Question for Topic 7 (Dismissal)

Imagine that your boss suddenly walks over to your desk and hands you a letter that only says:

"The Company has decided to terminate your employment. Pursuant to your employment contract,
you will be given a one month notice period, taking effect from the date of this letter".

Basically, you have just been fired.

Your boss would not tell you the reason you're being fired, but says you would be receiving a termination
package.

Question: Based on the above situation, put yourself as someone who know employment law, what
would be your suggestion when you were dismissed according to the law?

Malaysian employment law requires employees to have “just cause and excuse” before terminating
their employees. The courts have put employees security of tenure in employment on the same
footing as that of ‘property right’.

Dismissal means the act of voluntarily terminating a criminal prosecution or a lawsuit or one of its
causes of action by one of the parties. or a judge's ruling that a lawsuit or criminal charge is
terminated. or an appeals court's act of dismissing an appeal, letting the lower court decision stand.
or the act of a plaintiff dismissing a lawsuit upon settling the case. Such a dismissal may be
dismissal with prejudice, meaning it can never be filed again, or dismissal without prejudice,
leaving open the possibility of bringing the suit again if the defendant does not follow through on
the terms of the settlement.

There are two branches of dismissals, one is direct dismissals and constructive dismissals. A
direct dismissal, as the name suggests, involves the more straightforward situation where an
employer decides to end the employment relationship, and dismisses the employee, usually by way
of a formal letter of termination. As a base position, the courts allow employers a reasonable
amount of space in which to make commercial decisions for their businesses, including the
dismissal of employees. The courts would not interfere with a decision to directly dismiss an
employee, unless it can be proven that the managerial power was not exercised in good faith (for
example with an underlying element of victimization or unfairness).
A constructive dismissal is less straightforward. Unless an employment contract contains a
variation clause which allows the employer to unilaterally vary the terms of employment (which
is very rare), an employer cannot insist on changing the terms. An employer who insists on
unilaterally changing the terms of employment is deemed to have breached the employment
contract, and in fact in law would usually be deemed to have repudiated (or cancelled) the contract.
Even something like publicly harassing or humiliating an employee can give rise to a constructive
dismissal.

Based on the cases above, the workman received unfair dismissal without just cause or excuse
even though the employee get one month notice. According to the case employer is using direct
dismissal to the employee.

This is provided under section 20(3) of the Industrial Relations Act 1967 (IRA 1967) which states
that any workman who feels that he has been dismissed without just cause and excuse also referred
to as unfair dismissal, can write in to the Director General of Industrial Relations in order to request
for his job back:

Section 20(3) of the Industrial Relations Act 1967:

"Where a workman, irrespective of whether he is a member of a trade union of workmen or

otherwise, considers that he has been dismissed without just cause or excuse by his employer, he
may make representations in writing to the Director General to be reinstated in his former
employment..."
 • The workman must file a complaint to with the Director General
within sixty days after being fired
Step 1

• Upon receipt of the representations the Director General shall take

such steps as he may consider necessary or expedient so that an
Step 2 expeditious settlement thereof is arrived at;

• Upon receiving the notification of the Director General under

subsection (2), the Minister may, if he thinks fit, refer the
Step 3 representations to the Court for an award.

Step 4
Where an award has been made under subsection (3),
the award shall operate as a bar to any action for
damages by the workman in any court in respect of
wrongful dismissal

Step 5
This section shall not apply to the dismissal of a workman in
circumstances arising out of a contravention of section 59 where
proceedings have been commenced before a court in respect of an
offence under subsection 59(1); where, while proceedings are
pending under this section, proceedings arising out of the same
dismissal are commenced before a court in respect of an offence
under subsection 59(1), the proceedings under this section shall not
be proceeded with further.
In the moment, getting fired can feel earthshattering. But for such a seemingly catastrophic event,
getting fired is actually quite common. Once you get the news, you need a game plan. You’ll want
to carefully plan your next moves while at the same time ensuring that you have an exit that is
seamless for all parties involved. First thing first, After you receive notice about your termination,
it is never too early to start prepping for job applications. Start by sprucing up your resume with
the details from your most recent job, as well as any skills you obtained during it. And, if it’s been
a while since you last updated your resume, you might want to consider a complete resume
overhaul — these templates are a great place to get inspiration. Besides finding jobs through job
search websites , your network is also a great place to start scouting for future opportunities . You
can start by sending check-in messages to former colleagues, scheduling informational interviews
in companies or industries you’re interested in working for and building your online professional
presence. While you should make it clear to people in your network that you’re in the market for
a new gig, there’s also no need to openly broadcast that you were fired, unless you’re asked directly

Related Case to Unfair Dismissal

The former employee of a petroleum company was awarded compensation of close to RM1.2
million after the Industrial Court ruled that he had been unfairly dismissed by the Sarawak-based
firm. Norzaifizy Khalid Nordin, a lead facilities specialist at Murphy Sarawak Oil Co Ltd, was
issued a retrenchment notice on Aug 15, 2015. The company said it had been suffering a severe
decline in profits and a reduction in business due to a significant drop in global oil prices . The
company had taken several cost-cutting measures which had proven ineffective. The company had
no choice but to release Norzaifizy from employment with two months’ salary in lieu of notice.
However, Norzaifizy filed a claim in court seeking reinstatement. Norzaifizy, represented by S
Muhendaran and Chong Wan Loo, also wrote to the company seeking clarification but it
maintained its stand. The claimant argued that that his retrenchment was a breach of the principles
of natural justice and an act of victimisation..
Decision of the Court

The court held that the dismissal was without just cause or excuse. It was for the company to
discharge the onus of justifying the departure from the last-in, first-out principle in retrenching
employees by citing substantive and reliable evidence. The company had abandoned the principle
and instead adopted its own criteria . The claimant had commited no misconduct neither had he
performed below expectations to warrant the dismissal.

The court is of the opinion that the company has adequately complied with the Code of Conduct
for Industrial Harmony although not entirely .It was not a suitable case for reinstatement but that
the rightful remedy would be to award the claimant with compensation. The claimant had joined
the company on May 1, 2008. His last drawn salary was RM33,537 plus RM1,700 in cost of living
allowance.

References

https://asklegal.my/p/my-boss-just-fired-me-for-no-reason-what-can-i-do-now

https://www.thestar.com.my/opinion/columnists/law-for-everyone/2018/08/09/what-to-do-next-
when-youre-fired-employment-is-well-protected-under-malaysian-law-if-there-is-no-jus

https://mahwengkwai.com/unfair-dismissal-from-termination-to-industrial-court-award/

https://www.glassdoor.com/blog/things-to-do-if-you-get-fired/

https://www.businessinsider.com/what-to-do-right-after-youve-been-fired-2014-10?IR=T

https://www.freemalaysiatoday.com/category/nation/2019/07/04/worker-wins-rm1-2-million-
compensation-for-unfair-dismissal/