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Question 1

In the short scenario, it said the Abbas is a 16 years old school dropout working in a small
caf in the city that operates 24 hours a day. According to Children and Young Person
(Employment) Act 1996, section 1A (1) stated that a person who is above 15 but below 18 is a
young person. But if they are required to work, according to Employment Act 1955 (EA) section
2(1) it stated that the nature of the work that need to work continuously is work shifting where it
will be more than 1 shift (Employment Act, 1955). Based on these two sections, it clearly shows
a young person who works in a 24 hours caf shop as a shift worker.
According to the information that Abbas provided, where none of the workers received any
allowances or salary in the first month as it was considered training month is actually a
violation and non-compliance towards EA 1955. Section 2(1) of EA 1955 stated that wages is
any monetary compensation and benefits paid to an employee for his effort in finishing their job
in respect to his employment contract (Employment Act, 1955). Here it can be seen that the
training month was actually a period where Abbas and the other workers had complete their
duties and hence in respect of the services of workers that provided to the employer, the
employer has to pay them their basic salary must be paid. Additionally, Abbas also mention that
no employment contract was provided. Referring back section 2(1) EA 1955, contract of
service was clearly stated as any oral or written agreement, whether express or implied, where a
party agrees to employ another party as an employee and the other employee agrees to serve his
employer as an employee (Employment Act, 1955). Henceforth, when Abbas and the other
workers were employed to work in the caf, employment contract must be provided since both

parties have agreed on the employment relationship. Without it, Abbas and the other workers can
actually file a law suit towards the employer for breach of EA 1955 and seek for compensation.
On the other hand, according to Children and Young Person (Employment) Act 1996, section 1A
(1) stated that contract of service is any agreement whether oral, written, express or implied,
where a party agrees to employ a child or young person with the provisions of the Act and that
child or young person also agrees to serve the party as an employee. Based on this and the above
contract of service definition mentioned in EA 1955, even though no written employment
contract was provided, however, there will always be an oral contract, whether express or
implied indicating it a must for Abbas and the other workers to be provided with such
employment contract.
The next information provided was that some workers starting salary were at RM600.00 per
month. According to MOHR (2013), it has been mentioned that the wages are now controlled
and monitored by a new policy that is known as the Minimum Wages Policy which will take full
effect in January 1st 2013. Basically, the minimum wages policy has made it a must for employer
to raise the minimum wages up to RM 900 per month for employees in Peninsular Malaysia and
RM 800 for employees situated in East Malaysia (MOHR, 2013). Based on that, the employer
must pay at least RM900 if the caf shop is located in West Malaysia and RM 800 in East
Malaysia.
Other than that, Abbas also said that no overtime payment is provided but they are required
to work longer than 8 hours when there are many customers in the caf. According to EA
1955, section 60C (1) mentioned that employer have the right to require employee to work more
than 8 hours per day or more than 48 hours per week having applied in writing to the DG of

Labour for permission (Employment Act, 1955). This section shows that those workers who are
not a child or young person and were work as a shift worker, the employer have to right to
require them to work more than 8 hours. However, the above section does not apply to a child or
young person as a child or young person cannot be required to work for more than 7 hours in a
day or more than 8 hours if the young person is attending school or is an apprentice under
paragraph section 2(2) (Employment Act, 1955) . Therefore, Abbas should not be asked to work
more than 7 hours as their health will be affected. Also, they may not have the strength to carry
out their duties, increasing the risk of an accident. Additionally, any hours of work done which is
not with in the agreed working hours between the employer and employee is consider as
overtime as stated in section 60A(3)(b) of EA 1955 (Employment Act, 1955). Besides that, the
overtime period must be paid at least one and half times of the employees normal hourly fixed
pay rate. Thus, Abbas or any other workers who has worked overtime must be paid accordingly
and the employer should not exploit them just because they are still a child or young person.
From the scenario, although employees are given one day off per week, they have to come
back to work if the caf is busy or other workers fail to turn up for work. Section 4 of
number of days of work stated that no child or young person engaged in any employment shall in
any period of seven consecutive days be required or permitted to work more than six days (Child
and Young Persons Act, 1966). That being said, employees who had to forgo their day off would
have continuously worked for seven days which did not comply to the section above. On top of
which section 59(1) of rest day states that employees within the scope of the EA 1955 are
entitled to one rest day per week (Employment Act, 1955). Of which the rest day under section
59(1A) in the case of shift workers, the definition of the day for the purpose of his rest day is not
24 hours but is 30 hours (Employment Act, 1955). Although section 60 states that workers who

