EMPLOYEES' RIGHTS

Q. I have just received a notice of mention from the Industrial Court. What is the Industrial Court?

A. The Industrial Court is a statutory tribunal established under the S.21 of the Industrial Relations Act 1967. It was set up to hear disputes between employees and their employers over rights and obligations that arise from the employment relationship and from the provisions of the Industrial Relations Act 1967. Most of the cases heard by the Industrial Court are claims by individual employees that the employee had been unjustly dismissed by his or her employer. The Industrial Court also hears cases where the grievance of the individual employee is taken up by his or her trade union against the employer and disputes over collective agreements.

Q. What is the difference between the Industrial Court and the Labour Court?

A. While the Industrial Court deals with individual disputes arising from the employer-employee relationship (such as dismissals) and trade disputes between trade unions and employers (such as transfers, collective agreements) and breaches of rights and obligations imposed under the Industrial Relations Act 1967, the Labour Court deals mainly with recovery of wages and other monies and employment benefits provided to employees under the Employment Act 1955 such as overtime pay, maternity allowance, salary in lieu of notice of termination and termination benefits. The “Labour Court” is not a statutory tribunal like the Industrial Court but refers to the hearing conducted by a Labour Officer of the Labour Department into complaints by employees. Employees whose monthly wages are RM1, 500 and below and other categories of employees who are entitled to the benefits in the Employment Act 1955 can file their claims in the Labour Court. Employees who fall outside the scope of the Employment Act 1955 but whose monthly salary does not exceed RM5, 000 may also seek the assistance of the Labour Court for recovery of salary or other monies due and payable by their employers under their individual contracts of service.

Q. I have been dismissed. How do I make a claim against my employer in the Industrial Court?

A. An employee does not lodge a claim directly with the Industrial Court. If the employee believes that he or she had been dismissed unlawfully or without just cause or excuse he or she has to personally go to the office of the Industrial Relations Department (which is under the Ministry of Human Resources) nearest his workplace where the employee would be asked to make his or her representations. At the Industrial Relations Office, the employee would be asked to fill up a form, “Borang S.20” giving all particulars of the dismissal. The Industrial Relations Office would arrange for a conciliation meeting at the Industrial Relations Office to be attended by the employee and employer to explore an amicable settlement. If there is no settlement, the dispute would be escalated to the Minister of Human Resources for his decision on whether the case should or should not be referred to the Industrial Court for a hearing.

Q. Is there a time limit for making an unjust dismissal representation to the Industrial Relations Department?

A. The time limit for making an unjust dismissal representation to the Industrial Relations Department is 60 days from the date of dismissal. In a case where notice of termination is served, the 60 days period begins to run from the date of expiry of the notice period. For example, Mr. X is given one month's notice of termination on 1.1.2008. The notice would expire on 1.2.2008 and the 60 days period begins to run from 1.2..2008.

Q. How long do I have to wait before I am called for the conciliation meeting?

A. This depends very much on the Industrial Relations Department but normally parties will be called to attend a conciliation meeting within 1 to 3 months from the date the representation is lodged.

Q. Can I be represented by a lawyer at the conciliation meeting?

A. Lawyers are not allowed at conciliation meetings. A Company may be represented by its employee or by an officer or employee of a trade union of employers or by a registered organization of employers. The employee may represent himself or, if he is a member of a trade union, by an officer or employee of the trade union or an official of any other registered organization of workmen.

Q. If a matter is not settled, how long does it take for the matter to reach the Industrial Court?

A. Reference to the Industrial Court is dependent upon the Minister being satisfied that there is a “fit and proper case” for reference. The Industrial Relations Department will notify the parties of the outcome of the Minister's decision, generally, within 6 to 12 months of the representation being made.

Q. How will I know if my matter is referred to the Industrial Court or not?

A. You will receive a letter from the Industrial Relations Department informing you of the outcome. If the letter states that your case is “wajar untuk dirujuk” then it means that your case has been referred to the Industrial Court and you may expect to receive a notice of mention from the Industrial Court soon after that requiring your attendance for mention.

