Dear KL Siew,

I would like to find out from u that, if i am being offered a job for RM1250 monthly salary and i am being bound for 2 years contract, do u think my employer is against the labour law? I heard before that if the monthly salary is less than RM1500 and the employer want us to be bound by contract unless he exchange with conditions, for example my employer is willing to bear my college tuition fee otherwise he is consider against the law.

What if during the 2 years period time, i will get increment? Is this consider not against the law. Kindly advice.Thank you very much.

Regards,
phaik kuan

Reply

Hi Phaik Kuan

It is a matter of individual contract, nothing to do with labour law. However binding employee for 2 years seems long, have your company spent a lot of money giving you training? If you think it is unfair and worry about it, don't sign, consult a lawyer first.
I have not heard of anything about employer bearing tuition fee for those with salary less than RM1500.
You may bring a copy of the contract and consult the labour office.
Regards
kl siew

3. Contractual Bonus

Subject: Some employment question

Dear Mr Siew,

I have several questions needing your advise/view, as me and my colleagues are earning above RM1,500, which are not convered by the Employment Act. Everyone of us are to give a 2 months notice to either party shall we decided to terminate the service.

We are working in a local company, which recently said to be facing some financial difficulities:

a) Contractual bonus.
It is stated clearly in our Appointment Letter that we shall receive an additional 1 month bonus on the end of the year upon completion of one year of service.

Q1: If a staff handed in his/her resignation on Oct 31st or Nov 1st, which means the last day of his/her service will be on Dec 31st. Is it rightfully for the company NOT to honour and pay the said staff the 1 month contractual bonus, given that the last day of service should be consider as Dec 31st (completion of 1 year at the end of the year) rather than taking it from the date the letter was dated/handed?

Q2) This year, the company had on Dec 30th, issued an letter along with the Dec payslip stating:
"We wish to notify you that due to difficult cash flow situation we will be deferring the payment of contractual bonus to next year."

Does the company have the right to do so? Does this mean the company still owe us the contractual bonus? If I were to hand in my resignation letter today, can I get my accrued Contractual bonus for year 2005 or the company can take this as their best excuse to forfeit that payment to me?

b) Termination
On Jan 3rd, the company terminated the service of three staffs, A (5 years in here), B (4 years in here) & C (3 years in here) with immediate effect. We believed this is part of the downsizing exercise by the company given their cashflow difficulties. during the last 6mths, B had been demoted/reassign to the reception role, without any salary deduction. Both A & B were terminated due to the company do not need their expertise as the planned projects did not take off after 3 years failure by the boss to get the Project. C has been constantly on unpaid leaves due to family problems.

Q1: Does the company have such right to terminate and/or exercise such downsizing to A & B with the reason of 'the company failure to secure the project hence your expertise are not needed'?

Q2: All the three staffs were given a notice of termination stating 2 months of salary compensation as stipulated in the letter of appointment, & are forced to sign some sort of 'agreement saying they are voluntarily resigning'. Is this a fair compensation? I heard that the new HRD Guideline for VSS is 5 months pay as compensation for 5 years of service (for A case). Does this applied here?

Q3: Under such circumstances, are the three said staffs are entitle to their accrued Contractual Bonus for the year 2005 as all of them were still under the company employment as at 31st Dec.

Q4: The company said the salary will only be paid to them at the end of January. Is this legal?

c) Employment Act or Labour Law
I had red in your several replies that EA do not cover staffs getting RM1.5K per month.

Q1: Does this RM1.5K is just gross salary or is it included allowance, OT, Commision or any other incentives? ie: Will a sales reps with a basic salary of RM1K, handphone alloanwce RM100, Petrol allowance RM500 & commission are protected under EA, or is he considerable above RM1.5K pay (and not protected)?

Q2: Since all of us are above RM1.5K pay and we are not protected by the EA, does this mean the EA or any part of the Letter of Appointment stating 'as stipulated in the Labour Law' applies to us?

Appreciate your kindness to advise as we heard unofficial news that there will be a few number of staffs that might be cut soon. This really unsettle us for all of us are above RM1.5K pay. I heard that my company had already prepare the Labour Law (EA) as their defence weapon for all the above matters shall any complains being lodged. If the company choose the Labour Law or EA as an arguement, is it valid? If yes, then why aren't we being protected by the EA? If 'No', what are we being protected by? The next few 'head-cutting' could be any of us, with me being no exception.

Thanks in advance for your reply.

Regards,
Qiang

Reply

Hi Richard

About the question of the RM1500.00 ceiling, Section 69B is very clear about this. The Labour Department still has the power to inquiry into any claim from employees whose salary is above RM1500.00 but below RM5000.00. The definition of wages is also mentioned there.

" 69B. Additional powers of Director-General to inquire into complaints.
(1) Notwithstanding the provision of this Act, the powers of the Director-General under section 69(1)(a) shall extend to employees whose wages per month exceed 1,500.00 ringgit but does not exceed 5000.00 ringgit.
(2) For the purposes of this section, the term “wages” means wages as defined in section 2 but does not include any payment by way of commission, subsistence allowance or overtime payment.
(3) Save for Parts XV and XVI which shall apply with the necessary modifications, the other provisions of this Act shall not apply to the employees referred to in section (1). "

a) Contractual bonus.

Since it is a contractual bonus stated in the contract of service, they may be able to make claim at the Labour Department as stated in Section 69B quoted above.

b) Termination

As for termination and you think that was in fact wrongful dismissal, you can approach the Industrial Relations Department to claim reinstatement under Section 20 of the Industrial Relations Act.

As for deferring payment of salary, please refer to Section below. The company must get approval first.

"19. Time of payment of wages.
Every employer shall pay to each of his employees not later than the seventh day after the day of any wage period the wages, less lawful deductions, earned by such employee during such wage period.
Provided that if the Director-General is satisfied that payment within such time is not reasonably practicable, he may, on the application of the employer, extend the time of payment by such number of days as he thinks fit."

According to what you have stated, you have two courses of action: (1) approach the Labour Department about the contractual bonus, (2) approach the Industrial Relations Department for termination of service if you think the action of the company is tentamount to wrongful dismissal.

You can find the contact phone numbers of the Departments on the Home Page.
Good luck and best regards
kl siew

To: KL Siew klsiew@pesaraonline.net
Subject: Re: Some employment question

Thanks Mr Siew.

I had tried to search the related website, including Ministry of Human Resources website but it can' access. Hence I have not much info/contacts. But now I found it under your website, thanks.

However, would be great if you could attend to my questions below:
1) I had received an offer from another company, and I 'might' be handing in my resignation letter to my present employer. Are they suppose to pay my 2005 contractual bonus which they did not do so due to 'cashflow' reason?

2) If a staff handed in a 2 months resign notice on Oct 31st, and her last day with the present company is Dec 31st, will she still entitle for the 'contractual bonus'?

3) lastly, what are the difference between Labour Office, Industrial Relations Department & Trade Union Department?

Appreciate your speedy advise before I sign on the dotted line.

Regards,
/Qiang

Reply

Hi

Thanks for the kindly words.

(1) I am afraid you will have to check up your company handbook or poiicy on bonus payment. Many companies pay bonus only to those who are still employed at the time of bonus payment is made. But due to cashflow and it is contractual, then you may have to make trip to the Labour Office see whether they can help you. Hard for me to give you a concrete answer, sorry.

(2) As I said above, you have to check up the company handbook on time of payment. Her timing to resign seems to be not the right time. Get your bonus first then resign.

(3) Labour Office is an enforcement department which oversees that employers provide the necessary benefits which are mostly of monetary value such as annual leave pay, sick leave pay, maternity allowance, wages as indemnity in lieu of notice and so on under the Employment Act 1955. Workers make claims there. The Industrial Department on the other hand regulates the relations between employers and employees, employer employees' unions. Another very important function is for dismissal cases. If an employee thinks that he or she is wrongfully dismissed, he can make appeal under Section 20 of the IR Act 1967 to be given back the job. It is open to all employees irrespective the occupation or how much salary they are drawing. Whereas the Trade Union Department takes on quite a different function in that it regulates the registrations of trades unions or trades union activities. It enforces the Trade Unions Act 1959.

