Wednesday, April 25, 2012

Know your rights: Malaysia Employment Act 1955

Whether you are employer or employee in Malaysia, the Employment Act 1955 is a very important act related to your employment.

Below is a summary of some of the important points in that act:

  • The Malaysia Employment Act 1995 is applied to Peninsular Malaysia and Labuan only. For Sabah and Sarawak, they are governed by their respective Labour Ordinance.
  • Either party to a contract of service may at any time give a termination notice in writing, and the notice period shall not less than:
    • 4 weeks for employment less than 2 years
    • 6 weeks for employment between 2 to 5 years
    • 8 weeks for employment more than 5 year
  • The notice period above is minimum requirement, which can be longer in the actual employment contract, and is important for short notice compensation serving, especially when Voluntary Separation, Retrenchment, Early Termination, etc. occur.
  • Termination without notice nor compensation can happen in the event of any wilful breach by the other party of the employment contract.
  • Employer may dismiss, downgrade or suspend up to 2 weeks after due inquiry to the employee, on the grounds of misconduct or inconsistent in fulfilment of service.
  • Employee may terminate without notice when threaten by danger, voilence or disease.
  • Contract is deemed broken by employer if he fails to pay wages not later than the 7th day after the wage period.
  • Contract is deemed broken by employee if he has been continuously absent from work for more than 2 consecutive working days without prior leave from his employer, unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to or at the earliest opportunity during such absence.
  • Wages is not payable during the period when employee is imprisoned or attending to a court otherwise than as a witness on his employer's behalf.
  • No deduction of wages can be made by employer other than:
    • Deductions to the extent of any overpayment of wages made within 3 months of the mistake.
    • Deductions for the indemnity due to the employer by the employee.
    • Deductions for the recovery of advances of wages.
    • Deductions authorized by written law, such as EPF, SOCSO, PCB, etc.
    • Deductions upon employee's written request, in respect of the payments to a registered trade union or co-operative thrift and loan society of any sum of money due to the trade union or society by the employee on account of entrance fees, subscriptions, instalments and interest on loans, or other dues.
    • Deductions upon employee's written request, in respect of payments for any ESOS shares.
    • Deductions upon employee's written request, in respect of payments to a third party on behalf of the employee.
    • Deductions upon employee's written request, in respect of payments for the purchase by the employee of any goods of the employer's business offered for sale by the employer.
    • Deductions in respect of the rental for accommodation and the cost of services, food and meals provided by the employer to the employee 'at the employee's request or under the terms of the employee's contract of service.
  • The total deduction shall not exceed 50% of the employee's monthly wages, unless for:
    • Indemnity payable by an employer to an employee
    • Final payment of the wages of an employee for any amount due to the employer and remaining unpaid by the employee on the termination of the employee's contract of service
    • Repayment of a housing loan (where an additional limit of 25% applied)
  • All wages must be paid in legal tender or direct into bank account.
  • Employer shall not require any female employee to work in any industrial or agricultural undertaking between 10pm and 5am nor commence work for the day without having had a period of 11 consecutive hours free from such work.
  • No female employee shall be employed in any underground working.
  • Every female employee shall be entitled to maternity leave for a period of not less than 60 consecutive days in respect of each confinement.
  • Maternity leave shall not commence earlier than a period of 30 days immediately preceding the confinement of a female employee or later than the day immediately following her confinement.
  • A female employee shall be entitled to receive maternity allowance if she:
    • Has been employed more than 4 months before confinement.
    • Is employed more than 90 days during the 9 months immediately before her confinement.
  • If a female employee dies from any cause during the maternity leave period, her maternity allowance shall be paid to her nominee.
  • The employer cannot terminate a female employee who remains absent from her work after the expiration of the maternity leave as a result of illness related to pregnancy or confinement and certified by a registered medical practitioner, until her absence exceeds a period of 90 days after the maternity leave.
  • Every employee shall be allowed in each week a rest day of 1 whole day.
  • Employee who required to work during his rest day should be double paid.
  • An employee shall not be required under his contract of service to work:
    • more than 5 consecutive hours without a period of leisure of not less than 30 minutes
    • more than 8 hours in one day
    • in excess of a spread over period of 10 hours in one day
    • more than 48 hours in one week
  • For any overtime work carried out in excess of the normal hours of work, the employee shall be paid at a rate not less than 1.5 times his hourly rate of pay.
  • Every employee shall be entitled to a paid holiday at his ordinary rate of pay on 10 gazetted public holidays in any one calendar year, including:
    • the National Day
    • the Birthday of the Yang di-Pertuan Agong
    • the Birthday of the Ruler or the Yang di-Pertua Negeri
    • the Workers' Day
  • Employee who required to work on paid holiday shall be double paid.
  • Employee who required to work overtime on paid holiday shall be triple paid.
  • An employee shall be entitled to paid annual leave of:
    • 8 days for every 12 months of continuous service with the same employer if he has been employed by that employer for a period of less than 2 years
    • 12 days for every 12 months of continuous service with the same employer if he has been employed by that employer for a period of 2 to 5 years
    • 16 days for every 12 months of continuous service with the same employer if he has been employed by that employer for a period of 5 years or more
  • An employee shall, after examination by registered medical practitioner at the expense of the employer, be entitled to paid sick leave:
    • where no hospitalisation is necessary:
      • 14 days in the aggregate in each calendar year if the employee has been employed for less than 2 years
      • 18 days in the aggregate in each calendar year if the employee has been employed between 2 to 5 years
      • 22 days in the aggregate in each calendar year if the employee has been employed for 5 years and above
    • 60 days in the aggregate in each calendar year if hospitalisation is necessary, as may be certified by such registered medical practitioner or medical officer
    • An employee shall also be entitled to paid sick leave after examination by a dental surgeon as defined in the Dental Act 1971
  • An employee who absents himself on sick leave shall be deemed to absent himself from work without permission if he is:
    • not certified by a registered medical practitioner or a medical officer or a dental surgeon
    • certified by such registered medical practitioner or medical officer or dental surgeon but without informing or attempting to inform his employer of such sick leave within 48 hours of the commencement thereof


