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.
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