With the gazettement of the Industrial Relations (Amendment) Act 2020 (the “Amendment Act”) on 20 February 2020 and its partial coming into force on 1 January 2021, we now see a change in procedures relevant to representations for unfair dismissal claims at the Industrial Court (“IC”). The savings provision in the Amendment Act states that all unfair dismissal representations and proceedings filed before the coming into force of the Amendment Act will not be affected by its changes.
What do you, as an employer / employee, need to know in relation to the changes under the Amendment Act?
We set out below KEY-TAKEAWAYS on changes to the unfair dismissal representations and procedures
– Prior to this, the Minister of Human Resources had the discretion to refer unfair dismissal complaints to the IC and refuse to do so where he was of the view that the same was frivolous. However, the same no longer applies. With the Amendment Act, all unfair dismissal complaints from 1 January 2021 will be automatically referred by the Director General of Industrial Relations (“Director General”) to the IC where no settlement is reached during the conciliation process. It appears now that ALL unfair dismissal complaints are subject to be tried by the IC if a settlement is not reached. This could mean an influx of cases at the IC, whether frivolous or not.
– Previously, unfair dismissal claims were found to be personal actions, where the death of a Claimant employee would bring an end to his/her unfair dismissal proceedings. With the Amendment Act, the IC has the power to carry on with the hearing of the unfair dismissal claim despite the death of the Claimant. While the Amendment Act appears to now confer power on the IC to preserve a “dead man’s claim”, the main practical issue to this is the evidentiary element of having the testimony of the Claimant before the IC as the main witness in his own dismissal claim. It appears that even with the ability to continue proceedings despite the Claimant’s death, the reality of the same succeeding may see difficulty without his testimony.
– The Amendment Act now allows an application to be made by the next-of-kin of a mentally disabled employee to the High Court to appoint a guardian ad-litem for the purpose of the unfair dismissal proceedings at the IC. Where the extent of such applications being allowed by the Court has yet to be seen, it appears that this process puts a third party guardian in the driver’s seat of unfair dismissal proceedings.
– Before the Amendment Act, any dissatisfaction towards the IC’s decision was subject to a judicial review application at the High Court. Now, for all claims from 1 January 2021 onwards, the Amendment Act provides that the same can be appealed to the High Court within 14 days from the date of grant of the award. The notable changes in this process are as follows :-
– Stemming from the ability to now proceed with unfair dismissal claims despite the Claimant’s death, the IC is now able to award back wages or compensation in lieu of, or both, to the next-of-kin of the deceased Claimant.
- The IC will now have the power to impose interest at the rate of up to 8% per annum to an award commencing from the 31st day of the award. Further, the penalty for non-compliance with an award has now been increased to a fine of up to RM50,000.00.
For more information regarding the Industrial Relations (Amendment) Act 2020, you can click here.