These days, workplace disagreements are so common that, in the worst circumstance, they might lead to legal proceedings. These employment-related conflicts could be brought on by complaints of wrongful dismissal, workplace harassment, contract breaches, and so forth.
Depending on the case, either the Labour Court or Industrial Court can hear these employment-related disputes.
Difference between the Labour and Industrial Court
This article will go into detail about the procedure to file a claim with the Industrial Court.
Jurisdiction
The Industrial Relations Act 1967 (‘the IRA 1967’) regulates the relations between employers and employees, including those respective trade unions and the prevention or resolution of any disputes. There are a few amendments to the procedures following the Industrial Relations (Amendment) Act 2020, effective on 1 January 2021.
Industrial Court In Malaysia
The claims will be presented to the Industrial Court (‘the IC’), which hears employment-related cases, in accordance with the laws. In terms of remedies and appeals, the IC’s procedure differs from that of regular courts.
Malaysia has five Industrial Courts located respectively at Kuala Lumpur, Johor, Perak, Pahang, Sabah, and Sarawak. The contact information for respective courts may be found here.
Matters heard in the Industrial Court
- Unfair dismissal of employee (‘workmen’).
- Trade disputes.
- Applications made by any party are under an obligation of an award or collective agreement for the interpretation/ amendment/ variation and/or anything related.
- Applications by any party bound by an Award to refer to the High Court questions of law.
- Complaints of non-compliance of an Award or collective agreement.
- Cases of victimisation in connection with trade union activities.
Things to note when preparing to file a claim
An employee seeking compensation or reinstatement of his/her job, may file a complaint under section 20(1) of the IRA 1967, the basic things to note are:
- The employee must be a ‘workman’ as defined under IRA 1967;
- The employee considered that he/she has been dismissed without just cause or excuse;
- Only intended to be reinstated to his/her original post;
- Must be filed within sixty (60) days from the date of dismissal;
- Must be in writing and addressed to the Director General of Malaysia Industrial Relation; and
- To be filed at the nearest office of Director General of Malaysia Industrial Relation.
“workman” means any person, including an apprentice, employed by an employer under a contract of employment to work for hire or reward and for the purposes of any proceedings in relation to a trade dispute includes any such person who has been dismissed, discharged or retrenched in connection with or as a consequence of that dispute or whose dismissal, discharge or retrenchment has led to that dispute.
Comprehensive guideline on filing a claim
1st Step: Filing a Representation to the Director General of Industrial Relations
In this context, representation refers to filing a complaint where an employee who was unfairly dismissed, may file a written complaint to the Director General of Industrial Relations (DGIR) at their office nearest to the place of employment within 60 days from the date of the dismissal/retrenchment or notice of the dismissal. The former employee will not be qualified to submit a claim after the 60 days have passed.
For instance, If an employee works in an office located in Kuala Lumpur, he/she can file a complaint to the IRD in Kuala Lumpur. The contacts of each IRD in the respective states can be accessed here.
Forms to prepare when filing a complaint
- Form P1 / ‘Borang P1’
This form is basically a dismissal representation form which requires the complainant’s personal details. An aggrieved employee who is seeking to file a representation shall fill up their details in ‘Borang P1‘ first.
Once the form is filled in, the ex-employee may also serve the representation form through email to the nearest Industrial Relation Department through email. The list of emails for different states of the Industrial Relations Department in Malaysia is attached here.
- Additional documents
The ex-employee is also required to attach other additional documents along with the ‘Borang P1’, that are:
- Copy of Identification Card (IC) / Passport; and
- Any other documents which relates to the matter (eg. Termination Letter, Service Contract).
2nd Step: Conciliation
The Industrial Relations Department will schedule a conciliation meeting between the employer and the employee after the complaint has been filed. The representation will be withdrawn and the intended case will be closed if the claimant misses the sessions without a valid reason.
The Director General will facilitate the meeting, and it will be held with the goal of resolving the dispute between the parties and reaching a settlement.
However in this conciliation meeting, legal representation is not allowed by either parties.
Representation during the conciliation meetings for:
Employer
- The employer may represent himself or be represented through an authorised employee;
- If he/she is a member of an employer trade union, be represented by any officer or employee of such union; or
- Be represented by any official in an organisation of employers registered in Malaysia (not being a trade union of employers);
- A party to the dispute shall not, in any conciliation proceedings, be represented by an advocate, adviser, or consultant.
Employee
- The employee may represent himself;
- If he/she is a member of employee trade union, be represented by any officer or employee of such union; or
- Be represented by any official in an organisation of employers registered in Malaysia (not being a trade union of employees);
- An employee to the dispute shall not, in any conciliation proceedings, be represented by an advocate, adviser, consultant.
Outcome of the Conciliation
- Settlement
- Since the parties were successful in reaching a resolution, the matter will be regarded as resolved. The parties will be required to abide by the settlement by way of a Memorandum of Agreement.
