17 workers’ victory against unfair dismissal amidst Covid-19 pandemic.

Seventeen former staff of Mandarin Court Hotel, Kuala Lumpur formed part of Malaysia’s surge in unemployment which rose to 4.6% in 2020. The global pandemic due to Covid-19 was the primary cause of the surge, as it was for the Mandarin Court Hotel (hereafter, MCH) workers who had their employment terminated after having worked with the company for more than a decade.

The beginning of their termination started at the announcement of the first lockdown in March 2020 when the administration of MCH had forced all staff into taking unpaid leave for a period of two (2) months with the promise of returning to work in June 2020. The term “forced” is used because there was no option given to the staff other than being terminated if the unpaid leave was not taken.

May 2020 marked the end of their employment with MCH which saw Termination Letters effective beginning 01.06.2020 and one months’ salary for the month of June 2020 as the notice period’s salary. There began an uphill battle for the workers of MCH, battling unemployment in the middle of a global pandemic without any damage control measures taken by their company to aid them. However, in striving towards their rightful compensation, the workers of MCH proceeded to file their complaint with Pejabat Tenaga Kerja, Kuala Lumpur against their former employer, Mandarin Court Hotel.

The company failed to compensate their terminated workers with lawful termination benefits as provided in Peraturan 3(1), 4(1) & 4(2) Peraturan-Peraturan Kerja (Faedah-Faedah Penamatan dan Pemberhentian Kerja Sementara) 1980, Akta Kerja 1955 wherein they were only paid the notice salary equivalent to one (1) month’s pay and nothing further. The termination of MCH’s workers was also a perfect case study for failing to comply with the Ministry of Human Resources’ guidelines regarding workers’ termination or lay-off with reference to the “Garis Panduan Pemberhentian Pekerja” or the “Code of Conduct for Industrial Harmony”which very clearly spells out that termination must only be done in genuine situations with the priority of avoiding or minimising termination of workers as follows:

Pertama, alasan perniagaan majikan terjejas akibat COVID-19 hendaklah genuine dan bukan sengaja diada- adakan. Kedua, majikan dikehendaki untuk mengambil langkah-langkah bagi mengelakkan pemberhentian kerja terlebih dahulu seperti mengurangkan waktu kerja, menghadkan atau membekukan pengambilan pekerja baru, menghadkan kerja lebih masa, menghadkan kerja pada hari mingguan atau cuti am, mengurangkan gaji pekerja, melaksanakan pemberhentian bekerja sementara (lay-off). Ketiga, sekiranya pemberhentian kerja tidak dapat dielakkan, pekerja-pekerja asing perlu ditamatkan terlebih dahulu. Sekiranya pemberhentian melibatkan pekerja tempatan, Prinsip LIFO (Last In First Out) hendaklah dipatuhi. Walau bagaimanapun prinsip ini boleh diketepikan sekiranya majikan mempunyai justifikasi kukuh.”

In the case of the MCH workers, no discussion was held with the workers to discuss efforts to minimise losses while retaining the workforce. Instead, they were forced into taking unpaid leave for a period of two (2) months and eventually being terminated from employment. There were no steps taken by MCH in the likes of rotational work basis, reduced work hours or even reduced salaries among various other methods to prevent termination which should have been the last resort. Further to that, the hotel industry had been listed in the essential services sector albeit only for the purpose of quarantines throughout the lockdowns in 2020. However, MCH had chosen to suspend operations. In doing so, they had unilaterally decided to terminate the workforce.

The case was handled by PSM lawyer, Kohila Yanasekaran and assisted by Nivetha Sri Shanker (Pemuda Sosialis), who fought the company relentlessly to get a proper compensation for the affected workers. The Pejabat Tenaga Kerja, Kuala Lumpur, on 30.09.2021 decided in favour of the workers of MCH that their termination of employment was both unlawful and unsound. In doing so, the workers were not only compensated with a 2 months’ salary as initially demanded by the workers directly from the administration. Each worker was also ordered to be paid compensation according to their years of service, as their rightful termination benefits.

A deserving win and a clear message to the upholding of employees’ welfare in the midst of a global pandemic forms the crux of this hard-earned Victory. May the fighting spirit of the MCH 17 prevail as hope for all workers.

Hidup Pekerja, Hidup Perjuangan!

Nivetha Sri Shanker.
04/10/2021

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