Regards
kl siew

4. Wages - Deductions

Dear Mr. Siew,

I have some queries regarding certain policies at my current workplace. I hope that your many years of experience and vast knowledge of Malaysian Labor Law would be able to shed some light of those issue. I am currently in retail industry and some of the company procedures are raising concern among the staff and the HR department is unable to enlighten me.

The company has strict regulation on appearance and punctuality. At current, the junior staff and supervisor are to be fined a certain amount of money depending of their offence. A fine of RM10 would be imposed on lateness and RM 2 on every other minor offence such as unkempt appearance. The current practice is that the staff would pay the fine on the spot to the operation executive and the money would be kept by the executive on pretext that the money would be used for the next function held such as farewell dinner or gathering. Majority of the staff are non Muslim thus the event are normally held in a non halal diner yet Muslim staff are still forced to pay event they are not allow to participate in those event. The HR department is supposed to give either verbal or written warning to the relevant staff in order to ensure that he or she does not repeat the offence but it appears that the executive have taken into their power to impose certain regulation and punishment. Just
> recently, they have also introduced a point system for target sales whereby those who are unable to hit the target would be fine as well. If the target is 50 point and the staff are only able to reach 40 point, the balance 10 point would have to be paid to the executive e.g. 10 x RM10. Those who refuse to pay would be considered as an outsider and disloyal to the group. None of this was mentioned on the appointment letter nor was any official memo given by the HR department.

Do the executive have the right imposed fine on staff?
Is it legal to collect money from employees on the pretext of any reason at all?
Can employees be force to work for more than 12 hours per day?
Can employees be forced to work on his or her off day even when there are adequate manpower to run operation?
Are employees allowed to work for 14 day in a row?

Hopefully you would be able to shed some light on those matters above.

Thanks and regards

KT Tieh

ANSWER:

Hi Tieh

Thank you for visiting my website.
In fact there are quite a number employers having such unlawful practice. Below are my answer to your queries.
Do the executive have the right imposed fine on staff?
ANSWER: In fact what your employer doing is wrong. Deductions can only be made according to the Employment Act Section 14(c) and Section 24 which I have reproduced below for your information. If you were to complain to the Labour Office, it is very likely that your employer will have to pay back all the fines deducted if those deductions were made not in accordance with the law. For this do consult the Labour Office nearest to your place of work. Telephone numbers can be obtained from the website. Try to read the law below carefully.
Section 24. Lawful deductions.
(1). No deductions shall be made by an employer from the wages of an employee otherwise than in accordance with this Act.
14. Termination of contract for special reasons.
(1) An employer may, on the grounds of misconduct inconsistent with the fulfilment of the express or implied conditions of his service, after due inquiry:
(a) dismiss without notice the employee; or
(b) downgrade the employee; or
(c ) impose any other lesser punishment as he deems just and fit, and where a punishment of suspension without wages is imposed, it shall not exceed a period of two weeks.
Is it legal to collect money from employees on the pretext of any reason at all?
ANSWER: If the employees pay from their pocket and not through salary deductions the labour office may not be able to act. Employees themselves have to make a stand. I don't eat why should I pay?
Can employees be force to work for more than 12 hours per day?
ANSWER: Employees can be asked to work is based on Section 60A(2) reproduced below. Again the Labour Office can inquiry into whether the employer is justified to ask the employees to work as such.
(2) An employee may be required by his employer to exceed the limit of hours prescribed in subsection (1) and to work on a rest day, in the case of:
(a) accident, actual or threatened, in or with respect to his place of work;
(b) work, the performance of which is essential to the life of the community;
(c ) work essential for the defence or security of Malaysia;
(d) urgent work to be done to machinery or plant;
(e) an interruption of work which it was impossible to foresee; or
(f) work to be performed by employees in any industrial undertaking essential to the economy of Malaysia or any essential service as defined in the Industrial Relations Act 1967:
Provided that the Director-General shall have the power to enquire into and decide whether or not the employer is justified in calling upon the employee to work in the circumstances specified in paragraphs (a) to (f).
Can employees be forced to work on his or her off day even when there are adequate manpower to run operation?
ANSWER: See answer for the working hours above.
Are employees allowed to work for 14 day in a row?
ANSWER: Not 14 days in a row but it can be 12 days in a row. For example working days as follows
1(restday)2,3,4,5,6,7,8,9,10,11,12,13,14(restday). I hope you understand. day 1 and day 14 are restday, the rest are working day.
If you have further queries, please do not hestitate to contact again.
kl siew

5. Domestic Servant

From Amy

Good morning! Sorry to trouble you again. Would appreciate if you could clarify the following :-

1) Can an Absconded Indonesian maid claim her salaries through the Labour office?

2) Can we, the employer, deduct from the Indonesian maid's salary for damages made on our belongings/properties and/or on non-performance of her daily duties accordingly?

Thank you for your kind attention and Wishing you a Merry Christmas and a Happy New Year!

Yours sincerely
Amy
Kuantan

Reply

Hi

A maid is a "domestic servant" coming under Section 57 of the EA. Section 57 is the only entitlement a domestic servant can get. If you read the First Schedule again under Domestic Servant, so many sections on the right of the table are not applicable to them, that means she is not entitled under the Act. If the maid alleges that she was dismissed without notice, the Labour Office may take up her case for that matter only. If she claims her wages which you retain for those things mentioned by you, the Labour Office may also take up the matter as a operation service and inquire into it.

As for deducting maid's wages for breaking things, non performance of duties etc, I wouldn't do that if I were you. I would be having a tough time trying to convince whosoever the authority,though you are damned sore about it. Can't give you a yes or no answer.
Best regards

6. Foreign Workers

Eddy & Amy wrote:

Dear Sir/mdm

WIth reference to the above mentioned, I would appreciate very much if you could advise the following :-

1) Does our Malaysian Employment Act 1955 applies to foreign worker? As I could not find any such statement under Definition of Employee.

2) If it does, kindly advise under which clause in the Employment Act 1955.

Thanking you in advance, I remain,

Yours sincerely
Amy Goh

Reply:

Hi Amy

The Employment Act does distinguish between local and foreign workers. But for foreign workers the terms and conditions of service are normally stated in the contract when they came in. They can approach the Labour Office if they have problems with their employers.
Regards

kl siew

7. Holiday - Public Holiday

Yuana wrote:

Dear Sir,
Company will be closed for Chinese New Year starting from 28th January to 1st February. However, they will deduct annual leave for 28th January which we don't agreed. Can we complaint to Labour office on this matter?

Reply

Hi Yuana

This is always a problem whenever there is a long stretch of festive holidays whether it is for Hari Raya or CNY. Others have been asking the same question and I have been advising them that if others don't mind, they should also try to enjoy the long holidays with your family even mean your own annual leave is deducted.
However, you can surely complain or rather consult the Labour Office, given them a call.
Regards

kl siew

8. Leave - Absent without leave

From Ricky

Hi KL Siew,

Thanks in advance for your help. We have previously warned an employee about his uneven attendance back in September. He regularly takes unpaid leaves without authorization from the company (it happens every month). Please explain a little about the conditions of unpaid leave leads to dismissal. Thank you so much.

Regards,

Ricky Loke

ANSWER:

Hi Ricky

That is a discipline problem. If verbal warning has not effect, I am afraid you will have to give that person written warning. Start with a first witten warning listing out his absence without permission. If thing still persists, given him a final warning to the effect that he can be dismissed for those offences. If he does not improve, hold a domestic enquiry and dismiss him or given some other less punishment if you like.
Whatever it is, you must show that you are serious and your action must be prompt, and giving warning a few days after the offence is not good. If you are soft, other employees may follow his example. It is very bad for the company.
By the way, you may want to consult the Labour Office about this sort of problem.
Regards and good luck.
kl siew

Hi KL Siew,

Thanks for your prompt response. Official warning (written warning has been
given). I just would like to know how many offences (how many days of
unauthorized unpaid leave after warning would allow us to dismiss him). Many
thanks.

