Saturday, June 28, 2008
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The Selangor government had issued a letter said to be the termination of service of the Vice Chancellor of the state owned University of Industry Selangor (UNISEL). The VC, Datuk Dr Mohd Razali Agus was the second head of a state-owned establishment to have his services terminated in three weeks after the Director of Selangor Museum who was given the marching order barely about five (5) months prior to the expiration of her contract.
Click here http://thestar.com.my/news/story.asp?file=/2008/6/14/nation/21552267&sec=nation and here http://thestar.com.my/news/story.asp?file=/2008/6/15/nation/21559671&sec=nation
According to Khalid Ibrahim, the reason for early termination was to give way to young and fresh ideas in its exhibition methods. Really? When asked on his opinion whether a person who has reached 60 years of age (Maimunah was 60 when her contract was prematurely terminated), could still contribute the idea, Khalid had said that “Of course they can but naturally young people will have a 10-year plan while a 60-year-old has a one-year plan. I don’t want the museum’s officers to be its own artefacts."
Let me discuss the termination issue from legal and moral point of view. Under employment law, Maimunah's contract with the state government was said to be a Fixed Term Contract (Employment), which simply means that a contract is entered into between two (2) parties whereby one (1) party agrees to serve the other party for a stipulated fixed time or upon completion of certain project, if the first party was hired on project basis. In this case, Maimunah entered into a two (2) years fixed term contract. Under a normal fixed term contract be it on project basis or for a specified period of time, either party may terminate the contract by giving the other party a notice to that effect. However, in employment law, termination clause, though provided in the contract is not enforceable against the employee, in this case, it is Maimunah. If the employer, in this case Selngor State Government wanted to terminate the agreement, they must have a justified reason otherwise it shall be deemed as an unjust dismissal. Among others, justified reasons are if the employee breaches any of the fundemental terms of the contract or commit serious act of misconduct. In this case, Khalid was reported to have said that the reason for termination was to give way to young people who would have a better fresh idea as compared to Maimunah who might only be able to plan for one (1) year. It is for the state government to prove that Maimunah could only plan for one (1) year and that her successor can really plan for ten (10) years. If Khalid is unable to prove that, then the termination was a wrongful termination. But from the surface of the case, I can tell you that this is a clear cut case of wrongful termination.
Now, after having considered the termination to be wrongful, what are the legal remedies available for Maimunah against the state government? The only legal redress that Maimunah can seek from the state governmet is only her remuneration for the balance of the contract period at the point of her termination. And with the government has already stated its willingness to compensate Maimunah, here is no more legal avenue for Maimunah against the state government, as what the state government did and going to do are within their legal rights. Further, the Court does not hear issues on moral grounds.
On the same note, State Islamic Affairs, Malay Customs, Infrastructure and Public Amenities chairman Datuk Dr Hassan Ali was reported as saying that Maimunah was not sacked or terminated but had to be removed as she had reached the age of 60. I respect Dr Hassan Ali for his Islamic knowledge but in this case, I beg to differ. When we talk about fixed term contract, age is totally not a factor. It is very common nowadays for an employer to rehire its employees who have retired after reaching the retirement age on contract basis and such contract is called fixed term contract as I discussed earlier. That is why I said, when an employer hires an employee on fixed term contract, age should not be a factor. So, I regard Dr. Hassan Ali's statement as a statement made out of ignorance and with no basis at all.
From moral point of view, the state government should have been more appreciative in dealing with any individuals, be more sensitive and dealing in a very respectable manner so as not to cause any humiliation on the other party vis-a-vis the pride of the other party. What the state government could do was to just let Maimunah's contract to expire in five (5) months time. I did not think so that the state Museum was in dire needs to be revitalised and so urgently that they need a ten (10) years plan until they thought that five (5) months was too long a time and they just could not wait. Further the statement by Khalid Ibrahim that "I don’t want the museum’s officers to be its own artefacts" was uncalled for and not expected to come from someone sitting in a very respectable position. As a Menteri Besar and a former CEO of a GLC, Khalid should be more mature in dealing with such an issue and be extra cautious in passing any remarks. His statement was an insult to Maimunah and those employees of the museum. If Khalid thought Maimunah was too old for the position of Director of Selangor Museum at the age of 60, I think that Khalid Ibrahim, at 61 is too young to be the Selangor Menteri Besar.
While what the state government did was morally wrong, on the other hand, it was legally right (provided that they compensate Maimunah for the remaining period of her contract). As such, there is not much that Maimunah can do to seek legal redress in the Court of Law, as our Court deals ony with legal issue and not moral issue.
Dr. Mohd Razali's Contract
It was alleged by Dr. Razali that he received a letter of termination and there was no reason given. In his case, I am not sure whether it was a normal contract of employment (permanent in nature) or a fixed term contract (as discussed above) but looking at the statement by Khald Ibrahim when he talked about probation period, I believe that it is a normal contract of employment (permanent basis), as there should not be any probationary period in the case of fixed term contract.
According to Khalid, in Dr. Razali's case, it was not a termination but just a letter not to confirm Dr. Razali's position of VC of UNISEL at the end of his probationary period. In dealing with a probationery issue, the law recognise the right of a probationer to be similar as those of confirmed employee, i.e. in term of termination. What it means is that a probationer's contract of employment can only be termnated for just cause and excuse. If the employer, in this case the state government thinks that the probationer's performance during probationary period does not reach the minimum acceptable level, then the employer has every right to bring the contract to an end by not confirming the position provided always that the probationer has been duly notified of his/her weaknesses and ample opportunity has been given for the probationer to improve.
In this case, Khalid was reported as saying that Dr. Razali's probationary period was extended by the previous BN government and he assumed that the extension was given because the previous government did not satisfy with Dr. Razali's performance. There are normally two (2) reasons for extension of probationary period is given i.e. unsatisfactory performance or the employer needs more time to evaluate the performance of the probationer. That notwithstanding, since the state government has decided not to confirm Dr. Razali's position as VC of UNISEL, then the state government is duty bound to prove that every opportunity has been given for Dr. Razali to improve and that Dr. Razali has been duly notified of his shortcomings. If the state government fails to prove these two (2) elements, then the act in not confirming the position of Dr. Razali can be said to have been made in mala fide (bad faith), thus, wrongful termination. The fact that someone is under probation does not simply emplower the employer to bring the contract of employment to an end at the end of the probationary period.
A very interesting point to note is that Dr. Razali was a deputy vice-chancellor at University of Malaya for over four years prior to his appointment as a VC at UNISEL. I understand that a VC position is higher then the Deputy VC but looking at the scale of the two (2) institution, University of Malaya is much bigger as compared to UNISEL. In a way, it may also be presumed that the scope of responsibility of a Deputy VC in University of Malaya may be similar to that of a VC of UNISEL.
In conclusion, we need to be more sensitive with what we are doing especially if it involves the pride of others. What we think legally right may be morally wrong. In some situation, the moral issue supersedes the legal issue.