Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
I. MISCONDUCT
II. POOR PERFORMANCE
III. RETRENCHMENT
IV. RELIEFS & REMEDIES
In Harris Solid State (M) Sdn Bhd & v. Bruno Gentil s/o Pereira
& Ors [1996] 3 MLJ 489 held that retrenchment motivated by
mala fide intentions would render the dismissal to be unfair. In
that case, the termination of the services of several employees
was carried out for union busting purposes.
Retrenchment Procedural
Aspects
i. The Code of Conduct for Industrial Harmony
1975
ii. Notification to Trade Union under Collective
Agreement (See Dunlop Industries
Employees Union v. Dunlop Malaysian
Industries Bhd & Anor [1987] 2 MLJ 81).
iii. Notice to workman notice of termination
of contract as required under the contract of
employment (Section 12 of the EA).
iv. Notification to labour department (Section
63 of the EA 1955).
Code of Conduct for Industrial
Harmony 1975
Useful starting point: Compliance with The Code of
Conduct for Industrial Harmony 1975, which generally sets
out the guidelines/measures or industrial practices and
procedures which the employer should adopt before
embarking on a retrenchment exercise.
In the case of Nor Salehan Ahmad v. Alcatel-Lucent
Malaysia Sdn Bhd [2008] 3 ILR, the Court held as follows:-
It is admitted that the Code has no legal force but it is a
relevant factor for the purpose of determining the overall
reasonableness of the employer's actions in dismissal
cases. (emphasis added)
Other Procedural Aspects
If there is a collective agreement, check terms to see whether
advance notice needs to be given to the Union before
implementing a retrenchment.
Post-dismissal earnings
Where employee secures gainful employment after dismissal,
Court will make reasonable deduction in compensation to
account for post-dismissal earnings.
Deduction ranges from 20 50% of back wages.
Challenging Awards of the
Industrial
Primarily by way of judicial review in the High Court.