- The Industrial Court Chairman would then issue an award, a copy of which would be given to the employee and the employer.
- No Settlement
- The Director General of Industrial Relations shall refer the matter to the Industrial Court.
Before the Amendment, the Minister of Human Resources had the authority to intervene and hasten the procedure by deciding whether or not to refer the case to the Industrial Court if the issue was not resolved. The DG of IR now has the right to automatically report cases to the Industrial Court when there is no settlement, making the procedure significantly quicker as a result of the reform.
3rd Step: Referral to the Industrial Court and the proceedings
- For the unsettled disputes which will be referred to the court by the Director General, the case will be registered and ‘Form F‘ (Notice of Mention of Case) will be issued by the IC to the parties. This form lists the details which are pivotal to the parties, such as the hearing dates, instruction on the fillings or any other pre-hearing details.
- The employer or employee may be represented by an appointed lawyer, unions or represent themselves. Certainly, parties are advised to appoint a legal body to represent their case because of the procedural intricacies involved, which may be challenging to handle alone.
- As for this, there are some required forms to be submitted by the parties if legal practitioners are appointed or even unions (MTUC/MEF). The types of forms that must be submitted are listed in the table that is attached below based on the options.
4th Step: Referral to the Industrial Court and the proceedings
- Before the hearing of the case, there are a list of necessary documents to be filed such as the:
- Statement of Case;
- Statement in Reply;
- Rejoinder;
- Bundle of Documents;
- Witness Statements; and
- etc.
- Once all of the necessary steps are done before the hearing, the registrar for the court shall serve a notice by way of “Form G” (Notice of Hearing).
Hearing of the case
- The hearing proceedings operate in a similar manner to an actual trial where both the parties call witnesses and present the case.
- For further filing of documents during the trial, one may consult a legal practitioner for advice.
5th Step: Awards
- Award in this context refers to the decision of the preceding case by the Industrial Court Judge having listened to the witnesses and parties’ submissions.
- If the court rules in favour of the employee, the Employer/Company is obliged to comply with the court’s order about the employee’s reinstatement in the Company or payment of a set amount of monetary damages.
- The employee may file a complaint with the court for non-compliance of the award if the employer disobeys the court’s order. The Court may then issue an order requiring the employer to comply or even find the employer guilty and sentence them to pay a fine or serve time in jail.
6th Step: Appeal against an award to the High Court
Any party who is not satisfied with a decision of the Industrial Court, may file an appeal to the High Court within fourteen (14) days of the day on which they received the decision.
New Development ‘WFW’
Recently, there is a new app launched by the Human Resource Ministry named ‘Working for Workers (WFW)’.
Working For Workers (WFW) is a digital platform that enables all Malaysian employees, both local and foreign, to express their concerns without fear of retaliation or penalty. This grievance mechanism acts as a conduit for dispute into a formalised procedure for a peaceful conclusion.
How to operate this app?
- You may download the WFW app through the Apple App Store (for Iphone users) or Google Play Store (for Android users).
- To use the app, new users must first register by providing certain details which also include the company profile info;
- Name;
- Mobile phone number;
- MyKad or Passport number;
- Gender;
- Nationality;
- Company Name;
- Company phone number;
- Company’s place of work.
3. After successfully creating an account, the employee can use the app to file a “New Complaint”. There are 17 different complaint categories for the employee to choose from based on their circumstances. Following are the 17 complaint categories:
- Dismissed without notice;
- The employer did not comply with the minimum wage;
- Late payment of wages;
- No annual leave;
- No employment contract;
- No maternity leave/allowance;
- No payment of overtime;
- No payment of termination benefit;
- Unpaid public holiday;
- Unpaid rest day;
- Unpaid sick leave claim;
- Not reporting the employment of a foreign worker;
- Employer does not comply with the Minimum Retirement Age Act 2012;
- Employer does not comply with the Workers‘ Minimum Standards of Housing and Amenities Act 1990;
- Unlawful deduction from wages;
- Unpaid salary/wages;
- Employer does not allow work from home.
4. Once the relevant complaint is selected, the employee must enter more information to speed up the procedure, such as the
- Issue’s description;
- Salary;
- Allowance;
- Position within the organisation;
- and any supporting documents.
5. If all the listed procedures have been completed, the complaint is considered effectively created, at which point it is sent to the authority for consideration.
6. The employee can utilise the app to check the status of the complaint.
7. Please refer to the infographics made by the Ministry regarding this process by clicking here.
Conclusion
The process of suing your employer or the company is rather direct, pursuant to the wide-ranging amendment to the act which has now shortened the procedures for an employee to receive the award. This will undoubtedly give the go-ahead to the workers who have been compelled to hide out or hold off on filing a claim because of the drawn-out procedure. Apart from that, an employee may also settle their dispute out of court to preserve their relationship with their employer.
