S.20(1) of the Industrial Relations Act 1967 (IRA 1967) provides that where a workman is dismissed without just, cause or excuse, he must make his representation in writing to the Director General to be reinstated in his former employment and file the said representation at the office of the Director General of the Industrial Relations Department (IRD) nearest to the place of employment from which the workman was dismissed[1].
Malaysian employment law requires employers to have “just cause and excuse” before terminating their employees. Unlike common law wrongful dismissal, the statutory unfair or unjustifiable dismissal provides better protection in terms of security of tenure in employment[2]. In the case of Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & Anor[3], Gopal Sri Ram JCA (as he was then) stated that:
“The legislature has willed that the relationship of employer and workman as resting on a mere consensual basis that is capable of termination by the employer at will with the meagre consequence of paying the hapless workman a paltry sum of damages should be altered in favour of the workman. It has accordingly provided for a security of tenure and equated the right to be engaged in gainful employment which may not be forfeited save and except for just cause and excuse. Due recognition of this higher status must therefore be accorded by our Courts if they are to act in obedience to the will of Parliament.”[4]
However, it is pertinent to note that it is still very common for employers to be ignorant and oblivious about this. Similarly, majority of the employees are not aware that they have been afforded such a right.
LIMITATION PERIOD OF FILING THE REPRESENTATION
Under s.20(1A) of the IRA 1967, an employee who feels he has been unfairly dismissed without just cause or excuse, must lodge the representation within 60 days from the date of his termination[5]. Failure to observe the time limit would be fatal to the complaint as illustrated by Raja Azlan Shah CJ in the case of Fung Keong Rubber Manufacturing (M) Sdn. Bhd. v Lee Eng Kiat & Ors[6].
In the case of V Sinnathamboo v Minister of Labour and Manpower[7], Muhammad Azmi J referred to the strict requirement of the limitation period and stated:
“…to conclude otherwise would result in serious consequence, in that the Industrial Court would be flooded with state appeals, and employers would be left in a state of uncertainty as to when a dismissed workman would exercise his right under s.20(1). Such state of affairs would certainly not help in promoting industrial peace in this country.”[8]
Therefore, if a representation is indeed made more than 60 days, the Director General cannot entertain the representation.
PLEADING REINSTATEMENT
An employee who seeks to exercise his statutory right to lodge a representation must seek for reinstatement to his former employment. Whether or not reinstatement will be awarded depends on the facts and circumstances of each individual case decided on case-to-case basis. In the case of Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan[9], Gopal Sri Ram JCA had clearly stated that:
“Reinstatement is the primary remedy in industrial law, and an acceptance of it or an unreasonable rejection of it by the workman must be treated as having put an end to the dispute”.[10]
In industrial jurisprudence, the usual remedy for an unfair dismissal is an order of reinstatement and backwages. In the event the remedy for reinstatement is not appropriate or conducive in the circumstances of the case, the Industrial Court may then award compensation in lieu of reinstatement. The Federal Court in the case of Dr. A Dutt v Assunta Hospital[11] clearly established that in a reference under s.20(3) of the IRA 1967[12], the Industrial Court is empowered to award compensation in lieu of reinstatement.
NOTE: In the case of Sanbos (Malaysia) Sdn Bhd v Gan Soon Huat[13], the Court of Appeal held that the requirement to plead reinstatement as a remedy was only material at the time when representations are made to Director General of the IRD. Upon the case being referred to the Industrial Court, it is no longer a requirement to plead reinstatement.
CONCILIATION IN THE INDUSTRIAL RELATIONS DEPARTMENT
Pursuant to s.20(2) of the IRA 1967, the Director General upon receiving the representation under subsection (1) shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at.[14]
The IRD will upon receiving the representation, invite both the employer and employee for a conciliation meeting. Conciliation seeks to create harmony, compatibility, agreement, or consensus. It is a process where a third party intervenes to mediate between the disputing parties. The third party is the Director General or his authorized officer who can assist the parties in resolving the issue in dispute. There will be two meeting held at the IRD between the parties in dispute.
