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NEWS

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FREE
MEMBERS

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MECA EMPLOYERS
CONSULTING AGENCY

Level 13A-05, PJX-HM Shah Tower,

No.16A, Persiaran Barat, 46050, Petaling Jaya.

ersary
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a EDITION

#04-17, Wisma SP Setia, Indah Walk 3,

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www.meca.com.my

Best wishes for the New Year!

EDITORS NOTE

by VICTOR GAN

LAST year was an exciting year

for all of us at MECA with a couple
of great achievements. To name
a few, our absolutely amazing
team at MECA joint hands and
welcomed over 65 new members
to the family, started MECAs first
ever branch in Johor and hosted

the largest ever IR Convention

in our history with over 450 delegates present!
This year (2016) is a very meaningful year for the MECA brand
as we celebrate our 20th anniversary in providing top notch IR
advisory services to employers in

Malaysia. In this edition, we have

given a special glimpse of this
long journey of MECA and how it
has developed over the years. In
conjunction with this, we will be
organizing more exciting events
for members to look out for in
the coming months. We are also

proud to announce for the first

time that our branch in Penang
will be commencing business
from April 2016 onwards!
We thank all members for being a part of this wonderful journey and we look forward to serve
you for many years to come.

Making false
sick claims
is a crime
PETALING JAYA: With employers
losing a whopping RM2.9bil annually to pay workers who are replacing colleagues on medical leave, a
Malaysian Anti-Corruption Commission (MACC) officer said workers who submit false sick claims are
committing corruption.
Mohamad
Tarmize
Abdul
Manaf, the commissions community education division officer, explained why producing a medical
certificate with false information or
claim was an offence under Section
18 of the Malaysian Anti-Corruption Commission Act.
He said submitting a medical
cert was no different from submitting a claim, a receipt or an invoice.
Did you know that producing a
medical certificate with false information about ones illness is corruption? It is under the fake claims
category, he wrote on the MACCs
official blog ourdifferentview.com

LATEST ISSUES
Menipu Sakit, Satu Kesalahan Rasuah (Faking Illness, A Corruption
Crime).
Mohamad Tarmize cited a legal
precedent where the accused was
charged for falsely taking two sick
days with full pay.
He was found guilty after it was
proven that he was not ill during
the two days.
The defence said the MCs were
not covered under the Act. But the
judge ruled that MCs had monetary
value as the accused had received
full salary on both sick days.
He was then ordered to repay the
money and slapped with a fine.
Mohamad Tarmize hoped people would not take sick leave and
MCs lightly.
Doctors also have a responsibil-

ity to be cautious when a patient

applies for sick leave, he added.
MACC deputy chief commissioner (prevention) Datuk Seri
Mustafar Ali confirmed that fake
claims submitted to employers was
an act of deceiving the principal
and an offence.
He added that under Section 24,
workers making false claims could
be jailed for up to 20 years and fined.
It was reported previously that
Malaysian employers were incurring more than RM1bil in losses
annually because of workers who
feigned illnesses to get sick leave or
MCs.
In a 2014 report, the Malaysia
Employers Federation revealed that
employers lost RM2.9bil annually
in overtime payments to workers
who are replacing those on medical
leave.

guilty to the charge under section

354 of the Penal Code that carries up to ten years in prison, or
a fine, or whipping, or any of the
two upon conviction.
The 57-year-old allegedly molested a female student in his office at the Shah Alam campus on
Dec 14 around 12.30pm.

THIS article came at the right time when most of our members have
time and again been reporting on the potential abuse of medical
certificates by employees. This article suggests that employers,
apart from going through normal disciplinary procedures may
report this matter to the MACC for further actions to be taken. We
would encourage members to share this with employees in your
normal engagement sessions so as to prevent this from happening.
Further, members are reminded that if disciplinary actions are
taken and in the event the employee is found guilty of submitting
false MCs then the alleged sick leave days declared under the
false MC should be treated as unpaid leave.

n Source: http://www.thestar.com

UiTM deputy dean claims

trial for allegedly molesting
student in his office
THE deputy dean of Universiti
Teknologi Mara (UiTM) claimed
trial today for allegedly using
criminal force with intent to outrage the modesty of a 23-year-old
student.
Prof Dr Rahmat Ghazali from
the Faculty of Communication
and Media Studies pleaded not

MECAs COMMENTS

After the charge was read before magistrate Surya Wati Shawal, deputy public prosecutor
Rustam Sanip asked the court to
impose RM6,000 bail.
Rahmat was later released on
RM3,500 bail.
The court has fixed Jan 20 for
case management.

