EMPLOYMENT OF LAW

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EMPLOYMENT OF LAW by Mind Map: EMPLOYMENT OF LAW

1. Unfair or wrongful dismissal ; - when the employee's service are not terminated in accordance with the law - the employee may claim the remedies such as monetary compensation

1.1. Discrimination

1.2. Retaliation

1.3. Employee's refusal to commit an illegal act

1.4. Employer is not following the company's own termination procedures

2. Formation of Contract

2.1. Definition

2.1.1. The contract is between an employee and an employer

2.1.2. Used in labour law to attribute rights and responsibilites between parties to a bargain

2.2. Who is Employee

2.2.1. S2; first schedule

2.2.1.1. Who enters a contract of service with an employer and whose wages<RM1500 per month

2.2.1.2. Engaged in manual labour

2.2.1.3. Supervisor of employees in manual labour

2.2.1.4. Engaged as domestic servant

2.2.2. Part-time employee

2.2.2.1. His average hours of work does not exceed 70% of the normal hours of work of a full time employee

2.2.2.2. Employed in a similar capacity in the same enterprise

2.3. Who is Employer

2.3.1. S2 of EA: • any person who has entered a contract of service to engage an employee • include the person's agent, manager or factor

2.4. Form of the Contract of Service

2.4.1. Validity of a contract is not dependent on its form

2.4.2. Informally by word of mouth

2.4.3. Writing is not essential to the existence of the contract

2.4.3.1. Misundertanding and dispute will occur

2.4.4. S10 requires that contract for a specified time period of more than one month, be in writing

2.5. Contract for Service

2.5.1. Important of distinction between COS & CFS

2.5.1.1. An employer has greater obligation to an employee than to an independent contractor

2.5.1.2. An employee may also enjoy statutory protection against unfair dismissal and redundancy

2.5.1.3. The employer is responsible to third parties for all beglient acts of her or his employees engaged under a contract of services

2.5.2. Test for distingiuishing for COS &CFS

2.5.2.1. Oldest Test

2.5.2.1.1. Eg: control test •the courts examine the level of control exercised by the employer over the worker •has extensive rights to tell the worker what to do, how to do it and when to do it

2.5.2.2. Today's Test

2.5.2.2.1. Eg: multiple test •courts will examine all aspects of contract between employee and employer

2.5.2.2.2. Factors of court's decision

2.5.3. Features of COS

2.5.3.1. Has an employer-employee relationship

2.5.3.2. Employee does business for the employer

2.5.3.3. May be covered by the Employment Act

2.5.3.4. Includes terms of employment such as working hours, leave benefits, etc

2.5.4. Features of CFS

2.5.4.1. Has a client-contractor type of relationship

2.5.4.2. Contractor carries out business on their own account

2.5.4.3. Not covered by the Employment Act

2.5.4.4. Statutory benefits do not apply

3. Terms on Contract of Service: •letter of appointment issued to the employee by the employer •company handbook, manual or document •a collective agreement

3.1. Terms implied by Legislation

3.1.1. Employment Act : S7 of EA

3.1.1.1. An employer is free to offer any term or benefit which is more favourable than those established in the Act

3.1.1.2. Where the EA is silent on a particular matter, the employer and employee are free to agree upon the issue

3.1.1.3. Terms and conditions of a contract of service should not be less favourable to an employee than those provided under the Act

3.1.2. Industrial Relation Act

3.1.3. The Employees Providant Fund Act

3.1.4. The Children and Young Persons(employment) Act

3.1.5. The Workmen's Compensation Act

3.2. Implied by court or Common Law

3.2.1. Common law duty of employer

3.2.1.1. Duty to pay the employee as agreed by the contract

3.2.1.1.1. The wage is paid by the employer in consideration of the promise by the employee to perform work

3.2.1.1.2. Case of Stinchcombe v Thomas(1957)

3.2.1.1.3. The duty to pay the employee, exist whether or not the employer has provided work

3.2.1.2. Duty not to undermine the trust and confidence of the employee

3.2.1.2.1. Aimed to preventing the employer from indulging in unreasonable and abusive conduct towards the employee

3.2.1.2.2. A wide variety of behaviour can rise to a breach of his duty

3.2.1.2.3. Eg: from case of Associated Tyre Specialists V Waterhouse(1976) -critizing a supervisor in front of employees who worked under him

3.2.1.3. Duty to provide safe working conditions

3.2.1.3.1. Employers must take all reasonable care to provide safe working conditions for their employees

3.2.1.3.2. Possible rights of action in tort

3.2.2. Employee's common law duty

3.2.2.1. Duty to obey to the employer's reasonable direction

3.2.2.2. Duty to take care when performing his work

3.2.2.3. Duty to give faithful and honest service

3.3. Express terms by the parties in COS

3.3.1. They can be categorized as essential and optional

3.3.1.1. Essential express terms

3.3.1.1.1. Job title

3.3.1.1.2. Date of commencing employment

3.3.1.1.3. Remuneration

3.3.1.1.4. Benefits

3.3.1.1.5. Working hours

3.3.1.1.6. Penalties for misconduct

3.3.1.2. Optional express terms

3.3.1.2.1. Confidentiality

3.3.1.2.2. Right of search of employee's property

3.3.1.2.3. Limitation on right to engagement in other employment

4. Termination of COS : C- consequential A- automatic B- breach of contract U- unfair D- deliberate

4.1. Automatic termination

4.1.1. Expiry of a fixed term ; if the service for a specified period

4.1.2. S11(1)

4.2. When task or job is completed the contract wil come to an end

4.3. Deliberate termination

4.3.1. Ways to deliberate

4.3.1.1. Retirement

4.3.1.2. Resignation

4.3.1.3. Mutual agreement

4.3.2. Reasonable notice may be rquired to be given by the employee; if it is stated in the agreement

4.3.3. Case: Industrial Court Award No 254 of 1997

4.4. Consequential termination

4.4.1. Employer or employees dies

4.4.2. Employer is put in liquidation

4.4.3. Employer is declared bankrupt

4.4.4. Closure or sale of business

4.4.5. Frustration of contract occurs

4.4.5.1. Breach of Contract of Employment

4.4.5.1.1. S15(2)

4.4.5.1.2. S15(1)

4.4.6. Employee reaches the retirement age as stated in the contract