It must be noted that past statistics, revealed in Parliament, showed that between 2001 and 2011, that 31.5% or about 10,016 of about 31,714 workers who claimed wrongful dismissal and reinstatement were denied access to the Industrial Court by the Minister of Human Resources who decided not to refer their cases to the Industrial Court (Utusan Online, 23/10/2012).
Justly, whether a worker's claim for reinstatement is successful is a matter that should be decided by the Courts, after considering all facts, evidence and submissions on law - not by a Minister, without even according the right to be heard to the affected worker and employer, and possibly only relying on limited notes of an officer handing an attempt at conciliation at the Industrial Relations Department.
Note at this IRD conciliation stage the worker is also not allowed to be represented by a lawyer of his choice, and hence a worker would have to represent himself/herself or be represented by a union representative, and the likelihood that all relevant facts and legal arguments may not have been put forward, and as such a decision of a Minister in such circumstances can most probably lead to a miscarriage of justice.
Most times, the representations are only oral, and without written representations enclosed with relevant documents and legal arguments. The right for a worker to be represented by a lawyer or a qualified legal representative at all stages of the administration of justice is essential.
When a worker loses employment and income, it is essential that justice be done speedily, preferably within a few months.
A worker who just lost his/her employment suffers a loss of his/her income and it impacts on one's financial security and that of his/her family, who still would have to deal with all continuing monthly financial obligations of the family whereby a failure to pay in time could result in loss of home, personal vehicle, deprivation of basic amenities and even a rising debt given the fact that savings of most Malaysian workers are rather low.
The worker will also most likely not be able to secure loans from financial institutions because of the loss of employment, and may be forced to resort to borrowing from illegal money lenders, who charge a very high interest rate. Unless, justice is achieved fast, there is a real risk of the worker and family plunging deeper into poverty.
On the other hand, the employer most likely will continue business as usual.
The pursuit of justice also needs monies, it is most likely that many workers, especially from the lower and middle income category, will simply choose to walk away victims not able to undertake the quest for justice, and employer perpetrators of injustice get off scot free.
Whilst Malaysia government have finally provided legal aid to the poor in criminal matters, the government still do not provide legal aid to workers, especially the poor. The Malaysian Bar now makes available legal aid lawyers to qualified workers.
Most importantly, the right of a worker to be represented by lawyers of his/her choice at all stages of the administration of labour justice is currently barred by law, and this must be right must be provided to ensure equity and justice to workers in their quest for justice against employers and even the government.
Victims of injustice can generally immediately commence court actions against alleged perpetrators – but not workers claiming wrongful dismissal and their employment back.
These workers are discriminated as they have no right to immediately pursue their claims of wrongful dismissal and reinstatement at the Industrial court. They will have to go through many administrative steps before their wrongful dismissal cases ever reaches the court. For, these worker victims, they can only get their cases heard by the Industrial only if finally the Minister refers their cases.
It is very wrong and unjust for the Minister to be able to prevent workers from immediately bringing their claims to the Industrial Court. The fact that the government also owns and controls many employer companies makes it even more unjust for a member of the Executive, a Cabinet Minister, to have such power. The Malaysian Airlines, for example, was a wholly owned government company.
The hurdles that have to be overcome by workers in their quest to reaching the Industrial court to claim wrongful dismissal and reinstatement in Malaysia is provided for in the existing unjust laws.
This includes the need to first lodge a claim/complaint within a stipulated time at the Industrial Relations Department(IRD), then go through the conciliation session at the IRD, and thereafter, if no conciliation, the claim is referred to the Minister who then decides whether the case is referred to the Industrial Court or not.
Their quest for reinstatement to their job may not even end in court, and may be ended prematurely in this administrative process including the decision of a Minister not to refer the case to court.
The 'conciliation' session is an attempt for the affected worker and employer to come to some sort of settlement, and therefore there will be no need to send the matter to the Minister, and possibly the Industrial Court.
Rather than investigating and enforcing the law, the IRD sadly plays the role of an 'impartial' go between not taking sides, to get the parties to come to some sort agreement so that worker not proceed any further with his/her claim to get employment back.
It is most unlikely that the conciliation session will not end with any employer agreeing to reinstate the worker to his/her employment, or even paying out a just compensation in lieu of reinstatement.
Some employer may try to settle the claim by making a small payment, and so real justice ends up not being done.
