Employees who view themselves unfairly dismissed must file their representation for reinstatement within 60 days from the last day of employment under section 20 of the Industrial Relations Act 1967 (“Act”).
This timeline may become blurred when an employer’s internal procedure allows for the dismissed employee to appeal against the dismissal. If an employee appeals against the dismissal and their appeal is rejected, does the 60-day timeline run from the decision of the appeal? Or from the “original” date of dismissal?
On 20 March 2023, in Samiah Yasmin binti Abdul Kadir v Menteri Sumber Manusia & Ors (Suit No.: WA-25-362-12/2020), the High Court provided an answer
Brief Facts
- The Applicant was employed as a professor in the university. On 4.12.2019, the Applicant was dismissed by the university.
- On 20.12.2019, under the university’s internal procedures, the Applicant lodged an appeal to the university to challenge her dismissal.
- The applicant was informed on 7.2.2020 that her internal appeal was rejected.
- On 9.3.2020 (approximately 3 months after her dismissal, but about 1 month after her appeal was rejected), the Applicant had lodged a representation for unfair dismissal with the Industrial Relations Department.
- The Human Resources Minister (“Minister”) refused to refer her representation to the Industrial Court because it was time-barred, given that her representation was filed after 60 days from her dismissal.
- The Applicant sought to quash the Minister’s decision through judicial review proceedings.
The High Court’s Findings
The High Court noted that the 60 day time limit under the Act must be strictly observed, so time runs from the date of dismissal. Following another High Court case of Abu Habidah Yaacob v Pengarah Jabatan Perhubungan Perusahaan Johor Bahru [1990] 2 CLJ 388, the High Court held that the “date of dismissal” refers to the date of termination in the termination letter, and not the date of decision of any internal appeals to the employer.
Non-compliance with the statutory timeline would be fatal to the employee’s claim as the Industrial Court will not be clothed with jurisdiction to hear the matter.
The Court held that the Minister’s decision not to refer the representation to the Industrial Court was a proper exercise of his discretion and correct in law.
Key Takeaways
Under section 20(1A) of the Act:
- Representations of unfair dismissal will not be entertained if they are not filed within 60 days of the dismissal
- Where an employee is dismissed with notice, he can file the representation during the notice period, but not later than 60 days from the expiry of the notice.
Employees may view that their dismissal is not “final” if the employer has an internal appeal mechanism. Consequently, they may erroneously believe that they must exhaust the internal appeal process first before they can file an unfair dismissal representation. This belief could jeopardise their rights, especially if the appeal process takes more than 60 days to be resolved. This demonstrates the importance of getting sound legal advice, as an unintentional delay could bar even the most meritorious claim from proceeding.
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This article was written by Leow Ho Eng (Associate) 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.
