Employment Law

WHAT IS EMPLOYMENT ?
Employment means work or service performed by an individual to the task at hand for another person or entity in exchange for wages or other remuneration.

WHAT IS EMPLOYMENT LAW ?

Employment Law is the law which regulates the operation of the labour market in general and the employment relationship between employers and employees in particular.

 UNDER WHAT CIRCUMSTANCES CAN A CONTRACT OF SERVICE BE TERMINATED BY EITHER THE EMPLOYER OR EMPLOYEE ?

 Where a contract of service is considered broken, an employer can dismiss an employee. A contract of service is considered to have been broken when an employee has been absent from work for more than 2 consecutive working days without prior leave from the employer or without informing or attempting to inform the employer at the earliest opportunity during such absence with reasonable excuse.

 An employer may terminate the contract of service where the employee is found guilty of misconduct, misdemeanor or negligence. An employee has the right to terminate the contract of service, where an employer fails to pay wages within seven days after the wages period.

A contract of service can also be terminated without notice : by paying to the other party or indemnity in lieu of notice if there is a willful breach by the other party of a term or condition of the contract of service Where the contract of service has expired or work being completed, the contract may also be terminated. Written notice being given by either party may also terminates a contract of service.

WHAT IS THE NOTICE PERIOD REQUIRED TO TERMINATE A CONTRACT OF SERVICE ?

 An employee may resign by giving notice of resignation or termination to the employer to terminate the contract of service. An employer may also dismiss an employee by giving notice of termination to such employee. In both situation, the length of notice shall be the same pursuant to the contract of service.

Where the period of notice of termination is not specified in the contract of service, the notice period shall be as follows less than 2 years of service minimum 4 weeks 2 years or more but less than 5 years of service - minimum 6 weeks 5 years of service or more minimum 8 weeks

WHAT SHALL I DO IF I HAVE BEEN TERMINATED WITHOUT CAUSE OR EXCUSE BY MY EMPLOYER ?

 Where you have been terminated without cause or excuse by your employer, you can enforce your civil right and remedies for any breach or non-performance of the contract of service by any suit in court or you can file in a written representation within 60 days of the dismissal to the Director General of Industrial Relations Department to be reinstated pursuant to section 20 of the Industrial Relations Act, 1967.

 Where you are a female employee and your employer is found guilty of terminating you during your maternity leave, your employer shall be liable, on conviction to a fine not exceeding RM2,000.

 WHAT ARE THE CIRCUMSTANCES UNDER WHICH AN EMPLOYEE IS NOT ENTITLED TO TERMINATION OR LAY-OFF BENEFITS ?

Employed for less than 12 months on date of termination The employee voluntarily terminates the contract of service Where the employee commits misconduct inconsistent with the fulfillment of the expression or implied condition of service after due inquiry. Where the employee attains the age of retirement as stipulated in the contract of service The contract of service is renewed

 The employee re-engaged on terms and conditions not less favorable than his previous contract 7 days before the date of termination, the employer has offered to renew the contract on no less favorable terms The employee leaves the services without paying the employer the indemnity due contract of service after receiving due notice of termination of the contract or without employer's prior consent An employer shall pay termination or layoff benefits to an employee not later than 7 days after the termination.

WHAT IS THE ACTUAL AMOUNT OF LAYOFF BENEFITS PAYABLE ?

Under the Employment (Termination and Layoff Benefits) Regulations 1980, an employee will be entitled to layoff benefits not less than the following : 1 to 2 years service - 10 days wages for each year service more than 2 years but less 5 years service - 15 days wages for each year service 5 years service or more - 20 days wages for each year service For an incomplete year, the calculation will be on a pro-rata basis to the nearest month.

Sexual Harassment
ARE THERE ANY LAW IN MALAYSIA TO DEAL SPECIFICALLY WITH SEXUAL HARASSMENT CASES ?

 NO
There is only one law in existence that comes close to dealing with the issue of sexual harassment in Malaysia - Penal Code, section 509.

Penal Code, section 509 provides that :

"Whoever, intending to insult the modesty of any women, utters any words, makes any sound or gesture or exhibit any object, intending that such word or sound shall be heard, or such gesture or object shall be seen by such woman, shall be punished with imprisonment for a term which may extend to 5 years or with fine, or with both".

 This existing law deals more with physical aspects. Sexual harassment cases are currently handled by the police and claims are made under the Penal Code, section 509. Nevertheless, the Industrial Relations Act 1967, may be amended to provide for action against sexual harassment perpetrators. This amendment is to curb sexual harassment. In the meantime, the Ministry of Human Resources is using its influence to encourage employers to adopt the Code of Practice against sexual harassment and an internal mechanism to prevent sexual harassment at the workplace. This code was introduced in 1999.

 The Code of Practice outlines the statement of purpose, legal definition of harassment, descriptions of behavior that constitutes harassment, how employees should handle harassment, how the company handles complaints, what kind of disciplinary action and name and phone numbers to lodge a complaint. Majority of businesses in Malaysia do not have any form of policy against sexual harassment.

Occupational Safety & Health Act (OSHA)

provides the legislative framework to secure the safety, health and welfare among all Malaysian workforce and to protect others against risks to safety or health in connection with the activities of persons at work

 All employers with more than 5 employees are required by the legislation to formulate a written Safety and Health Policy (OSHA).

Employees Provident Fund (EPF)

All employees in Malaysia who have reached the age of 16 and employed under a contract of service whether express or implied, and whether oral or in writing must be registered as a member of the Employees Provident Fund. An employer will contribute 12% of the employee's wages and the employee contributes 11% of the monthly wages towards the employee's account.

 with effect from 1st August 1998, all foreign workers and expatriates earning less than RM2,500 per month are also required to contribute to EPF with the exception of certain categories.

 Those who are exempted from making the compulsory contribution are

employees or workers holding Employment Pass or expatriates holding Visit Pass (Temporary Employment) whose monthly wages is not less than RM2,500 Thai workers who enter Malaysia with a Territorial Pass Seamen Foreign domestic maids Self-employed persons Out-workers who do cleaning and alteration repair works Persons detained in custody, in prison, Henry Gurney School and mental hospital Pensioners

Social Security Organization (SOCSO)

WHO IS COMPULSORY TO CONTRIBUTE TO SOCSO ?

 An employee employed under a contract of service or apprenticeship and earning a monthly wages of RM2,000 and below must compulsorily register and contribute to SOCSO regardless of the employment status whether it is permanent, temporary or casual in nature. An employee must be registered with the SOCSO irrespective of the age.

SOCSO does not cover the following categories of persons

A person whose wages exceed RM2,000 a month and has never been covered before. Government employees. Domestic servants employed to work in a private dwelling house which includes a cook, gardeners, house servants, watchman, washer woman and driver. Employees who have attained the age of 55 only for purposes of invalidity but if they continue to work they should be covered under the Employment Injuries Scheme. Self-employed persons. Foreign workers.

More information pls refers to:

www.lawyerment.com.my ----THE END---~THANKS~