Employement Law

Question 1

Two types of employment contract

Answer 1

1. Contract of service
2. Contract for service

Question 2

CONTRACT OF SERVICE

Answer 2

Known as CONTRACT OF EMPLOYMENT

Contract between employer and employee

Question 3

Contract of service is govern by?

Answer 3

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)

Question 4

Oral agreement for contract of service

Answer 4

Only for service that is one month or less

Question 5

CONTRACT FOR SERVICE

Answer 5

A contractual relationship between employer and independent contractor

Question 6

Contract for service is govern by?

Answer 6

CONTRACT ACT, 1950

Question 7

VICARIOUSLY LIABLE

Answer 7

Employer can be liable for the negligence act of their employee (only for contract OF service)

Question 8

Test to determine wether it is OF or FOR
( 3 answer )

Answer 8

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.

Question 9

Risk of profit or loss

Answer 9

Contract of service:
- no risk

Contract for service:
- there is a risk for profit or loss

Question 10

General Provison in the EA (7 things)

Answer 10

1. WAGES
2. WORKING HOUR
3. OVERTIME
4. REST DAY
5. PUBLIC HOLIDAYS
6. ANNUAL LEAVE
7. TRADE UNION ACTIVIT

Question 11

EA WAGES (COS)

Answer 11

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.

Question 12

EA WORKING HOUR (COS)

Answer 12

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

Question 13

EA WORKING HOUR:

Employee can’t work for? (4 answer)

Answer 13

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

Question 14

EA OVERTIME (COS)

Answer 14

Overtime shall:
1) not exceed 120 hours per month

2) be paid at a rate not less 3/2 times his hourly rate

Question 15

EA REST DAY (COS)

Answer 15

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)

Question 16

EA REST DAY (COS):

Rete for employee (DAILY RATED) who are required to work during a rest day

Answer 16

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

Question 17

EA REST DAY (COS):

Rete for employee (MONTHLY RATED) who are required to work during a rest day

Answer 17

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

Question 18

EA PUBLIC HOLIDAY (COS)

Answer 18

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.

Question 19

EA ANNUAL LEAVE (COS) (3 answer)

Answer 19

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)

Question 20

EA TARDE UNION ACTIVITY (COS)

Answer 20

Cannot restrict employee to :

1) join
2) participate
3) organize/associate

Question 21

CONDITION FOR EMPLOYEMENT OF WOMAN (2 answer)

Answer 21

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)

Question 22

TERMINATION OF CONTRACT OF SERVICE (2 answer)

Answer 22

1) Termination with notice

2) Termination without notice

Question 23

TERMINATION WITH NOTICE

(3 answer)

Answer 23

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)

Question 24

TERMINATION WITHOUT NOTICE

Contract of service may be terminated without notice in the following situations:

(4 answer)

PBTM

Answer 24

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

Question 25

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

Answer 25

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

Question 26

REDUNDANCY (LAWFUL TERMINATION)

Employer has surplus of labour and has to downsize

Get lay-off benefits

(4 condition) under EMPLOYMENT ACT, 1955

Answer 26

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

Question 27

TERMS FOR DISMISSAL
(5 answer)

UWSCU

Answer 27

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

Question 28

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)

Answer 28

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

Question 29

LAY OFF BENEFIT

(3 answer)

Answer 29

1) 1-2 years : 10 days of wages

2) 2-5 years : 15 days of wages

3) 5+ years : 20 days of wages