The disbanding of RRHR

Today I disbanded my Facebook HR Group, Rock N Roll HR.

I did this was because I personally felt that the Group had not achieved its purpose. When I created the Group I wanted to unite all HR practitioners in JB. Then I opened the membership to all HR practitioners regardless of geographical location. The response was very slow, and not as warm as I would have liked.

I persevered and remained positive. Several people fed back to me and said that the Group lacked attraction. So I organised as many networking activities and events as I can, to bring the members closer together, with the hope of advancing the quality of HR practice in JB particularly and in Malaysia generally.

There were members who supported these initiatives but there were many who did not react positively to them. Some did not react at all. Eventually organising these events became wearisome.

Same went for the discussion board in the Group. I became tired of seeing just my name and my words plastered all over the Group walls. A few other members who contributed ideas and topics also seemed to stop writing after a while probably because of the lack of response from other members. The idea exchange intention had fallen flat on its nose there.

I don't know whether HR practitioners in Malaysia generally still have not embraced the concept of intergrating social media tools with their work. Or whether social media tools do not bear any significance in enhancing the quality of their profession. Well I am a social media activist but I do still feel very much alone in my professional community.

So I have decided, today, to delete the Group. I would much rather see it gone than to see it wither away or left in a hollow existence. If I am the one doing all the work, then it defeats the whole entire purpose of having the Group. I just don't want to carry on wasting my time.

Workplace Bullying

Research indicates that workplace bullying is widespread and that it is more prevalent that harassment.

A survey conducted in the UK reported that 38% of the employees of the National Health Services of the UK experienced bullying and another 42% witnessed the bullying of others.

Pamela Lutgen-Sandvik of the University of New Mexico, conducted an online survey in 2007 that included general workplace questions as well as those specific to bullying. During the survey, the 400 U.S. workers who participated, including 266 women and 134 men, ranked how often they had experienced a list of 22 negative acts in the past six months, on a scale ranging from never to daily. Lutgen-Sandvik and her colleagues found that nearly 30% of the participants met criteria for being “bullied.”

Sadly, there are no statistics for the incidence of workplace bullying in Malaysia, although I am very sure the issue is very much rife here.

What is workplace bullying? There is no clear definition under the laws of Malaysia, but The Law Society of New South Wales, Australia has offered the following definition of bullying: "Unreasonable and inappropriate workplace behavior includes bullying, which comprises behavior which intimidates, offends, degrades, insults or humiliates an employee possibly in front of co-workers, clients or customers and which includes physical or psychological behavior."

 The most common acts which constitute workplace bullying are:-

1. Having information withheld that affected your performance
2. Being exposed to an unmanageable workload
3. Being ordered to do work below your level of competence
4. Given tasks with unreasonable/impossible deadlines and targets
5. Having your opinions and views ignored
6. Spoken to in unacceptable language and rudeness
7. Coercive behavior directed against your person or property
8. Unreasonable teasing
9. All forms of intimidating behavior including physical assault or threats
10. Any form of demeaning behavior whether business or personal which serves to denigrate the individual being attacked
11. Abuses of authority

Those who witnessed the bullying incidents taking place had higher stress levels and a greater dissatisfaction with their jobs compared with those who were not exposed to bullying.

Targets of extreme bullying can end up with permanent psychological damage, stress disorders, increased risk of heart disease and even thoughts of suicide. While certain personality types could be more prone to foster bullying behavior, the scientists say the structure of American workplaces could be partially to blame for breeding bullies.

Bullying should never be tolerated under any circumstances. Employers can develop clear workplace guidelines, practices and policies to safeguard everyone. Reducing the risk of exposure to workplace bullying would assist employers to satisfy their general duty of care to protect themselves and their employees.

In Malaysia, the Occupational Safety and Health Act 1994 Section 15(1) states that “It shall be the duty of every employer and every self-employed person to ensure, so far as is practicable, the safety, health and welfare at work of all his employees.”

In Australia, the Occupational Health and Safety Act 2000 contains statutory provisions for claiming damages as a result from being bullied in a New South Wales workplace. Among other things, an employer is responsible for "ensuring that systems of work and the working environment of the employees are safe and without risk to health".

The Australian case of Inspector Maddaford v Coleman, the New South Wales Industrial Relations Commission [2004] confirmed an earlier decision that a timber joinery company had breached its duty under S.8 of the Occupational Health and Safety Act 2000 by failing to ensure a healthy and safe workplace. In this case, a 16 year old factory worker was the subject of violent bullying - he was wrapped in plastic by his co-workers, rolled around on a trolley and covered in sawdust and glue. The director and factory foreman were found to be personally liable under s 26 of the Act (liability of managers and directors), even though they were not directly involved in the incident.

When the case was first heard, the company was fined AUD24,000 and the director and the factory foreman were personally fined AUD1000 each. But, in the second hearing, it was found that the penalties imposed were too low due to the seriousness of the matter and the need for deterrence. In other words, because bullying is often hidden or not talked about, the court felt that deterring bullying in the future was a significant factor in determining the penalty. Ultimately, the personal fines were bumped up to AUD9,000 for the director and AUD12,000 for the factory foreman, who was directly responsible for supervising employers.

In some cases, bullying in the workplace may become so unbearable that a person is forced to resign from their job. Although the Malaysian labour laws do not afford distinct protection against workplace bullying, victims of such acts of bullying may claim constructive dismissal where the circumstances surrounding the bullying tantamount to a material breach of the employment contract by the employer.

Bullying in the workplace may also create a claim for damages if it constitutes a form of discrimination. It is against the law to bully or harass someone on the basis of their race, sex, pregnancy, marital status, religious beliefs, sexuality or disability.

Many people, however, are very reluctant to admit that they are the targets of workplace bullying, mainly because they are too embarrassed at being seen to be “weak”. In actuality there is nothing to be ashamed of by admitting that you have been victimised. You can manage these bullies and create a better work environment for yourself and your co-workers.

 JobsDB.com offers these tips:-

1. Reject requests if you know that you have too much on your plate. Learning to say "no" is a form of strength in itself. More often than not, many of us find ourselves agreeing to too many requests and taking on too many responsibilities. One person can only handle that much. Most office bullies target those who could not bring themselves to say "no" to them. Be polite but firm, saying that you regret you are not able to help him/her out as you have your own deadlines to meet.
2. Remain firm on your decision and do not waver in your decision to reject his/her request no matter what he/she might say to persuade you to "help out". If the situation turns ugly and the bully starts hurling verbal abuses at you, keep calm and politely tell him/her that you have to answer to your own superior and the tasks assigned to you are more urgent than the "favours" he/she is asking from you.
3. When you signed the letter of appointment, you should be clear of whom you are reporting to at work and it should stay that way unless your employment contract is changed. You have a right to reject the requests from other people except for your superior as it would be wrong for you to "work" for someone other than the superiors you are answerable to.
4. There is a thin line between what is right or wrong and what is acceptable or unacceptable at the workplace, especially in terms of interpersonal interaction. Be aware of the boundaries of what is acceptable or otherwise when dealing with the bully. If you feel that your "personal space" is intruded by the bully, know that it is wrong and do something about it. If the bully is persistent in getting too close for your comfort, it might be considered a form of sexual harassment, even without the physical contact or verbal harassment. Get help and ask for advice from someone trustworthy and reliable.
5. In certain extreme cases when the situation gets out of control, such as when the office bully has gone to the extent of extorting money from you or threatening to harm you, get help. Learn some self-defense moves to ward off possible attacks when you are alone and might be "stalked" by the bully. If the situation turns from harmless to dangerous, talk to your superior or a trusted friend who could offer their opinion on how best to tackle the situation. In the worst case scenario, lodge a police report against the bully if the situation gets out of hand and the bullying case has turned into a criminal case, with your well-being at stake.
6. A bully does what he/she does best - to make you feel bad. Do not fall into the trap by taking the guilt trip. You do not owe anything to the bully although he/she very much likes you to think that way.

Personally I would advise keeping a detailed, chronological note, or log, of the bullying incidents as and when they happen. You can use this to support you when you decide to highlight the issue to your superior or lodge a police report or a constructive dismissal claim if the need arises.

Checkin' Out

After cooping myself up in my office finishing up my legal work, I segued back into the scene and did some serious checkin' out of various ent venues in JB.

