Recovering non-pecuniary losses in breach of employment contract under Malaysian law

Dismissal from employment is the prerogative of the employer. An impending dismissal must be carried out fairly with the affected employee given the right to be heard. When a dismissal has been effected in high-handed manner, it may have real prospect of humiliation and embarrassment to the employee...

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Main Authors:	Ali Mohamed, Ashgar Ali, Shair Mohamad, Mohd Akram, Sardar Baig, Farheen Baig
Format:	Conference or Workshop Item
Language:	English English
Published:	2017
Subjects:	K Law (General) KPG Malaysia
Online Access:	http://irep.iium.edu.my/55702/ http://irep.iium.edu.my/55702/ http://irep.iium.edu.my/55702/1/55702_Recovering%20Non-Pecuniary%20Losses.pdf http://irep.iium.edu.my/55702/7/55702%20Recovering%20non-pecuniary%20losses%20in%20breach%20of%20employment%20WOS.pdf

id	iium-55702
recordtype	eprints
spelling	iium-557022019-08-18T07:32:41Z http://irep.iium.edu.my/55702/ Recovering non-pecuniary losses in breach of employment contract under Malaysian law Ali Mohamed, Ashgar Ali Shair Mohamad, Mohd Akram Sardar Baig, Farheen Baig K Law (General) KPG Malaysia Dismissal from employment is the prerogative of the employer. An impending dismissal must be carried out fairly with the affected employee given the right to be heard. When a dismissal has been effected in high-handed manner, it may have real prospect of humiliation and embarrassment to the employee. Besides besmirching his reputation, it can also affect the employee’s ability to seek new employment, forcing him to accept employment offering lower wages than what would have been expected in the type of work, or even causing him ill health, among others. The availability of compensation for non-pecuniary losses such as wounded feelings or the effect of the dismissal on his reputation or the chances of finding other employment arising from the manner of the dismissal were excluded by the House of Lords in their landmark case of Addis v Gramophone Co Ltd [1909] AC 488. Such compensation was disallowed mainly because the common law perceived employment contract as an ordinary commercial contract and that such contract is not intended to shelter the parties from anxiety. The situation in the 21st century is however markedly different from 1909 where with the advancement of information technology, the transmission of information regarding the manner of a dismissal is borderless and thus, having far reaching consequences on the claimant. In light of the above, this paper discusses the high-handed manner of a dismissal, its impact on the employee and the availability of compensation for non-pecuniary losses under the statutory unfair or unjustifiable dismissal. Reference is made to the law and practice in selected countries namely, the United Kingdom, Canada, Australia and New Zealand. In the context of Malaysia, it will be contended that an employee that had been subjected to deplorable acts of victimisation while in employment and any high-handed manner of a dismissal, among others, should be awarded the non-pecuniary compensation. 2017 Conference or Workshop Item PeerReviewed application/pdf en http://irep.iium.edu.my/55702/1/55702_Recovering%20Non-Pecuniary%20Losses.pdf application/pdf en http://irep.iium.edu.my/55702/7/55702%20Recovering%20non-pecuniary%20losses%20in%20breach%20of%20employment%20WOS.pdf Ali Mohamed, Ashgar Ali and Shair Mohamad, Mohd Akram and Sardar Baig, Farheen Baig (2017) Recovering non-pecuniary losses in breach of employment contract under Malaysian law. In: 4th International Conference on Education and Social Sciences (INTCESS 2017), 6th-8th February 2017, Istanbul, TURKEY. http://www.ocerint.org/intcess17_epublication/papers/89.pdf
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English English
topic	K Law (General) KPG Malaysia
spellingShingle	K Law (General) KPG Malaysia Ali Mohamed, Ashgar Ali Shair Mohamad, Mohd Akram Sardar Baig, Farheen Baig Recovering non-pecuniary losses in breach of employment contract under Malaysian law
description	Dismissal from employment is the prerogative of the employer. An impending dismissal must be carried out fairly with the affected employee given the right to be heard. When a dismissal has been effected in high-handed manner, it may have real prospect of humiliation and embarrassment to the employee. Besides besmirching his reputation, it can also affect the employee’s ability to seek new employment, forcing him to accept employment offering lower wages than what would have been expected in the type of work, or even causing him ill health, among others. The availability of compensation for non-pecuniary losses such as wounded feelings or the effect of the dismissal on his reputation or the chances of finding other employment arising from the manner of the dismissal were excluded by the House of Lords in their landmark case of Addis v Gramophone Co Ltd [1909] AC 488. Such compensation was disallowed mainly because the common law perceived employment contract as an ordinary commercial contract and that such contract is not intended to shelter the parties from anxiety. The situation in the 21st century is however markedly different from 1909 where with the advancement of information technology, the transmission of information regarding the manner of a dismissal is borderless and thus, having far reaching consequences on the claimant. In light of the above, this paper discusses the high-handed manner of a dismissal, its impact on the employee and the availability of compensation for non-pecuniary losses under the statutory unfair or unjustifiable dismissal. Reference is made to the law and practice in selected countries namely, the United Kingdom, Canada, Australia and New Zealand. In the context of Malaysia, it will be contended that an employee that had been subjected to deplorable acts of victimisation while in employment and any high-handed manner of a dismissal, among others, should be awarded the non-pecuniary compensation.
format	Conference or Workshop Item
author	Ali Mohamed, Ashgar Ali Shair Mohamad, Mohd Akram Sardar Baig, Farheen Baig
author_facet	Ali Mohamed, Ashgar Ali Shair Mohamad, Mohd Akram Sardar Baig, Farheen Baig
author_sort	Ali Mohamed, Ashgar Ali
title	Recovering non-pecuniary losses in breach of employment contract under Malaysian law
title_short	Recovering non-pecuniary losses in breach of employment contract under Malaysian law
title_full	Recovering non-pecuniary losses in breach of employment contract under Malaysian law
title_fullStr	Recovering non-pecuniary losses in breach of employment contract under Malaysian law
title_full_unstemmed	Recovering non-pecuniary losses in breach of employment contract under Malaysian law
title_sort	recovering non-pecuniary losses in breach of employment contract under malaysian law
publishDate	2017
url	http://irep.iium.edu.my/55702/ http://irep.iium.edu.my/55702/ http://irep.iium.edu.my/55702/1/55702_Recovering%20Non-Pecuniary%20Losses.pdf http://irep.iium.edu.my/55702/7/55702%20Recovering%20non-pecuniary%20losses%20in%20breach%20of%20employment%20WOS.pdf
first_indexed	2023-09-18T21:18:39Z
last_indexed	2023-09-18T21:18:39Z
_version_	1777411733560754176

Recovering non-pecuniary losses in breach of employment contract under Malaysian law

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