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Editorial Team
Editorial

Victor Gan
victor@meca.com.my

David Koh
david@meca.com.my

Dzulfadhli Lamin
Foreword
dzul@meca.com.my

Cassandra Pius
cassandra@meca.com.my Dear Members,
Rachel Tan
rachel@meca.com.my
The second half of 2022 will be a new challenge for the
Lucas Chong
lucas@meca.com.my organization and HR practitioners with the recent
announcement from the HR Minister on the implementation of
the amendments to the Employment Act 1955 which comes
Admin / Training
into force by 1 September 2022.
Mushirah Hilmi
mushirah@meca.com.my
With that being said, we are proud to present in this newsletter
Sai Ramya
sai.ramya@meca.com.my
the hot topics surrounding these changes such as forced labour
and other IR issues and hopefully these articles would be able to
Tiffany Fung
tiffany@meca.com.my guide you through.

Zulaikha Zainuddin
zulaikha@meca.com.my A huge shoutout to all new members, and a heartfelt thank you
to our longstanding members for their continued support and
Design & Photography loyalty.
Muhamad Ashadi Marwar
ashadi@meca.com.my
Thank you.

Sponsorship / Advertising
Victor Gan
victor@meca.com.my

Head Office : Victor Gan,

CEO of MECA
Level 13A-06, PJX-HM Shah Tower,
No.16A, Persiaran Barat, 46050, Petaling Jaya.
admin@meca.com.my
Tel: +603-7610 0190
Fax: +603-7610 0191

Southern Region :
No 30B, Jalan Eko Botani 3/3,
Taman Eko Botani,
79100 Iskandar Puteri, Johor.
admin.jb@meca.com.my
Tel: +6012-797 5575

Northern Region :
3rd Floor, Unit 3-3, Setia Sentral,
Lorong Setia Sentral 1, 14000
Bukit Mertajam, Penang, Malaysia.
admin.pg@meca.com.my
Tel: +60 12-627 7424
 MECA Newsletter 2022 3

Workplace bullying becoming more serious

By: Elly Fazaniza ( TheSunDaily)

PETALING JAYA: Workplace bullying has become a problem that is

serious enough to warrant scrutiny, said Malaysian Institute of
Human Resource Management vice-president Mohd Rafizi Rahmad.

He told theSun that the issue would be raised at the institute’s next
meeting to be held soon. Rafizi said many people assume that
workplace bullying only takes place top-down, or in other words,
superiors bullying their subordinates.

“But the fact is that there are other groups of workers who are also
victims of workplace bullying. Don’t be surprised, because there are
also department heads or top officials who have become victims of
staff who have an agenda. Workplace bullying is a serious problem,
which is why it will be raised at our next meeting.”
Pix for representational purpose only. PEXELSpix

Universiti Sains Islam Malaysia associate professor of Law Dr

Muzaffar Syah Mallow said while workplace bullying is known to
exist in the country, there are no specific laws under which a victim
can complain about the perpetrator.
But what constitutes workplace bullying? Muzaffar said it could be
defined as unprofessional conduct that could jeopardise an
employee’s ability to perform at work.
He said this also affects an organisation’s productivity.
“It creates an unconducive work environment where the victims in
the workplace are unable to focus on their jobs effectively. A
perpetrator can be anyone, such as the office manager, employer,
another employee or even third parties such as a client, customer,
or visitor. Likewise, the victim can be just about anyone.”
Muhendaran added that it is time for non-governmental
organisations to take the lead in curbing workplace bullying, given
the lack of data on the matter since victims are often unsure of what
action they can take.
MECA COMMENTS
It has become more common that issues of workplace bullying are being
spoken about having found to be more common than sexual harassment
or verbal abuse.
Employers need be aware of the definition of Workplace bullying which is
the repeated mistreatment of one or more employees with a malicious mix
of humiliation, intimidation and sabotage of performance. It tends to be
deliberate, hurtful, repeated mistreatment of employees driven by a desire
to control.

