LETTERS: The Malaysian industrial jurisprudence dictates that a workman's rights and status under his employment contract are not to be decided solely on the basis of the law of contract.
Neither is his security of tenure to be dependent on the absolute discretion of his employer or on the terms and conditions of his contract of employment.
His rights are to be determined on the basis of fair labour practice, equity and good conscience to ensure that the principle of security of tenure is not undermined and social justice is dispensed with.
The unprecedented Covid-19 pandemic has brought about major impact on the economy, with many industries having considered triggering the "force majeure" clause in their employment contracts in retrenching workers.
The question arises as to whether the employer is allowed to invoke the "force majeure" clause in the employment contract to excuse their inability to perform the contractual obligations due to the Covid-19 pandemic outbreak.
This is subject to the issue of whether "force majeure" clause is recognised in the industrial jurisprudence of the country and further, whether it warrants the satisfaction of an event or effect that can be neither anticipated nor controlled.
It is argued that while the parties to the employment contract may clearly define the unforeseen circumstances that will be covered under the "force majeure" clauses, thereby avoiding future disputes, the Malaysian industrial jurisprudence however leans in favour of protecting workers, with the Industrial Court being able to free parties from any unfair terms of their contracts entered into by reason of inequality.
In fact, the most significant aspect of the industrial adjudication is that it is in accordance with social justice and not the legal justice.
Unlike an ordinary court of law, which is bound by contractual rights, duties or obligations with no authority to transform, alter or even create rights when justice of the matter demands, the Industrial Court is not purely judicial.
It is not confined to the administration of justice in accordance with law.
In the interest of industrial peace and the prevention of unfair labour practice or victimisation, the Court may confer rights and privileges on either party, which it considers reasonable or proper, irrespective of whether it is within the express contract between the parties.
Hence, there is no guarantee that the employer could absolve liability by merely relying on the "force majeure" clause.
Where there is a challenge of dismissal, the employer will still have to show, on a balance of probability, that the dismissal was with just cause or excuse.
Dr Ashgar Ali Ali Mohamed
International Islamic University Malaysia
The views expressed in this article are the author's own and do not necessarily reflect those of the New Straits Times