Abstract
Dismissal from employment is the prerogative of
the employer. An impending dismissal must be carried out fairly with the
affected employee given the right to be heard. When a dismissal has been
effected in high-handed manner, it may have real prospect of humiliation and
embarrassment to the employee. Besides besmirching his reputation, it can also
affect the employee’s ability to seek new employment, forcing him to accept
employment offering lower wages than what would have been expected in the type
of work, or even causing him ill health, among others. The availability of compensation
for non-pecuniary losses such as wounded feelings or the effect of the
dismissal on his reputation or the chances of finding other employment arising
from the manner of the dismissal were excluded by the House of Lords in their
landmark case of Addis v Gramophone Co
Ltd [1909] AC 488. Such compensation was disallowed mainly because the
common law perceived employment contract as an ordinary commercial contract and
that such contract is not intended to shelter the parties from anxiety. The situation
in the 21st century is however markedly different from 1909 where with
the advancement of information technology, the transmission of information
regarding the manner of a dismissal is borderless and thus, having far reaching
consequences on the claimant. In light of the above, this paper discusses the
high-handed manner of a dismissal, its impact on the employee and the
availability of compensation for non-pecuniary losses under the statutory
unfair or unjustifiable dismissal. Reference is made to the law and practice in
selected countries namely, the United Kingdom, Canada, Australia and New
Zealand. In the context of Malaysia, it will be contended that an employee that
had been subjected to deplorable acts of victimisation while in employment and any
high-handed manner of a dismissal, among others, should be awarded the non-pecuniary
compensation.
References
- Ashgar Ali, Ali Mohamed. (2014). Dismissal from Employment and the Remedies, (2nd edn). Ashgar Ali, Ali Mohamed. (2005). The Remedy of Monetary Compensation in Dismissal Without Just Cause or Excuse: An Analysis. Malayan Law Journal, xxi. Ashgar Ali Ali Mohamed. (2002). The Harsh Manner of Dismissal: A Worker’s Remedy at Common Law and Statute in Selected Countries. The Journal of the Malaysian Bar Vol. XXXI (No 2) 3. Ashgar Ali Ali Mohamed. (2015). Sexual Harassment: Liability of Sexual Harasser and Employer in Tort. Pertanika J. Soc. Sci. & Hum. 23 (S), 179 – 190. Carrie R Leana and Daniel C Feldman. (1992). Coping with Job Loss. 11.
Abstract
References
- Ashgar Ali, Ali Mohamed. (2014). Dismissal from Employment and the Remedies, (2nd edn). Ashgar Ali, Ali Mohamed. (2005). The Remedy of Monetary Compensation in Dismissal Without Just Cause or Excuse: An Analysis. Malayan Law Journal, xxi. Ashgar Ali Ali Mohamed. (2002). The Harsh Manner of Dismissal: A Worker’s Remedy at Common Law and Statute in Selected Countries. The Journal of the Malaysian Bar Vol. XXXI (No 2) 3. Ashgar Ali Ali Mohamed. (2015). Sexual Harassment: Liability of Sexual Harasser and Employer in Tort. Pertanika J. Soc. Sci. & Hum. 23 (S), 179 – 190. Carrie R Leana and Daniel C Feldman. (1992). Coping with Job Loss. 11.
Details
| Journal Section | Articles |
|---|---|
| Authors | |
| Publication Date | April 30, 2017 |
| Submission Date | April 27, 2017 |
| Published in Issue | Year 2017 |
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