An Employee’s Right to Legal Redress: A Note to Prospective Employers and Recruiters

(First published as a series of posts in February 2019)

This write-up centres on an aspect of workplace bias not commonly discussed, as many view it somewhat of a HR taboo, yet I feel it is apropos to bring it up for discussion to create awareness of the subject and propose ways to eradicate the prejudice that overshadows what would otherwise be a fair selection process.

Every employee has a right to have his grievance be heard fairly and by an impartial party. An employee is recognised by the law as a workman, and the definition of a workman under S.2 of the Industrial Relations Act 1967 encompasses every individual under a contract of employment.

As such, when a workman is constructively or unfairly dismissed, he has the right to seek legal redress from the Industrial Relations Department.

The Department will try to manage his or her case with the aim of reaching an amicable solution between employer and employee. Whether the employee is seeking reinstatement, or compensation, the underlying idea is for him or her to be given fair treatment and not be squeezed out of his or her employment arbitrarily by his or her employer.

Sometimes, however, such conciliation methods may not work. The employee’s case will then be referred to the Minister of Human Resources, who will give due consideration to the merits of the case and refer it to the Industrial Court for hearing. This is when the status of the case changes as the names of the parties, facts of the case, dates of mention and trial, and the grounds for the award becomes public record.

The employee will of course be moving on and try to find other jobs even while his or her case is pending in Court. In their job applications, they will be asked to give their consent for their academic and employment records to be verified by the prospective employer or recruiter. Serious jobseekers will usually give their consent so that their application can be processed. Prospective employers and recruiters may come across these records during their due diligence exercise on a candidate’s background.

Some candidates choose be upfront during interviews about the fact that they left their last company under duress and that they are now seeking redress at the Industrial Court.

Either way, employers can and will find out, and this can become a big problem if the employer or the headhunter is taking a narrow approach to the issue.

It would augur well for the would-be employer or the recruiter to consider each case as objectively as possible. If the candidate is willing to talk about it, take that opportunity to listen to the candidate’s side of the story and ask for his or her statement of case. If the case has been decided and the award has been handed down, look for the award in the Industrial Court website. Common reasons for an employee to take action against his or her employer are that the employees have been victimised, sexually-harrassed, transferred without bona fide reasons, placed in cold storage, reprimanded publicly to the point of humiliation, all of which entitle them to walk out on their jobs on grounds of being constructively dismissed. There are also employees who have been terminated simpliciter, dismissed without just cause and excuse, dismissed after a defective domestic inquiry, and laid-off without adequate compensation.

Employees who have taken their employers to court are not necessarily “trigger-happy” folks who have an army of lawyers behind them ready to commence litigation for every small dispute. Prospective employers do not have to worry unnecessarily or assume things about these types of employees before hearing them out and reviewing their case thoroughly. Toxic organisations and bad bosses do exist in the real world, you know. An employee who knows his rights and is brave enough to assert them should be commended. Most Malaysian employees do not know even their most basic rights as workmen let alone how to stand up and defend themselves when they have been exploited, their rights abused, scapegoated and thrown sand into their bowl of rice.

I am quite sure that many of you reading this, in spite of your seniority at work, do not even know what being constructively dismissed is and how to go about getting legal redress. But that’s another story for another time though. Let’s carry on with this first.

Indeed there are also bad apples out there, employees from the bottom of the barrel who blame everything and everyone but themselves when they have been justifiably fired from work. The sort with the obnoxious attitude problem who come in late every day, never learn despite having been put on extended PIPs, argues with everybody in the office, makes the most elaborate excuses for failing to achieve their KPIs, and creates better dramatic productions than HBO in front of the bosses and the DI panel. Prospective employers and recruiters just need to use common sense with these. Their statement of case for the Industrial Court are usually flimsy and full of emotional ranting without much data, documentation, solid facts or legal reasoning to back up their case. Usually like to play for pity. Unless you see real effort on their part to get a second chance to improve, don’t process such applicants further. Focus on those who deserve your time.

Back to the employees who have genuine causes to be heard in the Industrial Court, I would advise prospective employers and recruiters to assess their suitability for the job from a holistic perspective. Look at their track records from their first job right up to the last company they have served before or after their court case and ask for references or testimonials from these past employers. See whether this individual is active in community or charity work: a person’s leadership potential can be assessed from such involvement. If he or she had not been gainfully-employed after leaving the company which he or she is suing, ask him or her what he or she had been doing to “move on”. Genuine people would not waste time whining and lamenting; they would probably be doing a small home business, taking up short courses or doing freelance work. That will give you an idea of the person’s character and principles.

Lastly, prospective employers and recruiters must understand that getting dismissed is a tragic and physically- and emotionally-draining affair, and seeking justice vide the legal process takes time, energy, effort, and being examined and cross-examined repeatedly over and over on the same points in the courtroom. It can be very stressful for the employee. The case may take years to get from the Industrial Relations Department to the Industrial Court, and being a creature of statute and a court of equity and good conscience, the art and science of presenting one’s case in front of the Industrial Court Chairman is distinct from presenting a case in a civil court.

When we talk about discrimination in the recruitment and selection process, we normally only talk about racism and gender biasness. We do not realise that employers can be prejudiced against those who have brought claims to the Industrial Court. Yet there are many talented employees who were not given a shot at new employment just because they were courageous enough to stand up against workplace bullies. Let’s give them a fair chance to move on in their career.

(c) Tahirah Manesah binti Abu Bakar 2019