TERMINATION can be a traumatic experience for an employee. It is worse when he does not know what to do about it. And when family, friends and acquaintances give lots of advice, there may be more ambiguity and confusion.
Under the laws of our country, all employees are protected in terms of their employment. The services of an employee cannot be terminated unless there is just cause, or in simple words, good reasons when viewed objectively and not only from the employer’s point of view.
But what if there is a clause in the employment contract that allows termination by say, one month’s or two months’ notice?
The answer is, such a clause is not valid and operative, and the employer cannot rely on it to justify termination. It is as good as the clause not being there.
Next, what are the options for an employee who has been fired, especially if he thinks there is no just cause? What are his rights and what can he do?
For such an employee, it is best that he takes steps under the Industrial Relations Act 1967 to bring his grievances to the Industrial Court, where he can seek compensation. In the absence of just cause, the employee will receive appropriate and reasonable compensation.
However, a person cannot just walk into the Industrial Court and file a claim. It involves first going through a certain process under the Act.
There are many courts and departments all over the place. Where does one go? Sometimes, people end up going to the Labour Court, which is not the right place for these cases.
When an employee has his employment terminated on one month’s or two months’ notice and he is aggrieved by the action, his first step must be taken within 60 days of the letter of termination.
He should lodge a complaint with the Director General of Industrial Relations. The Industrial Relations Department comes under the Human Resources Ministry.
At the department, the employee needs to fill up forms and should take along with him the basic documents such as his appointment and termination letters.
Many today are more inclined to do things online but I strongly suggest going to the department personally if the dismissed employee is serious about his grievances.
When making his complaint, he needs to sign the relevant documents and keep a copy that has obtained an acknowledgement from the officer. It is crucial to observe the 60-day time limit.
What usually happens next is a filtering process, whereby the department writes to the complainant and the former employer, asking them to attend a meeting where a department officer will speak to both parties separately and together. The aim of this mediation is to resolve the disputes amicably.
However, as far as I know, this has been mostly unsuccessful because the expectations of the employer and the employee are different. As such, the matter comes to an end with nothing happening during the mediation session.
The officer reports the outcome to the director general, who then refers the matter to the Human Resources Minister, who in turn may send it to the Industrial Court.
It was reported in June that Human Resources Minister M. Kulasegaran wanted to do away with this filtering process. This is indeed very beneficial for the employees because once a complaint is made, the matter is likely to go straight to the Industrial Court.
This will speed up the process it sometimes takes a while for the Industrial Relations Department to arrange for mediation and to subsequently report on the outcome.
Why is it better to aim for the Industrial Court instead of the ordinary courts, such as the magistrate’s court or the Sessions Court?
An ordinary court will only consider the matter on the basis of pure contract under common law. If the letter of employment allows termination by one month’s notice, the court will say it is fine and the employee will get nothing.
However, the Industrial Court does not rely merely on common law. It relies on the industrial relations law (through the Industrial Relations Act), which seeks to provide better protection and remedy for the employees.
The Act even gives the Industrial Court the power to reinstate an employee in his previous job. However, the Industrial Court more often chooses to award compensation to the employee.
Another good thing about going to the Industrial Court is that if the employee loses the case, he will not have to pay costs to the other side, unlike in the ordinary courts.
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