Nov 24 2008, 06:07 PM
If they feel that they should 'makan sendiri' they would not have started this post.
TS there's some avenues that might be helpful AND UNLIKE what some may have posted it may not be as High as they make it seem.
No doubt you might not get all of it back, but rather than 'makan sendiri' wouldnt you want to ensure you are done right by ?
At the very least, the very mention of court to your former employer will make him think twice on his reputation and time.
Follow it through and you might get all if not some back. At the very least if you win, even without anything, at least the satisfaction that you were not wronged.
Here's some avenues for you.
Employment Law Disputes
WHAT IS A DISPUTE ?
A dispute being referred to as trade dispute under the Industrial Relations Act 1967 means any disagreement between the employer and workman or employee which is connected with the employment or non-employment or the terms of employment or the conditions of work of such workman or employee leading to industrial action.
The Industrial Relations Act 1967 governs the relationship between employers and workmen or employees and their trade unions and generally deals with trade disputes.
WHAT DOES THE INDUSTRIAL RELATIONS ACT 1967 PROVIDES ?
The Industrial Relations Act 1967 is applicable throughout Malaysia and provides for the regulation of relations between employers and workmen or employee and their trade union and the prevention and settlement of trade disputes.
This Act emphasizes on direct negotiation between employers and workmen or employees and their trade unions to settle their differences and to regulate their collective relationship and to settle any dispute arising therefrom through their own effort and through mutually agreed procedures with minimal government intervention.
Where the government intervention is necessary, such intervention will be confined mainly to providing a legal framework to which the parties can turn to if they so wished.
Under the Industrial Relations Act 1967, the legitimate rights of employers and workmen or employees and their trade unions are protected.
This Act also provides the procedure relating to submissions of claims for recognition and scope and representation of trade union and collective bargaining.
Under this Act, matters relating to promotion, recruitment, dismissal, transfer, retrenchment, reinstatement and allocation of duties and prohibition of strikes and lockouts over any of these matters are not allowed to be included in the proposal for collective bargaining.
Where direct negotiation between employers, workmen or employees and their trade unions fails, this Act provides for speedy and just settlement of trade disputes by conciliation or arbitration
This Act provides the power to the Ministry of Human Resources to intervene and to refer at any stage any trade dispute to the Industrial Court for arbitration.
After a trade dispute has been referred to the Industrial Court and on any matter covered by a collective agreement or by an award of the Industrial Court, employees or workmen are not allowed to declare strike or lockout.
Collective agreement means an agreement in writing concluded between an employer or a trade union of employers on one hand and a trade union of workmen or employees on the other, relating to terms and conditions between the two such parties.
This Act makes it an offence for any person to give financial aid in direct furtherance or support of any illegal strike or lockout. Such offences are seizable in nature and no bail shall be granted.
Peaceful and orderly picketing in furtherance of a trade dispute is permitted under Part IX, section 20 of the Industrial Act 1967 provided that such picketing is carried out at or near the place where a workmen or employee works and where a trade disputes exists. It will be illegal however for one or more persons to attend at or near a place of employment where a workmen works if such attendance is, by nature of its manner or number, calculated to intimidate any person in the place or to obstruct the approach thereto or egress therefrom or to lead to a breach of the peace.
Award means an award made by the Industrial Court in respect of any trade dispute or matter referred to it or any decision or order made by it under the Industrial Relations Act 1967. An award of the tribunal is final and legally binding on the parties to the dispute.
Unless approved by the Ministry of Human Resources, collective agreement cannot contain better terms of employment than those stipulated under the Employment Act 1955.
Part IV, section 15 of the Industrial Relations Act 1967 provides the protection of pioneer industries during the initial years of their establishment for a period of at least 5 years from the date of commencement of operation in Malaysia against any unreasonable demands from a trade union.
You can also perhaps file on Small Claims to your Former Employer Depending on the Situation.
Small Claims Link
WHAT ARE SMALL CLAIMS ?
In Malaysia, small claim proceedings are heard in the Magistrate Court.
Small claims are governed under the Order 54 Small Claims Procedures of the Subordinate Courts Rules 1980.
The Magistrate Court will handle disputes between individuals or an individual making a claim against a business.
Your claim can be filed under the Small Claims Procedure if the amount in dispute or the value of the subject-matter of the claim does not exceed RM$5,000.00.
CAN I BE REPRESENTED BY AN ADVOCATE OR SOLICITOR ?
No. But you can consult a lawyer.
