Nina Namisha Binti M.

Azmi
S2128247

Workplace Rights for Remote Working in Malaysia Civil Service: Power

Imbalance between Individual and Business.

A rather ongoing debate with regards to the remote working rights towards legal officer in
Malaysia especially as civil servant has been not fully made clear especially due to Coronavirus
(Covid-19). Under the Federal Constitution, we may look into the judiciary with their supposed
rights with regards to remote working. This article seeks to discuss the topic at hand, however it
will be narrowed down to discuss cases of remote working right on Malaysian civil servant
specifically on legal officer.

As a result, the first section of this article is to provide brief narratives on the present law and
constitution available in addressing cases of workplace rights in remote working on the ground
of civil servants in Malaysia. Furthermore, a brief discussion is launched on whether the existing
law and constitution are sufficiently successful in protecting civil servants' rights from discrimi-
nation in distant working environments. When it comes to remote working, we need to explore
more outside the box right now, especially in light of Covid-19. We must learn from other coun-
tries, such as Finland, how it has become a world leader in flexible working and how it preserves
civil servant rights in the workplace. The second half of this article aims to provide a compara-
tive examination of the topic of company and individual power imbalances. Throughout this sec-
tion, decisions in landmark cases from both sides are discussed in an attempt to discuss the
Malaysian constitution's position on the matter, and a brief comment on such position of the
Malaysian constitution is made. The final section of this article looks at how different countries
approach remote working rights, particularly for civil workers such as legal officers, and how to
increase such rights in Malaysia. This article will then summaries the workplace right for remote
working as civil servants in Malaysia between the individual and company. Suggestions for miti-
gating such disparities are offered as part of the article's conclusion.
 The services supplied by state officials keep society together. The modern state administration
revolves around the public service. The quality and devotion of a country's public official or civil
servant ultimately determines its economic, social, and educational policies. 1 Central to the law
and constitution that defines the word ‘public services’ is Article 132(1) of the Federal Constitu-
tion, defines ‘public services’ that include the armed forces, the judicial and legal service, the
general public service of the Federation, the police force…2 Those who do not fall under public
servants are defined under Article 132 (3) ad (4), in the case of Ramalingam v Chong Kim Fong3,
the officers were declared to not be public servants. All public servant serves at the discretion of
Yang di Pertuan Agong (YDPA). That is, they have no security tenure and can be terminated at
any time. Suffian LP held in the same case of Government of Malaysia v Mahan Singh4 that
rights in Malaysia are not the same as rights in India. There is no continuity of job, promotion, or
pension in Malaysia. It was decided in Haji Ariffin v Government of Pahang that there is no such
thing as permanent service in Malaysia5. It is obvious that every member of the public sector
serves at the leisure of the State or the YPDA. 6 As an example, a legal officer is a civil servant,
as opposed to an individual corporation employee. Because the reward and the task are so differ-
ent, even if both workspaces were designated as Work from Home (WFH), it would not be as
simple or as many things that could be done.

Under several Acts of Parliament and quasi-legislative service regulations and circulars, all
public officials have many rights and benefits. Furthermore, the Constitution provides them with
some substantive safeguards. Though public servants have no fundamental right to their posi-
tions, they do have some procedural safeguards available to them under Article 135 Clauses (1),
(2), and (3),7 as well as common law natural justice principles. No public servant (save a member
of the armed forces) may be dismissed or demoted by an authority subordinate to the one with
the ability to appoint.8 One of these is shown in Article 135(2), which states that no member can
be removed or demoted by authority subordinate to him. There are a few exceptions to this rule.
When the commission assigned the power to dismiss, the dismissal is legitimate. This is the con-
clusion reached in the case of Government v. Zainal Hashim.9 The second procedural safeguard
is that under the article, the public worker is entitled to a reasonable opportunity for prior hearing
before dismissal. It can also be interpreted as the party being given the opportunity to present his
case.10 It can also take the form of the party having to know all the information and documents
known to the deciding authority so that they can refute the evidence. In addition, the party also
1
Safeguards for public servants - The Malaysian Bar. (2011). Safeguard for Public Servants. https://www.malaysianbar.org.my/
article/news/legal-and-general-news/legal-news/safeguards-for-public-servants .
2
Article 132(1) of the Federal Constitution .
3
Ramalinga v Chong Kim Fong [1978].1 MLJ 83.
4
Government of Malaysia v Mahan Singh [1978] 2 MLJ 133.
5
Haji Ariffin v Government of Pahang [1969] 1 MLJ 6.
6
Public Servants and constitution. (2019).
7
Article 135 of the Federal Constitution.
8
Safeguards for public servants - The Malaysian Bar. (2011). Safeguard for Public Servants. https://www.malaysianbar.org.my/
article/news/legal-and-general-news/legal-news/safeguards-for-public-servants .
9
Government v Zainal Hashim [1979] 2 MLJ 276.
10
Najar Singh v Government [1976] 1 MLJ 203.
has the right to be heard if the sanction is to be increased. This right does not have to be oral but
it can be in writing11. Therefore, termination without prior hearing may be effective if a criminal
charge against the individual has been established and has not been amended. 12 It can also apply
if a detention, surveillance, banishment, deportation or residence restriction is imposed on the
public servant.

