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.

Support this blog by following it through Networked Blogs via Facebook or Google Friend Connect.

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.