Articles of Law -- Limited rights

What recourse is there for an employee who finds that he has been unjustly dismissed?

ARTICLES OF LAW by BHAG SINGH

ANYONE who feels aggrieved over a wrong perceived to be done to him could seek remedy in the courts of the land. However, there are many limitations that stand in the way and the aggrieved person may end up not getting what he hoped for.

To start with, the underlying matter that gives rise to the feeling of being aggrieved must have a factual basis. In order to exert his rights and seek relief, the aggrieved party must be able to show that a wrong has been done to him and that the party against whom he is complaining, has no justification for doing so.

A person who has his employment terminated will undoubtedly feel aggrieved. But the employer may have good reasons for asking the employee to leave. If this is the case, the employee would have no remedy.

If the employee does not agree with the action taken against him, what options does he have?

Such is the case with a reader who sought help from the Malaysian Trade Union Council (MTUC) after his employment was terminated.

Not being a member of a union, he was advised to lodge a complaint with the Industrial Relations Department and to deal with the matter on his own.

Subsequently he lodged a complaint under Section 20 of the Industrial Relations Act 1967 which reads: “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 re-instated in his former employment.”

No effect

Our reader said he received a letter conveying the decision of the Human Resources Minister that it was not necessary to refer his complaint to the Industrial Court. After that, he did not receive any more letters. The reader said he has not done anything else because he is still jobless and cannot engage a lawyer.

Of course, our reader will not receive any more letters from the minister. This is because the decision not to refer the matter to the Industrial Court has already been made, so there is nothing more for the minister to say. The ball is at the complainant’s feet and he has not taken further action. Hence any right under the Industrial Relations Act 1967 that he may have had would have ceased to exist.

This is because access to the Industrial Court in such cases is only through reference by the minister. A person who is aggrieved over his dismissal cannot go direct to the Industrial Court to file a claim or pursue the matter.

If the minister declines to refer a complaint to the Industrial Court, the matter ends there unless the decision is challenged. The challenge in such a case involves commencing proceedings in the High Court to seek an order of certiorari to quash the minister’s decision and at the same time seek an order of Mandamus to direct the minister to refer the complaint to the Industrial Court.

This power of the minister has not always been used in the best of ways. Cases which should be referred to the Industrial Court have not been referred to, whereas cases which should not be referred to the Industrial Court, have been referred to the court.

Aggrieved individuals do not always have the financial strength or emotional determination to take on the combined resources of the corporate employer and the Human Resources Minister.

In any event, if the individual wants to challenge the decision, he has to initiate proceedings not later than six weeks from the date of the decision, unless an extension of time is obtained. If this is not done, the right to go to the Industrial Court is lost forever.

The other option

Of course, the other option is to go to the civil courts such as the Magistrate Court, Session’s Court or High Court. But given the present jurisdiction of the courts, such a resort is most unlikely. Unlike relief in the Industrial Court which requires initiation of the complaint within two months, the civil courts allow a much longer time to seek relief.

However, the civil law courts will not usually order an employer to reinstate the employee. This is because re-instatement would constitute “specific performance.” Leaving aside employees in government service where the situation is different, the courts are traditionally not inclined to order specific performance of a contract where personal services are involved.

Thus in the common law courts, the employee may only get compensation on the basis of notice that ought to have been given and was not given, or salary in lieu of notice not paid. It is unlikely that the person will get any other form of compensation.

What if the Contract of Employment does not state that notice is required to be given for termination of contract? Does this mean that the employee will not have any right to notice or compensation in lieu of notice?

The absence of a stipulation in a Contract of Employment for notice to be given for termination does not mean that no notice need to be given at all. When such a situation arises, the court will consider and decide what is a reasonable notice that ought to have been given in the circumstances.

In deciding what is a reasonable notice to be given, the court will examine the surrounding circumstances to see what kind of notice is ordinarily given to a person holding such a position in a similar industry.

This is then used as a measure to decide on the notice period that ought to have been given. Based on this period, the court will order the employer to pay compensation if it is found that the termination is wrongful or without justification.

A complaint can also be made under the Employment Act 1955, though this will not lead to the individual getting his job back. However, the complainant must come within the scope of the Employment Act 1955 to seek such relief.

What the complainant may get, if the situation warrants, are any payments payable but not paid or the payment of termination benefits where applicable. But he will not get his job back.

All said, it is not a completely hopeless situation for someone who finds that he has been unjustly dismissed. He can still approach various organisations that provide legal aid. And there are also many lawyers who do pro bono work without any publicity.