QUESTION 1:

1) Read through the letter and provide your comments to each terms & conditions stated in the
letter whether they comply with the provisions of Employment Act 1955. Give your advice to May
Lin whether she should accept or decline the job offer. (25 Marks)

Based on this scenario, May Lin has been offered employment with a basic salary of RM1,680 which is
under RM2,000. Therefore, this employment is protected under the Employment Act of 1955. I will
analyse this contract from a different aspect.

According to the contract, the working hour is 8:30 am to 5:30 pm, lunch break is 1:30 pm to 2:15 pm,
whereby OT pay is RM7.5 per hour. There are some terms and conditions that are complied with and
some that are not. According to EA Section 60a (1), employees should have at least 30 minutes break
after working 5 consecutive hours. The lunch break of 45 minutes start at 1:30 pm which is 5 hours after
employee start working at 8:30 pm, this is comply with the EA. But according to EA Section 6a, the
employee shall not work more than 8 hours in a day, the current working hour in the contract is 8 hours
and 15 minutes (9 hours minus 45 minutes of lunch break) will not comply with the EA. To make it
comply, the working hours need to be changed to 8:30 pm to 5:15 pm or the change lunch break to 1:30
pm to 2:30 pm. The OT rate of RM7.5 written in the contract does not comply with the EA too,

According to EA Sec 60a (3), the employee shall be paid overtime rates for the normal day not less than
one and half times his hourly rate. The way of calculating the normal hourly rate is as follows: monthly
wages / 26 days / 8 hours, which is 1680/26/8, the normal hourly rate of May Lin should be RM8.07,
therefore the normal day overtime rates for May Lin should be at least RM12.12 instead of RM7.5 listed
in the contract.

There is more detail not listed in the contract which is the pay for normal hours of work for a rest day and
public holiday, and the overtime rate for a rest day and public holiday. According to EA Sec 60 (3), May
Lin should get one day’s ordinary rate of pay if works not more than half her normal hours of work, two
days’ ordinary rate of pay if work more than half her normal hours of work if overtime at rest day will get
two times her normal hourly rate for overtime work on the rest day.

According to EA Sec 60d (3), May Lin should get two days’ ordinary rate of pay regardless of the period
of work that is less than her normal hours of work. If works overtime on a public holiday she should get 3
times her normal hourly rate for overtime work on a public holiday. Overtime hours are limited to a
maximum of 4 hours daily and not a total of 104 hours in a month were not written in this offer contract
too.

The probation period terms and conditions are partially complied with EA, as this is a non-executive
position 3 months listed comply with the EA, but according to EA if the employer wishes to extend the
probation period, they need to inform the employee before the end of the initial probation period. In this
contract it stated that management can terminate employee service or extend the probation period
without the need to give notice, this is totally not complied with EA.

May Lin will be entitled to enjoy 11 paid public holiday per year, according to EA Sec 60d (1), the
employee shall enjoy at least 11 paid public holiday and 5 of them will be compulsory which is Merdeka
Day, Agong's Birthday, The State Sultan's Birthday or Hari Wilayah, Labour Day and Malaysia Day. The
other 6 days are up to the employee. In the contract, it stated to refer to the Employee's Handbook which
leaves this section of information unclear, so it will be a risk for May Lin.

According to EA Sec 60e (1), employees entitle to get paid annual leave after 12 months of service. 8
days of annual leave if served the same employer for less than 2 years. 12 days of annual leave if served
the same employer for more than 2 years but less than 5 years. 16 days of annual leave of serving the
same employer for more than 5 years. In this contract, the information is not complete which lasted only 8
days of annual leave after 12 months of service.

According to EA Sec 60F, employees are entitled to get 14 days of paid sick leave if service is less than 2
years, 18 days of paid sick leave if service is more than 2 years and less than 5 years, 22 days of paid
sick leave if serving more than 5 years. Paid sick leave unlike annual leave, does not require service of
more than 12 months to be entitled to it. In this contract it stated after 12 months of service, May Lin will
be entitled to 12 days of paid sick leaves which does not comply with EA.

In the maternity leave section of this contract, it stated 60 days of paid maternity leaves will be given up
to a maximum of 3 children, any birth after a third child will only entitle to get 40 days of paid maternity
leave. According to EA Sec 37, female employees are entitled to 60 days of paid maternity leave for each
time they give birth. Therefore, the terms and conditions that giving birth after a third child will get 40 days
of maternity leave stated in the contract do not comply with EA.

According to EA Sec 12 (2), the notice period shall same for both employer and employee. Four weeks'
notice is needed if employee service is less than 2 years. Six weeks' notice is needed if the employee
service is more than 2 years and less than 5 years. Eight weeks' notice is needed if the employee service
is more than 5 years. In the contract, it states only 14 days’ notice period, if the employer terminates May
Lin, she has only 14 days to find another job and only 14 days of pay, which will disfavor her. Besides
that, the contract did not mention the termination/layoff benefits if terminated by an employee without
notice, for employee service less than 2 years should get 10 days’ wages for each year of service. For
Employees serving more than 2 years but less than 5 years should get 15 days of wages for each year of
service. For employee service of more than 5 years should get 20 days’ wages for each year of service.

In the other terms and conditions section in the contract, it stated that all other terms and conditions are
as stated in the Employee's Handbook on the company website, company reserve the right to amend,
delete or alter the terms. My opinion for this section is neutral but all the amendments need to be made
according to EA.

