Unfair Dismissal: What Can You Do?

The first natural reaction that most people have upon being dismissed, is to immediately look for their next employment. This author opines that one should first understand the reasons given for their termination and verify if it was justifiable or not. If it is not, then the employee should challenge the dismissal.

As affirmed by the Federal Court in Maritime Intelligence Sdn Bhd v Tan Ah Gek [2021] MLJU 2189, the right to livelihood is a fundamental right guaranteed under Article 5(1) of the Federal Constitution. This right is exemplified through Section 20(1) of the Industrial Relations Act, which plainly provides that if an employee considers that he has been dismissed without good reason, he may file a representation to the Director General of Industrial Relations to be reinstated to his former employment.

1) Lodging a representation

Therefore, if you feel that you were unfairly dismissed or were terminated without just cause and excuse, you should lodge such representation. This can be done at the Industrial Relations Department by filing the requisite forms. There is a limitation of 60 days from the last date of employment to do so, failing which, your representation will be time-barred. 

Unfortunately, many employees are unaware of their right to livelihood and the right to challenge their dismissal. This results in many instances where it is far too late to initiate a claim through this process.

2) Attending a conciliation meeting

The IR Department will then fix a conciliation meeting between the employee and employer in an attempt to amicably resolve the dispute. The IR officer acts as a mediator and does not make any determination as to any disputed issues. While parties are not allowed have legal representation at this stage, employees may be represented by members of their trade union, or any other person duly authorized by the employee subject to the permission of the Director General.

If parties are able to reach a settlement, an agreement will be drawn up and this will conclude the process. If parties are unable to reach a settlement, the matter will be referred to the Industrial Court for an award to be given.

3) Pursuing your unfair dismissal claim at the Industrial Court

Once the Industrial Court registers a matter, it will issue a notice to inform both parties of the case number and the first mention date. Should parties decide to obtain legal representation, they may do so at this stage by appointing lawyers who will file the requisite forms and attend to proceedings on their behalf. Similar to civil proceedings, parties will file cause papers akin to pleadings, prepare witness statements and bundle of documents and attend trial where oral testimony is given and examined. A hearing is then fixed where submissions are made and an award is subsequently issued.

Although the primary remedy for unfair dismissal has been reinstatement for the longest time, the Court of Appeal in Sanbos (Malaysia) Sdn Bhd v Gan Soon Huat [2021] 4 MLJ 924, settled that reinstatement need not be pleaded once the matter is referred to the Industrial Court. As a result of this, employees are able to primarily seek compensation in lieu of reinstatement instead. While there is no fixed formula, it is typically calculated at one month’s salary for every year of service by the employee.

Besides that, employees can also seek an order for back wages of their last drawn salary which is capped at 24 months for permanent employees and 12 months for employees on probation. Other remedies that may be claimed include any contractual benefits promised to the employee and applicable statutory contributions by the employer.

In conclusion, it is important for employees to understand the rights accorded to them upon being dismissed so that proper recourse can be timely pursued.