Opposition Leader’s Office
Kuala Lumpur.10-02 Tel:27781
26th June 1976.
To : All Trade Unions
Employment (Unfair Dismissal)
As your are aware, I have given notice to move a motion under Regulation 49 of the Dewan Rakyat Standing Orders to seek leave of the House to introduce a private member’s bill on “Employment(Unfair Dismissal) Bill 1976.”
The purpose of this Bill is to confer upon an employee the right not to be unfairly dismissed and right to work. In short it revolves around security of tenure.
At present, a worker has no job security as his services can be properly terminated provided the employer complies with the requisite minimum notice stipulated by Section 12(3) of the Employment Ordinance 1955. This problem is particularly acute for workers who are not unionised. Thus, an employer can properly terminate the services of an employee who had, say, spent 15 to 20 years in his employment by four weeks notice of termination. This is clearly unfair where an employee had not been guilty of misconduct or incompetence, as he stands to lose not only his accrued years of service but will also find it difficult to get alternative employment.
This new concept of “unfair dismissal” is designed to provided protection to employees from loss of employment unless for reasons of misconduct or incompetence. The giving of proper notice of termination where the reason is not misconduct or incompetence does not make such a termination fair, and under the proposed bill, it will be considered as “unfair dismissal”.
It is gave defect in the labour laws that there is no clearly enunciated right of the workers not to be unfairly dismissed or have his services unfairly terminated.
At present, a worker may have some remedy if he can bring his case within Section17(A) of the Industrial Relation Act, but this is a most unsatisfactory and tortuous process, and among the many unsatisfactory features of this provision is that the Minister possesses the untrammelled discretion to refer a complaint on “dismissal without just causes or excuse” to the Industrial Court, or to reject the compliant with no reason given.
The proposed Emplyment（Unfair Dismissal） Bill 1976 will clearly enunciate the right of an employee not to be unfairly dismissed, including the right not to have his service unfairly terminated, and that in every case of dismissal which is not because of misconduct of incompetence, an employee has a direct remedy to complain to the Industrial Court, without any intervention by the Director-General of Labour or Minister whatsoever.
The burden of proof is on the employer to show that the reason for the dismissal or termination service is not “unfair dismissal”, in other words, it is either because of misconduct or incompetence. If the employer fails to displace this presumption, then the Industrial court can order reinstatement, re-engagement or compensation.
I propose to provide for separate provisions for dismissal or termination of service due to redundancy, for at present workers whose services are terminated because of redundancy or re-organisation have no proper and adequate remedy over and above the minimum period of notice provided by Section 12(3).
I also intend to provide the basis for the computation of compensation for unfair dismissal, as the present common law computation of compensation for wrongful dismissal are both very satisfactory and inadequate; the former limited to the minimum period of notice as provided by Section12(3) of the Employment Ordinance and the latter limited to a maximum award of full back pay up till the date of award although in many cases it is very much less.
I propose to provide that an award of compensation for unfair dismissal shall consists of a basis award, a compensatory award, and a punitive award. The basis award shall be calculated by reference to the period during which the employee has been continuously employed, in others words, the longer a worker has been in employment, the greater the basic award. The compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal. The punitive award shall be awarded to the benefit of the complaint for non-compliance with the awards of the industrial court.
These above provisions will give workers proper protection against unfair and unjust dismissals, including termination of service with notice, and will be in line with Recommendation 119 of the International Labour Orgainstaion in 1963 on “Termination of Employment at the initiative of the Employer.”
As this motion will be dealt with on the first day of the Dewan Rakyat meeting on Monday 5th July, I shall be grateful for any comments, views, criticisms that you may wish to offer on the proposed Employment(unfair Dismissal) Bill 1976.
I hope that these views can reach me before 3rd July and I apologise for the shortness of time.
Lim Kit Siang