Checkin' out is a regular part of a HR practitioner's job. It involves the reconnaissance (or in Manglish, reki) of resources pivotal to the hosting of a HR-related function, such as annual dinners, family days and sports activities, by way of surveying the venue's facilities, evaluating their service quality, taking in the ambience, contemplating the budget, tasting the food...well, you get the picture.

In my case we have immediate plans to host our Annual Dinner and a bowling tournament. The bowling tournament is in fact going to be held this coming Sunday and the Annual Dinner is some 8 weeks away (and we're still looking for a venue, yes).

So there I was for a good week or so, checkin' out hotels, resorts, clubs, expo halls, gyms, paintball centres, futsal courts, bowling alleys and even a river cruise. I was collecting name cards and gaving away my own like nobody's business. I'm sure half of JB city would have a picture of me in their minds as they watch my Company's ads on prime time tv: "Hey I met one of their managers that day, the one who turned over the carpeting to gauge the age of the dust, counted the stains on the walls, smelled the waiters' armpits and quibbled about every cent in our quotation. If I ever have to kill my competition, I'd hire that lady."

I told you my job was fun. And you know, this whole checkin' out thing? Well, it's kinda perpetual.

LACK OF TRAINING AND POOR PERFORMERS

I was asked by one of my mentees, Ms Nor Zaleha, for caselaw which illustrates the relationship between lack of training and substandard performance. I hope the cases I have selected below shall be of some help to you, Zaleha.

In the case of Puncak Niaga (M) Sdn Bhd v Mohd Sulaiman Mohd Yahya [Award No. 282 of 2001] the claimant was employed by the Company as a General Manager. His probation period was six months.

During these six months, the claimant was not given any guidance or on-the-job training. After the initial six months had lapsed, the company extended the claimant’s probation period. Shortly afterwards, the company terminated the claimant’s services, alleging that upon review of his performance, conduct and character, he was found to be unfit for the post.

The company, however, failed to show evidence that they had ever conducted any performance appraisal of the claimant, or, throughout the course of the claimant’s employment, impressed upon the claimant that they were dissatisfied with his performance.

The Court concluded on the balance of probabilities, inter alia, that the company had failed to show that the claimant had been given a fair opportunity to improve on his alleged poor performance. The case was decided in favour of the claimant.

“Substandard” or “poor” performance, therefore, is a relatively subjective matter. A person may be qualified and competent for a particular job, but because of lack of proper direction and support from his employer, his true ability may not be able to shine through as he may not be clear as to what is expected of him. Mistakes can be made by anyone, especially in a new environment, where the working culture and procedures may be different from what the employee is used to in his or her previous job.

The type of training required for an employee to perform at optimal level also varies. “Training” associated with performance normally involve practical on-the-job guidance, where the employee is shown “the ropes” on how things are done, not so much skills-based. If the employee does not possess the basic skills required for the job he would not have been hired in the first place. The employee should be given time and chance to acclimatise to his or her new job.

In Rohimi Yusoff v Alfa Meli Marketing Sdn Bhd & Anor [2001], the applicant was employed by the Company as a Marketing Manager. Ten weeks later, his employment was terminated.

The Industrial Court was satisfied from the evidence that the termination was with just cause and excuse because it was based on the claimant’s inability to generate business for the Company.

The applicant applied for an order of certiorari to quash the award and an order of mandamus for a rehearing before another chairman of the Industrial Court.

The claimant was dismissed without any warning and was working with the company for ten weeks only. It was too early to say that the claimant had failed to generate business during that period.

The judge in this case made an observation of IE Project Sdn Bhd v Tan Lee Seng [Award no 56/198]:-

“An employer should be very slow to dismiss upon the ground that the employee is found to be unsatisfactory in his performance or incapable of performing which he is employed to do without first telling the employee of the respects in which he is failing to do his job adequately, warning him of the possibility or likelihood of dismissal on this ground and giving him an opportunity of improving his performance. It is for the employer to find out from the employee why he is performing unsatisfactorily or warn him that if he persists in doing so he may have to go. There is no record of any such warnings. On the contrary I am satisfied that the Claimant had performed his task to the best of his ability.”

Sidel Industry (M) Sdn Bhd v Thanusia Malar Raja Gopal [Award No. 8 of 2006] and Swai Lin v MRTS-Atlantik (M) Sdn Bhd [Award No. 688 of 2006] followed the principles of the Rohimi case.

Is poor performance, then, a form of misconduct?

In Eruthiam Arokiasamy v BM Enterprise Sdn Bhd [Award No 622 of 2006] it was held that:-

“A workman who does not show enough care or enthusiasm in his work but nonetheless plods on with the work does not necessarily commit misconduct.”

A single act of incompetency, however, does not warrant summary dismissal of the said employee. Employers need to show evidence on a balance of probabilities that the termination is justified on grounds of poor performance. Hence, proper written records of performance appraisals, training and counseling or warnings, of which must be acknowledged by both the employer and the employee, must be meticulously kept. Mere allegation is likely to be fatal to the employer’s case.

In Galaxy Portfolio Sdn Bhd v Suradi Sulaiman [Award No 158 of 2006]  it was held that the company failed to prove the allegations of poor performance against the claimant. Even if there had been such poor performance, there is no evidence that the company had ever informed the claimant, who is still on probation, of his shortcomings, or had given him any opportunity to improve himself. The Court in this case held that the dismissal was without just cause or excuse.

Since poor performance is not misconduct, it is therefore not necessary to conduct a domestic inquiry (D.I.) prior to dismissing an employee for poor performance.

In Wearne Brothers Services Sdn Bhd v Yuen Ah Man [Award 188 of 1982] the learned judge opined:-

“I am of the view that inefficiency is not misconduct, which necessitates an inquiry. The Company Secretary decided to terminate the services of the claimant based on the feedback form and appraisals by the managers.”

In Steven Ferenc Palos v Ogilvy One Worldwide Sdn Bhd & Anor [Award No. 2316 of 2005] it was held, inter alia, that the claimant had never been told that because of his areas of weaknesses, a dismissal of him was being considered. Also, the claimant was not given ample opportunity to discuss any possible work-related problems before he was terminated. The company also never gave him any written warnings.

However, there are caselaw in which failure to give employees warning may sometimes not automatically make the dismissal unfair.

In Bedford Investment Ltd v Northern Hotel [1990], a New Zealand case, it was held that:-

“…There can be cases where it is open to the Court to find that employment can be terminated without the giving of a formal warning, even where this might be for performance or other similar reasons…”

In Harmer v Cornelius [1858] it was enunciated that where an employee is hired for his skills and professional expertise, a certain implied standard is expected of them in the running of the day-to-day business. When he has demonstrated his incompetence the employer is not bound to retain him and would be justified in dismissing him without the requirement of warning.

Willes J opined:

“ ..(I)t seems very unreasonable that an employer should be compelled to go on employing a man who, having represented himself as competent, turns out to be incompetent.”

In Littlewoods Organisation Ltd v L. N. Egenti [1976] it was held that:

“..any professional man, a man of the employee’s talent, would, if he was brought to his notice that his work was not up to standard, and if he did not improve the standard of his work sufficiently, he might be faced with dismissal. That was plain common sense with a man of his caliber and a man of his intellectual position.”

CAVEAT EMPTOR. MONITOR CLOSELY YOUR OUTSOURCED FW AGENT.

This post is an expansion to another post of mine entitled "RUFFLED." about outsourced foreign worker agencies which I wrote on 9 September 2009.

Now for those of you whose companies are in the restaurant or other service-oriented businesses, you need to be aware that the Government has now put a very short rein on hiring foreigners for your sector: foreign workers are only allowed to be hired as "tukang masak" (cooks). Even so, they will only allow you to hire foreigners, if you can show proof that you have exhausted all recruitment endeavours to hire locals and none were considered suitable, or, if you do not have enough local manpower to man the kitchen of your very large and very busy food outlet.

You cannot even hire foreigners for cutting your chicken or mopping your floor. For good measure, I would also like to remind you that you cannot hire them as front of house crew.

