18 March 2013

HR MANAGEMENT - Termination of Employment






TERMINATION OF EMPLOYMENT

By Faudzil Harun




Breach of Contract by Employer         

Section 15
(1)
An employer shall be deemed to have broken his contract of service with the
employer if he fails to pay wages in accordance with Part III.
      
Section 13 (2)
Either party to a contract of service may terminate such contract of service without notice in the event of any willful breach by the other party of a condition of the contract of service.

Breach of Contract by Employee

Section 15 (2)

An employee shall be deemed to have broken his contract of service with the
employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.       

Section 13 (2)
Either party to a contract of service may terminate such contract of service without notice in the event of any willful breach by the other party of a condition of the contract of service.



Other Situation for Termination of Employment        


Voluntary Termination of Employment
Termination of the contract of employment can be brought by the action of the employee by way of : Voluntary Resignation, Retirement, Medical Boarded Out or Death of Employee.


Frustration of Contract
The general principles of the doctrine of frustration is that if the performance of the contract of employment is rendered impossible to perform by some intervening events, then it will be terminated by frustration. The most common examples of frustration of contract in employment are illness and imprisonment.

The crucial thing in frustration of contract in the employment situation is not the period of absence but the fact that there now exist circumstances, which would not allow the contract to subsist. The employee will not be able to return to his job by reason of his health or physical condition or he is in jail for a sufficiently long period, which compels the employer to take on a replacement without which the job will not be done.

If the employee is not able to turn up for work for a few days or even a few months because he is ill, it will not frustrate the contract if there is possibility or indication that the employee can return to work after a period of leave and a course of treatment.

The effect of frustration is the termination of the contract without the employer or the employee terminating it.


Abandonment of Employment
Mere absence from work does not tantamount to an abandonment of employment and to automatic termination of contract. Breach of Section 15 (2) of the Employment Act, 1955 does not ipso facto cause the defaulting employee’s contract with his employer to be terminated.

There is no such thing as a statutory termination of employment contract. The employer may proceed to terminate the contract under Section 13 (2) of the Employment Act, 1955. But he cannot assume that the employee has abandoned his employment. The absence must be for a sufficient long period to indicate the employee does not intend returning to his employment.

Industrial Court’s Opinion on Abandonment of Employment

1.  MAS v Selvamalar – I/C Award 54/82
     The Industrial Court held that the employee had abandoned her contract 
     when she had absented without leave for a few weeks.

2.  MISC Bhd v Karamjit Singh a/l Terlok Singh – I/C Award 299/96
     The court quoting Lord Denning in London Transport Executive v 
     Clarke(1921)ICR355 held : “Long leave without approval is inconsistent 
     with the continuance of the contract. Workman has dismissed himself.”

3.  Jeepwanlal Ltd v Their Workmen (Indian Case) – Quoted in Alvin’s 
     Employee Misconduct, it was held : 

     “If an employee continue to be absent from duty without obtaining leave 
     and in an unauthorized manner for such a long period of time … an
     inference may reasonably be drawn from such absence that by his absence 
     he has abandoned service.”


Forced Resignation
Forced resignation is actually an indirect dismissal.  

Cyril Grunfield in his book – The Law of Redundancy (3rd edition) quoted :
“The term indirect dismissal is used to distinguish cases of termination by the employer in which, while he has not dismissed directly, he has also not broken the contract so as to justify constructive dismissal. The main example of indirect dismissal is where the employer invites the employee to resign in circumstances in which it is clear that, otherwise the employee will in any case be dismissed.”     

It is well established principles of Industrial Law that if it were proven that an employer offered the employee the alternative of “resign or be dismissed” and without anything more, and the employee resigned, that would cause a dismissal.

The principle is said to be one of causation – the causation being the threat of the dismissal.
It is the existence of the threat of being dismissed, which causes the employee to be willing to resign.

In Jennico Associates Sdn Bhd v Lilian Theresa De Costa – I/C Award 606/96, the Industrial Court held :

“It will be clear that the underlying basis of the doctrine of ‘forced resignation’ is the existence of facts showing that an employee was put under compulsion to resign; and that if she declined to do so, the employer would proceed to dismiss her in any event. The employee might have been compelled to hand in her letter of resignation upon the request or invitation of her employer or at the dictation of the latter. She might have done so upon receiving a demand or an ultimatum from her employer. There might be disclosed in the evidence elements of persuasion, for example that it would be better for the employee to resign with a record unblemished by a dismissal or even the provision of a favourable, or at least a neutral letter of reference to prospective employers.”


Option to Resign
If an employer tells his employee that if he does not like to work in the place he can leave if he wants to and the employee walks out this will not be construed as a dismissal. It has been established that the employer is at liberty to propose that any employee leave his employment by payment of an agreed compensation and if the employee accepts the proposition then there is no dismissal.      

The Industrial Relations Court of Australia in Steward v Pullin (1994) 58 IR322 held that :
for there to be a resignation on the part of the employee it must be apparent that there was a real choice on the part of the employee to be exercised.”


Retrenchment
Retrenchment involves the reduction of the workforce due to downturn of business. There are cases where retrenchment happens when a particular kind of work have cease. It is also possible to reduce workers with the use of technology or efficient methods of doing a job. Retrenchment also occurs when an employer ceases or sells his business.

It is the right of the employer to reorganize his business in any manner for the purpose of economy or convenience or undertake a retrenchment exercise so long as it is bona fide.

Retrenchment is necessary incidence of running a business, but retrenchment is justified only when due to shortage of work that had caused the surplus of employees. The questions in justifying the retrenchment are :

1.  Whether the retrenchment was justified by the circumstances of the case?
2.  Whether grounds given by the employer are true?
3.  Whether the retrenchment was motivated by bad faith and a desire to
     victimize or harass the employee whom for some ulterior reasons the 
     employer wanted to discharged.

Code of Conduct for Industrial Harmony
This code is an agreed document endorsed by both employers and employees. The Industrial Court has given recognition to the provision of the code in various awards. The code places some burden on the employer who intends to carry out retrenchment exercise. Some of the recommended steps by the code for the employer to consider are :

1.   Limitation on recruitment.
2.   Restriction of overtime work.
3.   Restriction of work on weekly rest day.
4.   Reduction in number of working days or shifts.
5.   Reduction in number of hours of work.
6.   Re-training and transfer of employee to other work.


Last In First Out Principle (LIFO)
It has been established in industrial law that in effecting retrenchment, an employer should comply with the industrial principles of “last in first go” unless there are sound and valid reasons for departure. When other things are equal, this principle must be followed. The employer is not denied freedom to depart from the principle for sufficient and valid reasons.
This is more rational as an employee with long years could be promoted or transferred to a new job.