works on a job that requires shift work may be required to work on their rest days but Abbas is
still entitled with a rest day (Employment Act, 1955). The issue is not whether Abbas is required
to work on rest day but whether he is rewarded a rest day per week which he did not and has
breached the provisions of the Act.
The next situation is where workers who were absent because of illness had their pay
deducted and had to pay the medical bills by themselves. Based on section 60F(1), the
employee shall be entitled to paid sick leave by any other doctor or medical officer if no such
doctor was appointed by the employer (Employment Act, 1955). Of the entitled paid sick leave,
Abbas is entitled 14 days as he is employed less than 2 years (Employment Act, 1955). Abbas
should not have their pay deducted and should be granted a paid sick leave. Moreover, section 24
does not allow employers to make any deductions from the wages of an employee unless allowed
by the EA 1955 which in the case did not fall under (Employment Act, 1955). Other than that,
whether or not the employer provides medical reimbursement is entirely on their own discretion.
However, if Abbas were to be absent on sick leave under section 60F(2) with an uncertified
doctor or certified doctor but without informing his employer of such sick leave within 48 hours,
Abbas shall be deemed to be absent from work without permission and reasonable excuse
(Employment Act, 1955). Then after, the employer may deduct their pay as absent from work
unless otherwise the employer has to grant a paid sick leave.
Lastly, Abbas mentioned that the employee has to face with immediate dismissal if anyone
were to disobey the manager. In the case of Thavarajah and Low (2003), misconduct is any
act on the part of employee inconsistent with the faithful discharge of his duties towards his
employer. In other words, any breach of express or implied duties of an employee towards his

employer, therefore, unless it is of trivial nature, would remark as an act of misconduct.


Disobeying the manager or insubordination is one example of misconduct. In section 14 of the
EA 1955 states that if an employee commits misconduct; the employee can be terminated
without notice and without the payment of the amount in lieu of the notice (Employment Act,
1955). However, an inquiry must be conducted before taking such drastic action. Natural justice
must exist before the dismissal where in the case of Lord Dennings in B Surinder Singh Kanda v
Govt of the Federation of Malaya (1962) mentioned If the right to be heard is a real right which
is worth anything, it must carry with it a right in the accused to know the case which is made
against him. The accused must be given sufficient opportunity not only to know the case against
him but also to answer it. Therefore, in the case of Said Dharmalingam (1998) a domestic
inquiry must be held for employees under the EA 1955 even if the employee is caught red
handed committing the misconduct. Therefore, the employer must conduct an inquiry no matter
the misconduct prior to dismissal. On the other hand, Abbas may make representations in writing
to Director General (DG) under section 20(1) if he thinks the dismissal is without just cause and
excuse by the employer (Industrial Relations Act, 1967). However, Abbas must prove that the
dismissal is without just cause and excuse or any constructive dismissal otherwise the case will
be lost in court.
In conclusion, under section 99A, the employer has commit an offence or contravenes the
provision of the EA shall be liable to a fine not exceeding ten thousand ringgit (Employment Act,
1955). Moreover, the employer who failed to pay to any of his employees any overtime wages
under section 100(2) shall be recoverable as if it were a fine imposed by such court (Employment
Act, 1955). Section 100(5) includes any employer who fails to grant sick leave, or fails to pay
sick leave pay, to any of his employees shall recover the amount as if it were a fine imposed by