Click here to read the full Malaysia Employment Act 1955.

71 comments:

keith lee said... Reply To This Comment

Hi, i would like to ask is there any labor law to protect intern student. Is it against the law if intern student work from 8am until 7pm++???

Seeking justice said... Reply To This Comment

Hi! I work 6 hours on Saturdays and 2 hours Thursday evenings in a new language centre. I have given 2 weeks' notice; I have been there for more than 2 months. However, my employer told me not to go in to work anymore on Saturdays. I was told that she still has to pay me for the 2 Saturdays' notice. Please confirm. Thank you.

Sarah Chan said... Reply To This Comment

Hi, my company is deducting my salary for sick leave, even with a medical certificate but paying the medical fees. The reason being is I'm still on probation. Is this even legal?

Voyager8 said... Reply To This Comment

@Sarah Chan

I think you can write or call to MOHR for their advice.

Click the link below:
http://www.mohr.gov.my/index.php/en/feedback-complaints/enquiries-complaints

Angel said... Reply To This Comment

Hi, such as my case. Saturday is a working day for me. I went to a dental clinic for my wisdom teeth. Managed to extract the teeth. Can i apply dental m.c. for my case ?

Voyager8 said... Reply To This Comment

Before you go, you should inform your manager and get permission to leave from work.

You can ask your manager whether you can leave for a while to visit dentist near your office and then get back to work, which is off the record and no need to take leave, or you need to apply for leave officially.

You can get your answer from your manager or HR.

frustrated me said... Reply To This Comment

Hi If I tender in my resignation on the 18 of September, when is my last day of work ? I worked for a year now in this company and I have no more annual leave.

Voyager8 said... Reply To This Comment

@Unknown

You can refer to your appointment letter for your required notice period.

Premmah said... Reply To This Comment

Hi, im hospitalized for about 40days due to pregnancy. I have submitted the letter of admission to hospital to my company HR. They have emailed me saying that I'm not entitled for hospitalizatian leave because its due to pregnacy. Could you please advise.

Voyager8 said... Reply To This Comment

@Premmah

I think you can write or call to MOHR for their advice.

Click the link below:
http://www.mohr.gov.my/index.php/en/feedback-complaints/enquiries-complaints

Vala D.Jackson said... Reply To This Comment

Hello , i curious that if a permanent employee were working for 14 days and decides to quit due to certain problems , will the employee entitled to the 14 days salary ?

