March IR Law Free Newsletter. IR Law provides the following advisory/consultation services to Members and Non-Members*: Disciplinary proceedings

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1 IRLaw CORPORATE INDUSTRIAL RELATIONS CONSULTANCY Dear Readers, This is our Free Newsletter, examining some updates on the new Public Holiday for Sarawak, Personal Data Protection Act (PDPA) and our usual analysis of latest court awards, highlighting subject areas of importance to industrial and employment law development such as correctly assessing punishment for misconduct, retrenchment and fixed term contract vis-à-vis permanent contract. New Public Holiday for Sarawak It has been reported in the media that the Chief Minister of Sarawak, Tan Sri Adenan Satem has declared July 22 to be a public holiday in Sarawak, to commemorate the state's independence from British rule. The Chief Minister made the announcement while officiating at the grand finale of public at Matang, Sarawak on 23 April The public holiday will be implemented beginning this year. [Note: This was announced to IR Law Members vide Circular dated 14 April 2016] Personal Data Protection (Compounding of Offences) Regulations 2016 The Ministry of Communication and Multimedia, Malaysia has issued the Personal Data Protection (Compounding of Offences) Regulations 2016 ('the Regulations'), which came into effect on 15. The Regulations specify the offences that can be compounded under s. 132 of the Personal Data Protection Act 2010 ('the Act') and provides details on how offer, acceptance and payment of compoundable offences can be implemented. Section 132 of the Act states that the Personal Data Protection Commissioner, with the consent of the Public Prosecutor (Consent to Compound Offences Form 1), is allowed to offer (Offer to Compound Offences Form 2) for the acceptance of an organisation (Acceptance of Offer to Compound Offences Form 3) that is suspected to have committed an offence under the Act to compound it upon payment of an amount not exceeding 50% of the maximum fine for that specific offence. [Note: This was announced to IR Law Members vide Circular dated 25 April 2016] IR Law provides the following advisory/consultation services to Members and Non-Members*: Disciplinary proceedings Retrenchment Mergers / Closures Union Recognition Collective Agreements Company Handbook HR Audit Written Legal Opinions on employment matters Training on all Industrial Relations and Human Resource matters Representation to Labour Department hearing Discounted rates for representation to Industrial Court (*IR Law Members enjoy free consultation by phone, , fax and even WhatsApp with the option of visiting our Consultants, in person, at our office if they wish & free membership to IR Law Digital Library (irlaw.elaw.my worth RM1, per year), our online legal publishing facility. Please call for more information on our training programmes or an enquiry to enquiries@irlaw.com.my

2 Correctly Assessing Punishment for Misconduct The Industrial Court in Chan Kuo Feng v. Purina Petcare (M) Sdn Bhd; Award No: 50 of 2016 was of the opinion that an employee s high managerial post, confirmation in position, promotion to a number of positions within the company, and clean record with no history of disciplinary action are valid factors to take into account to invalidate the punishment of dismissal. The claimant here was found guilty of non-attendance in operational meetings and harassment of employees pursuant to domestic inquiry findings. This notwithstanding, in assessing the quantum of compensation for loss of employment, the Court considered the claimant's contributory conduct to his dismissal as a factor and appropriately reduced the quantum of compensation awarded for unfair loss of employment. Fixed Term Contract vis-à-vis Permanent Contract The issue of fixed term contract vis-à-vis permanent contract was given some direction in Mohd Syahini Hasan vs. Media Prima Sdn Bhd/Primeworks Studios Sdn Bhd; Award No: 127 Tahun Here, although the company had extended the claimant s fixed term contract, however, it did not mean that the contract was of a permanent nature. A clause in the fixed term contract had given the company discretion to extend the claimant contract. The court concluded there was no ulterior motive when it entered into a fixed term contract with the claimant, hence the claimant s argument that the company had breached his employment contract, was without basis. It was also emphasized that there was no requirement for the company to give the claimant one month s notice that the contract will not be renewed, as notice is only given if the contract is terminated prior to its expiry. The claimant was not terminated from service, rather his contract had automatically come to an end, upon the expiry of the fixed term contract. Retrenchment Was there genuine redundancy situation? In Chan Shy Yean vs. Marcus Evans (M) Sdn Bhd; Award No 34 of 2016, the claimant was re employed by the Company as Conference Producer. She was then retrenched from service, being allegedly surplus to the company's needs. However, the evidence showed that the claimant's job functions and role she played continued to exist at the time she was retrenched. Evidence also showed that the company had recruited new Conference Producers, meaning that there was work within the company for them. It was therefore the Industrial Court s view that the claimant was not surplus to the company's needs and not redundant. The claimant s role and job was obviously distributed to others within the company. The department and divisions that the claimant was responsible for continued to exist and was not closed down. Thus, the company had failed to establish its case for genuine retrenchment of the claimant and her retrenchment was therefore not with just cause or excuse.