Muzaffar added that victims should not suffer in silence but act
Just like sexual harassment, bullying behavior may exist at any level of an
immediately by lodging complaints with their superiors. Labour
organization. It can result in consequences not just for the individual
lawyer S. Muhendaran, who concurred with Muzaffar, said that gaps
employee but the organization as a whole where you can see high
exist despite a push to increase protection for workers. turnover, higher health care costs, low productivity, absenteeism and low
morale
“Bullying in a professional setting is a form of harassment. Just like
sexual harassment, it should be viewed very seriously. Here are some Do’s and Don’ts for the Company to help manage
workplace bullying.
“If they do not feel comfortable raising the issue with a superior, or
if their superior is the perpetrator, then victims could lodge a
complaint in writing to the company’s human resources or legal Do’s
department as a first step.
• Have a relevant policy in place that should include a reporting system.
“Victims can also lodge a report with the Human Resources Ministry,
o The policy should state the Company’s position to workplace bullying
which can probe such matters under the Employment Act 1955,
and encourage everyone at the workplace to act towards others in a
Industrial Relations Act 1967, or Occupational Safety and Health
Act 1994.” respectful and professional manner.
• Educate and train employees
Muhendaran added that victims could even institute civil action o Educate everyone about what is considered bullying, and whom they
against a perpetrator or lodge a police report so that an can go to for help.
investigation could be conducted under provisions of the Penal o Train supervisors and managers in how to deal with complaints and
Code. He said perpetrators could be charged under section 358 of
potential situations.
the Penal Code, which provides for a jail term of up to one month
• Treat all complaints seriously, and deal with complaints promptly and
or a fine, or both.
confidentially.
Muzaffar and Muhendaran said noticeable effects of workplace
bullying include a victim’s inability to focus on tasks, stress as well as Don’ts
rising emotional and mental pressures that affect his relationship
with family and friends. x Don’t ignore any potential problems and complaint from employees.
x Do not delay resolution.
“If the act of bullying goes unnoticed and continues, it can affect a - Act as soon as possible.
victim’s health, and even lead to suicide,” said Muzaffar.

https://www.thesundaily.my/home/workplace-bullying-becoming-more-serious-HY9045494
4 MECA Newsletter 2022

SKP Resources says no systemic forced labour

found at firm
Posted by Justin Lim / theedgemarkets.com

“This whole exercise has shed light on some

shortcomings of our business operations and
more importantly, the significant
improvements that have been made.
Specifically, all workers have now been fully
reimbursed for all recruitment fees previously
paid to recruitment intermediaries, and
working hours and overtime issues have been
addressed. Both of these issues are those
which Mr Hall constructively raised to us
previously.”

“Additionally, interviews conducted with our

KUALA LUMPUR (June 2): Electronics
manufacturing service (EMS) provider SKP
Resources Bhd said an independent consultant
has found out that the company’s practices do
not amount to systemic forced labour after it
took steps to address allegations of such
practices.
To recap, independent migrant worker rights
specialist Andy Hall had in December last year
raised concerns regarding SKP Resources'
management of its foreign workers, in
particular relating to overtime work and
adequate remediation of recruitment fees.
Subsequently, SKP Resources had appointed
TÜV Rheinland Malaysia Sdn Bhd to examine
and identify during its audit whether SKP
Resources and its subsidiaries were involved in
practices that may be considered any of 11
indicators of forced labour, as defined by the
International Labour Organization (ILO).
In a statement on Thursday (June 2), SKP
Resources said TÜV Rheinland in its final audit
report revealed that considerable
improvements have been made by SKP
Resources since December 2021 with regards
to working hours, overtime work processes and
adequate remediation of recruitment fees at its
subsidiary, SPI Plastic Industries (M) Sdn Bhd,
which was the company that was the original
source of the complaints by Hall.
TÜV Rheinland also verified that
Resources had now completed its remediation
programme across all of its subsidiaries and
that all foreign workers have been fully
reimbursed for all recruitment fees previously
paid to recruitment intermediaries at a
justifiable and reasonably calculated level.
As such, TÜV Rheinland also noted the further
progress that SKP Resources has made
regarding the ILO’s forced labour indicators
and, taking into account these ongoing efforts,
established that the company’s practices do
not amount to systemic forced labour and are
in compliance with Malaysia Labour Law.
The forced labour audit took two months to
complete, covering six of SKP’s subsidiaries
hiring non-Malaysian workers, beginning in
early April 2022 and completed in May 2022.
SKP Resources executive director Ivan Gan
said having examined the findings in detail on
completion of this audit, the management is
pleased with the outcome.
workers also yielded positive feedback.
Workers were increasingly satisfied with their
working conditions and well-being as
employees of SKP Resources.
“The findings of this audit is another step
forward that will enable SKP to achieve our
ESG objectives,” he added.
SKP
SKP Resources shares closed up two sen or
1.31% at RM1.55 on Thursday, giving it a
market capitalisation of RM2.42 billion.
MECA Comments
Companies should note that forced labour is
a global issue but in recent time Malaysia has
been hit hard with such allegations. Malaysia
has decided to step up via the National
Action Plan on - Forced Labour (2021-2025)
and the introducing of sanctions against
employer for forced labour via to be effective
Amendments to the Employment Act 1955.
Employers with a large contingent of foreign
workers especially are advised to ensure that
you to observe the relevant labour law in
Malaysia such as the Employment Act,
Minimum Wages order and Workers'
Minimum Standards of Housing and
Amenities Act. Audits should be conducted
periodically whether via external or internal
parties to ensure compliance.

