Friday, August 30, 2019

Legal Framework †Employement Act Essay

The company complained that Encik Pokok’s application for leave was only received by Encik Bunga on the 26th November 1996. The leave application was not approved because it was not following the company procedure and secondly, reasonable excuse was not given. Encik Pokok was dismissed without internal inquiry done. Encik Pokok claimed that he had submitted his leave application on the 23rd November 1996. His application was pass to his friend to be given to his supervisor, Encik Daun. He assumed that his leave application was authorized. Encik Pokok said that he went to the Pejabat Kadi on the 23rd November 1996 to settle his sister in law’s case and the next two days, to celebrate their engagement. For the 26th November 1996, he claimed he went to the labour office in Temerloh with his friend. Due to fatigue, he did not go to work. He made a verbal leave application to the company through one of the company’s officers who was available at that time. Encik Pokok claimed that he was unlawfully terminated. He complained that internal inquiry had to be done prior to his termination because it violates Section 14 of the Employment Act 1955 and Item 35 of the joint agreement. Power to make awards 35. —(1) A Court shall have power in relation to a trade dispute of which it has cognizance to make an award (including an interim award) relating to all or any of the industrial matters in dispute. (1A) A Court shall not consider a dispute relating to the dismissal of an employee or make an award relating to the reinstatement of an employee except in circumstances arising out of a contravention of section 82. 2) Notwithstanding subsection (1A), where an employee considers that he has been dismissed without just cause or excuse by his employer, in circumstances other than those arising out of a contravention of section 82, he may, within one month of such dismissal, make, through his trade union, representations in writing to the Minister to be reinstated in his former employment (3) The M inister may, before making decision on any such representations, by writing under his hand request the Commissioner to inquire into the dismissal and report whether in his opinion the dismissal is without just cause or excuse instated in his former employment. (4) The Minister, if he decides to deal with the representations himself, shall before making a decision thereon give an opportunity to the employer to make representations in writing as to the reasons why he considered the dismissal of the employee to be justified. 5) If, after considering the representations of the trade union and of the employer (if any) and any report made by the Commissioner under subsection (3), the Minister is satisfied that the employee has been dismissed without just cause or excuse he may, notwithstanding any rule of law or agreement to the contrary — (a) direct the employer to reinstate the employee in his former employment and to pay the employee an amount that is equivalent to the wages that the employee would have earned had he not been dismissed by the employer; or (b) direct the employer to pay such amount of wages as compensation as may be determined by the Minister. 5A) The employer shall comply with the direction of the Minister under subsec tion (5). (6) The decision of the Minister on any representations made under this section shall be final and conclusive and shall not be challenged in any court or in a Court established under this Act. 7) Any direction by the Minister under subsection (5) shall operate as a bar to any action for damages by the employee in any court in respect of the wrongful dismissal (8) An employer who fails to comply with the direction of the Minister under subsection (5) shall be guilty of an offence and shall be liable on conviction by a District Court to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both. 9) Where an amount to be paid under subsection (5) is not paid in accordance with the direction of the Minister and the employer has been convicted of an offence under subsection (8), the amount, or so much thereof as remains unpaid, shall be recoverable by a District Court as if it were a fine and the amount so recovered shall be paid to the employe e entitled under the direction. Answer: As the defending lawyer, the Company did not make a correct decision in terminating Encik Pokok. The reason is because Encik Pokok has attempted to inform the Company by submitting the leave application form to Encik Daud through his friend on 23rd Nov 1996. Encik Pokok also made a verbal application for leave on the 26th November 1996 through a company official on duty at that time. This would mean that technically he was not absent for more than two consecutive days. Therefore ; According to Employment Act 1955, section 15(2), An employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence. The Company also failed to conduct a domestic inquiry to give Encik Pokok a chance to defend himself and offer reasonable excuse why he failed to turn up for work. Therefore Section 14(1) of the Employment Act applies. According to Employment Act 1955 section 14(1), An employer may, on the grounds of misconduct inconsistent with the fulfillment of the express or implied condition of his service, after a due inquiry – (a) Dismiss without notice the employee; Habitual absenteeism (of less than two days at a time but on a frequent basis) would be defined as unauthorized absence from work on a certain number of days per month over a 6 month period. Initially warnings would be given, but if the absence persists, the employee may face dismissal. The failure to be punctual would be treated the same way as habitual absenteeism. In this case, the company failed to show whether Encik Pokok is a habitual absentee by not producing historical records of his attendance. However reported cases show that a breach of contract and termination are dealt as separate issues. As such a breach of contract may not lead to an automatic termination of employment. The consequence of such a breach would depend on the conditions of employment. Conclusion Encik Pokok was a victim of wrongful dismissal and the company must reinstate him immediately. The company has the right to issue written warning for the 24th and 25th November 1996 for unauthorized leave. Question 3 (b) You are defending lawyer for the Company. Has the Company made a correct decision in terminating Mr. Good . Discuss? Case facts: Mr. Good was charged with sleeping while on duty on 12th June 1997 at 7. 30pm in the music room at Tan Sri William Cheng’s house in Petaling Jaya. Mr. Good was instructed Vide a letter on 17th June 1997 to attend an inquiry on 20th June 1997 to hear the charge. Mr. Good says that he had been dismissed without due inquire. He denied that he had committed the offence alleged of and argued that the company had merely acted on suspicion. Answer: Company did not make a correct decision. This is due to the fact that Mr. Good was not caught sleeping red handed and Mr. Bad and Miss Sexy’s allegations were only implied. There were actually no eye witnesses. The court may conclude as it is only allegation as there is no evidence of Mr. Good committing the misconduct, as such the Company even failed to: 1) The Company did not conduct a domestic inquiry. The company should call for domestic inquire as it is an internal inquiry into some alleged misconduct by an employee. The main objectives of the domestic inquiry are to establish whether the alleged misconduct is proven or not and if the misconduct is proven, to recommend a punishment that is appropriate to the offence committed. The complainant is normally the management of the company but sometimes, can also be the victim of the alleged misconduct. At the domestic inquiry, the employer will present its case and the employee is given an equal opportunity to defend himself against the charges of misconduct. Under Employment Act 1955 Section14 (1) where an employer may on the grounds of misconduct inconsistent with the fulfillment of the express of implied conditions of his service, after due inquiry – 2) Absence of show cause letter or letter of disciplinary, As to Mr. Bad and Ms. Sexy’s statement on Mr. Good was caught committing the same offence 3 years ago, there were no records as the company did not issue any show cause letter or letter of disciplinary action. Conclusion The Company did not follow the proper dismissal procedures in accordance to Employment Act 1955, which relates to misconduct.

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