LS

Overview

In the year 2022, Malaysia continued to witness a slew of Industrial and Higher Court cases on employment issues as the courts moved to clear cases backlogged since 2020 due to Covid-19. Consequently, close to 3000 Industrial Court cases were decided in addition to a number of significant Higher Court decisions, some of which represent landmark decisions.

 

Over one day, we will share answers to these latest employment court decisions of 2022 with the ultimate objective of ensuring you continue to proactively manage your employee issues in line with the latest legal/IR developments. These court awards have been summarised with key learning points for your quick understanding and application to your organisation’s HR/IR processes.

 

What Answers You Will Gain from Attending This Session

You will find answers to the following questions/issues in our presentation of the latest awards from 2022:

 

Right of An Organisation To Dismiss a Union President

1. Where a union president goes to the press and calls for the company CEO’s resignation/termination, would an organisation be justified in dismissing the union president? (Landmark Federal Court decision discussing the ‘obligations of fidelity to an employer’ versus the ‘right of a union president to speak on behalf of his trade union member’s)

 

Right to Demote Someone In Senior Management

2. The right to demote an employee who commits a misconduct is available under the law. However, what happens when the person being demoted is in senior management? Would demoting such a high-level executive be seen as an act of victimisation justifying a claim for constructive dismissal? (Landmark Court of Appeal decision on the criteria to use in justifying a demotion of a senior management level staff)

 

Sexual Harassment/Workplace Harassment

3. Is there a test used by the courts in determining whether an act should be classified as sexual harassment or harassment? What are the different considerations to apply when drafting a charge on harassment versus sexual harassment? (New Industrial Court decision based on International Case Law concerning harassment versus sexual harassment?

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4. Would an act of sexual harassment need to be repeated in order for it to meet the definition of ‘harassment’? What happens if the incident of harassment/sexual harassment only occurred once?

 

5. What are the three considerations that will be adopted by the Industrial Court in determining whether a superior’s behaviour toward his subordinate(s) constitutes workplace harassment?

 

Right To Overtime

6. What is the criteria applied by the courts in determining whether a chef meets the definition of a ‘manual worker’ and henceforth is entitled to overtime for work performed in excess of his normal work hours? Learn the latest definition used by the courts in defining what constitutes ‘manual work’?

 

7. Are e-hailing/Grab drivers defined as a ‘workman’ (i.e. employee under the law) and entitled to protection under the Employment Act?

 

Fixed Term Contracts

8. What is an appropriate cooling-off period between fixed-term contracts to demonstrate to the Industrial Court that the employment relationship is not deemed permanent? (Landmark decision)

 

9. Is an organisation still required to give an employee three months termination notice at the end of the fixed-term contract period (as provided for in the employment agreement) or is the fixed-term contract deemed to have expired as per the end date of the contract?

 

Poor Performance

10. When documenting an employee’s attitudinal/behavioural, how should an organisation document the attitudinal/behavioural issue in the employee’s Performance Improvement Plan document to demonstrate to the courts that the company was not being subjective and had acted fairly in dismissing the staff for poor performance? (Landmark Decision)

 

11. Can an organisation have a policy providing that where an employee is given a poor year-end performance appraisal for two consecutive years, he can be dismissed without the need for a PIP? (Landmark Decision)

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Conflict of Interest

12. Where an employee goes on an overseas holiday/trip with a company contractor (whom he is not directly involved in doing business with) and the contractor pays for the said holiday/trip, would such actions constitute a conflict of interest?, and

 

13. How do the courts evaluate the truthfulness behind an employee's contention that the company contractor and him were old friends and that he had already reimbursed his old friend back for the holiday/trip?

 

Medical Board Out

14. Is an employee employed by the civil sector (i.e. government) who is suffering from major depression entitled to legal redress when terminated for his absence from work due to his depression?

 

15. Is the medical opinion of one doctor sufficient to justify the medical boarding out of an employee?

 

Criminal Offences

16. Is a company justified in summarily dismissing an employee without any prior show cause or domestic inquiry process where the employee has failed a drug test?”

 

17. Can an organisation justify the summary dismissal of an employee on the ground that his arrest by the authorities/MACC was reported in the press and had by implication damaged its reputation?

 

Reorganisations/Retrenchments

18. When deciding which employee to select for retrenchment, is an organisation justified in prioritising those employees who had earlier refused its offer for a salary cut?

 

19. How long can an organisation place an employee on unpaid leave (furlough) during the Covid-19 pandemic and ensuing Movement Control Order before the employee can rightfully claim constructive dismissal?

 

20. Can an organisation initiate retrenchments immediately following the government’s announcement of a Movement Control Order on the basis of an anticipated slowdown in business?

 

Backwages/Compensation in Lieu of Reinstatement

21. Can the Industrial Court still award compensation in lieu of reinstatement despite the employee already passing the minimum retirement age of 60 as provided under the Minimum Retirement Age Act?

 

Secret Audio Recordings

22. What can a company do to prevent its employees from covertly recording their conversations with their supervisor?

 

Mutual Separation Schemes

23. What are the key things to avoid doing when presenting an employee with a mutual separation offer in avoiding a claim of forced resignation? (Landmark High Court Award)

 

Absenteeism/Punctuality and Medical Leave Issues

24. Is an established pattern of an employee taking emergency leave and medical leave coinciding on a Friday and/or Monday justify the said employee’s dismissal?

 

25. Where an employee is working from home (WFM) but is unresponsive to customers/clients, should the company treat this non-communication as a performance issue or negligence? Which of the two options is easier?

 

26. Do late-responses to e-mail, phone calls and WhatsApp communications while working from home (WFM) justify an employee’s dismissal?