Voyager8 said... Reply To This Comment

@Vala D.Jackson

You will need to deduct it with any notice period you are required to serve.

pei yun tan said... Reply To This Comment

Hi. I started work at August 2015, probation 6 months and sign a contract 1yrs. After working 4-5 months,my job is not what I suppose to do as my title of position. I submitted my resignation letter @ email MD @ HR. HOWEVER they told me that in contract no state that "employee have right to give 2 months terminate notice. And ask me pay compensation for next 6 months. Is it illegal to ask my compensation? In contract there are not state. The term of contract r " the term of contract will be for a period of 1 yrs,commencing 5th August 2016. Any extension of the contract shall be of the discretion of the company". They din writen further action or consequences and compensation they will take if employees insist to resign.
If my company write out compensation letter for 6 months salary is it illegal and what should I do?
Thank you.

Voyager8 said... Reply To This Comment

@pei yun tan

If there is no notice period written in your contract of service, then your notice period is 4 weeks as you worked with them less than 2 years.

However, under Malaysia Employment Act 1955, it also states that "Either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service."

So, if you can prove that what they asked you to do is not what as described in your contract of service, you have chance to terminate without serving any notice period.

I think you can write or call to MOHR for their advice.

Click the link below:
http://www.mohr.gov.my/index.php/en/feedback-complaints/enquiries-complaints

pei yun tan said... Reply To This Comment

Tq so much. In the contract also write that" employer have right to give 2 termination notice" so my company argue that only they can give termination notice, me have no right to give them( in contract no state "either party", only XXX company give termination notice...") Is it reasonable for them to say that? I realize this is unfair for me and blame myself din read carefully.

Voyager8 said... Reply To This Comment

@pei yun tan

Have you written to MOHR?

pei yun tan said... Reply To This Comment

I call but no one pick up the phone.

Unknown said... Reply To This Comment
This comment has been removed by the author.
jazz10q said... Reply To This Comment

Hi, my company wants to terminate a confirmed staff who has been worked for 1 full year. The company needs to give her 1 month notice + 10days pay. Am i right? Kindly advise.
Thanks

Voyager8 said... Reply To This Comment

@Hema Malini

I think you can write or call to MOHR for their advice.

Voyager8 said... Reply To This Comment

@jazz10q

You can get advice from your legal adviser. He will tell you what to do and how to write the termination letter in the way that is unchallengeable.


Unknown said... Reply To This Comment

Hi. Does hospitalization leave include weekends?

Voyager8 said... Reply To This Comment

@Unknown

Leave is for working days. You don't need to apply leave in non-working days.

Unknown said... Reply To This Comment

That's what I thought. So, if an employee was given 3 months (October-December) bed rest by a doctor, the 60 days hospitalization leave should cover for almost all of the 3 months, correct? (considering in each month, the number of working day is approximately 22 days). Would it be inappropriate if an employer said the hospitalization leave also includes weekends which means it only covers October and November and for the third month the employee has to use his annual leave?

Voyager8 said... Reply To This Comment

@Unknown

The doctor must specify hospitalization then only can get hospitalization leave. For normal MC you can only get medical leave.

You can challenge your employer by bringing the case to labour office about the calculation.

Anonymous said... Reply To This Comment

Hi,
I would like to clarify about no pay leave. I work with this Co for almost a year. I was advised by HR to applied for unpaid leave due to my earned leave insufficient to cover my total leave. I took leave for eg: 10/2/16 - 15/2/16. 10 & 11 (AL) and 12 & 15 (Unpaid). Later on, i received a letter from HR stating that they will deduct for 4 days pay (12/2 - 15/2/16). 13 & 14/02 was non working day. Is it lawful?

Unknown said... Reply To This Comment

I am working in a logistics firm and was appointed as an operation clerk with a basic salary of RM1000 and allowance of RM200. After 5 years of service i took my heavy driving licence. My manager knew about it and asked me to do driving and i obeyed but delayed giving any offer letter and paid lesser than driver's entitlement. Now he has changed me to office admin work. I objected my transfer by writting to him but he cannot do anything about it because his position is also changed! There were no memo from my company on this changes. What should i do as my income now is much lesser than when i was a driver!

