Recently, a Chinese Muslim restaurant terminated a worker due to the issue of a staff member wearing a cross necklace, which went viral on social media recently. In addition to expressing regret to anyone who felt upset or uneasy after watching the viral video, the restaurant management verified that the individual no longer works there.
Social media users differed in their opinions, with some arguing that the guy should sue his former employer for religious discrimination and others saying the dismissal was unfair.
What is unfair dismissal, and how do you file for compensation? Here is a quick guide for you.
What is Unfair Dismissal?
According to Section 20 (1) of the Industrial Relations Act 1967, if you were fired without cause or explanation, you may have been dismissed unfairly. Since “without just cause or excuse” is not defined in the Act, the specifics of each case will be determined by those circumstances. Employers must have a good reason—such as misbehavior or subpar performance—before they can fire an employee. If the employer is unable to offer a legitimate explanation, the dismissal could be unfair.
It is also unfair to fire employees for exercising their legal rights, including taking maternity leave or signing up for a union. Employees who exercise their legal rights cannot have their employment terminated by their employers.
Another circumstance that may be unfair dismissal is discrimination. It would be unjust and discriminatory for an employer to fire a worker because of the worker’s gender, color, religion, or other protected qualities.
Section 20(1) of the Malaysian Industrial Relations Act stipulates:
“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, he may 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.”
In Malaysia, one needs to take the subsequent actions to file a claim for unfair dismissal:
GET EVIDENCE:Â Employees should gather as much evidence as possible to support their claim if they believe their termination was unfair. Emails, letters, witness accounts, and other pertinent paperwork may fall under this category.
REACH OUT:Â Contact the Director-General (DG) of the Industrial Relations Department (IRD) to lodge a formal complaint. When filing a complaint alleging unfair dismissal, it is important to provide information on the specifics of the dismissal, the employer’s justifications, and any supporting documentation.
PARTICIPATE IN MEDIATION:Â Following the complaint filing, the IRD will arrange for a mediation session between the employer and the employee to settle the issue out of court. An IRD officer will act as a mediator to bring the parties together to reach a mutually agreeable resolution.
These meetings are not open to those with legal representation. If that individual isn’t an advocate or solicitor, both parties may designate another person to represent them at the meeting. To request this representation, the parties must submit a formal application to the DG. Typically, this takes the shape of a family member or a trade union representative. There won’t be a need to court if the parties can resolve their disagreements.
Unfair Dismissal Remedies
The court may impose any one of the following remedies:
Restoring the employee to their position is rare. After all, work is a personal relationship, and relationships have probably already suffered by now.
The court may grant compensation to the employee. Typically, the court determines by taking one month’s salary into account for each year the employee worked in that capacity—the duration of service, the employee’s most recent pay period. And the specifics of the termination will all impact the amount of compensation.
Refundable earnings are those that the employee would receive had they not been fired. This could be offered in addition to payment. Nevertheless, the total back pay awarded is limited to 24 months. This amount may also contain interest.
Additional legal remedies include directing the company to stop using unfair labor practices. It will also require them to give the worker a reference letter.
This is not legal advice. Before pursuing any legal action, we always advise speaking with a lawyer.
