Know your rights as an employee during MCO

  • Letters
  • Tuesday, 24 Mar 2020

Now as most of you already know, during the MCO (Movement Control Order) period put in place to prevent a spike in Covid-19 cases, all businesses are to close, and only essential services are allowed to continue operating.

However, for those who are in non-essential businesses, your bosses are still expected to pay you your normal salary and cannot force you to take annual leave.

So for those who have lousy bosses and are in non-essential businesses, here are some things you should know:

Q: What should I do if my boss refuses to release my salary in full for the month of March?

A: That is against the MCO directives. Regardless of whether you are working from home or unable to work at all, your boss must still pay your salary in full for the month of March, in accordance to your contract of service. For those who earn a salary somewhere between RM2,000 to RM5,000, you can lodge an official complaint to the Ministry Of Human Resources pursuant to Section 69 & 69B of the Employment Act 1955.

Send a complaint to their officer’s email at (Peninsular Malaysia) or (Sabah) or (Sarawak). If you earn a salary more than RM5,000, and therefore outside the scope of the Employment Act or its East Malaysian counterparts, you may want to consider a civil lawsuit against your boss after the lockdown lifts, for breach of your service contract.

Q: What should I do if my boss fires me in order to cut his losses during the MCO period.

A: First, you should speak to your boss. If your boss is good, he should try to mitigate his losses by using paycuts or lessening working hours, before resorting to retrenchment. He should consider how long you have worked for him and how hard you have worked. If you earn less than RM2,000 a month, your boss is obligated by law to pay you retrenchment benefits in line with the Employment (Termination and Lay-off Benefits) Regulations 1990.

But if your boss does not want to speak to you, or does not give you any retrenchment benefits, or does not give any evidence that it is a bona-fide retrenchment, you may file a representation under Section 20 of the Industrial Relations Act 1967 with your local Department of Labour office so the Director-General may look into your problem.

They will try to get your boss to settle with you; but if your boss refuses to cooperate and/or is clearly in the wrong, the Industrial Relations Department will drag your bosses to the Industrial Courts for wrongful dismissal. You can choose to hire a lawyer to represent you, or you can represent yourself. Of course, if you win your case, you can ask your ex-bosses to foot your lawyer’s bill as well. Note that you have to lodge your representation within 60 days from the date of your termination, or you will not be heeded.

Q: My boss is a smart fox; he wants to get rid of me to save costs during the MCO, but he knows he cannot fire people for no good reason. So he makes life extremely unpleasant for me, like forcing me to take annual leave, forcing me to take unpaid leave, cutting my salary and so on. I can’t stand it. Can I just quit?

A: Always remember: your boss cannot force you to take annual leave during the MCO period as leave can only be made at the request of the employee.

If your boss deducts your salary, forces you to take unpaid or annual leave based on Covid-19 reasons, and makes employment very unpleasant for you, he is actually in breach of your service contract. Check the relevant clauses of your contract, and inform your boss that he cannot do these things. A salary deduction is only justified by the company facing extreme financial difficulty (i.e. the only other option is retrenchment).

If your company does not seem to be suffering financially, and boss still does not remedy the problem, it is quite obvious that they are pressuring you to leave. You are free to walk away because your resignation is actually constructive dismissal. So you can still file a representation under Section 20 of the Industrial Relations Act 1967 and drag your ex-bosses to the Industrial Courts.

Q: What can I ask for at the Industrial Courts if I make a representation under Section 20 of the Industrial Relations Act 1967 for wrongful dismissal or constructive dismissal?

A: Firstly, you can seek back wages. This is your last drawn salary and any other benefits/privileges you would have been entitled to if you had not been wrongfully/constructively dismissed, calculated from the date of termination to settlement, provided it is not more than 24 months (12 months if you were still on probation when terminated). You could also ask for your old job back, but if you no longer want to work for such a boss or if the position has already been filled, you can ask for compensation in lieu of reinstatement.

Q: What if I want to make a police report instead of going through the Industrial Courts?

A: Of course you can. It is an offence to go against either the MCO and/or any directives of the National Security Council. If your boss forces you to come to work at a non-essential service, that is essentially an offence under the Control of Infectious Diseases (Measures Within the Infected Local Areas) Regulations 2020 (P.U. (A) 91) that was released on 18 Mar 2020. So just make a police report.

Your boss may be liable to a fine not exceeding RM1,000, or to imprisonment for a term not exceeding six months, or to both under Section 7 of the Regulations. Alternatively, he could be prosecuted under Section 22 (b) of the Prevention And Control Of Infectious Diseases Act 1988 for not following directives from authorised officers, and land in jail for up to 2 years or a fine, or both.

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