Unknown said... Reply To This Comment

Hi, i would like to ask for two things:
1. Is it lawful for a company to deduct communication allowance less than 2 weeks of notification? Is allowance counted as wages?
2. Im working as a design architect (position), but i am not entitled to get overtime payment. I was told it is because of the position i have in the company and the nature of work as an architect which requires more time to finish a task (not only me but in general). Is there any law stated as such?

Your respond would be much appreciated,

Thank you

Unknown said... Reply To This Comment

If im in internship 6 month today is my first day n tmoro they terminate me coz they said im inform the senior i can work for st 2 months for mon to tues coz i have finish my mqa studies so after 2month i will back as normal off hours unfortunely i already inform the interview person an ealier time when she interview n now she said no i didnt but she said i inform on saturday but saturday they not working.
Ie but they off saturday then y i want to ask for permission
My understand is internship have period of learn so after complete they choice whether they want me to continue or not rite. But now they terminate me without any quiry both side they listen wat my senior said

Nasir said... Reply To This Comment

Good evening,
Appreciate your clarification if the 60 days/year HOSPITALIZATION leave entitlement includes or excludes off/rest days and Public Holidays. My employer says it includes them so its 60 calander days as opposed to 60 days absent from work.

Eric said... Reply To This Comment

Hi

Am I still eligible for taking mc while serving resignation notice period?

Unknown said... Reply To This Comment

Hi there,
I want to know my right as an intern. At my workplace they give me lots of work since first day and since the office located in fourth floor and there is no elevator service i have been told to get down and collect the documents for few times not only that but also with lots of workloads. But still I take it that it is learning process but not until they ask me to throw rubbish and they claim it as it is part of admin job.I don't have any idea what to do.

Voyager8 said... Reply To This Comment

@Ashi

In normal practice, your accumulated annual leave in the year will be prorated until the month.

For example, if you are entitled for 12 days AL, in January your AL is 1 day, in February your AL accumulated to 2 days, in March accumulated to 3 days, and you will get the full 12 days entitlement by December.

Voyager8 said... Reply To This Comment

@Mages Waran

I think you can write or call to MOHR for their advice.

Click the link below:
http://www.mohr.gov.my/index.php/en/feedback-complaints/enquiries-complaints

Voyager8 said... Reply To This Comment

@Michael Tan

You need to refer to your job appointment/offer letter.

Voyager8 said... Reply To This Comment

@malini sebastian

Suggest you to speak to the student couselling department of your college.

Voyager8 said... Reply To This Comment

@Eric


You should take MC if you are sick and not fit to work.

Voyager8 said... Reply To This Comment

@Nasir


Depends on your company's policy. Most are refering to 60 calendar days.

Voyager8 said... Reply To This Comment

@Yuganeswari Kummaran

You have right to say "no" to out of scope duty.

You can get advice from student counselling department of your college.

Unknown said... Reply To This Comment

Hi,

I am currently working in Sarawak and my company has a penalty for tardiness but the deduction comes from my allowance for food. Is it still legal within the Sarawak labour act?

Unknown said... Reply To This Comment

Hi,
I just join a new company and found out they have no paid epf PCb and socso for 7 month. I want to just leave the company without any notice after I find a new job. My question is, the company cannot sue me right?

Unknown said... Reply To This Comment

Hi, I had a question regarding internship. Is actually happen to my friend, I'm just curious whether it is right or not. The situation is they having 3 mths intership period, during the 3 mths internship, they had took 2 days sick leave with MC provided and 1 day NPL for personal issues. At the end of the month, they notice that the company had deducted their salary for 3 days which is fair enough since the offer letter had clearly stated internship are not entitle for any MC of leave. But, the problem is, at the last month of internship, they received notification from their manager. Manager told that they have to extend 3 days of their internship for repalcement because they had taken 3 days leave.
So, I'm curious, why they need to have replacement since the company had already deducted their salary? Is that the company should pay back their salary is they had complete the replacement?
Thanks.

Unknown said... Reply To This Comment

Hi, need your advice. If an employee is on no pay leave as he has fully utilised his annual leave for his personal issue, is he still entitled for rest day? Says,he is on no pay leave from 1/9-10/9/2016, in he still entitled for rest day on 4/9/2016?

