Ali Mohamed, Ashgar Ali and Sardar Baig, Farheen Baig
(2020)
Complying with 60 days' time-frame under Section 20(1) of the Industrial Relations Act during COVID-19.
Malayan Law Journal, 3.
xxv-xxxiii.
ISSN 0025-1283
Abstract
An employee alleging dismissal without just cause or excuse will have to comply with certain statutory requirements before his claim may be referred to and adjudicated in the Industrial Court. This includes, inter alia, the sixty days statutory limitation period in s 20(1) of the Industrial Relations Act 1967 (‘the IRA’). The dismissal date would be obvious in a direct dismissal as the dismissal is initiated by the employer either with or without notice. However, in a constructive dismissal the date of the dismissal is subjective1 Generally, it would begin from the moment the employee resigns or quits employment due to the fact that the employer had breached the fundamental term of the employment contract. In either case, the employee must ensure that his representations under s 20(1) of the IRA is lodged at the Industrial Relations Department nearest to his place of residence within the statutory 60 days period. Failure to do so would jeopardise the dismissed worker’s claim for reinstatement under the IRA.
However, the complication arises when a dismissed employee is deprived or prevented from filing the representations under s 20(1) of the IRA due to circumstances beyond his control such as during the recently enforced Movement Control Order (‘MCO’) from 18 March to 12 May 2020 and thereafter, the conditional Movement Control Order (CMCO) until 9 June 2020. This situation was encountered by S Tanabalan, the former supervisor of a security firm, who was dismissed from employment on 5 March and the last date to lodge his representations under s 20(1) of the IRA was on 3 May, during the MCO period wherein all government and private premises, except essential services, were closed, a preventive measure to contain the spread of Covid-19 infection. He only made attempt to file the representation during the CMCO namely, on 19 May. Unfortunately, however, his representation was declined by the Selangor Industrial Relations Department as it was way outside the 60 days deadline.2 In light of the above, this article discusses the mandatory 60 days limitation requirement under the IRA with reference to the enlargement or extension of the period under the exceptional circumstances. It is worthwhile noting that the lodging of the representations under s 20(1) of the IRA with the Director General of the Department must be made in writing. The dismissed worker is required to lodge the representation with the department either personally or through his authorised agent. The electronic filing or e-filing services as in the civil courts and the Industrial Court3 is currently not available at the department.
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