Q. What can I do if my case is not referred to the Industrial Court?

A. If you receive a letter stating that your case is “tidak wajar untuk dirujuk” this means that the Minister has decided not to refer your case to the Industrial Court. The decision of the Minister may be challenged in the High Court by judicial review. An application for judicial review must be filed within 40 days from the date the applicant employer or applicant employee, as the case may be, is informed of the decision.

Q. What happens at the mention of the case in the Industrial Court?

A. You are required to be present in the Industrial Court for the mention of the case. At the mention, the Industrial Court normally directs the Statement of Case to be filed by the Claimant (the individual making the claim) by a certain date to be followed by the Statement in Reply to be filed by the employer. Subsequent mention dates may be fixed by the Court for management of the case before trial.

Q. Do I have to pay any fees for the filing of documents in the Industrial Court?

A. No. There are no filing fees in the Industrial Court.

Q. Can I be represented at the Industrial Court?

A. Yes. The employer and the employees may seek representation at the Industrial Court. They may represent themselves or be represented by officers of a trade union of employees or employers. They may also be represented by Advocates & Solicitors. However, representation by an Advocate & Solicitor is only with the permission of the President of the Industrial Court. Parties desiring representation by Advocates & Solicitors are required to fill up Forms A and B to apply for permission from the President. Normally permission is not refused unless there are valid objections from the opposing party.

Q. Do I need to be represented?

A. Although the Industrial Court is not a court of law, there are practices and procedures similar to a court of law and rules of evidence that have to be followed and these can be overwhelming for the lay person who has no comprehensive knowledge or training in conducting a trial.

Q. Where is the Industrial Court?

A. The Industrial Court is centralized in Kuala Lumpur at Jalan Mahkamah Persekutuan (opposite Dataran Merdeka). The courtrooms are in the Industrial Court building and the adjacent Straits Trading Building. The Industrial Court also has courts in Johor Bahru, Penang, Ipoh, Kota Kinabalu, Kuching and Kuala Terengganu. For the court numbers and the presiding President/Chairpersons please refer to the Industrial Court's website at http://www.mp.gov.my/.

Q. How do I know which Court will hear my case?

A. The case registration number contains information on the case and the first digit indicates the courtroom. For example the Case number “3/4-2468/2008”

shows as follows:--

3 - Court 3

4 - Nature of Case.

2468 - Case Number

2008 - Year Case is registered

Q. What will I get if I win my case of unjust dismissal against my employer in the Industrial Court?

A. If the employee wins the case, the Court has the power to order that the claimant be given the job he had at the time he was dismissed or a similar job on the terms and conditions he enjoyed before the dismissal otherwise known as “reinstatement”. The employer will also be ordered to pay to the employee is entitled to be paid his wages from the date of his dismissal until the date of reinstatement. This is known as backwages. Recent amendments to the Industrial Relations Act 1967 has introduced a cap of 24 months on the backwages. In some cases, the Industrial Court may decide not to order reinstatement and in place of reinstatement, it would, together with the backwages, order compensation, generally at the rate of 1 month's salary for each year of past service. The Industrial Court has power to make orders for costs and expenses of witnesses appearing at the trial but generally does not make such orders. The Court has no power to award interest on the compensation.

Q. What happens if I lose my case against my employer in the Industrial Court?

A. The Court will dismiss the claimant's claim The claimant will not be ordered to pay costs to the employer and will also not be awarded any payments of any kind for the loss of the job.

Q. If I win the case, will my employer be ordered to pay costs in the Industrial Court?

A. In the Industrial Court, the losing party is not liable to pay the winning party's costs.

Q. If I lose the case in the Industrial Court, can I appeal?

A. An award of the Industrial Court is not appealable. However, as the Industrial Court is an administrative tribunal and a public decision-maker, you may apply to the High Court for Judicial Review of the award.

