NO PRAYERS DURING WORKING HOURS -

– Offenders Will Be Fined RM500 By Employer!

When it comes to religion and race, we are a country that has lost our ability to rationalize what is right from what is wrong. This article was posted on my blog on 2nd Aug 2019, following a big hullaballu over a Klang company that allegedly issued a notice threatening to impose a fine on people who take time off working hours to perform prayers.

The Incident in question

This company had purportedly issued a memo on 30th July 2019 banning prayers during work hours. A copy of this memo was viralled out onto the social media. And as usual with Malaysia, a brouhaha was kicked up and the authorities kicked in to investigate.  Well, the conclusion to this incident is that it turns out that the company had never issued that memo.  Somebody had faked and viralled it, and nobody (i.e. neither you nor me) had actually noticed that the memo bears no signature. The workers interviewed by the JTKSM during its investigation at its premises all say that they never saw the memo, nor had any superior talked to them about it to them, plus they are all being given time off for prayer all the time.

My personal stand is as follows:

 (1)  It is always GOOD for an employer to voluntarily practise good employer/employee relations and allow privileges for the employees if by doing so the employer does not lose out in business but gains the appreciation of his workforce.

(2) Prayer time is one of such privileges.  Keep in mind that prayer time is not a statutory right due to any community.  This is something which the employer, the HR Professional, and the employees must all acknowledge and accept.  Once we know a privilege has been granted, the action gains appreciation and goodwill.  A right which is exercised does not gain any appreciation at all, plus because there will be penalties set for failing to grant rights.  For management to grant a privilege as if it is a statutory right is an act of ignorance, and the good deed will be taken for granted as a right and no appreciation will be shown by the workforce for it. 

 (3) In this particular case, assuming that the alleged culprit Hond Tat Industries did issue that memo :

(a) Hond Tat would not have been wise, but then it would have acted within its rights as an employer to bar employees from misusing paid work time for doing personal things. Hond Tat would not have violated any law, nor any contractual right of the employees if it wants to bar employees from praying by using working hours.

(b) That memo should not state (it is not wise to do so) that the company will impose a monetary fine on the employee who break that rule against praying during working hours.  imposing a fine makes it look as if the company is acting ultra vires. There is no need to do that for as far as the law goes, the company may impose “any lesser punishment” than a dismissal for the misconduct of disobeying a lawful order {See Employment Act 1955 which provides so}. Yes, a fine is definitely lighter punishment than a dismissal decision but it is a controversial punishment.  There are less controversial actions that can be taken, especially that in this country religion has already hyped up to a hysterical level of sensitivity.  And so, it is not a question of law and rights but a question of wisdom of approach.

(4) If this country is willing to stand up against LGBT rights which are also human rights, then prayer rights are also nothing more than human rights as such. Much as I disagree with certain private things that LGBTs do, I will still say let the transgenders do those private things in their private space and time. And so too, let employees do their prayers in their own private space and time unless the employer chooses to graciously allows it.

Following this will be a detailed explanation on my stand.

THE MAIN ISSUES THAT WE HAVE FORGOTTEN...

The authorities want to investigate? Oh good, … but to investigate WHAT? Go think …..

1. What national law has been broken?  ( Name it if you can )
2. Which part of the contract of employment with the employee has been breached? (Do the terms and conditions in the employment contract say prayer time is granted?)
3. What enshrined right of anybody has been violated? ( State the law that upholds the right to prayer time during working hours if you can.)
4. Does not the employer have his rights under the contract of employment? {See IR Act 1967 Sec 13 : Management prerogatives to decide on how the business is to be operated)

LEST WE FORGET …. :

1. A people who do not respect and uphold the law is a lawless people, despite the fact that laws do exist. Do we Malaysians want to respect and uphold the law?
2. A business is a business. Business needs comes first. No business no jobs. No employment.....no pay. {See IR Act 1967 Sec 13 : Management prerogatives to decide on how the business is to be operated) 
3. A contract of employment grants rights to both parties. Is anyone talking about the rights of the one who pays the salary?
4. A wise employer may CHOOSE to forgo certain of his rights and grant privileges to employees for the sake of harmony that would enhance operations. The decision is strictly voluntary and discretionary. This should apply on time-off for prayer. 
5. Being unwise may be disadvantageous to the employer, but being unwise not a crime.  The unwise employer will have to suffer consequences of law-breaking ONLY IF any law is broken. The unwise employer may have to suffer the cost of paying up for contractual consequences if any (express or implied) term of the employment contract is violated, if any is violated.
6.  Religious obligation is a PERSONAL obligation. Every religion has its own rules. Unless and until such rules are ENSHRINED as law, they remain as personal however widely accepted and practised they may be.
7. When we impose as law what is not law, and ignore law when the law exists, we are nothing more than a lawless people, however well-schooled or well-educated we are.