Now, conciliation (or mediation) could happen at the Industrial Court, where currently it is not uncommon that the court will try to get parties to settle and come an agreement through mediation before trial commences.
Attempts of settlement can also happen at any time, initiated by the parties, vide their lawyers, trade unions, legal representatives or even 3rd parties. As such, there is really no need for these time consuming conciliation sessions at the IRD at all.
Now, if and when this 'conciliation' attempt fails, then the matter is referred to the Minister who again seems to take too much time, and in the case of these 3,200 MAS workers, it took 2 years to decide not to refer the case to the Industrial Court.
Note, the Minister decides whether to refer or not to refer to the Industrial Court without even according the right to be heard to the affected worker and/or the employer. It is a decision which is not even based on all the facts and evidence, and as such could be said to be arbitrary. All that the Minister has are only the notes taken by the IRD officer who conducted the conciliation session. Being a conciliation session, parties may even not be providing all the relevant facts and evidence, especially evidence of other witnesses.
It was most shocking that almost about 31% worker claims are not being referred to the Industrial Court by the Minister.
The reasons for the non-referral by the Minister that were given in Parliament, as reported in the media in 2012, included because the worker was terminated by reason of misconduct, because the worker stop employment voluntarily and/or accepted the Voluntary Separation Scheme(VSS) and then changed his/her mind; and the worker's employment contract period had ended. (Utusan Online, 23/10/2012).
Well, these reasons given by the Minister are usually what employers will say to justify termination. This really are really a matter to be decided by the courts after hearing and considering all evidence and facts. Was the employer right in terminating the worker, or was the worker right in saying that it was a wrongful dismissal? Was the alleged misconduct even a valid misconduct agreed before by both parties of an employment contract? Was the worker deceived by the employer and/or their agents? There are many matters that only a court should be deciding on after not just hearing evidence of the parties to the dispute, but also other relevant witnesses.
A worker who takes the trouble, expending monies and time, to file a claim of wrongful dismissal asking for reinstatement most probably has a case and arguments to justify such a claim, and there is a need to consider all the facts and listen to all the evidence, including evidence from witnesses, to determine the truth and make a final decision. This is the task of the courts, not a Minister.
There are currently no time limits set for the completion of an Industrial Court case and/or appeals thereafter. From the date the case is referred to the Industrial Court until the completion of the trial, it can take years. Hearing and conclusion of trial at the Industrial Court can take years, in some cases it may even take about 5 years or more after the date of wrongful dismissal. If the worker is victorious, then the fruits of justice can further be delayed by appeals to the higher courts.
The long drawn out process before the case reaches the court and the time taken for trials to complete would most likely just deter most worker victims of injustice from even filing a claim and/or to abandon the claim midstream.
Thus, this administration of justice procedure may ultimately end up protecting violators of law and rights rather than the worker victims.
The injustice to the worker was compounded by fact that from February 2008, the law limited the amount of claim for a worker who was successful in court proving that he was indeed wrongfully dismissed. Now, the maximum he can get is 24 months back wages, even if it takes 5 years or 10 years before he gets his employment back and/or the final judgment that he was wrongfully dismissed. Before this amendment, a worker successful in his claim would have been entitled to not just back wages from the date of wrongful dismissal until the date of reinstatement or the date of final judgment. He would also be entitled to whatever increments and bonuses that he would have gotten if not for the wrongful dismissal by the employer.
The new Second Schedule of the Industrial Relations Act 1967, in Paragraph 1 now states, "In the event that back wages are to be given, such back wages shall not exceed twenty-four months' back wages from the date of dismissal based on the last-drawn salary of the person who has been dismissed without just cause or excuse;". Further there is provisions, for even further deductions from the amount of back wages due and payable if the worker was earning whilst he was waiting to get back his job.
Oddly, now even if the worker is victorious, a further sum is deducted for "shall take into account contributory misconduct of the workman.", and this amount to penalising of the worker despite being successful in court. Courts should decide whether worker was wrongfully dismissed or not, and it is only just that a worker receives from the employer all that he would have earned, including wage increments and bonuses, from the date of his wrongful judgment until the date of reinstatement and/or final judgment. Justly, there should also be a need for further damages that ought to be paid by the employer for the violation of the worker's rights and the law, and also for the suffering caused.