Q. Is there a time limit for applying for Judicial Review?

A. Yes. The time limit is 40 days from the date the decision of the Industrial Court is communicated to you. It is important to note that the Industrial Court does not normally pronounce judgment in open court. The decision of the Industrial Court is in writing and the award is handed down after the parties have made their submissions. The award is normally sent by post and the 40 days will start to run from the day the award is received.

Managing Employees

Motivating your employees

Why is it important to have motivated employees? What steps can you take to keep your employees motivated? How can your bottom line be improved by having motivated employees? We will try to help you to understand how motivating your employees can improve your bottom line.

Try this quick quiz...

Rank the following most common motivators (from 1- the highest to 11 – the lowest motivator) about how effective they would be for your employees:

• Motivator

1. Working Condition
2. Interesting Work
3. Appreciation
4. Training
5. Money
6. Communication
7. Loyalty (from the employer)
8. Promotion
9. Flexible Working Arrangements
10. Job Security
11. Respect

If you ranked money as the primary motivator for your employees, you would be wrong. Employees must be paid at least the relevant award wage for the work they do, but many other factors motivate employees to be productive and stay with an employer.

What are the primary motivators for employees?

Recent studies in what motivates employees suggest that "open communication" was ranked highest by respondents who were asked to list the items they considered very important in choosing their current jobs. Salary was ranked 16th.

Another study of 1,500 employees found that instant recognition from managers was the most powerful motivator of the potential incentives evaluated. Second was a letter written by their employer/supervisor which praised a good job.

Motivating employees does not always have to involve financial rewards – an employer who recognises the good work done by his or her employees will have a motivated, productive workforce.

Why are expectations changing?

Gone are the days of a job for life. Ongoing employment is becoming increasingly dependent on an employee being able to add value to a business through on-the-job performance. As a result, employees are adopting the attitude that "if the employer is willing to dump me at his or her convenience, why shouldn't I do the same?"

This movement away from tenure and loyalty is prompting employees to re-evaluate their expectations and priorities at work. Employees are focusing on skill development and taking control of their careers. They are less concerned about where they work and more focused on the quality of the work and the challenges and rewards associated with their efforts.

Employees now expect to be rewarded for successfully applying their skills and making a positive contribution to the performance and profitability of the business. Employers who fail to recognise this changing nature of the workforce run the risk of alienating or losing their workforce – with a damaging impact on profitability.

How do I motivate my employees?

Your greatest challenge is to work with your employees to weave their individual needs and interests, such as career aspirations and individual learning goals, with your business's needs of high performance and results.

Flexible working hours, time off for personal or family responsibilities, and greater decision-making responsibilities may hold more appeal than cash incentives. For example, young workers may value flexibility and personal independence over monetary bonuses.

While such "non-material" incentives may cost less than a raise, they will probably require a greater investment in terms of time and energy from you. However, the benefits are substantial.

Employees will value the fact that their employer recognises their needs and satisfactorily rewards their efforts. In turn, you can significantly increase profitability by retaining experienced, motivated and productive staff.

What sort of methods should I consider?

Retention, rewards and recognition have been identified as the three "R's" of successful staff management. By implementing initiatives based on these key concepts, employers can enhance business performance and enjoy the benefits to be gained from a motivated and productive workforce.

How to motivate your staff through consultation

Get together with your employees to identify appropriate methods. This might be a regular part of your staff meetings for a few weeks or part of your business planning activities with staff. You may want to discuss the following topics:

• Training and development
• Social interaction
• Work environment
• Remuneration and benefits
• Communication

Some initiatives other small businesses have introduced include:

• Appraisal feedback through individual training development programs
• Tuition assistance policy, which provides a grant plus text book allowance to employees undertaking work-related studies
• Personality profiles to identify specific training needs
• Evening social functions, particularly dinners to celebrate achieving and exceeding targets
• Closing the office for recreation days to allow the company to say "thank you" with trips to theme parks or staff sports days
• A vision day, where staff from different departments are put into teams to gain a better understanding of the work done in other areas.

