Know your Industrial Relations Department (IRD) and how it might affect you?

FMT LETTER: From Charles Hector, via e-mail

In Malaysia, after workers claiming wrongful dismissals are lodged within 60 days at the Industrial Relations Department (IRD), conciliation meetings are held between the employers and workers in an attempt to reach an amicable settlement.

And if all these fail, the cases are referred to the minister who then decides if they are to be referred to the Industrial Court. There is no right to be heard before the minister, and his decision seems only in reliance of the report sent by his officers involved in the conciliation process.

During conciliation process, workers are no longer allowed the right to be represented by lawyers by virtue of amendments to the Industrial Relations Act 1967 (IRA) in 1989. S Subramaniam, the Minister of Human Resources, revealed in Parliament, the reasons why 10,016 such cases were not referred to the Industrial Court.

Amongst others, they were:-

a) Because workers were dismissed for misconduct;

b) Because the employers had shut down their businesses;

c) Because worker were given the opportunity to return to work but refused to come back;

d) Because workers had been terminated because their employment contract had come to an end;

e) Because workers had voluntarily stopped work under some Voluntary Separation Scheme(VSS), and then changed their minds after receiving payment;

Clearly, these are conclusions that should never be made by the minister without considering all evidence of witnesses and documents, and listening to legal submissions, which is best done by the Industrial Court.

Hence, the minister’s reasons are not acceptable, and he obviously seems to have just accepted explanations of employers over claims of aggrieved workers who have lost their jobs.

These aggrieved workers, whose cases are not referred by the minister to the Industrial Court, still do have the option to apply for Judicial Review at the High Court but realistically, this would not happen because most workers just do not have the resources or the capacity.

The government revealed recently in a study that 34% of 1.3 million workers earn less than RM700, which is below the poverty line income. An applicanotion to the High Court involves not only expenses but also the subsequent risk of being ordered to pay cost that could be about RM10,000 if unsuccessful, and as such most workers elect not to apply to High Court.

As such, a decision of the minister not to refer cases to the Industrial Court ends these aggrieved workers’ quest for justice. We call for the amendment of the law, to ensure that all cases that could not be resolved amicably between parties should as of right be referred to the Industrial Court. The existing step of referring to the minister who then decides to refer or not a case to the Industrial Court should be removed from the law books.

Wrongfully dismissing workers without just cause or reason is a grave injustice. When their employment is wrongfully terminated, it seriously affects the well being, livelihood and financial security of not just the workers but also their families. Obligations to pay monthly amenities bills, car/housing loan repayments, credit card payments and others payments necessary for well being of their families continue irrespective of a  loss of monthly income.

Wrongful dismissals is a serious wrongdoing by employers, which need to be penalised with a deterrent award, and the existence of an avenue for justice for workers wrongfully dismissed need to be available for all class of workers. The Malaysian government sadly places the interest of employers over the interest of workers. Rights of the wrongfully dismissed workers have been eroded over the years.

In 2007, the Industrial Relations Act was amended which had the effect of reducing the entitlement of a worker found to have been wrongfully dismissed by the Industrial Court. The Industrial Court could either order the worker to be reinstated, or alternatively order the employer to pay compensation in lieu of reinstatement, being all salary and benefits from the date of wrongful dismissal until the date of judgment, the later being the norm.

The 2007 amendment limited the compensation award to no more than 24 months’ back wages from the date of dismissal, but also limited it to be calculated based on the last-drawn salary of the person who has been dismissed without just cause or excuse, hence eliminating the right to salary increments and bonuses which one would have received had they not been wrongfully dismissed.

It also allowed for deductions with reference to post-dismissal earnings of the wrongfully dismissed worker, and ‘contributory misconduct’ on the part of the worker. Worst affected were workers on probation whereby their entitlements were halved, when in Malaysia there is still no law that limits the period a worker can be  kept on probation, which in some cases it may extend to years.

Amend Industrial Relations Act 1967

The refusal of the minister to refer 31.5% of wrongful dismissal cases that could not be settled amicably to court is yet another anti-worker indicator. Only five out of the 13 States and one out of the three Federal Territories in Malaysia have Industrial Courts. Distance will definitely be more prejudicial to the worker than the employer.

There is not just the cost of transportation and accommodation, but also the difficulty of getting witnesses to attend court. There should be Industrial Courts in every State and Federal Territory, and all major towns.

Now, there are moves by the Malaysian government to even completely exclude access to this avenue of justice to certain categories of workers being workers with less than one year of continuous service, probationers, apprentices, workers in management positions and also contract workers.

The Malaysian government now permits employers to use short-term employment contracts, and most times these contracts do not exceed 12 months. If the proposed amendments become law, employers will be happy as wrongfully dismissing most workers will no longer be a problem, and workers lose their right and ability to seek justice.

As it is, most migrant workers effectively do not have access, given the fact that after they are wrongfully dismissed, their immigration visas/passes are also terminated, hence disabling them the ability to stay or work legally in Malaysia. Even if they have filed a complaint in the IRD, it is immaterial for they cannot stay on in Malaysia, and if they do they risk arrest, detention, whipping and deportation.

We call on Malaysia to promote and protect worker rights and welfare, including those of their families. We call for an amendment to the Industrial Relations Act 1967 (IRA) to enable all wrongful dismissal cases that could not be resolved amicable to be referred directly to the Industrial Court. The power of the minister to decide whether cases are referred to the Industrial Court must be extinguished.

We call for the repeal of the 2007 amendments to the IRA, including Schedule 2, that effectively reduced entitlements of workers found to have been wrongfully dismissed by the Industrial Court, and further discriminates against workers on ‘probation’. Minimally workers should be entitled to all back-wages without loss of benefits.

Justly, workers should be entitled to maybe double the said amount or an additional sum, which would assist them in covering all the cost, expenses, time and energy loss claiming these rights, and doubling or tripling the award sum would also serve as a deterrent to employers wrongfully dismissing workers.

We call for the making of directors and principal shareholders to be personally liable, when the company employer is not able to pay workers the award sum ordered by the Industrial Court.

We call on the Minister of Human Resources to do the needful to ensure all the said 10,016 workers cases claiming wrongful dismissal be forthwith referred to the Industrial Court to ensure that the right to a full trial is given effect.

We also call for speedy disposal of cases of wrongful dismissals especially in cases where the claimant are migrant workers, and that until the cases are heard and settled in court, provisions be made that migrant workers be accorded the right to stay and work legally in Malaysia.

We reject any proposed amendments that will deprive certain class of workers their right to claim justice in cases of wrongful dismissals. No employer should wrongfully dismiss workers, and all workers, even workers on short-term employment contracts or have worked for a short period, should have access to avenues of justice, and the right to claim, amongst others, reinstatement and/or compensation in lieu of reinstatement.

We also reiterate the call for the Malaysian government to abolish short-term contract employment and the ‘contractor for labour system’/’outsourcing’, and ensure that all workers have the right to regular permanent employment and security of tenure in a direct two-party employment relationship.

Letter written for and behalf of  51 groups/organisations/trade union/civil society organisations

Source: Free Malaysia

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