破产法令修订:三年后自动解除破产? |【问LAW就好!】
破产法令修订:三年后自动解除破产,破产者重获“新生”?|【问LAW就好!】第二季 第23集
当“钱”只是一串数字,年轻人在不知不觉中经常开销多于收入,不少人欠债甚至到了破产的地步!但随着新政府修改破产法令——破产者三年后将自动解除破产,这到底是好还是坏呢?
立即点击收听!
破产法令修订:三年后自动解除破产? |【问LAW就好!】 Read More »
破产法令修订:三年后自动解除破产,破产者重获“新生”?|【问LAW就好!】第二季 第23集
当“钱”只是一串数字,年轻人在不知不觉中经常开销多于收入,不少人欠债甚至到了破产的地步!但随着新政府修改破产法令——破产者三年后将自动解除破产,这到底是好还是坏呢?
立即点击收听!
破产法令修订:三年后自动解除破产? |【问LAW就好!】 Read More »
马来西亚,离婚时并非自动将夫妻财产平分。财产分配取决于多种因素,法庭会根据具体情况作出公平的裁决。婚姻财产的定义:婚姻财产通常指夫妻在婚姻存续期间共同获得的资产,包括共同购买的房产、车辆、储蓄等。然而,婚前各自拥有的财产,若在婚后未有共同贡献…
离婚就能分到对方一半资产?!|【问LAW就好!】第3集 Read More »
全新节目【问LAW就好!】和你一起轻松聊法律!
你是不是一直以为结婚后想离婚就可以离婚?或者分居两年就等于自动离婚?
nonono离婚没有你想的那么简单!
你是不是一直以为结婚后想离婚就可以离婚?或者分居两年就等于自动离婚? Read More »
Legal Process for Unfair Dismissal Claims In Malaysia, an employee who believes they were unfairly dismissed can file a complaint with the Industrial Relations Department. Here’s an overview of the process: Filing a Representation: The employee must file a representation for reinstatement under Section 20 of the Industrial Relations Act 1967 within 60 days of the dismissal. The request for reinstatement must be submitted to the Industrial Relations Department. Conciliation Meeting: The Industrial Relations Department will arrange a conciliation meeting between the employer and employee to resolve the matter amicably. If both parties reach an agreement, the claim is settled without further action. Referral to the Industrial Court: If conciliation fails, the case is referred to the Industrial Court, where it will be adjudicated. The court examines evidence from both parties, including documentation of the reasons for dismissal and any procedures followed .Court Decision: The Industrial Court may order reinstatement of the employee or compensation if it finds that the dismissal was unfair. Compensation is typically calculated based on the employee’s length of service and other relevant factors.Employer Responsibilities to Avoid Unfair Dismissal ClaimsTo minimize the risk of unfair dismissal claims, employers should follow best practices in termination and disciplinary actions:Establish Clear Grounds for Dismissal: Ensure there is a valid reason for dismissal, such as documented poor performance or verified misconduct.Follow Due Process: Conduct a fair investigation and hold a due inquiry if the dismissal is related to misconduct. Allow the employee to present their defense, and document all proceedings thoroughly.Adhere to Retrenchment Guidelines: In cases of retrenchment, apply fair selection criteria, provide adequate notice, and offer retrenchment benefits as required under Malaysian law.Avoid Discriminatory Practices: Ensure that termination decisions are based on objective criteria and not influenced by discriminatory factors like race, religion, or gender.Consult Legal Advice: If unsure about termination procedures, seek legal consultation to ensure compliance with Malaysian employment laws and reduce potential risks.Employee Rights in Unfair Dismissal CasesEmployees have several rights under Malaysian law when facing potential unfair dismissal:Right to Reinstatement or Compensation: The Industrial Court may order either reinstatement or compensation if it finds that the dismissal was unfair.Right to a Fair Hearing: Employees accused of misconduct are entitled to a fair inquiry, where they can defend themselves and present evidence.Right to Seek Redress: Employees can file for unfair dismissal within 60 days if they believe they were dismissed without valid cause.Right to Legal Representation: Employees may seek legal representation to strengthen their case and ensure they receive fair treatment.How Our Law Firm Can Assist with Unfair Dismissal MattersAt Ng, Zainurul, Seke & Khoo, we provide comprehensive support to both employers and employees in navigating unfair dismissal claims:For Employers: We assist in reviewing dismissal procedures, conducting fair inquiries, and ensuring