SECTION A (20 MARKS)

There are FOUR (4) questions in this section. Answer ALL questions in the spaces provided after each question.

1.Describe any TWO (2) tests that the court use to determine whether a person works under a 'contract of service' or a 'contract for service'. (4 Marks)

2.Explain any TWO (2) implications that arise from the way a trade union is defined in Malaysia.(4 Marks)

3.Explain the difference between a picket and a strike in relation to industrial action in Malaysia. (3 Marks)

4.The Code of Conduct for Industrial Harmony recommended several steps to be taken by the employer to cut cost when facing financial difficulties before resorting to termination.Explain the steps suggested by the Code.(4 Marks)

5.Explain the meaning of progressive discipline and provide an example of how progressive discipline can be implemented in a company.(5 Marks)

SECTION B(30 MARKS)

There are TWO (2) questions in this section. Answer ALL questions in the space provided below each question. Support your answer with relevant legal principles and cases where appropriate.

Question 1

You are a Bachelor in HR degree holder who has just graduated from a university. Your cousin, who owns a small company, comes to see you regarding some problems that she has with her employees. Give your advice to her for the following scenarios based on the provisions of Employment Act 1955 and general principles of labour laws in Malaysia.

a)Fatah works as an account clerk at the company. His salary is RM 1860. Fatah was absent from work on Tuesday and Wednesday and only turns up for work on Thursday. When the company wishes to take disciplinary action against Fatah, he strongly objects. Fatah said he was absent because he had food poisoning but was too weak to go to the clinic. He claimed that Employment Act 1955 allows all employee to be absent from work if they are sick. Fatah said that he has also informed Zura, another clerk in his department, that he will not be coming to work. Thus, he has not committed any wrongdoing.(6 Marks)

b)Lina is the administrative assistant at the company earning a salary of RM 1700. On 28th October 2019, which is a Monday, she was absent from work. When asked, Lina said that she is merely taking the replacement leave for 27th October which was Deepavali, a public holiday in Malaysia. Your cousin says that the company does not observe Deepavali as public holiday, but Lina insisted that employees in Malaysia should be given leave for all gazzetted public holiday and she was within her rights for not coming to work. The company wishes to issue a warning letter to Lina and deduct her salary for that day.(6 Marks)

c)Mary is a sales executive who joined the company in August 2019 and is currently on a three-month probation period. However, the company is not satisfied with her performance as she has failed to achieve her first month sale quota and is not friendly with the other sales personnel. Your cousin wishes to terminate Mary's employment by end of September 2019 citing poor performance as the main reason as well as her refusal to be a team player in the Sales Department.(8 Marks)

(Total: 20 Marks)

Question 2

Hayati has been an employee of Nusantara Sdn. Bhd for six years. Last week the company terminated her employment due to what the company claimed is a breach of contract based on Section 15(2) of the Employment Act 1955. The whole incident started when Hayati failed to show up for work one Monday without any reason. Leave record shows that she was on leave the previous week, but she didn't apply for any leave for that Monday. Her manager tried to contact her but could not reach her either through her house phone or mobile number. As far as the company knows, Hayati lives alone. Her parents had both died and she has no siblings or relatives. When Hayati did not turn up for work on Wednesday, her manager contacted the HR department and the HR department sent an officer to her house, but nobody is at home. Subsequently a registered letter was mailed to her address informing that the company is terminating her employment for being absent without leave for more than two consecutive days.

On Friday, the manager finally received a phone call from Hayati. It turned out that Hayati was in a hospital in Phuket, Thailand. She was involved in an accident the previous Sunday and had been unconscious until Tuesday. When she regained consciousness on Wednesday, she tried to contact her employer, but she was having some difficulty as her phone and purse have been stolen and many of the people there could not understand English. It was only on Thursday when staff from the Malaysian Embassy visited her that she managed to get to a phone to contact her employer. Hayati was very upset upon learning from her manager that the company has terminated her service. Advise Hayati of her rights under the Malaysian labour law.

(10 Marks)