The role and function of the conciliator has been set out in the Federal Court case of Minister of Labour and Manpower & Anor v Wix Corporation South East Asia Sdn. Bhd[15]. as follows:
“s.20(2) of the Act plainly does not impose any duty on the Director General of his representative to decide or determine questions of any kind and to ascertain the law and the facts. He is merely required to deal with the situation in the way he thinks best to get the employer and the employee to settle the dispute.”[16]
In reality, it would normally be an inquiry as to whether the employer is willing to reinstate the employee or whether the employer is prepared to pay an agreed sum as compensation to the employee taking into account time of service in the company. If agreed to by parties, would lead to a settlement of the dispute whereby a settlement agreement will be drawn up and called the “Memorandum Persetujuan” containing the terms of settlement. On the other hand, if the conciliation fails under subsection (2), the Director General shall refer the representation to the Court as per s.20(3) of the IRA 1967.[17]
Pursuant to s.20(6) and s.20(7) of the IRA 1967, employers and employees can be represented by any other person except an advocate and solicitor at the IRD conciliation meetings.[18]
INDUSTRIAL COURT PROCEEDINGS
S.20(3) of the IRA 1967 provides as follows:
“Where the Director General is satisfied that there is no likelihood of the representations being settled under subsection (2), the Director General shall refer the representations to the Court for an award.”[19]
Once a matter is referred to the Industrial Court, the Industrial Court will issue a Form F which is the Notice of Mention of Case to the employer (“Company”) and employee (“Claimant”) to notify the parties that the matter is now in the Industrial Court and to inform them the details of the first mention. The parties will be able to appoint their respective solicitors to represent them at the Industrial Court.[20]
S.30(6A) of the IRA 1967 provides:
“Notwithstanding subsection (6), the Court in making an award in relation to a reference to it under subsection 20(3) shall take into consideration the factors specified in the Second Schedule.”[21]
As per the Second Schedule of the IRA 1967[22], the backwages that is awarded by the Industrial Court shall not exceed twenty-four months from the date of his dismissal and in the case of a probationer any backwages given shall not exceed twelve months from the date of his dismissal.
In the case of Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Bhd (Sabah) & Anor[23], it was stated that:
“In our view, it is in line with equity and good conscience that the Industrial Court, in assessing quantum of backwages, should take into account the fact, if established by evidence or admitted, that the workman has been gainfully employed elsewhere after his dismissal. Failure to do so constitutes a jurisdictional error of law. Certiorari will therefore lie to rectify it. Of course, taking into account of such employment after dismissal does not necessarily mean that the Industrial Court to conduct a mathematical exercise in deduction, what is important is that the Industrial Court in the exercise of its discretion in assessing the quantum of backwages, should take into account all relevant matters including the fact, where is exists, that the workman has been gainfully employed elsewhere after his dismissal. This discretion is in the nature of a decision-making process.”[24]
CONCLUSION
Based on the discussions above with reference to decided cases, to bring a claim under s.20 of the IRA 1967, there are fundamental and essential principles that need to be complied with.
References:
Ali Mohamed Dr. A.A., & Sardar Baig Dr. F.B., Procedure for Unfair Dismissal Claims in Malaysia (A Division of Reed Elsevier (Singapore)) 2009
Industrial Relations Act 1967
Dr A Dutt v Assunta Hospital [1981] 1 LNS 5
Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Bhd (Sabah) & Anor [2001] 3 CLJ 541
Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors [1980] 1 LNS 156
Hong Kiang Ngan v Mahkamah Perusahaan Malaysia and Anor [1995] 3 MLJ 369
Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Anor [1997] 1 CLJ 665
Minister of Labour and Manpower & Anor v Wix Corporation South East Asia Sdn Bhd [1980] 2 MLJ 248
Sanbos (Malaysia) Sdn Bhd v Gan Soon Huat [2021] MLJU 498
V Sinnathamboo v Minister of Labour and Manpower [1981] 1 MLJ 251
[1] S.20(1) Industrial Relations Act 1967
[2] Dr. Ashgar Ali & Dr Farheen Baig, Procedure for Unfair Dismissal Claims in Malaysia (A Division of Reed Elsevier (Singapore)) 2009, 47
[3] Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & Anor [1997] 1 CLJ 665
[4] IBID
[5] S.20(1A) Industrial Relations Act 1967
[6] Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors [1980] 1 LNS 156
[7] V Sinnathamboo v Minister of Labour and Manpower [1981] 1 MLJ 251
[8] In Hong Kiang Ngan v Mahkamah Perusahaan Malaysia and Anor [1995] 3 MLJ 369, Gopal Sri Ram JCA noted that the Industrial Relations Act “is a piece of beneficent social legislation by which Parliament intends the prevention and speedy resolution of disputes between employers and their workmen.”
[9] Hong Leong Equipment Sdn. Bhd. v Liew Fook Chuan & Anor [1997] 1 CLJ 665
[10] IBID
[11] Dr A Dutt v Assunta Hospital [1981] 1 LNS 5
[12] S.20(3) Industrial Relations Act 1967
[13] Sanbos (Malaysia) Sdn Bhd v Gan Soon Huat [2021] MLJU 498
[14] S.20(2) Industrial Relations Act 1967
[15] Minister of Labour and Manpower & Anor v Wix Corporation South East Asia Sdn Bhd [1980] 2 MLJ 248
[16] IBID
[17] S.20(3) Industrial Relations Act 1967
[18] S.20(6) Industrial Relations Act 1967 & S.20(7) Industrial Relations Act 1967
[19] S.20(3) Industrial Relations Act 1967
[20] Form A – Application for permission to be represented by a legal practitioner & Form B – Warrant of Authority will be filed by solicitors
[21] S.30(6A) Industrial Relations Act 1967
[22] Second Schedule of the Industrial Relations Act 1967
[23] Dr James Alfred (Sabah) v Koperasi Serbaguna Sanya Bhd (Sabah) & Anor [2001] 3 CLJ 541
[24] IBID
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