Sunday, March 29, 2009

Email Question: Termination under Employment Contract

Hi Kamarul,
 
 

I came across your blog after hours of searching online for legal advice. Your blog was indeed helpful.

 
 

But I would really appreciate if you can advice me on how to handle my case:

 
 

1. Last year, I received a job offer to join a reputable tv station as a broadcast journalist.

2. I furnished my current employer at that time a 2 weeks' notice (was supposed to give a 3 months' notice)

3. End of last year i received a court order to appear in court as I failed to pay the amount owed

4. I immediately called the hr manager and negotiated to pay in installments, the hr manager said it the payment period was lengthy (2 years)

5. Assuming that i have clarified the matter with the employer, I did not go to court

6. I just received a judgment order against me to pay 7000+8% interest and legal cost and that they will proceed with further legal action against me if I did not settle the amount in 7 days.

 
 

Please help, what should i do?


 

Minder

Answers:

  1. As we all aware, all employment in Malaysia government under Employment Act, or internal employment contract between the employer and employee (if any terms under the contract is against the Act, the Act shall prevail)
  2. So, in this situation is best to refer back to the contract, read carefully the termination terms. Check the method to terminate the contract. I can't really advice on that as I have not seen the contract.
  3. Then check whether the contract is inline or against the employment act. This link may be useful: http://jtksm.mohr.gov.my/images/stories/akta%20jtk/akta%20kerja%201955%20(bi).pdf (refer part XIIA) Termination, lay off
  4. If everything seems to be in order, then you should consider on appealing against the decision. Btw, you should not 'depend' on oral negotiation with the former company, you should attend the proceeding.
  5. Now that the award has been given against you; you two choice:-
    1. Appeal against the decision / review the decision at High Court
    2. Negotiate further to pay via installment.
  6. Your former employer's option is to execute the award/judgment against you, in other word enforced the award. If the award obtained at the labor court, they need to register it back at civil court then file in the execution proceeding. And that would take 1 or 2 months to get it done. Ample time for you to do what is suggested under item 5 above.

Good luck.

22 comments:

  1. hi Kamarul Irzuan, glad to meet you here,
    and i also have a problem to discuss with you and i need your valuable advise also,

    i was worked for one MSC status company for few months and after they gave me 1month termination notice and also agree for that and at last working day i was submitted my work. but still they are not finalized my salary and remaining termination regulations , when ever i request them to finalize they said that I am not finished the work which they given to me

    and i said , i agree for that and i ask them to deduct my pay n settle the rest amount , but still they are not supporting and

    here i am an expatriate and don't know how to proceed to finalize my problem,

    so please advise me really i need your help.

    Thanks in advance.

    ReplyDelete
  2. Hi,

    I will need your advise for my problem.

    I was working for a company as an admin assistant & I was given an incentive scheme. I was even given a formal letter stating my qualifications to claim the incentive. It was stated that all jobs that I close I will get 3% commission but the job has to have minimum 35% profit margin. They also mentioned that, it will be paid quarterly & once all the jobs have been invoiced. For the last quarter, I got paid for all the jobs that I closed with margin above 35% once it have been invoiced.

    Then I gave my resignation letter on 2 May 2010 with 1 month notice. they accepted it. So end on June I put in my incentive claims to be approved by my immediate Manager & thereafter I left the company. When I checked with him after 2 weeks he said he has approved it & have given it to our regional manager to approve. Last week when I emailed the regional manager, he said that they will be in touch with me in due course when all of the work for the quarter period has been checked and paid. As for my understanding & by looking at my incentive letter, there was nothing stated that they can only pay me once the job has been paid by clients. Furthermore, in the past no such thing has occurred.

    I have send him a mail few days back explaining all this & thereafter no any reply from him. Please advice what shall I do.

    ReplyDelete
  3. Saya di berhentikan dalam tempoh 24jam.Atas alasan kecuaian,kehilangan document penting,hal ini berlaku kerana ada kakitgan lain mengunakan id saya pada hari kehilangan document.Setelah di soal siasat(internal enquiry) keputusan yg d perolehi setelah 6bulan kamudian saya di dapati bersalah.
    Id yang di maksudkan tidak 'fully protected'kerana atas dasar kepecayaan,dan sesiapa boleh memberi id bagi tujuan kerja.
    Kalau rayauan di buat ianya tidak memihak kepada saya dan apakan tindakan yang boleh saya lakukan.

    ReplyDelete
  4. Dear Kamarul,

    Hi, I'm Tracy. Wish you can help me with this matter.
    I receive my company sponsorship for my Diploma course since 12 Jan 2010. The term is I will be bond for 12 months after the my completion of the course. However, due to some personal problem, I wish to terminate the contract and I'm willing to pay back what the company had paid for me.
    Question :

    1. What is the proper procedure to terminate this contract?
    2. Assume that my employer had accept my cheque, what should I get in return ? Do I have a copy of letter which stated that the contract is breach ? Or I should take back the original copy of contract from my employer ?

