Even More HR FAQs You Were Too Afraid to Ask
TABLE OF CONTENTS
- Even More HR FAQs You Were Too Afraid to Ask
- An employee has resigned and doesn’t want to serve their notice period.
- An employee has just straight up resigned and gone AWOL!
- How do I research a salary range for recruitment?
- Do I need to screen employees for drugs?
- Can sick leave and parental leave be prorated?
- A competitor poached my employee!
Since our last instalment of HR FAQs, we’ve gotten so many more questions from our readers and customers. We’ve compiled some of the most-asked questions right here, so you can look up the toughest HR issues you were too afraid to ask!
An employee has resigned and doesn’t want to serve their notice period. What can HR do?
Upon resignation, employees are legally obligated to serve out their notice period according to their employment contract. For example, if the notice period stated in the contract is three months, they will have to serve three months’ notice and complete their handover during this period.
However, employer and employee can come to an agreement to shorten the notice period. Employees can use their annual leave balance to offset the notice period and bring forward their last day of work. Another way is to buy out the notice period by paying the company an equivalent sum to the notice period of the employee’s salary.
An employee has just straight up resigned and not served their notice period!
In this case, you can issue a letter of demand to the employee for the wages owed equivalent to their buyout sum, as well as for any company equipment still in the employee’s possession.
Any action taken against the employee must be done as a civil action. Previously, such an action could be referred to the Director-General of Labour via the Labour Court, but this avenue has been abolished by the 2022 amendments to the Employment Act.
How do I research a salary range for recruitment?
Salary benchmarking is the process by which companies compare internal salaries with the industry average. You can derive a salary range from there.
First, establish the job criteria, such as:
- Job scope
- Key skills
- Education level
- Experience level
- Any special qualifications
Next, determine market criteria such as:
- Geographic location
- Cost of living
- Industry average pay
- Pay in organizations of similar size
You can also compile salary data from external sources, such as Singapore’s Ministry of Manpower salary comparison tool. In Malaysia, this data is published by organizations like Michael Page and JobStreet.
Do I need to screen employees for drugs?
While there are no regulations stating mandatory drug testing for employees, Malaysia’s Occupational Safety and Health Act 1994 does require employers to ensure, as far as practicable, the safety, health and welfare at work of all their employees. Arguably, this can extend to drug testing as drug abuse can lead to an unsafe working environment.
In practical terms, some employment contracts do contain clauses allowing for periodic, random drug tests. Otherwise, you will need to get the employee’s consent for random drug testing, particularly if you suspect they are turning up for work under the influence.
Can sick leave and parental leave be prorated?
No. Sick leave cannot be prorated. In Malaysia, on a close reading of section 60F of the Employment Act 1955, it states that employees are entitled to sick leave “in the aggregate in each calendar year”, which means it cannot be prorated.
Similarly, maternity leave cannot be prorated as section 37 of the Act allows for “consecutive days…in respect of each confinement”.
A competitor poached my employee!
In general, you can do very little to prevent poaching.
Even if you insert a non-compete or anti-poaching clause in the employment contract, it is very unlikely to be held up in court. In fact, section 28 of Malaysia’s Contracts Act 1950 states that an “agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void”.
Employers can only restrict employees from using confidential information belonging to the organization, such as client lists or any proprietary knowledge that gives the organization a competitive advantage. Thus, non-disclosure agreements are binding, but only so far as actual usage of the information is concerned. An NDA cannot be used to prevent an employee from leaving employment.
On the other hand, in cases of ‘mass poaching’, the court may rule in favour of the employer as employees are expected to serve with fidelity and good faith. In Sundai Malaysia Sdn Bhd v Masato Saito & Ors [2013] 9 MLJ 729, the court held that there was a breach of duty in a plot to resign en masse and join a competitor.
Learn how BrioHR can simplify HR for your business by getting a free demo here.
Since our last instalment of HR FAQs, we’ve gotten so many more questions from our readers and customers. We’ve compiled some of the most-asked questions right here, so you can look up the toughest HR issues you were too afraid to ask!
An employee has resigned and doesn’t want to serve their notice period. What can HR do?
Upon resignation, employees are legally obligated to serve out their notice period according to their employment contract. For example, if the notice period stated in the contract is three months, they will have to serve three months’ notice and complete their handover during this period.
However, employer and employee can come to an agreement to shorten the notice period. Employees can use their annual leave balance to offset the notice period and bring forward their last day of work. Another way is to buy out the notice period by paying the company an equivalent sum to the notice period of the employee’s salary.
An employee has just straight up resigned and not served their notice period!
In this case, you can issue a letter of demand to the employee for the wages owed equivalent to their buyout sum, as well as for any company equipment still in the employee’s possession.
Any action taken against the employee must be done as a civil action. Previously, such an action could be referred to the Director-General of Labour via the Labour Court, but this avenue has been abolished by the 2022 amendments to the Employment Act.
How do I research a salary range for recruitment?
Salary benchmarking is the process by which companies compare internal salaries with the industry average. You can derive a salary range from there.
First, establish the job criteria, such as:
- Job scope
- Key skills
- Education level
- Experience level
- Any special qualifications
Next, determine market criteria such as:
- Geographic location
- Cost of living
- Industry average pay
- Pay in organizations of similar size
You can also compile salary data from external sources, such as Singapore’s Ministry of Manpower salary comparison tool. In Malaysia, this data is published by organizations like Michael Page and JobStreet.
Do I need to screen employees for drugs?
While there are no regulations stating mandatory drug testing for employees, Malaysia’s Occupational Safety and Health Act 1994 does require employers to ensure, as far as practicable, the safety, health and welfare at work of all their employees. Arguably, this can extend to drug testing as drug abuse can lead to an unsafe working environment.
In practical terms, some employment contracts do contain clauses allowing for periodic, random drug tests. Otherwise, you will need to get the employee’s consent for random drug testing, particularly if you suspect they are turning up for work under the influence.
Can sick leave and parental leave be prorated?
No. Sick leave cannot be prorated. In Malaysia, on a close reading of section 60F of the Employment Act 1955, it states that employees are entitled to sick leave “in the aggregate in each calendar year”, which means it cannot be prorated.
Similarly, maternity leave cannot be prorated as section 37 of the Act allows for “consecutive days…in respect of each confinement”.
A competitor poached my employee!
In general, you can do very little to prevent poaching.
Even if you insert a non-compete or anti-poaching clause in the employment contract, it is very unlikely to be held up in court. In fact, section 28 of Malaysia’s Contracts Act 1950 states that an “agreement by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, is to that extent void”.
Employers can only restrict employees from using confidential information belonging to the organization, such as client lists or any proprietary knowledge that gives the organization a competitive advantage. Thus, non-disclosure agreements are binding, but only so far as actual usage of the information is concerned. An NDA cannot be used to prevent an employee from leaving employment.
On the other hand, in cases of ‘mass poaching’, the court may rule in favour of the employer as employees are expected to serve with fidelity and good faith. In Sundai Malaysia Sdn Bhd v Masato Saito & Ors [2013] 9 MLJ 729, the court held that there was a breach of duty in a plot to resign en masse and join a competitor.
