Employee Dismissal Procedure In Malaysia

Topics: Employment, Termination of employment, Constructive dismissal Pages: 19 (4190 words) Published: April 22, 2015
ORGANIZATION, EMPLOYEE AND
COMMUNITY RELATIONS

EMPLOYEE’S DISMISSAL PROCEDURE IN MALAYSIA:
AN OVERVIEW

TABLE OF CONTENTS

Items

1. Introduction
2. Definition Of Employee's Dismissal
3. Misconduct And Types Of Misconduct
4. Malaysia's Law Covering Employee's Dismissal
5. Dismissal Procedures
6. Protection Against Wrongful Dismissal
7. Statistic of Dismissal Case In Malaysia
8. Court Cases Involving Employees Dismissal
References

2

INTRODUCTION

Dismissal is one of the important aspects when discussing relationship between an organization and its employee and part of employment relationships. Dismissal itself is considered as the last choice of punishment by the employer to terminate the contract of employment with the employer.

Dismissal is the severest punishment which can be awarded since it will create unneeded outcome whether to an organization or the affected employee. In some cases, the dismissal decision itself has been challenged back by the employee and brought to the court to be heard.

Realizing the unneeded effect of dismissal against the organization, some executives and managers try to avoid making that decision by using alternative approaches when dealing with „problematic‟ employee like transfer the employee to another supervision or department, promote the employee to another area and in some cases arrange the employees to resign on their own accord.

Malaysia‟s Employment Act 1955 has clearly stated that the right to terminate and dismiss employee is a management prerogative, yet dismissal as a matter of fact is one of the most difficult task for any executive or manager. As a matter of fact employee in this country can only be terminated due to valid and justified reasons of disciplinary cases or misconduct and poor work performance.

Definition of Employee
There are two acts specifically deal with employment relation in Malaysia, The Employment Act (EA) 1955 and Industrial Relation Act (IRA) 1967. Both acts define what the term „employee‟ in Malaysia means is. Ayadurai (1998) stated that the term „workman‟ is defined broadly in the IRA than the term „employee‟ defined by EA.

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In EA, an „employee‟ is considered as any person or class of person:

a) Included in any category in the first schedule to the extend specified therein; or b) In respect of whom the Minister of Human Resources make an order under section 2(3) or section 2A.
While Industrial IRA defines „Employee/Workman‟ as any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute

Contract of Employment
The EA has define contract of employment as a "contract of service" which means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract.

IRA 1967 define "contract of employment" as means any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman.

DEFINITION OF EMPLOYEE'S DISMISSAL

The term dismissal in Malaysia legal perspective is actually originated from termination of employment contract. This is what Ayadurai (1998) explain; the term „Termination‟ in Malaysian Industrial Law refers to the termination of employment relationship, but as this relationship is a contractual one, it is identified with the termination of the employment contract.

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Where the contract is terminated by the employer because of perceived misconduct of the employee, then the...

References: employment contract. This is what Ayadurai (1998) explain; the term „Termination‟ in
Malaysian Industrial Law refers to the termination of employment relationship, but as this
Ayadurai (1998) also refers “dismissal” as termination of a particular kind (due to specific cause)
and moreover one moreover that is easily distinguishable from any other kind
Idid, S. Ahmad (1997) explained that there is no doubt dismissal is the severest punishment
which can be awarded to delinquent employee by his employer for some act of misconduct, but
(2003). While in Malaysia‟s legal perspective misconduct is an “improper behavior, intentional
wrong-doing or deliberate violation of a rule or standard of behavior…Any conduct inconsistent
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Ayadurai (1998) stated that the Industrial Court confirmed that it is for employer to determine
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