Also, there is serious doubts about the circular's constitutionality in light of Article 138 of the
Federal Constitution13, which states that the Judicial and Legal Service Commission has jurisdic-
tion over matters pertaining to the appointment, confirmation, promotion, and discipline of judi-
cial officers as well as legal officers. However, in order to further enhance judicial officers' inde-
pendence, we propose that the judicial service be separated from the legal service, so that there
will now be two separate services, namely, the 'Judicial Service' and the 'Legal Service,' and that
judicial officers be placed under a separate service commission, rather than the current constitu-
tional arrangement under which, under Article 138 of the Federal Constitution, both the judicial
officers and the legal officers are subject to the same service commission.14

Another law similar to the concept, the Public Officer Regulation 1993 which offers conduct
and discipline for the public services.15 Disciplinary control is an important tool to create effi-
cient management in the exercise of all functions and responsibilities to ensure that the goals and
objectives of the respective departments are achieved. They a public service must always comply
with a devotion to YDPA and also must comply with the provisions of these regulations and fail-
ure to comply with any provision of these regulations will result in disciplinary measures being
taken against the officer. Every officer is responsible for exercising disciplinary control and su-
pervision over his subordinates and taking necessary action as soon as practicable. 16 In addition,
the Public Officers (Appointment, Promotion, and Termination of Service) Regulation 2012 17 is
mandated by the Federal Constitution. These Regulations apply to all permanent or temporary
appointments in the public service within the jurisdiction of a commission, save transfers of ap-
pointment, permanent transfers, or any other appointment as determined by the commission. 18

11
Ibrahim, Zukiferee & Mohamed, Abdul. (2019). REASONABLE OPPORTUNITY OF BEING HEARD UNDER ARTICLE
135(2) OF THE FEDERAL CONSTITUTION: A MIST. International Journal of Law, Government and Communication. 113-
120. 10.35631/ijlgc.4150012.
12
Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771.
13
Article 138 of the Federal Constitution.
14
G. (2016, August 9). “Judicial service must be separated from legal service.” Malaysiakini. https://www.malaysiakini.com/
news/351600
15
Public Officers (Conduct and Discipline) 1993.
16
https://www.spa.gov.my/spa/en/guidelines/disciplinary/series/series-1-public-services-codes-of-conduct .
17
Public Officer (Appointment, Promotion, and Termination of Service) Regulation 2012.
18
Peraturan-Peraturan Pegawai Awam (Pelantikan, Kenaikan Pangkat Dan Penamatan Perkhidmatan) 2012. (2012). Public Of-
ficers Regulation 2012. https://docs.jpa.gov.my/docs/myppsm/PA/pua12012/55/#zoom=z .
 Although these sources of law appear to be comprehensive, their effectiveness in protecting the
rights of public officers with distant working rights is frequently questioned. Overall, the legal
standing of public authorities is questionable. Action against delinquent public employees, on the
other hand, is notoriously difficult to maintain. Many wrongdoers rely on technical or procedural
flaws to avoid judicial scrutiny and punishment. It is challenging and requires outstanding lead-
ership to enforce excellence and devotion in public services. 19. As such, Singapore is a good il-
lustration of Singaporean practise on striking the correct balance in life. One element pertaining
to Singaporean government servants is that, from in year 2022, the Singaporean Public Service
Division (PSD) has said that around 23,000 civil servants will benefit from salary increases rang-
ing from 5% to 14%. According to PSD, these changes will allow the civil service to continue to
attract and retain its fair share of talent. 20 The epidemic has highlighted the value of a strong pub-
lic sector. "The Public Service is dedicated to attracting, developing, and keeping a future-ready
workforce that can continue to provide the best for Singapore and Singaporeans," the PSD noted.
Aside from compensation increases, PSD stated that it will continue to increase efforts to give
officers with "valuable career options" and to promote their growth and development.21

