POST DISMISSAL EARNING AND REDUCTION OF MONETARY COMPENSATION FOR UNFAIR DISMISSAL IN MALAYSIA
Abstract
At common law, a wrongfully dismissed workman is bound to make reasonable exertion and show diligence in endeavouring to procure alternative employment. Failure to accept suitable alternative employment or take reasonable steps to procure the same would result in a deduction from the total amount recoverable for unfair dismissal calculated on a sum representing the amount the workman might have earned during the period. If the workman is unable to secure a comparable job, or where a comparable job did not exist having regard to the nature of his responsibilities and skill requirement, rate of pay and the location, he is not bound to accept such employment nor will a reduction be warranted. The burden is on the employer to present credible evidence that it is more likely than not that the workman failed to mitigate the loss, and the court will consider the steps taken by the workman to mitigate the loss. In Malaysia, the Industrial Court is required to reduce or scale down the back wages when there was a post dismissal earning after the dismissal, a percentage of such earning shall be deducted from the back wages. The Court should take into account all relevant matters including the fact, where it exists, that the workman has been gainfully employed elsewhere after his dismissal. An employee who has not been gainfully employed since his dismissal, or who has been gainfully employed but on a woefully small salary, should clearly say so to the court. To remain silent is to risk the court making a deduction deemed reasonable by the court. Apart from the duty to mitigate loss, the quantum of deduction, the factors that need to be considered and the sum that the employee will finally receive is equally important to be discussed. In light of the above, this paper discusses the duty of the employee to mitigate the loss following an unfair dismissal and the quantum of deduction with reference to the practice in Malaysia and United Kingdom.
Keywords
References
- Ashgar Ali, Ali Mohamed. (2014). Dismissal from Employment and the Remedies, (2nd edn.). Ashgar Ali. Ali Mohamed. (2014). Principle of proportionality of punishment in dismissal without just cause and excuse. Industrial Law Journal, i-xviii. Ashgar Ali, Ali Mohamed. (2005). The Remedy of Monetary Compensation in Dismissal Without Just Cause or Excuse: An Analysis. Malayan Law Journal, xxi. C.P.Mill. (1984). Industrial Dispute Law in Malaysia (2 Edn.), 135. J. Selden, Table Talk, quoted in M. B. Evans and R. I. Jack (eds), (1984). Sources of English Legal and Constitutional History, 223–224.
Details
Primary Language
English
Subjects
-
Journal Section
Research Article
Authors
Ashgar Ali Ali Mohamed
Malaysia
Mohd Akram Shair Mohamed
Malaysia
Farheen Baig Sardar Baig
Malaysia
Publication Date
April 30, 2017
Submission Date
April 27, 2017
Acceptance Date
March 6, 2017
Published in Issue
Year 2017 Volume: 3 Number: 7