Regards,
Ricky

ANSWER:

Hi Ricky

It is the number of warnings that matters. If your written warning had stated that if he were to repeat such offence, he could be dismissed and so forth, you must take prompt action to dismiss him. If you delay, it can be viewed as condonation. You may lose your case in industrial court. There is no such law that an employees is entitled to a certain number of days of absence without leave. He is not supposed to. I you are not sure, consult the Labour Office first.
Regards
kl siew

9. Leave - Annual Leave Entitlement

Hi,
I am loh. i work in a well established mnc factory in
penang. lately i resigned from this company before my
6 months probation period. i joined in august 2005 and
my last day in this company is 2nd of Feb 2006. within
this period i have not taken any leave.
This morning i was told that i actually not entitled
for any annual paid leave. i have either 6 or 7 days
annual leave (my entitlement is 14 days). HR claimed
that there is a clause in offer letter but i checked
through offer letter just couldn't find any clause in
this regard.

may i know if stated in letter offer, i will not have
any paid annual leave? what should i do?

thanks alot
rgds

Reply

Hi

If you are covered by the Employment Act, you are entitled to pro rata leave. Pl
see Section 60E below:

60E. (1) An employee shall be entitled to paid annual leave of :

(a) eight days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of less than two years;
(b) twelve days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of two years or more but less than five years; and
(c ) sixteen days for every twelve months of continuous service with the same employer if he has been employed by that employer for a period of five years or more;

and if he has not completed twelve months of continuous service with the same employer during the year in which his contract of service terminates, his entitlement to paid annual leave shall be in direct proportion to the number of completed months of service:

Provided that any fraction of a day of annual leave so calculated which is less than one-half of a day shall be disregarded, and where the fraction of a day is one-half or more it shall be deemed to be one day.
Regards

kl siew

10. Leave - Carrying Forward/Accumulation Of Leave

Chris wrote:

Dear K.L. Siew

I have a question to ask you as I have no idea of who to turn to or what to do. I’m an employee of a private company dealing with property development. Recently, I have been ‘told’ by our HR department that we need to clear all our annual leave for this year. From my records I have only 5 days left for this year and was hoping to carry forward my leave for the long Chinese New Year holidays so that I can go back to my hometown.

With reference to my employee handbook given to me when I was employed, it states:
“Any accumulated leave for the year will be automatically extended until March of the following year, after which any balance of this accumulated leave shall be automatically forfeited.”

From the welcome address by our managing director, it states:
“The company may amend certain contents of this handbook from time to time at its absolute discretion. All employees shall be notified.”

Furthermore, this information comes only on the first week of this month (December) and there is no written notice to us and we did not acknowledge receipt of this notice. Every information / ‘order’ was only by our top management or by phone. My question is

1) Should any notice involving employees’ rest day / compulsory leave be in written form? Or is it up to my company’s discretion?
2) Should we be notified of our rest days / compulsory leave before the commencement of the month? Or is it up to my company’s discretion?
3) If everything is to my company’s discretion, what rights do I have? What can I do?

In brief, I’m only asking my company for 5 days leave be extended to next year. Thank you in advance for your time. I hope to hear from you soon.

Christopher Chin

Reply:

Hi Christopher

When the rest day or rest days are fixed, such as Sundays or Saturday and Sunday, no extra notice needs to be given. Everyone knows about it. As for annual leave, the company needs to regulate it especially when there are many employees. Clearly, requiring employees to clear their annual leave by year end is not something uncommon. Big company with a lot of employees will have to schedule employees' leave stating when an employees should take leave. It is only on very special occasion that the employees are allowed to accumulate leave, such as study leave that is beneficial to employee and the company, marriage leave etc that is of important nature.

As for asking for leave accumulation for Chinese New Year may be something that the company may not be able to entertain. If they allow you to do that then what about others, who may want to do the same thing. The company will end up with big work disruptions.

It is more internal arrangement for admin purposes and it is not against the labour law. This is a common problem faced by employees of all races whenever festivie season comes.

However, do consult the Labour Department nearest to your place of work. Telephone number can be obtained from the Home Page.

Regards
kl siew

11. Leave - Maternity leave

From: "Suhana"

Hi KL Siew...

I want to ask question regarding maternity leave...

Doctor confirm I was pregnant 6 weeks on Jan 25, 2005. On Feb 18, 2005 when
my pregnancy was 9 weeks, I was miscarriage. In between that date I was
bleeding and on MC for 5 days (not continues day).

After discharge from hospital doctor give me 14 days MC. My question is
"Should my employer deduct my 14 days medical entitlement under labour law
or should the 14 days MC given by doctor fall under maternity leave?.

Can my employee take any action such as issue termination letter regards to
this matter. By the way I'm a permanent staff (confirmed on Nov 2004).

Truly,
Suhana

ANSWER:

Hi Suhana

Thanks for visiting my website.
Your pregnancy must be at least 28 weeks. Please see the definition of "confinement" under Part I of the Employment Act as follow:
“Confinement” means parturition resulting after at least twenty-eight weeks of pregnancy in the issue of a child or children, whether alive or dead, and shall for the purposes of this Act commence and end on the actual day of birth and where two or more children are born at one confinement shall commence and end on the day of the birth of the last born of such children, and the word ‘confined’ shall be construed accordingly;
Your 14 days MC is going to be treated as ordinary MC. If your miscarriage is over 28 weeks of pregnancy, you will be entitled to fully maternity leave of 60 days.
I don't see any reason why your employer should take such an action to issue termination letter.
Sorry about your miscarriage. Do hesitate to ask should you have further queries.
klsiew

From: "Suhana"

Hi Kl Siew...

Thank for your explaination... In this case, I have exceeded the 14 MC
entitlement under Employment Act... am I right?..

ANSWER:

Hi Suhana

It looks like it unless there is hospitalisation.
Regards
klsiew

12. Leave - Sick Leave

Dear Sir,

Currently our company employed a few lorry driver. They are our part timer lorry driver and they do not have any apointment letter. They are paid base on the number trip of good they have sent. The wages are paid > every half a month and deduct for the EPF & SOCSO.

Recently one of the worker was suffered heart attack and he have rest for 2 weeks. Now, he is recovered and come back to work. On the first days of work, he ask our company to compensate him for the 2 weeks rest day. He has demanded RM80 per rest day.
We have doubtful on the his demand. We want to seek advise from you regarding this method. By law, should our company have to pay him? And he should protected under which Act, Employment Act of Industrial Relationship Act?

I hope to hearing from your reply soon.

Thank you.

Tan

ANSWER: YOU DID NOT STATE HOW LONG THE PARTICULAR DRIVER HAS BEEN WORKING FOR YOU. ANYWHERE, I PRESUME YOU KNOW WORKERS' SICK LEAVE ENTITLEMENT I.E. LESS THAN 2 YEAR 14 DAYS, 2 TO 5 YEARS 16 DAYS AND OVER 5 YEARS 22 DAYS. HOSPITALISATION 60 DAYS.
SINCE THEY ARE PAID ACCORDING TO TRIPs YOU CAN CLASSIFY THEM AS PIECE RATED AND YOU CAN REFER TO SECTION 60I(1C) ON HOW TO CALCULATE HIS SICK PAY PER DAY. IF HE HAS NO TAKEN ANY PAID LEAVE, HE IS ENTITLED TO THE 12 DAYS PROVIDED HE HAS THE NECESSARY MEDICAL CERTIFICATE. SECTION 60I(1C) IS AS BELOW:

60I (1C) Where an employee is employed on a daily rate of pay or on piece rates, the ordinary rate of pay shall be calculated by dividing the total wages earned by the employee during the preceding wage period (excluding any payment made under an approved incentive payment scheme or for work done on any rest day, any gazetted public holiday granted by the employer under the contract of service or any day substituted for the gazetted public holiday) by the actual number of days the employee had worked during the wage period (excluding any rest day, any gazetted public holiday or any paid holiday substituted for the gazetted public holiday);

IF YOU STILL NEED OFFICIAL CLARIFICATION YOU CAN ALWAYS TELEPHONE THE LABOUR DEPARTMENT NEAREST TO YOUR PLACE OF WORK. YOU CAN GET THE PHONE NUMBER AT OUR HOME PAGE.

12a. Sick Leave and Public Holiday

ANSWER:

Hi Suthagar
My answer is stated in capital letters below. Thanks for visiting my website.
Regards
kl siew

SUTHAGAR wrote:

Dear Sir,
As stated in Clause :60F. Sick leave.
(bb) of sixty days in the aggregate in each calendar year if
hospitalisation is necessary, as may be certified by such registered
medical practitioner or medical officer:
Is the 60 days inclusive of off days and public holidays.For example my
working days is only 5 days per week (off on Saturday and Sunday).

