What You Need to Do if You Were Unfairly Dismissed in Malaysia
Being laid off from work is one thing but being fired without any good reason is another level of being unjust. This experience is called unfair dismissal and unfortunately, it’s an occurrence that’s still being recorded every year.
Thankfully, there are things you can do if you feel like you’ve been laid off from work unjustifiably, and we’re here to teach you! Listed below is a set of steps you can do when you feel like you’ve experienced unfair dismissal.
Furthermore, we’ve also included instances that can be constituted as unfair dismissal, so you know when you’re in the right. Let’s get started!
What should you do if you feel like you’ve been unfairly dismissed?
There are only three steps that you need to follow:
Step 1: Reach out to the Department of Industrial Relations
The first thing you should do when you conclude that you’ve been unfairly dismissed is to contact the Department of Industrial Relations.
More specifically, we advise you to get in touch with the Director-General so that you can arrange a conciliation meeting with your employer.
Step 2: Show up to the conciliation meeting
Conciliation meetings are held so that matters won’t have to be taken to court immediately after the employee gets unfairly dismissed. During this time, the employer and employee will try to reconcile and reach an agreement that would benefit both parties.
The meeting is headed by one of the officers of the Department of Industrial Relations who will also act as the mediator. Meanwhile, the employee and employers can both show up at the meeting or have a representative attend on their behalf.
Keep in mind that legal representation isn’t allowed here just yet, so no lawyers. For instance, if you have something to do that day or you simply can’t face your employer after what happened, you can send a friend or a family member on your behalf.
If in case an agreement is met during this meeting, then there won’t be any need to bring matters to court.
Step 3: Take matters to the Industrial Court
When things don’t go as planned during the conciliation meeting, there’s no choice but to bring matters to the Industrial Court. For the longest time, it wasn’t as easy doing this since it was up to the minister of Human Resources to decide first whether it was necessary.
Since 2021, however, the Director-General of the Department of Industrial Relations is the one referring the cases to the Industrial Court. This is only when they deem it necessary after the conciliation meeting didn’t work out.
It is only during this time that both parties are allowed to have legal representation from their lawyers. On a side note, if you don’t have a lawyer and you’re looking for a place to start, check out our list of the best law firms here.
The process of bringing matters to the Industrial Court will go through three different stages: pre-hearing, hearing and awarding.
The pre-hearing is basically the time given by the judge to the parties involved to submit all the necessary files and statements. From there, they will proceed to the hearing where both parties will defend their cases.
Finally, the awarding is made when the court believes that the dismissal was indeed unfair. The employer will then receive a remedy ordered by the court to cover for the unjustifiable dismissal.
What are the possible remedies for unfair dismissal?
When the Industrial Court rule that your dismissal was indeed unfair and without just cause, here are the remedies they can order:
Reinstating the employee
Reinstating the employee means that the court will order the employer to rehire the employee to their original position in the company. However, as you may have guessed, this isn’t as good of a solution because the relationship between both parties has already been damaged.
This is why this remedy is rarely used, as the employee often doesn’t want anything to do with their former employer and vice-versa. They’d much rather get compensated handsomely for the injustice that the company has done.
Compensation
When reinstating the employee doesn’t work for both parties (which happens fairly often), the court will order compensation. Here, the employer will pay the employee one month’s salary for each year they’ve been in their company.
Some would say that this is a great middle-ground for both parties, as they wouldn’t have to do anything with each other afterwards. The only downside here is on the side of the employer, as they’ll have to pay the employee without them working under their company.
Then again, they shouldn’t have dismissed them unfairly in the first place, so consider it as the rightful consequence.
Back pay
One of the biggest what-ifs for employees who have been unfairly dismissed is “What if I didn’t get fired, how much would I make? Fortunately, the court can order them to receive their back pay if they’ve proven that they were fired without just cause.
However, keep in mind that the back pay that you’ll receive will have a limit of two years, which isn’t too shabby at all. Plus, the great thing about this is that it’s often rewarded on top of the compensation, so the employee will get more than what they’ve bargained for.
Civil lawsuit
When the employee decides that all the aforementioned remedies aren’t enough to cover what they’ve experienced, they may wish to file a civil lawsuit. Here, the employee will attempt to sue the private company in court while being represented by their lawyer.
A civil lawsuit is a much more tedious process than the aforementioned remedies, but it’s something that some people are willing to go through. This is especially true if they’ve been treated poorly during their time in the company on top of them being dismissed unfairly.
What makes a dismissal unfair?
Section 20(1) of the Industrial Relations Act 1967 only states that “An employee can only be dismissed with just cause or excuse”. This can be a bit vague for some people, as it doesn’t really tell how a dismissal can be considered unfair legally.
If any, this means that finding out an unfair dismissal can only be determined based on particular circumstances. The bottom line is that when you know that the employer doesn’t have any sound reason for letting you go, you can claim that you’ve been dismissed unfairly.
There are two types of unfair dismissals, both of which are equally harsh, these are:
Indirect Dismissal
Indirect dismissal happens when the employer doesn’t dismiss the employee upfront but does everything to make them leave. This may include worsening the workspace culture, increasing workload while maintaining the pay, adding unnecessary rules and so on.
When these kinds of things happen in the workplace, the employee will have no choice but to turn in their resignation letters. The employer won’t have to deal with telling the employee to leave, which means there’s no direct termination involved.
Pressure is the key to this kind of unfair dismissal, and some employers will go so far just to get their employees to resign on their behalf.
Direct Dismissal
Contrary to the previous type, this approach is much more direct, but the injustice is still there. Simply put, direct dismissal happens when an employer tells an employee upfront that they have to let them go, but the reason is not justified.
This often happens right after an employee says something that the employers didn’t like. An example of this is when an employee asks for a raise, and coincidentally, they get a notice the next day that they’re going to be released.
The same thing happens to employees who unexpectedly become a “liability” in the employer’s eyes. For instance, when a regular employee informs the employer that she is pregnant, and the employer decides to let her go, this is unfair dismissal.
Protect Your Rights with the Right Employment Lawyers!
To help prepare you if this happens in the future (God forbid), here are some of our top picks for the best employment lawyers in the country. As long as you’re in good hands, you won’t have to worry about unfair dismissal in Malaysia.