EMPLOYMENT I
Principles of Labour Law
= to protect private sector employees by guaranteeing certain minimum standards
Relationship between ER & EE
WHPT Housing Association Ltd v. Secretary of State For Social Services (1981)
= employment relationship can only exist if
- the ER perceives 意识到 and acts on an obligation to supply work
- The workers feel obliged to undertake any work offered
Difference between contract OF service & contract FOR service
a) contract OF service
= for full-time employment
= employer-employee relationship exists
= the employer has the right to control how the work is done
= the terms and conditions of employment must comply with the employment laws
b) contract FOR service
= contract with independent, outsourced service provider
= employer does not have right to control how the work is done
= the terms and conditions of the contract will be mutually agreed upon by the employer
and the contractor
= NO Employees’ Provident Fund (EPF) or Social Security Organization (SOCSO) will be paid
by the employer to the contractor
DINSTICTION BETWEEN THESE 2 CONTRACTS
*Contract OF service is more significant. Why?
the ER has special duties to his EE and similarly, the EE has special duties to his ER.
the ER is liable for the torts of his EE but generally not for those of his
independent contractor.
if the contract is a contract FOR service, many obligations imposed on the ER by
legislation can be avoided. ER 可以逃避责任
if the company is wound up, the ER will receive preferential rights.
COMMON LAW TESTS TO DIFFERENTIATE BETWEEN AN EMPLOYEE AND A NON-EMPLOYEE
In American International Assurance Co Ltd v Dato’ Lam Peng Chong (1998)
= the court identified 3 tests to differentiate
1) ‘Control’ Test
= the control of an employee by another
o What the employee must do
o How & When the employee must do the job
Yewen v Noakes (1880)
= a servant is subject to the command of his master
Walker v Crystal Palace Football Club (1910)
= Walker (professional footballer) is the employee
= He was subject to the control of his master in the form of training, discipline and
method to play
@ Independent contractor is bound by his contract and NOT by the employer’s order
2) ‘Integration’ / ‘Organization’ Test
= depends on whether the employee is part of the organization
= Is the employee’s work done as an integral part 不可分割的部分 of the business?
Successful – Cassidy v Ministry of Health (1951)
= Highly skilled workers can be employees under a contract of service
Stevenson, Jordan and Harrison Ltd v MacDonald and Evans (1952)
Contract OF service => Employed as part of business & done as an integral part of
business
Contract FOR service => Although done for the business, is NOT integrated into it
=> only accessory to it
3) ‘Multiple’ Test
Ready Mix Concrete (South East) Ltd v minister of Pension & National Insurance (1968)
Contract OF service would exists if:
(a) The servant agrees to provide his own work in consideration of wage or other
remuneration
(b) The servant agrees either expressly or impliedly in the performance of those
services, he will subject to the other’s control
(c) The other provision of the contracts are consistent with it being a contract OF
service
Conditions relevant in deciding whether the worker is called an employee / independent
contractor
The terms and conditions of the contract (eg. Fixed remuneration, Payment of wages)
The degree of control exercised by the employer
The nature of the task undertaken
The freedom of action given
Who can delegate function
Who pays the premium for health and injury insurance
EE’s DUTIES
i. Duty to obey lawful and reasonable instructions:
- co-operate & be obedient to the employer’s instructions
- unless they require him to do an unlawful act / expose himself to unreasonable
danger
Pepper v Webb (1969)
= gardener refused to carry out certain planting jobs instructed by the employer
= breached his duty
Morrish v Henlys (Folkstone) Ltd (1973)
= refusal to falsify 伪造 the accounts
= did not breach his duty
ii. Duty of good faith
= to give honest and faithful services
= not to make secret profit
Hivac Ltd v Park Royal Scientific Instruments Ltd (1946)
= employees of the plaintiff company were found working part-time doing the same job
in another company (DIRECT COMPETITOR)
= employees were in duty not to work for a competitor of their employer
= conflict with their duty to be loyal to their original employer
iii. Duty to keep confidential information:
= duty not to disclose or make improper use of confidential information which he had
obtained in the course of his employment.
Cranleigh Percision Engineering Co Ltd v Bryant (1965)
Defendant = Managing director of plaintiff firm
= defendant left the plaintiff firm
= started his own business using information which he had gained whilst in the plaintiff’s
employment.
