However, the employer is not obliged to dismiss the employee in good time if the situation justifies immediate dismissal, for example because of serious misconduct. It must be submitted within 60 days of the employee`s termination date. However, if an employee is dismissed without notice, he may make a declaration at any time during the notice period, but no later than 60 days after the expiry of the dismissal. Under section 20(3) of the Industrial Relations Act 1967 (IRA 1967), workers who believe they have been dismissed without just cause and without excuse (also known as unfair dismissal) may write to the Director General of Industrial Relations to reclaim their employment: Disguised dismissal occurs when an employee is forced to leave his or her employment against his or her will due to the employer`s conduct. This is often a consequence of the employer`s breach of contract in a serious incident or a series of serious incidents taken together. B for example a downgrade for no reason. The main acceptable reasons for firing employees are misconduct (which has different nuances) and poor job performance (which is explicit). A few weeks ago I attended a seminar on employment and some of the participants sitting next to me are either business owners and human resources managers of start-ups, SMEs and large multinationals in Malaysia. As they spoke to them, they told me that they were very concerned about hiring new employees and that most of their concerns were mainly related to the legal and ethical management of employee dismissals. In general, the court allows employers to make decisions to effectively run the business, including firing employees. The court will only intervene if the dismissal was unjustified. To avoid unfair termination, termination must be for « legitimate cause or excuse. » To succeed in an action for constructive dismissal, the employee must prove that the employer has violated part of the employment contract.

If you resign because you don`t like your office or don`t get along with a colleague, it`s not considered constructive dismissal. Quitting because your employer can`t create a safe work environment is something else. This is a violation of your employment contract. If you leave in direct response to this violation, you are entitled to compensation. Before firing an employee, employers must ensure that they have a potentially fair reason. Failure to provide fair grounds for dismissal will result in unfair dismissal if it has a major impact on both the employer and the employee. Material fairness underlies the decision, that is, there must be a valid reason that led to the decision on the employee`s dismissal. Severance pay is payable if the termination is effected by reduction or at the close of business.

Case law states that if the employer`s financial situation permits, and in particular if the reduction measure is implemented to increase efficiency and benefits, fair and reasonable benefits must be provided. Currently, a monthly salary for each year of service is considered fair and reasonable. However, for employees who fall within the scope of the Labor Code, the law stipulates that the minimum statutory severance pay for an incomplete year of service, calculated for the following month, is as follows and proportionate: And on the basis of this evidence, the court concluded that the employee is responsible for only 4 offenses, instead of 7 that the company had initially invoked. Now, this may seem a bit unfair, as the employee now appears to have been severely punished for misconduct – by being fired, based on only 4 charges. EA employees are entitled to overtime pay under the Labour Code. Under the Employment Act, an EA employee is paid for overtime worked beyond normal working hours at a rate of at least 1.5 times his or her hourly wage, regardless of the basis on which his or her wage rate is set. « Normal working time » here is the number of hours of work agreed between an employer and an employee in the service contract to be the usual hours of work per day. All employees are effectively protected against unfair dismissal. Although an employer is authorized to dismiss an employee, the employee may challenge the dismissal if he or she does so unfairly.

If an employee believes that he or she has been unfairly dismissed, he or she may in principle declare himself or herself in writing to the Director General of Industrial Relations (« DGIR ») of the Ministry of Industrial Relations in Malaysia in order to be reinstated in his or her previous employment. . . .