We have come across far too many incidents involving dismissal of employees in Malaysia where the actual conduct or misconduct of the employee does appear to justify or warrant the decision by the employer to dismiss the employee.
Yet, in many such cases, the employer had an adverse decision from the Industrial Court.
This has left many employers in Malaysia with the perception that the Malaysian Industrial Court tends to favour the grievances of employees over the the plight of employers who had to deal with a recalcitrant employee.
Are employers correct in this perception?
Of course, that perception is incorrect.
Based on our experience in matters of employment, we find that the Malaysian employers are alarmingly ignorant of some basic principles of dealing with employees on matters of discipline.
First of all, employers must be made aware that in any complaint involving labour and industrial relations, the burden of proof lies with the employer. The employer must prove, always with documentary evidence i.e. letters, emails, memoranda, showing that the employer has conducted itself properly.
So, what is the standard or test used by the Industrial Court to measure an employer's conduct in relation to dismissal of employees?
Other than extreme cases of misconduct, usually involving criminal elements that justifies summary dismissal, the test used by Industrial Court involves 3 steps-
- Was the employee warned about the poor performance or misconduct? Here, written warnings are 100% better than verbal warning.
- Was the employee given an opportunity to improve?
- Despite being given the opportunity to improve, the employee failed to do so.
As with all court matters, the employer can only discharge its burden of proof in 2 basic ways-
- Witness testimony; and
- Documentary evidence.
Documentary evidence is absolutely important. If an employer relies purely on oral evidence from witnesses, there is a high degree of risk that the Industrial Court will not be impressed at all with the employer's conduct.
Why would the Industrial Court be unimpressed?
Employers must understand that by dismissing an employee, the employer has removed the employee's livelihood or means of earning a living. The right to a livelihood is protected by the Federal Constitution.
So, employers must be made aware that the dismissal of an employee is a process. This process must always be in writing and documented.