dismissal

Case Update: Dismissal of employee arrested by Malaysian Anti-Corruption Commission (MACC) deemed unfair

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In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

Employers are frequently caught off-guard when they have to respond to a sudden development that threatens to damage their corporate image or reputation. These days, a common example would be where an incident involving an employee goes viral on social media, in a negative way.

Although social media virality does spread a lot faster than traditional media, the legal issues are not new. I have advised employer-clients many times over the years on the proper process to follow when employees are the subject of negative media coverage, including instances where employees have been arrested.

Despite the urgency and sensationalism that comes with an employer being named in media reports, employers have to be clear-headed in responding to such situations (See: “Handing employee dismissals properly under Malaysian law”), as an over-reaction can have expensive consequences.

This was illustrated in the recent Industrial Court award in Abas Tuah v Malaysia Airports Holdings Bhd (Award No. 1749 of 2022).

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Can employers insist that employees working remotely return to the office?

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One of the biggest changes to career and workplace culture as a result of the pandemic has been remote working. While the concept of remote working and the even more extreme “digital nomad” lifestyle is not new, there is no doubt that the pandemic and resultant lockdowns greatly accelerated the adoption of remote working, particularly in the more traditional industries and professions.

We have previously featured the views of employees on how remote working has changed the way their work (“Lessons from Lockdown: How COVID-19 and remote working have changed the way we work”), and also published insights from young lawyers on the legal industry’s experience with remote working (“COVID, MCO, and the Malaysian legal industry — Part 1: Money (paycuts, revenue), remote working, and technology”).

Employers now want employees back in the office

However, in the second half of 2022, this trend reversed. Employers who in 2020-21 seemed to have been convinced of the viability of allowing employees to work remotely or flexibly began to introduce policies mandating that employees needed to be in the office for a specified number of days each week.

In many industries, employees have been reluctant to return fulltime to the office, and compliance with these new directives has been mixed — it is common for employers to report that a “three days per week in the office” policy sees employees turning up for only two days each week.

It has been in the news in the past week that Apple are threatening disciplinary action against employees who fail to come into the office three days a week. Apple are reportedly tracking employee in-office attendance and will give employees escalating warnings, which could result in termination.

Many multinational businesses are similarly seeking to enforce these new directives more strictly in the different jurisdictions they operate in, and are finding that doing so can be legally complicated.

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Case Update: Employee dismissed after sexual harassment complaint deemed unfairly dismissed due to improper process

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In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

Malaysian employers are still coming to terms with how to properly handle sexual harassment complaints. While many employers have been introducing anti-harassment policies and processes, and organising awareness and training sessions for employees, mistakes are still often being made in responding to complaints of workplace sexual harassment.

In a previous Case Update, I wrote about a case which illustrated how a mismanaged harassment complaint could expose an employer to a constructive dismissal claim (“Case Update: Employer’s poor handling of workplace assault and harassment complaints amounts to constructive dismissal”). I have also previously shared an Industrial Court case which serves as a useful overview for how the court views workplace sexual harassment (“Case Update: A guide to how the Industrial Court assesses sexual harassment complaints”).

This Case Update reviews the Industrial Court award in Lim Po Seng v Resort Villa Golf Course Berhad (Award No. 471 of 2023), where the court decided that an employee who was dismissed pursuant to a sexual harassment complaint was unfairly dismissed.

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Newly Updated: “Guide to Malaysian Employment Law”

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We have just updated our very popular Guide to Malaysian Employment Law. These updates take into account the significant changes to the Employment Act as a result of the Employment (Amendment) Act 2022 and Employment (Amendment of First Schedule) Order 2022 which came into force on 1 January 2023.

Since the Guide was launched in October 2021 (See: “Just launched: ‘Guide to Malaysian Employment Law'”) it has attracted a constant stream of readers, still averaging in the high thousands of unique views every month.

As mentioned when the Guide was launched, the topics in the Guide have been selected based on feedback from in-house counsel and HR professionals, and cover the usual high-level background legal information they would like to have on-hand, particularly as professionals from other jurisdictions considering employment issues in Malaysia. The feedback we have received on the Guide has been overwhelmingly positive, and we believe it is a unique resource.

We hope the updated Guide will continue to prove useful to all readers. (Guide to Malaysian Employment Law)

Case Update: Federal Court rules that an employer cannot use reasons discovered post-dismissal to justify an employee dismissal

Marcus van GeyzelLeave a comment

In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

It is not uncommon, in instances where an employee has been dismissed, for new facts or circumstances to be discovered post-termination which are then treated as “justifying” the dismissal in the eyes of the employer.

For example, where an employee has been dismissed for poor performance, the employee or employees who then take on the dismissed employee’s responsibilities may discover a trail of errors or negligence that ran deeper than was known at the point of termination. In other cases, the employee may have been dismissed for one reason, but the employer later uncovers evidence of other misbehaviour or misconduct which the employer then takes as further proof that the dismissal was “the right decision”.

While these post-dismissal discoveries may make an employer rest more easily, convinced that dismissal was the correct option, what would happen if the employee brings an unfair dismissal claim? Would an employer who dismissed an employee because of Reason A be then able to justify the dismissal by later saying that, after the termination, they also discovered Reason X, Y, and Z, and that therefore even if Reason A was weak and insufficient to justify termination, the court should also consider Reasons X, Y, and Z?

This was the issue that went all the way to the Federal Court recently, in Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] 4 ILR 417.

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Case Update: Court of Appeal rules that employee demotion amounts to constructive dismissal

Marcus van GeyzelLeave a comment

In this Case Update series, I share summaries of recent Malaysian court decisions to explore the current approach taken by the courts when deciding on employment-related issues. You can find all the posts in the series by clicking here, including case updates on other legal areas by TheMalaysianLawyer co-founder Lee Shih.

It is recognised that it is a management prerogative for companies to decide on the best way to run their business, and that the courts will be slow to interfere with such management decisions. However, we do still see the courts stepping in when the decisions made by employers are deemed to be unfair, or in breach of the employment contract. I previously wrote about a case where an employee transfer was deemed by the Industrial Court to constitute a constructive dismissal (Case Update: When an employee transfer can amount to a constructive dismissal).

In this case update, I consider the Court of Appeal (“CoA”) case of Ng Teck Fay v. Mahkamah Perusahaan Malaysia & Anor. [2021] 10 CLJ 73, where the CoA found that an employee demotion or re-grading amounted to a constructive dismissal.

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