TO ANSWER YOUR QUESTION PERTAINING TO OFF DAY, I WOULD REFER YOU TO SECTION 59(1) WHICH IS AS FOLLOWS:
(1) Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of the rest days shall be the rest day for the purposes of this Part:
Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 37, or on sick leave as provided under section 60F, or during the period of temporary disablement under the Workmen’s Compensation Act, 1952, or under the Employees Social Security Act, 1969.

IF YOU WORK 5 DAY WEEK, ONLY THE LAST OF THE TWO OFF DAYS (SUNDAY) IS THE REST DAY FOR THE PURPOSE OF THIS ACT. IF YOU READ THE PROVISO, IT STATES THE SUBSECTION SHALL NOT APPLY DURING...... THEREFORE IT IS CLEAR SICK LEAVE IS INCLUSIVE OF REST DAY AND THE EMPLOYER NEED NOT GRANT ANOTHER RESTDAY IF IT FALLS ON SICK LEAVE.
AS FOR SICK LEAVE ON PUBLIC HOLIDAY, PLEASE READ SECTION 60D(1B) AS FOLLOWS:

(1B) Where any of the public holidays or any other day substituted therefor as provided in subsection (1) or (1A) falls within the period during which an employee is on sick leave or annual leave to which the employee is entitled under this Act, or falls during the period of temporary disablement under the Workmen’s Compensation Act, 1952, or under the Employees Social Security Act 1969, the employer shall grant another day as a paid holiday in substitution for such public holiday or the day substituted therefor.

THE EMPLOYER WILL HAVE TO GRANT ANOTHER DAY AS PUBLIC HOLIDAY.
YOU CAN ALSO SEEK CLARIFICATION FROM THE LABOUR DEPARTMENT ABOUT YOUR QUERY AND TELEPHONE NUMBERS OF THE LABOUR DEPARTMENT CAN BE OBTAINED IN THE HOME PAGE.
HOPE THIS ANSWERS YOUR QUEREIS AND DO NOT HESITATE TO CONTACT.

12b. Sick Leave and Hospitalisation

From Jasmine

Subject: Hospitalisation Leave

My worker is already working in our company around 1 year, Deepavali public holiday date 31/10/05 he was accident at 3.00am and the right hand is broken and already spent around 10k for operation. Doctor write the hospital leave for 2 weeks after this few weeks also need to medical check up again. His mother told me, his son need to rest about 4 months. So i need to ask, by Labour Laws should i pay 4 months salary to him or no need to pay any sen because happen accident is not working time ?
hope to hear your all news soon!
Jasmine

Reply:

This employee is only entitled to 14 days sick leave plus the days on which he was hospitalised, if any. He will not be entitled to any wages during the 4 months of rest. However, whatever payment your company is willing to make will be purely on compassionate grounds depending on the merit of each case, i.e. basing on the financial position of his family and so on.

12c. Sick Leave with false MC

From: julie

To: klsiew@pesaraonline.net
Subject: labour cases

Q1 : If a shift worker who is rostered to work on a
public holiday takes annual leave on said public
holiday, must the Company compensate him for the
public holiday with 1 additional day’s leave?

Q2 : In August 2005 Mr. A submitted an illegal Medical
Certificate which he bought from a colleague who was
selling these forged MCs. In December 2005 some other
staff were caught doing the above and were called up
by Management. Although Management knew Mr. A also
bought the fake MCs, he was not called up.
However, till today Management has not taken any
formal disciplinary action on those called up.

Mr. A was informed that his superior was keeping his
sick leave application form and attached false MC so
that he could use it against Mr A at a later and more
feasible time.

At the same time, another Departmental Head advised Mr
A to own up to his mistake and to resubmit for annual
leave for the said day of August 2005.

Can you please advise :-

1. If a staff is found to have committed a misconduct
is there a time frame for Management to action on the
misconduct;
2. Should Mr A resubmit his leave from MC to annual
leave for the said day

Thank you

francis

Reply:

Hi Francis

Thanks for visiting my website.

Pertaining to Q1, if his taking annual leave has been approved by the Management then another day of PH be given as stated in Section 60D(1B) of the EA. For practical purposes why not just treat his annual leave as cancelled and treat that day as PH?

About action on misconduct, Management must take action as soon as possible. Otherwise it can be viewed as "condonation". Anything later than 3 working days can be too long. Please consult the Industrial Relations Department about the latest ruling about time frame to take disciplinary action.

About whether A should resubmit his leave etc I will leave it to the Management of your company. Unable to give you an opinion.

Regards
kl siew

13. Leave - Unpaid Leave

To: KL Siew klsiew@pesaraonline.net
Subject: refuse to approve un-paid leave

Hi KL Siew,

good day. I have a case as below:

One of our office staffs applied for 8 days un-paid leave a few days ago. The reason for applying the leave was ‘Going to Indonesia for vacation’. The company had refused to approve her application for un-paid leave but giving her another option which is advance leave from next year. The staff accepted to take advance leave but she felt very frustrated and claimed that the company has no right to disapprove her application for un-paid leave.

1) Is that any written statement in the labor law saying employees are not suppose to take un-paid leave ?

2) Is the company doing the right thing?

Regards,

Ricky Loke

Reply:

Hi Ricky
The company is already quite considerate in granting advance leave. Normally unpaid leave especially on vacation is not encouraged as it will create a precedence that other may want to follow.
Regards
kl siew

14. Misc topics

black jack <blindchery@hotmail.com > wrote:

saya ingin meminta panduan dr pihak tuan/puan tentang tatacara
pembayaran gaji dan pemberhentian pekerja. Situasi saya adalah seperti
berikut;
saya telah berkhidmat di sebuah syarikat swasta dalam bidang
electronic marine sebagai juruteknik lebih kurang 3 thn. Saya diberi cuti
tahunan sabanyak 12 hari.Bermula dr 20.1.2005 hingga 31.3.2005 saya telah
mengambil cuti selama 12.5 hari berikutan berbagai masalah peribadi yg
memerlukan saya tidak hadir kerja untuk menguruskan hl-hal tersebut. Pd
ingatan
saya cuti-cuti yg telah saya ambil pada bulan-bulan lepas adalah cuti yg
dibayar dan cuti yg seterusnya akan dipotong dr gaji. Pd 05.04.2005 saya
telah menerima gaji saya bersama slip, dan disitu tertera gaji saya
dipotong sebanyak RM625.00 dr hari-hari cuti yg telah saya ambil pd
bulan-bulan lepas(12.5 hari). Saya diberitahu oleh secretary syarikat bahawa
cuti yg telah saya ambil terpaksa dipotong dr gaji berikutan melebihi had
yg ditetapkan iaitu 1 hingga 3 hari sebulan. Maka pada pendapat saya,
saya masih lagi mempunyai cuti berbayar (paid leave).
maka pd 6.04.2005 saya telah memberitahu pengurus saya yang saya
ingin berhenti kerja untuk menguruskan hal di kampung. Pengurus meminta
saya mengemukakan pdnya surat berhenti kerja notis 24jam dengan
perjanjian tiada bayaran akan dikenakan kepada kedua-dua belah pihak.

Soalan saya ialah:
1-Adakah saya berhak untuk mendapat bayaran 6 hari bekerja utk
bulan april ini?
2-Adakah saya berhak mendapat bayaran untuk baki cuti berbayar (paid
leave)?
3-Adakah sah surat perjanjian antara saya dengan syarikat untuk
saya mengeluarkan notis berhenti kerja 24jam tanpa sebarang bayaran
dikenakan
kepada mana-mana pihak?
Saya berharap akan mendapat bantuan dr pihak tuan untuk mengatasi kekeliruan
ini.
Sekian,Terima Kasih.

Reply:

Hi Blackjack
Jawapan adalah dalam huruf besar:

GAJI PATUT DIPOTONG DARI GAJI JIKA ANDA SUDAH MENGAMBIL CUTI LEBIH DARIPADA HAD CUTI ANKA. SOALAN SAMAADA ANDA MASIH ADA BAKI CUTI, PERKARA SENANG DISELESAIKAN. ANDA BOLEH MINTA MAJIKAN MENUNJUKKAN REKOD CUTI ANDA DAN SEMAK DARI REKOD ITU SAMAADA ANKA MASIH ADA PAID LEAVE.
Soalan saya ialah:
1-Adakah saya berhak untuk mendapat bayaran 6 hari bekerja utk bulan april ini?