MECAs COMMENTS
IN cases involving misconduct of a criminal nature, employers
need not wait for the decision of the criminal courts but may instead commence disciplinary proceedings internally. The standard of proof for employment matters is on a balance of probabilities as opposed to the criminal courts standard of proving a case
beyond a reasonable doubt. It is however prudent for employers to
consider whether or not the alleged misconduct is one that is considered a private act. If so, employers are advised to only pursue
disciplinary actions if the Company is in a position to prove that
the private act had jeopardized the reputation of the Company in
one way or another. In this case, since the alleged misconduct was
one that happened within the workplace, there should be no hesitation in commencing disciplinary actions.

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MECA EMPLOYERS CONSULTING AGENCY

Should Chelsea
doctor Eva Carneiro
get a lawyer?
The disciplinary action taken against Chelsea FCs medic could give
her a case for unfair dismissal, writes Chris Phillips
THE reports that Chelsea Football
Clubs team doctor Eva Carneiro
was to have her role significantly
changed after criticism from boss
Jose Mourinho raises interesting
ethical and legal questions about
the tension that can exist between
acceptable performance and expert professional judgment.
Dr Carneiro was accused of
being impulsive and naive by
Mourinho and failing to understand the game when she rushed
to assist player Eden Hazard following a fall during the first home
Premier League game of the season, against Swansea, which then
ended in a draw. In that situation,
the player must leave the pitch, but
the team were already down to ten
men, having had their goalkeeper
sent off earlier in the game.
Eva Carneiro has been with the
club for six years, so she must have
been aware how her intervention
would impact at that critical moment. She will remain as team
doctor but reports suggest she will
no longer attend matches or training sessions. Some commentators
have suggested that Mourinhos
reaction may have been different

had Dr Carneiro been a man, raising further questions about his

attitude toward gender and sex
discrimination. Others point to
the fact that the club physiotherapist Jon Fearn didnt exactly come
away unscathed either. However
you look at it, the doctors decision
to check on the player turned out
to be a pill too bitter for the mercurial Mourinho to swallow.
Where do you draw the line
when allowing a key employee to
exercise their professional judgment and should the bigger picture
always take priority? Would it, for
example, have been obvious that
the injury wasnt more serious and
can a medical professional ever be
expected to take that risk? If an injured player had been allowed to
continue, exacerbating the injury,
resulting in loss of earnings (and
what earnings!), they could have
sued the doctor and the club.
The Football Medical Association made its support for its
member unequivocal, stating that
where a referee agrees a player
may be injured and needs assessment, at that moment the player
becomes a patient of the medical

Where do you
draw the line
when allowing
a key employee
to exercise their
professional
judgment and
should the bigger
picture always
take priority?

team and it is the duty and obligation of club medical staff to attend
to that patient without prejudice to
the interests of anyone else including the club employing them and
factors extraneous to the immediate medical needs (such as the
stage and the state of the game)
cannot be a consideration.
Guidelines by the General Medi-

cal Council (GMC) similarly make

clear that a doctor must make the
care of their patient their first
concern.
Such judgments have to be made
daily in many occupations, but in
this case the difference was the
public spotlight and very significant commercial considerations.
Operating in this strange bubble, it
appears that some football managers think themselves above the law
and common sense.
If the reports are correct, would
exclusion from matches and training sessions amount to a breach
of the implied term of trust and
confidence? I would have thought
so. Is the reality going to be the
employee is so well paid she will
overlook being left off the bench
for the foreseeable future? Who
knows, but beyond thanking people on Twitter for the outpouring
of public support, Dr Carneiro has
maintained a face of quiet, professional dignity.
Contrast Mourinhos very public criticism of his employee and
that further reinforces the argument that the club has acted in a
way that is very likely to under-

mine her trust and confidence in

her employer, a key implied term
in every employment contract
which, if breached, would found a
claim for constructive, unfair dismissal.
This is a dilemma many of us
will recognise in different forms. It
reminds us that if an expert is being brought in, they should be allowed to exercise their judgment,
especially on something as important as employee welfare. After all,
thats why they are there.
One might draw an analogy
with a lecturers right to academic
freedom of expression in education or a safety managers call to
close what they consider to be an
unsafe building despite the potential loss of revenue to the business
it accommodates. As an employer,
if you compromise the work of an
employee in this situation, you risk
significant claims, not only in the
Employment Tribunal but also in
the civil courts.
n Chris Phillips is an Employment Law
Partner with Simpson & Marwick
n Source: http://www.scotsman.com