Voyager8 said... Reply To This Comment

@Unknown

If you mean the normal weekend rest days, those are not considered as leave and still valid. Gazetted public holidays too.


Unknown said... Reply To This Comment

What if he is a shift worker, which he is rostered as rest day during his no pay leave? As per Sec 59(1) of EA, employee entitled for a rest day in each week.So,it is like after working for a week, we are entitled for a rest day. Since he is not working for that week, aren't we supposed to take out his rest day and just consider him as no pay?Need your advice.

Voyager8 said... Reply To This Comment

@Cassandra

Section 59(1) says "every employee shall be allowed in each week a rest day of one whole day as may."

It doesn't say "after working for a week".

Section 59(2) says the rest day for ALL employees (which means, including shift workers) should be fixed before the commencement of the month. This is the responsibility of the employer.

Section 59(3) says that the rest day records need to be kept by employer for 6 years for inspection.

Section 59(4) says it is an offence of the employer if any part of this Section 59 is not followed.



Taurus Man said... Reply To This Comment

Thanks for your reply Voyager8.Really appreciate and have a nice day!

Unknown said... Reply To This Comment

Hi. Need your advice. I am a scholar and my employer did not informed me that I have to work on weekend when I am employed, only after agreeing to the contract and the position they told me that I need to work on weekend. They put me on duty during weekend even though I've told them I can't come, changed my schedule without consulting me first, now they even deny me any off day during weekend and I can only take replacement leave during weekdays for my rest day. Can this be a case to fight for? If I breach the contract I will have to pay them penalty, so I would like to fight using any strong reason I have to waive that penalty.

Voyager8 said... Reply To This Comment

@limau ais

I think you can write or call to MOHR for their advice.

Click the link below:
http://www.mohr.gov.my/index.php/en/feedback-complaints/enquiries-complaints


Unknown said... Reply To This Comment

Advice please....family member signed 2 year teaching contract in KL.Was very unhappy, felt got no support from school and realised she could not stay.Other teachers advised her just to leave as opinion was that head of school could make problems if she handed in notice..so she left country, and letter plus reimbursment of air fare in locker.e mailed school once out of country,She is still close by in neighbouring country and planning to fly home next week,She has just received e mail from school informing her that all relevant authorities and police have been informed that she has absconded,Can she be detained and stopped when she tries to leave Thailand? The school have yet to get the neccessary work permit

Voyager8 said... Reply To This Comment

@karen mackay

This is unprofessional conduct. Should resign properly.

nudisx said... Reply To This Comment

Advise needed,

My employment contract 13 Dec 2016 till 13 Feb 2017.

In the contract a clause for site allowance. Which the Company will paid by 20th of the month.

But the Company fail to pay on the date.
For Dec 2016, site allowance, the Company paid on 17th Jan 2017.
And agin, this month also they failed to paid.

I did ask why the allowance not paid yet. And they never reply my message or email.

So what should I do?

Voyager8 said... Reply To This Comment

@Madi Karlos

You should have direct face to face discussion with your manager or HR.

WING said... Reply To This Comment

advise needed:
i have tendered and my last day on letter is 23/2/17. i still have 6 days al balance but not allowed to clear.if i absent for my last 4 days in my old company bcs my new job start on 20/2/17,what is the consequence? do they have the right to not pay my last month salary? thx

SkyIte said... Reply To This Comment

Advice needed:
I hve been working for this company H&M for 3 years. Suddenly they force me to resign, if not resign Final Warning Letter & Termination will be given. The reason is 'my job performance not consistence'. I ask for 1 month to improve my job performance but yet they dont give any chance. I was force to write a handwriting resignation letter at the same day i was force to leave. Actual date of the resignation is on 24 Jan, 2017. End of January i still got full salary without any AL paid. But I think i still entitled or should get my full salary with AL on February 2017. Is this even legal if the company say they 'waive' my salary&AL for Feb because they say no need to serve/tender 1 month notice of resignation. Can i claim any compensation?is the AL count as pro-rate or can i got in whole years 2017?thanks

Jiahuanq said... Reply To This Comment

Advice needed:

My internship period is 12 weeks from 7th Feb to 30th April. However, I'm terminated by the company at 27th Feb, which mean I've worked for 18 days included Saturday for the company. Wanted to ask whether internship is under employment act? Can I claim back my allowance for only 18 days? Thank you.