GAJI 6 HARI PATUT DIBAYAR.
2-Adakah saya berhak mendapat bayaran untuk baki cuti berbayar (paid leave)?

BAKI CUTI KENA DIBAYAR JIKA ADA BAKI CUTI LAGI.
3-Adakah sah surat perjanjian antara saya dengan syarikat untuk
saya mengeluarkan notis berhenti kerja 24jam tanpa sebarang bayaran
dikenakan kepada mana-mana pihak?

SEKIRANYA NOTIS 24 JAM UNTUK BERHENTI KERJA DINYATAKAN SECARA BERTULIS, NOTIS ITU ADALAH SAH.
SEKIRANYA ANDA MASIH ADA KEKELIRUAN ATAU HENDAH MENDAPATKAN PENJELASAN LEBIH LANJUT, ANDA BOLEH BERHUBUNG DENGAN JABATAN BURUH YANG BERDEKATAN TEMPAT KERYA ANDA. NO. TELEFON JABATAM BURUH BOLEH DIDAPATI DI WEBSITE SAYA.

15. Notice - Notice period

Hi Cherry
If your have a written contract of service and the period for termination of contract of servcie is stated, then you follow what is stated in the contract of service.If you don't have one, then you follow the law which is as follows:
Section 12 Employment Act 1955
(2) The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the term of the contract of service, or, in the absence of such provision in writing, shall not be less than:
(a) four weeks' notice if the employee has been so employed for less than two years on the date on which the notice is given;
(b) six weeks' notice if he has been so employed for two years or more but less than five years on such date;
(c ) eight weeks' notice if the has been so employed for five years or more on such date;
provided that this section shall not be taken to prevent either party from waiving his right to a notice under this subsection.
Do not hesitate to contact if you have further queries.
kl siew

16. Notice Period

From: Nita

To: klsiew@pesaraonline.net
Subject: Enquiry

Dear KL Siew,

Would be grateful if you could further explain the following:-

Referring to Section 12(2) Notice of Termination of Contract, The Employment Act, 1955,

The Length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing of such notice in the term of the contract of service, or, in the absence of such provision in writing, shall not be less than:

(a) four weeks’ notice if the employee has been so employed for less than two years on the date on which the notice is given.

Question:-

An employee drawing a salary of less than RM5,000 a month signed a letter of offer for full time employment in September 2005 and started work in October 2005. The letter of offer signed included a clause stating that probation period of employment shall be three (3) to Six (6) months. During the probation period, notice of termination of ONE (1) month is required from either party or pay in lieu and after confirmation, notice of termination will be Three (3) months from either party or pay in lieu.

1) Is the above Section applicable to probation worker?
2) Is the notice of termination required (One month) imposed by the employer on probation worker unlawful?

Thank you.

Regards
Nita

Reply:

Hi Nita
In the first place, the Employment Act does not cover that employee with monthly salary of RM5000.00. It covers up to RM1500.00 only. Nevertheless, I still will answer your question. the one month's notice period in the appointment letter is valid. In Section 12(2), you must read the words "... in the absense of such provision in writing.....shall not be less than.." It means that when there is something in writing, you follow that. Only when you don't have that, you then follow the law.
I hope this answers your queries.
Regards
kl siew

17. Rest day and Public holiday

Dear Sir / Madam,

Please let us have your answers for our below questions:-

1. If a monthly-paid employee has taken one month unpaid leave, will the employee entitle to or be paid for the public holiday and rest day during the month of the unpaid leave?
2. Under what conditions an employee will not entitle to rest day and public holiday?

Thank you. Looking forward to your quick reply.
Mr Soon

Reply:

Hi Mrs Soon

In my opinion, the employee is not entitled to public holiday or rest day when on unpaid leave.
An employee is not entitled to rest day according to section 59(1) which I attach below, and an employee is not entitled to public holiday when on maternity leave as in sectionD(1B) below, she is only entitled to another day of public holiday if she falls sick, on leave, temporarily disabled during accident at work:

Section59(1) Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of the rest days shall be the rest day for the purposes of this Part:
Provided that this subsection shall not apply during the period in which the employee is on maternity leave as provided under section 37, or on sick leave as provided under section 60F, or during the period of temporary disablement under the Workmen's Compensation Act, 1952, or under the Employees Social Security Act, 1969.

Section 60D (1B) Where any of the public holidays or any other day substituted therefor as provided in subsection (1) or (1A) falls within the period during which an employee is on sick leave or annual leave to which the employee is entitled under this Act, or falls during the period of temporary disablement under the Workmen's Compensation Act, 1952, or under the Employees Social Security Act 1969, the employer shall grant another day as a paid holiday in substitution for such public holiday or the day substituted therefor.

Please verify this with the Labour Department. You can find the telephone number in the home page.
Regards
kl siew

Dear ks siew,
Thank you very much for your quick reply.
Your information is helpful and I have confirmed with labour office of Bangi
that the employee is not entitled to public holiday and rest day when on
unpaid leave.
Best regards.
Mrs Soon

18. Retrenchment

SIVA wrote:

Good Day Sir, My name is Siva , age 35 , currently attached to a Korean
Shipping Company as the Operation Executive. My basic salary is rm2500

In May 2005 , I joined this company with offer letter stating probationary period
3 months. In September 2005 I asked the GM regarding my confirmation and
he said the newly appointed Korean MD has not officially secured his working
permit and the Form 49 has not been changed. Once all done GM said they
will issue me my confirmation.
Lately in October 2005 , I came to know that they want to close the company
here and go back to Korea.
Today I came to know that they might retrench .
There are 3 Koreans and 3 locals here in this company.

My question is :-

1. Am I confirmed as I have worked for the past 6 months .

2. If they retrench who will go first me or the foreigners.

My concern :

1. When i joined this company the Korean GM told me that this company
is stable and i should be looking at a long service time . I feel victimised
they made use of me and they are going give me nothing .

What shall do sir pls advice .

Reply:

Dear Siva

Although you are not covered by the Employment Act, I will try to give you answer to your queries based on Employment Act.

If you are not confirmed after the period of probation, you are still unconfirmed.

As to retrenchment, foreign workers of your type of job should go first. The section below may be some sort of guideline:

60N. Termination of employment by reason of redundancy.

Where an employer is required to reduce his workforce by reason of redundancy necessitating the retrenchment of any number of employees, the employer shall not terminate the services of a local employee unless he has first terminated the services of all foreign employees employed by him in a capacity similar to that of the local employee.

By the way why not pay a visit to the Labour Office nearest to your place of work to seek their advice? The telephone numbers can be found in the home page.

Regards
kl siew

18a. Retrenchment (2)

From: "Catherine

To: kl_siew@yahoo.com
Subject: need answer

Hi, i need some question

1/2 of my company staff have been lay off due to financial constrain. Our
company is not doing so well.

I'm the secretary who work for > 3years for them and i'm one of them being
lay off.

I just wan to kjnow if they wan me to go by end of this Feb, they say wil
pay me 1 month (for feb) + 1 month (compensation)

Am i entitled for 1 month compensation or 2 months?
Or up to employer?

tks & rgds
catherine
secretary

Reply:

Hi Catherine

Sorry to hear your co. is not doing well.

If you are covered by the Employment Act 1955, your entitlement to termination benefit under Regulation 6 of the Termination and Lay off benefits Regulationis 1980 as follow:

6. (1) Subject to the provisions of these Regulations, the amount of termination or lay-off benefits payment to which an employee is entitled in any case shall not be less than -

(a) ten days’ wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for a period of less than two years; or

(b) fifteen days’ wages for every year of employment under a continuous contract of serviced with the employer if he has been employed by that employer for two years or more but less than five years; or

(c) twenty days’ wages for every year of employment under a continuous contract of service with the employer if he has been employed by that employer for five year or more,

and pro-rata as respect an incomplete year, calculated to the nearest month.

You should get not less than 45 days wages under (b) in addition to your Feb pay.
Regards
kl Siew

19. Shift work

From: TC

Dear Sir,

Currently I am working in a company with the following shift arrangement:
Shift 1:7am - 3pm
Shift 2: 3pm - 11pm
Shift 3: 11pm - 7am

A Rest day (24-hour) is given in any day within the week.
The company also given the Monthly Shift
Allowance.