MECAs COMMENTS
THIS high profile matter is now awaiting hearing at the UK tribunals. Our opinion is based on Malaysian labour laws and in applying the test for constructive dismissal, Chelsea or the Manager
(Jose Mourinho) has clearly (1) breached a term of Evas contract of
employment by not allowing her to continue first team football assistance demotion and by publicly criticizing her when she was
merely doing her job as a medical staff, (2) the breach as mentioned
above amounts to a fundamental breach going to the root of the employment contract and (3) Eva did not report to work after immediately after those incidents indicating that she left employment as a
result of the breach of contract and not for any other reasons.
There have been comments that Eva vented her frustrations
online prior to walking off thus breaching the social media policy of
Chelsea Football Club. We are of the opinion that the said conduct
would not jeopardise Evas claim for reinstatement. However, if Eva
is reinstated, the employer may impose the appropriate disciplinary action for the said act of misconduct. This could come in the
form of a warning.

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MECA NEWS

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School security guards

take minimum wage fight
to Putrajaya
AT least 33 security guards from 10
public schools from the Klang Valley have been protesting outside
the Ministry of Human Resources
in Putrajaya today because they
say they have not been paid minimum wage by a Ministry of Education-appointed contractor.
In addition, group spokesman
Zin Yusof said that they have not
received their payslips. Similarly,
they have not been paid for leave
and their employer has not been
honouring Employee Provident
Fund (EPF) contributions.
There are regular delays in
paying us, he said at a press
conference in front of the ministry, adding that he and the other
guards had not been paid minimum wage in full from January
2013 till October 2014.
We want to make sure that we
will the pay owing to us, because
our contract is going to end in January, he said, adding that he was
owed about RM9,000.
They deduct our EPF but they
do not put it in the EPF fund. What
that we are doing is asking for
what that is supposed to be given
to us, he said.
Parti Sosialis Malaysia (PSM)
leader S. Arutchelvan, after a
meeting with senior private secretary to the Minister of Human Resources Peter Dennis, said that the
Ministry of Education had paid
the contractor, but the contractor
had not released the payment to
the security guards.
The company did not pay minimum wage according to Minimum Wages Order 2012, so when
a complaint was made it agreed to
do so.
However, none of the guards
have been paid by the contractor,
so this issue has been brought to
the Ministry of Human Resources.

MECAs COMMENTS

Parti Sosialis Malaysia (PSM) leader S. Arutchelvan (far right) holding the
memorandum and standing together with the security guards in front of
the Ministry of Human Resources, Putrajaya.
The ministry called the contractor
to come, but he did not show up,
he said.
After the meeting with the
Ministry of Human Resources,
Arutchelvan said Dennis had referred the dispute to the Ministry
of Education, which had hired the
contractor.
Dennis said he will notify the
minister, who will try to take to

Cabinet.
Under the Minimum Wages
Order 2012, the minimum wage
must be reviewed once every two
years and employers who breach
the directive can be fined up to
RM10,000 for each employee underpaid. December 1, 2015.
n Source: http://www.
themalaysianinsider.com

OUR comments on this article is on the assumption that the

employer is within the private sector. Members are reminded
that the protection for labourers, especially those employed
through a contractor for labour (agent) has been under scrutiny
and tighter controls may soon be put in place by the Ministry
of Human Resources. Currently, s.33(1) of the Employment Act
1955 provides that if a contractor for labour absconds or does
not pay wages to their employees (even though your Company
paid the contractor for labour) your Company may be jointly
and severally liable to pay any outstanding balance owing to the
employee(s).
On a separate issue, we advise for members to review their
current salary structure as the minimum wage will be increased
effective 1st July 2016 as any non-compliance may result in
hefty fines imposed. Members are encouraged to sign up for our
upcoming course for a complete understanding on this area of
the law.

