STATUTORY DEFENSE WHEN EMPLOYER CLAIMING WAGES IN LIEU OF NOTICE AGAINST AN EMPLOYEE

When an employee being sued by an employer under section 69(2)(iii) or 69C, Employment Act 1995 for wages in lieu of notice. The act itself has provided statutory defense in the form of section 13(2) and section 14(3), both sections has requirements that if fully met, an employee can challenge the cause of action brought up by the employer to the labour department.

Section 13(2) dealt with breach of contract and usually read together with section 15(2) of the said act, if being used by an employee.

Section 14(3) are use exclusively by employees when in his opinion he or his dependent are in danger from the employment contract, a simple example is a clerk instructed by his employer to stand-in as a security guard in the absence of one.     

Seksyen 15(2), perlukah majikan mencari pekerja ponteng.

Ponteng kerja adalah suatu masalah yang sukar ditangani oleh majikan dan mengganggu operasi harian dan kadangkala keseluruhan perniagaan.

Majikan sering dibebani dan dihujani dengan persoalan adakah telah cuba mencari, menghubungi dan mencuba bersungguh-sungguh mengetahui kedudukan pekerja semasa ketidakhadirannya. Terpahat di kotak fikiran majikan dan menjadi tangkal azimat mentera pekerja, majikan tidak prihatin tidak ambil peduli, kejam dan pelbagai gelaran jika kelihatan tidak ambil peduli ketiadaan pekerjanya.

Merujuk peruntukan khusus seksyen 15(2) Akta Kerja 1955 (Akta 265), adalah menjadi tanggungjawab pekerja secara statutori (di bawah akta parlimen/ undang-undang) untuk memaklumkan kepada majikan kenapa ponteng kerja dengan alasan yang munasabah.

Hujahan pekerja berkaitan majikan tidak  prihatin tidaklah berasaskan undang-undang bertulis, sebaliknya berdasarkan tanggungjawab sosial, moral dan etika semata-mata.

UNCHR Card Holder : The Employment ?

..."an agreement enforceable by law is a contract" section 2 (h) Contract Act 1950...

A contract of service is a contract under Contract Act 1950, if not for the specific statues that governs it such as Employment Act 1955 and Industrial Relations Act 1967. The general principle not being dealt by specific labour law will still fall into Contract Act 1950.

At has come the attention of the authority, alien that only possessed document issued by the United Nations Commission on Human Rights (UNHCR) seeking employment and employer often ask the labour department whether to accept them as employee or not.

The answer lies in the general rule of employment an any sovereign country, the only person that can take up employment is the citizen. In Malaysia, under the current interpretation of Employment Act 1955, a permanent resident has similar right as citizen as far as employment concern.

Other than the two, nobody can be accepted as an employee and enjoy the protection laid down by labour law.  In the growing economy, job are redundant and the domestic supply of labour is insufficient. The government realizing this has decided to open the labour market to foreign worker. Equipped with proper travelling papers dan working permit, foreign worker enter the Malaysian labour market enjoying basically the same benefit as citizen and permanent resident. Thus adding the two group to three.

Other than the three, based on current policy and special circumstances, groups are granted the right to hold employment legally, for example foreigners spouse to Malaysian citizen, Acheh tsunami victim and I believe the Syrian refugee will also be given this special consideration.

A holder of UNHCR card, is not given this consideration, they can work to support their livelihood but in the event of non compliance of condition of service of their employment agreement between an employer and a UNHCR card holder they don't have the right to enforce the agreement. An agreement that cannot be enforce by law shall be void and will have no effect.

Based on the current rule and regulation, until Malaysia rectify ILO convention in relation to migrant worker or accept the status of refugee as in the Syrian refugee, a holder of UNHCR card shall not be able to file claims for non payment of wages amongst other in the labour department.

Wages : Travelling Allowance : My point of view

Section 2, Employment Act 1955 interpreted wages as basic wages and other cash payable for work done. It went further by excluding payment in cash such as traveling allowances, bonuses amongst other from the interpretation of wages.

Travelling allowance, for the purpose of payment to an employee is a form of payment that is payable not for work done.

In order to better understands why, we can use the workmen compensation model to show us why travelling  allowance is not payable for work done.

 The principle of "Going and Coming Rule", laid down by the law since the employer derives no
benefit from an employee’s ordinary commute to and from work. We can also simplified this principle as  punch in and punch out (clock-in clock-out), which during this interval an employer is liable to the action by employee or injury to the employee in the course of employment is one of the measurements weather cash payable is wages or not.