As I understand in Shift Work, a continuous period of not less than thirty hours shall constitute a
rest day.

Therefore I would like to know is my company have breach the Malaysia Employment Act 1955?

Thank you.

TC

ANSWER:

Hi Law

Thanks for visiting my website. In my opinion it should work something like this:

For example, if your rest day begins at the end of the first shift say on 2 June at 3.00pm and come
back to work on 3 June 2nd shift from 3.00pm-11.00pm, your rested only for 24 hours
which is short of the 30 hours. If they ask you to come back to work on the 3 June 3rd shift at 11.pm
then you are well rested.

This is one of the difficult and troublesome area of the law. Please seek advice and confirmation
from the Labour Department or your union if you have one. You can the Labour Departments' tel No. in the Home page.

Hope this canl be of some help to you. Do not hesitate to keep in touch if you have further queries.

kl siew

Dear Mr. Siew,

Thank you for your reply.

Anyway I would like to know is the company allow to
pay the Shift Allowance to compensate the non-given
rest hour (about 6-hour) since we only rest for 24-hour.

Thank you.

ANSWER:

Hi Law

Need some clarifications: Is your company actually
paying shift allowance for the 6 hours? If so, how
much?
Another thing, when a company works on 3 shifts and
females workers are involved, your company might
have applied to the Director General of Labour for
approval for such shift work. When the DG gives his
approval, he usually imposes a string of conditions
such as for shift allowance, transport for female
workers etc etc. Is there any mention of about
matter you have mentioned? From my experience, the
EA does not mention anything about this sort of
payment. What we normally do is to get employer to
make the necessary adjustment so that the law is
complied with.
Interesting issue raised by you. Let me know more
info.

kl siew

From: TC

The Shift Allowance paid is actually based on the
overtime claim basis, but is not named as overtime
claim.

Thank you.

ANSWER:
Your company appears to be quite a progressive company. As I said this 30 hours things is quite messy and the law is not specific about this. It just says "less than 30 hours should constitute as rest day.." and stops short there. I think your company is taking the best way out. If both parties willing to give and take, I think there should not be any problem.

20. Sick - Hospitalisation Leave

Subject: Hospitalisation Leave
My worker is already working in our company around 1 year, Deepavali public holiday date 31/10/05 he was accident at 3.00am and the right hand is broken and already spent around 10k for operation. Doctor write the hospital leave for 2 weeks after this few weeks also need to medical check up again. His mother told me, his son need to rest about 4 months. So i need to ask, by Labour Laws should i pay 4 months salary to him or no need to pay any sen because happen accident is not working time ?
hope to hear your all news soon!
Jasmine

This employee is only entitled to 14 days sick leave plus the days on which he was hospitalised, if any. He will not be entitled to any wages during the 4 months of rest. However, whatever payment your company is willing to make will be purely on compassionate grounds depending on the merit of each case, i.e. basing on the financial position of his family and so on.

21. Termination - 24 hours notice for termination of contract of service

Hi May Yee

Thanks for visiting my website.
If 24 hours notice is stated in the contract of service, you can just walk out by giving 24 hours notice(After receiving your pay.Safer!) Section 12(2) of the EA states that the notice period for both parties shall be the same.
12. Notice of termination of contract.
(1) Either party to a contract of service may at any time give to the other party notice of his intention to terminate such contract of service.
(2) The length of such notice shall be the same for both employer and employee and shall be determined by a provision made in writing for such notice in the term of the contract of service, or, in the absence of such provision in writing, shall not be less than:
(a) four weeks’ notice if the employee has been so employed for less than two years on the date on which the notice is given;
(b) six weeks’ notice if he has been so employed for two years or more but less than five years on such date;
(c ) eight weeks’ notice if the has been so employed for five years or more on such date; provided that this section shall not be taken to prevent either party from waiving his right to a notice under this subsection.
So, if 24 hours notice is stated in your contract, then it is 24 hours. Otherwise, it will be 4 weeks notice in your case.
I answer your query by email and will see whether other readers will response to your query in the website.
klsiew

22. Termination - Termination of service

From: "EWE

Hi,
I would like to you advise me on this cases.
A few days ago, my friend named A was had some argument with his director and Production Manager (PM).The PM is a girlfriend of director.This director only have RM1 share and manage of the production only.My friend work as a HR Executive and report to Managing Director(MD) due to no HR Manager.Note both brother is a brother relationship.
On that day, my friends was instruted by director to show him a production dept payroll and the staff resignation letter,named Ahmad.So, my friend sms the MD who is outstation asking the approval from MD.The MD approve via sms to my friend, then my friend take all the document which the director
wants to their room.( Director and PM share one room)When my friend go inside, the PM was asking rudely to my friend 'why my friend calcaulate the resign staff, Ahmad full salary.'Then my friend said he received this resign letter on 29th August.FYI, the payroll cut off date is on 20th every
month.Then, PM begin shouted to my friend,saying she received this letter on 26th Aug.(Actually the PM is on leave on 25&26) and blame my friend's clerk didn't go to make from her.My friend answer to PM, say ' the resignation of your production staff shouldd submit by you' Then she and director keep going angry and shouted rudely to my friends repeat the same things, say this is my friend false.( FYI, my friend hv record down all the documents he received from PM -date & time).Then, PM get another case to blame my friend. On 30th Aug, the PM instructed my friend to hold one of the resign
staff, named C.The reason which PM give is unreasonable,she said to my friend don't one to let her dept staff resign after take a cheque as a habit.My friend didn't hold because my friend follow the Employment Act which stated that the resign staff salary should be paid on his last day of work.C didn't owe anything to company.Then only on that day ( after 3 days the C resign)she said to my friend "now the production thing , cost about RM3 lost and blame the C steal that things without a prove.My friend found out C didn't steal the things."She shouted rudely to my friend and my friend keep quiet.After that the director shouted and asking rudely to my friend asking why my
friend tell the MD he wants this production payroll and no need to report to MD about this.The director keep going repeat the same thing rudely and shouted. My friend already angry and accidently say this words out " i am report to MD, and your brother pay me salary."After that, my friend get
an excuse to go up to his own office / seat.because my friend don't want to let them shouted ,like interrogate,and asking questions at my frined like a dog.
After my friend go out to settle the emplyee socso,the director found out my friend give attendance allowance to the staff even the staff late 3 time.The director go up to my friend place and find my friend, but my friend go out already.The director shouted and ask my friend clerk like a dog.FYI, the
PM didn't do any duty roaster,any time in on punch card and OT form to HRD.But , my friend sure that day the PM didn't write anything/ time in on punch card.So, my friend just follow the punch card time in and out and just roughly know what time the prodution staff started work based on punch
card because no documents refered to.On 1st day, my friend was asking the duty roaster but she refuse to do,and my friend Accounts &Admin Manager teach my friend this way.
I would like to know can an employer terminate my friend because of the word " your brother paid me salary?My friend HR policy is that the employee should hv counselling for his 1st time mistake.Only 3 time counselling, only get the 1st warning letter up to final (3rd warning letter) only can terminate the employee.FYI, my friend still a probationer (when this case happened).Beside this words my friend didn't do any wrong thing.How should my friend do?
I am seeking for you advise. TQ.

ANSWER:

Hi Bee Kim
Thanks for visiting my website http://pesaraonline.net
I really sympathy with your friend, having such unpleasant encounters so
early in his or her career. If your friend's service has been terminated,
your friend should report the matter to the Industrial Relaltions office as
soon as possible claiming wrongful dismissal under Section 20 of the
Industrial Relaltions Act since your friend's salary is more than
RM1500.00. (The Employment Act covers employees with salary not more than
RM1500.00) Your friend should report to the IR office nearest to his place
of work. Telephone number of IR concerned can be found at my website.
If you have further queries, please do not hesitate to contact me.

From: "EWE

Hi

May I have a tel no of IR near by Wangsa Maju Area / KL ? I can't found
at your website.

tq.

ANSWER:

Hi
I don't think there is IR office there. Please give a call to 03-42579911 (IR Wilayah Persekutuan Tel Number) and they will direct you which office for your friend to go.

23. Termination of service(2)

allanfoo wrote:

To Whom it may concern,

I am a manager with salary below RM4000. My employer is
about to cease operation.