 

Expatriate/Foreign Workers   

27. Can the expatriate who is under a work permit be deemed a permanent employee by Malaysia’s Industrial Court?

 

Constructive Dismissal

28. Would a supervisors persistent comments that his subordinate should resign if he/she is unhappy working in the organisation amount to constructive dismissal?

 

Guest Speakers

1. Y.A. Peter Iruthayaraj D Pappusamy (former Industrial Court Chairman)

2. Mr Vijayan Venugopal (Partner, Shearn Delamore & Co)

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AGENDA

 

09.00 am to 10.45 am

Managing Fixed Term Contracts and Harassment/Sexual Harassment Issues

• What is an appropriate cooling-off period between fixed-term contracts to demonstrate to the Industrial Court that the employment relationship is not deemed permanent? (Landmark Decision)

• Is an organisation still required to give an employee three months termination notice at the end of the fixed-term contract period (as provided for in the employment agreement) or is the fixed-term contract deemed to have expired as per the end date of the contract?

• Is there a test used by the courts in determining whether an act should be classified as sexual harassment or harassment? What are the different considerations to apply when drafting a charge on harassment versus sexual harassment? (Landmark New Industrial Court decision based on International Case Law differentiating Harassment From Sexual Harassment)

• Would an act of sexual harassment need to be repeated in order for it to meet the definition of ‘harassment’? What happens if the incident of harassment/sexual harassment only occurred once?

• What are the three considerations that will be adopted by the Industrial Court in determining whether a superior’s behaviour toward his subordinate(s) constitutes workplace harassment?

 

11.00 am to 12.00 pm

Presentation by Vijayan Venugopal, Shearn Delamore & Co.

Right to Dismiss a Union President, Right To Demote a Senior Management Employee and Right to Dismiss Over Conflict of Interest issues  

• Where a union president goes to the press and calls for the company CEO’s resignation/termination, would an organisation be justified in dismissing the union president? (Landmark Federal Court decision)

• Would demoting a C-Suite Executive be seen as an act of victimisation justifying a claim for constructive dismissal? (Landmark Court of Appeal Decision)

• Where an employee goes on an overseas holiday/trip with a company contractor (whom he is not directly involved in doing business with) and the contractor pays for the said holiday/trip, would such actions constitute a conflict of interest?, and

• How do the courts evaluate the truthfulness behind an employee's contention that the company contractor and him were old friends and that he had already reimbursed his old friend back for the holiday/trip?

 

12.00 pm to 1.00 pm

Presentation by Y.A Peter Iruthayaraj D Pappusamy (former Industrial Court Chairman)

Managing Absenteeism/Punctuality/Medical Leave Issues and Medical Board Outs

• Is an established pattern of an employee taking emergency leave and medical leave coinciding on a Friday and/or Monday justify the said employee’s dismissal?

• Where an employee is working from home (WFM) but is unresponsive to customers/clients, should the company treat this non-communication as a performance issue or negligence? Which of the two options is easier?

• Do late-responses to e-mail, phone calls and WhatsApp communications while working from home (WFM) justify an employee’s dismissal?

• Is an employee employed by the civil sector (i.e. government) who is suffering from major depression entitled to legal redress when terminated for his absence from work due to his depression?

• Is the medical opinion of one doctor sufficient to justify the medical boarding out of an employee?

 

2.00 pm to 3.00 pm

Presentation by Y.A Peter Iruthayaraj D Pappusamy (continued)

Managing Reorganisations/Retrenchments and Mutual Separations

• When deciding which employee to select for retrenchment, is an organisation justified in prioritising those employees who had earlier refused its offer for a salary cut?

• How long can an organisation place an employee on unpaid leave (furlough) during the Covid-19 pandemic and ensuing Movement Control Order before the employee can rightfully claim constructive dismissal?

• Can an organisation initiate retrenchments immediately following the government’s announcement of a Movement Control Order on the basis of an anticipated slowdown in business?

• What are the key things to avoid doing when presenting an employee with a mutual separation offer in avoiding a claim of forced resignation? (Landmark High Court Decision)

 

3.15 pm to 5.15 pm

Managing Performance, Criminal Offences, Constructive Dismissal Claims and Other Issues

• When documenting an employee’s attitudinal/behavioural, how should an organisation document the attitudinal/behavioural issue in the employee’s Performance Improvement Plan document to demonstrate to the courts that the company was not being subjective and had acted fairly in dismissing the staff for poor performance? (Landmark Decision)

• Can an organisation have a policy providing that where an employee is given a poor year-end performance appraisal for two consecutive years, he can be dismissed without the need for a PIP? (Landmark Decision)

• Is a company justified in summarily dismissing an employee without any prior show cause or domestic inquiry process where the employee has failed a drug test?”

• Can an organisation justify the summary dismissal of an employee on the ground that his arrest by the authorities/MACC was reported in the press and had by implication damaged its reputation?

• Would a supervisors persistent comments that his subordinate should resign if he/she is unhappy working in the organisation amount to constructive dismissal?

• Can the expatriate who is under a work permit be deemed a permanent employee by Malaysia’s Industrial Court?

• What can a company do to prevent its employees from covertly recording their conversations with their supervisor?

• What is the criteria applied by the courts in determining whether a chef meets the definition of a ‘manual worker’ and henceforth is entitled to overtime for work performed in excess of his normal work hours? Learn the latest definition used by the courts in defining what constitutes ‘manual work’?

• Are e-hailing/Grab drivers defined as a ‘workman’ (i.e. employee under the law) and entitled to protection under the Employment Act?

• Can the Industrial Court still award compensation in lieu of reinstatement despite the employee already passing the minimum retirement age of 60 as provided under the Minimum Retirement Age Act?

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