Unfair Dismissal

Under Section 20 of the Industrial Relations Act 1967, an ex-employee may make a representation to the Director General for Industrial Relations if he considers that his employment was dismissed without just cause or excuse by his employer. 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 ex-employee may seek for reinstatement of his employment or compensation and backwages of up to 24 months (or 12 months for probationers).

In the Industrial Court, the employer will have to prove that he 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.

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.

Our Services

Our services and support include, but is not limited to the following areas:

• Advising employers/employees on their rights, remedies and the strengths of their case.
• Drafting and assisting employees in lodging representations of unfair dismissal to the Director General.
• Drafting and negotiating amicable settlements for employers/employees prior to or even in the course of Industrial Court proceedings.
• Representing employers/employees in Industrial Court proceedings.

Our Experience

• Succesfully 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 sucessfully negotiated thereafter.

Related Services

• Contractual Documentation
• Constructive Dismissal
• Disciplinary Procedures
• Whistleblowing
  

Reviews & Testimonials

• “Great Experience! The employment team at MahWengKwai & Associates is fantastic. John and Jasmine are very professional and efficient. They know their subject well. I will definitely recommend this firm!” -Taruna Sachdeva, ASSA ABLOY Opening Solutions Malaysia Sdn Bhd
• “Raymond Mah attended to me to address a very urgent legal matter. Kudos to Naveen Joshua Solomon for drafting strategic documents and providing sound legal advice while dealing with my case. Appreciate both his professionalism and empathy! Diana Cheak also provided great support with her legal expertise too. Thank you MWKA legal team for treating me not just as a client but like a friend in time of need, with your expert care par excellence!” – Justin Ooi Theng Yik, Kuala Lumpur.
• “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 had the opportunity to work with John Chan and Jasmine Wong for an industrial relations (IR) case. Pure professionalism, no hanky-panky, attentive and proactive in working towards our company’s best interest. Am truly pleased the case ended on a good note.” – Mr T, Malaysian subsidiary company of an Australian corporation

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