such court (Employment Act, 1955). In an overall, the employer has breached a number of
provisions of the Act and is liable to each of the breached actions.
Question 2
Termination of Worker
Termination of a worker is a painful and saddening process as the employment contract of the
employee has ended due to the decision by either the employee or the employer. Usually,
termination happened based on several reasons that the employer found that it is necessary to
terminate the services of the employee. The termination can be initiated by the employee or the
employer on several reasons such as the fixed period has ended, retirement, frustration, based on
the medical condition, or by death.
Based on section 11(1) of the EA, it explained that the first situation is where the period of the
contract of service of the employee has ended, unless otherwise terminated when the period of
time for which such contract was made has expired or completed (Employment Act, 1955). It
can be seen in section 11(2) of the EA 1955 clearly stated that a contract of service for an
unspecified period of time shall continue in force until terminated with this part. In other words,
for employees who have no specific period of service, he or she remains as an employee in the
organisation until further notice of continuing or termination (Employment Act, 1955). If the
employer terminates the employee not according to the law provision or without just cause and
excuse, employer can be charged in a lawsuit. Termination of contract may also be terminated
due to frustration of contract whereas a premature determination of an agreement is changed due
to the circumstances striking at the root of the contract and it destroy the basis of the agreement
thus discharge the parties involved of their obligations.

When the organisation wanted to terminate an employee, a notice of termination must be given
consent to them to notify them beforehand. In the case of a probationer, the definition of
probationer is not described in the EA 1955. But if the employer wishes to terminate the
probationer, the employer will still need to notify the probationer that they have been terminated
due to performances. According to section 12(1) of the EA 1955, it mentioned that either party to
a contract of service may at any time give to the other party notice of his intention to terminate
such contract of service (Employment Act, 1955). It is the role of the employer prior to inform
the employee an early notice of the termination. Furthermore, if the employer or employee want
to terminate their contract of service, the length of such notice are different based on the
employee year of service contribute to the organisation as mentioned in section 12(2) of EA
1955. Moreover, employee has been so employed for less than two years must be given not less
than four weeks of notice, employed for two years but less than five years should be given not
less than six weeks and employed for five years or more shall be given not less than eight weeks
of notice (Employment Act, 1955). For employees who fail to do so and wanted to leave
immediately, they are required to pay for the required days of notice as it is to protect the
employers since they are not given enough time to find other candidates to replace them.
But the termination without notice can be also initiated by the employee or the employer and it is
the same for both parties. Section 12(1) of EA 1955 mentioned that either party to a contract of
service may at any time give to the other party notice of his intention to terminate such contract
of service. Employee can terminate their services without notice when the term and conditions
are not stated in their contract, usually this happens when the employer ask the employee to do
something that are not in the contract or that the job endanger their life (Employment Act, 1955).
For instance, the account executives are being called by his employer to paint the interior of the

office. The employer may also terminate the employee if the employee has been absent at work
for consecutive 2 days or more without providing a valid reason as stated in section 15(2) of the
EA. Based on the case between of Epson Precision (M) Sdn Bhd v. Normala Malarvili Abdullah
(1997) 3 ILR 417, this is about a case of termination. Normala was terminated for being absent
from work without leave (NHRC, 2012), but Normala claims that her application of leave was
approved and she was allowed to take one months unpaid leave. The companys defence is that
such application was not approved and the termination is valid. In the end, the courts decision is
that her application was indeed not approved by the company and holds that her dismissal is with
just cause and excuse. Based on the above case, we can see the importance of notice as if no
notice is given, employers can terminate the employee without any reason.
Other than that, there are also certain situations where a worker can be terminated even before
the period of their contract of services ended. According to section 14 in the EA 1955, it explains
the termination of contract of the special conditions. Under this section branched out to three
different scenarios. Firstly, if the employee themselves are involved in a domestic inquiry, the
employer can terminate the employee after due inquiry if the employer dismiss without notice
the employer. The second scenario is when the employer feel that the safety of both the employer
and the other employees are endanger. This is stated in section 14(3) of EA 1995, describing that
the employer may also terminate the employee contract of service without notice if he or other
employees are immediately threatened by danger to the person by violence or disease such as
such employee did not by his contract of service undertake to run (Employment Act, 1955).
Employment of female workers
The numbers of female workers in the organisation are increasing throughout the years and it is
getting common to see that there are female workers that work in the higher level management.
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Most of the organisation is keen on promoting equality and fair treatment in the organisation
regardless of the differences in genders. Malaysia has provided several act that give privileges on
the protection to the female workers. The employment of female workers in an organisation has
some slight differences compare to the male workers, but both genders are equally eligible for
the benefit covered in the EA 1955. Part VIII of EA provides some guidelines in handling the
employment of women.
In section 34, it clearly stated that all female workers covered under the EA 1955 are prohibited
to work night time and underground work such as mining (Employment Act, 1955). Unlike the
male workers, female worker in Malaysia has a higher femininity and they are usually soft and
not physically strong as the male workers who can work labour work. Hence, the female workers
may not have the ability to protect themselves as they are at a disadvantage in strength, size and
even volume. Therefore, it is dangerous for female worker to work during night time. Based on
the EA 1955 section 34, it states that the organisation should not have the female workers to
work at any industrial or agricultural workplace in between 10pm to the next morning 5 a.m. to
ensure their personal safety (Employment Act, 1955).
As mentioned that female workers are unlike the male workers who has a higher stamina, female
worker tend to have a weaker stamina especially during their menstrual period or their
confinement period as their body will be weaker than usual. Henceforth, it was further explained
in section 34 saying that no female workers are require to work if she does not have eleven hours
of her own time after working at any industrial or agricultural workplace in between 10pm to the
next morning 5 a.m., unless approved by the Labour office (Employment Act, 1955). Female
workers are absolutely restricted from any underground working such as mining as it has a high
exposure to danger and physical strength to keep up the pace of work. This is supported by

