Case Study Law

10 October 2016

Determine whether the following employees are within the scope of the Employment Act, the Sabah Labour Ordinance or the Sarawak Labour Ordinance. For each employee, explain their rights in the situations described. a) Janet is a HR Executive earning RM1,800 per month. She is 8 months pregnant and has been on sick leave for most of the last 2 months. The company wants her to start her maternity leave immediately.

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Mimi is a Production Executive earning RM5,000 per month. She is now 5 months pregnant and the company has persuaded her to take 42 days instead of 60 days of maternity leave. (10 marks) Answer: – Janet income for every month is RM 1,800, thus, according to First Schedule; she is covered by the Employment Act because her wages do not exceed RM 2,000 per month. – Besides that, referring to Section 37 (1), every female employee shall be entitled to maternity leave for a period of not less than 60 days in respect of each confinement.

Under this section also, there is a need to take a leave if a medical officer or the registered medical practitioner unable to perform her duties satisfactorily. The employee may be required to commence her maternity leave at any time during a period of 14 days preceding the date of her confinement as determined by medical officer or the registered medical practitioner. Next, under this section, there is also stated an employee shall not commence earlier than a period of 30 days immediately preceding the confinement of a female employee or later than the day immediately following her confinement. According to Section 60F, if Janet has been working for less than 2 years, she is entitled to get 14 days leave, 18 days if has been employed for 2 years and not more than 5 years, and 22 days for more than 5 years of service. 60 days if hospitalization is necessary, as may be certified by registered medical practitioner or medical officer.

Thus, after 60 days have been used, it will be considered as unpaid leave. In conclusion, Janet has been on sick leave for most of 2 months, her employer may ask her to commerce the maternity leave 14 days before the confinement upon certified by registered medical practitioner or Janet may take the maternity leave prior to actual confinement for up to maximum 30 days before her due date. – For the Mimi’s case, referring to Section 44A stated that the whole part on maternity protection is applicable to every female employee engaged under a contract of service irrespective of wages. According to First Schedule, she is not covered under the Employment Act because her wages exceed to RM 2,000 but under Section 69B, the powers of the Director General under section 69(1)(a) shall extend to employees whose wages per month exceed RM 1,500 but does not exceed RM 5,000 and the complaints must be on cash entitlement written in employment contract. – Referring to Section 37(1), a female employee shall be entitled to maternity leave for a period of not less 60 consecutive days in respect of each confinement and entitled to receive from her employer a maternity allowance to be calculated.

A female employee, who does not satisfy for maternity allowance, she may with the consent of employer, commence work at any time during the eligible period if she has been certified fit to resume work by a registered medical practitioner. – Therefore, if Mimi is willing and fulfilled the condition to resume work by registered medical practitioner, she may take the 42 days instead of 60 days of maternity leave as requested by her company. b) Sulaiman is a driver with TZ Company Sdn Bhd. He was on annual leave on 12 & 13 June. 4 & 15 were Public Holidays. 16 was Sunday. On 17 & 18, the local bomoh gave him a sick certificate after treating him for the hallucinations that he had been having. When he came to work on the 19 June, the Personnel Manager said “you have self-terminated your employment”. (10 marks) Answer: – Referring to First Schedule of Employment Act 1955, Sulaiman is covered by the Act because he is working as driver and engaged in the operation of any mechanically propelled vehicle operated for the transport of passengers or goods.

According to Section 59, Sulaiman is entitled for rest day of 1 day in a week the or in the case of an employee engaged in shift work any continuous period of not less than 30 hours shall constitute a rest day. Thus, if Sulaiman’s rest day fall on Sunday, he is entitled to absent from work. – For annual leave can be used under Section 60D where Sulaiman is entitled for paid annual leave upon working 12 month of service and depending on the length of service. days for employment period less than 2 years, 12 days for employment period more than 2 years but less than 5 years and 16 days for employment period of more than 5 years. – According to Section 60F, Sulaiman is entitled to get sick leave depending on the length of employment period. 14 day for employment period less than 2 years, 18 days for employment period more than 2 years but less than 5 years and 22 days for employment period of more than 5 years. To be entitled to paid sick leave, employee should get the certified sick by a registered medical practitioner.

In this case, the local bomoh is not certified medical practitioner, therefore, Sulaiman’s sick certificate is invalid. – In conclusion, according to Section 15, an employee shall be deemed to have broken his contract of service with the employer if he has been continuously absent from work form more than 2 consecutive days without prior leave from his employer, unless has reasonable excuse for such absence and has informed or attempted to inform his employer. The Personnel Manager said that Sulaiman had self-terminated his own employment can be refer under this section.

Furthermore, Sulaiman do not submit valid sick certificate, thus he may state his excuse to the company for not being well to carrying out his duty on that day. QUESTION 2 a) List two (2) major employment laws. (5 marks) – There are a number of employment laws in Malaysia such as Employment Act 1955 and Industrial Relations Act 1967. – The Employment Act 1955 protect workers from exploitation and provides the minimum terms and conditions of services for employees that stated in the First schedule.

