Friday, August 5, 2016

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

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.

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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