ORDINAN BURUH (SARAWAK BAB 76)
How and where can I file my labour complaints?
You may lodged your complaint at the nearest labour office. There are 10 Labour Offices in the State.
Please bring along your:-
2.Letter of appointment/ contract of employment
3.In the absence of (ii) above, provide the correct name and address of your employer
Do I have to pay fees?
No, fees are not payable.
What are the provisions in the law regarding
(i) Leave Entitlement
(ii) Salary Increment
(iv) Medical Expenses
The Labour Ordinance (Sarawak Cap 76) does not have these provisions. Therefore they are subject to the contract entered into between the workers and employers.
Who are covered under the Industrial Relation Act 1967?
All "workmen" employed under an employment contract. "Workman" means
any person, including an apprentice, employed by an employer under a contract of
employment to work for hire or reward and for the purposes of any proceedings in
relation to a trade dispute includes any such person who has been dismissed,
discharged or retrenched in connection with or as consequence of that dispute or
whose dismissal, discharge or retrenchment has led to that dispute.
What is stipulated under section 20(1) of the said Act?
Where a workman, irrespective of whether he is a member of a trade union of
workmen or otherwise, considers that he has been dismissed without just cause or
excuse by his employer, he may make a representations in writing to the Director
General to be reinstated in his former employment. The representation may be
filed at the office of the Director General (Labour Office) nearest to the place
of employment from which the workman was dismissed.
What are my rights under the Industrial Relations Act, 1967 if I have been terminated from employment?
Selection 20 of the Industrial Relations Act, 1967 states that you may file
representations for reinstatement if you consider your dismissal to be without
just cause or excuse. Such representations must be filed within sixty (60) days
of the dismissals.
However, if you have been dismissed with notice then you may file at any time during the period of such notice but not later than sixty (60) days from the expiry of the notice.
What are the requirements a workman must fulfilled to bring his case under section 20? (i) The workman must be a "workman" as defined in the Act.
(ii) He must have been "dismissed from work"
(iii) He must make a representation in writing to be reinstated to his former employment within 60 days from the date of dismissal to the Director General of Industrial Relations.
How and where can I file my representations?
Your representations must be filed in writing at the office nearest to your
former place of employment. The representations must contain the following
documents and information :-
that the remedy you are seeking is reinstatement
your name and address (telephone number, if any);
name, address and telephone number(s) of your former company;
date of appointment;
date of dismissal;
reasons for your dismissal;
whether you are a member of a union or otherwise;
You may also attach copies of relevant documents (e.g Letter of Appointment, Letter of Termination of Service)
Do I have to pay any fees?
No, fees are not payable.
What causes a dismissal? Dismissal or termination of service?
The burden of proof that a workman has been dismissed lies with the workman
himself. As soon as he is able to do so, it is up to the employer to prove that
the management has valid reasons to terminate the service of the said workman.
There are various debates in the Court whether a workman is terminated or dismissed and whether a workman is eligible for reinstatement if he had been dismissed.
The Federal Court decides that:-
"We do not see any material difference between a termination of the contract by due notice and a unilateral dismissal of a summary nature. The effect is the same and the result must be the same".
"It is the duty of the Court to determine whether the termination or the dismissal is within or without just cause or excuse. The duty of the Court will be to enquire whether the excuse or reason (given by the employer) has or has not been made out. If it finds as a fact that it has not been proven, that the inevitable conclusion must be that the termination or dismissal was without just cause or excuse."
The present laws stipulate that whatever term is being used by the employer to justify the said termination, the Court has the right to enquire into the reasons why such action has been taken and to determine its justifications.
Is retrenchment considered a dismissal?
Reorganization of a business is under the jurisdiction and the
prerogative of an employer and the arbitrator shall not interfere in the
bonafide exercise of that power. It is not for the Court to decide the number of
workmen to be employed by the management. The argument that the company is
making profits cannot be accepted as the Court has decided that the management
need not prove that it suffered loses to justify retrenchment. It is up to the
company to determine its manpower needs.
Though the Court acknowledged the rights of employers to determine its manpower needs, the Court needs to be convinced that there is no discrimination or unfair exercise of such power. The principle of "Last In First Out (LIFO)" is a strong principle in carrying out any retrenchment exercise. The Court only allows deviation from such principle when there are concrete and valid reason.
