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.
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.
Abstract
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
| Journal Section | Articles |
|---|---|
| Authors | |
| Publication Date | April 30, 2017 |
| Submission Date | April 27, 2017 |
| Published in Issue | Year 2017 |
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