From the desktop of Dharmen Sivalingam & Partners

SELVARAJ MURUGAN v.
IREKA ENGINEERING &
CONSTRUCTION SDN BHD
(Application for Judicial
Review No. R2-25-23-02/2014)
(Unreported case)
Facts:
This case arises from the decision of the Industrial Court which
is reported in [2013] 2 LNS 1815.
The Industrial Court decided that
the Company succeeded in proving that the Claimants dismissal
was with just cause and excuse.
The Applicant was appointed
as a Health & Safety Officer of the

1st Respondent with effect from

10/8/2000 for a duration of one (1)
year.
On 11/6/2001, the 1st Respondent converted the Applicants employment contract to a permanent
contract and also promoted him as
the Health & Safety Manager with
effect from 1/6/2001.
Clause 8(c) of the Applicants
contract of service state as follows:
8. Notice of termination
. notwithstanding the terms
of this letter, we shall be entitled to
terminate your employment upon:
(c) Any illness (mental or

otherwise) which in our judgment

prevents you from discharging
your duties efficiently and properly for any period exceeding two
(2) months in any calendar year;
[emphasis added].
The Applicants primary function as the Health & Safety Manager is to plan, assign and supervise
safety matters and requirements
at all work sites. This requires the
Applicants presence at various
construction projects sites belonging to the 1st Respondent.
The Applicants position was
one that was required by statute
i.e. Section 29 and 30 of the Oc-

cupational Safety and Health Act

1994. As such the Applicant was
required to be on the sites from
8am until 5pm on Monday to Friday.
On 20/10/2008 the Applicant
was assigned to Sandakan Harbour Project.
The Claimant reported to work
on 20 and 21st October 2008
and was on medical leave from
22/10/2008 until he was terminated by the 1st Respondent for
breach of contract on 20/5/2009.

The Applicants case are at the

Industrial Court are as follows:(a) the Applicant had informed the Company that he
would return to work on 1/6/2009
after consulting with a doctor but
despite that the 1st Respondent
terminated his services;
(b) He (the Applicant) was
not given an opportunity to defend himself;
(c) He was not referred to medical specialist on his health condition before he was terminated;

The Applicants case in

Industrial Court

n Continued on Page 4

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MECA EMPLOYERS CONSULTING AGENCY

SUMMARY: CASE AWARDS

JOHOR BAHRU LABOUR COURT: KBR/10101/2015/0317
BETWEEN
EMPLOYEE COMPLAINANT/ CLAIMANT
AND
COMPANY X THE COMPANY
COUNSEL FOR THE EMPLOYEE
COUNSEL FOR THE COMPANY

COMPLAINANT/ CLAIMANT HIMSELF

MS. NATALIE CHONG OF MECA

THE Claimant was first employed as Technician on 1 Oct

1999 in the Tooling Department
with a basic wage of RM1,300.00
per month. His last drawn salary
was RM2,380.00 per month as a
MouldMaker. In 22 Dec 2014, the
Claimant was issued with a Warning Letter for damaging a mould.
He refused to accept the Warning
Letter as he claimed that he did
not damage the said mould. From
the following day onwards, the
Claimant refused to step into the
Tooling Dept and was seen hanging out in the canteen and prayer
room throughout normal hours.
On 15 Jan 2015, the Claimant submitted a request in writing for a
transfer to Storekeeping Dept.
The Company did not process the
Claimants request immediately
as there was no immediate vacancy available.
It was only on 26 March 2015
where the Claimants transfer was
effected into the Storekeeping
Dept as a Storekeeper/ Material
Handler. On 28 April 2015, barely a month later, the Claimants
supervisor in the Storekeeping
Dept instructed him to perform
certain tasks. The Claimant was
unhappy about it and claimed
that it is not part of his job scope.
He immediately walked out from
the Department and refused to
return. He was however reporting
to work but continued hanging
about at the canteen and prayer
room. He repeated the same the
following day. The supervisor approached him and requested for
him to return to work and he refused. On 12 May 2015, the Claimant sent a letter to the Company.
The contents of the letter, inter
alia, alleged that the Company
has breached his terms of employment by transferring him
to the Storekeeping Department
without issuing a transfer letter.

