In Fernandez Melissa Joan v Tadika Celik Comel Sdn Bhd, the court had to decide whether an employee could be dismissed for not having a valid work permit – even though she tried to get one.
Brief Facts
Melissa, a Singaporean, was married to a Malaysian and living in Malaysia on a Long-Term Social Visit Pass (LTSVP), also known as a spouse visa.
To work legally in Malaysia, she needed to apply for a Permission to Work (PTW) from the Immigration Department.
She started working at Tadika Celik Comel, a kindergarten, on 1 January 2019.
Before she started work, Melissa contacted one of the company’s staff, June Mok, for help with the PTW. June even brought Melissa’s documents to the Immigration Department. However, the Immigration Department needed more documents such as income tax documents and educational certificates. Melissa was informed of these additional requirements but did not complete the process.
Later, the Company asked Melissa for proof of her PTW. When Melissa replied that she didn’t have it yet due to missing documents, the company issued a show cause letter and held a domestic inquiry.
The inquiry concluded that Melissa had committed a serious misconduct by failing to obtain the PTW, and her employment was invalid from the start. She was therefore dismissed on 7 February 2023.
Melissa claimed unfair dismissal.
Court’s Findings
The Court held that Melissa’s dismissal was without just cause and excuse:
- Melissa was allowed to work for the company from the start in 2019, even without the PTW. The company never said she could not work without it, or that failing to get a PTW would be a serious misconduct resulting in dismissal. The Company appeared to have no issue allowing Melissa to work on her social pass before that.
- To get a PTW, Melissa needed several documents. One of them was the company’s business licence. However, when Melissa tried to apply for the PTW before she started working, the Immigration Department couldn’t process it because the company had no valid business licence at the time.
- The business licence was only obtained by the company after Melissa was dismissed – in 2023.
- Melissa made a genuine effort to get her PTW. However, she couldn’t proceed because the Company did not give her what she needed – the business license. There was therefore no willful disobedience to the Company’s instructions to get the PTW.
- As such, the dismissal was unfair and not justified.
Key Takeaways
The Industrial Court accepted that Melissa and her spouse were responsible for personally attending the Immigration Department to apply for the PTW. However, to do so, Melissa required key supporting documents from the Company such as a valid business licence.
While the duty to apply for the PTW rested with the employee, it was unfair for the Company to penalize her for not obtaining it when the failure was due to the Company’s own inaction.
This case offers a broader lesson for employers, and by analogy can apply to those dealing with the application or renewal of employment passes for foreign employees. If the employment pass (or renewal) is not obtained because of delays or omissions on the employer’s part, it may be unjust to rely on that failure as a reason to terminate the employee – even though a valid employment pass is required for the person to be employed in Malaysia.
***
This article was written by Donovan Cheah (Partner), with assistance from Laveeniapal Ganapathy (Legal Executive) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
Have a question? Please contact us.
