Quiz 1

•An employee who does not agree with an employer’s action of terminating a contract of service can make a claim under__________

• illegal dismissal

• unlawfull dismissal

• fair dismissal

• wrong dismissal

Section 20(1) provide that...

• Where a workman, irrespective of whether he is a member

  of a trade union of workmen or otherwise

• considers that he has

  been dismissed without just cause or excuse by his employer

• hemay make representations in writing to the Director General to be reinstated in his former employment;

• the representations may be

  filed at the office of the Director General nearest to the place of

  employment from which the workman was dismissed

•Section 20(1A) provided that ...

• •The aggrieved workman can make a representation to the DGIR within 60 days of dismissal.

• •The aggrieved workman can make a representation to the DGIR within 30 days of dismissal.

• •For a workman that is dismissed with notice he may file a representation at any time during a period of such notice but not later than 30 days.

• •For a workman that is dismissed with notice he may file a representation at any time during a period of such notice but not later than 60 days.

Lord Denning’s judgment:

“an employee who makes a claim for wrongful dismissal must comply with the limited time period. The time is limited until it reaches the jurisdiction of the tribunal which hears the claim.

• V. Sinnathamboo v Menteri Buruh dan Tenaga Buruh Rakyat

• Inchape Malaysia Holdings v RB Gray

• Hoh Kian Ngan v Mahkamah Perusahaan Malaysia

• The Perak Chinese Maternity Association v Thomas Jothinayagan

Pre-requisite elements for Section 20

• Workman

• Employer

• Notice

• Remedy-reinstatement

Notice

• The representation must be lodged within 7 days from the date of the dismissal according to section 20(1A).

• The representation must be lodged within 14 days from the date of the dismissal according to section 20(1A).

• The representation must be lodged within 30 days from the date of the dismissal according to section 20(1A).

• The representation must be lodged within 60 days from the date of the dismissal according to section 20(1A).

Remedy-reinstatement

• A workman who wants to utilize this section must be prepared to go back to work with the same employer ie to be reinstated since the main remedy is reinstatement and not compensation.

• A workman who wants to utilize this section must not agreed to go back to work with the same employer ie to be reinstated since the main remedy is reinstatement and not compensation.

• A workman who wants to utilize this section must be prepared to go back to work with different employer ie to be reinstated since the main remedy is reinstatement and not compensation.

• A workman who wants to utilize this section must be prepared to go back to work with the same employer ie to be punished since the main remedy is reinstatement and not compensation.

Constructive dismissal

• termination of the contract of employment summarily, by the employee, by reason of employee’s conduct.

• termination of the contract of employment summarily, by the employee, by reason of employer’s conduct.

• termination of the contract of employment summarily, by the employee, by reason of employer’s agreement.

• termination of the contract of employment summarily, by the employer, by reason of employer’s conduct.

•The onus of proving there was a constructive dismissal in the circumstances lies with the claimant. Claimant has to prove the following:

• •That the company is guilty of conduct which is a significant breach going to the root of the contract of employment.

• •That the company is guilt of conduct which is significant breach which shows that the company no longer intends to be bound by one or more of the essential terms of contract.

• •That the conduct must be sufficiently serious to entitle the claimant to leave at once.

• •That the claimant must make up his mind soon after the conduct which he complains of.

Development of law of contructive dismissal except

• Contract Test

• Lawton Test

• Panglobal Test

• Construction Test