Under what type of circumstances can a contract of service be terminated by either the employee or the employer?

An employer will have the right to dismiss an employee when the contract of service is considered to be broken. In such circumstances the contract of service is considered to be broken when the employee has been absent from work for more than 2 consecutive working days without getting prior leave from the employer. The employee can also be dismissed when they do not inform or try to inform the employer at the earliest opportunity during the period that they were absent without any reasonable excuse.

If the employee has been found guilty of negligence, misconduct or misdemeanor then the employer can also terminate the contract of service. As for the employee, they will have the right to terminate the contact of service if the employer fails to pay them their salary seven days after the wages period.

The contract of service can also be terminated without notice if there has been a willful breach by either party of a term or condition of the contract of the service or by paying to the other party or indemnity in lieu of notice. Instead if the work has been completed or the contract of service has expired then the contract can also be terminated. A written notice that is given by either party can also terminate a contract of service.

What is the notice period that is required to terminate a contract of service?

The employee can resign by giving a notice of termination or resignation to the employer so that the contract of service can be terminated. The employer will be able to dismiss an employee by giving them a notice of the termination to that particular employee. In both of the situation the length of the notice shall be the same as the pursuant to that of the contract of service. However id the period of notice for termination is not specified in the contract of service then the notice period shall be assumed as; a minimum of 4 weeks for those with less than 2 years of service, a minimum of 6 weeks for the employees that have worked there for more than 2 years or more but less than 5 years of service and a minimum of 8 weeks for those that have served there for more than 5 years.

Besides termination, what other actions can an employer take against an employee on the grounds of misconduct on the part of the employee?

If for any reasons the employee has been found guilty of misconduct by the employer, then the employer may take the following actions; impose any of the other lesser punishment as the employer would consider just and fit or downgrade the employee to a position that would deem fit for the misconduct.

What can I do if I have been terminated by my employer without an excuse or cause?

If you have been terminated with an excuse or a cause by your employer, you will then be able to enforce your civil right as well as remedies fir any breach or non-performance of the contract of service by any of the suit in a court of law. Another action that you can consider is filing a written representation within 60 days of the dismissal to the Director General of Industrial Relations Department so that you can be reinstated pursuant to section 20 of the Industrial Relations Act, 1967.

The Industrial Relations Act 1967 provides for the regulations between that of the employers and the employee as well as their trade unions. The act also assists in the prevention and settlement of the disputes that arises between the employer and the employee which is connected with that of the employment or the non-employment or the terms of the employment or the conditions of work of that particular employee.

If you are a female employee and it is found guilty that you were terminated by your employee while you were on maternity leave then that employer will be liable on conviction to a fine that does not exceed the amount of RM2, 000.

What are the circumstances in which an employee is not entitled to the lay-off or termination benefits?

There are certain situations and circumstances in which an employee will not be entitled to the termination or the layoff benefits and this includes; the employee themselves voluntarily terminates the contract of service, where the employee has attained the age of retirement as stipulated in the contract of service, the employee has re-engaged on the terms and agreements that are not less favorable than the previous contract, the employee has left the services without paying the employer the indemnity due to the contract of service even after receiving due notice of termination of the contract or without the prior consent of the employer, the employee was employed less than 12 months on the date of the termination, if the employee has committed misconduct that is inconsistent with the fulfillment of the expression or the implied condition of the service after due inquiry, when the contract of service is renewed or when 7 days before the date of the termination, the employer has offered to renew that particular contract on less favorable terms. An employer is required to pay the termination or layoff benefits to an employee not later than 7 days after the employee has been terminated.

What is the actual amount of the layoff benefits that is payable?

According to the Employment (Termination and Layoff Benefits) Regulations 1980, an employee that has been terminated shall be entitled to the layoff benefits not less than the following; when the employee has 5 years service or more then it will be 20 wages for each year of the service, if it is 1 to 2 years of service then it will be 10 days of wages for each year of the service and if it is more than 2 years but less than 5 years of service at that particular company then it will be 15 days of wages for each year of the service. If it is an incomplete year then the calculation will be on a pro-rata basis to the nearest month.