legal compliance to minimize risks. Our team can help draft show-cause letters, guide you through retrenchment exercises, and represent you in the Industrial Court if a claim arises.For Employees: If you believe you have been unfairly dismissed, we can help assess your case, guide you through the claim process, and provide representation in the Industrial Court to secure fair treatment.ConclusionUnfair dismissal is a serious matter that can lead to costly legal consequences and damage to a company’s reputation. By following fair practices and legal guidelines, employers can avoid these risks and maintain a positive work environment. For employees, understanding your rights is crucial to ensuring fair treatment in the workplace.For expert guidance on unfair dismissal claims or other employment-related issues, contact Ng, Zainurul, Seke & Khoo. Our experienced team is here to protect your interests and help you navigate Malaysian employment law with confidence.
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How to Conduct Retrenchment in Malaysia: A Step-by-Step Guide for Employers
Retrenchment is sometimes necessary for businesses facing financial constraints, restructuring, or downsizing, but it must be conducted fairly and in compliance with Malaysia’s labor laws. A poorly executed retrenchment process can expose employers to legal risks and claims of unfair dismissal. Here’s a guide to conducting retrenchment in Malaysia, following best practices and the latest legal requirements to ensure a fair and compliant process.
What is Retrenchment?
Retrenchment involves terminating employees due to reasons unrelated to performance or misconduct, usually for organizational or economic reasons. In Malaysia, retrenchment is governed by the Employment Act 1955, the Industrial Relations Act 1967, and guidelines from the Ministry of Human Resources (MOHR). Employers must follow a structured approach to protect both their legal standing and the welfare of their employees.
Key Steps to Conducting Retrenchment in Malaysia
Step 1: Establish the Need for Retrenchment
Document the Business Rationale: Before initiating retrenchment, ensure you have a valid business reason, such as financial challenges, technological shifts, or restructuring needs.
Evidence Collection: Keep comprehensive records, such as financial reports and strategic plans, to justify the decision if it is later questioned.
Step 2: Apply Fair Selection Criteria and LIFO Principle
Selection Criteria: Create a fair, transparent selection process. The “Last-In, First-Out” (LIFO) principle is widely recommended, which gives priority to long-serving employees.
Document Exceptions to LIFO: If exceptions are made (e.g., retaining employees with specialized skills), document the reasoning to avoid claims of discrimination.
Step 3: Consider Alternatives to Retrenchment
Explore all alternatives before proceeding with retrenchment. The Code of Conduct for Industrial Harmony recommends considering options like:
Reduced Working Hours: Temporarily adjust work hours to maintain employment.
Pay Cuts: Implement pay reductions as an interim measure.
Voluntary Separation Scheme (VSS): Offer a VSS for employees to voluntarily resign with compensation.
Step 4: Notify Relevant Authorities
Ministry of Human Resources Notification: For retrenchment exercises involving five or more employees in a month, submit the Employment Retrenchment Notification (ERF) form to MOHR at least 30 days prior to the retrenchment date. Failure to notify can result in penalties.
Step 5: Communicate with Employees
Transparent Communication: Notify employees in writing, providing adequate notice as per their contracts or, at a minimum, the Employment Act requirements.
Consultation: Where possible, engage in transparent discussions with employees and union representatives, explaining the rationale and selection criteria for retrenchment.
