Employee Dismissals In Malaysia – A Legal Guide For The Employer

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To be on the right footing with the Industrial Court at the adjudication stage, the employer ought to demonstrate that they have complied with the basic procedures prior to dismissal. A failure to provide evidence of compliance to the basic procedures could render the dismissal to be unlawful even if there were valid grounds to dismiss. Having said this, there is also a school of thought that it is not detrimental if basic procedures were not complied with. The Courts will hear the whole case as in ‘de novo’. Here, cases adopting the ‘de novo’ approach will be highlighted. Hence, there is no clear direction whether basic procedures need to be complied with prior to dismissal. In lieu of the above, cases that contribute to the development of this employment law area will be examined. This paper will also illustrate three types of dismissal claims that the employer may face and could be classified, but not limited to, the following: outright dismissals, constructive dismissals and forced resignation. The finding is that if employers do not comply with the basic procedures prior to dismissal, it is not detrimental from a legal aspect and that the case can be heard ‘de novo’ in the Industrial Court. The Industrial Court will find the dismissal to be lawful if the employer can prove it was done with ‘just cause and excuse’ albeit in the absence of the basic procedures prior to dismissal.