LAW 302_FINAL EXAM

PART A

Question 1

Reasons for subsidiary legislation:

i) The legislature has insufficient time to enact all the legislation, detailed in every
aspect, required in a modern society.
ii) Much modern legislation is highly technical and is best left to experts or
administrators on the job that is well versed with the technicalities involved.
iii) The legislature is not continuously in session.
iv) Subsidiary legislation is flexible and elastic.

Question 2

i) Compulsory statutory contributions and payments like the provident fund,

social security, workmen’s compensation and pension schemes are payable

by employers if the workers are ‘employed’

ii) In torts, an employer will not normally be vicariously liable for the tortious

acts committed by independent contractors, whereas the employer would

be liable for torts committed by his employees in the course of their

employment .

iii) The employer owes a duty at common law to his employees to take

reasonable care for their safety, whereas these duties do not normally

apply with respect to independent contractors.

iv) In case of a judgment made against an employee, an attachment of earnings

can be ordered, where the court can compel the employer to deduct the

employee’s salary and wages for certain purposes.

Question 3

i) The wages of an employee whose contract is terminated in accordance with section

11(1) or of section 12 shall be paid not later than the day in which such contract of
service so terminates.

ii) Where an employer terminates the contract of service of an employee without notice,
the wages earned by the employee shall be paid by the employer not later than the
day on which such contract of service is so terminated.

iii) Where the employer terminates the contract of service under section 13(1), the
employee shall be paid wages in addition to the indemnity payable to the employee.

iv) Where an employee terminates his contract of service without notice, the wages shall
be paid by the employer not later than the third day after the day on which the
contract of service is so terminated.

Question 4

i) According to Section 37 of the Act, every female employee is entitled to 60

consecutive days of maternity leave for each confinement which cannot commence
earlier than 30 days before, or later than one day after, confinement.
ii) Maternity allowance is payable for each confinement except the employee already
has 5 or more surviving natural children. If you have 5 or more surviving children,
you are only entitled to 60 days’ unpaid maternity leave.
 iii) According to Section 40(2) of the Act, a female employee shall within a period of sixty
days immediately preceding her expected confinement notify her employer of it and
the date from which she intends to commence her maternity leave; if she fails to do
so, the payment of maternity allowance to her may be suspended, until such notice is
given to her employer.
iv) According to Section 40(3) of the Act, any employer who dismisses a female
employee from her employment during the eligible period shall be guilty of an offence
and shall be liable on conviction to a fine not exceeding ten thousand ringgit.

Question 5

Collective bargaining is the process by which representatives of the employees (the trade
union) meet together with the employer to negotiate and decide upon workers’ wages and
other terms and conditions of service.

i) Right to form collective associations

Workers have the right to form and join trade unions. Within the limitations set by law, trade
union activity is legal. Collective bargaining could not take place without this right.

ii) Union bargaining strength

The most important prerequisites to effective collective bargaining are that the union:

Be recognized by the employer

Has adequate financial strength

Members are united

PART B

Question 1

Issue:

i) Whether Ahmad dismissal by Mr. Abu was valid under the law?

ii) Whether the notice of termination from Mr. Abu is according the Employment Act 1955?

Law:

Definition:

i) Section 14 - Termination Of Contract For Special Reasons (Misconduct)

An employee may be dismissed on the ground of misconduct without any notice, after
due inquiry or downgraded or imposed lesser punishment under section 14(1), and
during the period of inquiry, the employer may suspend the employee from work for a
period not exceeding two weeks but shall pay him not less than of his wages for such
period.

An employer may terminate the service of an employee after he has conducted a

domestic inquiry into the alleged misconduct.

If after the inquiry the misconduct of an employee cannot be proved then the employee
shall be paid full wages he was suspended.
 ii) Section 12 of the Employment Act 1955

Section 12 Notice of Termination of Contract - it is mandatory to give notice to the other

party.

Either party to a contract of service may at any time give to the other party notice of his
intention to terminate such contract of service.

The length of notice should be notice same for both employer and employee.

The period of notice is to be determined by making a provision in writing in the terms of the
contract of service.

Where the contract of service is silent,

If employed for a period of more than five years, the length of notice shall be eight weeks.

Case:

i) NORZAHIZAN ISMAIL V UTUSAN MELAYU (MALAYSIA) BHD

Plaintiff (reporter), was dismissed on Sept 15,2004 by the Defendant on the grounds of
disobey her superior’s order to do coverage story of the Asia Pacific event, failing to
complete her assignment after attending press conference, and failed to complete
another assignment on health related article. There was no proper and valid domestic
inquiry done.

