Industrial Laws Will Protect The Foreign Workers

The Industrial laws will protect the foreign workers.  Many companies will take advantage of the Covid-19 pandemic to retrench or to sake the foreign workers because of less income coming in for the company.

The Industrial Relations Act 1967 is one piece of legislation which protect the industrial harmony in Malaysia.  It is a tribunal of good conscience which regulate disputes between workers and employers including local and foreign workers local and foreign companies.

In one decided case called Muhammad Ishfaq v Indrasit Holdings Sdn Bhd [2009] 1 ILR 330, the court decided in favour of the Pakistani citizen who had been working with the company since 22nd December 2006 as a gardener.  

What has happened in Muhammad Ishfaq's case is that the company failed to pay his salary from from the date of appointment to 4 May 2007.  The company further failed to provide any work for him and did not take care about his welfare.

The court decided in favour of the worker and awarded him salary, backwages and one month's salary in lieu of reinstatement amounting RM24,000.

In conclusion, Malaysian laws treats foreign workers equally with Malaysian workers.

Ramu

Government, are they liable for the deadly, Coronavirus?

The Coronavirus or Covid-19 pandemic had made the world in a standstill.  All government of the world had introduced a partial lockdown or a total lockdown.

In Malaysia, the government had introduced a partial lockdown called "Movement Control Order" or "MCO".  Anyone who violates the rule he or she can be liable for a maximum fine of RM 1,000.00, or can be given a jail term of maximum of 6 months or both.  This is the only practical way to break the chain for the virus to spread to others.

In Malaysia, it is not a total lockdown but you can go out to buy food or medicine, within the time limit given by the law.

 Many people out there knows that the Covid-19 is a virus which can be transferred to human to human.  A human can get the virus by touching some surface which was touched by another human being who got the virus.  Covid-19 is a deadly virus and there is no vaccine found for now.

Main reason for this writing is to ask and explore in the law of tort to see whether can the government or the Ministry of Health /  "MoH" be liable in negligence or does it owe a common law duty of care if both agencies failed to control the Covid-19 and causes harm, death or disability  to the people.  Can you make the government or the MoH liable to pay daamages?

In a case called Master Brisbane Itang v Robinson Lee & Ors [2014] 1 CLJ 726, a Court of Appeal case, a decision delivered by Hishamudin Mohd Yunus JCA  dismissing the appeal.  He was of the opinion that the government or the  MoH got no duty of care to ensure that the person who got infected with a dangerous virus, the Japanese Encephalitis or "JE" virus, should be given the immunisation at the soonest as per government circular, to avoid the spread of the virus to a pupil aged 10 boy, a plaintiff in this case.

The 10 year old boy got the JE virus when he was schooling near to a pig farm.  The 10 year old boy believed, got the JE virus from the pigs which can be transmitted to human beings via the culex mosquitoes.

As a result of the JE virus the boy had suffered brain damage, permanent disability and required a lifetime of care.

The boy put forward an argument that the government and the MoH owes him a duty of care whereby there was a government circular to say that people in that infected area should be given immunisation to avoid the JE virus. The government or the MoH did not so for the 10 years old boy.

The court was of the view that if a duty of care is imposed in these kind of cases it has a far reaching implications  and would open the floodgate of litigation against the government or the MoH.

Back to our recent problem of Covid-19 now, can you file a civil suit against the government or against MoH for not to putting down the deadly virus soon which can cause serious harm to a healthy  person or even death?

Time to  develop the law. 

What if the Covid-19 is still a threat to the common person, he or she is given instructions by some government departments or private institutions to work, and get infected during the course of work, can he or she suit for damages, breach of duty of care? My view is that you can do so.  Knowing the virus is a deadly one and so far there is no proper medication found in the medical profession, you are putting someone at risk that might course serious damage financial or death to the person.  

Something to think, people.  Interested, please call me.

Ramu

The right of the employer to manage their own company and retrenchment

The employer has the right to manage his or her own company as long it is done in bona fide or in good faith.  They are to run the company as per to the law and to maintain industrial harmony between the employer and the employees.

In the case of William Jacks & Co (M) Bhd v S. Balasingam [1997] 3 CLJ at the Court of Appeal, his Lordship Gopal Sri Ram JCA were of the view:-

"Whether the retrenchment exercise is bona fide or otherwise, is a question of fact and of degree depending for its resolution upon the peculiar facts and circumstances of the case.  It is well settled that an employer is entitled to organise his business in the manner he considers best.  So long as that managerial power is exercised bona fide,  the decision is immune from examination even by the Industrial Court,  However, the Industrial Court is empowered, and indeed duty-bound, to investigate the facts and circumstances of a particular case to determine whether that exercise of power was in fact bona fide".

The company can introduce any scheme in the best interest of all parties in matters of finance, productions, items that need to be produced, to make the company profitable.

There are times when the company might face a downturn of not making money and going down hill, running  a loss. Because of the loss,  the company might turn to retrenchment exercise. 

Many companies might be looking into the retrenchment exercise to cut their losses, not to create further debts or to avoid winding-up action now because of the Covid-19 and the Movement Control Order or "MCO'.

The key word is whether the company can do it and if they can do it, it must be done in a bona fide manner or in good faith.  Industrial harmony must be maintained.

Wait for my next post.

Ramu