The employer only given us notice this week and tell us that
this is our last month in the company. We are being inform
that this will be our last month.

My colleque is even been asked to leave the company within 3
days, and she is paid this month salary.

There is no compensation been given to us. No notice was
given to us.

They even asking us to put in Resignation Letter.

We feel it is really not fair to us.

Can they do this to us? No compensation is given, and I feel
that the notice is not sufficient.

Regards,
Allan Foo
Manager

Reply

ALTHOUGH YOU ARE OUT OF THE 1ST SCHEDULE OF THE EMPLOYMENT ACT,YOU STILL CAN APPROACH THE LABOUR DEPARTMENT TO CLAIM WHATEVER IS DUE UNDER THE CONTRACT OF SERVICE. REMEMBER TO BRING ALONG A COPY OF THE CONTRACT OF SERVICE IF YOU HAVE ONE. AT THE SAME YOU MAY WANT TO CLAIM OF REINSTATEMENT UNDER SECTION 20 OF THE INDUSTRIAL RELATIONS ACT. SEEK ADVICE FROM THE DEPARTMENTS AND SEE WHICH LAWS GIVE YOU BETTER REDRESS.

YOU COLLEAGUE IS DEFINITELY ENTITLED TO MORE. SHE IS ENTITLED TOCLAIM INDEMNITY AND TERMINATION BENEFTS ETC DEPENDING ON THE LENGTH OF SERVICE. SHE IS OF COURCE ENTITLED TO CLAIM FOR REINSTATEMENT UNDER THE IR ACT.

DO NOT GIVE ANY RESIGNATION LETTER.

KL Siew

24. Termination of service - probation

ahmad wrote:

Dear Mr.KLSiew,
I seek your view pertaining to my daughter's case and would appreciate an unbiased opinion on the matter.
1. My daughter was gainfully employed about 3 months ago with a salary of RM1550.00 per month and during her tenorship of service with the company there was no contract of employment and other contractual documents pertaining to the employment. She performed her work as specified by her employer satisfactorily.
2. About 2 weeks ago, she was not feeling well and she told her employer that she wasn't feeling well. Her employer was aware that she was not feeling well. My daughter went to the Doctor and was certified that she was not well and was given 2 days medical leave. The very next day, she SMS her employer about the medical leave granted by the Doctor. In reply, her employer SMS her and inform her " not to bother to come to work anymore ".
My question is;
1. Does the employer have the right to terminate her services via SMS, without giving notice nor reason for termination of service.
2. There is no contribution towards EPF or SOCSO.
3. How can she seek redress on the abovementioned matter and can she make a report to the Industrial Labour Court.
I seek you opinion on the matter very urgently so as we can take whatever necessary action.Further, i do wish to thank you well in advance for your advice.
Thank you.
Ahmad

ANSWER:

Dear Encik Ahmad

From the facts given by you, your daughter has a good case for fight. She may be not covered by the Employment Act because for salary is over RM1500 per month, but she is covered by the Industrial Relations Act.
Even if she is a probationer, her company cannot simply dismiss her without some good reasons. Your daughter can approach the Industrial Department to seek redress.
Please try to contact the nearest Industiral Relations department where your daughter works.
You can find the telephone number of all the department in the Homepage. Give the department a call and they will give your daughter the necessary help.
By the way, your daughter should go back to her employer and find out what had actually happened. She may have balance of salary to collect.
At the Industrial Relations Department, what she can claim is under Section 20 for wrongful dismissal and for reinstatement. The IR Department may help her to settle for something. It may not be much but the important thing is to show the employer that he just cannot do what he likes because the employee is on probation.
As for EPF and SOCSO, any complaint should be directed to them.
Do not hesitate to contact should you have further queries.
kl siew

ahmad wrote:

Dear Mr.KLSiew,

Thank you very much for your sound and unbiased advice and indeed it was very encouraging. We will act accordingly and promptly.
Thank you.
Ahmad

ahmad wrote:

Dear Mr.KLSiew,

Thank you for your instant reply and i wish to acknowledge my thanks to you. At this juncture, my daughter was told not to come to the office anymore on the 17th June 2005,and i believe, the employer still owe her 17 days salary and was told to collect it at the end of the month.However, she does not want to go and ask her employer for reasons pertaining to the dismissal as the employer is not the sort of person anybody would wish to confront,perhaps, in my opinion he is vindictive by nature. My daughter has been complaining to me that at times she is being verbally harassed (as confirmed by previous employee as well as clients of the company ). At this juncture too, i wish to seek your opinion that the employer is a foreign National, married to a local. I do not know whether he has a work permit to conduct a business nor is he a Permanent Resident of this country ( we do not want to capitalise on this fact ) but we do wish to make him aware that this Country of ours do have LAWS and one should respect it and not do as he pleases. I believe, hiring and firing should be proper and in accordance with the prevailing Laws provided.
As always, i thank you for your opinion and valuable assistance.
Ahmad Zabidi.

ANSWER:

Dear Encik Ahmad
If that is the case, the best way out I think is for your daughter to approach the Industrial Relations Department and get some redress there.
As to the employer being a foreigner, I cannot venture any opinion. It is more for the Immegration Department if you wish to take the matter up.
I wish your daughter good luck.
kl siew

Dear Mr.Siew,
My apologies for the silence and i hope you are well.. About the status of the case, I rang up the Industrial Relations Office on behalf of my daughter and was told to write a letter confirming the termination of service (to be sent vide a Registered letter) to her employer with the photocopy of the SMS and that formality's done. Next step, she will be going to IR's office at PERKESO,Jalan Ampang, on Monday with a copy of the letter and to fill up the necessary form(s). Soonest that's done, they will follow up and take up the case. I have already informed my Solicitor on the matter and they are awaiting further instructions from me pertaining to the case.
I can't thank you enough for your advise and support . Best Regards.
Ahmad

25. Wages - Minimum Wage

From: Christine Jurasz Christine_Jurasz@partech.com

Hi
I have been using your site to obtain information about industrial laws
etc. in Malaysia. I have been searching through the government bodies on
the net and could not find what I needed. Your site was "heaven
sent". Thank you very much.

One query do you know where I could get information on wage rates that are
paid in Malaysia?

Thank you again,
Regards
Chris.

ANSWER:

Hi Chris
Thanks for the kind words.
Although there is no minimum wages rates in Malaysia (except for shop assistant in cities), you may try http://www.alloexpat.com for general info and http://www.pacificbridge.com/publications/malaysiafall01.htm for other info.
Thanks
kl siew

26. Wages - Overtime

From: Yamuna

Dear Sir/ Madam

Good Morning!

I am currently working in company 'X'. I join this company on April 2004. Now, i want to resign and according to my company rules i must tender my resignation for two months. I just would like to know about two things.

1) Am i entitled for unpaid leave during my tender?. Maybe 3 days.
2) My salary is above RM 1500, and according to my company rules i must work for 9 hours
but every month end my job required me to work more than that. Mostly till late nights.
Am i entitled for OT?

I would highly appreciate an immediate reply from you.
Thank You

Regards,
Yamuna

ANSWER:

Hi Yamuna
I am sorry for a bit late in answering your queries as I was away the whole morning.
Since your salary is above RM1500.00 I am afraid the Employment Act does not cover you. However, if there is specific terms and conditions of service pertaining to you annual leave OT etc stated in your contract of service. You still can ask the Labour Office to assist you. The terms and conditions must be clear in the contract of service.
Try to contact the nearest Labour Office to your work place.
Thank for visiting my website.
Regards
kl siew

27. Wages - Overtime - 5 day week

From: TC

Dear Mr. Siew,

I would like to thank you for your reply on my last
mail.

There is another question I would like to get the
confirmation:

Our company working hour is Monday to Friday, 9:00am
to 5:30pm.

Saturday= Off Day,
Sunday= Rest day.

My monthly salary is RM1450/--

Sometime I require to work on Saturday for 12-hour.

My question:

1) Am I sbject to overtime claim if I work on Off day
(Saturday), if yes how is the calculation,

2) Is there any different between the Off day and Rest
Day by referring to Employment Act 1955,

- I actually spoken to the Labour Department, Legal
Division Unit on this matter, according to them the
current Employment Act 1955 keep silent on this issue,
but he extend his personal comment that the Off day is
same as Rest Day.