No party in this proceedings can be represented by an advocate or solicitor, except where the defendant is required by the laws to be represented by an advocate or such other authorized person.
No party is entitled to recover any advocacy costs to the proceedings from any other party to the proceedings.
IS IT COMPLICATED TO TAKE A CASE TO SMALL CLAIMS PROCEDURE ?
Small Claims Procedure is a very simplified procedure.
Nevertheless, those who are unfamiliar with the process may find it quite complicated.
Furthermore, words such as "judgment debtor", "defendant", "judgment", "hearing" and "adjourn" are considered legal jargon to most individual.
DOES IT MAKE SENSE TO FILE IN A SMALL CLAIM ?
It depends on the unique facts and the circumstance of your situation.
Before filing a small claim you should try to settle the matter on an informal basis including sending a formal written demand to the other side.
You should consider whether it is worth your time and effort and mental anguish involved.
An important issue you should take into account is the possibilities of collecting the money from the defendant if you win.
Finally, you should look into the impact on your future relationship with the other side.
HOW MUCH IS THE COST TO FILE A SMALL CLAIM ?
All you have to pay is the filing fee to start the action.
The filing fee to file in a Small Claim is only RM$10.00.
You may also need to pay for prepaid register postage if you are effecting the service of Form 164 by post.
Where you consult a lawyer, you will need to pay for advocacy costs.
HOW DO I START A SMALL CLAIM ACTION ?
It does make sense to go to the Magistrate Court nearest to where you reside or where the person you want to sue resides or where the accident occurred, to file in a Small Claim.
Obtain Form 164 - Summons Form from the Court Registry Clerk. The form is given free of charge.
In the first part of the form, fill in your full name, address and Identity Card number.
You should then state the full name, last known address and Identity Card number of the defendant or the person you wanted to sue in the second part.
In the third part, you must state the exact amount claimed and the particulars of your claim. The particulars must state the relevant date and how the claim has arisen or what is the basis of the claim.
Having filled in the particulars, the form must be signed or right thumbprinted by you personally.
Having completed the form, you must file in the form in 4 copies in the Registry of the Second Class Magistrate's Court. You will be required to pay the filing fee of RM$10.00.
The Registry will put the seal of the Court on the 4 copies of the form and fill in the hearing date.
A copy of the form will be returned to you.
WHAT SHOULD I DO AFTER THE FORM 164 IS SEALED BY THE COURT ?
You should serve the copy of the form duly sealed by the court on the defendant.
The service of the form must be effected by
* personal service or
* prepaid registered post addressed to the defendant's last known address.
Once the defendant received the form, he or she should be aware that your are suing him or her.
Instruction and order to the defendant are stated in the sealed form.
You and the defendant will be requested to appear in the Court on the trial date stated in the sealed form.
WHAT HAPPENS IF MY DEFENDANT DENIES OR DISPUTE THE CLAIM ?
Dispute may refer to a situation where the defendant disagree with the claim amount you filed in or question the truth of the statement of your claim.
Where the defendant being duly served with the sealed Form 164 disputes the claim, he or she must file in a statement of defence in Form 165 - Statement Of Defence/Counter Claim Form before the date stated in the sealed form.
Form 165 is given free of charge.
Form 165 must be filed in 4 copies and before the date stated in the sealed form which is normally 14 days after the service of claim.
The defendant will have to fill in the particulars as to why he or she disputes the claim.
If the defendant counterclaim, he or she will have to state the amount and the particulars of the counterclaim in the form.
Counterclaim means the defendant is in the opposite manner making a claim on you.
Form 165 must be signed or right thumbprinted by the defendant personally.
Form 165 must then be filed in the Court Registry and he or she has to pay RM$10.00 for filing fee.
The Registry will put the seal of the Court on the 4 copies of the Form 165 and return a copy to the defendant.
The defendant will then serve the copy of the sealed Form 165 to you by
* personal service or
* prepaid registered post addressed to your last known address.
Thereafter, the defendant must appear in the Court on the trial date and time shown on the sealed form if he or she does not agree with your claim.
To support the defendant case, he or she should bring all witnesses, books and other papers.
DO I HAVE TO DO ANYTHING IF I DO NOT ADMIT THE DEFENDANT'S COUNTERCLAIM IN FORM 165 ?
Yes.
Where you have been duly served with Form 165 and there is a counterclaim and that you dispute the claim, you must file in Form 166 - Defence to Counterclaim Form.
Form 166 is given free of charge.
You must state the particulars as to why you dispute the counterclaim in Form 166.
Thereafter, you have to sign or right thumbprint the form personally.
