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Law 302 - Final Exam Part A
Law 302 - Final Exam Part A
PART A
Question 1
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
ii) In torts, an employer will not normally be vicariously liable for the tortious
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
can be ordered, where the court can compel the employer to deduct the
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
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.
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.
The most important prerequisites to effective collective bargaining are that the union:
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:
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.
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
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.
If employed for a period of more than five years, the length of notice shall be eight weeks.
Case:
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.
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.
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:-
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.
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.
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.