Employment Law Part 2

Even though the Employment Act 1955 (EA) spelled out some minimum terms of employment, more often than not, the individual contract of employment will have a better, if not similar, terms of employment than the EA. Amongst others, the EA provides that: -

Notice period to terminate the employment– those who are employed for less than two years, the notice period is four weeks, those who are employed for more than two but less than five years, the notice period is six weeks while those who are employed for more than five years, the notice period is eight weeks. However, such notice period is not applicable in the event that the termination takes place as a result of breach by any party. If the breach is by the employee (which is serious enough to warrant dismissal), the employer may then dismiss the employee with immediate effect (of course after due inquiry is held). On the other hand, if the breach is by the employer, the employee may either refer the case to the Industrial Relations Department and still remain as an employee or walk out from the employment on the basis of constructive dismissal and lodge a complaint with the same department.

Contract deemed to be broken– A contract is deemed to be broken, by the employer if the employer fails to pay wages or by the employee, if the employee has been absent from work for more than two consecutive working days without prior leave from the employer unless the employee has reasonable excuse or has informed or attempted to inform the employer of his absence. In this case, the reasonable excuse may include but not limited to be admitted to hospital, involved in car accident, etc. However, with the advance telecommunication technology nowadays, there shall be no excuse for an employee not to inform his employer of his absence.

Payday– Every employer must pay the salary to its employees not later than the 7th day of the following month.

Paid maternity leave– Every female employee shall be eligible for sixty days paid maternity leave provided that the following two conditions are fulfilled: -
(a) she has been employed by the employer at any time in the four months immediately before her confinement; and
(b) she has been employed by the employer for a period of, or periods amounting in the aggregate to, not less than ninety days during the nine months immediately before her confinement.

The two conditions means if the female employee commences her confinement on 1st of October, she must be in the employment at least on the 1st of June and during the period of nine months before her confinement i.e. at least on the 1st January until 1st of October, she must be in the employment for aggregating period of not less than ninety days.

Notwithstanding the above, the female employees’ eligibility for paid maternity leave shall ceased if at the time of her confinement, she has five or more surviving children. The key word here is “surviving”. So, if the female employees have given birth for more than 5 times but at the time of her next confinement, 4 or less of her children still alive, she is still entitled for the paid maternity leave.

Annual leave - those who are employed for less than two years, their annual leave entitlement is, eight days, those who are employed for more than two but less than five years, the annual leave entitlement is twelve days while those who are employed for more than five years, the annual leave entitlement is sixteen days.

Annual Medical Leave – (Out-patient) those who are employed for less than two years, the outpatient annual medical leave entitlement is fourteen days, those who are employed for more than two but less than five years, the outpatient annual medical leave entitlement is eighteen days while those who are employed for more than five years, the outpatient annual medical leave entitlement is twenty-two days.

(In-patient) Every employee is entitled to sixty days in-patient annual medical leave regardless of his number of years of service.

Notwithstanding the above, the maximum combination of out-patient and in-patient annual medical leave shall not be more than sixty days. In computing the annual medical entitlement, priority should be given to the in-patient medical leave over the out-patient medical leave. For example, if the employee’s entitlement for out-patient annual medical leave is twenty-two days and during one particular calendar year, he is hospitalized for a total of fifty days, his entitlement for out-patient medical leave for that particular year shall be ten days instead of twenty-two days.

As mentioned earlier, the above are only the minimum terms of employment provided for in the EA. However, in view of Section 7A of the EA (as discussed in Part 1), employer shall be at liberty to offer better terms (and definitely not less) than those stated in the EA.

Meanwhile, Section 7B of the EA provides that any employer is also at liberty to offer any terms of employment, which is not provided for in the EA.