MALAYSIAN INDUSTRIAL RELATIONS & EMPLOYMENT LAW Author: Maimunah Aminuddin

1. MALAYSIAN INDUSTRIAL RELATIONS & EMPLOYMENT LAWAuthor: Maimunah Aminuddin Chapter Nine Discipline at the Workplace Malaysian Industrial Relations & Employment Law

2. Preview • Discipline at the workplace • Challenging disciplinary action • Disciplinary action for misconduct • Procedure prior to a dismissal for misconduct • Holding a domestic inquiry • Dismissal for unsatisfactory performance • Frustration of contract • Ending of a fixed-term contract Malaysian Industrial Relations & Employment Law

3. Discipline at the workplace • Industrial harmony and productivity require discipline and compliance with rules at the workplace. • Employees can challenge disciplinary action taken by employer if they consider it unfair. Malaysian Industrial Relations & Employment Law

4. Employees’ right to challenge disciplinary action In order to challenge disciplinary action taken against them, employees can: • File a complaint at the Labour Department, if they are within scope of EA • Lodge a complaint at the Department of IR • File a claim at the High Court Malaysian Industrial Relations & Employment Law

5. Employees’ right to challenge disciplinary action, cont. • Labour Department can order any penalty set aside if the penalty means loss of wages to the employee. • Labour Department can order employer to pay termination benefits, wages in lieu of notice, and wages in lieu of annual leave if a dismissal unfair. Malaysian Industrial Relations & Employment Law

6. Employees’ right to challenge disciplinary action, cont. • Industrial Relations Department conducts conciliation, assists the parties to find a solution to the dispute. • If conciliation unsuccessful, Minister may refer dispute to the Industrial Court. • The Court will decide whether the dismissal was with or without just cause or excuse. Malaysian Industrial Relations & Employment Law

7. Employees’ right to challenge disciplinary action, cont. The Industrial Court may: • Uphold the dismissal of the employee • Order reinstatement • Order the employer to pay compensation to the employee Malaysian Industrial Relations & Employment Law

8. Employees’ right to challenge disciplinary action, cont. The High Court can order an employer to pay wages in lieu of notice if it finds an employee has been unlawfully dismissed. Malaysian Industrial Relations & Employment Law

9. Disciplinary action for misconduct • Employers have the right to punish an employee for misconduct. • Penalties include: • Warnings • Demotion • Suspension without pay • Dismissal Malaysian Industrial Relations & Employment Law

10. Disciplinary action for misconduct, cont. • Misconduct can occur on the job or off the job. • Misconduct can be minor or major. Malaysian Industrial Relations & Employment Law

11. Disciplinary action for misconduct, cont. An employee may be dismissed for misconduct, BUT the misconduct must be major and a fair procedure must be followed prior to the dismissal. Malaysian Industrial Relations & Employment Law

12. Disciplinary action for misconduct, cont. Procedure prior to Dismissal • Investigate and collect evidence of any alleged misconduct. Determine what rules, implied or express, have been broken. When and where did misconduct occur? Who was involved? What exactly happened? • If prima facie case exists, prepare for domestic inquiry (DI). Malaysian Industrial Relations & Employment Law

13. Disciplinary action for misconduct, cont. • Decide whether to suspend employee prior to DI. • Prepare for DI. • Draft charges and give to employee togetherwith notice that inquiry is to be held. • Appoint prosecuting officer. • Appoint secretary. • Appoint panel of inquiry, including chairman. Malaysian Industrial Relations & Employment Law

14. Disciplinary action for misconduct, cont. Hold Domestic Inquiry A DI follows the format of a criminal court trial but is simplified. • Panel of Inquiry chairman is responsible for smooth conducting of the DI. Chairman must ensure employee is treated fairly and justly. • Employer must prove the guilt of the employee to the satisfaction of the Panel of Inquiry. Malaysian Industrial Relations & Employment Law

15. Disciplinary action for misconduct, cont. • Employer opens the DI by introducing witnesses and evidence. Examination and cross-examination of witnesses takes place. • Employee offers evidence in his defence, if any. Examination and cross-examination of witnesses takes place. • After final closing submissions, Panel of Inquiry make a decision, put it in writing with justifications and submit to the employer. Malaysian Industrial Relations & Employment Law

16. Other situations leading to termination of employment Dismissal for unsatisfactory performance • No DI necessary • Employee must be warned, and given time to improve. Employer should provide assistance so that employee can improve. Malaysian Industrial Relations & Employment Law

17. Other situations leading to termination of employment, cont. Frustration of Contract Employee’s contract may come to an endbecause itis frustrated by some eventbeyond control of employer or employeeincluding: • Serious illness or incapacity • Detention by the authorities for lengthy period • Withdrawal of required license Malaysian Industrial Relations & Employment Law

18. Other situations leading to termination of employment, cont. Ending of a Fixed-Term Contract • Fixed-term contracts end upon their expiry date • Fixed-term contracts may be brought to an end earlier than expiry date if employer has just cause or excuse to do so Malaysian Industrial Relations & Employment Law

19. Review • Discipline at the workplace • Challenging disciplinary action • Disciplinary action for misconduct • Procedure prior to a dismissal for misconduct • Holding a domestic inquiry • Dismissal for unsatisfactory performance • Frustration of contract • Ending of a fixed-term contract Malaysian Industrial Relations & Employment Law