In the same letter, he stated that

he would like to tender his resignation effective from 12 May
2015. At the same juncture, the
Claimant also put in his application for annual leave and medical leave, the dates of which are
within the 2 weeks duration after
his effective resignation date.
The Claimant alleged that his
termination was unlawful. He
filed a claim at the Labour Department for termination benefits based on 15 years of service,
amounting to RM27,271.35.
The main issue here was
whether the Company had terminated the employee (if so, termination benefits may be payable)
or whether the employee voluntarily resigned from employment.
The Labour Court held in favour of the Company on the
grounds of judgment that was deliberated at length by the Officer
of the Labour Court, the gist of it
are outlined hereinbelow:

n From Page 3

medical leave from 22/10/2008 until

25/11/2008 which made the Company to issue a show cause letter on
25/11/2008 requesting his medical
certificates and medical report;
(b) A medical report dated
2/12/2008 from the Applicants doctor on his ability to work pending his
review on 24/12/2008;
(c) The Applicant failed to submit medical report as requested by
the 1st Respondent but continued
to be on unpaid medical leave from
26/1/2009 onwards until 20/5/2009;

(d) He renewed his PMA certificates for the machines owned

by the Company; and
(e) He attended seminars
organized by the Department
of Health and Safety in order to
maintain his license.
1st Respondents case at the
Industrial Court
(a) The Applicant failed to inform his immediate superior on his

(i) Whether the employee

falls within the scope of EA
1955 by virtue of being a manual labour (ML)
Whilst the Court agreed that
the Company, through its learned
Counsel, managed to establish
that he was not a ML in his last
position as a storekeeper, the
Court decided that since the
Claimant was only a storekeeper for a short period of time i.e.
slightly more than a month, the
Claimants position prior to being
a storekeeper was the deciding
factor. The Court thus held that
the Claimant was manual labour
by virtue of being a Mouldmaker.
By so doing, the Court had locus
to decide whether the Claimant
was entitled to termination benefits under Employment (Termination & Lay-Off Benefits) Regu-

lations 1980.
(ii) Whether it was indeed
true that there was a fundamental breach that was committed on the terms of employment of the Claimant that
enables the Claimant to walk
out constructive dismissal but
it is then superseded by the
delay of time of the Claimant
to act, which then enables the
Company to rely on the doctrine of condonation
The Court deliberated at
length on this issue, particularly from the point of time where
the Claimant was issued with a
warning letter on 22 Dec 2014
for damaging a mould; up to the
point of time where the Claimant
tendered his resignation letter on
12 May 2015, coupled with the application for AL & submission of
multiple MCs for the remaining
notice period.
The deciding factor on this issue was vide the cross examination, best reproduced as below:
Soalan: Anda menyatakan
anda duduk melepak di kantin
atau surau sepanjang tempoh
antara 22 Dis 2014 hingga 25 Mac
2015?
Pengadu: Ya
Soalan: Mengapa?
Pengadu: Sebab saya ingin menerima gaji saya seperti biasa.
Soalan: Walaupun tanpa membuat apa-apa kerja?
Pengadu: (Tiada respon)
Soalan: Jika benar Syarikat
melanggar terma-terma kontrak
pekerjaan, mengapakah anda
tidak meninggalkan Syarikat serta-merta? Mengapa anda duduk
melepak di Syarikat dan menerima gaji seperti biasa antara

(d) The 1st Respondent, in addition to the paid sick leave in year 2008
and 2009, paid the Applicants salary
for 61 days in 2008 and 1 month in
2009. He was also allowed to use the
Company assigned vehicle, free fuel,
mobile phone and lap top until the
date of his dismissal; and
(e) As a result of the Applicants
absence for more than 6 months,
the 1st Respondent was exposed to
a conviction for contravening the
statutory requirement of employing
a safety and health officer at its pro-