section 35 of the EA 1955, clearly stated that no female employee shall be employed in any
underground working (Employment Act, 1955). Other than that, if a female worker is working in
a shift work system, employer must ensure that it is a rotating shift system so that they can have
enough rest.
Section 15(1) of Occupational Safety and Health Act (OSHA) 1994 clearly mentioned that the
duty of the employer and every self-employed person is to ensure the safety, health and welfare
at work of all his employees. Additionally, in support with the criteria mentioned at the
employment of female employee, the role of the employer is important, and must apply to the
DG for exemptions (Employment Act, 1955). The DG may exempt the employer but subject to
any condition DG may impose. Employer should make sure the safety well-being of the female
employee. If a female worker was to work at a night shift, the employer must provide
transportation to go to work and back to home for the female workers to protect their well-being.
Other than that, employer should also pay the female worker shift allowances at the prevailing
rate as given (Employment Act, 1955). These exemptions need to be re-new annually or biannually. According to section 36 of the EA 1955, stated that the minister may by order prohibit
or permit the employment of female employees such circumstances or under such conditions as
may be described in such order.
Aside from these protections, the EA 1955 also covered and protect the female employees by
making it a must to provide them with maternity protection and allowances under section 37 to
44 of EA 1995 (Employment Act, 1955). This shows that even if the female employees are on
their confinement, they are still protected and not exploited by the employers since there is still
discrimination towards female employees in the working environment.