= defendant had made improper use of information which he had gained in confidence
from the plaintiff company
= breached duty
iv. Duty to take reasonable care and skill in the performance of his work
= to be reasonably competent to do his job.
= duty to render personal service and not delegate his work.
= duty to take due care and skill extends to taking care of the employer’s property,
assets and fellow employees.
Lister v Ramford Ice and Cold Storage Ltd (1957)
= Lister was employed as a lorry driver by Ramford Company
= While negligently reversing the lorry, Lister injured his fellow co-worker
= company could claim indemnity from Lister for failing to use reasonable care.
= Lister was liable for the damages awarded to his fellow co-worker.
v. Duty to avoid conflict of interest
= duty to act without any conflict of interest
= duty not to make secret profits or take bribes.
= employer would be entitled to recovery of the secret profits that the employee
received
Sinclair v Neighbour (1967)
= the clerk in a betting shop took £15 from the till without the consent of the employer
= although with the intention to put it back later
= employee had acted dishonestly
= employer was entitled to dismiss him.
ER’s DUTIES
I. Duty to pay agreed wages
= duty to pay contractually agreed remuneration
II. Duty to provide a safe place of work
= duty to appoint competent staff who will not endanger their fellow employees
III. Duty to provide safe plant and equipment
= providing appropriate tools, machinery and materials maintained to an
adequate standard
IV. Duty to indemnify the employee
= duty to indemnify his employees for any reasonable expenses incurred on the
employer’s behalf
V. Duty to treat the employee with respect, trust and confidence
= not to behave in an intolerable or inconsiderate way to seriously damage the
relationship of trust and confidence with the employee.
VI. Duty to take reasonable care
= Duty to take care of each of his employees.
VII. Duty to comply with the terms of contract
= duty to comply with the express and implied terms in the employment
contract.
EMPLOYMENT II - TERMINATION
Circumstances an employee can be terminated:
1) By performance
= upon the work had completed
2) Upon the expiry of the contract / by retirement
S4 Minimum Retirement Age 2012
= minimum retirement age in private sector => 60 years old
3) Where the parties are unable to continue with the contract through none of the
parties’ fault
4) By agreement where both parties agree to terminate the contract
5) Upon a willful breach of any of the terms or conditions of the contract of service by
either party
= A contract is deemed to have been broken when the:
o employer fails to pay wages;
o employee is absent for more than two consecutive days without applying for
prior leave or without reasonable excuse
NOTICE :- by giving notice in accordance to the employment contract
MISCONDUCT
S20 Industrial Relation Act (IRA) 1967
= An aggrieved 愤愤不平的 employee can challenge his termination from service
= The employer has a duty to demonstrate just cause or excuse for such termination.
一个受委屈的愤愤不平的雇员有机会对解雇他和雇主提出质疑，他有责任证明解雇的正当理由或
借口
Generally,
the employers are entitled to dismiss an employee only if 雇主只有在下列情况下才有权解雇雇员
- the employee breaches any of the terms of the contract of employment or
- is guilty of gross misconduct
In such a case,
the employer would be entitled to terminate the contract
- without notice OR
- payment of salary
BURDEN OF PROOF
aggrieved employee to prove that he did not commit any wrongdoing and therefore there is
unfair dismissal or wrongful termination.
受损害的雇员有责任证明他没有任何不当行为，因此会有不公平的解雇或不正当的解雇
a) Wrongful termination
= Termination of employment before the expiry of a fixed term without giving notice
b) Constructive dismissal
= employee terminates the contract with or without notice,
= due to
o the employer’s conduct
o working conditions
o changes an essential term of the contract without the employee’s consent,
= employee has no choice but to resign
= employee retains the right to make a claim of unfair dismissal
c) Termination by retirement
= if the contract is silent on retirement age
Pelangi Enterprise Sdn Bhd v Oh Swee Choo (2001),
= the company claim unilaterally retire the claimant at 55 years
= in the absence of an express term
= breach of the claimant’s contract of employment.
What must you do before you terminate an employee?
The investigation process*****
= to establish and determine the commission of the misconduct and the person(s)
responsible.
a) should be in a fair and proper manner
b) recording statements from the relevant parties including outside
sources where relevant (i.e. customers, clients contractors)
c) ensuring that the statement contain all necessary information relating to the
incident or act of misconduct;
d) providing the relevant parties time and opportunity to respond to the questions
and questionnaires prepared;
e) ensuring that the statements are verified and signed by the relevant parties;
f) collecting all necessary information and documentation that are relevant
to the issue in hand including photographs, letters, reports, etc.