22 Dis 2014 hingga 25 Mac 2015?

Saya menyatakan anda berbuat
demikian kerana tiada pelanggaran terma-terma kontrak perkhidmatan, betul?
Pengadu: (Tiada respon)
The Claimants testimony and
failure to respond during the
cross-examination
established
this point.
(ii) Whether it was indeed
true that the Claimant has voluntarily resigned, in which the
effect therein is that the Claimant will not be entitled to termination benefits as Reg 4 of
Employment (Termination &
Lay-Off Benefits) Regulations
1980 which stipulates that termination benefits is not payable in 3 situations: when an
employee voluntarily resigns,
retired or committed a misconduct.
The Claimant tendered his resignation letter on 12 May 2015.
The content of paragraph 5 of the
said letter is reproduced:
Dari itu saya meletakkan
jawatan kerja saya bermula
12/05/2015.
The deciding factor on this issue was vide the cross examination, best reproduced as below:
Soalan: Sila rujuk pada D18.
Adakah anda yang menulis surat
perletakan jawatan ini?
Pengadu: Ya
Soalan: Sila baca perenggan 5
dalam D18.
Pengadu: Dari itu saya meletakkan jawatan kerja saya bermula 12/05/2015
Soalan: Anda faham maksud
ayat yang baru anda baca?
Pengadu: Ya

ject site which is mandatory under

the Occupational Safety and Health
Act 1994.
Decision of the High Court:(a) The Company succeeded in
proving that the dismissal was with
just cause and excuse;
(b) The Applicants position was
essential for maintaining the Safety
and Health of other workers of the
Company;
(c) To allow the Applicant to continue working would endanger his

Soalan: Menurut Peraturan

4(1) Peraturan-peraturan Kerja
(Faedah-Faedah Penamatan Dan
Renti-kerja Sentara) 1980, seseorang yang telah meletakkan jawatan secara rela hati tidak boleh
menuntut faedah penamatan
perkhidmatan daripada syarikat. Adakah anda mengetahui
tentang hal ini?
Pengadu: (Tiada respon yang
diberikan oleh Pengadu)
Soalan: Adakah anda bersetuju anda ingin berkhidmat untuk
sepanjang tempoh notis?
Pengadu: (Tiada respon yang
diberikan oleh Pengadu)
Soalan: Jika anda meletakkan
jawatan serta ingin berkhidmat
sepanjang tempoh notis, maka
saya dapat simpulkan di sini bahawa perletakan jawatan anda
adalah secara sukarela, betul?
Pengadu: (mendiamkan diri
agak lama) Puan (Pengerusi),
saya nak suruh Peguam saya
menjawab soalan ini.
Peguam Syarikat: Bantahan,
Puan. Hanya Pengadu yang boleh
menjawab soalan yang saya tanya. Jika peguam beliau yang menjawab soalan yang saya tanya,
maka ia menjadi hearsay!
Puan Pengerusi: Awak kena
jawab soalan yang ditanya.
Pengadu: Saya tidak akan
menjawab soalan ini.
Based on the 3 grounds of
judgment, the Court concluded
that the Claimant had actually
resigned from employment and
was not terminated by the Company. This resulted in the Company saving RM27,271.35 as pay out
for termination benefits. More
importantly, the reputation of
the Company remains intact and
sets as a precedent to the rest of
the employees

own safety as testified by his own

doctor whom stated that he is prone
to falling as his duty at the site involves climbing high stairs;
(d) According to the Applicants
own doctor it is not probable for the
Applicant to resume work as a Health
and Safety Manager since his hearing
is impaired; and
(e) The 1st Respondent had on numerous times requested the Applicant to provide a medical report on
his health condition which was not
adhered to by him.

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MECA NEWS

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Sexual harassment provisions:

a double whammy?
By Natalie Chong
WHEN a Company deals with any
act of major misconduct that could
potentially lead to termination of
an employees service, the primary
concern would then be whether
due inquiry has been complied
with, in particular whether the
twin pillars of the rule of natural
justice: audi alteram partem and
nemo judex in causa sua are adhered to. This is simply because filing a claim under Section 20 of the
Industrial Relations Act 1967 that
the termination was without just
cause or excuse is (unfortunately
for a Company), an unfettered right
of any employee who is dismissed
from work or considers himself as
having dismissed from work.
However, the same cannot be
said when dealing with cases pertaining to sexual harassment. An
employer needs to be cautious not
only when dealing with the alleged
employee but the complainant as
well. Why?
The Code of Practice on the Prevention and Eradication of Sexual
Harassment in the Workplace was
first formulated by the Malaysian
Government in 1999 wherein employers were urged to adopt internally. In 2012, the legislature further demonstrated that they mean
business when dealing with cases
on sexual harassment by amending the Employment Act 1955 (EA)
and introducing a whole new part,
i.e Part XVA: Sections 81A to 81G
governing issues regarding to misconduct of a sexual nature which
amounts to sexual harassment in
the workplace with regards to the

