Malaysian employers can fire you even if they can't prove ALL your misconduct. Here's howabout 2 years ago Matdura S.
Imagine this scenario: You’ve been working in the same company for more than 15 years now. You’ve been getting promotions year after year, until you finally reached the top of the hierarchy today. Now that you’ve become a senior manager, you have power to do a lot of things...which you take advantage of during that time.
But your glory days didn’t last long because you come into office one day—just to receive a surprise letter from your boss, which states that you’ve been terminated for 30 over misconducts committed while you were senior manager. Shocked and upset about how unfair your company has been—you decide to take some sort of legal action against them for firing you without any proof on all 30 misconducts.
Now if you’re an avid AskLegal reader, you might have read at least one of our employment articles about being fired (we think about this a lot)—and you might be familiar with the laws in the event you’re fired.
But if you’re not, fear not as we’ll briefly discuss it below...
Your boss cannot fire you for no reason
In Malaysia, employers are required to give their employees a reason when firing them. This is known as termination with just cause and excuse. Under the law, this means that if your employer fired you without giving you a proper reason, or gives you an invalid reason, you might be able to bring them to court. But take note: This only applies to employers. Employees don’t have to provide a reason when they resign.
According to Section 20(3) of the Industrial Relations Act 1967 (IRA 1967), employees who feel that they were dismissed without just cause and excuse (aka unfair dismissal), can write in to the Director General of Industrial Relations in order to request for his job back:
Now there’s no set definition for what amounts to just cause and excuse, because what is considered a just cause (reasonable cause), differs from one situation to another. It can range from employee misconduct such as theft, fighting in the office and continuous tardiness. The employer must also be able to prove the misconduct, which led to the unfair dismissal.
But whether or not your actions lead to you being fired, your boss MUST give you a reason for firing you.
But in 2017, an employee brought a case against the company he worked for because he claimed that he was unfairly dismissed. But the Industrial Court told him something else...
He was fired for 28 misconducts, but the company only proved 7
In Dewalaxhmana A/L S Param v Weststar Aviation Services Sdn Bhd, the employee who was fired brought a case against his company in the Industrial Court. The employee claimed that he was unfairly dismissed, after getting a show cause letter from the company for 28 charges of misconduct he had allegedly committed.
The employee was previously the HR Director in the company, and earned up to RM33,500/month. He was even given his own company car and driver. So basically he was ballin’ hard with the position he held in the company.
Now listing all 28 charges would mean you’d finish reading this article 3 days from now. So we’ll just fast forward to the part where both parties went to court, because the employee felt that he was unfairly dismissed by the company.
At the Industrial Court, the employee brought a case claiming that he was fired abruptly, and wasn’t given a chance to defend himself for the 28 charges against him. But the company didn’t actually bring up all 28 charges at court, but only relied on 7 wrongdoings he conducted. Some of these wrongdoings include:
- Convincing the company to give him an increment
- Manipulated an employee and made her end her probation period earlier
- Misleading the management on EPF/tax deductions
- Raising his voice on another employee of the company
Now as we mentioned earlier, it’s the responsibility of the company to show that the employee had committed misconduct to the court. So when it came to proving this, the employers brought a few witnesses to further back their allegations against the employee.
And based on that proof, the court concluded that the employee was only liable for 4 misconducts, instead of 7 that the company had initially argued. Now this might seem a bit unfair, as the employee now seems to have been punished severely for the misconducts—by being fired, based on only 4 charges.
But the main job of the Industrial court, is to place more importance on fairness rather that following proper legal procedures in cases involving unfair dismissal. Section 30(5) IRA 1967 states:
In other words, the court has the responsibility to make sure decisions are made based on the severity of the misconduct, and the facts of the case. So in this story, the courts felt that they could still rely on the 4 charges against the employee—instead of all 7 which was initially brought to court. Here’s how the court put it:
The misconducts involving the...charges that the Court found him guilty were serious in nature. The Claimant had breached the fundamental terms of...confidence between employer and employee by his actions. The Court opines that no reasonable employer would in this case have retained the Claimant in its employment on the...charges as above. It was not a suitable case for letting the Claimant off lightly with just a warning – YA Puan Noor Ruwena Binti Dato’ Mohd Nurdin, Chairperson of the Industrial Court.
So although the company could not prove all the misconduct committed by the employee, the court felt that the company managed to prove the severity of some of the charges against the employee—which makes the dismissal against him fair.
But if you’ve ever been fired and you really didn’t do anything to deserve it…
You can sue your boss and your company
Now if you feel that you have been unfairly fired, especially during this period—you may bring a case to the Industrial Court. The court will take into account the welfare of employees who have been unfairly dismissed. Those wanting to file a claim for unfair dismissal are given 60 days from the time they are dismissed to do so, and this can be found in Section 20 of the Industrial Relations Act 1967:
But here’s some good news! The government has clarified in a set of FAQs that the 60 day limitation will only start from the time the MCO is lifted, and not from the day you were dismissed.
Also, if the court finds that you have been unfairly dismissed, you’re entitled to certain benefits. Employees who have been unfairly dismissed are entitled to claims stated under the Employment (Termination and Lay-off Benefits) Regulations 1980.
However, some companies have their own policies and regulations on termination benefits. So, it would be best to check with your company first.