Under Section 20 of the Industrial Relations Act 1967, a former employee whose employment is terminated by the employer may make a representation to the Director General for Industrial Relations if he considers that he or she was dismissed without just cause or excuse. This representation must be filed within 60 days from the date of dismissal. In the event reconciliation between parties is unsuccessful, the Minister of Human Resources may, if he thinks fit, refer the representation to the Industrial Court for determination. The former employee may seek for reinstatement of his or her employment or compensation and backwages of up to 24 months (or 12 months for probationers).
The Industrial Court hearing is typically conducted in the manner of a trial whereby the parties call witnesses and produce documentary evidence to support their case.
For unfair dismissal cases in the Industrial Court, the employer will have to prove that it had just cause and excuse for dismissing the claimant, and that the dismissal was done in good faith. Grounds for dismissal include misconduct, breach of fiduciary duties, insubordination, sexual harassment, poor performance and retrenchment. Unfair dismissal also includes constructive dismissal.
“Constructive dismissal” means a situation where the employee had no choice but to tender his or her resignation due to the actions, decisions or policies imposed by the employer on the employee resulting in a breach of contract by the employer. There is no direct dismissal of the employee in a constructive dismissal.
For constructive dismissal cases in the Industrial Court, the employee will have to prove, amongst others, that there was a fundamental breach by the employer which caused the employee to resign. Grounds for constructive dismissal include significant reduction of salary and benefits, demotion, change of job scope and duties, and transfers to different/unrelated departments in bad faith.
- Advising employers/employees on their rights, remedies and strengths of their cases
- Drafting and assisting employees in lodging representations of unfair dismissal or constructive dismissal to the Director General
- Drafting and negotiating amicable settlements for employers/employees prior to or even during the course of Industrial Court proceedings
- Representing employers/employees in Industrial Court proceedings
- Successfully represented an employee who was dismissed by the employer (“Company”) without providing any reasons whatsoever in the letter of termination. During legal proceedings, the Company then alleged that our client had agreed to and signed a new contract for service with the Company. Our client denies this and disputes the authenticity of the signature appearing on the alleged contract of service purported to be his. The Court agreed with our submissions that our client never signed the alleged contract and therefore his dismissal by the Company was without just cause and excuse.
- Represented employees who were dismissed by the employer (“Company”) on alleged grounds of attempting to set up a competing business, misconduct and sexual harassment respectively, to which our clients deny. Our clients took the position that their dismissal was without just cause or excuse because (i) the Company had announced their dismissal before they had the opportunity to reply to the show cause letters issued to them, (ii) the subsequent termination letters only contained the allegation of attempting to set up a competing business and therefore (iii) the other allegations are afterthoughts and mala fide.
- Representing a smartphone company from China in the Industrial Court to oppose a former employee’s claim for unfair dismissal. The former employee was dismissed by our client for, amongst others, gross misconduct, including breach of fiduciary duties, causing damage and disrepute to our client’s image and insubordination.
- Advising an electronics company in respect of terminating an employee on the ground of retirement. Our client had employed the employee when he was above the age of 60, and continued to employ him past the age of 70. The employment contract also does not contain a mandatory retirement age clause.
- Represented a hypermarket company in the Industrial Court to oppose former employees’ claims for unfair dismissal. The former employees were dismsised by our client for, amongst others, misconduct, sexual harassment, insubordination and absentism respectively. Amicable settlements between parties were successfully negotiated thereafter.
- Employment Contracts and Policies
- Employment Share Option Scheme (ESOS)
- Disciplinary Procedures (Misconduct)
- Performance Improvement Plans (Poor Performance)
- Retirement & Medical Boarding Out
- Retrenchment (Redundancy)
- Voluntary & Mutual Separation Schemes (VSS/MSS)
Reviews & Testimonials
- “I was represented better than I could have ever imagined in my employment/industrial relations matter. My needs were put first and I was treated as a friend rather than a number. My opinions were valued and my doubts were always reassured. My nerves were calmed and the process was always explained. Mr John Chan and Ms Rachel Ng advised me accordingly from time-to-time. They went above and beyond and did everything they could to ensure a great outcome. I couldn’t have asked for a better law firm and solicitors. Thanks MWKA.” – Mr RR, Kuala Lumpur
- “I would like to put on record, the appreciation of myself, and New Zealand Unlimited Restaurants Sdn Bhd (NZUR) for the excellent legal advice and representation provided by John Chan from MahWengKwai & Associates. NZUR decided to engage the legal services of MahWengKwai & Associates, and we commenced liaising with John Chan. John Chan was very thorough in his working relationships with NZUR. The Management of NZUR would certainly be willing to engage John Chan’s services again. NZUR is pleased to recommend John Chan from MahWengKwai & Associates for employment and industrial relations matters and disputes.” – Richard Tankersley, New Zealand Unlimited Restaurants Sdn Bhd, Kuala Lumpur
- “Mr. John Chan was the one who assisted me with my enquiries. I can say that he is very approachable and knowledgeable regarding my employment matter. I am very grateful to have found their website online and for their quick response when I emailed them. Highly recommended.” – Mae, Philippines
- “I am very pleased with MahWengKwai & Associates’ services in particular, John Chan. My dealings with him have been professional, efficient and timely. John is very responsive in addressing any concerns that we have and helping us through the process. Thank you for your excellent service! We are happy with the outcome. Highly recommending MWKA to my HR network.” – Nicole Liew, Hitachi Construction Machinery (Malaysia) Sdn Bhd, Petaling Jaya, Malaysia
- “I would like to thank the team of MWKA, specifically John Chan and Janessa Kok for helping me in my case where I was wrongfully terminated by my previous company. Despite being engaged at the last minute, they were very knowledgeable and capable in handling the matter, and have shown great professionalism throughout. I would definitely recommend them for their services.” – Rajaram
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