Anyway i personnally would ike to get an official
document from the appropriate party to show that Off
day (My case refer to Saturday) is same as Rest Day
(Sunday).

I appreciate Mr. Siew can help me on this issue.

Currently I have been pay with an allowance of
RM50/--when I require to work on saturday for more
than 4-hour.

Thank you.

Law

Reply:

Hi Law
Thanks for visiting my website http://pesaraonline.net again
The law is very clear on 5-day week companies.(I don't know why the Labour Department say it is silent. Have you heard wrongly?)
Under the employment Act, the second rest day (Sunday) is the rest day for the purpose of the Act. See Section 59 I quoted below:
59. Rest days.
(1) Every employee shall be allowed in each week a rest day of one whole day as may be determined from time to time by the employer, and where an employee is allowed more than one rest day in a week the last of the rest days shall be the rest day for the purposes of this Part:
NOTE THE WORDS "WHERE AN EMPLOYEE IS ALLOWANCE MORE THAN ONE REST DAY IN A WEEK THE LAST OF THE REST DAYS........"
So in your case, if you work OT of Saturday, you are entitled to ordinary OT pay just like any other days. No restday pay for you for working of Saturdays. It only applies if you work on Sunday. Please read Section 60 of the Employment Act also.
Should you have further queries pl do not hesitate to contact.
kl siew

28. Wages - Payment of wages

From: wong

Dear KL Siew,

Hi nice to know you.

My name is Wong Chiun Liang, I'm now working in a lightting company, Lighttec Sdn. Bhd. which located in Sri Damansara as a technician since Jun 2003.

As this few years(since I joined this company), my employer always paid salary late to the staffs, most of the time 5th to 7th day every month. (issued checque, then need to bank-in to our own individual bank, which take another 1-2 days to clear the checque)

The reason now I wish to complain is because they had paid the salary to others staff except my self. Until this date, I haven't take my salary yet. Besides that, they also hold our other claims ( like toll, petrol and other expenses)

In my case, they still not yet pay all my claims since April 2005 ( I think it should be around RM380++). So what should I do as I have many commitment every month which my salary only RM1600 per month.

Other than that, my employer always like to over-write our conversation and record in their house and office. Are they have the right to do so, to listen our onversation between customers and us?? They are also planning to put CCTV inside our working place(according to my collegue said)

Besides, there are still many un-comfortable problem which I can't describe here.
(a) No appoitment / confirmation letter
(b) Scold the staffs in front of everybody ( other staff, customer, suppliers)
(c)) Use our salary to do purchasing for company.

I keen to get your professional advice and give mea a guide. Isn't possible can I get more information from you by verbal??

Thank you for your kindly help.

Regards.

ANSWER:

Thank you for visiting my web-site http://pesaraonline.net
I really sympathy with you. Sometimes we do come across not so good employers if you are a bit unlucky.
First and foremost, your salary is RM1600.00 and it looks like you are not covered by the Employment Act 1955. The Employment Act cover employees whose salary is not more than RM1500.00 per month as stated in the First Schedule as follow:
1. Any person, irrespective of his occupation, who has entered into a contract of service with an employer under which such person’s wages do not exceed one thousand five hundred ringgit a month.
About date of salary payment, your company is not committing an offence, the Employment Act states that it cannot be later than the 7th day as in Section 19 as follow:
Section 19. Time of payment of wages.
Every employer shall pay to each of his employees not later than the seventh day after the day of any wage period the wages, less lawful deductions, earned by such employee during such wage period.
About your complaint regarding other matter such recording conversation, CCTV, scolding staff are more human relations problems and not so much about Labour Law. It is quite difficult to give the sort of advice that will solve your problems. I can only give you some guidance how to go about it You will need advice from the proper authority which is the Labour Department. It is time for you to pay a visit to the Labour Department. Since you are working in Wilayah, try telephone 03-42678797 and they may be able to give some official advice how to go about it. As I have said you are not covered by the EA, but you still can seek advice or make an anomymous complaint so that the Labour Department officer may pay your company a visit.
Another thing, you don't have to stick to one employer. When you have gained enough experience you can always look for better opening when the time is right. There are plenty of opportunities out there. So don't worry and good luck. But if you still have further quiries, you are welcome to contact me. My apology if you don't get the answers you wanted.
Regards
kl siew

29. Wages - Payment of Wages

Meeling Lee wrote:

Dear Mr Siew

During the year-end school holidays, my 14-year old daughter was employed by a mobile phone retailer at an hourly rate of RM2.50 (10 hours x 6 days per week - excluding 1 hour lunch). It has been over a month since she left in mid Dec but she is still waiting for her final pay. The excuse for the delay is that her time sheet has been `misplaced' (a frequent occurrence with employees who left). Is there any way that I could get the Labour Dept to talk to them?

Your kind advice would be greatly appreciated. Thanking you,
M Lee

Reply:

Dear Mr Lee

Please bring your daughter to the Labour Office nearest to her place of employment and make a complaint. The Labour Officer there might telephone her former employer about her pay.
Regards
kl siew

30, Wages - Payment of wages on termination

static star <funkylilpiggie@yahoo.com> wrote:

hie,
i was terminated by the company and they told me after
1week i would get my salary and i still havent receive
it..i would like to know by right,when they give me
the letter of termination are they supposingly
suppose to give me my salary together ? And is ther
any actions i can take if i receive my payment later
then the 7th of the month..because this company is use
to give employees salary always later than the 7th
without giving any good reason for it.
Pleaz help..thanx

Reply

Hi

If it is normal termination, they should pay you on the day on which your services were terminated. On other termination that is not nornal, by the third day. Please refer to Sections 20, 21 of the Employment Act. If they keep delaying, you can report to the Labour Office nearest to your place of work. You can find the contact number in the Home page of the website.
regards

Static Star:
just wana say thanx for replying asap to my
problems..and it really helped a lot.. thanx
for being attentive and guiding me through...

31. Wages - Daily salary calculation

From: LIEW

To: klsiew@pesaraonline.net
Subject: Labour Law enquiry.

I would like to clarify the following:

Our working hour is from 8:00a.m to 5:30p.m & lunch break is 12:p.m to 1:00p.m
Working day is Sunday to Thursday (off day on Friday & Saturday)
How do we compute the daily salary?

Thanks.

Regards,
LIEW

Reply:

Hi

From the info given by you, I am not sure what the daily pay is used for.

There are various ways of calculating daily pay depending on different purposes.

(1) For payment of holiday pay, sick pay or maternity allowance under Part 9 and Part 10 of the Employment Act, the formula is (monthly pay/26days). Please see Section 60i.
(2) If it is for pay deduction for say, absent without leave, you can calculate the daily pay with (monthly pay/by the number of days in that particular month)
(3) For calculating "a day's wages" for payment of termination benefits, please refer to Regulaltion 6(2) of the Termination and Lay off Regulaltions as follows

"6(2) For the purposes of this regulation “wages” shall have the meaning assigned thereto under section 2(1) of the Act and “a day’s wages” shall be computed in such a manner so as to give the employee his average true day’s wages calculated over the period of twelve completed months’ service immediately preceding the relevant date, ..."

REgards
kl siew

32. Working hours

sri wrote:

Hi,
I hope that you would able to assist in clarifying on the rest time duration on fridays.Our working schdl asf:
monday-thursday
8.30-10.30 working
10.30-10.40 rest
10.40-12.40 working
12.40-1.20 rest
1.20-3.20 working
3.20-3.30 rest
3.30-5.30 working
Fridays (now) plan
all same as above except
12.40-2.30 rest 12.40-1.20
2.30-5.30 working
Saturdays(half day)
8.30-10.30 working
10.30-10.40 rest
10.40-12.40 working
we r thinking of reducing the rest time on fridays to same as other days.Is this a problem ?
rgds
sri

ANSWER:

Hi Sri

Thanks for visiting my web-site.
Your company seems to be quite generous with rest hours in the first place.
Are those working hours stated in the contract of service or collective agreement?
Is this a long standing practice?
If there is so, there can be resistance from the workers.
Try to convince your workers that working hours have been very generous and they should give some cooperation and see what their reaction with your proposal.
Before you do that, if I were you, I would consult the Labour Department first and seek their opinion. If the Labour Dept says OK, then you will have backing at least.
kl siew

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