Employement Law Flashcards
Two types of employment contract
- Contract of service
- Contract for service
CONTRACT OF SERVICE
Known as CONTRACT OF EMPLOYMENT
Contract between employer and employee
Contract of service is govern by?
EMPLOYMENT ACT (EA), 1955
INDUSTRIAL RELATION ACT (IRA), 1967
- employee is entitled to various rights under EA and IRA
- there is a compulsory contribution (EPF, KWSP etc)
Oral agreement for contract of service
Only for service that is one month or less
CONTRACT FOR SERVICE
A contractual relationship between employer and independent contractor
Contract for service is govern by?
CONTRACT ACT, 1950
VICARIOUSLY LIABLE
Employer can be liable for the negligence act of their employee (only for contract OF service)
Test to determine wether it is OF or FOR
( 3 answer )
1) CONTROL TEST
- the extent of control which employer had over the employee
2) INTEGRATION TEST
- the greater the servant is integrated with the organization, the greater the possibility that the servant works under a contract of service
3) MULTIPLE TEST (ECONOMIS REALITY) TEST
- overall test
+ the extent of control,
+ the power of selection and appointment,
+ the power to suspend and dismiss the employee,
+ the intention of the parties and the agreement between them.
Risk of profit or loss
Contract of service:
- no risk
Contract for service:
- there is a risk for profit or loss
General Provison in the EA (7 things)
- WAGES
- WORKING HOUR
- OVERTIME
- REST DAY
- PUBLIC HOLIDAYS
- ANNUAL LEAVE
- TRADE UNION ACTIVIT
EA WAGES (COS)
Only basic wages, not including allowance.
Employer cannot give an advance more than what employee earned for 1 month unless some circumstances (tgk buku)
Employer shall pay wages not later than the 7th day after the last day of wage period.
EA WORKING HOUR (COS)
Normal working hour (agreed) can’t exceed the usual hours of work per day (8 hours)
Payment of wages for hours of work work depend on the term of contract of service
EA WORKING HOUR:
Employee can’t work for? (4 answer)
1) 5 continuous hour without not less than 30 minute rest
2) More than 8 hours in 1 day (unless agreed)
3) Exceed 10 hours per day (including rest time)
4) More than 48 hours a week
EA OVERTIME (COS)
Overtime shall:
1) not exceed 120 hours per month
2) be paid at a rate not less 3/2 times his hourly rate
EA REST DAY (COS)
Employee is entitled to 1 rest day each week (second day will be considered as the rest day)
But can be compelled to work under certain circumstance (tgk buku)
EA REST DAY (COS):
Rete for employee (DAILY RATED) who are required to work during a rest day
DAILY RATED :
- (1 day wages) work does not exceed 1/2 of normal hour work
- (2 day wages) work exceed 1/2 of his normal hour work
EA REST DAY (COS):
Rete for employee (MONTHLY RATED) who are required to work during a rest day
MONTHLY RATED :
- (1/2 day wages) work does not exceed 1/2 of normal working hour
- (1 day wages) work exceed 1/2 normal working hour
EA PUBLIC HOLIDAY (COS)
11 public holiday (paid)
- 5 days are compulsory
- 6 days at discretion
If employee is required to work at any 11 days of leave, he will be paid 2 DAY WAGES.
If any of the holidays fall on the rest day, the following working day shall be a paid
holiday to substitute the holiday.
EA ANNUAL LEAVE (COS) (3 answer)
Paid annual leave
1) 1-2 years : 8 days
2) 2-5 years : 12 days
3) 5+ years : 16 days
Must pro-rata if employee work for less than 12 month
Can be substitute for payment (request of employer, agreed with employee)
EA TARDE UNION ACTIVITY (COS)
Cannot restrict employee to :
1) join
2) participate
3) organize/associate
CONDITION FOR EMPLOYEMENT OF WOMAN (2 answer)
1) Not allowed to work in any industrial or agricultural venture between 10pm - 5am
2) Must have had period of 11 consecutive hours free from work.
Ada exceptions (tengok buku (page 7)
TERMINATION OF CONTRACT OF SERVICE (2 answer)
1) Termination with notice
2) Termination without notice
TERMINATION WITH NOTICE
(3 answer)
Give notice or express intention before termination of contract
1) 1-2 years : 4 weeks
2) 2-5 years : 6 weeks
3) 5+ years : 8 weeks
However, either party may waive his right to a notice under certain circumstances (tengok buku)
TERMINATION WITHOUT NOTICE
Contract of service may be terminated without notice in the following situations:
(4 answer)
PBTM
1) PAYMENT OF INDEMNITY OF A SUM EQUAL TO WAGES
2) BREACH OF CONDITION (CONSTRUCTIVE DISMISSAL
- employer breach contract so employee resign
3) IMMEDIATE THREAT TO DANGER
4) DISMISALL FOR MISCONDUST
- employee wrong-doing
- can only dismiss after “DUE INQUIRY”
- employee will suspended for 2 weeks (1/2 pay) for the investigation
LAY OFF (LAWFUL TERMINATION)
Employer cannot provide his employee with the kind of work the employee was employed to do
(2 condition) to be able to layoff
1) Employer does not provide at least 12 working within 4 weeks
2) Employee cannot get any salary during that period where he is not provided with work
REDUNDANCY (LAWFUL TERMINATION)
Employer has surplus of labour and has to downsize
Get lay-off benefits
(4 condition) under EMPLOYMENT ACT, 1955
Employer has ceased (or intent to cease) :
1) to carry the business
2) to carry on the business in the place
the employee was contracted to work.
The requirement of that business for the employee:
3) to carry the work have cease
4) in the place at which the employee was contracted to work have cease
TERMS FOR DISMISSAL
(5 answer)
UWSCU
1) UNFAIR DISMISSAL
- dismissal by employer that is contrary to the employment statutory law (discrimination etc)
2) WRONGFUL DISMISSAL
- employer dismisses the employee without any valid reason
3) SUMMARY DISMISSAL
- termination without notice
4) CONSTRUCTIVE DISMISSAL
- employee resigned bcs employer made it intolerable (breach the contract) for the employee
5) UNLAWFUL DISMISSAL
- dismissed without just cause or excuse
REMEDIES
If an employee has been dismissed without just cause or excuse, employee may
1) file a WRITTEN REPRESENTATION
2) to the Director General of Industrial Relations (DGIR) Department (will try to resolve the case)
3) within 60 days from the dismissal
(3 remedies available)
1) REINSTATE AND BACKPAY
- employee get back their position
- entitled to back pay
2) COMPENSATION 𝙞𝙣 𝙡𝙞𝙚𝙪
- where it is not adviseable/possible to get reinstate
- entitled to compensation at the rate of one month pay for each year of service (max 24 month)
3) RE-ENGAGEMENT
- re-employed. all past service will be lost
- employee will start afresh
- not entitle to backpay
LAY OFF BENEFIT
(3 answer)
1) 1-2 years : 10 days of wages
2) 2-5 years : 15 days of wages
3) 5+ years : 20 days of wages