Abstract
Dismissal
from employment is the prerogative of the
employer emanating from various reasons such as unsatisfactory or poor work
performance, incompetency, absenteeism, insubordination, stealing, assault,
bullying, drunkenness, serious violation of employer's policies and practices,
damaging employer’s property and using employer’s property for personal
business, among others. The burden is on the employer to prove that the
dismissed was justified. Where a
dismissal was adjudged to be without just cause or excuse, the
Industrial Court will award appropriate remedy and this include compensatory
award. The Industrial Relations Act 1967 (IRA) merely mentioned reinstatement
as the sole remedy for dismissal without just cause or excuse. The power of the
Industrial Court to award monetary compensation was resolved by the former
Federal Court in Assunta Hospital v Dr A
Dutt [1981] 1 MLJ 105, where the Court held inter alia, that where
reinstatement would not be an appropriate remedy, the Industrial Court has the
power to award monetary compensation based on the provisions of section 30(4),
(5) and (6) of the IRA. Although the Act did not specify the types and
criterions for its assessment, nevertheless the monetary award in favour of the
unfairly dismissed worker must be fair and adequate to compensate him for the
loss of employment. In practice however, the assessment or measure of the monetary
award is at the discretion of the Industrial Court based on the particular
facts, circumstances and substantial merits of the case, and assessed in
accordance with equity and good conscience under section 30(5) of the IRA.
The amount however, should not be excessive to the extent of financially
burdening the employer. In light of the above, this paper discusses the compensatory
awards of the Industrial Court in successful unfair dismissal claims with a view
of highlighting the criterions used in its assessment.
References
- Ali Mohamed, A.A. (2015). Compensation In Lieu Of Reinstatement: A Review of Unilever (M) Holdings Sdn Bhd v. So Lai & Anor. Industrial Law Reports vol. 2.
- Ali Mohamed, A.A. (2014). Dismissal from Employment and the Remedies. LexisNexis (M) Sdn Bhd.
- Ali Mohamed, A.A. (2005). Monetary Compensation In Dismissal Without Just Cause or Excuse: Legislative Guideline A Necessity. Malayan Law Journal vol. 6.
- Anantaraman, V. (2005) Relief for Unfair Dismissals: Law And Practice In Malaysia. Malayan Law Journal vol. 6.
- Kaur Bhatt, Jashpal. (2015). Should Compensation In Lieu Of Reinstatement Be Denied On The Basis Of Age? Revisiting the Federal Court's Decision in Unilever (M) Holdings Sdn Bhd v. So Lai @ Soo Boon Lai & Anor [2015] 2 ILR 265, [2015] 3 CLJ 900. Industrial Law Reports vol. 4.
- C.P. Mill, Industrial Disputes Law in Malaysia 2nd eds., (1984) at p. 141.
Abstract
References
- Ali Mohamed, A.A. (2015). Compensation In Lieu Of Reinstatement: A Review of Unilever (M) Holdings Sdn Bhd v. So Lai & Anor. Industrial Law Reports vol. 2.
- Ali Mohamed, A.A. (2014). Dismissal from Employment and the Remedies. LexisNexis (M) Sdn Bhd.
- Ali Mohamed, A.A. (2005). Monetary Compensation In Dismissal Without Just Cause or Excuse: Legislative Guideline A Necessity. Malayan Law Journal vol. 6.
- Anantaraman, V. (2005) Relief for Unfair Dismissals: Law And Practice In Malaysia. Malayan Law Journal vol. 6.
- Kaur Bhatt, Jashpal. (2015). Should Compensation In Lieu Of Reinstatement Be Denied On The Basis Of Age? Revisiting the Federal Court's Decision in Unilever (M) Holdings Sdn Bhd v. So Lai @ Soo Boon Lai & Anor [2015] 2 ILR 265, [2015] 3 CLJ 900. Industrial Law Reports vol. 4.
- C.P. Mill, Industrial Disputes Law in Malaysia 2nd eds., (1984) at p. 141.
Details
| Journal Section | Articles |
|---|---|
| Authors | |
| Publication Date | December 18, 2016 |
| Submission Date | December 25, 2016 |
| Published in Issue | Year 2016 |
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