Though the concept of unfair dismissal or unlawful termination is not new in Malaysia, there have been numerous misconceptions about it. Though there has been increased awareness about the rights of employees in Malaysia, many still remain unclear. Below are several salient points on the matter.
From the time of dismissal, an employee has 60 days to file a complaint of unfair dismissal under Section 20 of the Industrial Relations Act 1967. As for those dismissed with notice, they are free to file the complaint any time during the notice period, but not later than 60 days from the expiry of his notice. If for any reason, the complaint is not filed within the limitation period, the complaint will be barred. If this happens, the complainant may look at other avenues in the civil courts. However, the damages and remedies awarded may differ.
Cases are not heard immediately at the Industrial Court
Anyone who wants to lodge a complaint on unfair dismissal must firstly do so at the Industrial Relations Department (IRD). Following this, the IRD will get both parties, the employer and employee to attend a reconciliation meeting with the hope of amicably settling the dispute. However, if there is no positive outcome, the IRD can then refer the matter to the Industrial Court. At times, it could take more than a year for a claim to be referred to the Industrial Court. This all depends on the number of backlog cases. Also, there is no guarantee the claim will be referred and those who are unhappy with the IRD’s decision can apply for judicial review at the High Court.
IRD meeting not a court hearing
The IRD officer does not have any power to decide on the merits of the complaint during the conciliation meeting. It must be remembered that the IRD meeting is not a court hearing and the IRD will not make any ruling or decision as to whether the dismissal is unfair. The purpose of the IRD meeting is to get parties to reach an amicable settlement. Section 54 of the Industrial Relations Act 1967 provides that no evidence shall be given of any conciliation meeting other than a written statement agreed to and signed by the parties. Parties should feel comfortable to discuss matters freely during the conciliation meeting.