The rule applicable in determining the seniority of a workman is by taking into account the period of service of the workman in the post. The management also takes into consideration whether the appointment letter of the workman allows him to be transferred to any of the branches or subsidiary companies. Under the circumstances whereby a company deviates from the principle of LIFO on the ground that a workman is one day senior than his co-workman and in view that he already has a family compared to his fellow worker who is still single, the Court does not agree that marriage or any other personal reasons justify the company to deviate from the principle of LIFO.
The management is encouraged to retain the service of a senior worker requiring minimum re-training. The Court rejects efficiency as one of the selection criteria as it may be an indirect effort to discipline the workmen.
Can a workman file a representation under section 20 if he resigns?
Resignation under duress or threat is not considered resignation if the
claimant is able to proof that his resignation is not voluntary but rather a
dismissal with honour.
Can a workman under probation file a representation under section 20 if he is dismissed?
Any workman under probation enjoys the same rights as the permanent or
confirmed staff and thus cannot be terminated without reasonable and just cause.
However, a workman remains as a probationer though his probationery period has
expired until his service is terminated or he is informed of his confirmation in
In the Dictionary, the word probation means "testing of conduct or character of a person and the probationer is one who is on trial or in a state to give proof of certain qualifications for a place or state". The purpose of the probationary period in any contract of service is to test the suitability of the workman. Thus, a probationary period in any contract may be considered as a way of communication by the employer whereby if a workman is able to proof that during his probationary period he is able and the right person to carry out the duties, then he can be confirmed or be permanently employed. As such, the appointment of a workman under probation is tentative and depends upon the satisfaction of an employer on the suitability of the said workman. But this satisfaction has to be reasonable and not something inconsistent.
It is stipulated that any workman under probation has no right to his post and also he has no lien to his post beyond the probationary period where he should prove that he is eligible for that post in terms of performance, conduct and personality.
However, dismissal of a workman should be on reasonable and just cause.
Can an employer terminate the service of a workmen after he attains the age of 55 years without any contact or relevant circulars?
Where a contract does not not specify the retirement age, it is obvious
that a workman may work regardless of age. It is not fair and against one's
conscience to allow such dismissal when he is still capable and willing to work
after attaining 55 years of age.
Is it necessary that the Employment Contract be in writing? The terms "contract of employment" as defined under section 2 of the Act include oral and written agreement as well as expressed and implied. However, if it is a complicated transaction, it should be in writing to avoid doubt and dependence on the words of one party only.
Is a job description or job specification important?
Title of post, scope and job description is an important matter in
determining the status of a workman. These may become the main issue when a
workman infringe a direct order on the ground that it is not his work and if
this constantly arises may result in dismissal.
What are the duties and obligations of a workman?
The duties and obligations of workman may be expressed or implied. Implied
- He is bound by the employer's regulations and order.
- He must be honest and deligent and does not abuse the trust given to him regarding matters connected to his service.
- To take care and maintain his employer's property entrusted to him.
What is constructive dismissal?
If an employer commits a misconduct of breach of employment contract, or
shows that he does not wish to be bound by one or more terms in the employment
contract, such workman has the right to consider himself discharged from further
performance. If he does so, then the workman is terminating his contract on the
ground of the employer's behaviour. Then he is constructively dismissed.
To enable the workman to claim for constructive dismissal, the following four conditions have to be fulfilled: a) There must be a breach of contract by employer. This may be an actual breach of contract or expected breach.
b) The said breach of contract must be important to warrant resignation of the workman or it must be the last incident in a series of events that lead to him to leave his employment.
c) He left his employment solely due to the breach of contract and not for any other reason not connected to the issue concerned.
d) The workman cannot delay the termination of his contract on the ground of breach of contract by the employer. If not he may be considered exempting the breach and agrees to alter the said contract.
If the workman left his employment where these terms are not fulfilled, he shall be considered to have resigned and there is no dismissal within the meaning of the law.
What is Breach of Contract? Breach of contract by an employer may involve breach of an expressed or implied term. For example, it may be in the form of wage reduction on the one part or both salary and status, or to instruct the workman to work at other work site without authority in accordance with contract to do so or to instruct him to carry out other works beside those assigned to him.