So what does your agent do now in view of these circumstances? Well, these can be the likely scenarios:-

1. They may "recycle" workers who were sacked from other companies. The problem with this is, the workers's permits will be under another company's name, which of course renders it illegal for you to employ them in your premises. The agent may tell you that whatever company's name stated in the permit is their associate company. Well, use your logic. If these workers were hired specifically for you, how in the world did they get a permit even before they were given the job? And do check the dates in the permit: I can tell you it is very likely that they will only have a couple of months left before their permit expires.
2. The agents may give you refugee status individuals, and give you a chocolate box of excuses why they do not carry a work permit with them. The agents will tell you that it is only for temporary measure while they source for "permanent" workers for you, or that their permits are in progress, etc. Bollocks. Reject these workers at once and cancel your agreement with the agent.
3. The agents may be going through the back door. You can spot this when they ask for exorbitant amounts of money to cover various odd -sounding costs and fees, or when they ask for documents such as your original bank statements and EPF or SOCSO statements. NEVER give the agents any originals and for your information, your bank statements are not required. Tell the agent that during the interview with KDN, you want to be present as your employer's representative and you will being all the originals yourself if the KDN officer needs to sight them. If the agent refuses, terminate your contract with them and call KDN immediately to check on your application status. And please don't do back doors. If you get caught, it will be too expensive. And I'm not just talking about ringgits.

The Government is now trying to limit the number of outsourced foreign worker agencies in the country due to the unscrupulous ways of their dealings.

So what can employers do? I know it is hard, I am facing the same quandary too. We need to do something to attract the locals to work. Like I said before, the Government needs to ensure that business in Malaysia can afford to pay better wages and benefits to our local people. It's not that business do not want to hire locals, but locals do not want to work. Mindsets can't be changed in a jiffy, but economic policies can be reviewed a lot faster. It's a two-way street.

Till then, at the risk of sounding like a JTK officer, we employers just need to get creative (though I really don't know how else) to get enough people to get our business going - while all the time hoping this phase will not last.

SO?

Yesterday I was supposed to go to the FMM HR/IR meeting but opted not to at the last minute because I'd some new legal projects assigned. I sent my staff Azizah to go instead.

When she came back, she told me that the meeting discussed about worker-hiring issues, the scarcity of local workers and the Government's depressing resrictions placed on foreign worker employment.

Sigh.

See, that's the thing: this is all we talk about nowadays and we can all only sit around and talk about it. No one can come up with any answers. That's because the answers are not up to us!

There is really no light at the end of the tunnel in sight. Or rather the end of the labyrinth.

While it's all very well to know that we are not alone in our struggle to meet workforce demands, it's of little comfort because we have now come to an impasse which actually should not be there at all if only the powers that be try to understand how business works.

Twitter-N-Hire?

I'd like to share this article written by Byron Mackelroy, first published in HR Resource . I wonder if this works in Malaysia.

Once depicted as a trendy social media experiment, Twitter has officially arrived. From cell phone integration to CNN broadcasts, we can no longer escape the fact that Twitter is not a passing fad. The site once criticized for a complete lack of utility has evolved into one of the most flexible tools available in the social media space. HR departments, Corporate Recruiters and Job Seekers have taken notice. Twitter has become an important tool in corporate recruiting.


In the current job market companies are clamoring to hang on to their talent. Blasting out new positions in real-time is an exciting strategy to target quality candidates. The fact of the matter is that there are more job seekers than jobs. This situation results in the limited number of prime candidates being scooped up with greater urgency. Despite the fact that there are less job openings, publicizing your new positions is critical to landing top talent.


Another interesting facet of Twitter's contribution to the recruiting field is an enhanced ability to find passionate candidates. Companies that actively rely on twitter to publicize new job openings create a channel for passionate supporters and potential future employees to track. For example, A software engineer who thoroughly enjoys the online music service Pandora.com will be more likely to respond to a new job opening if the candidate can track the available positions for Pandora in real-time.


Perhaps Twitter's most impressive function in the recruiting process is to establish a company's reputation for hiring quality, renowned talent. Spacex, the growing rocket company founded by Elon Musk, uses Twitter to announce talent acquisition. When Spacex hired former astronaut Ken Bowersox they tweeted out the news. This PR strategy serves to build a reputation around the human capital at a company. The more talented super stars that a candidate perceives to work for your company, the more likely that candidate will want to join your ranks. Ultimately companies want top candidates beating down the doors to get a chance to join the team. Twitter can help make this desire a reality.


A few smart software companies are working to seamlessly integrate Twitter and other social media sites into the recruiting process. These applicant tracking providers allow corporate recruiters to automatically post new positions to Twitter. Whenever a new job goes live the system will tweet out the new position. As more recruiting software packages leverage the Twitter API, Twitter will become more integral to the hiring process.


The recent Twitter revolution in the recruiting field is only a subset of how the social media site is affecting business across the board. With adoption rates soaring and users hunting out innovative applications for the service, Twitter's inherent flexibility may become its killer feature.

I had tried this once, but no one came to the aid of my distress call (at that time I was indeed distressed as I was hard-pressed for staff). I want to try again with a different wording structure and using more "magnetic" keywords and buzzwords and hashes.

Anyone hiring for Johor companies tried Twitter-recruiting? Were you successful?

EVENTFUL HEADACHE

Organising office events is fun. Yet it can also be the most headachy of all headaches. This is because, despite having formed a gung-ho committee in the beginning of things, you will ultimately be running the whole entire show by yourself in the end.

There are only two outcomes of an office event. Either a flying success earning you heaps of praise and the appledom of your boss's eye, or a total fiasco that, in some cases I know, can lead you to being sacked.

So organising events is risky business indeed.

Is is very common for companies to assign event management to the HR people. Of course when you sign up for the job your employment contract and/or JD never stated this. But remember that clause at the end of your contract and/or JD which states "any other tasks assigned by the Management" or something else to the same effect? Well, taking this risk is one of them. That is fine in itself, but then you may ask, why HR? or if there is a committee, why does HR need to spearhead it? Well, don't you know? Because other people are TOO BUSY. Only you, the HR practitioner, has so much free time because your functions are not as important as accounts or operations or all others for that matter. The fact that you are assigned the partying affairs have nothing to do with your talent in the field. It's merely because you are the expert in being the clown.

Hahaha.

I am just being sarcastic to some quarters who insist on trivialising my work. The fact is, I am proud to be an event organiser, am honoured to be assigned the task, and me and my team will do our very best to rock it like it's never been rocked before.

But the headache will still happen of course. But if everyone is working on the project as a team, it will fly.

So the biggest, and last event of the year, for us shall be the Annual Dinner (or in our case, the Half-Decade Dinner as the last Annual Dinner was held about 5 years ago). My HR team is prepared for a big headache. But we already have Plan B. If we have to this ourselves in the end, we are going to make a humongous deal out of it. We will stamp our mark everywhere including on all the mites in the hotel ballroom carpet with the words "THE FUN YOU ARE HAVING TONIGHT AND OF WHICH MEMORIES YOU WILL NEVER FORGET IS MADE POSSIBLE BY THE BLOOD, TOIL AND SWEAT OF THE SUPERMEN AND WOMEN OF HR DEPT".

We look forward to being the HR Dream Team this side of the country has ever seen: we will fly AND rock.

New blog

Hey guys, you can check out my new blog on http://www.retrorockinsista.blogspot.com/.

It's my first blog in Malay, to honour the wishes of some friends who would like me to write in Bahasa Melayu.

It's still new though so don't expect too much in terms of gadgetry there.

WHERE HAVE ALL THE WORKFORCE GONE?

The whole situation is like a snake chasing its tail. Employers are hard pressed for manpower. They source for local workers, only to be snubbed in the face for paying "low" salaries.They turn to agents to help bring in foreign workers, only to be told by JTK that the Government is putting a plug on foreign manpower recruitment especially those on outsourcing basis.

No man, no work. No work, no eat. No eat, die.

So what's a Malaysian employer to do now?

Intriguingly, where have all the local workforce gone? Not everyone is across the causeway. And they say we are still in recession mode. So why are people not grabbing the first job opening they find?

You know this whole "low salary" story is not always true. Even if it is, for crying out loud it's a blue-collar job! What do they expect, a six-figure packet with a Camry to go with it? Most companies are in fact willing to pay workers reasonably higher remuneration than the average market price as long as they can get their people in. Still, these companies cannot seem to attract people. Don't even talk about attracting talent, they can't even entice the village idiot to come and work. What is happening? Has the nation been struck by a SLOTH PHENOMENON?