The master, or we call them employer has the right to control the servants or employee within time limited by law. Clearly if the employer wish to pay travelling allowance for the purpose of paying for the journey from home to the place of employment, the payment shall not for work done but outside of the "control period" that an employer has against his employee.

Different from basic wages, payable as a consideration for the whole duration of contract of service.

The Malaysian legislature has done justice to the interpretation of wages simply by acknowledging the existence of these dichotomy, namely basic wages and cash payable for work done.

In my opinion, if an employer has decided to name the travelling allowance as travelling allowance or simply naming it under "travelling" will the exclusion takes effect, other name in the form of petrol allowance, car or car maintenance allowance will have no effect as to exclusion from the interpretation of other cash payable for work done.

The value of travelling concession, is when an employer put a price tag to transport provided by him to commute his employee to the place of employment and shall also be excluded from the interpretation since no cash changed hand. If there is any, the cash shall be payable to a specific purpose or person namely the transportation provider.

In conclusion it is safe to say travelling allowance is not wages under section 2 Employment Act 1955.

Interpreting provision under employment act 1955

Interpretation

2. (1) In this Act, unless the context otherwise requires -

"employee" means any person or class of persons—

(a) included in any category in the First Schedule to the extent specified therein; or

(b) in respect of whom the Minister makes an order under subsection (3) or section 2A;

for the purpose of determining whether a part, section or any provision under the act is applicable or not. One must remember the initial interpretation given under section 2.

for example, right of audience under section 85A to represent an employee under civil proceeding. Question arise are we going to be applying interpretation under section 2 which limit it to schedule employee, or we shall include employee under section 69B, since section 69B clearly state the applicability of the part which the right of audience fell into.

If we read together, section 2 and section 69B, then the context requires the interpretation of "employee" shall include employee with wages more than two thousand ringgit but shall not exceed five thousand ringgit.

Another interpretation is, section 69B only furthers the Director General of Labour power to hear, inquire into and decide claim by an employee against an employer, and with specific purpose shall not include any other task including representing an employee under a civil proceeding. The applicability of such part is in order to dispose the claim to the extents of what section 69B were intended to cater, that is to hear, inquire into and decide that's it. Anything further than that shall be exceeding the intention of section 69B.

This has come to my belief that, "a provision under an act of Parliament which can be interpreted with more than one interpretation, even by a layman shall construed as a bad law and need to be amended"

Employer invoke section 13(2), termination benefit...

Question

If the employer invoke section 13(2) for breach under section 15(2), does regulation 4 applicable since an employee shall be entitled to termination benefits payment where his contract of service is terminated for any reason whatsoever, and clearly termination under section 13(2) still constitute a termination under regulation 4,

The Law

“… 4. (1) Subject to paragraphs (2), (3) and (4), an employee shall be entitled to termination benefits payment where his contract of service is terminated for any reason whatsoever otherwise than -

(a) ...

(b) ...

(c) voluntarily by the employee, other than under section 13 (2) or the reasons specified in section 14 (3) of the Act.

Answer

To answer this question, we must look into section 13(2) and the spirit behind it, that render a termination by the employee's will not deprive him of the termination benefit.

As a general rule, if an employee terminate his service he is not entitle to be paid termination benefit, only when he invoke section 13(2) and 14(3) an exclusion to the general rule apply and employee who terminate his contract of service shall be paid termination benefit.

Both section contain specific issue, section 13(2) namely is regarding an act of willful breach by party that has left the other party an option whether to continue the contract of service or end it on the ground of a voidable contract. of service

Section 14(3) is about the inability of employer to provide a save working environment, in the opinion of the employee shall have an effect to his safety and the safety of his dependent. This situations is also a form of voidable contract of service at the option of the employee.

In-line with the unequal bargaining power, an employee to some extent during the execution of the contract of service, will have some right in deciding whether he can end the relationship on the ground of a voidable contract of service, and shall not be burden to pay damages allowed in the industrial jurisprudence namely an indemnity in lieu of notice. Section 13(2) and 14(3) just provided a statutory defense on this matter.

In my opinion, regulation 4 (c) are exclusion to general rule of entitlement for the payment of termination benefit, and an act by the other party namely the employer to invoke the same section shall have an adverse effect, to put it into perspective, an act of termination by an employer for the reason of willful breach by the employee shall stripped him of the termination benefit. This is because the act of termination by the employer is trigger by a breach of the contract of service by the employee.