You should then file in the form in 4 copies in the Court Registry and pay a filing fee of RM$10.00.
The Registry will put the seal of the Court on the 4 copies of the form and return to you a copy.
WHAT HAPPENS DURING THE HEARING OR TRIAL DATE ?
Trial for Small Claim is a simplified procedures and will not be like a trial you normally see on television.
If both parties do not appear on the hearing, the action may be struck out, without prejudice, however to the restoration thereof, on the direction of the Judge.
An application for restoration must be made within 14 days of the hearing.
Where an action is restored, notice of restoration in Form 73 must be given by the Registrar to the parties.
If the defendant does not file in his or her defence or counterclaim in Form 165, the Court may give judgment in Form 167 for you, the plaintiff, on the hearing date or may in its discretion adjourn the hearing to enable the defendant to file his or her defence.
If the defendant admits the claim in the statement of defence, the Court will give judgment in Form 170.
Where you the plaintiff appear, the defendant is absent and on proof of service, the judgment to be entered shall be in Form 168. The Court may also dismissed the counterclaim with costs, if the defendant has a counterclaim.
Where the you the plaintiff are absent and the defendant appears, the Court may dismiss the action with costs if the defendant has no counterclaim. The Court may also give judgment for the defendant on his counterclaim if the defendant has counterclaim. This judgment to be entered shall be in Form 169.
Where both parties appear at the hearing of the matter before the Court, the Court shall where possible assist the parties to effect the settlement of a case by consent. Judgment by consent shall be in Form 172.
Where both parties appear at the hearing and the matter is not settled, the Court may proceed to hear the case and give a decision thereon or may adjourn it to another date for final disposal. Judgment entered after a hearing shall be in Form 173.
Before deciding the case and giving judgment, the Court has the power to ask the parties for further information and in particular for a short description of the claim and defence as the case may be, if such description is not adequately supplied earlier.
The Court may also consider the documentary or other evidence, including affidavit evidence, tendered by the parties and in their presence shall bear such oral evidence and argument, including written argument, as the parties may submit.
The sealed judgment or order given must be served on the person against whom the judgment or order is made or given by prepaid registered post by the Court.
Under Order 54 rule 15(1) of the Subordinate Courts Rules 1980, the Court may in its discretion award costs not exceeding RM$100.00 to any one party.
WHAT IS A JUDGMENT ?
Where a party wins, the result is confirmed by way of a judgment.
A judgment is a statement or decision made by the Court and it can be in favor of the plaintiff or the defendant.
Examples of the content in a Judgment are as follow :
"The summons having been duly served on the defendant and the defendant having failed to file his defence within the stipulated time, it is hereby ordered that the defendant do pay the plaintiff RM$2,800.00 and RM$200.00 costs."
or
"This action having this day been called on for hearing before His Honour (name) in the presence of the plaintiff, and the defendant not appearing, it is ordered that -
(a) the defendant do pay the plaintiff RM$2,800.00 and RM$200.00 costs;
(b) the defendant's counterclaim be dismissed."
WHAT SHOULD I DO IF THE JUDGMENT DEBTOR DOES NOT COMPLY WITH THE JUDGMENT GIVEN ?
Judgment debtor is the person against whom the judgment or order is made or given. It is generally called the losing party.
In most cases, the judgment debtor will pay the judgment, in order to clear the judgment from the public record.
Where the judgment or order has been duly served on the person against whom the judgment or order is made or given by prepaid registered post by the Court, and that the person against whom the judgment or order is made has not complied with the judgment or order, the party who has obtained the judgment or order may file in the Court a notice to show cause in Form 174.
Form 174 must be served on the judgment debtor by
* personal service or
* prepaid registered post addressed to the defendants last known address.
Under the Form 174, the judgment debtor is required to appear before the Court on a certain date and time to show cause why an order for the enforcement of the judgment or order should not be made against him or her.
Enforcement of judgment or orders consists of a variety of procedures to enforce collection, where the judgment debtor is not paying voluntarily.
For the enforcement of judgments or orders, the Court after examining the judgment debtor may :
* order a writ of seizure and sale to be issued in Form 78 with such modification as may be necessary as to endorsement.
* allow the judgment debtor time to settle the judgment debt, or pay the debt by installments or
* order the judgment debtor to be committed to prison.
Hope that helps, phew, it took me some time to look up the info for you, no doubt its just copy and paste but its better than 'Makan Sendiri' comments.
This post has been edited by havocx: Nov 24 2008, 06:16 PM
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