See what your employees can come up with!

Applying the three "R's" in your workplace

By adopting strategies to retain, reward and recognise your employees, you can make a positive contribution to overall business performance. These methods may include:

Opportunity for advancement

Replacing the promotion ladder with new roles, stimulating work and other opportunities for individual growth.

Challenging and interesting work

Providing growth opportunities by presenting employees with challenging assignments and providing the necessary tools to successfully complete the assignments.

Job security

This no longer means a job for life. Employees will stay with a business despite below-market pay (but not below legal entitlements) if their business maintains a safe, stable work environment and provides additional benefits such as a five-day week or reserved parking.

Showing respect

Respecting your employee's efforts and show them how they add value to the business. Cross-training staff and encouraging them to work more closely with customers can help employees to feel more valued.

Employee recognition

Studies have repeatedly demonstrated that employees want to be acknowledged for the job that they do. Motivate staff by taking the time to personally thank an employee for doing something well. Specifically say how and why an employee'' efforts was of value.

Employee recognition is a powerful tool for shaping and reinforcing desired performance – with the advantage of helping both you and your employees feel better in the process!

Recruitment

Employees are crucial to your business. For many small businesses, they are the only investment. For this reason it is essential that you recruit the right people. The following steps will help you successfully plan and manage the recruitment process to ensure you recruit people with the right capabilities for your business.

Step 1 - Identify the needs of your business

a) Consider the needs of the business and how the position fits into your business:
b) what needs to be done in the business?
c) is the need short-term or long-term?
d) how will the position help the business now, and in the future?

This will help you determine if you need someone on a full-time, part-time or casual basis.

Step 2 - Define the job

In defining the job you need to:
a) identify the purpose of the position and what it does
b) understand how the job contributes to the business
c) document elements of the job.

Step 3 - Write a job description

A well-prepared job description describes your expectations of the position. It will guide your selection and also help your new employee understand what is expected of them.

The length of a job description varies depending on the nature and complexity of the job.

A good job description identifies the:

a) position title which clearly reflects the nature of the job

b) main purpose of the position in a sentence (or two), that is, what the person does and why, for example, will they review, monitor, co-ordinate, deliver

c) business context, that is, the objectives of the business, strategies, the operating environment, and the role of the position in the business

d) major accountabilities, which are the three to six major areas of work performed by the position and include important activities undertaken from time to time

e) outcomes to be achieved for each of the identified accountabilities

f) key communications with key positions, organisations, or groups, both inside and outside the business

g) decisions made by the position holder, those made in consultation with the employer/manager and those referred to the employer/manager

h) challenging aspects of the job, including short or long-term challenges, such as, client demands, use of technology, heavy workload, or tight deadlines

i) knowledge, skills and experience, which are essential for the effective or competent performance of the job, including formal qualifications, certification, licence or equivalent experience required

j) resources for which the person is responsible, for example, staff and/or budget

k) tasks/duties performed by the position holder.

Step 4 - Determine your selection criteria

Create a profile of the ideal applicant by considering the personal qualities needed to perform the job successfully. This may include personal attributes such as the ability to work under stress, maintain confidentiality, adaptability and flexibility.

Decide which attributes are essential and which are desirable. Essential criteria are skills and attributes essential to the ability to perform the job, for example, trade qualifications, driver's licence, ability to prepare spreadsheets. Desirable criteria are those skills or attributes which make the candidate a more valuable asset to your business.

The essential criteria are used as the focus in your job advertisement.

Step 5 - Write a job advertisement

To ensure that your job advertisement is effective:

a) write in clear language

b) quote a salary or a salary range to help filter out unwanted responses

c) provide information to help potential applicants decide whether the job is suitable for them

d) use the job description to identify required skills, qualifications, experience and desired attributes

e) don't use too many words

f) include special requirements, for example, driver's licence, trade qualification

g) don't exaggerate the job as this will attract applicants who are not suited to the position.