My advice to May Lin is strongly disagreed she accept the job offer as there are a lot of terms &
conditions not comply with the provisions of the Employment Act 1995. If May Lin really wishes to accept
this job offer, I would advise her to discuss with her employer to amend the contract to comply with EA as
I analysed above.

QUESTION 2:

a) Identify and explain TWO (2) misconducts that Arman has committed. (6 Marks)

Based on this scenario, the two misconducts that Arman has committed are unauthorized absence
from work and disruptive behaviour.

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Absence from work without leave and/or authorisation is constituted as a misconduct. If an employee
wishes to goes on leave, he or she must submit a leave request and application. If an employee unable
to go to work due to emergency in the morning on the working day, he or she must inform the
management in the morning with reason. In addition, if an employee is absent from work without
permission for one or two days, the employer should ask the employee to provide the reason of his or her
absent; However, if the employee cannot provide an acceptable reason for his or her absence, a warning
letter should be issued by the employer to give warning to the employee about his or her action. In this
scenario, Arman was absent from the office without any authorization for one day and failed to provide
medical certificate (MC), this means that Arman failed to provide an acceptable reason to justify his
absent.

Disruptive behaviour includes disrespectful language, throwing objects, demeaning conversation, and
communication. In this scenario, Arman engaged in disruptive behaviour because he was rude to other
colleagues, reacted angrily, and threw a pen toward the head of finance – Brenda.

b) Discuss in detail the actions and procedures that the HR should take to handle the above
complaint. (10 Marks)

Based on the above complaint, HR should take progressive disciplinary actions, the procedures to
handle the complaint are as below:

Progressive discipline is the process in which an employee fails to correct a problem after being given a
reasonable opportunity to do so.

The disciplinary action may include:

 Counseling the employee or give a verbal warning

By using Verbal warnings to employees, must be documented and must include the below information.

- Employee’s name
- Date when oral warning given
- The specific offence/violation
- Statement of expected performance.

 Issuing a warning letter

In order to issue a warning letter to employees, the information must include as below

- Employee’s name and designation

- Date
- Details of offence/ rule violation
- Reference to earlier conversations/ oral warning if any
- Specific statement of expected performance
- Statement indicating confidence in employee’s potential
- Signature – both parties

The heavier intensity actions may include: -

 Suspension or demotion
 Termination

HR have to investigate the alleged misconducts committed by Arman to identify the nature. The
disciplinary procedure that HR should proceed after the complaint received shall be carried out
preliminary investigation and inquiry. Certain measures can be taken depending on the merits of the case
which includes suspension and issuance of show cause letter. But the measurement must be taken in

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accordance to EA. Domestic inquiry must be carried out in the event that there is a prima facie case after
preliminary investigation.

c) Assume that the company found Arman guilty of the alleged misconduct following the outcome
of the disciplinary process. Propose the appropriate penalty that the company should impose on
him. Justify your answer. (4 Marks)

By applying the above provision to the current scenario, assuming that the company had carried out a
proper disciplinary process on Arman and found that Arman is guilty of the alleged misconduct. The
company has the right to issue a warning letter, counsel the employer, and give a chance for him not to
repeat it in the future.

As mentioned earlier, absence from work without authorization is considered misconduct. In Arman's
case, he is just absent without permission and without a reasonable excuse for a day. The company has
a right to issue a warning letter to him, but if he repeats his behaviour of being absent without leave for a
second time, a second warning letter may be issued. Any further repetition of this behaviour should result
in a severe penalty, such as demotion, suspension without pay, or even dismissal. However, according to
EA Sec15(2), an employee shall be deemed to have broken his contract of service with the employer if
he has been continuously absent from work for more than two consecutive working days without prior
leave and an unreasonable excuse.

For disruptive behaviour that Arman committed, the employer should counsel the employee and issue a
warning letter to him and give a chance for him to change his behavour.

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QUESTION 3:

Advice Simon on the legality and feasibility of each of the circumstances that he proposed above
based on the general principles of labor laws and industrial relations. To wrap up your arguments,
advice Simon whether he may or may not actually terminate Ruby’s employment as secretary in
the company. (15 Marks)

Simon cannot terminate Ruby by using the reason of redundancy. As the same work still carry out under
a different name and manner, therefore no redundancy was identified. As Simon mentioned that Ruby’s
current work can be passed to another executive in his department, which means that the work was not
done by another executive before, they have to take on extra work that was originally done by Ruby.

In the perfective of poor performance, poor performance is not misconduct. Simon cannot terminate Ruby
immediately. Simon is well aware of Ruby’s poor performance, but he still just lets the matter be and not
giving a warning to her. In this scenario, it will be very difficult for Simon to terminate Ruby’s employment,
due to his ignorance at the beginning which is considered as a condonation. In this case, if Simon wants
to terminate Ruby due to her poor performance, he should warn Ruby either verbally or issue a written
warning letter. Besides that, Simon needs to give the opportunity to Ruby to improve her performance. If
Ruby failed to perform sufficient improvement, Simon can take immediate action to dismiss Ruby based
on her poor performance.

If Simon wishes to terminate Ruby using the retirement reason, it is not feasible to do so. According to
the EA, the company cannot terminate an employee due to retirement age when there are not clearly
stated in the employment contract. If Simon wishes to terminate Ruby using retirement as a reason, he
should have stated the retirement age of Park Lane Sdn. Bhd. an employment contract. The retirement
age stated in employment age should not be less than 60 as the minimum retirement age of Malaysia is
60.

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*** END OF ANSWER SHEET ***

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