termination

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: A guide to how the Industrial Court assesses sexual harassment complaints

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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.

Sexual harassment in the workplace is a topic that has recently attracted a lot of attention and discussion. While most Malaysian employers have been relatively slow to respond, we have seen an increased focus in the past year from businesses and employers seeking to understand the often complex issues relating to workplace sexual harassment. There continues to be a noticeable increase in momentum of employers putting in place anti-harassment policies and processes, learning how to handle sexual harassment complaints, and ensuring that employees attend external and internal education and training sessions.

As I pointed out in my 2022 employment law forecast (See: “Employment law: 2021 review and 2022 forecast”), this focus on addressing workplace sexual harassment is expected to intensify in 2022, particularly with the increasing public discourse, and in view of Malaysia’s first specific sexual harassment legislation expected to be passed in the first half of the year (See: “Malaysia’s Anti-Sexual Harassment Bill tabled in Parliament”). In November 2021, the government shared that 775 sexual harassment cases had been reported and investigated by police — it’s clear that this is only the tip of the iceberg, and we will see more cases surfacing as awareness and education continues.

While the Anti-Sexual Harassment Act and the “Tribunal for Anti-Sexual Harassment” will provide a new specific avenue for sexual harassment complaints, in the context of the workplace, there has already been some recourse for employee-victims, and scope for employers to take action. Sexual harassment is a workplace misconduct punishable by termination, and victims of sexual harassment who can show that an employer had not properly handled a complaint could potentially claim to have been constructively dismissed (See: “Case Update: Employer’s poor handling of workplace assault and harassment complaints amounts to constructive dismissal” for one example). Of course, as already mentioned, as there has only recently been proper awareness and education in relation to workplace sexual harassment, over the years too many employee-victims have suffered in silence.

With the increase in sexual harassment complaints in recent years, the Industrial Court has had the opportunity to refine and clarify its approach in handling such cases. Sexual harassment can be very complex, as there are many types of sexual harassment. Evidence can also be controversial, as many instances of sexual harassment take place in private, without witnesses. To review the current position of the Industrial Court when it comes to adjudicating sexual harassment complaints, we will look at the recent case of AH v. Cagamas Berhad [2021] 4 ILR 284. This case update will cover the following topics:

  1. How the law defines sexual harassment.
  2. The burden of proof in sexual harassment misconduct.
  3. Are witnesses or corroboration necessary for sexual harassment cases?
  4. Does a delay in making a sexual harassment complaint render the claim invalid?
  5. Is “it was just a joke” a valid defence?
  6. Examples of what constitutes sexual harassment.

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

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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Employment law: 2021 review and 2022 forecast

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I am kicking off 2022 by looking back for a quick recap of the 2021 Malaysian employment law and industrial relations highlights, and a brief outline of what I expect to be the key developments in the coming year.

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Case Update: Another company’s retrenchment of employees due to COVID-19/MCO deemed unfair by Industrial Court

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.

There was a very sharp rise in retrenchment numbers in Malaysia in 2020, particularly in the aftermath of the first Movement Control Order (MCO), which started in March 2020. We are now seeing Industrial Court decisions as a result of unfair dismissal complaints lodged by employees who had their employment terminated in the first half of 2020, and I expect we will continue to see a steady succession of these decisions in the coming months.

As I have often explained, while employers are legally entitled to dismiss employees where the retrenchment is for genuine reasons, employers must be able to show that the termination was not improperly motivated. I recently highlighted one case where the Industrial Court decided that the retrenchment of an employee, which the employer said was due to the challenges caused by the COVID-19 pandemic, was an unfair dismissal: “Case Update: Industrial Court finds retrenchment due to effects of COVID-19/MCO was unfair”.

In this article, I summarise four recent awards involving retrenchments carried out at the same time by the same employer, which the employer said was due to the effects of the MCO and pandemic:

  1. Mohamad Sahrul Bin Kahulan v. Lourdes Medical Services Sdn Bhd (Award No. 1295 of 2021).
  2. Gawri A/P Muthadakan v. Lourdes Medical Services Sdn Bhd (Award No. 1296 of 2021).
  3. Lalitha A/P Subramaniam v. Lourdes Medical Services Sdn Bhd (Award No. 1297 of 2021).
  4. Rasalechumi A/P Kanagaratnam v. Lourdes Medical Services Sdn Bhd (Award No. 1298 of 2021).
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