MALAYSIAN courts uphold the principle of security of tenure of employment, whereby the simple invoking of a termination clause in a contract of employment to terminate an employee’s services is not acceptable.
Thus, the Industrial Relations Act 1967 (IRA) provides a mechanism for an employee to challenge his dismissal on the grounds that it is without just cause or excuse.
For this purpose, the employee makes representation to the director-general for Industrial Relations (DGIR) to be reinstated to his former employment (section 20).
The Industrial Relations Department then conducts conciliation proceedings to bring about an amicable settlement.
If no settlement is reached, the DGIR submits his report to the minister who will then decide whether or not to refer the case to the industrial court for arbitration.
It is in this connection that I refer to the comments by Peter Raiappan in his letter “Time to review SOP” (The Star, Dec 24).
First, he proposes that where conciliation has failed, the case should be referred to a three-man panel of independent assessors (he does not indicate how and where to get them) which will then study the case and decide whether or not it should be referred to the Industrial Court.
This suggestion is illogical.
The conciliation officers in the IR Department who are expected to be “knowledgeable in labour laws, industrial discipline and other HR-related matters” (Raiappan’s words) will prepare their reports setting out the reasons why the cases should or should not be referred to the industrial court for the minister’s consideration.
If this task is not being performed satisfactorily, then the correct remedy is to strengthen the recruitment and training processes to improve the standard and efficiency of IR officers, but not to appoint a separate panel.
Secondly, I agree with his suggestion that the minister need not be involved in deciding whether a dismissal case merits referral or not.
This referral power may be handed to the DGIR as in almost every case, it is his recommendation that matters.
I also agree that where a non-referral decision is made, the workman should be told of the reasons for the decision.
Thirdly, Raiappan proposes that where the filtering process has resulted in a non-referral, the workman concerned should be given the liberty to take the case to the Industrial Court, but in the next breath, he says the workman “tries to get something out of the employer” by filing his case under section 20 of IRA regardless of the circumstances under which he has been dismissed.
This suggestion would only result in the industrial court being burdened with frivolous cases.
Finally, I totally disagree with his view that the present system appears to penalise the employers.
Admittedly, while the majority of cases referred to the Industrial Court result in the claimants getting reinstatement with arrears of wages or compensation in lieu of reinstatement, there is a small number of cases which confirm justification for the dismissal.
True, in such cases, though the employer is victorious, he is “left with a hefty legal bill and he is not even awarded costs” (Raiappan’s words). This is, of course, unfortunate, but should not be construed as a penalty for the employer.
The present system of dealing with dismissal cases is OK, but perhaps it could be modified slightly as suggested.
V.S. CHEN Petaling Jaya The STAR Online Opinion Saturday December 29, 2012