https://www.theedgemarkets.com/article/skp-resources-says-no-systemic-forced-labour-found-firm

Can an employee be demoted or regraded to a post
which he had never held before?
Ng Teck Fay v Mahkamah Perusahaan Malaysia & Anor
[2021] 10 CLJ 73
Why this case?
This case illustrates that whether an employee can be demoted or
regraded to a post which he never held before and whether such
action would be considered as a breach of contract.
Facts of the case
The Employee commence his employment with the Company in
2008 as an Assistant General Manager (AGM). The following year,
the Employee was appointed as Head of the Family Claim
Department but his position as an AGM maintained.
In 2014, the Company issued a show cause letter and, following the
Employee’s apology for the oversight, a warning was issued. The
Employee was handed with two letters:
(i) a letter entitled 'change of job scope', which essentially
reduced the Employee's scope of duties by taking away the
medical claims for health insurance products from him; and
(ii) a letter entitled 'job re-grading to senior manager', which
demoted and downgraded the Employee from his position as
an AGM (grade 3) to a senior manager (grade 4) which he has
not occupied before.
The Employee was also told that he could resign should he disagree
with the contents of the above letters. The Employee opted to leave
the service of the Company, citing constructive dismissal.
Issues before the court
The main issue that arose for determination of the Courts.
1. Whether such change of job scope, demotion and downgrade
considered triple punishments which considered breach of
contract
Court Award
Finding from Industrial Court:
• Industrial Court held that the re-grading of the Employee did
not involve any changes to his salary and seniority. It only
involved changes to his benefits arising from the alignment of
the appellant's new job grade, scope of work and
accountability.
• Industrial Court also found that the Employee had failed to
prove on balance of probabilities that the second respondent
had breached the relevant terms of his employment contract
which goes to the root of the employment contract which
entitled him, to consider himself constructively dismissed by
the Company. Thus, the Employee had on his own accord,
abandoned his job.
MECA Newsletter 2022 5
Finding of the High Court:
• The learned High Court Judge found no grounds for
intervention in the exercise of its supervisory function in the
judicial review proceeding. The learned High Court Judge
further held that the Industrial Court had made findings of
facts which it should not readily interfere and dismissed the
Employee's judicial review application with costs of RM2,000.
Finding of the Court of Appeal:
• The Court of Appeal decided that the Company’s decision to
re-grade the Employee to align his new job scope with the
Company’s reorganised structure amounted to a breach of the
employment contract which entitled the Employee to deem
himself constructively dismissed, despite the Employee’s
acceptance of the Company’s decision. The re-grading
resulted in the Employee having reduced responsibilities, and
the demotion also involved the removal of two other
employees who used to report to the Employee, as well as
reduced benefits.
• The Court of Appeal found that both the Industrial Court and
High Court failed to consider that an employee could not be
demoted or re-graded to a post which he never held
before (the Employee was hired as an Assistant General
Manager and was now asked to assume the post of Senior
Manager), and that there was insufficient judicial appreciation
of the totality of the evidence.
Comments
• The employee must satisfy four conditions to be able to
successfully claim constructive dismissal, namely:
i. there must be a breach of contract by the employer;
ii. that breach must be sufficiently important to justify the
employee resigning;
iii. the employee must leave in response to the breach and not
for some other unconnected reasons; and
iv. the employee must not occasion any undue delay in
terminating the contract, otherwise he would be deemed to
have waived the breach and agreed to vary the contract.
• In this case, the Employee has successfully proved that demotion
or re-grading to a post which he never held before was a breach of
contract by the employer and as a result, the employee has leave or
resign from the employment. Even though the demotion or
downgrade is a punishment due to misconduct, it is to note that
such demotion or downgrade is not possible if the employee has not
held the position before.
6 MECA Newsletter 2022

