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Unformally hired-Wrongfully dismissed-No EPF contributions

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asked on Apr 5, 2013 at 18:09
by   johannlim
Hi There, would value your assessment of my case a lot!

I feel I was wrongfully dismissed in 2011. Here's where the case is a little blur. During my initial pre-hired discussions with my hirer (GM of the company), he advised that I should not be formally hired due to the flexibility of me being able to start my own sole proprietorship and then bill the company for "services rendered". This of course saved the company from having to put me on head count, and also pay me benefits like Socso and EPF. However I worked as though formally hired as a full-time employee, with full-time work hours and responsibilities, and a clear reporting structure.

I was very reluctant but I was desperate for the job so I took it on. So there wasn't even an employment letter.

I worked extremely hard for about six months and was dreadfully exhausted by the third to fourth month due to the intense pressure and frequent traveling (organizing and managing property seminars). I discharged my duties as expected but due to the high pressure, there were times I could not perform as perfectly as expected, and at times I had some discussions and telling-offs with/from my employers on my performance. (I now realize I was not healthy at that point in time which contributed greatly to the lethargy).

There was a particular incidence when I was terribly overworked (having crammed for a few days leading up to the event) at a seminar, and due to a colleague sabotaging me, I was told off in a demeaning and disparaging manner by my CEO, through no fault of mine. This was within earshot of all my colleagues and it was hugely embarrassing for me, and I totally lost my confidence after that. My relationship with my CEO suffered and she wanted to be rid of me.

My GM (according to him) stood up for me but I just could not bring myself to be at the best of my capabilities. So for the next two months I was maybe operating at 50-60%, but still discharging my duties, albeit with a great sense of procrastination as I was fed up.

On about the 7 month mark, I had a heated discussion with my GM and without written warning, he told me to resign and take only 1 month's compensation, on the spot. I was very angry and frustrated, but I was also done with the job. So I took it and left the company.

There are two things I feel much aggrieved about:

1. I was not given a chance to prove myself, nor was I given any written warnings before being dismissed
2. My employer did not pay my EPF nor SOCSO

Do I have a case to recover my dignity and monies owed? I think I can prove my case sufficiently through emails and circumstantial testimonies from ex-colleagues.

Please advice, thanks a lot.

Best of regards,
Joe
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2 Answers

answered on Apr 6, 2013 at 01:17
by   arun1011
Hi Joe

1. You state that your "dismissal" was in 2011. As such, you are time barred from filing a complaint at the Industrial Relations Department for an action for wrongful dismissal as the Industrial Relations Act 1967 ('IRA 67') specifies that the time limit to lodge a complaint is 60 days from the date of dismissal and this provision is enforced strictly whereby even if you lodge a complaint at the 61th day, your complaint would be time barred and as such you lose your right to have your matter referred to the Industrial Court which would have been your best bet simply because at Industrial Court you don't have to pay cost if you lose and you would have had the remedy of backwages amounting to 24 months in the event you are successful.

2. As such your only option now is to file a declaration at the High Court to state your dismissal is unlawful. However you would face an uphill battle because in the civil courts they would deem that you have resigned unlike in the Industrial Court where you can argue that your dismissal is a forced resignation. This is because the Industrial Court is a court of equity and good conscience and it can go beyond forms to determine the exact nature of the dismissal unlike in the civil courts.

3. Thirdly, if you lose your case at the High Court, you would be subject to cost and the legal fees for a matter at High Court could be ranging from  RM 10,000 to RM 25,000.

I hope this helps in your decision making and perhaps it might be wise for you just to cut your losses.

Regards
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answered on Apr 8, 2013 at 18:29
by   johannlim
Hi Arun,

Thanks so much for taking the time to reply, really appreciate it. Guess I will cut my losses, don't see it being fruitful based on your assessment.

Much thanks,
Johann
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