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Minimum Wages
Wages, according to EA55 Section 2, is defined as the basic wages and all other payments in
cash payable to an employee in consideration for the work that is done by them accordance to
their contract of service. In other words, employees are compensated accordingly with wages for
their contribution.
However, ever since the announcement of the financial budget 2010 by Malaysias Prime
Minister, Dato Seri Najib Tun Razak, the wages payment has faced a major change. According
to MOHR (2013), it has been mentioned that the wages are now controlled and monitored by a
new policy that is known as the Minimum Wages Policy which will take full effect in January 1 st
2013. Simply said, this new policy is one of the governments policy instruments and its purpose
is to rectify the wages-setting mechanism for the lower income workers. Besides that, the policy
is also tasked to ensure that all workers are able to meet their basic needs where they can build
up and increase their quality of life.
Hence, it can be said that employees covered under EA are ensured that they all received a same
amount of minimum wage and will not be exploited by their employer in terms of setting
unrealistic and low wages. Not only that, it also benefits the employees as the implementation of
the minimum wages can ensure that the employees can earn more than Malaysias Poverty Line
Income which is RM 800 (MOHR, 2013). Basically, the minimum wages policy has made it a
must for employer to raise the minimum wages up to RM 900 per month for employees in
Peninsular Malaysia and RM 800 for employees situated in East Malaysia (MOHR, 2013). The
policy has even been further strengthen and covers foreign employees with the effect from
January 1st 2014. As of 2015, according to the financial budget for 2016, the minimum wages
rate has changed from the initial RM 900 and RM 800 to RM 1000 and RM 920 for West and
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East Malaysia respectively (Bernama, 2015). Further details of the minimum wages in terms of
weekly and daily calculation can be viewed in Fig. 1.
However, it could be that such policy is implemented without much awareness and guidance;
there are some employers who do not comply with it or that they have misunderstood the policy.
In the case of Kesatuan Pekerja-pekerja Kebangsaan Hotel, Bar & Restoran Semenanjung
Malaysia VS Crystal Crown Hotel & Resort Sdn. Bhd., such misunderstand has led to a trade
dispute among the employees and the employers (MTUC, 2014). The trade dispute originated
from the fact that the employer did not comply with the Minimum Wages Policy and paid the
employees with their salary plus the amount calculated using their service points. However, the
courts decision is that employees are to be paid with minimum wages and the hotel would
retain 10% of the 100% service charge imposed in all bills monthly. The remaining 90% would
be fully distributed to all employees covered within the agreement.
Hence, it is the duty of employer to comply and fully understand the policy as failure to do so
will result in penalty. For first offence, employers are to be fined with not more than RM 10,000
and could be ordered to pay the difference of the minimum wage and actual wage to the
employees. If it is a continuous offence, the employers would be penalized to pay a daily fine of
not more than RM 1000 starting from the day the employer is deemed guilty. Additionally, there
are also penalty for repeated offence where employers are to be fined for not more than RM
20,000 or imprisonment that does not exceed 5 years (MOHR, 2013).
One recommendation is that both West and East Malaysia should have the same minimum wages
rates instead of the current imposed rate. This is mainly because of the fact that all those that are
covered under the policy are employees who contribute to the development of Malaysia, be it
local or foreign employees, and should be treated fairly and equally.
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Rest Days
In Malaysia, employees that are covered under EA55 are entitled for one rest day per week
under the provision of Section 59 (1). One thing to take note is that for employees that are
currently under maternity leave, they do not use up their entitled rest day. Besides, different
category of workers has different entitlement. For example, shift worker are entitled to a rest day
but the measure of a day is different from normal 24 hours but at least 30 hours (Employment
Act, 1955).
In relation to workers rest day, employers are expected to carry out their roles and
responsibilities as well as assisting the supervisors in preparing a roster which the rest day fall on
before the commencement of the month (Employment Act, 1955). This is to ensure that
employee get noticed and informed about their rest day during a month. Apart from that,
employers are required to keep the rest day roaster for most 6 years so that it can be ready for
inspection by Labour Department when necessary (Employment Act, 1955). On top of that,
employer has certain degree of responsibilities in employee health and well-being. In relation to
this, employer should make sure that all employees are entitled to rest day accordance to the
enforcement of law by avoid requiring them to work on rest day as few as possible.
Generally, the workers benefit a lot from rest day entitlements. First, through the enforcing laws
that stressed on rest day entitlement, it promotes fairness of rest day entitlement. By giving rest
day to them, it ensures that workers get enough rest for both physical and mental. Accident
caused by fatigue in working place is quite common. Hence, by giving workers enough rest, it
helps the company to reduce accidents rate in return. Through this, company is able to cut down
cost on paying medical fee or compensation to injured workers. As in the case of Kesatuan
Kebangsaan Pekerja-pekerja Hotel, Bar & Restoran Semenanjung Malaysia and Tradewinds
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Hotels & Resorts SDN BHD no: 26(4)/2-77/09, here the union has request that the employee
shall be paid for minimum RM6 per hour or 2 days wages at the ordinary rate pay for working on
rest day regardless of the hour of work in which it is less than normal working hours. However,
the hotels only propose RM4.50 by following most of the hotel pay rate shown in EA 1955.
Hence, the courts decision is that if workers are required to work on rest day, the minimum pay
has to be RM5 instead of the previous RM4.50. From here we can see that, on mutual agreement
if the workers are willing to work on their rest day, employee should be pay more in exchange of
their contribution. Through this, it ensures that workers get reasonable compensation or pay in
return of sacrificing the rest day and work hence protecting the employees from not being
exploited. In case of employer failed to comply with law under Section 60 of EA 1955, penalties
are in the decision of court on amount of wages recoverable if fine is imposed as stated in
Section 100 (Employment Act, 1955).
Public Holiday
In Malaysia, due to the various racial that we have, there are lots of public holidays in Malaysia.
Therefore, to make it fair, section 60(d) is establish to ensure that each employee covered under
EA 1955 are given at least 11 public holiday each year, 5 of them being compulsory. Such
compulsory holidays are the Labor Day, National Day, Malaysia Day, State Rulers birthday and
Yang Di-Pertuan Agong Birthday (Employment Act, 1955).
In relation to public holidays, employer has the responsibility to ensure employee need not work
on that day. However, if the workers are required to work, it is stated in Section 60(d) (3) of EA
(Employment Act, 1955) that employer has to pay them a higher rate than ordinary pay in return.
For example, worker who is asked to work on public holiday should get 2 days wages on
ordinary rate of pay. In case of workers work overtime during public holidays, employer should
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pay them at least 3 times of his hourly rate pay. Apart from that, employers should declare the
following working days as paid holiday as a substitution in case the holidays fall on employees
rest day (Employment Act, 1955).
Regarding public holiday payment, if employer does not provide workers paid holiday, their
total amount of income will decrease and the people who will be affected the most are those from
lower income group. Hence, this act helps to safeguard the basic benefit that a worker should be
given. Same as the contravene on rest day entitlement, if employer fails to pay any wages
according to Section 60(d) to their workers for work done during public holiday, the final
decision is in the court to set the amount of recoverable wages or fine will be imposed
(Employment Act, 1955).
In order to better secure workers benefit, there are few recommendations to improve the law for
both the areas of rest day and public holiday. First, employers are encouraged to give another rest
day for employees as replacement if they have performed work on actual rest day. This is
because some employees value the rest more than being paid. Besides, the law should highlight
the restriction on employee working on rest day (Employment Act, 1955). For example, each
worker is only allowed to work during rest day for maximum two times in a month. This can
make sure that workers really get enough rest after a long period of work aside from getting extra
pay as it does not help in get rid of tiredness.