PUBLIC COURSE
KL
11-12 May
JB
30-31 May
Employment Act 1955 &
amendments

Employment Act 1955 &

amendments

Employment Act 1955 & Employment Act 1955 & Employment Act 1955 & Employment Act 1955 &
amendments amendments amendments amendments

EA 1955 & Amendments

Briefing Session
Employment Act 1955 & Employment Act 1955 & Employment Act 1955 & Employment Act 1955 &
amendments amendments amendments amendments
 MECA Newsletter 2022 7

ONLINE PUBLIC COURSE

8 MECA Newsletter 2022
Can a chef-de-partie be considered as manual
worker or supervisor to manual worker?
NEWSLETTER AUGUST 2021
Abdul Razab Yahaya v Champsurf Sdn Bhd
[2022] 4 CLJ 708
Why this case?
This case illustrates that whether a chef-de-partie would be
considered as a manual worker or supervisor to manual worker which
entitled for termination benefits.
Facts of the case
The Employee as a chef-de-partie was terminated on 30 April 2020
due to retrenchment and the Company has paid him his April salary
and 1 month of salary in lieu of notice. At the material time, he
earned a monthly salary of RM2,562.
He has filed a claim to Labour Department to seek for retrenchment
/ termination benefits.
The Company took the position that the employee was not entitled
to termination benefits as he was neither a manual worker nor a
supervisor and his monthly salary exceeded RM2,000.
The Assistant Director of Labour from Penang’s Labour Department
has held that the employee is not entitled
termination/retrenchment benefits due to the Employee earned
more than RM2,000 per month and even though his monthly salary
exceeds RM2,000, he is not considered as manual labour nor
supervisor to manual labour.
The Employee now files an appeal to High Court.
Issues before the court
The main issue that arose for determination of the High Court.
1. Whether the Employee as a chef-de-partie is considered an
employee within the scope of Employment Act 1955;
2. If yes, whether the Employee is entitled for termination /
retrenchment benefits.
Court Award
The High Court held:
• The Employee was a chef-de-partie and according to the
Company, the demi (assistant) chefs, cooks and commis reported
to the Employee being in the senior position. Besides cooking,
the Employee had to:
a) take the raw materials from the suppliers, clean the raw
material, do the cooking owing to lack of staff;
b) coordinate and supervise the commis and apprentice chefs;
and
c) planning
• The High Court held that the Employee is a manual worker or
involved in supervising the junior cooks/chefs. The Court has
further stated that:
“No matter what grade, a cook has to learn to cook and the skill
improves from experience and it remains a manual job.”
Comments
• In this particular case, our Chairman and Founder of MECA, Mr. T.
Balasubramaniam’s A Practical Guide To The Employment Act
1955 was cited in this case as an authorities to determine whether
the Employee is considered as a manual worker or supervisor to
manual worker.
• Based on this case, the High Court has indicated that regardless of
grade or position, a cook is considered a manual worker.
to • As a summary, a manual worker would have the following
characteristics:
- Does not require skill, knowledge or experience
- Not a desk job, does not require use of pen and paper
- Done according to employer’s specific instructions
- Repetitious in nature or done at very specified intervals
- Work primarily involves use of hands without utilisation of
intelligence or creativity
- No special / sophisticated tools and equipment required
- No special qualification or education required
• As the Employment (Amendment) Act 2022 has been gazetted and
yet to be enforced, the Employment Act 1955 will be covered for
all employees and this where manual worker would be entitled for
overtime payment. It is more necessary for employer to determine
whether such a person would be considered as manual labour
based on the above characteristics.
 E–
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MECA IR CONVENTION 2022

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November 2022

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Northern Region
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admin@meca.com.my

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