relationship between an employee

and employer.
Whilst the EA only provides protection to those within the scope of
the First Schedule, Section 81G EA
1955 makes it clear that Part XVA applies to every employee employed
under a contract of service, irrespective of the wages earned by the
employee. This ordinarily entails
that you could have a complainant
who is a Senior Manager earning a
lucrative salary of RM25,000.00 per
month and yet still able to seek recourse under Part XVA of the Employment Act!
But from the employers perspective, this spells trouble! Why?
To start with, Section 81B(1) provides that an employer shall inquire
into the complaint of sexual harassment upon receiving it. Be that as it
may, Section 81B(3) provides that
an employer may refuse to inquire
into any complaint of sexual harassment if the employer is of the
opinion that the complaint has previously been inquired into and no
sexual harassment was proven; or
the employer is of the opinion that
the complaint of the sexual harassment is frivolous, vexatious or is
not made in good faith.
The trouble begins for employers in Section 81B (4) of EA 1955.
It provides an avenue to any complainant who is dissatisfied with
the refusal of the employer to inquire into his complaint of sexual
harassment to lodge a complaint
to the Director General of Labour
(DGL). Section 81D (1) of EA 1955
further provides that if a complaint
of sexual harassment is made to the
DGL, he shall assess the complaint

Having a sexual
harassment
policy does not
mean that there
will be no sexual
harassment
complaints. The
implementation
of this policy and
the commitment
by the
Management to
eradicate sexual
harassment must
be clearly reflected
through the
rolling out phase
and at all times
thereafter.

and may direct the employer to

conduct an inquiry, if he thinks that
the matter should be inquired into.
Section 81D (2) further stipulates
that the employer must submit a
report of the inquiry to the Director General within 30 days from the

date of such direction. These provisions ordinarily gives the power to

the Director General to instruct the
employer and even interfere into
the findings of the employer.
Section 81F tops it all by providing that an employer could be liable to a fine up to a maximum of
RM10,000.00 if an employer fails
to:
inquire into complaints of sexual harassment;
inquire into complaints of sexual harassment when directed to
do so by the DGL; or
submit a report of inquiry into
sexual harassment to the DGL.
Most
successful
preventive
strategies and plans on sexual harassment require the involvement
of all those concerned and a clear
statement of intent. The statement
of intent should reflect a real commitment from all parties concerned
to recognize the importance of the
prevention and eradication of sexual harassment in the workplace.
This is usually accompanied by the
establishment of a written policy
on sexual harassment. Policies on
sexual harassment should also
set forth a detailed mechanism by
which employees can make complaints when sexual harassment
occurs.
Having a sexual harassment policy does not mean that there will be
no sexual harassment complaints.
The implementation of this policy
and the commitment by the management to eradicate sexual harassment must be clearly reflected
through the rolling out phase and
at all times thereafter. The main in-

gredients for any company should

be the prevention of cases and the
level of support or protection given
to a victim or a whistleblower who
witnessed an unacceptable behaviour.
In several of our appointments
as an external investigator for sexual harassment complaints, the most
often-quoted defence of the alleged
employee would be that he/she
(yes, it applies to both genders!) is
not aware that his words/ conducts/
gestures amounts to a sexual harassment. The big question here is
how informed are these employees
when it comes to the policy drafted
by HR? Was this covered during an
employees induction or were there
good communication forums, or
training sessions held for employees to understand these policies?
The season for annual dinners
will soon come. In the past, weve
often encountered incidences during a Companys annual dinner.
Whilst we do agree that it should
be an occasion to unwind and relax
with colleagues outside of the normal working environment we also
urge HR to prevent the occurrence
by clearly stating that this is not
free-for-all function. Incidents at
such functions can have a lasting
effect on an employees reputation,
their work relationships and even
their career prospects. The more
senior the employee, the more serious it usually is. Did you know that
an employee may just walk of on
grounds of constructive dismissal
on grounds that the company had
breached the contract of service by
failing to provide a safe a conducive
working environment?

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MECA NEWS

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MECA EMPLOYERS CONSULTING AGENCY

HISTORY OF MECA
By T. Balasubramaniam

We began operations on 10th February 1996 when my wife,

Saras and I, established Meca Employers Consulting Agency, a
firm dedicated to providing valuable HR support and advice to
companies in Malaysia. Our modest office was a room leased from
my brothers law firm M/S T.Siva & Co in SS2, Petaling Jaya.