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Reference
1. MOHR, 2013. Minimum Wages Portal: Background to minimum wages in Malaysia.
Viewed

on

19

November

2015.

Available

from:

<http://minimumwages.mohr.gov.my/employees/about-minimum-wages-policy/>
2. MOHR, 2013. Minimum Wages Portal: Non-compliance. Viewed on 19 November 2015.
Available from: <http://minimumwages.mohr.gov.my/news-publications/law/>
3. MTUC, 2013. Case Award between Kesatuan Pekerja-pekerja Kebangsaan Hotel, Bar &
Restoran Semenanjung Malaysia VS Crystal Crown Hotel & Resort Sdn. Bhd. Viewed on
19

November

2015.

Available

from:

<http://www.mtuc.org.my/sandbox/wp-

content/uploads/2014/07/AWARD_20809.pdf>
4. Bername, 2015. Budget 2016: Minimum wage in Malaysia was raised to reduce
dependence on foreigners. Viewed on 19 November 2015. Available from:
<http://english.astroawani.com/malaysia-news/budget-2016-minimum-wage-malaysiawas-raised-reduce-dependence-foreigners-77973>
5. Notional Human Resource Centre Malaysia, 2012. Court Cases and Awards, Absent from
Work

without

leave.

Viewed

on

20

November

<http://www.nhrc.com.my/court-cases-and-awards>
6. Employment Act. 1955.
7. Child and Young Persons (Employment) Act. 1966.
8. Industrial Relations Act. 1967.

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2015.

Available

from:

Appendix
Figure 1. Minumum Wages Rates (http://minimumwages.mohr.gov.my/employees/aboutminimum-wages-policy/)

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