3 Highlights Of Industrial Court Awards (1) Chan Kuo Feng v. Purina Petcare (M) Sdn Bhd; Award No: 50 of 2016 Dismisal: Misconduct Non-attendance in key meetings, undue harassment of employees Industrial Court: Compensation for loss of employment The claimant commenced employment with the company in February He was issued with a show cause which contained several allegations of misconduct. The claimant replied to the show cause letter with documents to support his explanation to deny and refuse the allegation made against him. This notwithstanding, a notice of domestic inquiry was issued to the claimant and a domestic inquiry held, alleging the following charges: (i) repeat non- attendance in key planning operational meetings; (ii) undue harassment and intimidation of employees; and (iii) drug abuse, where the claimant had at least in two different occasions had been involved in illegal drug abuse. After careful deliberation, the domestic inquiry panel found the claimant guilty of several of the charges. As the act of misconduct committed by the claimant were serious in nature, the company could no longer repose the necessary trust and confidence in the claimant to discharge his duties. The company thereafter dismissed the claimant. The claimant contended that his dismissal was without just cause or excuse. The issues that merited consideration in this case were: (i) whether the claimant s misconduct had been established; (ii) whether the proved misconduct constituted just cause or excuse for the dismissal. Case Commentaries: (1) After perusing all the four charges, the company had proved on the balance of probabilities the charges on non-attendance in operational meetings and harassment of employees. On the charge pertaining to drug abuse, however, it was found that the company has failed to prove the said misconduct. Drug abuse is a very serious offence which must be reported to the police. What more if it involved the claimant who held an important position in the company. Nevertheless, no such report was produced before the court. (2) The claimant was holding a high managerial post, working since February 2003 and confirmed and promoted to a number of positions in the company. These were facts not denied by the company. Taking into account the claimant s clean record and no history of disciplinary action against him, although the claimant had committed the acts of misconduct, but they did not warrant dismissal. The punishment of dismissal is too harsh considering the circumstances of this case. Therefore, the dismissal of the claimant was without just cause or excuse. (3) The claimant was found guilty of several charges. Therefore the claimant's contributory conduct may be considered in reducing the compensation. Where the workman has contributed to his predicament by his conduct, the Industrial Court may scale down the total compensation awarded, making a deduction, due to the contributory conduct. Further, the Industrial Court in assessing the quantum of back wages, should take into account the fact that of workman has been gainfully employed elsewhere after his dismissal. Dismissal without just cause or excuse.

4 Highlights Of Industrial Court Awards (2) Mohd Syahini Hasan vs. Media Prima Sdn Bhd/Primeworks Studios Sdn Bhd; Award No: 127 Tahun 2016 Kontrak Pekerjaan: Kontrak tempoh tetap Penamatan kontrak Kontrak tempoh tetap dilanjutkan tetapi tidak disambung pada tahun berikutnya Sama ada ia kontrak tempoh tetap yang tulen Sama ada pihak syarikat mempunyai niat serong tersembunyi semasa memasuki kontrak Sama ada kontrak perkhidmatan tamat secara automatik pada tarikh berakhirnya tempoh kontrak Sama ada terdapat keperluan untuk syarikat memberikan notis Sama ada yang menuntut dipecat dari jawatannya (3) Chan Shy Yean vs. Marcus Evans (M) Sdn Bhd; Award No 34 of 2016 DISMISSAL: Redundancy Retrenchment Claimant reemployed by company but thereafter retrenched from services - Claimant s role allegedly redundant Whether claimant surplus to company's needs Whether retrenched justified INDUSTRIAL COURT: Compensation for loss of employment Back wages Post dismissal earnings Whether back wages ought to be rescaled

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