Step 6 - Prepare for the interview

In preparing for an interview you need to:

a) decide if you would like to hold the interview with a second person

b) decide/agree on a date

c) organise a quiet and comfortable room to hold the interview

d) organise a waiting area for applicants to sit comfortably

e) schedule enough time for each interview so that you are not rushed or interrupted

f) contact applicants to be interviewed with details of their interview

g) provide your receptionist with the names of the applicants and interview times

h) prepare the interview questions

i) organise equipment, for example, computer or machinery, if testing is required
review each applicant's résumé or application before their interview

j) make notes during each interview so that you can refer to them later.

Step 7 - Conduct the interview

Some useful interview tips include:

a) ask one question at a time

b) use short sentences and speak clearly

c) use simple and appropriate words to make the questions easy to understand

d) use open-ended questions which allow applicants to express themselves

e) avoid leading questions which imply the correct answer

f) let the applicant do most of the talking and listen carefully to their responses

g) if answers are vague or inconsistent, probe for more specific and accurate information

h) keep the conversation under control and don't let answers become long-winded

i) ask to see any qualifications, certificates, special licences or other essentials required for the position.

Conduct a reference check. Speak to referees to help you verify information given at the interview, or gather more information about the applicant's performance and behaviour at work.

Step 8 - Make your decision

Make your decision based on an assessment of the information gathered against each of the selection criteria.

Create a short list ranking applicants in order of their suitability for the job. This identifies other possible candidates for the job if the selected candidate declines the job offer.

Step 9 - Make the job offer

While an offer of employment may be made verbally, it should be confirmed in writing. This confirms that an employment relationship exists. The successful applicant should accept your offer by signing a copy of the letter of offer and returning it to you before commencing employment.

Step 10 - What should a letter of offer contain?

The successful applicant should be informed of their terms of employment, including:

a) the job title

b) whether they are engaged on a full-time, part-time or casual basis

c) wages or salary and any other benefits

d) employment conditions

e) commencement date and, if the job is for a fixed term, the finishing date

f) if the employee will be employed on probation, and the duration of the probation period

g) job description and duties

h) their working hours, including meal breaks and rest breaks

i) the name and contact details of the person's supervisor

j) training the employee will receive

k) the career path the employee may expect

l) special terms or conditions of employment, such as dress requirements

m) person to contact when reporting to work.

Step 11 - Probationary employment

Employees may be employed on probation.

A probationary period allows you to assess the employee's performance and personality on the job. You must advise them that they will be on probation and the duration of that probationary period before they commence employment. Set out the details of the probation period in the written employment contract or letter of job offer.

Review the employee's performance during and just prior to the end of the probationary period. Discuss any issues with work performance and behaviour with the employee as they arise. This ensures that they are addressed before they become a problem.

Step 12 - Monitor performance and provide feedback

Monitor and assess the new employee's performance during the first few months of their employment. Provide them with feedback about how they're performing against set performance targets. This ensures that you address any performance deficiencies early and facilitate the employee's integration into the workplace.

Regular performance monitoring and feedback ensures that performance is sustained.

Employer-Employee Relationship in Malaysia

In Malaysia, the employer-employee relationship is regulated principally by the Employment Act 1955 (EA) and to some extend by the Industrial Relations Act 1967 (IRA). Both Acts perceive the employer-employee relationship as being essentially contractual in nature. But while the EA describes the employment contract in terms of the well known "Contract of Service", the IRA describes it in terms of the more modern "contract of employment".

The Employment Act defines the "Contract of Service" as;

any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as an employee and that other agrees to serve his employer as an employee, and includes an apprenticeship contract.

The Industrial Relations Act defines the "contract of employment" as;

any agreement, whether oral or in writing and whether express or implied, whereby one person agrees to employ another as a workman and that other agrees to serve his employer as a workman.