5. Section 14 EA55 An employer may terminate the contract of service, without notice, on the grounds of misconduct of the employee after due inquiry. An employee may also terminate his contract of service without notice, where he or his dependents are immediately threatened by danger of violence or disease which was not undertaken by the employee in this contract of service.
Length
of
Notice Section
12(2)
EA55
the
length
of
notice
required
to
be
given
by
either
party
to
the
other
in
the
case
of
termination
by
notice
is
the
length
of
notice
stipulated
in
the
contract
of
service.
In
the
absence
of
such
provision
in
the
contract
of
service,
the
following
will
apply.
Year(s)
of
completed
service
with
the
same
employer (no.
of
years) Period
of
Notice (no.
of
weeks)
4 6 8
Due
Inquiry
Section
14
EA55
the
employer
may
dismiss
the
employee
without
notice
on
the
ground
of
misconduct
by
an
employee.
However,
the
employer
may
only
do
so
after
due
inquiry The
EA
does
not
sate
what
constitute
due
inquiry.
However,
reference
may
be
made
to
the
following
guidelines
laid
down
by
the
Industrial
Court
in
the
case
of
KJJ
Cleetus
and
Unipamol
(M)
Sdn
Bhd. 1. the
inquiry
is
to
be
instituted
as
early
as
possible
after
the
suspension
of
the
complainant; 2. the
complainant
is
to
be
given
particulars
of
the
misconduct,
preferably
in
writing;
and
a
reasonable
time
is
to
be
given
to
him
before
the
inquiry
to
enable
him
to
prepare
his
case; 3. Where
applicable,
the
complainant
is
to
be
accompanied
by
his
Union
or
Committee
Representative,
if
any,
at
the
inquiry; 4. the
inquiry
is
to
be
conducted,
as
far
as
possible,
by
such
ocer(s)
as
not
directly
connected
with
the
investigation
of
the
misconduct,
so
as
to
give
the
hearing
impartiality; 5. examination
of
relevant
witnesses
to
be
allowed
at
the
reasonable
discretion
of
the
ocer-in-charge
of
the
inquiry; 6. notes
in
the
form
of
questions
and
answers
and
the
nal
decision
are
to
be
recorded
to
show
that
the
inquiry
was
proper,
and
that
the
decision
arrived
at
was
fair.
10
-
1
Teh
Joo
Ling
All
rights
reserved
Constructive
DismissalRedundancyLay-O
(D08
Q2a;
D07
Q2)
Constructive
Dismissal
- May
said
to
have
occurred
where
the
employee
has
resigned
because
the
employer
has
made
it
intolerable
for
the
employee
to
continue
working
for
the
employer. - This
may
occur,
where,
in
doing
so,
the
employer
has
breached
the
contract
of
employment
thereby
entitling
the
employee
to
resign. - For
example,
if
the
employer
had
demoted
the
employee
or
subjected
him
to
unfair
or
oppressive
working
conditions
in
order
to
humiliate
him
tot
he
extent
that
he
can
no
longer
tolerate
it
and
feels
compelled
to
resign,
he
may
be
considered
to
have
been
constructively
dismissed. Bumpus
v
Standard
Life
Assurance
Co
Ltd
The supreme Court in the case of Wong Chee Hong v Cathay Organization (M) Sdn Bhd
two
Factors
to
determine
if
there
has
been
a
constructive
dismissal.
1. Whether the employers conduct amounted to a breach of the contract of employment going to the root of the contract. 2.Whether the employee made up his mind to leave the employment and acted within a reasonable time after the employers conduct.
Redundancy
A
redundancy
may
be
said
to
occur
in
the
circumstances
mentioned
in
Section
12(3)(a)
-
(d)
EA55
i.e.
where: 1. The
employer
has
ceased,
or
intends
to
cease
to
carry
on
the
business
for
the
purposes
of
which
the
employee
was
employed; 2.The
employer
has
ceased
or
intends
to
cease
to
carry
on
the
business
in
the
place
at
which
the
employee
was
contracted
to
work; 3.The
requirements
of
that
business
for
the
employee
to
carry
out
work
of
a
particular
kind
have
ceased
or
diminished
or
are
expected
to
cease
or
diminish; 4.The
requirements
of
that
business
for
the
employee
to
carry
out
work
of
a
particular
kind
in
the
place
at
which
he
was
contracted
to
work
have
ceased
or
diminished
or
are
expected
to
cease
or
diminished. Food
Specialities
Sdn
Bhd
v
Esa
bin
Mohamd Gold
Coins
Feedmills
Sdn
Bhd
v
Ibrahim
Shah Automovitve
Sdn
Bhd
v
Subramaniam
Andi
&
Others
Constructive
DismissalRedundancyLay-O
(D08
Q2a;
D07
Q2)
Lay-O
A
lay-o
may
be
said
to
occur
in
the
circumstances
stated
in
Regulation
5(1)
of
the
Employment
(Termination
and
Lay-o
Benets)
Regulation
1980
(Revised
1983)
i.e.
where: 1. The
employer
does
not
provide
work
for
the
employee
on
at
least
a
total
of
12
normal
working
days
within
any
period
of
4
consecutive
weeks;
and 2.The
employee
is
not
entitled
to
any
remuneration
under
the
contract
for
the
period
or
periods
(within
such
period
of
4
consecutive
weeks)
in
which
he
is
not
provided
with
work. However,
in
determining
whether
an
employee
has
been
laid-o,
any
period
during
which
an
employee
is
not
provided
with
work
as
a
result
of
a
rest
day,
a
public
holiday,
sick
leave,
maternity
leave,
annual
leave,
any
other
leave
authorized
under
any
written
law,
or
any
leave
applied
for
by
the
employee
and
granted
by
the
employer,
shall
not
be
taken
into
account.
Lay-O
Benets Lay-o
benets
which
an
employee
is
entitled
to
receive
should
not
be
less
than:
Year(s)
of
completed
service
with
the
same
employer (no.
of
years) Days
of
Wages (no.
of
days)
10 15 20
and pro rata basis in respect to an incomplete year, calculated to the nearest month. The regulations require that such lay-o benets must be paid by the employer to the employee not later than 7 days after the relevant date.
Remedies
(D08
Q2b)
the remedies available to an employee who has been unjustiably dismissed are as follows:
Re-engagement
- Sometimes
the
employee
is
not
reinstated
but
is
merely
re-engaged
or
re-employed.
- This
means
that
the
employee
is
given
an
opportunity
to
work
for
the
employer. - All
past
services
will
be
lost. - The
employee
will
start
afresh
and
he
is
not
entitled
to
any
backpay. Restu
Motor
Sdn
Bhd
and
Nazaruddin
bin
Abdul
Samad