ANSWER ALL QUESTIONS
Determine whether the following employees are within the scope of the Employment Act, the Sabah Labour Ordinance or the Sarawak Labour Ordinance. For each employee, explain their rights in the situations described.
a) Janet is a HR Executive earning RM1,800 per month. She is 8 months pregnant and has been on sick leave for most of the last 2 months. The company wants her to start her maternity leave immediately. Mimi is a Production Executive earning RM5,000 per month. She is now 5 months pregnant and the company has persuaded her to take 42 days instead of 60 days of maternity leave. (10 marks)
- Janet income for every month is RM 1,800, thus, according to First Schedule; she is covered by the Employment Act because her wages do not exceed RM 2,000 per month.
- Besides that, referring to Section 37 (1), every female employee shall be entitled to maternity leave for a period of not less than 60 days in respect of each confinement. Under this section also, there is a need to take a leave if a medical officer or the registered medical practitioner unable to perform her duties satisfactorily. The employee may be required to commence her maternity leave at any time during a period of 14 days preceding the date of her confinement as determined by medical officer or the registered medical practitioner. Next, under this section, there is also stated an employee shall not commence earlier than a period of 30 days immediately preceding the confinement of a female employee or later than the day immediately following her confinement.
- According to Section 60F, if Janet has been working for less than 2 years, she is entitled to get 14 days leave, 18 days if has been employed for 2 years and not more than 5 years, and 22 days for more than 5 years of service. 60 days if hospitalization is necessary, as may be certified by registered medical practitioner or medical officer. Thus, after 60 days have been used, it will be considered as unpaid leave.
- In conclusion, Janet has been on sick leave for most of 2 months, her employer may ask her to commerce the maternity leave 14 days before the confinement upon certified by registered medical practitioner or Janet may take the maternity leave prior to actual confinement for up to maximum 30 days before her due date.
- For the Mimi’s case, referring to Section 44A stated that the whole part on maternity protection is applicable to every female employee engaged under a contract of service irrespective of wages.
- According to First Schedule, she is not covered under the Employment Act because her wages exceed to RM 2,000 but under Section 69B, the powers of the Director General under section 69(1)(a) shall extend to employees whose wages per month exceed RM 1,500 but does not exceed RM 5,000 and the complaints must be on cash entitlement written in employment contract.
- Referring to Section 37(1), a female employee shall be entitled to maternity leave for a period of not less 60 consecutive days in respect of each confinement and entitled to receive from her employer a maternity allowance to be calculated. A female employee, who does not satisfy for maternity allowance, she may with the consent of employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner.
- Therefore, if Mimi is willing and fulfilled the condition to resume work by registered medical practitioner, she may take the 42 days instead of 60 days of maternity leave as requested by her company.
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