Step 6: Provide Fair Retrenchment Benefits
Under Malaysian law, retrenchment benefits are expected, especially for employees covered by the Employment Act 1955. The minimum retrenchment compensation is:
10 days’ wages per year for employees with less than 2 years of service.
15 days’ wages per year for employees with 2 to 5 years of service.
20 days’ wages per year for employees with more than 5 years of service.
For employees not covered by the Act, refer to their employment contracts for specific terms.
Step 7: Offer Outplacement Support (Optional)
Providing career support, such as job search assistance, career counseling, or resume-building workshops, can help affected employees transition more smoothly. While this step isn’t mandatory, it promotes goodwill and maintains the company’s reputation.
Step 8: Maintain Detailed Documentation
Keep thorough records of every decision, communication, and action taken during the retrenchment process. Comprehensive documentation is essential in defending against potential claims of unfair dismissal.
Avoiding Claims of Unfair Dismissal
To minimize the risk of unfair dismissal claims, employers must ensure that:
Retrenchment is Genuine: The retrenchment must be based on legitimate business needs, not used to unfairly dismiss specific employees.
Selection is Fair and Transparent: Follow established criteria and document any deviations from the LIFO principle.
Retrenchment Benefits Are Provided Fairly: Meet all statutory and contractual obligations regarding compensation.
How Ng, Zainurul, Seke & Khoo Can Assist with Retrenchment
At Ng, Zainurul, Seke & Khoo, we offer expert legal guidance to ensure your retrenchment process is compliant, fair, and risk-free. Retrenchment requires careful planning, and our team is here to provide support every step of the way, from developing a clear retrenchment strategy to ensuring compliance with Malaysian employment laws.
Our Retrenchment Services Include:
Retrenchment Planning and Strategy: We work with your business to create a legally compliant and strategic retrenchment plan, providing advice on fair selection criteria, employee notice requirements, and documentation.
Notification and Compliance Assistance: Our team assists with all necessary notifications to the Ministry of Human Resources and ensures compliance with relevant regulations to avoid legal pitfalls.
Drafting Clear Communications: We can draft legally sound communications, including show cause letters and retrenchment notices, to convey the reasons for retrenchment professionally and transparently.
Representation in Legal Disputes: In the event of an unfair dismissal claim, our experienced lawyers will represent your company’s interests in the Industrial Court, minimizing potential legal and financial liabilities.
Workshops and Training for HR Teams: We offer training sessions for HR professionals on best practices for managing retrenchment, maintaining compliance, and preventing disputes.
Conclusion
Conducting retrenchment in Malaysia requires not only a sound business rationale but also strict compliance with employment law to ensure a fair and transparent process. By following best practices, employers can navigate the complexities of retrenchment while protecting the rights of employees and minimizing risks.
For professional guidance through every step of the retrenchment process, contact Ng, Zainurul, Seke & Khoo. Our dedicated team of employment law experts will help you handle retrenchments with confidence, compliance, and care for all involved.
How to conduct Retrenchment in Malaysia? Read More »
What is a Due Inquiry?
A due inquiry is a formal investigation conducted by an employer when an employee is accused of misconduct. This inquiry is essential before taking disciplinary action, such as suspension or dismissal. It ensures that the employee’s rights are protected and that any decisions made are based on objective findings.
Importance of a Due Inquiry
Failing to conduct a due inquiry can lead to claims of unfair dismissal, which may result in substantial legal and financial consequences for employers. The due inquiry serves as a safeguard for both employers and employees, ensuring fairness, transparency, and adherence to Malaysian employment law.
Key Steps to Conducting a Due Inquiry in Malaysia
Here is a step-by-step guide to conducting a due inquiry effectively and in compliance with Malaysian law.
Step 1: Identify and Document the Alleged Misconduct
Define the Misconduct: Clearly identify the misconduct in question. This could range from poor performance, habitual lateness, insubordination, or serious offenses like theft or fraud.
Gather Evidence: Collect and document all relevant evidence, including witness statements, CCTV footage, and any written records of past incidents. This documentation will form the foundation of the due inquiry.