Unknown said... Reply To This Comment

Hi, i understand if a staff is awol for two days, he is considered to breach the contract, i want to know if we can hold his salary until he returns all company asset. He resigned but the last day in a month time but had shown no show since he tender. What action can we take against him?

Voyager8 said... Reply To This Comment

@Kevin Teh

You should continuously issue warning letter, and get your company lawyer to issue lawyer letter to claim the company asset and any other losses.

Voyager8 said... Reply To This Comment

@WING

You should talk with your new company.

Some company will help you settle, including paying compensation to old company for you if needed.

Voyager8 said... Reply To This Comment

@Andrew John

I think you can write or call to MOHR for their advice.

Click the link below:
http://www.mohr.gov.my/index.php/en/feedback-complaints/enquiries-complaints

JenNice said... Reply To This Comment

hi, my employer did not deduct for my pcb. what can I do?

Voyager8 said... Reply To This Comment

@JenNice

Check with your HR.

Maybe your salary level does not need to pay tax.

Unknown said... Reply To This Comment

I resigned and i got extra 8 days leave at the end of my working day. Is that correct use 8 divide by 31 for the pay. I had faced this during new enter as well.

Voyager8 said... Reply To This Comment

@Unknown

Most companies will give you 8 days earlier release for your last day.

Unknown said... Reply To This Comment

But my working days just 26 days instead of 31 days

Unknown said... Reply To This Comment

Advice needed:
I have tendered in my resignation letter. The last day of the month (31/3/2018) falls on a weekend and hence my last day of going to work is on friday (30/3/2018). However, my company has deducted my salary for one day short because they say that my last day is on 30th and not 31st.
Can I know if there is any law that says that the company has to pay a full month salary even if the last day of the month is on a weekend

Anson said... Reply To This Comment

Hi, is Hospitalisation Leave included weekends? There are a lot of comments stating that in Section 59 - Rest Day of The Employment Act, when there is sick leave (hospitalisation leave) fall on rest day, it would be calculated as leave taken and will need to deduct your leave.

Voyager8 said... Reply To This Comment

@Anson

Rest days should not be included.

Anson said... Reply To This Comment

Hi Voyager, what is actually mean by Section 59 (Rest Day) in the act. Under Sec59(1), it's stated that this subsection shall not apply during the period under Sick Leave. A lot of commentors in Discussion Website stated this Sec59 is the law to state that Hospitalisation Leave should deduct also Saturday & Sunday, some even stated Hos.Leave on Public Holiday also should have deduct from the 60days as well. If the employer really want to deduct salary of overuse of 60days Sick+Hospitalisation Leave, what is the best way I can seek for proper advisory?

Voyager8 said... Reply To This Comment

@Anson

You can seek for advisory from MOHR.

There is one kind of leave, namely maternity leave, which simply counts by number in calendar days or simply number of months, regardless of weekends, holidays, rest days, election day, etc.

However, calculation of sick leave and hospital leave should be based on working days instead of calendar days.

Take example of school teachers and students, if you are on school term holiday and you fall sick or hospitalized in some days during the term holiday period, you are not required to apply for sick leave or hospitalization leave, and therefore there is no process to deduct your leave for that situation.

However, if you are a mother on maternity leave, normally you are expected to report to work when your newborn reaches the age of 3 months old (or 2 months old for companies that still follow the old law - new one not in force yet). In the law, the term used is "consecutive days".


Anson said... Reply To This Comment

Hi Voyager,

I have just check with MOHR. The lady who spoke to me stated that Hospitalisation Leave should be treat the same as Maternity Leave which is count continuously regardless Weekend or Public Holiday. I have further argue that in the Employment Act stating that Sick Leave (which Hos. Leave fall under this term) which fall under Public Holiday, the employee should grant a replacement of AL. However, the Lady informed that this rule only apply to Cukit Sakit, not Hos. Leave. Malaysia Laws is much more different that Singapore one which Singapore has stated very clearly that Hos.Leave only apply on workings day.

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