Ponder all we like. Frankly, if you ask me, I don't see an immediate solution. Unless every factory invests all their gold in full-automation and pay engineers to man them. But then that'll result in price hikes for finished goods and eventually, inflation. Business dies. Sheesh.

Anyone out there has any best practice stories to share on blue-collar recruitment? I'm desperate here.

JOBSTREET'S HRNE IN JB: WHAT SAY THE VOX POPULI?

I recently met two hotshots from Jobstreet.com. We pondered on the feasibility of hosting another HR Networking Event (HRNE) in JB. Despite the obvious beneficial properties such events bestow, the last HRNE met with lukewarm response. On top of that, there is also the question of topic relevance and availability of speakers. I was told that HR Managers from SMIs are hesitant to speak and share their experiences. I wonder whether this is true, and if so, why.


I promised Jobstreet I’d consult my fellow HR practitioners in JB about the topics. I sent out an email blast through RRHR but no one has responded to date. So this means I’ll have to email or call or see everyone individually. Come on, folks. Where are all the JB HR connoisseurs? Let's make the most out of this opportunity to gather and gain as many resources as we can for our profession! (plus all those freebie goodies, remember!)

In any case, I have already raised my hand and volunteered to speak at the next HRNE, whenever that may be and whatever the theme. I already have a good idea of what I want to talk about and that can be bent and folded to meet any given circumstances.

I would also love to hear from other managers about their best practices and experiences. There's nothing to be shy about, we've all been the corporate janitors at one point or another in our careers. It's time we toast to it.

MINIME

My first post since Raya. Hope everyone had a good one. I had a long one, and actually am still having it :D

I came back from my (long) Raya leave and put my (raw and green and trembling) staff on the stand in a labour court case, warranting her to act on behalf of the Company to prosecute against a notice pay defaulting ex-employee.

The first reason why I put her there was because I was too busy with other things to actually prepare for this particular case. Since this was an open-and-shut one, and she had actually assisted me to prepare the paperwork, I decided to delegate the task to her so I could concentrate on the legal agreement I was drafting. As I decided so, an idea formed in my head that I could seize the opportunity to give her on-the-job training in labour court hearing procedures. I don't want her to be my driver forever anyway, ferrying me to and from court and carrying all my files to death.

And so, unrehearsed, she took the stand, while I sat there putting a sardine face with my hands folded behind my head, watching the entire thing with the eyes of an Idol judge.

Joking lah. I actually taught her what to say right then and there by passing her notes with tips on what to say. I helped pass the documentary evidence to the judge and wrote the entire submission for her.

She was nervous obviously, being a virgin, but eventually the pressure pushed inspiration into her brain stems and she began to come up with her own arguments. I thought she was actually quite efficient.

When the court adjourned, two things happened. I have identified a dark horse for me to groom, and a good eyeful of the cute judge sitting right across from me.

TALES OF RAYA 2

Photo copyright of Tahirah Manesah Abu Bakar, 2006

While I was trying to figure out the tales of raya to feature in my blog, a huge wedge lodged itself in the tracks of my thoughts.

Hmm. Who are the characters I should feature? My family? My friends? My current colleagues? My ex colleagues? I know so many people. Would anyone of them feel awful if I were to not tell a story about them?

Anyway reminiscing the past is kind of boring. And to write about future plans is too pedantic.

So. I’m just going to write about what’s in my heart.

To all my friends and family


Today, I am presenting myself to you in honest humility, seeking your pardon for all my words and deeds which have caused you pain, loss, harm, damage and injury. It would mean everything to me, more than worldly goods, for you to bestow me with your forgiveness.


Today, you do not even have to ask me, for I have opened my heart to you and forgiven you, and forgotten whatever adverseness that may have transpired between us.


Today, I thank Allah s.w.t., for all that I have, including friends and family like you.


Today, I pray for all of us, for us to be blessed with hidayah, and for us to be safe in this world and the hereafter.


Today, I am grateful because I have lived through yet another Ramadhan, and I hope that I will be part of the coming Syawal where we can walk together towards fortifying our Islamic brotherhood and sisterhood.


Today, I have no regrets, except for the sins that I have done, and I will throw myself in sujud to ask for forgiveness from Allah s.w.t. the Most Merciful, for only He knows the magnanimity of my sins and only He can save me from damnation.


Today, I realise that the fact I am seeking repentance is a sign that I am loved and shown the right way by Allah s.w.t., and a new path has been created for me to earn the love of mankind.


Today, I realise that solitude is a choice, because I am surrounded by gems, and that is YOU.

Selamat Hari Raya, maaf zahir dan batin.

TALES OF RAYA 1

Photo copyright of Tahirah Manesah Abu Bakar, October 2008

What can I say mak, you can read my mind. There are no thoughts or feelings of mine that you do not think or feel with me. I wonder if I have really made you happy, or are you only smiling for my sake. Have I hurt you, or do you take it all in stride as a mother? Do you bear a silent grudge, or do you carry out your labour of love for the sake of fulfilling a responsibility expected of you?


Mak, remember those Raya open houses we had when Bapak was alive? All the guests who came just to gorge themselves on the smorgasbord of Raya food which you singlehandedly prepared. You were spending your Raya in the kitchen all the time, weren’t you mak. The day before, the day itself. Cooking, cooking, cooking, cleaning, cleaning, cleaning, endlessly serving up food and washing dirty plates and glasses so we will always have enough supply for all our greedy visitors who think Raya is all about coming to people’s houses to get free food to pig out on. You were no different from a domestic servant everytime Raya came along, weren’t you mak. Kesian mak.

Today, we won’t have anymore of those open houses ok mak. You can spend Raya however you wish. I will take you anywhere you want to go, or we can just stay home if you don’t feel up to it. Especially this year mak. This Raya is for you.

Mak, saya sujud di kaki mak, saya minta ampun atas segala dosa saya dari sehari umur saya di dalam rahim mak sampai ke hari ini.

ME VEXAT PEDE

One thing I can never understand is why some people have the penchant to negotiate AFTER a deal is done.

In the past week some candidates have come back to me after they have accepted our offers and asked me whether they will be getting “any other benefits” apart from the package they have just accepted. I know exactly what they were getting at. If it wasn’t an overture to a haggle, they would surely have waited until they start working where they will have all the time in the world to sift through the employee handbook.

A junior one started to tell me about some irrelevant personal predicament which I recognised as a prelude to “will I be getting additional allowance?” so I stopped him midway and asked him why on earth didn’t he ask this question before during the interview.

His reply was “oh then never mind lah, it’s ok”.

Which of course I knew at once will not be “ok” at all and either this chap will not report for duty or if he does, will not hang around for long because he will not be getting what he’s after. If he doesn’t report for duty then I’ll know that he’s probably just fishing around, and if he does but doesn’t stay long, he’s got a lot of growing up to do. Whatever it is, such candidates can become quite the nuisance.

We have also been facing the problem of candidates repudiating our offer after signing the employment contract but before starting work. The usual excuse for this is that their present employers have made them better offers. Which is all unprincipled and insincere to me.

I was told by the Labour Office that they cannot take up claims for compensation from employers in such circumstances. Whereas in most cases the amount is too small for a civil recovery action where it’ll just waste time and more money. So what’s an employer to do? Nothing left but to blacklist these candidates in Jobstreet. Which isn’t really much of reparation for all the trouble it took to hire them.

Why is being responsible so difficult for some people?

"WE WIN!"

There’s cause for celebration: my HR team created small history by winning the very first labour case our Company has ever been part of. And what made it sweeter was we were the defence.

 

The other thing that’s “special” about this case was the fact that we successfully put up the defence of domestic inquiry, sans domestic inquiry notes. One of my staff chucked away the domestic inquiry notes prior to the case being heard in court. The Labour Court is well known for its emphasis on technicalities, and realising our weakness, we took a risk of submitting “alternative” evidence and pulled a rabbit out of the hat.

 

A few friends have asked me to share our “gambit”. After some thought, I think it is best that we don’t. The strategy may not work with everybody and in every situation. Your best tactical defence depends on your opponent’s level of resistance.

 

But what I do want to share with you today is what we actually did before and during the trial. Remember, labour and IR hearings are nothing like civil suits. For labour cases, you do have to sweat the small stuff.

