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

Case Updates (FB)

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.

Continue reading

Advertisements

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

Case Updates - red

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.

Continue reading