Case Update: Employer’s poor handling of workplace assault and harassment complaints amounts to constructive dismissal

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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.

Most employers are now aware of the importance of having clear policies and processes when it comes to handling complaints and disciplinary issues. It’s the norm for businesses hiring a reasonable number of employees to have in place various codes of conduct, guidelines, and policies.

Despite this, an employer that receives an employee complaint and acts on it could still be at risk of being deemed to have breached the terms and conditions of employment, or severed the employment relationship, due to shortcomings in how the complaint was handled.

The Industrial Court recently considered these issues in Justin Maurice Read v. Petroliam Nasional Berhad (Petronas) (Award No. 965 of 2017). In this case, the claimant (the Employee) had complained of being assaulted and harassed in the workplace. The Employee then claimed that the manner in which these complaints were handled by the company (the Employer) entitled him to claim to have been constructively dismissed.

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Case Update: Court of Appeal considers whether an employer can dismiss an employee for insubordination

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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.

Insubordination is where an employee wilfully disobeys or ignores an employer’s legitimate instructions. Malaysia’s Industrial Court has established via many previous decisions that insubordination is capable of being a serious misconduct which is sufficient to destroy the employment relationship and justify a dismissal.

However, as is the case for employee misconduct in general, not all instances of insubordination will amount to just cause for an employer to dismiss an employee. The Court of Appeal considered this issue in Ngiam Geok Mooi v. Pacific World Destination East Sdn Bhd [2016] 6 CLJ 395.

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Case Update: High Court rules entitlement to back wages limited to unexpired duration of fixed-term contract

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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.

The issue of calculating back wages due to an unfairly dismissed employee has become fairly settled, at least when it comes to the upper limit of the award. The Second Schedule of the Industrial Relations Act states:

1. In the event that backwages are to be given, such backwages shall not exceed 24 months’ backwages from the date of dismissal based on the last-drawn salary of the person who has been dismissed without just cause or excuse.

However, the recent High Court case of Malayan Banking Bhd v. Mahkamah Perusahaan Malaysia & Anor [2017] 2 CLJ 70 considered a unique scenario, where the employee was dismissed while under a probationary period as part of a fixed-term contract. The Second Schedule of the Industrial Relations Act provides the following in respect of probationers:

2. In the case of a probationer who has been dismissed without just cause or excuse, any backwages given shall not exceed 12 months’ backwages from the date of dismissal based on his last-drawn salary.

The applicant (the Employer) applied to the High Court for an order to quash the decision of the first respondent (the Industrial Court). One of the issues that the High Court had to consider in this case (which is the issue we will focus on in this case update) was whether the second respondent (the Employee) should only have been entitled to back wages for the unexpired portion of her fixed-term contract (which was 5 months and 17 days), and not the 12-month maximum provided in the Industrial Relations Act for probationers.

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DLA Piper’s updated Guide to Going Global series — Malaysia content

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I’m delighted to share that the DLA Piper Guide to Going Global series has recently been updated.

This series includes the Employment practice area, and I provided the Malaysia content for this section.

The Employment guide has information on 56 jurisdictions. DLA Piper is one of the largest law firms in the world, but does not have a Malaysia office, and I am the sole Malaysian contributor in the series.

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