 

• Never underestimate your opponent. Don’t be cocky. Prepare for all your cases thoroughly no matter how straightforward you think they are and how stupid you think the other side looks. People can defeat you in two ways: either they are one-up on you on facts (or law as the case may be), or they optimise their findings of your loopholes, which, if you are over-confident, you will be bound to overlook, and which, if they hate you, they will leave no stone unturned to seek.

• Never underestimate the power of the Labour Officer. They are well-trained and they do this everyday for the entirety of their working lives for goodness's sake – they are the connoisseurs of labour disputes. And yes, reality check, they do lean towards the employee’s case. And yes, reality double check, the labour system in this country is dogmatic. So make sure you know what you’re doing. If you don’t know what you’re doing, seek the advice of those who do.

• Prepare, prepare, prepare. Rehearse. Abraham Lincoln said if he had three days to chop down a tree, he’d spend two of those sharpening his axe. Start preparing from Day One that you got the summons. Anticipate your opponent’s line of questioning and draft out yours. Have a checklist for your bundle of documents. Prepare a spare bundle of CTC documents in case you lose the originals. Prep your witnesses well in advance, do a moot court if you have to. Give them specific instructions on body language and facial expressions and vocal tone. Even if you don’t want to prepare a written submission, use cue cards to jot notes down. No matter how many times you’ve done this, it pays to be organised. 

• Learn up your cases, especially newer ones. Don’t just cite Milan Auto to death. Do a bit of Googling and pull out recent award decisions. Not only will these recent cases fortify your case, citing them will impress the Labour Officer/Court Chairman. And that, I can tell you, will do wonders for your case.

• Chill, dudes/dudettes. Let the pressure inspire you. In our case, there were many instances during my examination, testimony and submission which I ad-libbed my arguments. Some arguments I formulated in my head after listening to the other side’s testimony. Some I literally uttered as soon as the thought entered my head. Sometimes such "inspired" arguments can really seal the deal. If they do, you will hear them being mentioned in the verdict later. This requires some practice though. So do it only if you’re confident. Or if you were a salesman before.

 

The rest? Well…that’s our secret. :)

PROJEK JALINAN UKHWAH

The sweet little girl with her cat. Photo copyright of Tahirah Manesah Abu Bakar, September 2009.

A few friends of mine run a small help-out activity just before Raya. They do it in an informal, hush-hush way, and in the simplest of forms: visiting the poor and less fortunate and providing them with daily staples and cash assistance so that they can celebrate Raya with adequate food and peace of mind.

The donations are not necessarily those of the project members. The project members also accept contributions on behalf of other people who wish to remain anonymous and represent these donors to hand over the gifts to the poor.

Last year my friends helped out the poor families in Kg Lukut, Kota Tinggi. This year they visited a family in Gelang Patah. I was told the family is not only poor but has a handicapped child. I followed En. Khairulazam Mohamed, who led the project to help out this Gelang Patah family.

The family lives in a humble shack near the banks of Sungai Pendas, opposite an old charcoal kiln. One of the children used to be a student of SK Tg Adang, where En Khairulazam's wife teaches. He has now finished school and works in a factory nearby. We soon discovered that the family had more than one handicapped child, and the mother is also physically impaired.

When we arrived, only four of the children were at home. The mother was sitting on the lean-to, peeling onions, a part of her daily source of income.

We didn't stay long for fear of imposing on the family. I also didn't take many photos because I was afraid it would offend them. I took the pictures of their only daughter on the pretext of taking a shot of their lovely black cat. The little girl hid behind the cat at first when my lense pointed at her, but after some coaxing she lowered down the cat and smiled.

But as I was sitting inside the little humble home, I felt a certain warmth and cosiness about it. The house is full of love and happiness. Despite their difficulties, this is a family that believes in each other.

The Project would like to thank all anonymous donors. If you are interested to help this family, or know of any other less fortunate families around Johor, do let us know. We can organise a trip to visit and help them. It doesn't necessarily have to be before Aidilfitri. Let's make their lives a little better in whatever little way we can.

The old coal kiln outside their home. Photo copyright of Tahirah Manesah Abu Bakar, September 2009.

The family's home. On the foreground is En.Khairulazam's son. Photo copyright of Tahirah Manesah Abu Bakar, September 2009.

En Khairulazam's wife, and my mom. Photo copyright of Tahirah Manesah Abu Bakar, September 2009.

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The jetty leading to Sg. Pendas, outside the family's home. Photo copyright of Tahirah Manesah Abu Bakar, September 2009.

En. Khairulazam and kids. On the background is my mom. Photo copyright of Tahirah Manesah Abu Bakar, September 2009.

AKU BUKAN MELAYU

Hahaha! And that's the truth.

For 36 years people have been calling me "Melayu". Of course I've always been telling people about my real heritage but then they will resort to calling me "Melayu" again and after a while I get tired so I just humour them. But now I've decided to stop all this travesty because it's really very silly, why be what you aren't? It's been putting me into a spot where I'm expected to speak Malay, think Malay, eat like a Malay, observe Malay customs which I actually feel very uncomfortable about and when I refuse to do it I am called mengada-ngada.

So what am I?

My paternal grandfather is a Pathan, and maternal grandmother is Javanese. My maternal grandfather is Achenese, and my maternal grandmother is of Scottish descent of the Royal Stuart clan. There. It makes me a ratatouille of races but I sure ain't a Malay.

How did I end up being associated with "Melayu"? Well, both my parents grew up in Malay communities, so they were "Malay-fied". They probably had to practice Malay culture so as to blend in. So much so that when I was born my dad wrote in my birth certificate (incidentally he had to type my birth certificate himself as the doctor was busy - I was born right after the Christmas break!) in the "Keturunan Bapa" column that he was a Malay!

Both my parents' families lifestyles had distinct traits of their ancestral legacies, even though they did as much as they could so as to go along with society's expectations. I was brought up speaking English as a first language, and our eating and thinking ways were different too, but at the same time I was raised to observe all the obligations of a Muslim, for which I am very, very thankful. I can say that I have a balanced life because of this.

Maybe perhaps due to my Muslim upbringing, and the fact that I now wear a tudung, people automatically associate me with being a Malay. That is actually a narrow perception :)

Do I feel out of place sometimes, being neither here nor there? Yes, I do. I am kekok about going to weddings and other Malay kenduri events. There are a lot of Malay customs that we (as in my family) don't practice. It's different when a Mat Salleh comes to a Malay wedding, because everyone knows that he doesn't know the customs so he can just happily sit around watching the whole thing however he pleases. But for someone "assumed" and "expected" to be Malay, I am supposed to "act" Malay and know what/what not to do, which I actually don't know, and I feel and look awkward.

So why not learn? Well, for me it's an individual choice. If to learn and to manifest is to be, then I don't want to.

At 36, it is high time for me to really find out what my real birthright customs are. I am blogging this just a week before this year's Raya because this is my Raya mission: to visit as many of my family members as possible, and know who I really am. :)

LIVING NEXT DOOR TO SUDIR

Photo copyright www.ohartis.com

I never talked about it, because a) no one ever asked and b) he was just, well, the boy-next-door back then.

It was in 1988, four years before he died. Location: KL. Specific location, I am not saying. :)

Oh yes I was a big fan. I played his cassette tapes all the time. But when he moved into our neighbourhood, we somehow weren't all agog about it. I even invited him to my birthday party once. He didn't come. But of course he couldn't, and I understood.

He didn't live in our housing estate for long. We were all a rather close-knit community there, because there were less than 80 houses in that Taman, but exactly when Sudir moved in, and when he moved out, no one knew.

He also kept to himself a lot but occasionally when neighbours caught sight of him going into or out of his house, he was a jolly chap, ever smiling and friendly to kids. He was just your average neighbourly neighbour. Soon we all stopped being curious about him and treated him like one of us.

I'd being reading a lot of things about Sudirman since he was posthumously awarded his Datukship last month, 17 years after he died.

I remember picking up the Malay Mail on the afternoon after he died and seeing the headline "Sudir Is Dead". I remember my mum thinking that it was a disrespectful headline, to term him as "Dead". She would have preferred "Sudirman Passes Away" or something like that, knowing my mum, full of decorum.

Today she terms his posthumous Datukship as pointless, especially since it's been almost two decades.

Many people say many things about Sudir's Datukship, and about Sudir.