    Please assist. Thank you.

    Regards,
    Tracy

    ReplyDelete
  5. Hi Kamarul.

    I'm currently working in a firm. Lately my firm had been dissolved due to dispute between partners. Court Order in mid of January, confirmed that my firm was dissolved as at 31.12.2010. Liquidator has been appointed pursuant to court order. 

    My question is since my firm was dissolved as at 31.12.10, does it mean that my employment with this firm is automatically terminated as at 31.12.10 and I'm entitled to the restrainment benefit (salary in lieu of 1 month notice) as per my employment letter signed when I joined this firm.

    My liquidator appointed, however, saying that my employment is not automatic terminated and I can't leave the firm now as there are still dissolution work to be completed. He said that my employment can only be terminated if he as a liquidator terminate my employment or he will offer me by giving me a temporary employment letter under the firm (in dissolution). I have to work at least for 1 month as serve as 1 month notice that he or the firm (in dissolution) giving to me. And therefore, I'm not entitled to any restrainment benefit as they have serving me 1 month notice to work. In any event if I refuse to come to the office without any reasons, I will be treated as AWOL.

    I'm now confused with my current status. Please advice.

    Thank you.

    ReplyDelete
  6. Dear Kamarul

    I am from a private sector which our standard employment contract is follow the employment act 1955.
    Recently we have some arguement with the minimum Holiday grant to staff. Under employment act it is stated min 10day is entitled. But since last year 16-Sep-2010 due to Malaysia Day, is it the employment act has change?
    How many days of holiday is a minimum entiled to a worker in private sector?
    Please advice

    ReplyDelete
  7. Hweefang, for better understanding about your queries, I suggest u to have a look at this link:

    http://www.ilo.org/dyn/natlex/docs/WEBTEXT/48055/66265/E55mys01.htm#p12

    ReplyDelete
  8. Dear Kamarul

    I would like to enquire about the minimum requirements of qualifying as a lawyer in malaysia.My friend graduated from University of London with a 3rd Class law degree(LLB). I would like to know are there any possible ways to help him to appeal to the board to enable him to continue his CLP. Moreover, he was unemployed for 4 months. Life is difficult these days without able to have the necessary qualifications.It would be a waste as his dream to be a lawyer would be just wasted simply because of 3rd Class. He had appeal once to the board but rejected. Can you please help him please. Thank you.

    ReplyDelete
  9. Dear Anonymous,

    1.
    Appeal to the Board is something which is internal and the outsider does not have any power to press and push the Board to accept a particular student.

    2.
    However, to ease his admission into CLP, we suggest him to do his attachment with legal firm for a certain period of time, so as to strengthen his resume to apply for CLP.

    3.
    There are so many legal firm eager in appointing attachment student. For a start, you can ask him to browse Malaysian Bar website as well as State Bar website to gather information about legal firm who is in need of attachment student.

    Sincerely

    Khairul Aiman
    Messrs. Irzuan

    ReplyDelete
  10. Dear Kamarul
    I work in a bank for 31years.On 30 June 2011 I received a SHOW CAUSE letter from my employer for not achieving PMS rating of 3.I have been rated 2.7 for the year 2009 & 2010.The letter need my explanation why the bank should not terminate me .The PMS was mostly base on sales figures .My position was a Customer Service Officer whereby most of my working hours from 8.45am to 5.45am I have to do my supervisory jobs.Therefore I do not have much time to do sales.Due to that my sales figures was not up to the target.My contribution on work done from 8.45am to 5.45am was not taken into consideration when the management do the rating for my PMS(KPI + Comptencies).Question-can the bank terminate me for non performing.What should I do.I am worried about my future as the bank do not show any sense of loving although I have work for a very long period.Please give me some advice because when in difficulty nobody comes to help."Teman ketawa senang dicari teman menangis seorang diri.

    ReplyDelete
  11. 1.
    The essence in terminating someone's employment is either you have behave in a wrong manner or you did not meet the expectation of the bank.

    2.
    Even if the two things happen, the bank must give you time to defend yourselves and give explanation on that matter.

    3.
    Being a worker for 31 years, you have the legitimate expectation to stay with the bank and that should be taken into account before dissmissing you.

    4.
    In the event where the bank terminate you, you should as soon as possible get a legal representation to enable you to defend yourselves properly.

    5.
    Feel free to contact me at khairul.aiman2@gmail.com

    Regards
    Khairul Aiman
    Messrs. Irzuan

    ReplyDelete
  12. Dear Kamarul,

    I work for a local private company for around 11 years (9 legally since there was a change in bosses and we got transferred to a new business entity). Beginning of the year, my boss have indicated that he is not continuing the business (not written, just verbal announcement). Last week he decided proposed to us the following choices:-
    1) 50% pay cut working 3 days a week for the next 6 months.
    2) Take the layoff benefit according to the letter of employment. (the termination clause inside the letter of employment is 2 months pay)
    3. Working out a retainer model to work from home.