In January 2008, I transferred MECA & MCIR

to Anna as Managing Director, and Dharmen
the Chief Executive Officer of the companies.
Dharmen has been responsible for building
up both the companies tp great heights.
His diligence brought about a steady
increase in membership, a staff of 21, the
acquisition of our current office in PJX in 2013,
and our Johor Bahru branch, headed by Victor
Gan. Our Penang office headed by Natalie will
be launched in a few months.

Our daughters, Shanu and Renu joined with their timely

LLB (Hons.) degrees within a few month. With strategic
goals and diligence, we took the helm and steered
towards a membership growth of 100 in our first year.

1996

1999

By January 1999, we purchased our own

premises in Leisure Commerce Square
in Bandar Sunway and added training in
Industrial Relations to our services. Meca
Centre for Industrial Relations Sdn Bhd was
founded for this purpose. At this office, our
fourth daughter Gowri joined the team as an
LLB graduate followed by our third daughter
Anna, and her husband Dharmen, both of
whom were in legal practice.

2008

2015

Today, we are the leaders in employers IR

solutions and education in Malaysia. We started
our first Industrial Relations Convention in 1997 at
Holiday Inn City Centre with 115 delegates.
In 2015, our annual convention numbers grew to 450 delegates. I am indeed
proud to see the progress that MECA has made in these 20 years and am
confident that it will soar to even greater heights in years to come.

CALENDAR OF EVENTS
MECA CENTRAL (Kuala Lumpur)
Jan 20

Malaysian Labour Law VS TPPA Its  Impact & Possible

Changes in 2016. Extra Bonus: New Minimum Wages Rates
2016 and its impact oan your  business

Feb 23

Misconduct in Employment and Domestic Inquiry Process

(including  investigation techniques for HR)

Mar 15,16&17

MECA SOUTH (Johor Bahru)

Jan 12

Updates to Labour Law in 2016 & Minimum Wages

Mar 9

Misconduct in Employment and Domestic Inquiry Process

(including investigation techniques for HR)

Apr

MECA North Opening (Penang)

Industrial Relations Boot Camp

Apr 12&13

Termination of Employment

Mar 23

Malaysian Labour Law VS TPPA Its Impact & Possible

Changes in 2016. Extra Bonus: New Minimum Wages Rates
2016 and its impact on your business

June 1&2

1st MECA South IR Convention 2016

July 20&21

Crucial IR Skills for HR & Non-HR

Apr

MECA North Opening (Penang)

Aug 16,17&18

Industrial Relations Boot Camp

Sept 14&15

Employment Act 1955: The Amendments

Nov 16&17

Reducing Manpower Cost Seminar

Apr 4&5 Reducing Manpower Cost Seminar

May

New Minimum Wages Rates 2016  Seminar

July 14

Managing Difficult Employees and Unsatisfied Performance

In Your Organization

Oct

12th MECA Industrial Relations Convention

Nov 17

Crucial IR skills for HR & Non-HR

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MECA EMPLOYERS CONSULTING AGENCY

MECA NEWS

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annivEDITION ary

NEW CONSULTANT
MR. Andrew Pastors obtained his
LL.B (Hons) from the University
of London and then Proceeded
to obtain his CLP with Brickfields
Asia College. He has a passion for
litigation and his area of interests
mainly include Civil and Criminal
Litigation.
Prior to joining MECA, Andrew worked for 3 years in a civil

litigation firm in Kuala Lumpur

doing general litigation where
he was involved in and exposed
to diverse areas of law including
Winding-Up & Bankruptcy, Probate, Divorce and also contractual
claim disputes. Andrew has also
handled numerous interlocutory
court applications, assisted in
multiple civil trials and has done

WELCOME NEW MECA MEMBERS

sentencing mitigation in the Kuala

Lumpur Criminal Courts.
Andrew is a fluent speaker in
English and Bahasa Malaysia. He
currently operates in a dual capacity as a Legal Advisor/ Consultant
in MECA and as a Legal Assistant
in MECAs panel solicitor firm,
Messrs. Dharmen Sivalingam &
Partners.

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MECA NEWS

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MECA EMPLOYERS CONSULTING AGENCY