I had been working for a company for more then 8 years and was retrenched in the 15th May recently due to restructuring. I earned less then Rm 4000, 5days week and the MD agreed to paid out the retrenchement benefits as per our Voluntary Separation Scheme ( in bracket ) held to years ago but difference in dday wages computation has results " shortage " of approx. 50% and MD claimed the previous day wages computation was error :
1. Retrenchment benefits :-
1.1. mthly salary x 12 mth / 360days per year ( 365 days / yr - 52 no. of Sat - 52 no of Sunday = 261 days / year ) x 8 years of service x 20 days /years per Emp Act + 50% above Emp Act
= mthly salary x 12/360 x 8 x 30
1.2 Salary in arrear
mthly salary / 26days per mth ( 261 days / year )x 15 days working in May
1.3 Notice in lieu
mthly salary x 1
1.4 Unused annual leave
mthly salary / 26 days per mth ( 261 days / year ) x 5 days annual leave
1.5 EPF, SOCSO Income Tax withholding on 1.2 Salary in arrear and 1.3 Notice in lieu
Qusetions :-
1. Can I asked the company to compensate in refer to the following case ?
Case extraction from Internet :- SUPREME COURT OF MALAYSIA :- Lee vs Harper Gilfillan (1980) Sdn Bhd Coram GEORGE SEAH SCJ HASHIM YEOP A SANI SCJ WAN HAMZAH SCJ dated 18 DECEMBER 1987
doctrine ¡°average true day¡¯s wages¡± in reg 6(2) and the words ¡°for work done in respect of his contract of service¡± in the definition of wages in s 2(1) of the Employment Act are significant. Therefore for the purpose of computing the average true day¡¯s wages, rest days should be excluded as he was under no contractual obligation to work on rest days to earn his monthly salary. But public holidays should, however, be included even if the public holiday falls on a rest day
the means in computation of mthly wage shall - rest day = as per my VSS ealier
= 365 days / yr - 52 no. of Sat - 52 no of Sunday = 261 days / year
2. The total cliamable amount less then Rm 20,000, Can I proceed with small claim courts ?
3. Which is the better solution write to them first to ask them to compliant to follow the VSS scheme ( using 261 days/ years in computation of benefits) OR ask Director General of Ind Relation OR straight to courts.
Your valuable advise will be great benefits to a sole bread-winner familyman to go the difficult time while still hunting fopr jobs
you can e-mail to thsi address :nk007_my@hotmail.com
unreported case of Union Carbide Singapore Pte Ltd v MP Gindon Nair, which reads:
.... his monthly salary is computed on the basis that Saturdays and Sundays are non-working days for him and that his monthly salary is exclusive of payment for Saturdays and Sundays during which he is under no contractual obligation to work to earn his monthly salary.
John Ham
e-mail :- nk007_my@hotmail.com