This act is applicable to West Malaysia only. – The Industrial Relations Act 1967 provide for the regulation of the relations between employers and workmen and their unions as well as laying down rules to help prevent and settle disputes between the two parties, thus ensuring peaceful industrial relations as far as possible. This act is applicable to whole country. b) Discuss the purpose of each law and the department in the Ministry of Human Resources responsible for enforcing each of these laws. (10 marks) – Employment Act 1955

Employment Act 1955 is the most important legislation with regard to employment in Malaysia. It provides benefits for these workers covered by the Act. It has been established and given certain rights or benefits for both employer and employees. The purposes of Employment Act 1955 are to establish for certain rights or benefits for both employers and employees and to provide a minimum benefits for these workers covered by act. The Department of Labor in Peninsular Malaysia is responsible to ensuring all employers comply with the acts requirements.

Among the functions carried out by this department are carries out impactions and prosecutes employers when necessary, advises an employer on government policies and their implementation on the workplace. Furthermore, the department of labor also investigates claims of unfair labor practices make the decision on an employee’ claims. On the other hand, the department of labor also responsible to answer the queries on employment acts and also assists in solving the problem. Industrial Relations Act 1967 The purpose of Industrial Relations Act 1967 is to provide for the regulation of the relations between employers and workmen and their trade unions. This act emphasizes on direct negotiation between employers and workmen or employees and their trade unions to settle their differences and to regulate their collective relationship and to settle any dispute arising therefrom though their own effort and through mutually agreed procedures with minimal government intervention.

Under the Industrial Relation Act 1967, the legitimate rights of employers and workmen or employees and their trade are protected. This act also provides the procedure relating to submissions of claims for recognition and scope and representation of trade union and collective bargaining. The Department of Industrial Relations Malaysia is responsible in enforcing law in Industrial Relations Act 1967. The objectives are the promotion and maintenance of positive and harmonious relations between employers and employees and their respective trade union and organization.

The function of Department of Industrial Relations Malaysia is to coordinate communication between the organizations of employers and workers’ organizations to promote and preserve the tripartite relationship between the government, employers and workers in the field of industrial relations. Providing advice to employers and employees to promote well and practices healthy industrial relations.  Discuss the differences between ‘contract of service’ and ‘contract for service’. 5 marks) – According to section 2, contract of service is any agreement whether oral or in writing and whether express and implied, whereby one person agreed to employ another as an employee and that other agrees to serve his employer as an employee and includes an apprenticeship contract. – In contract of service, there are relationship between employee and employer such as wages, hours of work, conditions of the service and other conditions that employees should serve to the employer. Contract for service is a contract between principal and contractor to carry out the whole or any part of any work undertaken by the principal in the course of or for the purposes of the principal’s trade or business. – Contract for services refers to a person who provides his services to his clients. There is no employer and employee relationship. The person is usually self-employed or may provide his or her services on a freelance basis at a fee. b) Differentiate, with examples, express and implied terms in employment contracts. (10 marks)

Employment contracts should be drafted in such a way that they are as clear and possible. The terms are the contents of the contract or the promises made by each party to the other. A contract of employment does not have to be in writing. The employment contracts must be carefully drafted that fulfill the certain criteria such as must compliant with the law, written in a language the employee can understand and includes all the necessary terms and conditions. There are two types of the terms in employment contract which are in express terms and implied terms.

The express terms of a contract are usually found in letters of appointment, company handbook and collective agreement. Express term is a contract in which the terms of the employment are stated in words either agreed oral or written. According to section 10, a contract of service for a specified period of time exceeding one month shall be in writing. The requirement that need to be in an express terms of contract are job title, wages, holiday and leave entitlement and other terms that compliant to the employment law.

The example of express terms is the employee should give termination notice to the employer according to the terms and conditions that are stated in offer letter or any agreed oral between the two parties. Another example is the employer should give the holiday entitlement or annual entitlement according mutual agreement between the employee and employer and any stated in offer letter and also company books. If a worker has no written letter of appointment, it does not mean that no contract of employment exists between him and his employer.

It is call implied terms in employment contracts. These are not expressly or explicitly stated because in the main they are fairly obvious to both parties to the contract of employment. Implied terms include statutory rights, such as the right to equal pay and duties such as duty of care. Implied terms means the duties and obligation of both parties are not expressed but are implied by their acts or conducts. Both indicate by their conduct that they have a mutual agreement and need not express the agreement in words.

The employer and employee have a duty of care towards each other and other employees. This means, for instance, that the employer should provide a safe working environment for the employee and the employee should use machinery safely. An employee has a duty to obey any reasonable instructions given by the employer. For example, a lorry driver should not be told to drive an uninsured or untaxed vehicle. There is no legal definition of reasonable, but it would not be reasonable to tell an employee to do something unlawful.

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