EMPLOYMENT III
Industrial Relations Act 1967
= ensure social justice to both employers and employees
= to advance the progress of industry by bringing harmony and cordial relationship between the
parties
= to terminate unfair labour practices,
= to protect workmen
THE FUNCTION OF THE INDUSTRIAL COURT
Wong( Yuen Hock v. Syarikat Hong Leong Assurance Sdn. Bhd [1995]
Wong Chee Hong v Cathay Organisation ( M) Sdn Bhd 1988
S20(3) IRA
(a) whether there is a dismissal on the facts; and
(b) if so, whether the dismissal was with or without just cause or excuse
© to draw up principles and guidelines in regard to social justice in employment
Power of Industrial Court
S29 IRA
The Court may, in any proceedings before it—在法院审理的任何程序中，法院可
(a) order that any party be joined, substituted or struck off
命令任何一方加入、取代或注销
(b) summon 传召 before it the parties to any such proceedings and any other person who
in its opinion is connected with the proceedings;
(c) take evidence on oath or affirmation and compel the production before it of books,
papers, documents and things;
宣誓或者誓词作证，强迫其出示书籍、文件、文件和其他物品
(d) hear and determine the matter before it notwithstanding 尽管
o the failure of any party to submit any written statement whether of case or reply
to the Court within such time as may be prescribed by the President or
任何一方未能在总统规定的时间内就案件提交书面陈述或向法院作出答复
o in the absence of any party to the proceedings who has been served with a
notice or summons to appear; 诉讼的任何一方当事人都不在场，而当事人已
收到通知或传唤出庭
(e) conduct its proceedings or any part thereof in private;
私下进行其程序或其任何部分;
(f) after consultation with the Minister, call in the aid of one or more experts;
(fa) order a case to be struck off or reinstated; 命令案件撤销或恢复审理
(g) generally direct and do all such things as are necessary or expedient for the expeditious
determination of the matter before it. 指导和做所有必要的或有利于迅速决定面前的
事情
EMPLOYMENT IV
Retrenchment
= happens when there is a redundancy 裁员
= when an employer has more employees than it needs
Factors lead to retrenchment
- loss of orders leading to reduction in organizational income
- changes in technology
- mergers and acquisitions
- restructuring and reorganizing
- periodic economic crisis at national or international levels.
Principles of retrenchment ****
HOW RETRENCHMENT EXERCISE?
Cycle & Carriage Bintang Ltd v Cheah Hian Lim (1992)
i) Decide on the strength of the staff
o Considers necessary for efficiency in its undertaking.
o When workman is surplus => Retrenchment
ii) Right of every employer to re-organize his business
o for the purposes of economy or convenience
o provided he acts bona fide
iii) Right to determine the volume of his staff consistent with his business
o for reasons of economy
o better management
iv) In the absence of any express agreement on the point,
o employer is not obliged to find suitable employment for redundant workers
v) Employer should comply with the industrial law principle of last in first out (LIFO
principle)
o unless there are sound and valid reasons for departure
Principles on choosing whom to retrench
1. Foreigners out first
S60N EA1955
= When a company employs both foreigners and local workers in the same jobs
= & retrenchment is necessary
= foreigners must be retrenched BEFORE any locals
2. Last in, first out (LIFO)
= an employer must choose the most junior employees
= the more senior people must be retained.
Code of Conduct for Industrial Harmony
Q: Advice on Industrial Court, whether the retrenchment exercise bona fide
= if retrenchment becomes necessary, the employer should take the following measures:
i. giving an early warning if practicable, to the workers concerned
ii. introducing schemes for voluntary retrenchment and retirement and for payment of
redundancy and retirement benefits
iii. retiring workers who are beyond their normal retirement age
iv. assisting in cooperation with the Ministry of Human Resources, the workers to find
another job
v. extend termination of employment over a longer period 延长终止雇佣的期限
vi. ensuring that no such announcement is made before the employees and their
representatives or trade union have been informed
Suggestion criteria for employers to select employees to retrench:
a) Ability
b) Skill and occupational qualifications
c) Experience
d) Length of service
e) Status (non-citizens, casual temporary, permanent);
f) Age
g) Family situation
