On 31 March 2020, the Ministry of Human Resources issued a new FAQ (FAQ No.3) stating that the movement control order (“MCO”) period will not be taken into account when calculating the 60 day limitation period for employees to file a complaint of unfair dismissal under Section 20 of the Industrial Relations Act 1967 (“Act”).

Under Section 20(1A) of the Act,  an employee who considers themselves to be dismissed without just cause and excuse, must file their representation of unfair dismissal within 60 days from the effective date of dismissal.

The question that arises with the issuance of this new FAQ is whether this is legally enforceable, and if the Ministry of Human Resources has the legal power and authority to extend a statutory limitation period in this manner.

Limitation Period under the Act

The Federal Court in Fung Keong Rubber Manufacturing (M) Sdn Bhd v Lee Eng Kiat & Ors (1980) 1 LNS 1, held that the stipulated time-frame under Section 20 of the Act must be adhered to strictly:

Under section 20(1) of the Act, a workman who claims reinstatement for wrongful dismissal is bound to comply with a very strict time limit. He must present his claim within one month of the dismissal. There is no similar escape clause as is provided by paragraph 21(4) of Schedule 1 to the (UK) Trade Union and Labour Relations Act, 1974, on the ground that it is “not practicable” to present a claim within the statutory period: see, for instance, Wall’s Meat Co Ltd v Khan [1979] ICR 52. It is for that special reason that the time-limit clause with no escape clause is inserted in the section. It is so strict that it goes to the jurisdiction of the industrial court to hear the complaint. By that we mean that, if the claim is presented just one day late, the court has no jurisdiction to consider it.”

There is therefore no room for an employee to get an extension of time of this limitation period, even if he had practical and valid grounds to do so. This is by virtue of the fact that Parliament did not see fit to include any “escape clause” in the Act to allow an extension of the 60 day period.

The strict interpretation of the time-frames under the Act was followed in numerous other cases such as in Sim Kooi Soon v Malaysia Airline System [2005] 4 MLJ 609 and Q-PLex Communication Sdn Bhd v Wan Hafiz Wan Hussin (2006) 2 LNS 1.

In short, the Industrial Court has no jurisdiction to consider unfair dismissal claims that are filed outside the 60 day window, regardless of the reason for the delay.

In addition, the recently passed amendments to the Act  (although not yet gazetted and not yet in force), present no alteration to the limitation periods, nor does it seek to include any escape clause to allow an extension of time or an alternative computation of time.

As such, the law’s position pre-MCO is quite clear: the 60 day time limit must be strictly complied with and no complaint filed after the time limit will be entertained.

The Effect of the new FAQ

The newly released FAQ presents a conundrum.

The power of the Industrial Court is derived from statute, which in turn must be followed until and unless there is a change in the legislation or there is subsidiary legislation / regulations passed.

Although the nation is facing an unprecedented problem with the COVID-19 outbreak, and the Ministry’s current FAQ on extending the limitation period appears reasonable, Ministry guidelines or FAQs do not have the force of law, and cannot supersede or bypass statutory requirements.

Employees who file complaints outside the limitation period purely in reliance on the Ministry’s guidelines, may later face legal challenges when their claim is referred to the Industrial Court for adjudication.

It would be better for employees to err on the side of caution and ensure that their claims are filed within the statutory time limit, until proper regulations, directives or amendments to the law are made.

 

NB: This article is updated as of the date of publication stated above. As this situation is novel and the government’s response to the outbreak is continuously developing, this article may not necessarily include updates or developments after this date. In situations of doubt, you are advised to check for updates directly with the government authorities.

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This article was written by Donovan Cheah and Amirul Izzat Hasri. Donovan has been named as a recommended lawyer for Labour and Employment by the Legal 500 Asia Pacific 2017, 2018, 2019 and 2020, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.

Donovan & Ho is a law firm in Malaysia. Our practice areas include employment law, dispute resolution, tax advisory and corporate advisory.  Have a question? Please contact us.

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