Thus, what Malaysia lacks is the presence of such public servant conscience, which has re-
sulted in numerous unheard civil servant remote working rights, double standards, and a lack of
promptness and response among governments. Governmental organizations, non-governmental
organizations, and international rights organizations have been viewed only as human rights
watchdogs, with no access to supporting government bodies in addressing concerns of civil ser-
vants' freedom to work online.

The essence of this issue aims to compare the Malaysian judiciary's diverse opinions in cases
concerning civil servant workplace rights on the basis of civil service, ostensibly owing to the
different sectors the cases originated from. In Malaysia, while civil servants working for the gov-
ernment have different rights than private sector employees, they may have recourse by relying
on the constitutional guarantees enshrined in Article 132 of the Federal Constitution, there are
such laws specifically for the public service to abide by due to the YPDA's devotion. Changes to
the Employment Act 155 are being proposed to address this gap in the law, but for the time be-
ing, employees in the private sector who are dissatisfied with the current process of discrimina-
tion may have to rely on the principles of unfair dismissal or constructive dismissal to protect
their rights.

19
Safeguards for public servants - The Malaysian Bar. (2011). Safeguard for Public Servants. https://
www.malaysianbar.org.my/article/news/legal-and-general-news/legal-news/safeguards-for-public-servants .

20
Chelvan, V. P. (2022, June 5). About 23,000 civil servants to benefit from salary increases of between 5% and 14%. CNA.
https://www.channelnewsasia.com/singapore/civil-servant-salaries-adjusted-keep-pace-market-23000-officers-psd-2728246
21
Chelvan, V. P. (2022, June 5). About 23,000 civil servants to benefit from salary increases of between 5% and 14%. CNA.
https://www.channelnewsasia.com/singapore/civil-servant-salaries-adjusted-keep-pace-market-23000-officers-psd-2728246
 The difficulty now is to acknowledge the rights of civil servants in terms of their rights to re-
mote working as a public sector employee. It might be claimed that as a civil worker for the pub-
lic sector, the job is more challenging since it requires complete physical assistance to the citi-
zen. In many cases, particularly in the private sector, courts are prone to exclude constitutional
protections in questions of private law. The duality of private-public law is fundamental to this,
with courts emphasizing that constitutional safeguards do not apply to disputes involving public
bodies. For now, the focus on the current endemic in which it causes a problem towards the pub-
lic sector. Working from home (WFH) and its close part working from anywhere are not new
concepts to Malaysians. It has been debated academically and practiced in a variety of forums
and organizations, with both the private and public sectors presenting differing perspectives on
the subject. New cultures or conventions are generally not well accepted in this country, which is
heavily impacted by baby boomers. The older generation has traditionally associated formal la-
bor with being in a specific location and within a specific time frame. Anything else isn't deemed
"working." Working from home may be perceived as less productive than working in an office or
at a designated workplace by some. Then there's the issue of trust, when managers insist on
'managing' their employees and requiring traditional in-person meetings.22

The Public Service Department (PSD), among others, is in charge of issues concerning work-
ing hours in the public sector and is continually assessing comments from civil servants as well
as stakeholders, including concerned groups such as unions, who advocate for better working
hours. Proposals received from internal or external parties are typically forwarded to a higher
level of government for review. 23 It has been a need of studied especially for public service to
have more flexible working hours and working environments. For this to happen, they need to
have a work-life balance through time management. Whereas, civil servants have diverse back-
grounds and time management demand which depend on individual. In other words, working-
hour flexibility varies according to the demands of each group. Cost and time involved, on the
other hand, are two critical elements driving the demand for alternate working arrangements. As
the globe adopts the work-from-anywhere trend in the aftermath of COVID19, flexible working
hours and settings have become necessary in today's modern working culture. The public sector
is increasingly supportive of the premise that if public workers' lives are well-organized and they
have a sufficient cost of living, stable emotions, a suitable working environment, and a decent
work-life balance, productivity and efficiency will improve.