Enforcement of the law and protecting worker rights should be priority of the government. The government, in particular the Human Resource Ministry and its various departments, should be regularly inspecting, investigating and ensuring that rights are not violated and laws are enforced. On receipt of information of alleged violations from any source, the Ministry should speedily investigate and ensure that the law is complied with at a particular workplace.
The practice of waiting for the victims to lodge formal complaints/claims before action is taken must end, as most victimized workers are worried about lodging formal complaints against their employer, more so when they are still in employment for fear of retaliation which may also include dismissal.
The law empowers the Ministry of Human Resources to conduct regular inspections, but a perusal of the Statistics provided by the Ministry shows that there are only inspections, investigations and prosecutions being carried out by the Occupational Safety and Health (OSH) department, there is no statistics about inspections, investigations, prosecution and/or enforcement of the basic worker and trade union rights like payment of wages, overtime, wrongful dismissal, discrimination and such rights.
A perusal of the Ministry of Human Resources quarterly reports, Statistic Pekerjaan dan Perburuhan Siri 13 Bil 3/2017 September (Employment and Labour Statistics) discloses no statistics of workplace inspections to ensure that worker and trade union rights are not being violated, no statistics of investigation and prosecution of employers that have violated labour laws and fundamental worker rights, no statistics of information/complaints received and no statistics of employers found guilty. Only available are matters concerning OSH.
Given the fact that there are statistics on Occupational Safety and Health(OSH) inspections and enforcement, it looks like the Malaysian government and/or the Ministry of Human Resources are not interested in protecting basic worker and trade union rights. After all, the statistics of inspection, investigation, prosecution, conviction and enforcement against employers who breach existing Malaysian labour and trade union laws is information so easily compiled by the Government.
These 3,200 workers were employees of the Malaysian Airlines, who was owned by a wholly government owned company. The airlines decided to reduce the workforce by 6,000 workers, which justly would have been done vide retrenchment exercise, which would have had to comply with existing just legal principles like Last In First Out (LIFO). However, what the Malaysian government did was to form a new company, and terminate all employees in the previous company – and then re-employed selected workers in the new wholly owned company. This would not be just and a violation of worker rights.
The Malaysian government then passed a new law, that made the new company specifically not liable for the actions and liabilities of the old company.
This exercise may also be biggest union busting exercise of recent times, as almost 6 of the trade union were in-house trade unions, and this exercise would effectively kill all these unions.
The airlines employees in Malaysia, did previously have a national union. In February 1979, 22 members of the Airlines Employers Union (AEU) were detained under the ISA after a pay dispute at the state-run Malaysian Airline System (MAS) had led to a work to rule and a government order to deregister the union. Thereafter, only in-house unions existed for employees of the Malaysian Airlines, until the recent registration of National Union of Flight Attendance Malaysia's (NUFAM). However, despite NUFAM succeeded in getting 62.73% of the votes at the secret ballot, and thereafter on August 2013, the Director General of Industrial Relations(DGIR) issued the formal letter acknowledging NUFAM as a recognized union in MAS, the company challenged the decision in court.
Considering the background, this non reference of the claim of these 3,200 Malaysian Airlines(MAS) workers to the Industrial Court by the Minister is all the more unconscionable. If not for that new law, that attempts to not make the new MAS company, owned by the same owners of the old MAS company, the owners and the new MAS company would most likely be found to be liable for the actions of old MAS company. Even, with the new law, the Courts may have found in favour of the workers.
The Minister's decision of not referring the case to the Courts as such in this case may be tainted with mala fide – an attempt to even prevent the claims of these MAS worker from being considered and determined by the court, where judges are duty bound to uphold the cause of justice without fear or favour – and not follow the agenda and/or intention of even the existing UMNO-BN government.
The reality in Malaysia where worker rights are not protected and promoted, and have been eroding in some cases is embarrassing. When Malaysia recently wanted to be part of the Trans-Pacific Partnership Agreement (TPP), one of the pre-conditions was that Malaysia amends its labour and trade union laws to enable it to be in compliance with international labour standards, whereby there have been moves on the part of the government to do so but alas to date, we have yet to see any proposed amendments.
Call for the Malaysian government to proactively protect worker and trade union rights, amongst others, by regular inspections, speedy investigations and enforcement of labour laws and worker rights.
Call on Malaysia to promote and protect worker and trade union rights.