CONDITIONS FOR DISMISSAL
By Faudzil Harun
Reasons for Dismissal
Employees protected by the Employment Act, 1955 still file claims in the Labour Courts for wages in lieu of notice for wrong dismissal, retrenchment benefits and any wages or dues owing to them under the Employment Act, 1955 or under their terms and conditions of employment (including implied terms).
However, the Industrial Relations Act, 1967 has opened up other possibilities. If the employee feels that the action to dismiss him was unfair, he would file a claim for reinstatement. The Industrial Court are courts of equity and good conscience, and will not interfere with the bona fide exercise of powers, which are given to the management by common law, or by contracts of service.
It is a basic principle of industrial law that the Industrial Court would
interfere not only if there has been victimization but also where it is of the
opinion that the action taken by the management was perverse, arbitrary,
baseless or unnecessarily harsh or was not just or fair. The court would set
aside the dismissal and order reinstatement or compensation in lieu.
Reasons for Dismissal Must be Inform
In all cases of termination and dismissal, it is important that the employee be informed of the reason for the termination or dismissal. Failure to provide the reasons will render the dismissal unfair as this can be interpreted as indicative that the employer had no good reason to terminate the employment. The employee is entitled to know why he is being dismissed or having his contract terminated. Reasons of dismissal must be stated in the letter of dismissal. The reasons for dismissal must not be other than the reasons contained in the charge sheet.
In PharMalaysia Bhd v Supramaniam Vellu – I/C Award 114/97 the court held that : “the reason for dismissal should have been stated in the letter of dismissal. Court is perturbed by company’s action of dismissal first and reasons for dismissal later.”
Malhotra in the Law of Industrial Disputes, 4th edition (page 418) states : “The employer cannot justify his action on any ground other than those contained in the charge sheets. If the charges are vague and the particulars of the charge are not disclosed to the workmen, the inquiry will not be in conformity with the rules of natural justice.”
Malhotra in page 818 states : “The tribunal has to confine itself to the charges leveled against the workman in the charge sheet on the basis of which the penalty was imposed. It is not therefore open to the management to level new charges against the workman before the tribunal which did not form the basis of the order of punishment or did not figure in the domestic inquiry.” The letter of termination must indicate the reasons for the dismissal.
Complaint of Unfair Dismissal by Employee
In Talasco Insurance Sdn Bhd v Liew Yet Onn (1995) 1 ILR 596, quoting from Devis W. & Son. V Atkins (1977) AC 931 held :
“On a complaint of unfair dismissal the tribunal was not concerned with the contractual relationship at common law between employer and employee but only with the bare facts of the dismissal: i.e. whether the employer could satisfy the tribunal that he acted reasonably in dismissing the employee. The tribunal had to confine itself to such facts as were within the knowledge of the employer at the time he formulated his reason for dismissing the employee and therefore, the information about the employee’s conduct which came to the attention of the employer after he had been dismissed was not relevant to the question whether the dismissal was unfair.”
In all cases of termination and dismissal, it is important that the employee be informed of the reason for the termination or dismissal. Failure to provide the reasons will render the dismissal unfair as this can be interpreted as indicative that the employer had no good reason to terminate the employment. The employee is entitled to know why he is being dismissed or having his contract terminated. Reasons of dismissal must be stated in the letter of dismissal. The reasons for dismissal must not be other than the reasons contained in the charge sheet.
In PharMalaysia Bhd v Supramaniam Vellu – I/C Award 114/97 the court held that : “the reason for dismissal should have been stated in the letter of dismissal. Court is perturbed by company’s action of dismissal first and reasons for dismissal later.”
Malhotra in the Law of Industrial Disputes, 4th edition (page 418) states : “The employer cannot justify his action on any ground other than those contained in the charge sheets. If the charges are vague and the particulars of the charge are not disclosed to the workmen, the inquiry will not be in conformity with the rules of natural justice.”
Malhotra in page 818 states : “The tribunal has to confine itself to the charges leveled against the workman in the charge sheet on the basis of which the penalty was imposed. It is not therefore open to the management to level new charges against the workman before the tribunal which did not form the basis of the order of punishment or did not figure in the domestic inquiry.” The letter of termination must indicate the reasons for the dismissal.
Complaint of Unfair Dismissal by Employee
In Talasco Insurance Sdn Bhd v Liew Yet Onn (1995) 1 ILR 596, quoting from Devis W. & Son. V Atkins (1977) AC 931 held :
“On a complaint of unfair dismissal the tribunal was not concerned with the contractual relationship at common law between employer and employee but only with the bare facts of the dismissal: i.e. whether the employer could satisfy the tribunal that he acted reasonably in dismissing the employee. The tribunal had to confine itself to such facts as were within the knowledge of the employer at the time he formulated his reason for dismissing the employee and therefore, the information about the employee’s conduct which came to the attention of the employer after he had been dismissed was not relevant to the question whether the dismissal was unfair.”
Due Inquiry
A due inquiry means a proper inquiry process in establishing the truth based on evidence in accordance with the principle of natural justice and that the hearing must be by an impartial tribunal.
What Constitutes Due Inquiry?
The kind of action that should satisfy the requirements of Section 14 of the Employment Act, 1955 is for an earnest investigation of the facts by the management into an alleged complaint, and an opportunity given to the employee to answer the charges.
Once the investigation indicates there is a need for an inquiry, the employee must be informed in writing the charges against him. The letter must also tell him that he is invited to attend the inquiry to defend him. The message must also include the employee’s right to hear and see the evidence in support of the charges. The employee must be informed that he can challenge the charges and cross examine company witness. The employee’s right to bring his own witness must also be clearly stated in the letter.