THE FACTS WE DO FORGET/CHOOSE TO IGNORE:

1. Any court of law will agree that an employee who is under a contract of service is to be PAID FOR THE TIME HE IS UNDER THE CONTROL of the employer according to the contracted hours. Non work time is not to be paid for.
2. Expanding on #1 above, according to the Employment Act 1955, the WORK hours of non-shift worker does not include any time off for breaks.  A non-shift worker works 8 hours a day times 6 days a week for up to a maximum of 48 hours a week. He MUST be given a minimum of 30 mins of (unpaid) break within a maximum of 5 continuous hours of work. Again, he may even be given more time off for breaks, but these break times are not included within that 8 working hours a day.
3. On the other hand, a SHIFT WORKER’s 8 hours of work in a day is inclusive of an aggregate of 45 minutes time off.  It is up to the employer to decide whether to arrange to give the 45 minutes at one go, or two or more breaks.
4. Therefore, in view of #2 & 3, should not the prayer time, being a personal commitment to God be done during these break hours?  Why must it be on paid hours if the law does not demand it, and the “unwise” employer does not choose to pay for it?

THE FACTS WE DO NOT KNOW OR MAY KNOW BUT CHOOSE TO IGNORE:

1.     In religion, prayer time is never strict “on-the-dot” time. There is always a time leeway within which it can be done.

2.     The actual prayer time is not that long and it can always be completed within an arranged time, given that the employer can always arrange for less but longer breaks for shift workers. Non-shift workers rarely take only a half hour of break, but usually longer.

3.     Even in the instance where the break time for shift workers does not allow enough time for him to complete his personal prayer to his God, he can always replace for missed prayers after work (if he really is committed to his God and his religion)

4.     And in a certain religion, where the person must pray on a specific day and time and at a specified place there are exceptions to the rule by that religion which is very very often touted as a very reasonable religion, i.e.: -

    i.   If one is constrained by others from performing his obligatory prayer, it is not a sin upon him.  If the work regulations are a constraint, there is therefore no sin.   

Is the above information correct or no?    Ans ( ) Yes     ( ) No.

    ii.   Even if he had chosen not to attend an obligatory prayer, it becomes a sin only if he fails to do it 3 times in a row.  For shift worker, shift changes are usually done once a week or two weeks. That makes it almost impossible to miss it 3 times in a row because of work, since only one of the shifts has hours that fall within the specified hours.

Is the above information correct or no?    Ans ( ) Yes     ( ) No.

          iii.     It is a fact that the ritual, prayer and worship time is obligatory on that specified day in the week, but the sermon time is not. The prayer and worship time takes much less time than the sermon time. Why is the normal one hour break not enough, barring parking problem and travel time being cited as reasons.

Is the above information correct or no?    Ans ( ) Yes     ( ) No..

           iv.  When we are speaking about a religion that is reasonable, and if all the above information are correct, then it is the UNREASONABLE PEOPLE who are MAKING UNREASONABLE DEMANDS that becomes the problem.  If an employer choose to be unwise or even be stupid, and be out to disadvantage himself and his operations so that nobody wants to work for him, that is his own problem. It is not a problem of the law to be investigated, is it?

I lament the state of this country that has fallen to such great depths. As a nation, we were once among the foremost Asian Tigers. But now we are no longer a tiger because we have lost the ability to think critically and act rationally.  I lament for the future of our young, for those minds continue to be dumbed down by seniors in the community and parents such that they cannot think straight anymore.  Today, Singapore is way way way ahead of us. Today China is way way way way way 30 years ahead of us. In the 1970s, China was some 30 years behind us. They are communists but they can think. We are democratic but cannot think.  Give it another 15 years, you may well be sending your daughters, wives and grand daughters to Cambodia and Myanmar to work as maids. What a thought. Remember, the Philippines was the top Asian Tiger in 1970’s ….WAS.