Tin

5/24/2007 1:50:38 PM
Re: Confirmation & Resignation Notice

I saw under FAQ explained a staff is not considered confirm staff without receiving confirmation letter although finished probation. Please advise under which sect/ act of Malaysian Labour Law support this. Is staff earning > RM5000/mth protected under the act? What can be done if my employer issued me letter stated I have to serve 3 months notice from resignation notice while contractually only 1 months notice for yet confirmed staff? 3 months only for confirmed staff contractually. The given reason is the company normal practice without provide confirmation letter after probation period.
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Kl Siew
kl_siew@yahoo.com
5/24/2007 3:55:23 PM
You may find some info about staff on probation under the item "Probation" in the Home Page of this website.

For staff earning over 5K he is protected by the Industrial Relations Act in case of unfair dismissal. For breach of terms and conditions of service, the employee can sue his employer in civil courts.

About the actual period of notice you refer to your appointment letter or company handbook/policy or ask your HR department about it.
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Tin
Vincenttin07@yahoo.com
5/24/2007 4:30:12 PM
Dear KL,

Thanks.

Appreciate your advice for below:

1. My appointment letter stated 1 month notice prior to confirmation and 3 months notice after confirmation. 6 months probation period. Also stated employer can pro-long probation period. Not stated notice to be given upon finish probation period. HR notified me I am confirmed staff after tendering resignation as without confirmation letter is company normal practice.
2. It is small setup hence without valid company handbook/ policy.
3. The HR insists I am confirmed staff and required to serve 3 months notice.

Is the HRís requirement correct under Malaysian law and regulation? Am I breach any employment agreement if I do not serve 3 months notice till the HRís specified last day service in the company.
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Kl Siew

5/24/2007 4:54:49 PM
Now there is a point in dispute. Before you do anything you better consult either the Labour Department or the Industrial Relations Department or both. Let us have your feedback after the consultation.
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TIN

5/24/2007 5:05:04 PM
Thanks for your valued advice.
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Tin

5/30/2007 12:03:54 PM
Dear KL,

Below written advice from Industrial Ralation Department for my case:

For your information in the case of KC Mathews v. Kumpulan Guthrie Sdn. Bhd [1981] 2 MLJ 320 at p.321, Raja Azlan Shah CJ (Malaya), as he then was, quoted with approval in the Federal Court the judgement of Das Gupta Jin Express Newspaper (P) Ltd. v. Labour Court & Another AIR [1964] SC 806. The Federal Court ruled that :

ďif no action is taken by the employer either by way of confirmation or by way of termination, the employee continues to be in service as a probationer even after the probationary period is overĒ

1. From this case it is clear that if you have not received any confirmation letter from your employer then you are still a probationer.

2. However you have to ascertain whether it is a normal practice in your company that an employee is deemed to be confirmed after serving six month of probation period. If this is the procedure then you are a confirm employee. The employer may request you to serve 3 month notice.

3. Depending on your status, if you are a confirmed employee then you will be breaching your Employment Agreement.

4. You can leave earlier than 7 August 2007 provided the employer consent and permission is given to include the balance of your annual leave. Whereby you will have to pay to the employer an indemnity of a sum equal to the amount of wages which would have accrued during the term of such notice.

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KL Siew

5/30/2007 2:42:15 PM
Thanks for the feedback.

So the legal part is clear that a probationer who is not confirmed is still a probationer from the Federal Court ruling.

But for the "normal practice" part, one will have to look into the company's policy or past practice in treating probationary employees, as indicated by the IR department.
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