It strikes me as odd why people who don't know anything about someone would be the ones to talk about that someone the most. We never hear Kay talk about him. We never hear Atai talk about him. Or Noor. Whatever memories they have of him, they respect him and his memory and his family enought to keep those memories to themselves.

It was only recently that Sudir's sister and lyricist Habsah Hassan went public with the real account of the circumtances surrounding Sudir's death. I think it is a good thing because finally all the hearsay and slander can be silenced. Those who still insist to say bad things about Sudir are those who do not have iman and therefore should not be entertained.

So, what do I know about Asia's No. 1 performer? Huh, what do you think. Would I tell YOU?

IN THE SPIRIT

I’ve been having a few good days lately. Many things have been going my way.


I received something unexpected yesterday, of which I am thankful.

I want to finish all my work before the week ends, because next week is pre-raya week, and normally during such a time I would be in a festive holiday mood. In any case, early work planning always works out well for me.

I’ve settled my fitrah and my zakat, and it makes me feel good about having fulfilled my responsibility.

I’ve put up blinking coloured rice lights in my office. It brightens up the office, lends everyone a cheery festive mood, and makes me happy working in the dark of my office room with only those blinking lights on.

I sing when I step into the office everyday.

I have stuck to my fasting resolution which is: SPEND LESS. My Raya resolution is similar, and with a proper budget.

I have a peaceful simple life, a good job, independence, good health, surrounded by good friends. I am blessed.

GD: COURT DISMISSES UNION COMPLAINT

The Industrial Court of  Malaysia recently dismissed the complaint of non-compliance of a Collective Agreement clause brought about by The Union of Beverage Industry Workers against the Carlsberg company in The Union of Beverage Industry Workers v Carlsberg Brewery Malaysia Berhad & Carlsberg Marketing Sdn Bhd [Award No: 1073 of 2009] which was just decided on 4 September 2009.
The complainant lodged a complaint under S.56(1) of the Industrial Relations Act 1967 that the respondent failed to comply with, inter alia, Article 12 of the Collective Agreement Cog. No. 015/2008 for the period commencing 1 January 2004 to 31 December 2006 by refusing to pay overtime to its Marketing and Supply Chain employees based on the 40-hour work week stipulated by the said Article 12 thereof.

The impasse faced by both parties regarding Article 12 was as a result of the complainant wanting a reduction in the number of working hours from 45 to 40 while the respondent was agreeable upon condition that the complainant accept a provision for multitasking, of which the complainant was against, claiming that they will then be compelled to perform jobs outside their own job scope.

Pending the outcome of the reference of this dispute at the Industrial Court, the respondent paid overtime based on the 45-hour week. On 25 September 2007 the Industrial Court approved of the respondent's proposed new clause providing for multitasking. The respondent implemented the new 40-hour work work from 16 October 2007 and with effect from this date the employees were paid overtime based on this 40-hour work week.

The complainants argued that since the award had ordered the effective date for payment of arrears to be from 1 November 2004, the respondent should pay overtime based on the new 40-hour work week with effect from even date.

The respondents countered that pending the decision of the Industrial Court, the old work week and overtime system continued to subsist. The respondents further contend that should the Court be of the view that any term in the Collective Agreement lacks clarity then the Court is vested with the power under S.56(2) of the Industrial Relations Act to vary such term.

The Court was of the view that the 40 hour work week cannot have retrospective effect, just like the multitasking provision. The employees were contractually bound up to the time of the award to perform their duties based on the old Collective Agreement which provides for the 45-hour work week and thus to be paid overtime based on the same.

The Court opined that the question of variation in this case was irrelevant.

The Court accordingly dismissed the complaint.

RUFFLED.

Hi guys, sorry for not having any new entries in here for more than a week now. I've been occupied at work plus I've been pissed off with some people for the past week. Some people just irk me senseless.

My feathers have also been ruffled recently by some foreign worker agencies. I do think that some agencies do not really know what they are supposed to be doing. I found out that some agencies are not even up to date in terms of their knowledge of prevailing legislation affecting foreign workers. Not only that, they do not know the difference between outsourcing and direct labour recruitment.

Basically when a company decides to engage foreign manpower on an outsourced basis, it means that the company need only to pay the wages and the consultancy fees to the agency. All other charges incurred for work permit application, levy, accomodation, transportation and workmen's compensation insurance are to be borne by the agency. The work permit is also to be under the agency's name. For all intents and purposes, the workers are the employees of the agency, not the company in which they work. The company only contracts for the services of the workers, not offer them direct employment.

If a company decides to employ the foreign workers directly, the agency only acts as recruitment broker to bring in the workers from their country of origin and assist the company to apply for work permits, visas, FOMEMA medical check-up and other statutory requirements. In this case the company which hires the workers are the direct employers of the workers. A formal employment contract is to be issued by the company to the workers individually and the levy payment, wages and other mandatory contributions and benefits are to be borne by the company.

The Government has recently announced that with effect from 1 April 2009, no deductions are to be made from the foreign workers' salaries with respect to the levy payment. This applies to all workers whether hired on outsourced basis, or direct basis. Where the workers are outsourced from an agency, the agency is responsible to pay for the levy, and no deductions are permitted to be made from the workers' wages.

As I discovered, and personally experienced recently, many agencies still charge their clients various processing fees and other costs including the levy under an outsourcing agreement. Some include a clause in the agreement which obligates the client to deduct the salaries of the workers and pay the deducted portion to the agency as levy reimbursement. This is not right.

There are also those which do not provide basic amenities such as transportation and accomodation, as per the Government regulations. These are outsourcing agencies' responsibilities which should not be passed on to the client.

I do  not know whether these agencies are genuinely unaware of their mistake or if this is practiced to inveigle unsuspecting clients.

Caveat emptor, companies need to be smart enough to read the fine print in outsourcing agreements. When in doubt, consult your nearest labour office or trade association. More often that not these agencies will not change these so-called fundamental terms of their service agreement. If this happens, then the company should change the agent. That's all.

What pissed me off though is that there are many such agencies around and it is not a conducive situation when I am pressed for time to get my workers on board. Coupled with the fact that it is close to impossible to get local people to work. Everyone is holding businesses at ransom these days. Staffing is becoming an expensive aspect of business and a playground for the opportunists.

Tommorow I'll be back with another instalment of Gavelled Destiny.

GOT PEANUTS, BETTER THAN NO PEANUTS (Act II)

Petrol prices are rising. Sugar is becoming scarce. Swine flu is still a threat. Maids are now a luxury. Minimum wage is a fairy tale.

Of course, these are phases which, like all phases, will pass. But to ease our agony while we wait, there are a handful of things we still can do to make life bearable.

Psychologist Martin Seligman says:-

1. Focus on what you can control. Don't get carried away by circumstances you cannot change. You might not change global warming, but you can control your energy consumption. You can't stop the downsizing in your company, but you can arm yourself with marketable skills. You cannot halt the bleeding on Wall Street but you can rebalance your portfolio. You can take a hard look at expenses and determine what are necessities and what are nice-to-have items that can be dropped. At the same time, do resolve to spend some money or time on something that truly gives you pleasure and lightens your spirit. Two-for-one hamburgers at the local joint with my best friend make my heart glad and brings a smile to TWO faces.
2. Reframe the event so that you are not a victim. There is always another way to view a situation. The flight cancellation that caused me to miss (and forfeit) a major engagement was not "planned" to "get" me. It just was. My choice is to figure out what I can do to help the current client and what I will put in place of the cancelled work. When Hurricane Katrina wiped out the home of a nurse, she told me that she focused every day on what she still had and she had her children do the same thing. Every day started with gratitude. She refused to see herself as a victim.
3. Think "enough". When we concentrate on what we don't have, we miss all the many things we do have. The truth of the matter is that if you are reading this article, you do have enough computer power. You do have enough intelligence. You do have enough. It might not be as much as you would like but, for today, it is enough.
4. Cultivate optimistic responses. Like a farmer tending a field, optimism will never grow unless it is watered, fed, weeded, and nourished. We all have days in which negativity can take over. And, sometimes, that is a WISE response because it keeps us grounded in reality. Just make sure it is reality and not the imagination making extraordinary leaps into conjecture. Weed out that conjecture. Ask what you can DO to see a result that gives you a sense of power. As Alexander Graham Bells stated, "Sometimes we stare so long at the closed door we fail to see the one that is opening." The 3M engineer who thought he had failed to make a glue compound that would stick discovered what we all now call Post-In Notes(tm).
5. Remember the power of generations. Children of depressed parents are more prone to depression. Children of optimists are more prone to be optimists. What do you choose to pass along? Even if your parents were negative, you can break the cycle by stopping, freeze-framing a situation, listening to the negative self-talk, and then literally giving yourself a different message. Yes, this is a practice. A hard practice. But you can make it a habit if you work it over time.
6. Sing. When all else fails-start singing. It is impossible to feel negative when you lift your voice in song. Music allows you to formulate words, to add nuance, and to even get your toe tapping.
7. Refuse to watch or read anything that puts a dark pall over your day. Instead of tuning into gloom, read a book that transports you to another time and a better mood. Go play with the baby next door. And if you are one of those folks who just can't stand children, take a walk with your dog, dig in the yard, or get a bucket of balls and practice your golf swing. Better that than walking around with heart and mind weighted down.
8. Refuse to participate in a chorus of negative conversations if the only thing you will hear is whining, complaining and moaning. Tell your group that they have three minutes to throw a hissy fit but then it must stop and the next six minutes must be devoted to either finding something positive about the situation or something that they can do.

