INTRODUCTION TO INDUSTRIAL LAW

Introduction.

The process of hiring and firing is deceptively simple. Organizations in the West and particularly in the context of Asia, many Companies frequently face legal suits from disgruntled employees. There are many factors for these state of affairs. The reasons are rather difficult to analyze but it must be analyzed. It is prudent to iron out the imperfections in employers own organization rather than to wait for the Industrial Courts to do so.

This years statistics shows that there are thousands of cases still pending in Courts. In the event of an award being handed down by the Industrial Courts, the payments and compensation made are by no means insubstantial. Further this sets the precedent for other employees to follow suit. And then one lawsuit follows another lawsuit.

The Human Resource Department which handles such issues are sometimes overwhelmed by this state of affairs. The situation is further compounded where there is no lawyer for the Department who is proficient in handling these delicate matters. It is the purpose of this training to specify the origin of these problems between the Company and it’s employees and to have a practical systematic approach in dealing with these issues.

The first step in this process is to be familiar with the particular legislation in question. When a person is acquainted with the particular law, HR Personnal are better fitted for the task at hand. A knowledge of the relevant case law is a must- especially when handling issues like constructive dismissal and the law relating relating to Domestic Enquiries and Dismissals.

There will some extended in depth reference to Syed Ahmad’s Idid book on “The Law on Domestic Enquiries & Dismissals” and also the “ Questions & Answers on Labour Law” by Professor Latiff Sher Mohammad.

As a first step , for the HR Personnel to get started, the HR Department has to ensure that the following factors are already in place. A few things stated here may come as a little surprise, but it is best not to assume anything.

Material. The first necessary factor in this respect is to have material that reflects the present state of the law. It is highly recommended that HR Managers subscribe to the Industrial Law Reports. This is the only way the HR department can know what is the current development of the law in a particular area. The law is not static- it changes and therefore textbooks, though they are useful, are an incomplete source of knowledge.

2. Consistency: HR Department must have a consistent system in the form of standard forms and procedures in dealing with the various aspects of Employee Discipline. For Eg If late coming is not condoned for employees , than that aspect must not be condoned for all employees in that particular Dept. Otherwise Employees will suspect that there are hidden preferences.

3. Plan - Have a vision for the HR Personnel to go on Training at least twice a year. A 2 day Seminar is an ideal time to pick up valuable knowledge of the latest development in the law.

4.Openess- In dealing with employees, HR must have a sense of openness so that in the event there is a grouse or a complaint, the Employees can make known their grievance to the Department concerned. There must at least be a listening year so that problems can be solved at the earliest stage.

Objectives
The 2 day Seminar will start off with a general introduction of the law and the development of the law. This will be followed by a study of the relevant statutes in question. There will be lots of case law studies and actual disputes that were conducted in the Industrial Court.
After the Seminar the participants will be better appreciate and will have a working knowledge of the functions of Industrial Law

Know how to draft the proper letters relating to the various aspects of Staff Disciplne
The mechanics of conducting a Domestic Enquiry
Know the difference between a Dismissal and a Constructive Dismissal
Know the procedures to Firing an Employee for Misconduct
The following material covers major aspects of Employer & Employee relations in Malaysia. In particular the Industrial relations Act 1967, The Employment Act. Trade Unions will be discussed if there is a request for it.

COURSE OUTLINE
1 Introduction to Labour Laws of Malaysia.
(a)The Employment Act (b) The Industrial Relations Act (c) The Sabah Labour Ordinance

2. The Industrial Relations Act 1967 (a) The Meaning and Legal Effect of Sect 20 IRA 1967 (b) The Limitations of Sect. 20 IRA 1967

3.The Common Law
(a) the legal position under the Common Law (b) development of Case Law © The current state of the law

4. The Employment Contract
(a) the Letter of Appointment- the legal position (b) misrepresentation of employees C.V© Is Misrepresentaion a ground for dismisssal

5. The Managerial Prerogatives
(a) the transfer clause (b) promotion & demotion

6. The Legal Position of Probationers.
(a) Probationers rights (b) Are Probationers automatically confirmed after the Probation period.?

7.Promotion & Demotion
(a) Grounds for promotion (b) demotion and legal problems

8. Transfer and Secondment
(a) Transfer Clauses

9.Closure and Termination- Termination and Lay Off Benefits. [a] The legal issues when the Company intends to lay off employees

10.Redundancy and Retrenchment [a] A very sensitive area to deal with. The procedural safeguards to active the process of Retrenchment

11. The Role of the Industrial Court
[a] Court of Equity [b] The mechanism of the Industrial Court

12Reference Under Sect 20 IRA 1967. [a]Commencement of Proceedings

13. Conducting a Domestic Enquiry. [a] The present state of the law [b] Rules of Natural Justice

14.Private Conduct [a] The Dilemma [b] Conduct on off duty hours

15.DI Procedure and the rules of Natural Justice [a] The Right to be heard [b] The Right to know the allegations against the Accused. [c] The Rights to defence

16. Defective Enquiry

[a] The case of Dreamland corporation

17.DI- the process
[a] The Complaint [b] The Investigation [c] The Process

18.-Disciplinary Actions- Penalties
[a] Caution [b] Verbal Warning [c]Deferment [d] Downgrade

19-Sample Letters
[a] Letter of Allegation [b] Letter of Explanation [c] Letter of Warning [d] Letter of Termination

20- Acts of Misconduct [a] Absenteeism [b]Infringement of Company’s Regulations [c] Willful Insubordination [d] Theft, Fraud & Dishonesty

21.Constructive Dismissal Dr. A Dutt v Assunta Hospital Cathay Organization v Wong Chee Hong
22. Frequently asked questions.

23. Case Laws