Almost quickly, the Covid-19 altered public-sector jobs and environments. Public officials are
taking the lead in the pandemic response. Healthcare personnel are responsible for keeping medi-
cal systems running and families safe. Civil servants are devising unique strategies for designing
and channeling unprecedented economic stimulus expenditure, as well as managing dramatic

22
A. (2021). Working From Home In Service Of Malaysia – MyForesight. Working From Home in Service of Malaysia. https://
www.myforesight.my/working-from-home-in-service-of-malaysia/
23
A. (2021). Working From Home In Service Of Malaysia – MyForesight. Working From Home in Service of Malaysia. https://
www.myforesight.my/working-from-home-in-service-of-malaysia/
surges in unemployment.24 Without a doubt, the public service sector tries to give government
officials with freedom in order to achieve an ideal balance between their professional and per-
sonal life, which will presumably increase their performance and productivity. Working from
home has become a feature of human resource management strategies that emphasize optimal
work-life balance for government employees. The public sector is increasingly supportive of the
premise that if public workers' lives are well-organized and they have a sufficient cost of living,
stable emotions, a suitable working environment, and a decent work-life balance, productivity
and efficiency will improve.25

Further, because of the Covid 19, millions of people are forced to stay home and stay out of of-
fice. Under the Malaysia Occupational Safety and Health Act 1994 (OSHA 1994), employers
have duty to ensure the safety and health of them during work. However, we are not too sure
whether this will apply to remote working or WFH arrangement. However, with the amendments
to the Employment Act 1955 on flexible working or WFH, shows that they are employees and
also civil servant are liable for WFH injuries sustained by their employees if they were doing
something related to their jobs at the time of the injury. To put it simply, there would inevitably
be some grey areas, such as when work time begins and ends each day, and what exactly consti-
tutes job-related injuries. This is especially true when workers work longer hours to assist the
company and its customers.26 Another consideration is that WFH may cause employees to incur
related expenditures. The government may need to consider enacting legislation forcing compa-
nies to compensate employees for reasonable and essential WFH expenditures such as stable in-
ternet connections, supplementary IT software and hardware, and maybe ergonomic tables and
chairs.27

Even though the public sector quickly adapted to the WFH culture, the PSD’s guarantee that
government workers do not abuse the WFH initiative and that its execution does not impair ser-
vice quality. According to the agency, persons who WFH must also follow guidelines such as be-
ing at home and being approachable during work hours. 28 We can say mostly from the private
sector, it has been stated that it is allowed to WFH, however, the civil service will operate on a
hybrid system whereby only 20% of staff will be in the office at one at a time, in line with the

24
Public servants and the coronavirus (COVID-19) pandemic: Emerging responses and initial recommendations. (2020). OECD.
https://www.oecd.org/coronavirus/policy-responses/public-servants-and-the-coronavirus-covid-19-pandemic-emerging-re-
sponses-and-initial-recommendations-253b1277/

25
A. (2021). Working From Home In Service Of Malaysia – MyForesight. Working From Home in Service of Malaysia. https://
www.myforesight.my/working-from-home-in-service-of-malaysia/
26
Yeoh, L., & Wen, P. J. (2021, December 9). Statutory Protection for Employees Working from Home in Malaysia? Lexology.
https://www.lexology.com/library/detail.aspx?g=f9df2eaf-3105-49a4-9e1e-00440a842b5b
27
Yeoh, L., & Wen, P. J. (2021, December 9). Statutory Protection for Employees Working from Home in Malaysia? Lexology.
https://www.lexology.com/library/detail.aspx?g=f9df2eaf-3105-49a4-9e1e-00440a842b5b
28
Khalil, M. D. B. A. (2021, March 27). Malaysian Gov Plans to Amend Employment Law to Support WFH. A Job Thing.
https://www.ajobthing.com/blog/malaysian-gov-plans-to-amend-employment-law-to-support-wfh .
tightened procedure, whilst the rest will be WFH in which the new practice of the Employment
Law does not apply to public servants in frontline services. The WFH policy shall be imple-
mented in accordance with the policies specified in Service Circular No.5/2020, which outlines
the components that must be followed when WFH.29 However, several Malaysian ministers do
not agree with WFH's methods. Shamsuddin, as a public servant, you would need a decent work
station and the necessary equipment at home. He also suggested that the government offer tax
breaks to employees who pay for such products, and that employees who donate should also re-
ceive tax breaks. There are issues when you WFH, such as internet connection issues, which the
government and internet service providers should address. Therefore, the workplace needs to
covered for all these to the civil employees. 30