Held: Industrial Court ordered the Defendant to reinstate Plaintiff within 60 days, pay her
RM 71,128.00 back wages and monthly transport allowance as well as exemplary award
as the dismissal was done in bad faith, without just cause or excuse.

ii) DREAMLAND CORP SDN BHD V CHOONGCHIN SOOI

The appellant company had dismissed the respondent with immediate effect viz. February
23, 1984, on the ground that the respondent’s attitude towards the company was casual and
indifferent and that he instigated and provoked dissatisfaction amongst fellow workers.

Industrial Court: upheld the dismissal, but held the order of dismissal was valid from April 28,
1986 -- on the ground that no inquiry was held by the employer before passing the order of
dismissal. Accordingly, the respondent was awarded 26 months back wages of RM62, 700.
The high court upheld the decision of the Industrial Court. The court observed that under
section 20(1) where a workman considers that he has been dismissed without just cause or
excuse by his employer, including not only the reasons for his dismissal but also the manner
of the dismissal, rules of natural justice were not observed. Hence the employee was
entitled to back wages, because until then he could not be said to have been dismissed with
just cause or excuse.

Application: By applying the law above, according to Section 14 in Termination of Contract

for Special Reasons (Misconduct), an employer may terminate the service of an employee
after he has conducted a domestic inquiry into the alleged misconduct. In the case of
Ahmad, Mr. Abu did not conduct any inquiry at all.

Next, according to Section 12 in Notice of Termination of Contract, it is mandatory to give

notice to the other party. When the contract of service is silent, the length of notice shall be
eight weeks if the employee was employed for a period of more than five years. Based on
the case of Ahmad, the contract of service is silent. Thus, he is entitled to get eight weeks of
notice from his employer, Mr. Abu because Ahmad has been employed for 15 years.

Conclusion:

For the conclusion, Ahmad shall be paid full wages he was suspended because Mr. Abu did
not conduct any inquiry at all. Besides, Ahmad should receive 8 weeks’ notice of termination
from Mr. Abu under Employment Act 1955.

Question 3

The following Sections 60L, 60M and 60N are meant to protect Malaysians from being
discriminated:-

Section 60L (1) - DIRECTOR GENERAL MAY INQUIRE INTO COMPLAINT

Provides that the Director General may inquire into any complaint from a local employee that
he is being discriminated against in relation to a foreign employee, or from a foreign
employee that he is being discriminated against in relation to a local employee, by his
employer in respect of the terms and conditions of his employment; and the Director General
may issue to the employer such directives as may be necessary or expedient to resolve the
matter.

Section 60M - PROHIBITION ON TERMINATION OF LOCAL FOR FOREIGN EMPLOYEE

Provides that no employer shall terminate the contract of service of a local employee for the
purpose of employing a foreign employee.

Section 60N - TERMINATION OF EMPLOYMENT BY REASON OF REDUNDANCY

Provides that here an employer is required to reduce his workforce by reason of redundancy
necessitating the retrenchment of any number of employees, the employer shall not
terminate the services of a local employee unless he has first terminated the services of all
foreign employees employed by him in a capacity similar to that of the local employee.

Question 5

A strike occurs when a group of workers refuse to work until their employer accept their
demands. Section 2 of IRA 1967, defines a strike as “ any stopping of work by a group of
workers including any attempt to limit or slow down production on purpose”.

According to that definition under section 2, there are various forms of industrial action which
are included, eg go slow, work-to-rule and a ban on overtime. Workers continue to work, but
in these variations there is a reduction of output and therefore considered strikes.

Strike Procedures:

Strikes are only legal if they comply with the regulations in the Industrial Relations Act and
Trade Unions Act. As such, the right to strike is only extended to members of a registered
trade union.
According to section 45 IRA 1967, only a group of worker have a trade disputes with their
employer can take strike action.

Sympathy and political strikes or general strikes are illegal in Malaysia.

Strike procedures are:

i. Secret ballot must be held by those eligible to strike, stating the issue leading to the
proposed strike (Section 40 of Trade Unions Act).
ii. The result of this ballot must be sent to the Director-General of Trade Unions by the
union secretary within 14 days of taking the ballot.
iii. At least two-thirds of those entitled to vote agree and after waiting 7 days after the
ballot result been sent to the Director-General (cooling off period is given to gives the
opportunity to the Director-General to check the validity of ballot and gives the union
members to change their mind).
iv. The secret ballot is only valid for 90 days, and if the strike has not taken place within
this period, a new ballot will be required if the union intends to continue with the strike
action.