    I have approached the Labor office and I do not fall under labor law. Therefore the layoff is supposed to follow my letter of employment.

    I would like to as, if there any way to seek higher compensation and what are the chances of it.

    PS. I have one other colleague who is 4 months pregnant, how will her case differ from mine?

    Thanks.

    ReplyDelete
  13. Dear Anonymous,

    1.
    The chances to seek for higher compensation is depending on the reason for terminating your service. If the termination is unlawful, you will have a higher chance to get higher compensation.

    2.
    It seems like your boss is proposing some other mode of working instead of terminating your service, and as such the compensation will always depends on the letter of employment.

    Messr. Irzuan

    ReplyDelete
  14. Dear En Kamarul Irzuan,

    Please help me on this issue.
    Can an employer not renew a contract with period of time (contract from 1 Jan 2011 until 31 Dec 2011) without any notice period letter given to the employee? Is it compulsory to issue the letter even though the contract clearly stated that the employment will end on 31 Dec 2011.

    please advise...
    Thank you.
    Miza

    ReplyDelete
  15. Dear Kamarul,

    Would you please advice me.

    I (manager & above 5k) have tendered my resignation on Sept 21 and last day will be on 20 Dec. (if follow completely 3 months notice), however, i still have balances of 10 days earned annual leave left. So, if minus off 10 days annual leave, i suppose to leave by 5th Dec.

    I wish to leave by 5th Dec. (as report to new work on 8th Dec) by applying 10 days annual leave, the problem was my Boss don't approve my 10 days annual leave by claiming approval of annual leave is based on management discretion and they also haven't get the replacement.

    I need to report to new work by 8th Dec., thus i like to find out:-

    1) If i work until 5th Dec and by 6th Dec, i won't come to office anymore, what will be the penalty or consequences. Will company hold up my salary or forfeit my earned annual leave or ask me to pay compensation or sue me ?


    2) Although i have completed my handover job now but my boss still not satisfy. May i know is it compulsory or binding to do handover job during resignation and what action can company take against me if this become a dispute later on ?




    Thanks you.

    Tan

    ReplyDelete
  16. Hi Kamarul,

    Would like to check with you on my case.
    I worked with an construction company for more then 5 years, I have tender my resignation letter a month ago with one month notice base on my appointment letter.

    But the HR manager says that I should be giving 2 months notice as they have send out an email to notify all parties, is this valid even they don't update my appointment latter with both parties sign?

    Do I againset the law if I leave this company after one month without getting any confirm letter from this company?

    Please advise.

    Thank you.

    ReplyDelete
  17. Hi,
    Would like to seek advise on below situation.

    I have resigned from the company by giving 1 month notice. The resignation letter was given to the immediate supervisor.

    However, 6 months later, the HR of resigned company call me and demand me to pay 2 months penalty.

    When look thru the letter of offer, I mistakenly on the termination period which suppose to be 2 months. Immediate supervisor does not even advise me on the checklist (and I presume no checklist because previous previous company does not have it also).

    My view is, HR suppose to cross-check and let me know before my last day of service. Although I'm at fault, HR dept also negligence in this matter.

    Question is, do I need to pay such penalty?

    ReplyDelete
  18. dear Miza, sorry for the late reply. they need to inform you either verbally or through notices about it but if you can ask them is better so that you can know what they intend to do with your employment and if nothing it is safe to rely on the date given and make sure you have evidence to prove it. thanks for viewing our blog..

    ReplyDelete
  19. dear anonymous, there is clear mistakes on part of your x company in failing to make sure you accord to the rules in the company. plus, it takes 6 months for them to noticed the mistakes. however, you also make mistake by not looking at the employment contract properly and we advise you to look at any clause related to this issue and seek advise from nearest Pejabat Tenaga Kerja about this.

    ReplyDelete
  20. dear anonymous, what included in the employment contract must be adhere and follow where terms in it cannot be changed arbitrarily without newly amended contract signed by you..

    ReplyDelete
  21. dear Tan, sorry for late reply. in this situation, you just need to read you employment contract to know about it. but according to Employment Act 1955, you can take the annual leave to be part of termination notice period. however, we advise you to contact nearest Pejabat Tenaga Kerja for more info. thanks for viewing our blog and all the best.

    ReplyDelete
  22. Hi I hv heavy debts which unable to pay and intended to sell off my property before I sue bankrupt by the bank
    However I still unable to find prospect buyer for the house
    Hence whether I able to sell off the house and transfer the name to the buyer upon the sale deal if I did sued by legal proceeding by the bank due to 2-3 months arrears on my credit cards and personal loan debts?

    ReplyDelete