My favourite is  No. 6 as I get to go through No. 8 everyday :p

IMHO, things are only as bad as the rumours around you make them out to be. Listen to your gut feeling, and don't trust everything you hear and read. Be smart in making your choices.

You'll live.

EMPLOYEES' RIGHTS WHEN A COMPANY RESTRUCTURES

This case may be of interest to those who are into comparative studies of employment laws in the Commonwealth.

In 2000 the Coogi Group of Companies in NSW, Australia restructured themselves, moving 240 people from one company group to a new company group. The post-restructure companies were all companies that had no assets.

By moving the 240 employees, the pre-restructure group appeared to have attempted to avoid meeting in excess of AUD2,500,000 worth of various employee benefits.

Although the post-restructure companies accepted the employment of the transferred employees and paid salaries, taxes and other payments in respect of those employees, the employees were never consulted about the cessation of their employment with their pre-restructure employer, or about the commencement of their employment with their post-restructure employer.

The only information received by the employees about their new employer was the appearance of its name on the payslips issued from 2 March 2000 onwards.

This raised difficulty for the administrators who were required to ascertain for the purposes of the administration of the group, whether the transferred employees are creditors of the pre-restructure or of the post-restructure companies in respect of their employee entitlements.

In order to resolve the issue the administrators brought an action for directions by the Court under the Corporations Act 2001 as to which of the companies in the Coogi Group is to be treated as the employer of the transferred employees.

The matter was deemed so serious that the Australian Security & Investment Commission sought leave to be made a party to the proceedings so as to watch and overview the actions of the proceedings.

The substantial body of evidence put before His Honour Mr Justice Merkel and filed by the parties revealed that the transferred employees were not informed about the proposals to transfer their employment, nor was their assent to the transfer sought or obtained.

Merkel in reviewing the case and in reviewing the precedents quoted the Judgment of Lord Atkin in Nokes v. Doncaster Amalgamated Collieries Limited where it was said that there is no power in an employer:

"To transfer a man without his knowledge and possibly against his will from the service of one person to the service of another. I had fancied that ingrained in the personal status of a citizen under our laws was the right to choose for himself whom he would serve: and that right of choice constituted the main difference between a servant and a serf."

In the present case the employment of the transferred employees was transferred to the post-restructure companies without the expressed or implied assent of the employees. In those circumstances it must follow that, in so far as their contractual relationship with their employer was concerned, their employment with their pre-restructure employer did not cease and their employment with their post-restructure employer did not commence.

In generally reviewing the case Merkel went on to say:

"On the material presented before the court the controllers appear to have pursued their own interests in disregard to the entitlements and interests of their long serving and loyal employees by transferring the employment of the employees, and their responsibility for their employee entitlements, to shell companies thereby treating those employees as if they were serfs, rather than free citizens entitled to choose their own employer."

Mr Justice Merkel in his decision clearly encourages the parties to strive for, where possible, the prosecution of claims for indemnity against the managers, owners and controllers of the pre-restructure companies.

(source: GWM Lawyers and Conveyancers, Port Macquarie, NSW, Australia).

GD: HR EXECUTIVE LOSES INDUSTRIAL COURT CLAIM

Puan Afizah bt Yaakob v. Cosmopoint Sdn Bhd (Industrial Court of Malaysia Award No: 1050 of 2009) sees the triumph of an employer’s transfer order and the lawful termination of a probationary employee without conducting a DI.

This case was decided only last Friday, 28 August 2009.

The Claimant commenced service with the company as a HR Executive on 1 December 2003. On 2 February 2005, she received a letter charging her with nine counts of misconduct. The list included:-

1. Refusal to accept responsibilities/instructions given by the President of the company on 26 October 2004 with regard to HR tasks
2. Leaving a meeting before it is over on 2 December 2004, thereby disregarding company ethics
3. MIA for three days from 29 – 31 December 2004
4. Showing disrespect to other managers in the company
5. Refusal to take instructions from the Head of Department
6. Missing from the workplace
7. Refusal to accept company secrecy policies
8. Refusal to comply with a transfer order to report for duty at the company’s Kuching branch on 1 February 2005
9. Failure to turn up to the office including on 29 January 2009.

The claimant replied to the letter but the company replied that the claimant failed to answer properly to the allegations. Through the same letter, she was dismissed by the company and was given one month’s notice effective from the date of the letter. She was never confirmed in employment.

 The issues before the Court were

1. Whether the company had proved its case against the Claimant on the charges for which it charged the Claimant; and
2. Whether the dismissal of the claimant was with just cause and excuse.

The company informed the Court, through their first witness the President cum Director of the company, that the Claimant’s performance was unsatisfactory. The company’s witness explained that there was an urgent need for the HR officer from the HQ in KL to be assigned to handle HR work in the newly-set up Kuching branch, and because the Claimant had been with the company’s HR department for one year so she would be the best person to do the job.

The witness told the Court that he had discussed the transfer with the Centre Manager of the KL branch of the company, and together they had told the Claimant that she can have another week to settle her work in KL as well as her personal matters. But the witness said that the Claimant refused to accept the offer.

The Claimant then told the Court the Company only gave her three days’ notice to transfer to Kuching which was unreasonable and caused her and her family much hardship. She said that she had written a letter of appeal but alleged that the company did not respond to her letter. The Claimant submitted that there was mala fide on the part of the company because she was terminated right after her refusal to be transferred to the Kuching Branch.

 The learned Chairman of the Court opined, inter alia, that

“..it is mundane to observe that it is an industrial jurisprudence that the law on the issue of transfer is very clear that “it is an acceptable principle that the right to transfer an employee from one department to another and from one post of an establishment to another or from one branch to another or from one company to another within the organisation is the prerogative of the management.” In Chong Lee Fah v The New Straits Times Press (M) Bhd & Anor [2005]…the High Court held, inter alia, as follows:

“ Is it an acceptable principle that the right to transfer an employee from one department to another or from one company to another within the organisation is the prerogative of the management. In fact this right of transfer is embodied in the Industrial Relations Act 1967, where S.13 provides that a company has the right to transfer its employees within the organisation so long as such transfer does not entail a change to the detriment of an employee in regard to the terms of employment.”

 
The Court had carefully considered the Claimant’s allegation that the transfer was an attempt to force her to resign, but the Court did not find any mala fide on the part of the company. While the transfer may have at the most been inconvenient, it was still legal. The Court found that at the material time the company critically needed somebody from the HR Department to go to Kuching to handle matters related to HR, therefore in the Court’s view the company was doing this in the interest of business.

Regarding her reasons pertaining to her marital status, the Court quoted the case of Razali Abu Bakar v Stanson Marketing Sdn Bhd & Anor [2009] where it was held that, inter alia:-

“Un fortunately, it is a sad fact of life that one cannot always have what one desires….claimants cannot run away from the fact that the right of the company to transfer them is clearly spelt out in their contracts of employment.”

Finally the Court cited Menon v Brooklands Rubber Co Ltd [1967] in which it was held that

“It is well established law that willful disobedience of a lawful and reasonable order of the employer will justify summary dismissal.”