Whereas, most private sector employers are open to changes, they still want their employees to
get back to office when Covid 19 ends. The proposed provision to the Employment Act 1955
that will benefit the private sector, to a more flexible working arrangement. Employers must de-
sign and implement their own policy or standard operating procedure based on their working cul-
ture, environment, and each employee's job description in this scenario. Hence, only 10% would
only prefer to WFH in a long term. As a result, we would consider the Employment Act 1955
change to be effective. A peek at the recent tabling of the Employment (Amendment) Bill 2021
in Parliament in October 2021 may provide an answer. Intended as a comprehensive plan to im-
prove the EA 1955, a joyful sense develops from the awareness that Malaysian employment leg-
islation is moving closer to contemporary worldwide standards and practices. Particularly with
the endemic challenges of remote working. This is to ensure the safety and right for those people
that is working from home, such as their safety and welfare. The existing legislation, which ad-
dressed employers' responsibilities to guarantee their employees' safety and welfare, could be ap-
plied to WFH, which has become the standard in the global workforce. Employers' duties, on the
other hand, were confined to job-related actions under their control and subject to the nature of
the activity. This is due to our future norm. It won be until Covid-19 finish but it will remain as a
global norm.

To allow broader perspective of the topic, this part of the article sample some comparative on
Singapore view on their public sector regarding remote working. Singapore’s PSD stated that hy-
brid work is not entitlement. It is used to control and managed people, workplace health, cyber
and information service in the making of hybrid arrangements. The mainstreaming of hybrid
work in the public sector would allow the public sector to lock in the productivity advantages
from remote working began during COVID-19, while also balancing the requirement to encour-
age cooperation and organizational cohesiveness.31 The particular requirements that best meet
29
The Star Online. (2021, May 23). 80% of civil servants to WFH, says Zuki. The Star. https://www.thestar.com.my/news/
nation/2021/05/23/80-of-civil-servants-to-wfh-says-zuki
30
Khalil, M. D. B. A. (2021b, March 27). Malaysian Gov Plans to Amend Employment Law to Support WFH. A Job Thing.
https://www.ajobthing.com/blog/malaysian-gov-plans-to-amend-employment-law-to-support-wfh
31
The Editor. (2022, January 26). Singapore’s public servants to work under new norms. HR ASIA. https://hr.asia/top-news/sin-
gapores-public-servants-to-work-under-new-norms/
their organization's business needs and operational setting should be determined by public sector
entities. Officers should also modify their work-from-home schedules to priorities organizational
demands.32

Conclusion.

Looking into this article, it can be stated that WFH's effect is not restricted to streamlining the
way individuals work; rather, the true consequence is to spread advantages beyond an employee's
individual productivity. For example, enhancing organizational performance and efficiency as a
direct result of work-from-home efforts would be worthless if adequate oversight of government
responsibility on public expenditure remained difficult. Second, we can say that WFH requires
effective and efficient long-term performance measurement. Its foundation is based on the com-
prehensive reform of human resource management in the public sector, namely by reducing cur-
rent workforce segmentations and divisions from a functional scheme of services to a single de-
fined position. Working from home would therefore be objectively linked to a solid performance
monitoring system. Those reforms would be difficult to implement without political will or,
more importantly, from inside the public service/sector itself. Otherwise, all attempts to simplify
flexible public sector work arrangements would be futile if we do not capitalize on employee
productivity as well as organizational effectiveness and efficiency. Proposals to change current
laws are important steps, but how the laws are implemented in practice in the future will be
"where the rubber meets the road." Employees should be given responsibilities to protect them-
selves and to work with their employers to develop and comply with the company's WFH policy
or guidelines.
Therefore, public sector in their remote working right in which WFH is appliable to them due to
for example endemic. Thus, as a civil servant, working as public service is difficult as you are
the center to where people search with regards to daily life, as it is part of government bodies. In
which, civil servant may get benefit the same as private sector employee, instead there are limit
in which civil servant can and cannot do. Such as frontliners services, where they do not have the
right to defy the orders from the government or YPDA.

32
Lee, C. (2022, January 28). Hybrid work will be default for Singapore’s public employees. HRM Asia. https://hrmasia.com/hy-
brid-work-will-be-default-for-singapores-public-employees/
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