Employer’s guide to dismissal laws in South East Asia
It is never nice. But lay-offs are part and parcel of businesses everywhere and it can be due to different reasons – be it to cut operating costs or simply due to performances and even misconduct of employees.
But laying off a staff can sometimes turn ugly and costly with employees filing lawsuits against their employers for unlawful dismissal. Therefore it’s vital for companies to adhere and be up-to-date with the dismissal laws of the country they operate in.
So here’s a breakdown of the laws governing employee dismissals for the major South East Asia countries compiled by the ASEAN Briefing.
Employers are required to resolve disputes with an employee through bipartite negotiations, followed by mediation or reconciliation. And if both parties fail to reach an agreement, only with a prior order from the Industrial Relations Court (IRC) can the employer dismiss an employee. Until then, the employer is obliged to continue paying the stipulated wages to the employee.
Restricted or prohibited terminations:
While some employers provide a 30-day notice period for dismissals, Indonesian law does not set out any notice period for termination of employment. In any case, employers must first seek approval from the IRC before dismissing an employee. So even a written note will not suffice.
The amount and type of severance to be paid to an employee depends on the basis of the termination of employment. If the termination is due to the employee’s misconduct, the Manpower Law stipulates the following types of severance to be paid to the employee:
- Standard severance pay: One month’s salary for each year of service, up to nine months’ salary.
- Service appreciation pay: Two months’ salary for the first three years of service, followed by an additional month’s salary for every three years of service thereafter, up to a maximum of 10 months’ salary for 24 years of service.
- Monetary compensation: to cover annual leave that has not expired or been taken, medical and housing allowance, relocation expenses (to help the employee and her or his family to return to hometown), other benefits under the employment relationship; and other compensation amounts as determined by the IRC.
If the termination is without cause or there is termination on retirement, the employee is entitled to two times the severance pay amount plus the standard service appreciation pay (if applicable) and compensation. If contested, a termination without cause may result in reinstatement.
An employer in Malaysia cannot dismiss a staff without cause or by simply giving a notice or a salary in lieu of notice. They can only dismiss the staff if there is a legal and authorized cause and after following the procedures required for the cause of termination.
Both the employer and employee have the right to terminate the employment at any time. If the employment contract does not stipulate a mandatory notice period, then either party may provide an interval of notice corresponding with their level of service with the company, which ranges from four weeks for employment periods of less than two years to eight weeks for service duration exceeding five years.
If an employer terminates an employee’s contract without providing the necessary notice, the the employee must then be paid the equivalent wages that they would have received if they had been given notice.
Employees completing less than two years of employment are entitled to 10 days’ wage for every completed year of service. Employees completing two to five years’ employment are entitled to 15 days’ wage for every completed year of service. Employees completing five or more years’ employment are entitled to 20 days’ wages for every completed year of service. Severance pay is not applicable for employees dismissed for misconduct, who retire, or who voluntarily terminate the contract.
Similar to Malaysia, a Philippines employer cannot dismiss an employee at-will, or without cause and by mere notice or salary in lieu of notice. An employer may terminate an employee only if there is a legal and authorized cause for dismissal and it has followed the procedures required for the cause of dismissal.
Employers are required by the Department of Labor and Employment (DOLE) to serve two written notices to the employee they intend to dismiss. The first notice it to specify the ground for dismissal and seeking the employee’s written explanation indicating their own case for defence within five days of receipt of the first notice. The second notice is a formal notice in the event there is sufficient ground to dismiss the employee.
Before issuing the second notice, it is mandatory for the employer to conduct a formal hearing or conference if
- the employee requests in writing;
- if there exists substantial conflicting pieces of evidence;
- if the company’s rules or practice requires it; or
- if similar circumstances justify it.
Separation pay is equivalent to at least one month’s pay or at least one month’s pay for each year of service, whichever is higher; a fraction of six months is considered as one year. However, if the ground for termination is retrenchment to prevent serious losses, closure of business or disease, the separation pay shall be equivalent to one month’s pay or 30 days’ pay for every year of service, whichever is higher; a fraction of six months is considered as one year.
The Employment Act (EA) the principal statute of legislation governing employment dismissals in Singapore. For those employees not covered by the EA, dismissals are governed by the employment contract between employer and employee.
Restricted or prohibited terminations:
Employers are prohibited from dismissing an employee based on age, if the employee has not reached the minimum retirement age. Employers are also restricted from ending employment of a female employee during her maternity leave, or issuing a notice of dismissal during her maternity leave.
The notice period conforms to the contractual terms mutually agreed upon by the employer and the employee and stated in the employment contract. But if there is no notice period agreed, the EA provides for notice periods ranging from one day for employment periods of less than 26 weeks to four weeks for service duration exceeding five years.
There is no obligation for the employer to pay such severance payment unless its stated in the employment contract. So this is a matter of contract, company policy, subsequent negotiations and financial position, or what has been agreed collectively.
When dealing with unionized employees, employers are obliged to negotiate in good faith with the union, and may not have absolute discretion to determine the terms of the retrenchment benefits.
On October 2, 2018, a bill amending certain provisions of the EA was introduced in parliament. Most significantly, claims against wrongful termination will be extended to include constructive dismissal. This implies that an employee may be able to seek redress in instances where the employer creates working conditions that cause the employee to resign without waiting to be terminated by the employer.
Restricted or prohibited terminations:
In Thailand, an employer cannot dismiss, reduce the wages of, punish and/or withhold the performance of duty of any employee who is a member of the Employees’ Committee unless permission to do so has been given to the employer by the labor court.
Unless the employment agreement is for a fixed-term, the minimum statutory notice period is at least one full payment period in advance of the effective date of termination, or payment of wages in lieu thereof. An employer need not give more than three months’ notice if the actual pay period is more than three months. However, at the same time, an employment contract providing for a notice period exceeding three months is enforceable.
Further, the termination notice must be served on the employee’s payday or in advance, such that the effective date of termination would be the following payday.
An employer who terminates the employment of an employee without any cause attributable to the terminated employee as specified in Thai Labor Protection Act (LPA) must pay a severance payment to the employee at the rate prescribed by the LPA together with other due payments. These range from 30 days’ wages for employment periods of less than a year to 300 days’ wages for service duration exceeding 10 years.
An employee employed under a definite period contract or a project contract whose employment is terminated according to such specified period is not entitled to any severance payment.
Special severance pay:
If an employer terminates an employee due to the introduction of machinery or replacement of machinery or application of technology, and such employee has been working for 6 consecutive years or more, the employer is obliged to pay additional special severance pay of not less than the last 15 days’ wage rate per year of employment capped at an amount equal to the last 360 days’ wage rate. For any period of less than a one year, if the fraction of employment period is more than 180 days, it will be rounded up to one full year of employment.