Step 2: Issue a Show Cause Letter
Purpose of the Show Cause Letter: The show cause letter serves as a formal notification to the employee of the alleged misconduct and requests an explanation. This step is essential as it gives the employee an opportunity to address the accusations.
Contents of the Letter: The letter should outline the misconduct, reference specific incidents, and mention any applicable company policies or employment terms that were violated. The employee should be given a deadline (usually 7 days) to respond.
Step 3: Establish a Fair and Impartial Inquiry Panel
Form the Inquiry Panel: Select individuals who are not directly involved in the case and can assess the evidence objectively. Ideally, the panel should consist of senior staff or managers from different departments to avoid any bias.
Avoid Conflict of Interest: Ensure that no panel members have a personal or professional relationship with the employee that could affect the inquiry’s fairness.
Step 4: Conduct the Due Inquiry Hearing
Notify the Employee: Inform the employee in writing about the inquiry hearing, including the date, time, and location. Clearly state that they have the right to present their case, bring witnesses, and submit evidence.
Present Evidence: During the hearing, present the evidence collected, including any witness testimonies, documents, or recordings. Allow the employee to question witnesses and challenge evidence.
Employee’s Defense: Allow the employee to provide their explanation, present their witnesses, and respond to any evidence or testimonies against them.
Step 5: Evaluate the Evidence and Make a Decision
Review All Evidence Carefully: After the hearing, the inquiry panel should deliberate and review all evidence, weighing it against the standards of proof in employment disputes. In Malaysia, the standard is based on the balance of probabilities, which is lower than the criminal law standard.
Reach a Conclusion: Determine whether the evidence supports the allegation of misconduct. If the misconduct is substantiated, decide on the appropriate disciplinary action (e.g., suspension, warning, or termination).
Step 6: Communicate the Outcome
Prepare a Written Decision: Document the inquiry’s findings and conclusions, including the evidence considered, witness statements, and reasoning behind the decision.
Inform the Employee: Issue a formal decision letter to the employee, explaining the outcome of the inquiry and detailing any disciplinary actions taken. This letter should outline the effective date of any actions, such as suspension or dismissal.
Best Practices for Conducting a Due Inquiry
Ensure Confidentiality: Protect the confidentiality of both the employee and any witnesses throughout the inquiry. Keep all records secure and restrict access to relevant parties only.
Document Everything: Detailed documentation of each step in the inquiry is crucial. In the event of a legal challenge, comprehensive records can help demonstrate fairness and compliance with employment laws.
Provide Fair Opportunity for Defense: Make sure the employee fully understands their rights and has a fair chance to defend themselves. This includes providing adequate time to gather their evidence and informing them of their right to call witnesses.
Be Impartial and Objective: Throughout the inquiry, maintain objectivity and avoid any personal bias or assumptions. Ensure that the panel is composed of neutral parties.
Follow Company Policies: Adhere to any disciplinary and investigation procedures outlined in the company’s employee handbook. This ensures consistency and reinforces the inquiry’s legitimacy.
Legal Considerations and Compliance
Malaysian labor law requires employers to conduct a due inquiry before taking any disciplinary action. Section 14 of the Employment Act 1955 states that “no disciplinary action should be taken against an employee until due inquiry has been held.” Failing to conduct an inquiry or conducting it improperly could result in claims of unfair dismissal, exposing the employer to potential legal liabilities.
Consequences of Not Conducting a Proper Due Inquiry
Claims of Unfair Dismissal: If an employee is terminated without a fair and proper inquiry, they may file a claim with the Industrial Court, which could result in costly penalties for the employer.
Financial Penalties: In cases of wrongful termination, the court may order the employer to pay back wages or compensate the employee in lieu of reinstatement.
Reputational Damage: Failing to handle disciplinary issues fairly can impact the company’s reputation, leading to difficulties in attracting and retaining talent.
