An employee losing his job must know whether he wants his job back, or merely what is due.
WHEN an employer and employee part company, there are consequences and implications for both sides.
For an employee, unless there is another job waiting, it will involve loss of assured regular income.
For the employer, especially the small enterprise, there will be a measure of disruption by reason of the engagement of a new employee and the need to train or to familiarise such a person with the employer’s work culture.
In so far as the employer is concerned, the employee cannot be prevented from leaving.
All that the employer can do is to require the employee to either give notice or pay salary in lieu of notice, if the employee leaves without notice or notice shorter than what is required.
For different reasons, it is not practical for the employer to sue the former.
There are occasions where the employee has signed a contract to serve the employer for a number of years.
This can be because the employer has financially supported the employee’s training or studies.
In exchange, the employee has agreed to serve the employer for a stipulated number of years and failing to do so, he has to pay an agreed sum as compensation.
Even then, the employer may not end up getting the amount that has been agreed to.
The employer is likely to be required to prove what has actually been spent on the employee for the training.
Further, there may be apportionment of the amount payable on the basis of the time that the employee has worked.
The laws have been structured on the basis that employees are a weaker party vis-Ã -vis the employer.
This may not necessarily be the case in some, if not most, cases in the present day.
Two words, dismissal and termination, require elaboration.
The former, in the past, implied a person being asked to instantly leave on account of misconduct or incompetence or such other reason.
The latter, however, referred to situations where the contract was terminated on the basis of prior agreement.
Today, the distinction between the two has become blurred, if not extinct.
It is now a question of whether bringing of the employment relationship to an end by the employer is justified or not.
The employer generally no longer has the right to terminate employment on a contractual basis.
An employee has more options in the absence of misconduct or incompetence or such attributes. The employee is assured of lifetime employment.
Those who work for government and statutory bodies are governed by law and subsidiary legislation.
Apart from the rare few who are only governed by the common law, all others come within this scope of the Industrial Relations Act 1967 and the Employment Act 1955.
An employee losing his job must know what he actually wants.
If he is dissatisfied as he has been asked to leave for no good reason and wants his job back, he must seek relief under the Industrial Relations Act 1967 for reinstatement.
In many cases, the Court may consider the ill feelings that exist or have been caused and decide to order compensation instead.
Yet in other cases, compensation in lieu of reinstatement may be ordered because the employee is already well settled in another job. The discretion and power is vested in the Industrial Court.
It is not for the employee to demand compensation.
Where an employee does not want the job but merely what is due, he can resort to what is now known as the Labour Department, under the Employment Act 1955, to seek payments which are due and ought to be paid but have not been paid.
This could be salary or payments earned by way of entitlement or salary in lieu of notice.
By virtue of the Employment (Termination And Lay-Off Benefits) Regulations 1980, provisions exist for payment of compensation based on how long an employee has worked.
Under these Regulations, if an employee has worked for two years or less the employee is entitled to 10 days wages per year.
An employee is entitled to 15 days wages if he has worked for two years but less than five years.
Beyond that the employee would be entitled to 20 days wages for having worked for more than five years.
The payment is prorated if the employee has only worked part of the year.
Under the Employment Act 1955, if a complaint cannot be resolved initially, under the Director-General’s Enquiry both parties are given an opportunity to be heard.
Many employees are under the misconception that if they make a complaint under the Employment Act 1955 they will immediately and automatically become entitled to the termination benefits set out above, based on the number of years they have worked.
The termination benefits only apply in a situation where the termination is based entirely on contractual provisions or in a lay-off or retrenchment.
However, there are instances where this may not be payable.
By virtue of Section 14 of the Employment Act 1955, an employer may on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry dismiss without notice the employee, downgrade the employee or impose any other lesser punishment as he deems just and fit.
Where there has been misconduct and there are justifiable reasons why the employee has been asked to leave, the provisions as to payment based on years of service will neither be payable nor relevant.
Whilst the Industrial Relations Act 1967 applies throughout the peninsula, the situation is different with regards to the Employment Act 1955.
Sabah has its own Labour Ordinance 1950 and in Sarawak, the Sarawak Labour Ordinance 1952 has substantially similar provisions.
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