The Court found that the Claimant had failed to establish on the balance of probabilities that she had been dismissed without just cause and excuse, and dismissed the Claimant’s case.

RETRO ROCKIN' SISTA PRESENTS: GAVELLED DESTINY

Gavelled Destiny, or GD for short (can also stand for Garden of Death, as in the theme for this blog) is a new special feature of this blog whereby recent cases are highlighted and discussed.

Each week I try to feature one industrial court or labour court case of interest from Malaysia and other countries in the Commonwealth.

I hope to provide a useful resource for HR students and a good read for the rest through this feature.

The first instalment shall reach your desktops this afternoon.

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HR PRACTITIONERS MAKE LOUSY ACTORS.

In any social circumstance, there is prejudice. I have heard that prejudice is nothing but an expression of opinion without getting the facts right. This could not be more true.

In an organisation where there exists a HR or Admin Department, both of which are usually fused, that fused Department would often be the Department most prejudiced against by the rest.

What gave them the right to do this, no one knows. No one cares. Other Departments seem to get a kick out of trivialising HR/Admin jobs and practitioners.

As if they are better.

The narrow perception of today's office world is that the ones who jab the laptop keypads noisily like there's no tommorow, bustling hither and tither proclaiming to each poor sod they bump into at the latrines how occupied they are as loud as their larynxes may allow over the sound of pee and farts, staying back as late as the last drone of the boss's car engine exiting the office gates, are the personifications of busy-ness. They seem, and so they be. And ergo merit higher pay and better benefits.

HR is seen as a relaxed Department with a lot of spare time and resources, just because we do not go about doing our jobs with theatrics.

You see, our job deals with people, so we need to earn respect.

To do that, firstly we need to be efficient at all times. No hustle, no bustle, just get the job done.

Secondly, we need to manifest trustworthiness. We listen to people, respond to them discreetly and keep their secrets. Mum's the word, no unnecessary gabbling.

Thirdly, when dealing with people's emotions, rice bowl and future, we need to think a lot. We also need to balance that against fulfilling the company's needs and wants. So we need to do lots of research and acquire knowledge of best practices. This requires, amongst other things, surfing the Net, social media networking, emailing, making phone calls, meeting up with people and doing lunch.

It all looks like "doing nothing", doesn't it. But of course, some people judge books by their covers.

And finally, pace. Hey, a problem can get solved in two ways. In a rush like they do it, and end up leaving a trail of mess which guess who has to clean up? Or, with proper planning like we do, with no loose ends, win-win. If you can tell me a real story about another Dept having to clean up HR Dept's mess, I'll buy you lunch.

 Let's all grow up and start giving each other respect.

AGOG

So good to be back to work after the long weekend. While fine-tuning an agreement at work, I received multiple emails from friends about the buka puasa event tommorow. Seems like everyone's all agog about it. More and more people are adding themselves to the list. Good, good. I want to take the opportunity tommorow to say something. Not a toast, and not a speech, but just seizing the chance to apologise for hurting anyone; to congratulate newlyweds and new babies; to wish for speedy recovery for those who have been ill; to wish success to everyone.

Basically to be what a friend should be.

MERDEKA

You know, I'm not too hot on the concept of Merdeka for two reasons.

One, if British colonisation didn't happen in this country, I probably would not have happened myself. And neither would my cousins and our mums/dads and grandmum.

Two, I have always thought that we have the British to thank for opening our eyes to modernisation and giving us a headstart to a good education system, and the rest of the penjajah for teaching us how to fight for ourselves.

My cousins opine that celebrating 31st August as Merdeka Day for 1 Malaysia is an incongruity because Sabah and Sarawak only joined Malaysia 6 years later and thus to make a big deal of it is unfair for the East Malaysians. Well what is obvious is there is still a huge gaping canyon of understanding between Sabah and Sarawak and Peninsular Malaysia and it's high time something is done to close it if the country is honest about 1 Malaysia. If there is a point in all that song and dance celebrating independance, whatever the date, where is it? People in Peninsular Malaysia still do not view East Malaysians as equals.

Not to mention the knowledge and awareness levels of some Peninsular folks about East Malaysia is pathetic. Some think Kuching is in Sabah. Buduh.

Year in year out I hear and read people debate about "negara merdeka tapi adakah minda sudah merdeka?" and truth be told I'm bored to bits about it. Get up and do something about it then if you think we're not merdeka enough. Don't just sit and wait for other people to get things done. This is the problem. It's always been and always will be if everyone keeps waiting for the tipping point.

Other than that, I keep my thoughts to myself. I sit and shut up like I always do, and enjoy my public holiday.

NOTHING

I spent today doing absolutely nothing.

It is not too common for me to spend my weekends doing nothing. My typical weekends would either be half spent at the office and half running household errands like grocery shopping, or going on roadtrips for various reasons.

Once in a while it feels good to do nothing.

It clears your mind off work worries and lets you recharge for the next dose of work worries in the coming week.

It's where you are free just being you, alone with yourself, to do what you want, eat what you want, wear what you want and just use up your time how you want. It is a liberating feeling and makes you feel good about yourself.

THE LITTLE STORY OF A YELLOW SILK BAJU KURUNG.

I have kept this baju kurung for three years. It is too precious for me to wear.

It was originally presented to me as a piece of 4-metre pure silk batik, together with a chocolate-coloured selendang, by my ex-colleagues in one of the companies I worked for before I came to JB.I served the company for almost 4 years.

I do believe that we are fated to work where we work. Today, we may  grumble and grouse and complain about our job and our employer. We would do anything just to get out. In our anger, we forget to remember the blessings that we are given with the job. We forget that the mere fact that we can put food on the table is a blessing. We forget that the lessons we learn through our hardships there is a blessing. We forget that each and every face we meet through the job is also a blessing.

Tommorow, when we look back, we will see how it all falls into place as one perfect picture of our life's journey thus far. Whatever has happened along the way, whether good or bad, had left no adverse traces on us, only made us grow up.

Today, I am working for the passion. I no longer worry about the money, because I hold a simple thought: a lack of it is my failure in planning, an abundance of it is God's gift.

This silk baju kurung reminds me of one fact. The job itself had no chemistry with me, but I held on to my belief that I should be there until such time when God says it's time to move on. And when I did move on, many of the friends I made were treasures I took with me throughout my journey. This baju kurung, in all its splendour, is a testimony of how people around me appreciated what little contribution I made to their work and their lives.

I have a saying. "When we stop becoming colleagues, we become friends." That doesn't always hold true of course, but when it does, it's a very nice thing indeed.

And so I never had the guts to wear this baju kurung, for fear that I will spoil it, because it is a treasury of my memories.

Maybe someday.

UNEXPLAINED.

Recently before the fasting month there were sightings around my office premises of a woman in white. She was seen at night by the night shift employees, sitting on the grass verge between the canteen and the administration building and by the window of the training room overlooking the driveway. She seemed to be waiting for someone.

At another time, I personally saw someone, or something, standing by the production building stairwell window looking out at the parking lot. It was about 6.40pm and I had just started my car to go home. The thing was just standing there motionless looking out at the parking lot and I sat there in my car trying to focus on what it was. For a few seconds I thought it was staring back at me, and we somewhat locked gazes. I couldn't really make out exactly who or what it was because the window was far and very high up. So I started my engine and left.

The second time I saw it was rather creepy. It was on another day, and as I started my car engine I thought of the thing I saw at the window. I sat there and thought about it, and somewhat willed for it to appear. It did. This time there were other movement, like other things prancing about behind it. Then everything faded away. After that I thought I saw something hiding under the window ledge, as if peeping at me from beneath the window. It was all very strange.

A couple of months ago we saw some bubble-like things from the CCTV camera at the production area. It was like someone blowing a gush of bubbles across the camera dome from nowhere to nowhere.

When I come to the office on weekends to finish off work, sometimes I'd be the only one in the entire administration building. But I'd hear a lot of racket, like the sound of doors banging, things bumping against the wall and the sensation of movement as if there were many people around. Once as I was leaving the office on a Saturday afternoon, I heard a very loud crash coming from the toilet area as I was going down the stairs. I went back up and checked around. Nothing and no one.

GOT PEANUTS, BETTER THAN NO PEANUTS.

We in JB watch this on Singapore's Channel 5 every night, and would like to share it with everyone else.

And one more for my friends.

Here's to waking up to a good Friday, folks.