How Our Law Firm Can Assist with Due Inquiries
At Ng, Zainurul, Seke & Khoo, we understand that navigating disciplinary matters can be complex. Our legal team provides expert guidance to help employers conduct due inquiries that are fair, legally compliant, and transparent. Our services include:
Due Inquiry Consultation: We assist in planning and structuring due inquiries, ensuring that each step adheres to Malaysian labor law.
Show Cause Letter Drafting: Our attorneys can help draft clear and effective show cause letters that outline allegations professionally and accurately.
Representation and Support During Inquiries: We provide legal support to ensure that inquiry procedures are followed meticulously, reducing the risk of unfair dismissal claims.
Training and Workshops for HR Professionals: Our firm offers training sessions for HR and management teams on conducting due inquiries, managing evidence, and maintaining compliance with employment law.
Conclusion
Conducting a due inquiry is a critical responsibility for employers in Malaysia. A fair, transparent, and legally compliant inquiry process protects both the employer and the employee, reducing the risk of disputes and maintaining trust within the organization. By partnering with Ng, Zainurul, Seke & Khoo, employers can confidently navigate due inquiries and disciplinary actions, ensuring compliance with Malaysian labor laws and fostering a respectful workplace environment.
For expert assistance with due inquiries or any employment-related issues, contact us today.
How to conduct a due inquiry? Read More »
Understanding the Performance Improvement Plan (PIP): Precision Matters in Preventing Unfair Dismissal
A Performance Improvement Plan, commonly known as a PIP, is a structured tool for employers to assist employees who are not meeting performance expectations. When implemented thoughtfully, a PIP can help employees regain their footing, improve their performance, and align with the company’s goals. However, a poorly designed or improperly executed PIP can do more harm than good, potentially leading to claims of unfair dismissal. This article explores the essentials of a well-crafted PIP, the risks of an ineffective plan, and how our law firm can provide expert guidance to ensure fair, legal, and productive use of PIPs in the workplace.
What is a Performance Improvement Plan (PIP)?
A Performance Improvement Plan is a formal document used by employers to outline specific areas where an employee’s performance does not meet the organization’s standards. The PIP includes clear objectives, measurable goals, timelines, and the support provided by the employer to help the employee meet these expectations. Key elements of a good PIP include:
Clear Objectives: The PIP should specify the areas in which performance is lacking, detailing the expected standards. These objectives must be realistic, relevant to the employee’s role, and aligned with the job description.
Measurable Goals: The plan should set measurable and achievable goals that the employee must meet within the given timeframe. This helps both the employee and the employer track progress objectively.
Support and Resources: A PIP should provide access to resources or training necessary for improvement. This shows the employer’s commitment to helping the employee succeed rather than simply documenting a case for dismissal.
Defined Timeline and Check-Ins: A PIP must include a timeline with regular check-ins to assess progress, provide feedback, and adjust support if necessary. Typically, PIPs last 30, 60, or 90 days, depending on the complexity of the performance issues.
What is a Performance Improvement Plan (PIP)? Read More »
💼 Victory for Employee Rights! 💼
Our firm, Ng, Zainurul, Seke & Khoo, recently achieved a major win in the Industrial Court of Malaysia, securing justice for our client who faced an unfair dismissal. 💪✨
💰 RM893,200 Awarded! 💰
In this landmark case, our team represented a senior employee with over 20 years of service, who was unjustly dismissed by her employer. We successfully argued that the dismissal was baseless, exposing numerous flaws in the performance assessments conducted during a company restructuring. Thanks to our meticulous preparation and commitment to fair treatment, the court ruled in our client’s favor, awarding her nearly RM900,000 in compensation!
📖 Case Background 📖
Our client, a highly experienced senior employee, had a record of strong performance, earning her multiple promotions over two decades. However, after the company underwent restructuring and appointed a new department head, her work environment changed dramatically. She was gradually sidelined, her team members were transferred or let go, and her performance reviews became unfairly critical. She was repeatedly placed on performance improvement plans (PIPs) that isolated her and affected her morale.
