PETALING JAYA: A lawyer has said the rising number of unfair dismissal cases is caused by a growing range of reasons, including misconduct, poor performance, retrenchment, constructive dismissal and forced resignation.
K.S. Devanathan, who specialises in industrial relations cases, said the evolution of the law in such cases is evident through numerous landmark cases of higher courts, including Federal Court judgments and amendments to the Employment Act and Industrial Relations Act.
“Instances of unfair dismissal continue to surface, leaving many employees feeling vulnerable and unjustly treated.”
In February, Human Resources Minister Steven Sim said the new cases load at the Industrial Court increased from 1,657 in 2022 to 1,822 in 2023, with 1,474 cases last year involving unfair dismissals.
He said of the 5,463 cases pending in the Industrial Court last year, only 2,376 cases were resolved.
“Such cases are usually filed when an employee is terminated from his job in a harsh, unjust or unreasonable manner. Common reasons include dismissals that were done in contravention of industrial law, victimisation, unfair labour practices driven by ulterior motives or actions that were not genuine or bona fide,” said Devanathan.
He said the Covid-19 pandemic is hardly cited as a reason for unfair dismissal as the pandemic is over, but there are still cases pending in the Industrial Court as a result of restructuring exercises prompted by Covid-19.
“The cases include companies closing down or suffering losses, leading to retrenchments and redundancy exercises. There have also been cases of employees being dismissed for failing to get vaccinated.”
A 39-year-old human resource and administrative executive at a midsized logistics company in Klang, who gave her name only as Adilah, was terminated in April 2021 after seven years of service.
Having consistently received positive performance reviews, she was shocked when she was terminated without warning or a clear reason.
“The company did not give me a reason but I learned later that it was due to cost cutting measures. Many other affected staff remained silent despite being aware of the issues within the company.”
Adilah claimed she had reported several safety violations to management and the Labour Department, which she suspected led to her being targeted for dismissal.
She said in February, the Industrial Court ruled in her favour after hearing her unfair dismissal claim.
Devanathan said many employers fail to seek proper legal advice before proceeding to dismissal.
“Employers might rely solely on the terms of the employment contract for justification without ensuring the dismissal is just and proper. Some employers act in breach of industrial jurisprudence, practices or laws.”
He said following a dismissal, an employee may file a representation of unjust dismissal to the Industrial Relations director-general under Section 20 of the Industrial Relations Act 1967.
The representation must be filed in writing to the nearest Industrial Relations Department within 60 days of dismissal or even during the dismissal notice period.
He said the process from initial filing to handing down a ruling typically takes a minimum of one to two years.
“Employees who have been unjustly dismissed may be reinstated or awarded back wages capped at 24 months for permanent employees and 12 months for those on probation.
“Additional remedies may include contractual benefits that were promised and applicable statutory contributions by the employer.”
He reminded employers to follow labour laws and act fairly when intending to dismiss an employee.
He advised employees to understand their rights and promptly pursue recourse if they decide to do so.
