Specific performance and reinstatement for breach of employment contract: the Common Law and Statutory Law perspective

Ali Mohamed, Ashgar Ali and Ahmad, Muhamad Hassan (2022) Specific performance and reinstatement for breach of employment contract: the Common Law and Statutory Law perspective. In: Equity & trusts in Malaysia: law & practice. Thomson Reuters Asia Sdn. Bhd., Subang Jaya Selangor, pp. 169-189. ISBN 9789672723165

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Abstract

At common law, the employment relationship is founded on contract and therefore, the general principle of the contract law applies to a contract of employment. A contract entered into freely and voluntarily is held sacred and would be enforced by the courts if it is broken, subject to limitations such as undue influence, fraud, duress, misrepresentation or contracts designed to violate criminal law. Damages are by far the only remedy for breach of contract whose normal function is to compensate the true loss suffered by the innocent party and place them in the same position, so far as money can do it, as if the contract had been performed. Specific performance which is an equitable remedy decreed by the court to compel a party to perform its contractual obligations has been expressly excluded for breach of employment contract except in exceptional circumstances. However, where the statutory remedies for breach of employment contract is pursued, the court is empowered to award reinstatement which in fact, is akin to a specific performance at common law. As an aggrieved worker may either seek the common law breach of contract remedies or the statutory unfair dismissal remedies and hence, this chapter discusses the statutory remedy of reinstatement. Further, since the employment relationship is categorised into public sector and the private sector, the availability of reinstatement to public sector workers is also discussed. Accordingly, for purposes of completeness, this chapter discusses the common law specific performance and the statutory reinstatement remedies for both the private sector and public sector employees.

Item Type:	Book Chapter
Uncontrolled Keywords:	Specific Performance, Reinstatement, Common Law, Statutory Law, Employment Law, Contract.
Subjects:	K Law > K Law (General)
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button):	Ahmad Ibrahim Kulliyyah of Laws Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User:	Dr. Muhamad Hassan Ahmad
Date Deposited:	10 Mar 2023 16:31
Last Modified:	10 Mar 2023 16:40
URI:	http://irep.iium.edu.my/id/eprint/103930

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