Q:     I am dismissed from my employment. What should I do?

A:       Under Section 20(3) of the Industrial Relations Act 1967, an 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 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.

Q:       What happens after the filing of the requisite forms?

A:        The IR Department will then schedule a reconciliation meeting between the employee and employer in an attempt to resolve the dispute amicably. The IR officer acts as a mediator and does not make any decisions regarding the disputed issues. While parties are not permitted to 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 the parties are able to reach a settlement, an agreement will be drafted and this will conclude the process.

In the event reconciliation between the parties is unsuccessful, the Director General of Industrial Relations may, if he thinks fit, refer the representation to the Industrial Court for determination.

Q:     What happen after the Director General of Industrial Relations refers your representation to the Industrial Court? 

A:     Once the Industrial Court registers a matter, it will issue a notice to inform both parties (the Claimant and the Company) of the case number and the first mention date.

If the 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 the proceedings on their behalf.

Similar to civil proceedings, the parties will file cause papers akin to pleadings, prepare witness statements and a bundle of documents and attend a trial where oral testimony is given and examined. A hearing is then scheduled where submissions are made and an award is subsequently issued.

Q:     What are the remedies the Court may award?

A:     There are several remedies that the Court may award:

• (i) Reinstatement
• (ii) Compensation in lieu of reinstatement
• (iii) Back wages up to 24 months (12 months for probationer)

Q:     What is a reinstatement?

A:     A court may order the employee to be reinstated in his/her former employment. The effect of reinstatement would mean to restore the employee to his/her last position with the employer together with her salary, and other benefits (such as allowances, bonuses, which such an employee has been entitled to had he not been dismissed.

Q:     What if reinstatement is not suitable?

A:     If the Court opines that reinstatement is not a suitable remedy when the relationship between the employer and the employee has broken down so badly that it would not be conducive to industrial harmony to return the employee to their place of work, then the Court may order an award of compensation in lieu of reinstatement. However, this compensation shall not be awarded to any employee who is not capable of being reinstated.

Bear in mind that there is a difference between an employee who is capable of being reinstated but is not suitable due to the breakdown of the relationship, and an employee who is incapable of being reinstated, i.e. they have reached the age of retirement.

Q:     What is compensation in lieu of reinstatement?

A:     If the Court finds that reinstatement is not a suitable remedy, then the Court shall order the employee to be paid such amount of wages as compensation in lieu of reinstatement by the employer, as may be determined by the Court. This is also commonly known as “monetary compensation”.

However, it is important to note that compensation in lieu of reinstatement may only be awarded if the employee is entitled to be reinstated in the first place. If such an employee is incapable of being reinstated as he/she has attained the statutory age of retirement, he/she is not entitled to claim for compensation in lieu of reinstatement. This stance has been made clear by the Federal Court in the year 2015.

Q:     Can an employee still claim for any other compensation in addition to reinstatement?

A:     The answer is Yes. The employer shall pay the employee full back wages from the date of termination up until the date of reinstatement, subject to a maximum of 24 months in the case of a confirmed employee or 12 months for a probationer.

Q:     Can an employee be awarded back wages if he is not reinstated?

A:     Yes, whether an employee is reinstated or awarded compensation in lieu of reinstatement, he/she may be awarded back wages. However, where there is post-dismissal earning, a percentage of such earning, to be decided by the Court, shall be deducted from the back wages given.

Kelly Yong Shu Xhuan