Despite her efforts to meet job expectations, the company continued to overlook her contributions, ultimately dismissing her on grounds of “poor performance.” In court, we detailed the series of unfair actions during the restructuring, including biased assessments, unreasonable expectations, and ongoing workplace pressures.
💼 Victory for Employee Rights! 💼 Read More »
Starting a Unilateral Divorce: Documents NeededIf you’re considering a unilateral divorce in Malaysia, certain essential documents are required to initiate the process. Here’s a quick guide to help you understand the basics:Marriage Certificate: Submit the original and a copy of your marriage certificate.Identification Documents: Both parties’ MyKad or passport (original and copy).Marriage Counseling Certificate: According to the Law Reform (Marriage and Divorce) Act 1976, Section 106, you must attend marriage counseling through the National Registration Department (JPN) or an authorized body before filing for divorce.Petition for Divorce: A document prepared by your lawyer, detailing the grounds for divorce.Affidavit: An affidavit supporting your petition, sworn in front of a commissioner for oaths.Relevant Supporting Documents: For cases involving child custody, maintenance, or property division, provide relevant documents like children’s birth certificates or property ownership proof.While the process can seem complex, having the right documentation is crucial for a smooth application. Consulting a professional lawyer is recommended to ensure all documents meet legal requirements. 开始单方面离婚:所需文件如果您考虑在马来西亚提出单方面离婚,需准备以下基本文件来启动程序。以下是简要指南:结婚证书:提交结婚证书的正本和复印件。身份证明文件:双方的身份证(MyKad)或护照正本及复印件。婚姻辅导证书:根据**1976年《婚姻与离婚法令》**第106条,您需先通过国家登记局(JPN)或指定机构参加婚姻辅导并获取证书。离婚请愿书:由律师起草的离婚请愿书,说明离婚的理由。宣誓书:支持离婚请愿书的宣誓书,需在宣誓官面前签署。相关证明文件:如涉及子女抚养权、赡养费或财产分配,需提供子女出生证、财产所有权文件等相关证明。虽然单方面离婚程序较为复杂,但准备好所需文件可以让申请更顺利。建议咨询专业律师,以确保所有文件符合法律要求。
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Introduction: Navigating Trademark Infringement and Pirated Goods in Malaysia
In Malaysia, the enforcement of intellectual property (IP) laws has become increasingly stringent, especially with the recent enactment of the Trade Marks Act 2019. This Act provides legal protections for trademark owners and outlines severe penalties for infringement. The Ministry of Domestic Trade, Cooperatives, and Consumerism (KPDNKK) has intensified its efforts to combat counterfeit goods, leading to arrests and significant legal challenges for individuals and businesses alike. If you or someone you know has been detained for possession of pirated goods, understanding your rights under the Trade Marks Act 2019 is crucial.
This article delves into the legal landscape of trademark infringement, what constitutes “pirated goods,” the potential consequences of an arrest, and practical steps for defense. Our firm specializes in defending clients against intellectual property charges and protecting their rights. Read on to learn how you can navigate these charges and safeguard your business interests.
Understanding Trademark Infringement and Pirated Goods under the Trade Marks Act 2019
1. What is Trademark Infringement?
The Trade Marks Act 2019 governs trademark rights and the legal framework surrounding their protection in Malaysia. Under this Act, trademark infringement includes:
• Section 54(1): Defines trademark infringement as the unauthorized use of a registered trademark, or a mark that closely resembles it to the extent that it may deceive or confuse the public. This can include the use of similar logos, names, or other branding elements that are likely to mislead consumers into believing they are dealing with the registered trademark owner.
• Section 54(2): Specifies that producing, distributing, or selling goods bearing an infringing mark is a violation, even if the individual or business did not manufacture the counterfeit goods directly. This section is particularly relevant to cases involving the possession or sale of pirated items.
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